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Judgment
M. Karpagavinayagam, J.—The appellants are the defendants. Through this Second Appeal, they seek to set aside the judgment and decree
made in A.S. No. 67 of 1985 on the file of the learned Subordinate Judge, Ramanathapuram, Confirming the judgment and decree passed by the
District Munsif, Paramakudi, in O.S. No. 120 of 1982. Pappammal alias Savariammal, the first respondent was the plaintiff. She filed O.S. No.
120 of 1982 on 12.2.1982 before the District Munsif, Paramakudi, for partition and separate possession of her half share in the suit properties, to
direct the defendants 1 to 3 to render accounts for 14 years from 7.11.1964 and to pay her half share in the income for three years prior to the
date of suit and for mesne profits from the date of plaint till the date of possession.
According to the plaintiff, the suit properties belonged to her maternal grandmother Thomayee Ammal, who died leaving behind her three sons,
viz., Savarimuthu, Irudhayasamy and Jayaraj and four daughters, viz., Thiresammal (mother of the plaintiff), Mariasironmani (first defendant),
Mariammal and Arulayee Ammal (fourth defendant). After the death of Thiresammal, the said three sons executed a release deed dated 6.11.1964
in favour of their three sisters and the plaintiff, the daughter of another sister Thiresammal. Thus, the plaintiff is entitled to 1/4 share in the suit
properties as heir to her mother,
On 7.11.1964, the plaintiff and other three maternal aunts executed a power of attorney empowering Gnanamuthu Konar, the husband of first
defendant Mariasironmani Ammal to manage the suit properties with the power to alienate the properties for necessity of the family. Mariammal,
one of the aunts, on 12.9.1974 executed a will bequeathing her 1/4 share in favour of the plaintiff. Consequently, the plaintiff would be entitled 1/2
share in the suit properties.-
In the meantime, the said Gnanamuthu Konar, the Power of Attorney sold suit item No. 1 to 9th defendant on 17.10.1967, suit item No. 3 to
7th defendant on 26.6.1974, suit item No. 9 to 6th defendant on 4.6.1971 and suit item No. U to 5th defendant on 28.8.1967 respectively even
without the knowledge of the plaintiff. Moreover, her Power of Attorney did not render accounts or pay income for 14 years from 7.11.1964 till
his death on 17.12.1978.
In the year 1982, the plaintiff sent a notice to the defendants asking for her half share in the suit properties. Reply was sent only on behalf of the
defendants 1 to 3 and 5 to 7 with false allegations. As the sale of the above suit items was not known to the plaintiff, they are not binding on her.
Hence, the suit for partition and separate possession and for mesne profits.
Though written statement has been filed by the defendants 1 to 3 and 5 to 8, the 4th defendant, who is one of the maternal aunts of the plaintiff,
did not choose to appear before the Court.
The defendants 1 to 3 and 5 to 8 resisted the suit by filing two separate written statements. According to them, Mariammal did not execute and
never intended to execute any Will in respect of her share in the suit properties in favour of the plaintiff. The alleged Will dated 12.9.1974 of
Mariammal is not valid. The alienations made in favour of the defendants 5 to 9 in respect of the suit items 1, 3, 9 and 11 by Gnanamuthu Konar,
the Power of Attorney, are valid and binding on the plaintiff, since the said alienations were made for necessity of the family, for litigation expenses
in O.S. No. 402 of 1964 and A.S. No. 4 of 1966 in respect of the suit properties, for medical expenses of the husband of Mariamma from 1965
to 1969, for marriage of the 4th defendant''s daughter, for digging a well and installation of pumpset for the 4th defendant and for the maintenance
and family expenses of the plaintiff and Mariammal. The plaintiff is well aware of the said alienations. By her conduct, she acquiesced and accepted
the alienations. The defendants 5 to 9 are continuously in separate possession and enjoyment to the knowledge of the plaintiff and they have
perfected title by adverse possession. The plaintiff is estopped from questioning the alienations made by her Power of Attorney. The defendants 1
to 3 are not liable for accounts and mesne profits.
