Kalyani vs Girija

C.R.P.(NPD) No.3023 of 2007

1. Ravi

2. Kalyani ... Petitioners Vs

1. P.Vidyuthavalli Thayar

2. V. Girija

3. Mrs. M. Gowri

4. Ms.M. Lakshmi

5. Kousalya

6. Ajitha ... Respondents C.R.P.(NPD) No.3399 of 2007 Mrs.V. Girija ... Petitioner Vs

1. Kousalya

2. Ajitha

3. Ravi

4. Kalyani

5. P. Vidyuthavalli Thayar

6. Mrs.M. Gowri

7. Miss M. Lakshmi ... Respondents Second Appeal No.347 of 2009 is filed under Section 100 of Civil Procedure Code against the Judgement and Decree of VII Addl. Judge, City Civil Court, Chennai in A.S.No.333 of 2007 dated 5.6.2008 confirming the Judgment and Decree of the II Assistant Judge, City Civil Court, Chennai in O.S.No.7470 of 1996 dated 4.1.2007 Civil Revision Petition Nos.3023 and 3399 of 2007 are filed under Section 115 of Civil Procedure Code against the Judgment and Decree dated 4.1.2007 in O.S.No.6687 of 1996 passed by the learned II Assistant Judge, City Civil Court, Chennai.

1.(a) The plaintiffs and their predecessors-in-interest viz., Chinnaiah, Ranganathan and Subramania Chowdhury had been exclusive possession and enjoyment of "A" Schedule property for over 40 years which is with an extent of 6 grounds and 520 sq.ft. After the lifetime of predecessors-in-interest, the plaintiffs continued to be in exclusive possession and enjoyment of the above said "A" Schedule property. The first defendant filed a suit in O.S.No.968 of 1958 on the file of IV Assistant Judge, City Civil Court, Madras, for a decree for possession in respect of portion in "A" Schedule property against the above said predecessors-in-interest. The suit was dismissed as against Subramania Choudhury as not pressed. An exparte decree for possession was passed on 18.2.1960. In spite of the decree, the predecessors-in-interest continued to be in possession.

1. (b) The first defendant filed E.P.No.765 of 1977 to execute the decree. By that time, Chinniah died and hence first plaintiff was impleaded as his legal representative. She filed an application under Section 47 of C.P.C. in E.A.No.2799 of 1981 to hold the decree inexecutable, since the same having become barred by time. On 30.4.1982 the said petition was allowed by X Assistant Judge, City Civil Court, Madras and E.P. was dismissed, holding that it was barred by time and hence unexecutable.

1.(c) The first defendant executed the so called settlement deed in 1987 in favour of her daughter, the second defendant. Hence the second defendant engaged rowdy elements, influenced police and attempted to commit criminal trespass to "B" Schedule property in February 1990. The police complaint by the plaintiffs ended in vain, since the second defendant was influential and powerful. On 15.2.1990 also the rowdy elements, engaged by second defendant armed with lethal weapons, broke open the fences put up by plaintiffs, entered into "B" Schedule property and dismantled the huts. The police did not take any action.

1.(d) In view of the trespass, the plaintiffs filed O.S.No.1759 of 1990 for permanent injunction against the defendants with regard to "A" Schedule property and also filed application for interim injunctions. Since the defendants filed caveat, interim order was not passed. In the counter filed for the said petitions, it was admitted that plaintiffs were in possession of the remaining portion of "A" Schedule property. Without due process of law, plaintiffs have been forced to dispossess from the "B" Schedule property from 15.2.1990. Hence, suit has been filed under Section 6 of the Specific Relief Act 1963, for directing the defendants to deliver possession of "B" Schedule property. The suit filed within six months from the date of dispossession.

2. In the written statement filed by the first defendant, namely, P.Vidyuthavalli Thayar, the following allegations are found:-

2.(a) No suit summons were served upon the first defendant. Only on information by neighbours, she came to know the suit was filed. The plaintiffs are not related to the defendants in O.S.No.968 of 1958. O.S.No.9135 of 1984 was filed by the plaintiffs in which they raised identical claim that they have perfected their title by adverse possession. The suit was dismissed on 5.2.1985 and the decision has become final. Hence, the present suit is barred by res judicata.

2.(b) The suit in O.S.No.1759 of 1990, filed by the plaintiffs is pending before II Assistant City Civil Judge, Chennai, which was filed on 16.2.1990 and the present suit has been filed before the High Court on 25.7.1990. Hence it is a clear instance of vexatious litigation. The first defendant purchased the property with her Sreedhana funds supplied by her father, the Zamindar of Zammavaram and other estates of the Nellore District, Andhra Pradesh from its erstwhile owner Smt. Rani Lakshmi Var, the Zaindarini of Edapavani, by means of a sale deed in 1941. A shed was put up for storing building materials and other implements. There was a watchman living in the compound, which was fenced and was fixed by a temporary gate. The construction was delayed because of other problems elsewhere in respect of her properties situate in Ongole and at Machilipatnam. Hence she was not present in Madras. On one occasion, she found that the watchman was missing and the hut was occupied by strangers. Hence she filed a suit in O.S.No.968 of 1958. the said persons filed application under City Tenants' Protection Act and even filed a suit in O.S.No.3517 of 1971, challenging the decree obtained against them as being one "without jurisdiction". The suit and the applications were dismissed.

2.(c) The present plaintiffs are not legal representatives to the above said persons. Plaintiffs 1,2 and 4 filed O.S.No.9135 of 1984 and only at that time these names surfaced for the first time which were never heard off. The said suit was dismissed on 5.2.1985. The plaintiffs managed to secure orders for pattas in their favour under defunct rules. The defendant filed appeal before the District Collector and pattas were set aside on 31.8.1990. In the interregnum, these plaintiffs filed O.S.No.9931 of 1983 and also O.S.No.1759 of 1990 based on the same cause of action as that of the earlier suit, except for a change in the name of the third defendant. The above said suits and another injunction application were pending before II Assistant City Civil Judge, Chennai.

2.(d) Barely within four months after filing of the above said suit, the same plaintiffs have presented the present suit on the file of this Court for the same relief that was denied and refused to them in the series of their legal ventures. The present suit is not only barred by res judicata and also the plaintiffs' claim of adverse possession is also vexatious and is clearly abuse of process of Court. There is no cause of action and the plaintiffs have no locus standi. Hence the suit may be dismissed.

3. The allegations in terse in the additional written statement filed by the first defendant are thus:-

In 1958, a watchman engaged by the defendant died and one vagrant by name Subramanya Choudary who come to Madras to eke his livelihood by employing himself in menial roles in the films, was in occupation of her store shed and he got into it with two others by name Chinnayya who was a scavenger in the Madras Corporation and another person Ranganathan who was driver of a refuse collecting lorry of Madras Corporation. After the decree was passed in O.S.No.968 of 1958, as many as 10 execution petitions were filed right from 1960 to 1971 for execution of the decree. It is false and misleading to state that this defendant who is the owner of the suit property dispossessed the plaintiffs. The plaintiffs are mere trespassers. This defendant has filed a comprehensive suit in C.S.No.201 of 1993. The executability of the decree in O.S.No.968 of 1958 is not curtailed by any law.

4. The following contentions are available in the written statement filed by the second defendant:- (Girija)

4.(a) The present suit has been filed alleging that plaintiffs have been dispossessed from the suit property illegally with deliberate motive to blackmail the defendant. The filing of O.S.No.1759 of 1990 has been deliberately suppressed which even pending now. It is false to state that the predecessors in suit and the plaintiffs have been in the exclusive possession over 40 years in "A" schedule property. In the earlier proceedings, the plaintiffs were found to be trespassers without any right or claim over any portion of "A" Schedule property and liable for eviction. The plaintiff filed O.S.No.3517 of 1971 claiming rights under the City Tenants Protection Act, which was dismissed on 29.3.1975 and subsequently they have filed another suit in O.S.No.9135 of 1984 against the first defendant for permanent injunction and the same was also dismissed on 5.2.1985. The first defendant settled 4 grounds under two registered deeds of settlement dated 10.9.1987 and 1.4.1988 for two grounds each. Hence it is clear that "B" Schedule property admittedly was never in possession of the plaintiffs and therefore no basis at all for the plaintiffs' claim. The husbands of plaintiffs 1 to 3 trespassed into the rear portion of "A" schedule property taking advantage of the absence of first defendant. In O.S.No.9135 of 1984 the plaintiffs have admitted that they were in possession only in the rear portion and that the front portion was in possession of the first defendant who settled the same in favour of this defendant and multi-storied building has been put up in that at a huge cost after obtaining sanction from M.M.D.A and Patta.

