Suit for specific performance & in alternative declaration of title by adverse possession – suit filed after 15 years – suit is barred by limitation for specific performance – Adverse possession is not maintainable as the possession was permissive one and further both reliefs are mutually exclusive one against each other – Their Lordships of High court held that the lower courts correctly dismissed the suit and confirmed the lower court decree and judgement =
suit for the relief of specific performance and for directing the defendants to execute the sale deed or alternative relief of declaration of title by way of prescription by adverse possession and also for the relief of permanent injunction not to alienate the suit property.=
Trial Court / learned Principal District Munsif, Salem, on consideration of the evidence adduced and the materials available thereon, finding that the plaintiff failed to prove Exs. A.1 and A.2 unregistered deeds of sale agreement, dismissed O.S. No. 1999 of 1996 holding as time barred by judgment dated 01.11.2004. appeal was also dismissed- in second appeal , high court framed issues
(i) Even assuming that Exs. A.1 and A.2 are unenforceable, having allowed the plaintiff to be in possession of the property as a usufructuory mortgagee, have not the defendants lost their right to redeem due to law of limitation coming into operation?
(ii) Whether the findings of the courts below that Exs. A.1 and A.2 are fabricated are opposed to legal evidence on record?
When admittedly, under Ex. A.2, the plaintiff was put in possession in lieu of rent, it can be said to be an usufructuary mortgage or at least the possession of the plaintiff can be taken as permissive one. While so, the claim of the title to the suit property by the plaintiff on the basis of adverse possession cannot be sustained. The plaintiff having missed out on time seeking relief of specific performance, has sought for the relief of title by adverse possession. The relief of specific performance and adverse possession are mutually exclusive. Therefore, Exs. A.1 and A.2 are invalid and not binding upon the defendants. The plaintiff has not established her case and the Courts below have rightly come to the conclusion that the plaintiff is not entitled to the relief asked for. Therefore, this Court finds no reason to interfere with the finding of the Courts below.
2014 ( Feb. Part )judis.nic.in/judis_chennai/filename=44900