During the trial, on the plaintiff''s side P.W. 1, the plaintiff and P.W. 2 were examined and Exs.A1 to A9 were marked. On the defendants side,
the first defendant was examined as D.W.1 and the 6th defendant was examined as D.W.2 and Exs.B1 to B21 were marked.
After consideration of the materials, the trial Court decreed the suit on 10.1.1985 as prayed for. The first Appeal preferred by the defendants in
A.S. No. 67 of 1985 on the file of Sub-Court, Ramanathapuram was also dismissed on confirming the decree passed by the trial Court. Hence,
the Second Appeal.
The findings which have been given by both the Courts below on the basis of the various issues framed could be summarised as below:-
(1) The Will Ex. A3 executed by Mariammal in favour of plaintiff Savariammal dated 12.9.1974 is a true and valid document.
(2) The sale deeds Exs.B6, B7, B8 and B9 dated 28.8.1967, 17.10.1967, 4.6.1971 and 26.6.1974 executed by the Power of Attorney in favour
of the defendants 5 to 7 and 9 are not binding on the plaintiff, since there are no materials to show that the properties were sold out of necessity of
the family. On the other hand, the sale deeds have been created by Power of Attorney Gnanamuthu Konar, in order to defraud the plaintiff and
other coparceners. Therefore those sale deeds are not valid and binding on the plaintiff.
(3) Exs.B8 and B9, the sale deeds were executed on 4.6.1971 and 26.6.1974 respectively. The suit has been filed within 12 years, that is, on
17.2.1982. Therefore, it is well within the period of limitation.
(4) Regarding the execution of sale deeds Ex. B6 dated 28.8.1967 and Ex. B7 dated 17.10.1967 the plaintiff came to know only after receipt of
the notice dated 6.1.1982. Therefore, it is also not beyond the period of limitation.
(5) The plaintiff would be entitled to 1/4 share as a heir a Thiresammal and another 1/4 share as a legatee through the Will executed by
Mariammal. She would also be entitled to mesne profits as claimed.
Challenging all these findings, the present Second Appeal has been filed raising various substantial questions of law.
At the time of admission of the Second Appeal, Hon''ble Srinivasan, J (as he then was) passed a detailed order rejecting the various
contentions urged by the counsel even at the stage of admission. As a matter of fact, this Court in the said order dated 7.12.1987 would discuss
the findings of the Court below in detail and refer to the arguments made by the counsel for the appellants and hold that the Will Ex. A3 is a
genuine document and the same is not a settlement deed and by virtue of Ex. A3, the share of Mariammal in respect of all the properties was
bequeathed to the plaintiff, though the details of some properties were not mentioned in the said Will.
However, while rejecting the appeal on the above grounds, Hon''ble Srinivasan, J. admitted this Second Appeal on the basis of the contention
made by the Counsel for the appellants that both the Courts below have failed to hold that the alienations of items 1, 3r 9 and 11 in favour of the
defendants 9, 7, 6 and 5 respectively are binding on the plaintiff, as they were made by Gnanamuthu Konar, the Power of Attorney agent of the
plaintiff and the other co-owners and that without considering the evidence properly, the Courts below took the wrong view that the alienations
were not made for necessity and therefore, not binding on the plaintiff even without the prayer by the plaintiff for setting aside the alienations.
On the strength of the above plea, the following order was passed formulating the substantial question of law as under:-
Whether the plaintiff is entitled to a share in items 1, 3, 9 and 11 without setting aside the alienations made by her power of attorney agent in
favour of defendants 9, 7, 6 and 5 respectively and whether the Courts below are right in holding that the alienations are not binding on the plaintiff
as they were not supported by necessity?
In other respects, the Second Appeal is dismissed. Admit. Notice.