4.(b) In the process of claiming patta, the plaintiffs attempted to get joint patta which was rightly rejected by the authorities. But without notice to this defendant, the plaintiffs maneuvered to obtain joint patta in their names also in respect of "A" Schedule property along with this defendant. The patta in favour this defendant was confirmed and in favour of the plaintiffs was cancelled by the District Collector of Madras.

4.(c) After obtaining necessary sanction of the building plan, this defendant started construction in the front portion. The plaintiffs with the help of rowdy elements to make unlawful gains prevented this defendant's workers from proceeding with the construction and therefore this defendant resorted to the help of police. Having failed in their attempts to prevent this defendant from putting up constructions, they have no justifiable rights to prevent the police from giving protections to this defendant, they have come forward with the suits after lapse of six months on baseless and false allegations. It is absolutely false to state that they were forcibly dispossessed. It is incorrect to state that on 15.2.1990 this defendant took possession from the plaintiffs of "B" Schedule property. The reference to the plaintiffs' names being in the electoral rolls, Ration Card etc., is meaningless since admittedly they are trespassers and documents will not help their fraudulent claim. There is no cause of action for the suit. Hence the suit may be dismissed with exemplary costs.

5. Additional written statement of second defendant in O.S.No.6687 of 1996 contained the contentions as follows:-

None of the persons claiming to be impleaded as legal representatives of the deceased plaintiffs 1,3 and 4 are in any way connected to the suit property and have no right whatsoever to pursue the above fraudulent and baseless suit. The original plaintiffs and their alleged legal representatives do not have any right over the properties. Nothing survives for legal representatives to maintain. Hence the suit may be dismissed.

Another Suit in O.S.No.7470 of 1996:

6.(a) O.S.No.7470 of 1996 was filed by Vidyuthavalli Thayar. The allegations in the plaint are similar as pleaded in her written statement and Additional written statement for the suit filed by the plaintiff in O.S.No.6687 of 1996.

6.(b) The suit in O.S.No.7470 of 1996 is for a decree directing the defendants 1 to 4 to vacate and handover vacant possession of the land situate in S.No.8580, Block No.114 bearing door No.44-L, in G.N. Chetty Road, T.Nagar, Madras, which is in occupation of the defendants in the manner following:

(i) the first defendant being in occupation of an extent of 2765 sq.ft. marked 'red' in colour in suit document No.11;

(ii) the 2nd defendant being in occupation of an extent of 3000 Square feet marked 'blue' in colour in suit document No.11;

(iii) the 3rd defendant being in occupation of an extent of 2260 square feet marked 'green' in colour in suit document No.11;

6.(c) It is also for permanent injunction restraining defendants 1 to 4 from in any manner alienating the suit property and for damages to the plaintiff for the use and occupation.

6.(d). The plaintiffs in O.S.No.6687 of 1996 filed written statement in O.S.No.7470 of 1996 with identical pleadings as contained in the plaint in O.S.No.6687 of 1996.

7. The learned II Assistant Judge, City Civil Court, Chennai, tried both the suits jointly and rendered a common judgment. Decree for declaration and possession has been passed excepting the area with an extent of 30' x 12' besides directing to ascertain the mesne profits by separate proceedings under Order 20 Rule 12. The suit with regard to 30' x 12' was dismissed. Ex.A.19 rough sketch was directed to be annexed to the decree. O.S.No.6687 of 1996 was decreed only with respect to "B" schedule property measuring 30' x 12' for possession and the suit was dismissed as regards the remaining portion of the entire property covered by the suit.

8. These appellants preferred A.S.No.333 of 2007 on the file of the Principal Judge, City Civil Court, Chennai, which was heard by the learned VII Additional Judge and the appeal was dismissed on 5.6.2008 confirming the common judgment and decree passed by the trial Court. The said appellate Court judgment has been carried before this Court in the present second Appeal.

9.(i) These appellants have also preferred revision in C.R.P.(NPD) No.3023 of 2007 before this Court under Section 115 of C.P.C challenging various observations, findings and conclusion recorded by the trial Judge in O.S.No.6687 of 1996.

9(ii) The first respondent Girija has preferred C.R.P.(NPD) No.3399 of 2007 before this Court under Section 115 of C.P.C. against an observation in the judgment of the trial Court with regard to question of handing over the possession of the property measuring 30' x 12' by stating that such handing over to the respondents 1, 3 and 4 does not arise since it does not form part and parcel of the "B" Schedule property in O.S.No.6687 of 1996 and the respondents 1, 3 and 4 are already in possession of the "B" Schedule property described in O.S.No.968 of 1958.

Grounds in C.R.P.(NPD)No.3023 of 2007:

10. The following are the grounds in brief raised in C.R.P.(NPD) No.3023 of 2007, which are worth mentioning for better understanding and appreciation of merits of the matter:-

10.(i) The trial judge has failed to consider that the suit in O.S.No.6687 of 1996 is filed under Section 6 of the Specific Relief Act and the petitioner had possessory title and they have been dispossessed without lawful authority under due process of law and the suit was dismissed under misapprehension of scope of the suit provision.

10.(ii) The finding against these petitioners as to the doctrine of res judicata is not tenable.

10.(iii) Inspite of opposition for common trial, both the suits were jointly tried which leads to miscarriage of justice.

10.(iv) The suit in O.S.No.6687 of 1996 has to be tried summarily. The settled legal position is that even the person who is having good title could not dispossesses the person who are having earlier even symbolic possession. In case of dispossession, the petitioners have to succeed that they were in possession, that the dispossession is not in accordance with law and the same took place within six months prior to the suit.

10.(v) O.S.No.968 of 1958 was filed by Vidyuthavalli Thayar with regard to "B" Schedule property of an extent of 30' x 20'with 360 sq.ft. , out of total extent of six grounds and 480 sq.ft, obtained an exparte decree only for the said property independently, omitting other larger portion of the property without getting leave of the Court for making the claim subsequently. Out of two settlement deeds, one dated 1.4.1988 was cancelled by the settler herself by deed of cancellation dated 24.2.1989 and the reason that the second respondent got the same by adopting undue influence or pressure and coercion while the settler's husband was in sick bed in the hospital which would not therefore confer valid title on the settlee as it is a sham and nominal document. Hence the second defendant lost her interest and possession in the said property pursuant to the decretal order in E.A.No.2800 of 1981 in E.P.No.765 of 1977 in O.s.No.968 of 1958 dated 30.4.1982.

10.(vi) No question of title either by plaintiff or the defendant can be raised or gone into under Section 9 of the Specific Relief Act. As per the settled principles of Supreme Court, Section 6 provides for summary removal of any one who dispossess another whether peaceful or otherwise than by due course of law.

10.(vii) The trial judge has miserably failed to follow the legal position laid under Article 64 of the Limitation Act and he has also failed to see that if a person who is in continuous possession continues as such for more than 12 years, he acquires title commonly known as possessory title.

10.(viii) The question of adverse possession has not been properly appreciated by the trial judge. This Court in O.S.A.No.195 of 1990 recorded the statement given by the learned Senior Counsel for the second respondent stating that "any construction or alienation will be subject to the result of the suit." The O.S.A. was dismissed on 30.11.1990. But the second respondent completed the construction of the building in violation of undertaking given before the Division Bench. She conveyed 1/10th undivided share of the land in sale deed dated 21.5.1990 in favour of third parties and to ratify her action of selling, she filed C.S.No.764 of 1991 on the file of the High Court, Madras.

10.(ix) It is wrongly concluded that once the settlement is made without any revocation clause, the same cannot be cancelled.

INITIATION AND TRANSMISSION OF THE SUITS

11. At the outset, the present Original Suits were filed before this Court in C.S.Nos.646 of 1990 and 201 of 1993. Both of them were later transferred to the City Civil Court on the ground of pecuniary jurisdiction and were re-numbered as O.S.No.6687 of 1996 and O.S.No.7470 of 1996 respectively.

