Judgment:
S. Jagadeesan, J.
1. Plaintiff in O.S.No. 916 of 1978 on the file of the District Munsif, Gingee is the appellant herein. He has filed the said suit for declaration in respect of 'A' schedule property and for recovery of possession. He also sought for the relief of partition and separate possession of his share in the suit 'C' and 'D' schedule property and for determination of mesne profits in respect of A, C and D schedule lands.
2. The appellant putforth his claim on the ground that the suit property belongs to one Angi alias Appu who had four sons viz., Periyappaiyan alias Veerasamy, the plaintiff's father, Sappaikalan alias Munusamy, the defendant, one Periadurai and one Chinnadurai. There was a partition among the brothers and in the partition, an extent of 0.69 cents was allotted to Angi alias Appu and his brother Velusamy has got an extent of 0.69 cents. But however, Velan's branch do not exist now since, his son went to Malaya. One of the paternal uncle Periadurai also gone to Malaya. One other paternal uncle by name Chinnadurai died without any issue. Hence the land was divided by Angi alias Appu and his two sons are entitled to 0.22 cents each. The plaintiff's father got 0.22 cents which is the subject matter of the suit claim. Chinnadurai got 0.22 cents and the defendant got 0.22 cents. After the partition, the plaintiff and his father left for Shimoga. They returned in the year of 1972. In the meanwhile, the plaintiff's father purchased another 0.88 cents and he entrusted both the plaint schedule property and 0.88 cent property to the defendant for the purpose of management. On his return the plaintiff's father demanded the property. The defendant surrendered possession of 0.88 cents. So far as the plaint 'A' schedule property is concerned, he disputed the title. Hence the suit. So far as 'C' and 'D' Schedule are concerned, as the legal heirs of agnates of his paternal uncle, the plaintiff has claimed his share.
3. By way of defence, the respondents contended that the plaintiff's father was not the legitimate son of Agni alias Appu. He was the son of concubine of Angi alias Appu. Hence, the plaintiff's father was not entitled for any share as claimed by him. Even assuming, he is entitled for any share, by continuous possession of his defendant, the title of the plaintiff has lost by adverse possession.
4. The trial Court, after considering the evidence let in by both the parties elaborately, found that the plaintiff's plea of redelivery of 0.88 cents by the defendant is true and equally the trial Court has found that there was a partition and the plaintiff's father was allotted. 'A' schedule property. During his absence at Shimoga, the defendant in the suit was asked to take care of the property and hence he is liable to surrender possession to the plaintiff and accordingly the trial Court decreed the suit declaring the plaintiff's 'A' schedule property and gave a decree for partition in respect of 'D' schedule property.
5. Aggrieved by the same, the respondents herein preferred an appeal in A.S.No. 132 of 1982 on the file of the Sub Court, Tindivanam. The lower appellate Court found that the appellant has lost his title by adverse possession. Even though the lower appellate Court had found that there was a partition as pleaded by the appellant herein, it ultimately allowed the appeal and dismissed the suit by its judgment and decree dated 27.1.1986. Against the same, the present second appeal has been filed.
6. At the time of admission, the following substantial questions of law have been framed:
(1) Whether the lower appellate Court was right in its conclusion that the defendant had acquired title by adverse possession?
(2) Whether the lower appellate Court was right in reversing the judgment and decree of the trial Court with regard to the 'D' Schedule property without even framing a point for determination?
7. It is the contention of the learned Counsel for the appellant that when once it was found that the properties are joint family property and there was a partition among the co-owners, it is for the respondents to establish that they perfected title by adverse possession which means by way of ouster. (SIC) the absence of any such plea and taking into consideration admitted fact of the absence of appellant and his father, the lower appellate Court is not correct in reversing the finding of the trial Court. Hence, the judgment and decree of the lower appellate Court has to be set aside.
8. On the contrary, learned Counsel for the respondents vehemently contended that the lower appellate Court has found that there was a partition among the co-owners. But however, it has found that subsequent to the partition, neither the appellant nor the appellant's father took possession of the same from the respondents. Hence, the continuous possession of the respondents would entitle them to claim adverse possession and the respondents have perfected title by adverse possession. The finding of the lower appellate Court needs no interference.
9. I carefully considered the contention of both the learned Counsel. The admitted facts are the property belongs to the joint family and there was a partition as found by both the Courts below. The appellant's father was allotted 0.22 cents 'A' schedule property. Hence, the question is whether mere possession of the respondents would entitle them to claim adverse possession, in the absence of any animus.
10. A perusal of the lower appellate Court's judgment at para 7 which clearly establishes that the lower appellate Court has come to the conclusion that the respondents had perfected title by adverse possession only on the basis of continuous possession. The lower appellate Court has failed to consider the plea put forth by the appellant herein. The case of the appellant is that after the partition, the appellant and his father left for Shimoga and in their absence, the respondent predecessor was asked to take care of the property.
11. It is not the case of the respondents that neither the appellant nor his father left for Shimoga after the partition. Similarly there is no explanation on the part of the respondents as to why the appellant or his father did not take possession of the property immediately after partition even though they are entitled for share. The silence or non-explanation on the part of the respondents would make it clear that the appellant is entitled for his share in respect of 'A' Schedule property which was entrusted to the respondents herein for proper care or maintenance. The lower appellate Court has categorically found that there was partition among appellant's father and others.
12. In case of adverse possession, the main criteria to be considered is as to whether the respondents had established any animus to the knowledge of real owner. The evidence let in by the parties clearly establish that except a mere continuous possession, there is no act of animus by the respondents herein to the knowledge of the real owner viz., the appellant herein.
13. Hence, the finding of the lower appellate Court that the respondents had perfected title by adverse possession cannot be accepted. Consequently the finding of the lower appellate Court is liable to be set side. The second appeal is allowed and the judgment and decree of the trial Court is restored. The parties are directed to bear their cost throughout.