So, the above order would show that the counsel for the plaintiff would be entitled to argue on the basis of the above substantial question of
law alone.
Mr. Ramanathan, the Learned Counsel for the first respondent in the beginning would contend, ''while referring about the above order, on the
strength of the judgments rendered in Ramji v. Krishnarao A.I.R.1982 S.C.1223 and Eswariah v. Rameswarayya ILR 1940 Madras 785 = 51
L.W.694), that the admission of appeal in respect of some points and rejection of appeal in respect of other points may not be proper, in view of
the settled position that either the appeal should be admittedly wholly or rejected wholly.
Regarding this contention, in my opinion, it is not necessary to concentrate much, as this Court is called upon to decide about the validity of the
judgment and decree passed by both the Courts below in this appeal filed by the defendants/appellants, who are aggrieved by the same.
Even assuming that the argument regarding above legal position advanced by the Learned Counsel for the first respondent is correct and
acceptable, then it shall be taken that this appeal has been admitted wholly.
However, the Learned Counsel appearing for the appellants would confine himself to the substantial question of law, which has been
formulated by this Court by the order dated 7.12.1987 with reference to the question as to whether the alienations are not binding on the plaintiff
and whether she is entitled to share in item Nos. 1, 3, 9 and 11 without setting aside those alienations.
Under those circumstances, it would be appropriate to refer to the arguments of the counsel in respect of the above substantial question of law
alone.
Mr. Jayaraman, the learned senior counsel would argue, in elaboration of the substantial question of law that, when the alienations are voidable,
the plaintiff ought to have asked for declaration that those documents are not valid and further asked for setting aside of those alienations and mere
suit for partition and separate possession without asking for setting aside the alienations would not make the suit maintainable and that the
alienations made under Exs.B6 to B9 sale deeds by the Power of Attorney Gnanamuthu Konar were executed only for family necessity and that
therefore, they are valid and binding on the plaintiff and without consideration those materials available on record, both the courts below have
wrongly decreed the suit filed by the plaintiff.
In reply to the said submission, Mr. Ramanathan, Learned Counsel appearing for the first respondent, in support of the findings of the trial
Court and lower Appellate Court, would contend that when the sale deeds themselves are void, since they were executed not for the family
necessity, they are not binding and there need not be any separate prayer for setting aside those sale deeds and as such, the suit for partition and
separate possession is maintainable.
Both the counsel would cite a number of authorities dealing with the various aspects and questions including the point of issue raised in this
appeal.
Though several authorities have been citied, it would be better to refer to a few decisions dealing with this question of law.
In Unni v. Kunchi Ammal (I.L.R.14 Madras 26), it was held thus:-
In the case cited by the District Judge, Raman v. Valia Amma (S.A.270 of 1880) which was a case similar to the present, Turner; C J. and
Kernan, J., observed:- ""If a person not having authority to execute a deed, or having such authority under certain circumstances which did not
exist, executes a deed, it is not necessary for persons who are not bound by it to sue to set it aside, for it cannot be used against them. They may
treat it as non-existent and use for their right as if it did not exist"". We entirely agree in this agreement of the law.
In Ramaswami v. Rangachariar (I.L.R. 1940 Madras 259 = 51 L.W. 11), it was observed as follows:-
In respect of decrees passed against him in suits in which he had been eo nomine impleaded as a party, it is plain that he must pay the fee
prescribed by section 7 (iv-A). Such decrees bind him until set aside, and therefore he cannot seek to obtain a decision on the footing that his
interest in the joint family property is not affected by them. It makes no difference that the plaintiff is a minor or merely a junior member of the
family as the considerations which apply to the decree of a competent Court once it is passed are essentially different from those applicable to the
transactions of a party. The plaintiff must be held to have impliedly asked for a cancellation of the decrees passed against him and must accordingly
stamp his plaint ad valorem on the account of the decrees and not merely on his share fraction, as his liability is for the full amount, though
necessarily limitation to the extent of his share in the joint family assets. These remarks apply to items Nos.9 and 10 in the table.