12. After trial of both the suits jointly, the trial Judge, namely, II Assistant Judge, City Civil Court, Chennai, passed a common judgment on 4.1.2007 granting decree for possession in O.S.No.6687 of 1996 with respect to 30' x 12' in the entire property covered by "B" schedule in O.S.No.968 of 1958 which is also "B" Schedule in O.S.No.668 of 1996 and decreeing the suit in O.S.No.7470 of 1996 against 3 to 5 defendants as regards suit "C" Schedule property excepting 30' x 12', declaring the rights of the plaintiffs and directing delivery of possession. It has also been directed that separate proceedings shall be taken to ascertain mesne profits under Order 20 Rule 12 C.P.C. The suit in O.S.No.7470 of 1996 has been dismissed as regards 20' x 12' which is "B" schedule in O.S.No.968 of 1958. It has also been directed that Ex.A-49 rough sketch shall be annexed to the decree. Two months time was granted for delivery of possession.

13. The common judgment was carried in appeal before the VII Additional Judge, City Civil Court Chennai in A.S.No.333 of 2007 as regards O.S.No.7470 of 1996 by these appellants.

14. Pending the appeal, the second respondent Devasthanam was impleaded as a party. On 5.6.2008 the said appeal was dismissed confirming the judgment and decree passed by the trial Court. Hence the aggrieved appellants are before this Court with the second appeal.

15. When S.A.No.347 of 2009 was taken up for admission, by consent of both the counsel, the second appeal itself was taken up for final disposal. The connected two Civil Revision Petitions were also heard along with second appeal. The following substantial questions of law were formulated by this Court in the second appeal upon which the arguments of both the counsel were made:

1.Whether the cancellation of gift settlement dated 1.4.1988 (Ex.A-3) by means of a deed dated 24.2.89 (Ex.B-7) by Vidyuthavalli Thayar is legally valid?

2.Whether the claim of respondents is hit by provision, Order 2 Rule 2 of C.P.C.?

3.Whether the claim of the appellants is barred by principles of res judicata?

4.Whether the appellants have prescribed title to the suit property by adverse possession?

In CRP.(NPD) No.3023 of 2007:

(i) Whether the appellants are entitled to get benefits under Sec.6 of Specific Relief Act? AS TO THE CANCELLATION OF SETTLEMENT DEED (Question No.1):

16.(i) This case has a chequered history. In order to have a thorough glimpse of the matter, the topography of the entire property covered by the suits and the facts of the case have to be borne in mind. "A" schedule is the property in entirety sprawling to an extent of six grounds and 480 sq.fts in G.N. Chetty Road, Chennai. "B" schedule is 4 grounds and "C" schedule is 2 grounds measuring 100' x 48' which lies in the middle of two other portions of "A" schedule. 2 grounds abutting G.N. Chetty Road on the south and the adjacent property on further south "C" schedule land, have been covered by settlement deeds dated 10.09.1987 and 1.4.1988 executed by P.Vidyuthavalli Thayar in favour of her daughter, first respondent. It is not debatable that the entire property originally belonged to P.Vidyuthavalli Thayar by means of Ex.A-1 Sale Deed dated 8.12.1941.

16.(ii) In Ex.A-4 settlement deed, it is stated that the property was mortgaged to Indian Bank, Madras for a sum of Rs.45,000/- and the settlee viz., first respondent had to settle the mortgage loan by negotiations or any other process known to law, discharge the same and free the property from encumbrances. Hence, subsequently the first respondent paid all the outstandings of loan to the bank as evident from the letter of advocate for the Indian Bank dated 27.2.1989 in which he has stated that steps have been taken to get return of title deeds from the Court and cheque for Rs.4,251.60 was issued in the name of Mrs.V. Girija being the balance amount payable to her after adjustment of the decree amount. By fulfilling the condition contained in the settlement Ex.A-4 settlement deed has been given effect to besides the mutation of name of first respondent in the revenue as well as property tax assessment in Madras Corporation as evident from Ex.A-6. Ex.A-7 and Ex.A-8 are receipts for payment of urban land tax and the proceedings of the Assistant Commissioner of Urban Land Tax. Further, Ex.A-21 and Ex.A-22 are the documents of survey department and another receipt for payment of urban tax. Ex.A-23 to A-25 are the letter, receipt and planning permit issued by Chennai Metropolitan Development Corporation. She has also applied for joint patta with her mother for "A" Schedule property with Ex.A-5, A-21 and A-44.

16.(iii) At the request of the respondents, the Tahsildar issued joint patta in their names also along with the respondents. But an appeal was preferred before the District Collector of Madras, and the joint patta issued by the Tahsildar was set aside directing restoration of patta in the name of the respondents. The Collector's proceedings was challenged before this Court in W.P.No.19915 of 1990 and this Court disposed of the same on 9.11.1998 by observing that the issue of patta would depend upon the final outcome of the civil suits pending in the civil courts.

16.(iv) On 24.2.1989, Vidyuthavalli Thayar had executed a registered cancellation deed cancelling the settlement deed by stating that in or about 1988, she was not in good health and her husband was admitted to hospital, the settlee brought lot of pressure on the settlor to execute the settlement deed and the settlee herself drafted the settlement deed to suit her requirements to coerce the settlor to sign the same and since the instrument was created by coercion and under influence, the settlor has decided to cancel the settlement deed and whereas the settlor continues to be in possession in the said building and that though the settlee has got executed the settlement deed, she has not taken possession and in the above circumstances the settlor has decided to revoke the settlement deed.

16.(v) As for the legal validity of the cancellation of settlement Ex.A-3, by means of Ex.B-7 (Cancellation Deed), first respondent contends that since the said settlement was given effect to after execution, the settlor herself could not cancel it and it has to be taken before legal forum for that purpose. The learned counsel for the first respondent Mr.T.P. Sankaran, in support of his contention, garnered support from the decision of the Apex Court reported in 2008 SAR (Civil) 175 [Asokan v. Lakshmikutty and Ors.] in which it is held that once a gift is complete, the same cannot be rescinded, that for any reason whatsoever, the subsequent conduct of a donee cannot be a ground for rescission of a valid gift and that the very fact that the defendants contend that the donee was to perform certain obligations, is itself indicative of the fact that the parties were aware thereabout and even a silence may sometime indicate acceptance and that it is not necessary to prove any overt act in respect thereof as an express acceptance is not necessary for completing the transaction of gift.

16. (vi) In a judgment of this Court reported in 2009(2) TLNJ 65 (Civil) [Anjalai Ammal v. Duraisamy and another] it is held that the law is well settled that where a donor had no power of revocation at all, he ceased to have any interest or right in the property on his divesting himself of his title in favour of the donee in which case, there is no question of donor continuing after the gift to be an ostensible owner.

16.(vii) A Full Bench of the Apex Court in AIR 1976 (SC) 163 [Afsar Shaikh and another v. Soleman Bibi and other] has held as follows:

"15. While it is true that 'undue influence', 'fraud', 'misrepresentation' are cognate vices and may, in part, overlap in some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, Rule 2 of the Code of Civil Procedure, required to be separately pleaded with specificity, particularity and precision. A general allegation in the plaint that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice, particularly when no issue was claimed and no contention was raised on that point at any stage in the trial Court or in the first round even before the first appellant court."

"19. It is well settled that a question whether a person was in a position to dominate the will of another and procured a certain deed by undue influence, is a question of fact, and a finding thereon is a finding of fact and if arrived at fairly in accordance with the procedure prescribed, is not liable to be reopened in second appeal [Satgu Parsad v. Har Narain Das, 59 Ind APP 147 = (AIR 1932 Pc 89); Ladli Parshad v. Karnal Distillery Co. Ltd., (1964) 1 SCR 270 = (AIR 1963 SC 1279)]."

16. (viii) This Court in 1990 (1) L.W. 599 [Sarojini Ammal v. Krishnaveni Ammal alias Baby Ammal] has held that when the settlement was complete and in the absence of a power of revocation reserved for the settlor, to be exercised by him, on specified contingencies and not on the mere will of the settlor, the settlement cannot be revoked.

16.(ix) In yet another decision reported in 1988 (1) L.W. 183 [Marius Louis Peria v. Santo Rane Charles], this Court has observed that in view of the fact that there is a contingency mentioned in Ex.A1, the donor is entitled to file a suit for setting aside the deed of gift on the happening of the contingency.

