JUDGMENT
A. Ramamurthi, J.
1. The defendant in the suit is the appellant. After filing of the appeal, the defendant died and appellants 2 to 10 were imp leaded as the legal heirs.
2. The case in brief is as follows:- The plaintiffs filed a suit for declaring that the 2nd schedule property belongs to them and for recovery of possession and mesne profits. The schedule property and Vandipettai north of the schedule property originally belonged to the family of the plaintiffs. There was partition between the plaintiffs and their sisters. The first schedule shop was allotted to their sister by name Mahabooba Beevi. The north south measurement of the shop is 33 links and east west measurement is 29 links. The building was in the management of the 1st plaintiff. The first schedule property was leased out to the defendant for starting a flour grinding mill. Since the space was not sufficient, the defendant requested the 1st plaintiff to lease out a portion of Vandipettai, which is described as second schedule. The plaintiffs put up a shed in an area of 13-1/2 feet north south and 17-1/2 feet east west and leased out the same to the defendant. He also entered into a lease agreement for the entire schedule property with the 1st plaintiff and paying the rent. Subsequently, the defendant purchased the first schedule from the sister of the plaintiffs under a registered document dated 09.05.1984. But in the sale deed, he has clandestinely included the 2nd schedule property which belongs to their sister. The defendant has no manner of right in the second schedule property. Hence the suit.
The defendant admitted that the sister of the plaintiffs originally leased out the property for running the grinding mill. Subsequently, plans were submitted to the authorities concerned for running the mill and the defendant is in occupation of the building for more than the statutory period. The building which was already in existence was purchased by him for a valuable consideration and he is a bona fide purchaser for value. The boundaries and the extent stated in the sale deed are correct and binding on the plaintiffs. There is no first schedule as alleged. The entire building is in one structure. There is no second schedule as alleged. The plaintiffs never constructed any shop and there was also no lease agreement. The defendant and his vendors have prescribed the title to the property. There is no clandestine inclusion in the sale deed. Mahabooba Beevi conveyed her property which was in the possession and enjoyment. The plaintiffs are not entitled to get any relief.
The trial court framed 8 issues and on behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A-1 to A-4 were marked and on the side of the defendant, he was examined as D.W.1 and no document was marked. The trial court dismissed the suit and aggrieved against this, the plaintiffs preferred A.S.No.21 of 1990 on the file of Additional Sub Court, Tirunelveli and the learned Judge after hearing the parties, allowed the appeal, set aside the judgment and decree of the trial court and decreed the suit. Aggrieved against this, the defendant has come forward with the present second appeal.
3. At the time of admission of the second appeal, this Court framed the following substantial question of law for consideration:
Whether the conclusion of the Court below that the defendant has not perfected title to the plaint second schedule property by adverse possession is correct in view of the admitted fact that the defendant is in possession of the said property from 1965 ?
4. Heard the learned counsel for the parties.
5. The plaintiffs filed the suit for declaring that the 2nd schedule property belongs to them and consequently directing the defendant to put the plaintiffs in possession of the same. It is admitted that there was partition between the plaintiffs and their sisters, in which 1st schedule property fell to the share of their sister named Mahabooba Beevi. The 1st schedule was also leased out to the defendant for running a flour grinding mill and since the space was not sufficient, the 1st plaintiff constructed a building measuring 13-1/2 feet north-south and 17-1/2 feet east-west in the 2nd schedule property and leased out to him. Subsequently, the defendant purchased 1st schedule of property under a registered document dated 09.05.1984; but, however, in the sale deed item 2 of the property was also included and therefore, the plaintiffs were constrained to file the suit.
6. Per contra, the defendant contended that what was leased out to him was inclusive of both items comprising one unit. The 1st plaintiff never put up any construction as alleged in item 2 and there was also no lease agreement between him as well as the 1st plaintiff. The property was leased out long back for the purpose of running a flour grinding mill and there is no dividing mark between schedule 1 and 2. What was leased out to him has been subsequently purchased by the defendant under a registered document and as the defendant is in possession and enjoyment of the property for more than the statutory period, he had also prescribed the title.