The other transactions of the first defendant, whether the plaintiff is made a party thereto or not, stand on a different footing. He is not bound under
the substantive law by which he is governed, to sue for a declaration or cancellation in respect of any of them. The legal position has been correctly
explained in Unni v. Kunchi Ammal in the following words which were taken an unreported decision of this Court:
If a person not having authority to execute a deed or having such authority under certain circumstances which did not exist executes a deed, it is
not necessary for persons who are not bound to it, to sue to set aside, for it cannot be used against them. They may treat it as non-existent and sue
for their rights as if it did not exist.
In Appanna Vs. Jami Venkatappadu and Others, , it was held as under-
Now, the authorities have established that for this purpose, there is a distinction between voidable and void transactions and that while the former
class of transactions should be set aside, the latter need not be. The reason for this distinction is that in the case of a voidable transfer, the title to
the properties vests in the transferee on the execution of the deed and it can revest in the transferor only by a decree of Court rescinding the
transfer on grounds such as coercion, undue influence or fraud.
But different considerations arise when the instrument of transfer is void and does not operate to vest the title in the transferee. In that case the
transferor continues to be the owner of the properties even after the execution of the instrument precisely as before. There is no need in such a
case for the transferor to move the Court for setting aside the deed, because there is ho transfer which Court has to rescind and if the transferor
has to recover possession of the properties covered by the deed, he can ignore the deed and recover on the strength of his own title.
In Sankaranarayana Pillai v. Kandasamia Pillai (1956-II-M.LJ.411 = 69 L.W. 686), the Full Bench of this Court would observe thus:-
Where a minor is eo nomine a party to a sale deed or other document of alienation by a guardian which he seeks to set aside it is not enough for
him to merely sue for possession and pay Court-fee u/s 7(v) of the Court-fees Act but he must sue for the cancellation of the document and pay
Court-fee u/s 7(iv-A) of the Act. It makes no difference whether the sale deed is executed by the guardian of the minor as guardian or as manager
of the joint family. In either case, the document has to be set aside. It is not open to the minor to ignore the transaction and seek possession of the
property.
But where the minor is not eo nomine a party to the transaction and the transaction is on behalf of a joint family of which the minor was a member,
he could always ignore the transaction as not binding on the family and can seek to recover possession. As transactions entered into by a guardian
relating to a minor''s properties is not void but is only voidable at the instance of the erstwhile minor within three years of his attaining majority, the
minor is deemed to be a party to the transaction.
In Raju v. Venkataswami Naidu (1959-I-M.LJ. 118 = 72 L.W. 671), this Court would hold thus:-
It is well-settled that in the case of an alienation by the guardian, the minor who claims the property should set aside the transaction before he can
obtain relief by way of possession, etc. But what is contended on behalf of the petitioner by Mr. Parthasarathi is that the father is the lawful
guardian and so long as he is alive, the mother cannot be the guardian and when the mother describes herself as the guardian of the minor children,
she can at best be only a de facto guardian. Therefore, it is contended that the sale is totally void and need not be set aside.
In Gnanambal Ammal v. Kannappa Pillai (1959 (1) M.L.J. 355), this Court would hold as under:-
Where a plaintiff''s case is that a document is sham and nominal, it need not be set aside, and the suit for relief on that footing is not one for
cancellation, so as to attract the application of Section 40 of the Madras Court-fees and Suits Valuation Act, 1955. But even in such a case, if the
plaintiff sues for cancellation he would have to pay Court-fee on that relief, whether it is necessary to have the deed cancelled or not.