16.(x) In AIR (38) 1951 Supreme Court 280 [Bishundeo Narain and another v. Seogeni Rai and others] a constitution Bench of the Apex Court has held as follows:

"Though pleas of undue influence & coercion may overlap in part in some cases they are separable categories in law and must be separately pleaded. In cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion."

16.(xi) In AIR 1996 KARNATAKA 99 [Savithamma v. H. Gurappa Reddy and others] it is held that it is well settled law that even within the province of civil litigation when an allegation of misrepresentation or fraud is made, the level of proof required is extremely high and is rated on par with a criminal trial.

16.(xii). In AIR 1956 ANDHRA PRADESH 195 [M. Venkatasubbaiah v. M. Subbamma and others] it is observed that section 126 of Transfer of Property Act itself provides against the revocation of a document of gift for failure of consideration. If the donee does not maintain the donor as agreed by him, the latter could take proper steps to recover maintenance etc., it is not open to a settlor to revoke a settlement at his will and pleasure and he has to get it set aside in a Court of law by putting forward such pleas as to the invalidity of gift deed and that a third party to a deed of gift cannot plead that the deed of gift should not be given effect to as it was obtained by fraud or undue influence.

16.(xiii) From the above decisions, in the matter of revocation of a settlement deed, the following points emerge:-

a) The plea of coercion, undue influence, fraud or misrepresentation, shall be specifically pleaded and established by letting in convincing evidence.

b) Once a gift is accepted and given effect to, it cannot be rescinded and subsequent conduct of donee cannot constitute a ground for rescission of a valid gift. Acceptance of onerous condition, if any, is also essential. The donor has to file a suit for setting aside the settlement on compliance of contingency, stipulated in the deed.

c) Undue influence is one of the fact which cannot be reopened in second appeal.

d) When the settlement deed is silent about the power of revocation of settlor, subsequent cancellation by him is of no avail and the course open to revocation is to file a suit.

e) The allegations of fraud, coercion, undue influence and misrepresentation has to be proved and its standard of proof is as required in criminal law.

16. (xiv) In view of the above discussion and of the law holding the field, it is held that the cancellation by means of Ex.B-7 is not valid. There is no evidence with regard to fraud, misrepresentation, undue influence or coercion repeatedly perpetrated upon Vidhuthuvalli Thayar at the time of execution of Ex.A-3 Settlement deed. The competent persons connected to Ex.A-3 were not brought before the Court to show the alleged coercion and undue influence exerted upon the executant. In the absence of specific pleadings to prove, the contention that it was obtained through such devices could not be countenanced.

16(xv). Since both the settlement deeds were duly accepted and it is indicated through documents that delivery of possession was also effected in favour of the first respondent, subsequent cancellation through Ex.B-7 by Vidhuthavalli Thayar is not legally valid.

LEGAL EFFECT OF ORDER 2 RULE 2 OF C.P.C. (Question No.2)

17.(i) Before entering into the discussion with regard to the merits of the case under this provision, it is advantageous to have the extraction of the provision which goes thus:-

CPC ORDER 2. Suit to include the whole claim.

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claimWhere a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefsA person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

ExplanationFor the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

Illustration A lets a house to B at a yearly rent of Rs. 1200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.

17.(ii) Rule 2(1) in Order 2 enables the plaintiff to relinquish any portion of the claim, so as to bring the same within the jurisdiction of the Court and Rule 2(2) of Order 2 contemplates that if the plaintiff has omitted to sue in respect of, or intentionally relinquishes, any portion of his claim, he would be precluded from suing in respect of the portion so omitted or relinquished. Rule 3 of Order 2, provides that if, in case, the plaintiff omits to pray for any relief, with the leave of the Court he may sue on a subsequent occasion for such reliefs.

17.(iii) It is the vehement contention of the learned Senior Counsel for the appellants Mr.S. Jayaraman that the present suit in O.S.No.7470 of 1996 has to be rejected in limine, since the plaintiff Vidyuthavalli Thayar in O.S.No.968 of 1958 has intentionally omitted to include the entire "A" Schedule property, but sought relief only with respect to the extent of 30' x 12' and hence without leave of the Court at appropriate time neither herself nor her daughter could file a subsequent suit for the entire suit property and hence the present suit is hit by Order 2 Rule 3 of C.P.C. It is repelled by the learned counsel for the first respondent by contending that in 1958 Chinnaiah alone had trespassed into the small extent of 30' x 12' in the entire property and then arose no cause of action with regard to the other large extent of property and the cause of action emerged only with regard to the small extent which was in his possession and hence the provision does not place a bar for the first respondent to make her claim.

17.(iv) Learned counsel for the appellant placed reliance upon a decision of the Apex Court in AIR 2004 SC 1761 = 2004 (1) CTC 628 [Kunjan Nair Sivaraman Nair v. Narayanan Nair] in which it is held that earlier suit was filed seeking a decree for declaration of right and title of plaintiffs to plaint schedule property and their possession and title were upheld but prayer for injunction was rejected as possession was not found and hence subsequent suit claiming recovery of possession was not barred as cause of action in both the suits are not same and that Order 2 Rule 2 is not applicable in such case.

17.(v) Learned counsel for the first respondent cites upon a decision of the Supreme Court in 2004 (2) CTC 236 [Dalip Singh v. Mehar Singh Rathee & Ors.] wherein it is held as follows:

"The sine quo non for applicability of Order 2, Rule 2 CPC is that a person entitled to more than one relief in respect of same cause of action has omitted to sue for some relief without the leave of the Court. When an objection regarding bar to the filing of the suit under Order 2, Rule 2, C.P.C. is taken, it is essential for the Court to know what exactly was the cause of action which was alleged in the previous suit in order that it might be in a position to appreciate whether the cause of action alleged in the second suit is identical with the one that was the subject matter of previous suit."

17.(vi) The learned counsel for the first respondent acquired momentum while cites the decision in Kunjan Nair Sivaraman Nair's case (Supra). The operative portions relied are as follows:

"Order 2 concerns framing of a suit and lays down the general principle that the plaintiff shall include whole of his claim in the framing of the suit which the plaintiff is entitled to make in respect of a cause of action; and if he does not do so then he is visited with the consequences indicated therein. In other words, it provides that all reliefs arising out of the same cause of action shall be set out in one and the same suit, and further prescribes the consequences if the plaintiff-respondent omits to do so. Order 2 Rule 2 centres round one and the same cause of action. The statutory principle behind Order 2 Rule 2 is that a defendant or defendants should not be vexed time and again for the same cause by splitting the claim and the reliefs for being indicated in successive litigations. It is, therefore, provided that the plaintiff-respondent must not abandon any part of the claim without the leave of the court and must claim the whole relief or entire bundle of reliefs available to him in respect of that very same cause of action. Otherwise, he will thereafter be precluded from so doing in any subsequent litigation that he may commence."

17.(vii) It is also observed therein that so far as Order 2 Rule 2 (3) is concerned, before the second suit of the plaintiff-respondent can be held to be barred by the same, it must be shown that the second suit is based on the same, that is identical, cause of action on which the earlier suit was based.

17.(viii) Another contention is that Vidyuthavalli Thayar filed C.S.No.201 of 1993 on the file of the High Court against the appellants, Inspector General of Registration, Sub-Registrar of T.Nagar and Urban Land Tax Officer, Mambalam-Guindy, for delivery of possession of certain portions in the possession of the defendants. Pending the suit, the plaintiff obtained an order of temporary injunction against the defendant not to alienate the property in O.A.No.137 of 1993. Kamalammal and Annapoornammal filed O.A.No.844 of 1996 to vacate the injunction. This Court on 24.7.1996 vacated the temporary injunction. On 13.8.2003, the said suit was dismissed as abated by this Court, since no steps were taken by the plaintiff to implead the legal representatives of deceased 1, 3 and 4th defendants.

17.(ix) The next leaf of contention of the learned counsel for the first respondent is that unless the party who raises plea of bar under Order 2 Rule 2(3), in a subsequently instituted suit, he could not be held entitled to seek relief under the said provision. For this proposition, he relies upon the above said decisions. The plaint in O.S.No.968 of 1958 has been produced by the first respondent which is Ex.A-46 and the copy of the judgement dated 18.2.1960 has also been marked as Ex.A-45. However, she could not obtain the copy of written statement to ascertain what was the defence of Chinnaiah in that suit . Ex.A-47 notice was given to the counsel for the appellants before the trial court on 31.8.2006 to produce true copy of the written statement filed by the said Chinnaiah in the said suit, but the same has not seen the light of the day.

