Challenge in this Second Appeal is to the Judgment and Decree, dated 22.10.2002, passed in Appeal Suit No.34 of 2000 by the learned Additional District-cum-Chief Judicial Magistrate, Sivagangai, wherein, the Judgment and Decree, dated 13.01.2000, passed in Original Suit No.73 of 1998 by the learned Subordinate Judge, Devakottai, are reversed.
2. The appellants are the defendants, who succeeded before the trial Court, but lost before the first Appellate Court. The plaintiff died pending first appeal and the respondents herein are the legal heirs of the deceased sole plaintiff.
3. The parties hereinafter are referred to as plaintiff and defendants as arrayed in the suit.
4. The brief facts of the case of the plaintiff is as follows:- 4.1. The plaintiff filed a suit in O.S.No.73 of 1998 on the file of the Sub Court, Devakottai, for permanent injunction restraining the defendants and anybody from interfering with her peaceful possession and enjoyment of the suit property. The suit property originally belonged to one Arunachala Asari. He had four wives and seven sons. After his death, his seven sons partitioned the properties belonging to Arunachala Asari and each son being allotted 1/7th share and they are in possession and enjoyment of their share. The suit property was allotted to one Kalimuthu Asari, son of first wife. Kasi @ Saminatha Asari, husband of the plaintiff filed a suit against Arunachala Asari in O.S.No.2 of 1969 for partition. A preliminary decree was passed on 17.07.1973. The application for passing final decree has been filed except the property in T.S.No.175/176 and suit properties were not partitioned and is enjoyed in common.
4.2. Kalimuthu Asari mortgaged the suit property in favour of Ramanathan Chettiar for amounts borrowed by him. The said Ramanathan Chettiar filed mortgage suit for recovery of amounts due. He obtained decree and brought the property to sale and one Vairavan Chettiar purchased the property in Court auction sale. After the death of Kalimuthu Asari, his wife and children entered into compromise with Vairavan Chettiar and handed over the property to Vairavan Chettiar enjoyed by Kalimuthu Asari and Vairavan Chettiar gave a letter to that effect. The plaintiff purchased the suit property by the deed of sale, dated 19.02.1982 from Vairavan Chettiar and is in possession and enjoyment of the same. The building in the suit property was destroyed by passage of time and the suit property is a vacant land.
4.3. The first defendant due to enmity filed a suit in O.S.No.132 of 1993 and the same was transferred to District Munsif Court, Devakottai and re-numbered as O.S.No.22 of 1997. In the said suit, the first defendant claimed that he had purchased the property from the legal heirs of Kalimuthu Asari. The husband of the plaintiff was arrayed as defendant in the said suit. After his death, the plaintiff and her sons were impleaded as defendants 19 to 22 respectively in O.S.No.22 of 1997. The defendants fearing that the suit would be dismissed, tried to trespass into the suit property. The plaintiff filed an application in I.A.No.119 of 1998 for interim injunction and I.A.No.120 of 1998 for appointment of an Advocate Commissioner. The said suit was dismissed on the day when interim injunction was granted. The second defendant is politically influential person. The plaintiff is enjoying the property as joint owner. The defendants have no right to challenge the physical feature of the suit property. The plaintiff, being a lady, can safe-guard her rights only by appropriate permanent injunction granted by the Court. The plaintiff has enclosed a rough sketch of the property along with the plaint.
5. The first defendant filed written statement and the second defendant adopted the same and the facts in the written statement are as follows:-
5.1. According to the defendants, the description of the property is not correct. There is discrepancy in the measurement.
5.2. O.S.No.2 of 1969 was filed for partition. The suit property is part of the property allotted to Kalimuthu Asari.
5.3. A preliminary decree was passed in O.S.No.2 of 1969. The husband of the plaintiff filed application for final decree. T.S.Nos.155 and 156 including the suit property was the first item in the said suit. The lands in Pudukottai were second item and house in Pudukkottai was the third item of the suit property. The husband of the plaintiff compromised with 13th defendant in respect of the third item of property and received money and did not press for final decree in respect of first item of property. Even before application for final decree was filed, a portion of first item in 'A' schedule was sold to Auditor Raghavendran and his family members and the said property was deleted from the suit based on the complaint given by the parties.