In Muppudathi Pillai v. Krishnaswami Pillai (I.L.R. 1959 Mad 929 = 72 L.W.543), it was observed as follows:-
In Ammani Ammal v. Ramaswami Naidu (1918 (37) M.LJ.113), Napier, J., after referring to the provisions of Sections 39 and 41 of the Specific
Relief Act observed at page 121:
To my mind it is clear that there is no necessity to have this document cancelled. The illustrations to Section 39 indicate that it is only where a party
cannot get his legal remedy without first having the document set aside that he comes within the Section. This is a suit by the true owner to recover
possession of the property. The title adverse to him is not one procured from him or from anyone under whom the claims or from anyone who
purported to convey an interest of his. It seems to me therefore that there can be no necessity for him to apply to have the document cancelled and
further that the Court would have no jurisdiction to do so.
We accept this statement of the law.
In Janaki Ammal v. Rangachari (1960) I M.LJ.527 = 73 L.W.625, this Court would observe as follows:-
If, therefore, under the substantive law, it is necessary for a party to set aside a transaction before obtaining the relief prayed, the Court would
imply that there was a prayer to set aside the transaction or direct an amendment of the plaint to that effect so as to levy the proper fee. It is equally
settled that where it is unnecessary to set aside a transaction, no such prayer can be implied or required to be taken. Even where there is such a
prayer, it is considered as unnecessary or a mere surplusage. (Vide Y.G. Gurukul v. Y. Subramanyam (1956 An.W.R.553). A reading of the
plaint would show that the plaintiffs based their title to the suit properties not as heirs of their mother, but as settles under a previous settlement or
arrangement.
In Krishnaswamy v. Rangaswamy Gounder (81 L.W.338), this Court would hold thus:-
The alienation will be a bar to his getting the relief of partition. It being a voidable transaction he must have it set aside"".
From the reading of the above citations, the following factor would broadly emerge: -
(a) If a person not having authority to execute a deed, or having such authority under certain circumstances which did not exist, executes a deed, it
is not necessary for persons who are not bound by it to sue to set it aside, for it cannot be used against them.
(b) There is a distinction between voidable and void transactions. In the case of voidable sale, the title to the properties vests in the buyer on the
execution of the said deed. It can re-vest in the vendor only by a decree of Court. When the instrument of sale is void, the title does not vest with
the buyer. In that case, the vendor continues to be the owner of the properties. Consequently, there is no need in such a case for the person
concerned to move the Court for setting aside the said deed because there is no transfer which the Court has to rescind and could always ignore
the said transaction as not binding and can seek to recover possession on the strength of its own title. In other words, if the sale is totally void and
sale is sham and nominal, the same need not be set aside. On the other hand, if it is a voidable transaction, the person concerned must seek for
setting aside the same nor remove the bar to get the relief of partition.
On the strength of the above guidelines, the Learned Counsel for the first respondent would submit, by pointing out the relevant recitals in the
Power of Attorney, that the alienation by the Power of Attorney would be permitted only if the necessity of the family arises. This means, though
the Power of Attorney was got some authority to execute a deed, he has no authority to execute the sale deed unless there is contingency or
necessity to execute the same.
In the light of the principles laid down by the various Courts stated supra and taking into consideration the submissions of the Learned Counsel
for the first respondent, we shall look into the facts of the case on hand.
Though Gnanamuthu Konar was the Power of Attorney to manage the suit properties and to alienate in times of necessity for the family, it
cannot be contended that these sale deeds were executed only out of the unavoidable circumstances or contingencies or necessity for the family, as
there is no material for the same.
In such a situation, the observation of the Full Bench of this Court in I.L.R.14 Mad 26 (Supra) and I.L.R.1940 Mad 259 (supra) to the effect
that if a person having authority to execute a deed only under certain circumstances like family necessity which did not exist, executed a deed, then
the said deed would not bind the person concerned and consequently, he may straight way ask for the main relief without asking for setting aside
the said sale deed, would be squarely applicable to the present case.
Furthermore, both the Courts below would hold that the suit for which some expenditure incurred by the Power of Attorney, was disposed of
in the year 1966 itself and there was no necessity for selling the items in question by two documents in 1967 and two other documents in 1971 and
1974 respectively.