17.(x) In AIR 2007 (SC) 989 [S. Nazeer Ahmed v. State Bank of Mysore and Others] it is observed that the appellant has not even cared to produce the copy of plaint in the earlier suit to show what exactly was the cause of action put in suit by the Bank in that suit.

17.(xi) Identical proposition has been laid down in the following decisions of the Apex Court:

a. AIR 1997 SC 1398 [M/s.Bengal water proof limited v. M/s.Bombay waterproof manufacturing company and another] b. JT 1996 (10) SC 822 [ Bengal Waterproof limited v. Bombay Waterproof Manufacturing Company and Anr.]

17.(xii) In AIR 1970 SC 1059 (1) [Sidramappa v. Rajashetty and others], it is held that where the cause of action on the basis of which the previous suit was brought does not form the foundation of the subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit, the plaintiff's subsequent suit is not barred by Order 2, Rule 2 of C.P.C.

17.(xiii) The following are the principles formulated in the abovesaid decisions, which have to be borne in mind while dealing whether the case falls within the purview of Order 2 Rule 2 C.P.C.

1.The cause of action in the former suit and the latter suit shall be the same.

2.The plaintiff should have omitted or intentionally relinquished any portion of his claim in the earlier suit and his failure to obtain leave of the court for instituting subsequent suit.

3.Failure of the party to produce pleadings who seeks bar under Order 2 Rule 2 of C.P.C.

If any of the points No.1 and 2 is deduced by the Court, then the plaintiff has to be non suited for the relief in the subsequent suit. Principle No.3 is self explanatory. The law in this behalf is explicit.

17.(xiv) Applying the above said principles to the facts of the present case, the subsequent suit in O.S.No.7470 of 1996 has no relevance to the earlier suit in O.S.No.968 of 1958 as to the cause of action and causes of action in both the suits are entirely different. The earlier suit was with regard to a small portion viz., 30' x 12' and the latter suit is for an extent of 6 grounds and 520 sq.ft.

17(xv) In view of the above said situation, it is held that the present suit in O.S.No.7470 of 1996 is not at all barred by Order 2 Rule 2(3) of C.P.C.

AS TO RES JUDICATA (Question No.3)

18.(i) After passing of decree in O.S.No.968 of 1958, the decree holder viz., Vidyuthavalli Thayar filed as many as 10 execution petitions for delivery and finally she filed E.P.No.765 of 1977 for delivery of property. In the said proceedings Kamalammal filed three applications in E.A.No.2798 of 1981 for staying of the execution proceedings till the disposal of the petition filed by her under Section 47 of C.P.C. E.A.No.2800 of 1981 and E.A.No.2799 of 1981 are seeking to implead her as legal representative of deceased Chinnaiah. The executing court viz., X Assistant City Civil Court on 30.4.1982 passed an order allowing the petition under Section 47 of C.P.C and also E.A.No.2799 of 1981 and dismissed the application in 2798 of 1981. Section 47 application was allowed on the ground that the execution petition was filed long after the prescribed period and the same was barred by time. Other observations in the said order are to the effect that "A" schedule property itself shows the site measuring 1988 sq.ft. and the same is not straight or regular which cannot be identified and the suit property cannot be located by the Court bailif for delivery. The contention of the appellants is that the right of Vidyuthavalli Thayar got extinguished due to the order passed in E.P.No.765 of 1977 and hence the suit claim is attracted by the principles of res judicata as per Section 11 of C.P.C and that it is equally applicable to the claim of her daughter also.

18.(ii) Taking advantage of launching of the above said two proceedings, the appellants' side would plead that since the earlier proceedings went against Vidyuthavalli Thayar, neither herself nor her daughter could claim any right in the present suit since the suit claim has been miserably barred by the principles of res judicata.

18.(iii) Even though the decree passed in O.S.No.968 of 1958 was an exparte decree which would operate as res judicata for the subsequent proceedings, it is well settled that even an exparte decree would operate as res judicata for the subsequent proceedings instituted on the same subject unless it is set aside. As far as the earlier suit is concerned, as already stated, the adjudication was with reference to the extent of the site measuring 30' x 12' alone but the present suit in O.S.No.7470 of 1996 is for the entire property, of course, inclusive of portion 30' x 12'. At the most, it can be stated that the principles of res judicata would be operative only with respect to the portion 30' x 12' and not for the remaining larger extent since the rights of parties were not at all adjudicated for the larger extent. Hence the plea of bar of res judicata is of no avail.

18.(iv) The learned Senior Counsel for the appellants would place reliance upon decisions of the Supreme Court and this Court urging that res judicata is applicable to the present case of the respondent.

18.(v) In 2007(5) CTC 233 [Saroja v.Chiinusamy (Dead) by Lrs. and another] the Supreme Court has discerned following conditions, which constitute res judicata under Section 11 of C.P.C. which must be satisfied to hold that the latter suit is barred by res judicata:

"4. Before dealing with the facts of the present case and before examining the merits of the question raised before us, as noted hereinabove, let us first consider the general principles of res judicata which have been incorporated in Section 11 of the Code of Civil Procedure (for short CPC), which reads as follows:

11. Res judicata.No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

5. We have carefully examined the provisions under Section 11 CPC. After a careful reading of the provisions under Section 11 CPC, it is discernible that in order to constitute res judicata, the following conditions must be satisfied

(i) There must be two suitsone former suit and the other subsequent suit;

(ii) The court which decided the former suit must be competent to try the subsequent suit;

(iii) The matter directly and substantially in issue must be the same either actually or constructively in both the suits;

(iv) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit;

(v) The parties to the suits or the parties under whom they or any of them claim must be the same in both the suits;

(vi) The parties in both the suits must have litigated under the same title. We shall come back to these conditions later."

18.(vi) In 2005 (1) CTC 368 [Bhanu Kumar Jain v. Archana Kumar & Anr.] the Full Bench of the Supreme Court has held that res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party, that if such an issue is decided against him, he would be estopped from raising the same in the latter proceeding and that the doctrine of res judicata creates a different kind of estoppel viz. estoppel by accord.

18.(vii) In Kunjan Nair Sivaraman Nair's case (supra) while the Supreme Court deals with section 11 C.P.C., it is held that the section does not affect the jurisdiction of the Court but operates as a bar to the trial of the suit or issue, if the matter in issue in a suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a court, competent to try the subsequent suit in which such issue has been raised.

18.(viii) Identical view has been expressed in AIR 1979 SC 1436 [Smt. Sukhrani (dead) by L.R's and others v. Hari shankar and others].

18.(ix) The learned counsel for the first respondent garnered support from a decision of the Apex Court in AIR 2004 SC 2186 [Escorts Farms Ltd v. Commissioner, Kumanon Division, Nainital and others] in which the principles laid down are identical as in the decisions aforementioned, besides holding that the plea of res judicata is not available where there is no contest on an issue between the parties and there is no conscious adjudication of an issue. In this regard, it has to be seen that the earlier suit was decreed exparte and there was no adjudication of rights. However, the causes of action are different.

18.(x). Judged in the background of the weighty legal principles as stated above, it is held that there is no substantial issue available in the present case which was already adjudicated in the earlier suit and hence no question of bar for the present claim by res judicata would arise. The same view could be applicable to the proceedings in C.S.No.201 of 1993 instituted by Vidyuthavalli Thayar since no issue was adjudicated.

AS REGARDS ADVERSE POSSESSION (Question No.4):

19.(i) It is contended by the appellants that in C.S.No.201 of 1993 Vidyuthavalli Thayar admitted the possession of predecessors in interest of the appellants, prayed for delivery of vacant possession. In her plaint, she had alleged that following four defendants were in occupation:

1.Kamalammal in occupation of an extent of 2765 Sq.ft.

2.Kousalya in occupation of an extent of 3000 sq.ft.

3.Annapoornammal in occupation of an extent of 2260 sq.ft.

4.Gopalan in occupation of an extent of 675 sq.ft.