5.4. The allegation that the plaintiff is in joint possession is denied. The mortgage decree, auction sale, surrender of suit property by legal heirs of Kalimuthu Asari to Vairavan Chettiar and his letter are denied. Vairavan Chettiar did not take possession of the suit property after auction sale and he was never in enjoyment of the suit property and he has no right over the suit property. The plaintiff has no right to claim interest and possession in suit property, as she is claiming title through a person, who has no interest in the suit property and the sale deed of the year 1982 is not genuine. The plaintiff and her husband in order to extract money from the first defendant has fabricated the document, dated 19.02.1982, after the first defendant purchased the property. Kasi Asari entered into a compromise in O.S.No.132 of 1993 and signed compromise memo and sketch in respect of the properties in T.S.Nos.175 and 176. In the compromise memo and sketch, the property was shown as property of Kalimuthu Asari. In view of the said compromise, the first defendant has instructed his Advocate not to press O.S.No.152 of 1993 and re-numbered as O.S.No.22 of 1997. His Advocate without seeing such instructions reported 'no instructions'. The injunction order in I.A.No.119 of 1998 is not valid as the same had been passed after the dismissal of the suit. The suit for permanent injunction is not maintainable. The plaintiff ought to have filed the suit for partition. The plaintiff has no valid title to the suit property. The second defendant is not necessary party to the suit. The first defendant is disputing the title of the plaintiff and the plaintiff must file suit for declaration. The plaintiff is taking contradictory stand than the stand taken by her husband in O.S.No.2 of 1969 filed by him. The said suit was dismissed on 17.04.1973. The appeal in A.S.No.787 of 1985 was dismissed by this Court on 27.11.1989. The plaintiff was 21st defendant in the said suit. The said Vairavan Chettiar was 16th defendant. The first defendant purchased the property from Ponnusamy and Valliammai, the legal heirs of Kalimuthu Asari and acquired title and became the owner of the suit property.
5.5. The defendants filed additional written statement and contended that the description of property and extent of the property are not correct. The plaintiff has not correctly valued the suit and not paid the correct Court fee.
6. Based on the pleadings, the learned trial Judge framed issues. Before the trial Court, on behalf of the plaintiff, one Ekambaram was examined as P.W.1 and 26 documents were marked as Exs.P.1 to P.26. On behalf of the defendants, two witnesses were examined as R.Ws.1 and 2 and 7 documents were marked as Exs.B.1 to B.7.
7. The learned trial Judge as per Order 14 Rule 5 of the Code of Civil Procedure, recast the issues and framed 10 issues. The learned trial Judge considering the pleadings and both oral and documentary evidence, dismissed the suit holding that:
(i) The plaintiff failed to prove that the property of Kalimuthu Asari was purchased by Vairavan Chettiar, the legal heirs of Kalimuthu Asari compromised and surrendered the possession of the suit property to Vairavan Chettiar.
(ii) The sale certificate issued by the Court does not tally with the suit property as well as schedule mentioned property in the sale deed in favour of the plaintiff.
(iii) The first defendant has proved his purchase and possession by oral and documentary evidence.
(iv) The suit filed by the plaintiff for injunction only without seeking decree of declaration is not maintainable, when doubt was raised about her title to the suit property.
8. Against the Judgment and Decree, dated 13.01.2000, made in O.S.No.73 of 1998, the plaintiff has filed an appeal in A.S.No.34 of 2000 on the file of the Additional District-cum-Chief Judicial Magistrate, Sivagangai.
9. Pending appeal, the plaintiff died and the respondents 1 and 2 herein were impleaded as appellants 2 and 3 in the first appeal.