7. The trial court dismissed the suit filed by the plaintiffs whereas the lower appellate court reversed the finding and decreed the suit. The learned counsel for the appellants contended that the lower appellate court failed to see that it is not clear from Ex.A-1 that the 2nd schedule property also forms part of the property allotted tot he plaintiffs and no steps had been taken by the plaintiffs to identify the same. There is no proof that the plaintiffs built the shop and let the property to the defendant and collecting rent from him. The recitals in Ex.A-2 and the evidence would show that the defendant was in possession of the entire building purchased by him from 1965 as a tenant under Mahabooba Beevi and subsequently as owner from 1984 perfected title to the property. The substantial question of law is also only with reference to the prescription of title by adverse possession relating to the 2nd schedule.
8. Ex.A-1 dated 15.05.1961 is the partition deed entered into between the plaintiffs and their sisters. Admittedly, schedule No.7 in the partition deed was allotted to the share of Mahabooba Beevi and she had ultimately conveyed the same to the defendant under Ex.A-2 dated 09.05.1984. Now, the plaintiffs merely contended that the share allotted to Mahabooba Beevi was only first schedule of property and this alone was leased out to the defendant and subsequently the first plaintiff put up construction in item No.2 and leased out to the defendant under a separate lease agreement. It is necessary to state that the plaintiffs have not chosen to file any lease agreement entered into with the defendant. There is also no record to show when the 1st plaintiff put up the construction and what was the cost. When the defendant had taken a categorical stand that he was a lessee of the entire property since 1965 under Mahabooba Beevi and ultimately got sale deed of the very same property under Ex.A-2, the burden is only upon the plaintiffs to establish otherwise. The fact that the defendant was let into possession of the property from 1965 is not in dispute. However, P.W.1 would state that he was in possession of item No.1 only and not item No.2. If that be so, the plaintiffs must establish in which year item No.2 was separately put in possession of the defendant as well as the terms and conditions. Although it is pleaded that there was a lease agreement, nothing has been filed into the Court. In the absence of any relevant document relating to item 2 of the property, the only conclusion that can be drawn is that the defendant is in possession of the entire property from the beginning and ultimately purchased the same in the year 1984. The appellate court has not considered the entire material in the proper perspective. It is stated that item 2 of the property was also a subject matter of partition in the year 1961 and if it was not allotted to the share of Mahabooba Beevi, then it must be explained by the plaintiffs how and in what manner and in which year the defendant came to occupy the same. The evidence adduced in the case also indicated that both items 1 and 2 are forming one unit and there is no dividing mark to separate them. P.W.1 also admitted in the cross examination that he has not filed any document to prove the alleged tenancy relating to item No.2. D.W.1 stated that what was enjoyed by him has been conveyed to him. Even assuming that the vendor to the defendant was allotted only 3/4th cent relating to item one of the property, now admittedly the defendant is in possession of more area and he claims title by prescription. There is no proper plea in the plaint as to when the defendant got into possession of item 2 of the property.
9. P.W.1 also admitted in the course of evidence that there is no mark to divide both items. He also admitted that shop in item No.1 was put up some 60 years back. It is admitted that since 1965 the 1st defendant was running the shop in the same place. Although P.W.1 admitted that the defendant used to pay rent with him, it is not supported by any document. P.W.1 also admitted that his sister’s husband Ismail is one of the attesters to the sale deed and he had no enmity with the said Ismail. Till this date, P.W.1 had also not enquired with his sister as to how item No.2 of the property also conveyed. P.W.1 has also not sent any document to the Factory Inspector relating to the construction put up in item 2 of the property. Considering the entire material, it is patently clear that item 2 of the property was in the possession of the defendant ever since 1965 and the plaintiffs miserably failed to establish that the defendant was let into possession of item 2 of the property as a lessee. The plaintiffs have not produced any record to prove either the lease or payment of any rent by the defendant relating to item 2 of the property. On the other hand, the defendant was in possession of the property right from the year 1965 till 1984 under a valid document and from 1984 by virtue of the sale deed, he is in possession. During 1965 to 1984 the plaintiffs have not taken any steps to get possession of the property from the defendant. Under the circumstance, the trial court has rightly considered the entire material and came to the conclusion that the defendant had prescribed the title by adverse possession. Unfortunately, the lower appellate court misdirected itself and simply rejected the claim of the defendant without any material. The finding arrived at by the lower appellate court is not based on legal evidence, but on improper materials and as the finding is a perverse one, it is liable to be interfered with.
10. For the reasons stated above, the Second Appeal is allowed and the judgment and decree of the lower appellate court are set aside and the judgment an decree of the trial court are restored. No costs.