19.(ii) She has alleged that the four defendants criminally trespassed into her property and with the help of police personnel she recovered the possession of the land but they re-enterted the land and forcibly occupied the same. It is also pleaded therein that only in the year 1983, the defendants began to claim title to the suit property and the untenable claim of the defendants was negatived by the XI Assistant Judge, City Civil Court, Madras in O.S.No.9135 of 1984. The said suit was filed by Kousalya, Kamalammal and two others stating that they have been in occupation for about 31 years and they put up superstructure thereon. It was a suit for permanent injunction. Ex.A-13 is the copy of the plaint in the said suit. Ex.A-48 is suit register extract of the said suit which shows that on 5.1.1985 the suit was dismissed with costs. It is not stated whether any appeal was preferred from the the said judgment. In the said suit also the above said persons contended that they were in occupation of specific extent of sites as mentioned above and prayed for permanent injunction. But they lost the race. Hence it is contended that they could not claim any possessory right over the property.

19.(iii) The possession and enjoyment of first respondent was already discussed under question No.1 on the basis of the documents in her name. As far as the proof of possession and enjoyment of the appellants, Ex.B-11 is the proceedings of the Tahsildar cum Urban Land Tax Officer, Mambalam dated 22.11.1989 by means of which he has concluded that the question of adverse possession claimed by the holders has to be agitated in the court of law and that a revision will be entertainable within 60 days before the Collector of Madras. Ex.B-12 is the extract of the Permanent Town Survey Register in the names of Vidyuthavalli Thayar, Girija, Gopal, Kamalammal, Kowsalya and Annapoornammal. The names are jointly mentioned for the entire extent. It was issued in the year 1982.

19.(iv) It is contended by the appellants that Vidyuthavalli Thayar surrendered the entire extent of 6 ground and 520 sq.ft. to the Housing Board. However, the said Board declined to take possession of the property as it had been under the possession and enjoyment of these appellants by putting up of residential huts for their occupation. Ex.B-4 is the proceedings of the Special Tahsildar (Land Acquisition III) Tamil Nadu Housing Board Schemes, Nandanam, Madras-35 dated 25.9.1984. It is concluded in the said proceedings that the portions of the land proposed for acquisition are vacant except four thatched huts, out of which one is used as tea shop and the rest are as residence, that the occupants claimed ownership by adverse possession and the ownership over the land should be under litigation, that the Chairman, Tamil Nadu Housing Board, was requested to over rule the objections raised by the claimants and to proceed further in the matter and that in view of the recommendation of the Chairman, Tamil Nadu Housing Board, the land is required for housing scheme and the objections raised by the claimants are general in nature. It was recommended to be overruled and was decided to submit draft declaration for the entire extent of 6 grounds and 520 sq.ft. It is not shown before the Court by any of the parties, what happened subsequent to Ex.B-4 proceedings. In view of Ex.B-4 it could be seen that the contention that the Housing Board declined to take possession of the property since these appellants were in enjoyment is not correct.

19.(v) Ex.B-9 series are the Urban Land Tax payment receipts standing in the names of Kamalammal, Kousalya, Annapoornammal and Gopalan. They are 7 in number. They have been paid in the months of April and May 1999 alone. Ex.B-22 is the Electricity Consumption Card, which is from the year 1992 i.e., after the suit. The above documents are alone the records to show the enjoyment of the appellants. The appellants very much relied upon the admissions made by Vidyuthavalli Thayar and the first respondent in certain earlier proceedings. It is true that the predecessors in title, as per these appellants, were in possession of specific portions of properties as per plaint in C.S.No.201 of 1993. But it has to be seen whether such possession would constitute adverse possession so as to entitle them to prescribe such possession which would evolve into a legal right as against the true owner. The burden is heavily on them to establish that they have perfected title by adverse possession .

19.(vi) In this context, it is stressed by the first respondent that these appellants are not at all legal representatives of the deceased Kamalammal and Annapoornammal and even though their relationship was denied, these appellants have not shown that they are their legal representatives and hence the possession of the alleged predecessors in title cannot be tacked with the alleged possession of these appellants. They have not produced any document to show that they are legal representatives of Chinnaiah and others.

19.(vii) It is also stated that D.W.1 alone examined himself on behalf of the appellants and his evidence could not be on behalf of other appellants also, that every appellant should have examined himself/herself, that no oral evidence has been adduced to support the contention of others and that every appellant should have filed a separate suit to agitate their claims and that they should not have united the causes of action by filing a single suit. This Court sees considerable force in the arugments of the first respondent.

19.(viii) Ex.A-52 is the notice given by the learned counsel for the first respondent to the learned counsel for the appellants to instruct D.W.1 Ravi to produce the proof of postal correspondences addressed to him and to his son each from 1985 to 1989 during the next hearing. The notice is dated 26.09.2006. But no records were produced to show that he is resident of particular portion in the suit property.

19.(ix) Chinnaiah filed a suit in O.S.No.3517 of 1971 on the file of the City Civil Court, Madras, claiming that he was tenant since 1952 in respect of vacant land of about 50' x 15'. The suit is for setting aside the exparte decree in O.S.No.968 of 1958. The said suit was dismissed on 20.3.1975 as evident from Ex.A-12 judgment passed in the suit which is a contested case.

19.(x) As already stated, O.S.No.9135 of 1984 was filed by Kousalya, Kamalammal, Subramania Choudary and P. Gopal, claiming specific portions in the property, for permanent injunction which was dismissed.

19.(xi) In order to establish the plea of the adverse possession, the person in possession must be in open, continuous, uninterrupted and unobjectionable possession of the property with the knowledge of the true owner for over a statutory period of 12 years. If he fails to prove such a possession or had there been any evidence or material to show that the possession was interrupted or objected or discontinued at the instance of the true owner, there can be no adverse possession. Intermittent or continuous or occasional interruption on the part of the true owner to the possessor within the statutory period would dissolve the plea of adverse possession. Without break, the possession must be shown. In order to prove the same, convincing records should be surfacing. Mere mutation of names in the records without animus possidendi would not form basis for adverse possession. Both the learned counsel in support of their respective pleas, garnered support from various decisions of the Supreme Court.

19.(xii) Learned counsel for the appellants cited a Division Bench decision in AIR 1986 Madras 106 [V. Muthiah Pillai (Dead) and others v. Vedambal and others] wherein it is held as follows:

"The concept of adverse possession contemplates a hostile possession, i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights, but denies them. Also a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed."

19.(xiii) In a Full Bench decision of the Apex Court in AIR 1965 SC 1165 it is held as under:

"A person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title in the event of disturbance of possession by a third party and not the owner, the plaintiff can maintain a possessory suit under the provisions of Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised."

19.(xiv) In AIR 1964 SC 1254 [S.M. Karim v. Bibi Sakina] it is observed that adverse possession must be adequate in continuity, in publicity and extent and a plea is required atleast to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.

19.(xv) Learned counsel for the first respondent relied upon a decision of Supreme Court in 2008 SAR Civil 783 [Kuralla Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma Alias Nacharamma] in which it is held that mere claim by the defendant that he had perfected his title by adverse possiession, does not mean that a cloud is raised over plaintiff's title and that the plaintiff who is the owner, should file a suit for declaration of title.

19.(xvi) In 2008-1 L.W. 69 (SC) [Annakili v. A. Vedanayagam & Others] Their Lorships have formulated the following principles to ascertain adverse possession:

"22. Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into a title."

24. The said statement of law was reiterated in T. Anjanappa v. Somalingappa & Anr. [(2006) (8) SCALE 624 = (2006) 7 SCC 570 = 2007-2-L.W.955] holding thus:

It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owners title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the formers hostile action.

19.(xvii) The Apex Court in AIR 2007 SC 1753 = 2007 (6) SCC 59 [P.T. Muichikkanna Reddy and others v. Revamma and Ors.] has held as follows:

"7. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:

1. Application of limitation provision thereby jurisprudentially wilful neglect element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.

2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property."

19.(xviii) This decision has been followed by this Court in (2008) 7 MLJ 275 [Veerasekaran and Another v. Devarasu ] .