It is also noticed that all the four co-owners were very much available and these sale deeds have been executed even without the knowledge of
the co-owners. As already indicated, the 4th defendant, one of the co-owners did not choose to appear before the Court. The Power of Attorney
Gnanamuthu Konar died in the year 1978. Therefore, except the oral evidence of D.W.1, the first defendant, the wife of the Power of Attorney,
there is no other material to show that the properties in question were sold by the Power of Attorney out of necessity of the family.
Moreover, though the defendants 5 to 7 and 9 are the alleged purchasers, 6th defendant Devaraj alone was examined as D.W.2r As a matter
of fact, the trial Court would hold that all these sale documents have been created, in order to defraud the other co-owners including the plaintiff.
The relevant observation is thus:-
That apart, in para 16 of the Judgment of the Trial Court and para 10 of the lower Appellate Court''s judgment, both the Courts below have
elaborately discussed the oral and documentary evidence relating to the sale deeds Exs.B6 to B9 and held as a fact that the item Nos. 1, 3, 9 and
11 have not been sold by the Power of Attorney out of necessity of the family and that therefore, those sale deeds would not bind the plaintiff as
well as other co-owners.
Under those circumstances, on the strength of the above settled law, as laid down by the various Courts and factual findings of both the Courts
below on the basis of the materials available on record, I am of the considered view that the plaintiff is competent to file a suit for partition and
separate possession even without asking for the cancellation of the earlier sale deeds, as it cannot be contended that the Power of Attorney had
authority to execute the sale deeds, as there was no family necessity and consequently, it can be safely held that it is not necessary for the plaintiff,
who is not bound by those sale deeds, to sue to set them aside, for they cannot be used against her, as she may treat them as non-existent and sue
for her right as if they did not exist.
In addition to the above substantial question of law, the learned senior counsel appearing for the appellants would raise one their point. He
contended that since there was sale of item No. 11 in favour of Durairaj, son of fifth defendant under Ex. B6 sale deed dated 28.8.1967 and sale
of item No. 1 in favour of 9th defendant under Ex. B7 sale deed dated 17.10.1967, they are continuously in possession and enjoyment of the said
items to the knowledge of plaintiff and thus, they have perfected title by adverse possession. According to him, the Courts below should have seen
that effect of registration of Exs.B6 to B9 itself is a constructive notice in law as contemplated under Transfer of Property Act. In any event, it is
stated by the counsel for the appellants that at least in respect of item No. 1 under Ex. B7 was purchased and registered on 17.10.1967 and item
No. 11. under Ex. B6 was purchased and registered on 28.8.1967, the suit is clearly barred by limitation, since the suit has been filed only on
11.2.1982.
This submission is resisted by the counsel for the first respondent by pointing out the relevant portions of the judgments of the Courts below
contending that these contentions would fail as they suffer from lack of substance.
In this context, it would be relevant to refer to the findings given by the trial Court and the lower Appellate Court with reference to the above
question.
Before the trial Court, there is no issue regarding the adverse possession. The fourth issue framed by the trial Court is whether the suit is barred
by limitation in respect of items 1, 3, 9 and 11.
The trial Court, after considering the materials, would give a finding in paragraphs 15 and 20, which is as follows:-
The whole reading of the judgment would show that there is no reference about the adverse possession and discussion of the same.
In the lower Appellate Court judgment also, there is no point of issue raised with reference to the adverse possession. As a third issue, the
question has been formulated as to whether the suit in respect of items 1, 3, 9 and 11 is barred by limitation.
While discussing this issue, the lower Appellate Court considered the materials and held as a fact that the plaintiff came to know about the sale
deeds only after receipt of the reply dated 6.1.1982 and as such, the question of limitation would not arise. The following is the relevant extract:-.
