(Appeal under Sec.100 C.P.C., against the judgment and decree dated 28.2.1994 in A.S.No.2/1993, on the file of the Additional Sub Court, Cuddalore, reversing the judgment and decree dated 30.4.1992 in O.S.No.472/1989, on the file of the District Munsif Court, Panruti.)

The defendant is the appellant before this Court. As against the judgment and decree passed by the first appellate court, this Second Appeal has been filed.

2. The suit O.S.No.472/1989, on the file of the District Munsif Court, Panruti, filed is for declaration and permanent injunction in respect of the suit property, restraining the defendants from interfering with the possession of the plaintiff. It is submitted that the plaintiff filed O.S.No.331/1951 against his father and one Dhanavel and obtained a judgment and decree against his father and another, namely, Dhanavel on 8.9.1951, in the said suit. On 10.4.1953, the plaintiff obtained possession by filing E.P. In July 1989, it is stated that the defendants attempted to interfere with the possession of the plaintiff in the suit property. Therefore, the present suit was filed for the above reliefs.

3. The said submissions were resisted by the defendants by filing a written statement. It is stated that on 9.10.1948, the plaintiffs father Dhayalu Padayachi executed a sale deed in respect of the suit property to one Dhanavelu and the said Dhanavelu was enjoying the property jointly with his brother Thillai Govindha Samuttiyar (defendants father) and two others. It is also stated that in 1950 there was oral partition among the brothers and the suit property was allotted to one Arumugam, another brother. The said Arumugam sold the property to one Thayalan on 5.9.1951 under Ex.B2. The said Thayalan sold the suit property to one Ramachandra Nainar on 8.9.1961. It is further seen that Ramachandra Nainar gave possession of the suit property to his brother-in-law, Thillai Govinda Samuttiyar (defendants father) as the former was living in another place. Thillai Govinda Samuttiyar enjoyed the suit property up to 1983. Thereafter, the defendant and his brothers as legal heirs were in continuous possession of the same for a long period. Therefore, they have claimed adverse possession over the suit property.

4. On the basis of the pleadings and the documents submitted, the trial court accepted the title of the plaintiff and held that the plaintiff is in possession of the suit property but strangely dismissed the suit entirely in and by the judgment dated 30.4.1992. As against that the first appeal A.S.No.2/1993, on the file of the Additional Sub Court, Cuddalore, was filed by the plaintiff and the same was allowed by the judgment dated 28.2.1994, thereby the suit was decreed as prayed for. Hence this Second Appeal.

5. The substantial questions of law that were framed at the time of admission are as follows:-

1) Has the lower appellate court while reversing the judgment of the trial court misconstrued the whole legal evidence adduced in this case by and on behalf of the parties herein

2) Has the plea of adverse possession been clearly established in this case

6. Learned counsel for the appellant/defendant submitted that the plaintiff has not proved his possession over the suit property. It is their case that they have marked Exs.A4 to A7 kist receipts to show possession in S.F.No.405/2 for 0.16 cents. These kist receipts are just prior to the suit and nothing else has been produced for establishing their continuous possession. Further, learned counsel referred to the cross-examination of P.W.1 and submitted that P.W.1, has stated that he is not aware of patta number for the suit property. Whereas, learned counsel referred to the evidence of D.W.1, namely, Ranganathan and added that D.W.1 has clearly stated that it is a joint patta. Learned counsel has also added that Ex.A7 under which the kist has been paid for Fasli 1397 to 1380 on a single day and therefore the same could not have been accepted and relied upon. Accepting the evidence of D.W.1, adverse possession in respect of suit property has to be held in favour of the appellant. Learned counsel has relied on the decision reported in 1998-3-L.W.1, S.Subramaniyan & Co. v. The State of Tamilnadu, for the proposition that on the basis of evidence let in, adverse possession should be take in into account both backwards and forwards.

7. On the other hand, learned counsel for the respondents/plaintiff submitted that the appellant/defendant must have proved possession for a continuous period of 12 years prior to the filing of the suit. For this proposition, learned counsel has relied on the decision reported in Bhagavathy v.Savarimuthu, AIR 1976 Madras 124. Having failed to do so, the appellant/defendant loses his right to plead adverse possession. Learned counsel has also referred to the cross-examination of D.W.1, wherein he has stated that Dhanavel is the eldest member of the family. The said Dhanavel purchased the property from the plaintiffs father. Besides this, learned counsel has also referred to the cross-examination of D.W.1 wherein he has stated that he did not know whether there was 5 jack-fruit trees on the suit property. In the light of this evidence, the case of the appellant/defendant that they have proved adverse possession cannot be accepted. Therefore, according to him, the defendants have not established their possession so as to lay the suit. He also has taken me to the observations of the first appellate court in para 11, wherein the appellate court has referred to the findings of the trial court to the effect that the claim of the defendant for adverse possession should not be accepted. Referring to this observation, the learned counsel for the respondents/plaintiff submitted that the first appellate court has come to the right conclusion and therefore no interference with the same by this court is required in this Second Appeal.

8. On the submissions of both the learned counsel and on the perusal of the records available, I am of the following view:-

(1) It is well established that the powers of this court under Sec.100 C.P.C., is very limited and this court cannot re-appraise and re-evaluate the evidence once again, under Sec.100C.P.C. The appellant should establish not merely the question of law but also the substantial questions of law warranting interference by this court.

(2) Insofar as the first substantial question of law is concerned, the 1st appellate court has considered the entire evidence elaborately and come to a conclusion that the plaintiff established title and possession. Therefore this being purely a matter of evidence, this court cannot re-appraise the same to come to a different conclusion. Therefore the 1st substantial question of law is decided against the appellant/defendant.

(3) The only question of law that remains in this case is the plea of adverse possession. It is well established principle that the burden of proof is on the person who claims adverse possession for an uninterrupted period of 12 years. If in a suit falling under Article 65 of the Limitation Act, 1963, the defendant wants to defeat the rights of the plaintiff, he has to establish adverse possession for 12 years, extinguishing the title of owners by adverse possession by Sec.27 of the said Act. At the same time, adverse possession should be claimed against true owner of the property and only from that day of the claim, the limitation period for adverse possession should start running.

9. In the light of the established principles, it is to be seen whether the appellant/defendant has established the claim of adverse possession.

10. It is seen that no specific plea of adverse possession as established by law has been raised by the appellant/defendant even though a vague plea has been raised in the averments. In the oral evidence of D.W.1 also he has not specifically stated as to when and how he could claim adverse possession. D.W.1 has also admitted that Ex.B17 the extract from the land register and Ex.B18 chitta included the name of the plaintiff also. Therefore, the appellant/defendant has not proved the claim of adverse possession as established by law. Yet another feature to be added at this juncture is that the trial court dismissed the suit but rendered a clear finding in favour of the plaintiff and held that the plaintiff is the absolute owner of the suit property and the defendant has not proved the claim of adverse possession. The same was not challenged by the defendant by filing an appeal against this finding. The plaintiff only filed first appeal, A.S.No.2/1983 against the judgment and decree made in O.S.No.427/1989. Thus the adverse findings against the defendant with reference to adverse possession are allowed to become final, which has been confirmed by the first appellate court. Consequently the second question of law is also held against the appellant/defendant.

11. In view of the foregoing, I am unable to interfere with the judgment and decree of the first appellate court. Consequently, the Second appeal deserves to be dismissed. Accordingly, the same is dismissed. No costs.