19.(xix) From the above said judicial pronouncements, it emerges that in order to perfect or prescribe adverse possession, one must expose his possession in the property hostile to true owner and with his knowledge, he has been enjoying the property as his own, provided the said possession has to be an uninterrupted one. This position has been illuminatingly highlighted in the decisions mentioned above. Even if the predecessors in title had been considered to be in possession of the property, there had been continuous interruption to them on the part of Vidyuthavalli Thayar and thereafter by the first respondent. Even though in certain proceedings they admitted the possession of the appellants in the property, which would not make the said possession as an adverse possession, since to qualify the same, it must be for statutory period. There is no evidence nor material to show that with the knowledge of the true owners, these appellants had been possessing the property as their own continuously and unobjectionably. There had been no hostile possession of the appellants to the true owners.

19.(xx) It can be stated that they might have acquired adverse possession as far as the extent of 360 sq.ft. covered by the suit in O.S.No.968 of 1958. But they have not established that in other larger portions, they have been in possession for over a statutory period of 12 years without any objection from the true owners. The necessary legal requirements in the matter of adverse possession are not available in this case. Mere possession however long is not adverse possession as per the settled principle. It could not be stated that since the right of Vidyuthavalli Thayar to take delivery of the property covered by the suit in O.S.No.968 of 1958 was barred, she lost her right over the remaining larger extent. Even though the appellants were stated to have been in possession of certain portions of the suit property, it is a possession which would not constitute adverse possession in the absence of evidence as required by law so as to make them competent to claim adverse possession.

19.(xxi) In the above circumstances, following the principles laid down in the decisions of the Supreme Court, it is held that the appellants have not prescribed title to the suit property, by adverse possession.

20. AS TO THE ENTITLEMENT OF APPELLANTS UNDER SECTION 6 OF THE SPECIFIC RELIEF ACT (CRP No.3023 of 2007)

20.(i) It is the quintessence of the learned Senior Counsel for the appellants that since it is an admitted fact that the appellants were in occupation of specific portions in the suit property their dispossession by force at the behest of first respondent is unlawful and hence they are entitled to get the relief under Section 6 of the Specific Relief Act (hereinafter referred to as "Act"). Section 6 of the Act goes thus:-

6. Suit by persons dispossessed of immovable property:-

(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit under this Section be brought-

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof."

20. (ii) Conversely the learned counsel for the first respondent would submit that in order to have the benefit of Section 6 of the Act, the appellants should establish exclusive possession over "B" schedule property anterior to the date of alleged dispossession and in the absence of such proof they could not get the relief. It is further contended that even though 360 Sq.ft. could not be identified, the trial court has found that the said extent lies in two grounds covered by the settlement deed Ex.A-3 and that these appellants have prescribed title and possession of 360 sq.ft. and the same has been confirmed by the appellate court also, which shows the non application of mind on the part of both the courts.

20.(iii) Next limb of contention is that the suit under this provision filed by them viz., O.S.6687 of 1996 has to be tried summarily and clubbed the same alongwith O.S.No.7470 of 1996 by the trial court inspite of opposition on the part of the appellant is not sustainable.

20.(iv) It is the primordial contention of the appellants that even though the appellants raised stiff opposition before the trial Court for the joint trial of both cases, ignoring the same, the trial court proceeded to jointly try the case. But the appellants claim to be the legal representatives of Kamalammal and Annapoornammal. They are the plaintiffs No.1 and 3 in O.S.No.6687 of 1996, who filed a petition in Transfer O.P.No.73 of 1997 on the file of the Principal Judge, City Civil Court, Madras, for transferring O.S.No.6687 of 1996 pending on the file of the III Assitant Judge, City Civil Court, Madras to the Court of VII Assistant Judge in the same court to try the suit along with suit in O.S.No.7470 of 1996. The transfer petition was scrutinised by that Court, wherein they have alleged that it is better both the suits have to be tried together and common judgment to be passed depending upon the merits put forward by rival parties, so that conflicting judgment will be averted. At that time, the trial in O.S.No.7470 of 1996 was opened on 6.2.1997, the plaintiff was examined, documents were marked and the case was posted for cross examination on 13.2.1997. In the said petition, Rajammal, Kousalya, Gopalan were 2 to 4 respondents and Girija and Vidyuthavalli Thayar were 1st and 5th respondents. Respondents 1, 3 and 4 had no objection to allow the petition. R-2 remained exparte. R5 Vidyuthavalli Thayar filed her counter on 17.4.97 and after hearing the arguments, the petition was allowed on 15.7.1997 with the following order:

"Orders passed. In the result the petition is allowed and O.S.No.6687/96 is transferred from the file of III Assistant Judge to the file of VII Additional Judge, City Civil Court, Madras for trial with O.S.No.7470 of 1996 either jointly or simultaneously. No costs."

20.(v) In view of filing of the transfer petition as aforementioned, for having joint trial of both the suits and the same was also ordered, it is futile on the part of the appellants presently to agitate that inspite of their resistence, the trial court took up joint trial of both the cases. They are consenting parties for joint trial.

20.(vi) The pleadings of the appellants that the respondents have admitted their possession and since they were dispossessed unlawfully they have to be put in possession as per the mandatory provisions of Section 6 of the Act. It is true that the respondents have admitted the possession of appellants in certain proceedings. Even though the appellants filed O.S.No.9135 of 1984 they allowed the suit to be dismissed. In the plaint in O.S.No.6687 of 1986, it is alleged by these appellants that on 15.2.1990 Girija and rowdy elements engaged by her, armed with lethal weapons, broke open the fence of the appellants and entered into the "B" schedule property and dismantled the huts. The police were only silent spectators, who did not take any action, and she committed trespass in "B" schedule property, which is 2 grounds on the south of G.N. Chetty Road. The above said allegations were denied in the written statement.

20.(vii) Nature of The possession of the trespasser on which he can defend his possession against true owner must contain the following features as per Apex Court:

(a) the trespasser must be in actual physical possession over the property over a sufficiently long period.;

(b) the possession must be to the knowledge either express or without any attempt at concealment and which contains an element of animus possidendi ;

(c) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquieseced in by the true owner; and

(d) one of the usual tests to determine the quality of settled possession in the case of culturable land would be whether or not the trespasser after having taken possession had grown any crop. If the crop had been grown by the trespasser then none, even the true owner, has any right to destroy the crop and the trespasser in that case can exercise his right of private defence. {AIR 1975 SC 1674 [Puran Singh v. State of Punjab]}

20.(viii) The appellants concededly have not shown any legal title to the property. It is an admitted fact that from 1941 onwards Vidyuthavalli Thayar was holding the title. These appellants claim adverse possession. Hence they are trespassers. When the nature of the possession of these appellants are decided in the light of the above said principle, they have to show that they were in physical possession of the property for a long period and they had been dispossessed by the true owner completely, which is within the knowledge of the true owner. If these requirements are not satisfied, then the appellants will be non-suited for the relief.

20.(ix) Adverting to the facts of the present case, O.S.No.1759 of 1990 is the suit filed by Kamalammala, Kousalya, Annapoornammal and P.Gopal against Vidyuthavalli Thayar and her daughter for permanent injunction as regards title to the extent of 6 grounds and 520 sq.ft., wherein they have pleaeded that they have been in uninterrupted possession and enjoyment of the property and that the defendants tried to trespass in the suit property by breaking open the fence. It is also stated that on 15.2.1990 police inspector provided protection to the defendants' men to enter upon the suit property by dismantling the fencing and allowed them to fix foundation stone for putting up construction in a portion of vacant site in the suit property. The suit was filed on 16.2.1990. In the said plaint these appellants have not pleaded that they were dispossessed by the present first respondent unlawfully on 15.2.1990, but they have stated that they she and her mother tried to enter and take possession of the suit property forcibly and trespassed into the property with the help of police on 15.2.1990.

20.(x) In the said plaint they have also stated that the suit property was vacant site and they have not mentioned about the persons or number of huts, whereas, in O.S.No.6687 of 1996 they have mentioned that in the "B" schedule property huts were available and the first respondent with the help of rowdies armed with lethal weapons dismantled the huts. In O.S.No.9135 of 1983 filed by Kausalya, Kamalammal, Subramania Shastry and P.Gopal, they have mentioned the schedule referring to specific portions reportedly possessed by them totalling an extent of 8375 sq.ft. and it is admitted in the schedule that Vidyuthavalli Thayar was owner of the vacant land on the south of the G.N.Chetty Road. The above suit was dismissed. O.S.No.1759 of1990 filed by Kousalya, Annapoornammal, Subramania Shastry and P. Gopal as stated above was dismissed as not pressed as evident from Ex.A.29, copy of judgment dated 9.7.1996. The dismissal of both the suits would indicate that the predecessors of the appellants did not assert their possession in the suit property even though they pleaded that they were in possession.