Thus, the reading of the above judgment also would make it clear that the lower Appellate Court would specifically find while dealing with the
factual aspects that the plaintiff came to know about the sale deeds only after receipt of the reply dated 6.1.1982 from the defendants and
therefore, the suit in respect of all the items, is within the period of limitation.
As indicated above, there is no issue raised as regards the adverse possession. It is settled law that unless there is a specific plea and proof that
the defendant asserted hostile title and possession to the knowledge of the plaintiff within the statutory period and the latter acquiesced to it, the
defendant cannot succeed to have it established that he perfected his right of title by adverse possession.
In other words, in order to constitute adverse possession the other co-owners out of possession must be proved to have had notice of the
assertion of hostile title and exclusive possession ousting them with the requisited animus for the statutory period. Further, it shall be pleaded and
proved.,
As a matter of course, the plaintiff cannot be fixed with knowledge of the sale documents simply because of the fact that they are registered
documents. Registration of the documents by itself cannot operate as a notice to the plaintiff, that the defendant was holding the property adverse
to him and the dealing with it as full owner. Knowledge, ouster and exclusive possession with the requisite animus are facts to be alleged and
proved by the defendant who pleaded adverse possession.
The burden is heavily on the defendant to prove adverse possession and prescription of title. The starting point of limitation is when possession
becomes adverse.
The plea of adverse possession is not a pure question of law but a mixed question of fact and law. The party pleading adverse possession shall
state with sufficient clarity as to when his adverse possession commenced and the nature of its possession. A person pleading adverse possession
has no enquiries in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all the facts
necessary to establish his adverse possession.
The mere assertion regarding the uninterrupted and continued possession without the animus to continue in possession hostile to the rights of
the real owner will not constitute adverse possession in law.
The above principles have been laid down in the following decisions.
M. Sidhiqu v. Mohd. K.P. Kutty AIR 1996 S.C. 1003;
Ramachandran and 2 others v. Valliammal and 2 others 1992-2 L.W.470);
Doraiswami Mudaliar v. Balasubramaniam (80 L.W.248);
Dr. Mahesh Chand Sharma Vs. Smt. Raj Kumar Sharma and others,
D.N. Venkatarayappa and another Vs. State of Karnataka and others,
In the light of the above principles, if we look at the present facts, it is quite clear, that it was not only not argued regarding adverse possession
before both the Courts below but also no materials were placed before the Courts to show that the defendants have perfected title by adverse
possession and when the adverse possession to the knowledge of the plaintiff commenced. For raising the ground of adverse possession and
limitation, the mere plea would not do. There cannot be any question of adverse possession or limitation, unless the plea of the ouster is raised and
successfully proved.
On going through the records depicting the materials placed by both the parties and the reasonings given by both the Courts below to pass
decree in favour of the plaintiff, I do not find any reason to hold that both the Courts below have committed error.
u/s 100 of Code of Civil Procedure, this Court is not expected to re-appreciate the evidence. this Court is only concerned with the question
whether the finding of the- lower Appellate Court is based on evidence, and whether the same has been arrived at in accordance with law.
Applying those principles to the present facts of the case, I am not able to hold that the findings of the Courts below are, in any way, incorrect
or any interference is called for by this Court.
this Court, while exercising its jurisdiction in Second Appeal, will not interfere with pure findings of fact, by substituting its own assessment of
the evidence. As a matter of fact, in R. Ramachandran Ayyar Vs. Ramalingam Chettiar, the Apex Court would hold that the High Court cannot
interfere with the conclusions of fact recorded by the Appellate Court, however, erroneous the said conclusions may appear to be to the High
Court.
However, as indicated above, I cannot even say, the conclusions of fact recorded by the Courts below in the present case are erroneous, as,
in my view, both the Courts below would give a correct finding of fact by making a proper appreciation of the entire evidence on record. In the
result, the Second Appeal is dismissed. Consequently, the judgments and decrees of both the Courts below are confirmed. No costs.