IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17/03/2004 CORAM THE HONOURABLE MR.JUSTICE M. CHOCKALINGAM SECOND APPEAL NO.1165 OF 1993 Natesa Padayachi .. Appellant -Vs- Narayanasamy Padayachi .. Respondent This second appeal is preferred under Section 100 of CPC against the judgment and decree dated 26.2.1993 in AS No.46 of 1992 on the file of the learned Subordinate Judge, Cuddalore confirming the judgment and decree dated 26.9.1991 in OS No.1300 of 1985 on the file of the learned District Munsif, Cuddalore. !For Appellant : Mrs.Vedavalli Kumar ^For Respondent : M/s. Hema Sampath :JUDGMENT What is challenged herein is the judgment of the learned Subordinate Judge, Cuddalore made in AS No.46 of 1992, wherein the judgment of the trial court, in a suit for declaration, permanent injunction and in alternative recovery of possession, was confirmed. 2. The short facts for the disposal of this appeal are as follows: An extent of 17 cents situated on the North of Cuddalore Vridhachalam road originally belonged to Chakrapani, who sold the property to one Bakthavatchalu Naidu of Cuddalore, who, in turn, sold the same to the defendant in 1960. The plaintiff was owning the property in Survey No.643/7 on the immediate east and north of the suit property. On the North East of the suit property, at a distance of 100 yards, the plaintiff was owning an extent of 17 cents in Survey No.643/15. The defendant suggested to the plaintiff that the plaintiff can take the suit property in exchange for the plaintiff's property in Survey No.643/15, to which suggestion, the plaintiff acceded to. Accordingly, the property was exchanged and the plaintiff was put in possession of the suit property and from that time, he has been in possession and enjoyment of the same. He has been paying kist also. On seeing the value of the property has arisen, the defendant was attempting to interfere with the possession of the suit property. Hence, there arose a necessity for filing the suit for the above reliefs. 3. The suit was contented by the defendant stating that the property belonged to the defendant by way of a purchase under registered sale deed dated 5.7.1960 and from the time of purchase, he has been in possession and enjoyment of the same, continuously; that there was no exchange of property as contended by the plaintiff's side and it was utter falsehood and the suit was filed to grab the property of the defendant, and hence, the suit was to be dismissed. 4. The trial court framed necessary issues, tried the suit and decreed the same granting declaration and recovery of possession. The aggrieved defendant took it on appeal and the appeal was also met the same fate. Not satisfied with the above, the defendant has brought forth this second appeal. 5. At the time of admission, the following substantial questions of law were formulated by this Court for consideration: 1) Has not the lower appellate court committed an error of law in not adverting to the question of adverse possession and giving a finding thereon? 2) Whether the plea of oral exchange as pleaded by the plaintiff is sustainable in law and is it not bad for want of compulsory registration? 6. This Court paid its full attention on the rival submissions and made a thorough scrutiny of the documents available. This Court is unable to see any merit in this appeal. The plaintiff sought the relief of declaration and consequential permanent injunction and in alternative recovery of possession alleging that the suit property originally belonged to one Chakrapani and the same was purchased by the defendant in the year 1960. The plaintiff was owning the property measuring 17 cents in Survey No.643/15 and on suggestion of the defendant, there was an oral exchange between the parties. The defendant got the property of the plaintiff and the plaintiff was put in possession of the suit property and from that time, the plaintiff has been in possession and enjoyment of the same. Hence, by way of the reliefs, it has got to be protected. 7. On the contrary, what was contended by the defendant before the courts below and equally here also is that the defendant, from the time of purchase, has been in possession and enjoyment of the suit property and there was no exchange of the property as contended by the plaintiff. Both the courts below have made a thorough scrutiny of the entire evidence available and recorded a concurrent finding that the exchange of the property as contended by the plaintiff is true and the plaintiff has been in possession and enjoyment of the property, in question from the year 1960 onwards. This Court is unable to notice any reason to disturb the concurrent findings recorded by both the courts below. 8. True it is, there was no exchange deed entered into between the parties. It has been specifically pleaded by the plaintiff that immediately after the purchase of the property, in question by the defendant in the year 1960 under a sale deed from Bakthavatchalu Naidu, there was an exchange and the plaintiff was put in possession of the suit property and the defendant was put in possession of the plaintiff's property. In order to prove the same, the plaintiff has examined two witnesses, apart from examining himself. Both the courts below have pointed out that no circumstance or reason has been brought forth to reject their testimony. Apart from that, the plaintiff has also produced Exs.A.1 to A.18, kist receipts pertaining to the property, in question. Had it been true that the defendant has been in continuous possession of the property, he should have definitely paid the kists therefor, but he has not done so. No explanation was also forthcoming. In view of the oral and documentary evidence, both the courts below have given a concurrent finding that the plaintiff has been in possession of the suit property pursuant to the exchange and the same has got to be protected and he was entitled for declaration as asked for. It has been specifically averred in the plaint and it was also supported by evidence also that the defendant has encroached upon the suit property, and thus, there was a necessity for recovery of possession also. Hence, the trial court found that it is a fit case for a direction to the defendant to hand over the possession of the property to the plaintiff and has ordered accordingly. This Court is unable to see any reason to interfere in the judgment of the courts below. 9. In the result, this second appeal fails and the same is dismissed, leaving the parties to bear their costs. Index : Yes Internet : Yes vvk To 1. The Subordinate Judge, Cuddalore 2. The District Munsif, Cuddalore 3. The Record Keeper, VR Section, High Court, Madras 