20.(xi) Learned counsel for the appellants placed reliance upon a decision of the Apex Court in AIR 1968 SC 620 [Laalu Yeshwant Singh (dead) by his legal representative v. Rao Jagdish Singh and others] wherein earlier judgment of Privy Council and Full Bench decision of Allahabad High Court and a Bombay High Court decision were discussed and the following proposition has been laid down:-

"10. In Midnapur Zamindary Company Limited v. Naresh Narayan Roy 51 Ind App 293 = at p.299 = (AIR 1924 PC 144 at p.147) the Privy Council observed:

In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court.

11. In K.K. Verma v. Naraindas C. Malkani ILR (1954) Bom 950 at p.957 = (AIR 1954 Bom 358 at p.360) Chagla, C.J., stated that the law in India was essentially different from the law in England. He observed:

Under the Indian law the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy his possession is juridical and that possession is protected by statute. Under Section 9 of the Specific Relief Act a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law, but a trespasser who has been thrown out of possession cannot go to Court under Section 9 and claim possession against the true Owner.

12. In Yar Mohammad v. Lakshmi Das ILR (1958) 2 All 394 at p.404 = (AIR 1959 All 1 at p.4), the Full Bench of the Allahabad High Court observed:

No question of title either of the plaintiff or of the defendant can be raised or gone into in that case (under Section 9 of the Specific Relief Act). The plaintiff will be entitled to succeed without proving any title on which he can fall back upon and the defendant cannot succeed even though he may be in a position to establish the best of all titles. The restoration of possession in such a suit is, however, always subject to a regular title suit and the person who has the real title or even the better title cannot, therefore, be prejudiced in any way by a decree in such a suit. It will always be open to him to establish his title in a regular suit and to recover back possession. The High Court further observed:

Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a judge in his own cause."

Concluding in 15th paragraph, Their Lordships have expressed view as "In our opinion, the law on this point has been correctly stated by the Privy Council, by Chagla, C.J., and by the Full Bench of the Allahabad High Court, in the cases cited above." Section 6 of the Act is analogous to Section 9 of the earlier Act, namely, Specific Relief Act 1877.

20.(xii) The Supreme Court in 1969 (3) SCC 129 [Somnath Burman v. Dr.S.P. Raju and another] has referred to a Division Bench decision of this Court in the following lines:-

10. In Naryana Row v. Dharmachar (ILR XXVI Mad 514) a bench of the Madras High Court consisting of Bhashyam Ayyangar and Moore, JJ., held that possession is, under the Indian, as under the English law, good title against all but the true owner. Section 9 of the Specific Relief Act is in no way inconsistent with the position that as against a wrong doer, prior possession of the plaintiff, in an action of ejectment, is sufficient title, even if the suit be brought more than six months after the act of dispossession complained of and that the wrong-doer cannot successfully resist the suit by showing that the title and right to possession are in a third person. The same view was taken by the Bombay High Court in Krishnarav Yashvant v. Vasudev Apaji Ghotikar (deceased) by 1.rs (ILR 8 Bom 371). That was also the view taken by the Allahabad High Court  see Umrao Singh v. Ramji Das (ILR 36 All 51); Wali Ahmed Khan v. Ajudhia Kandu(ILR XIII All p 537). In Subodh Gopal Bose v. Province of Bihar (AIR (37) 1950 Pat 222) the Patna High Court adhered to the view taken by the Madras, Bombay and Allahabad High Courts. The contrary view taken by the Calcutta High Court in Debi Churn Boldo v. Issur Chander Manjee(ILR IX Cal p. 39); Ertaza Hossein and Another v. Bany Mistry(ILR IX Cal p. 130); Purmeshur Chowdhry v. Brijo Lal Chowdhry(ILR XVII Cal p. 579). and Nisa Chand Gaita v. Kanchiram Bagai (ILR XXVI Cal p.579) in our opinion does not lay down the law correctly."

20.(xiii) In the light of the excrpts in The Specific Relief Act by G.C.V. Subba Rao, Sixth Edition, page 381, a person is said to hold any land only when he is in legal possession and while Section 6 does not countenance forcible dispossession it does not declare that the possession of the person evicted is a lawful possession. On a scanning of the anatomy of Section 6, the following facts are perceivable. All that required is that if any person complains of dispossession, has to show that he was in possession of the property as a rightful holder against the other party and that he should have been dispossessed within six months prior to the date of filing of the suit. In view of the dismissal of both the suits as mentioned above, a cloud has been cast on the possession of the predecessors of appellants and their possession was also not in a rightful manner against the true owner.

20(xiv) In this situation, the irresistible conclusion would be that the appellants / petitioners are not entitled to have recourse to the benefit of Section 6 of the Specific Relief Act and hence the judgment passed in O.S.No.6687 of 1996 does not call for any interference and the same is confirmed. CRP No.3023 of 2007 suffers dismissal.

POWER OF HIGH COURT UNDER SECTION 100 CPC:-

21.(i) The learned counsel for the first respondent would submit that concurrent findings of facts cannot be interfered by the High Court and in support of his contention he cites a decision of the Supreme Court reported in 2008 (1) CTC 446 [Krishnan v. Backiam & Another] wherein it is held that a perusal of the decision of the High Court shows that the High Court has practically acted as a First Appellate Court and has re-appreciated the findings of fact of the learned Subordinate Judge which it could not validly do in exercise of its jurisdiction under Section 100 C.P.C.

21.(ii) The Supreme Court has formulated certain exceptions to the general rule that the High Court will not interfere with the concurrent findings of the Courts below in 2008 (1) MLJ 131 (SC) [Boodireddy Chandraiah v. Arigela Laxmi and Another] which is as follows:-

13. The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to decision based on no evidence, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

21.(iii) As far as the facts of the present cases are concerned the findings of the court below are not fitting in any of the the exceptions formulated by the Supreme Court.

21.(iv) In AIR 1999 SC 2213 [Kondiba Degadu Kadam v. Savitribai Sopan Gujar and others] it is held that concurrent findings of the lower courts however erroneous cannot be interfered with under Section 100 C.P.C. by the High Court and that the substantial question of law has to be distinguished from the substantial question of fact.

C.R.P.No.3399 of 2007

22.The second defendant inO.S.No.6687 of 1996, Girija has filed this revision indicating that the property with the extent of 360 Sq.ft. measuring 30' x 12' ("B" schedule property in O.S.No.968 of 1958) has already been in possession of the respondents 1, 3 and 4, who were not dispossessed from the said property and hence as directed in the judgment, the question of handing over the possession of the same does not arise. In this regard, it has been consistently urged on the part of the respondents that they had been in possession and before them Chinnaiah was in occupancy. Since they have been in possession, as directed by the trial judge, as confirmed by the appellate judge, there is no need to deliver the property to the respondents 1, 3 and 4. This Civil Revision Petition is disposed of accordingly.

23. On overhaul of the circumstances in entirety and a careful scrutiny of the evidence on record and the pleadings as well, following the principles laid down by the Supreme Court, it has been found out that both the courts below have reached conclusion in an appropriate manner and recorded concurrent findings as to the rights of the parties and hence there is no need to disturb the same in this appeal and revision. The common judgment and decress passed in both the suits are confirmed and the Second Appeal and C.R.P.No.3023 of 2007 have to suffer dismissal. There is no need for delivery of 30' x 12' which is "B" Schedule in O.S.No.968 of 1958 by Girija to the respondents 1, 3 and 4, since already in their possession.

24. In fine, both S.A.No.347 of 2009 and C.R.P.No.3023 of 2007 are dismissed with costs. C.R.P.No.3399 of 2007 is disposed of clarifying the conclusion in the common judgment that there is no need for delivery of 30' x 12' sq.ft. ("B" Schedule in O.S.No.968 of 1958) since the same has already been in possession of the respondents 1, 3 and 4. No costs. Connected M.Ps. are closed. Time for delivery prayed for in O.S.No.7470 of 1996 is three months.

ggs/ssm To

1.VII Additional Judge, City Civil Court, Chennai 600104.

2.II Assistant Judge, City Civil Court, Chennai 600104