10. The learned first Appellate Judge framed necessary points for consideration in the first Appeal.
11. The learned first Appellate Judge considering the pleadings, oral and documentary evidence, the Judgment of the trial Court and arguments of the learned counsel for the parties, allowed the first appeal reversing the Judgment of the trial Court and decreed the suit as prayed for.
12. The learned first appellate Judge held that the plaintiff proved the Court auction sale and legal heirs of Kalimuthu Asari surrendered the property to Vairavan Chettiar and the plaintiff purchased the property by Ex.A.3 and the first defendant did not purchase the property from the legal heirs of Kalimuthu Asari and did not enjoy the same and the alleged purchase is illegal and contrary to Ex.A.3. The learned first appellate Judge also held that there is no discrepancy in the description of the suit property. Against the Judgment and Decree dated 22.10.2002, made in A.S.No.34 of 2000, the defendants have filed the present Second Appeal.
13. At the time of admission, this Court framed the following substantial questions of law:-
?1.Whether the lower Appellate court is right in coming to a conclusion that Ex.A.2 is a valid document, when the executant of document had not been examined?
2.Whether the lower Appellate Court is right in not drawing adverse inference against the plaintiff, for non-examination of Achikannammal??
14. The learned counsel for the appellants/defendants submitted that;
(i) the learned first appellate Judge failed to see that the plaintiff failed to prove that Vairavan Chettiar had taken possession of the property as per decree in O.S.No.46 of 1955 and E.P.No.53 of 1956. Ex.A.1 does not establish that the suit property was purchased by Vairavan Chettiar, as description of the property does not tally;
(ii) in the suit in O.S.No.2 of 1969 and A.S.No.785 of 1985 filed by the husband of the plaintiff, he did not state that Vairavan Chettiar had taken possession of the property and also did not mention Ex.A.2;
(iii) the learned first appellate Judge failed to see that Ex.A.2 is a fabricated document and it is inadmissible in evidence, as the same was not registered. The plaintiff had not proved the genuineness of the document and did not examine either the Scribe, Ponnusamy Asari or the Attestors to the document, even though they are relatives to the plaintiff;
(iv) the learned first appellate Judge erred in holding that the court auction purchaser can take possession of the property, otherwise than through Court;
(v) the learned first appellate Judge failed to see that Kalimuthu Asari inherited the property from his father Arunchalam and is entitled to only 1/3 share along with his sons. Even if the auction sale is valid, Vairavan Chettiar, the auction purchaser can get only 1/21 share in the suit properties;
(vi) the first defendant purchased the property by Ex.B.1 ? Sale Deed, dated 17.03.1981 from Ponnusamy and Valliammai, the legal heirs of Kalimuthu Asari and became owner of the suit property. The rights of the first defendant had been recognized and therefore, he had been called upon to join in execution of sale deed in Ex.A.6, dated 24.12.1983, in favour of R.Banumathi;
(vii) Vairavan Chettiar even though was arrayed as defendant in O.S.No.2 of 1969, he did not claim any right over the suit property;
(viii) Kasi Asari, the husband of the plaintiff admitted the right of the first defendant and on that basis only, the first defendant withdrew the suit in O.S.No.22 of 1997 filed by them;
(ix) the son of the plaintiff as P.W.1 admitted that he does not know the names of owners of the property in S.Nos.175 and 176 and he admitted that there are other sharers to the suit properties. Non-impleading the proper and necessary parties is fatal to the suit;
(x) the plaintiff is not clear about the suit property. Initially, she claimed only 1008 square feet and subsequently, amended the plaint to claim 4,500 square feet;
(xi) the plaintiff has not produced any relevant records to show that Vairavan Chettiar after court auction purchase, got his name mutated in the revenue records or he paid any statutory dues; and
(xii) the learned first appellate Judge has not given any reason for setting aside the well considered and well reasoned judgment of the learned trial Judge.
14.1. In support of his submissions, the learned counsel for the appellants/defendants relied on the following judgments:
(i) 2008 (4) SCC 594 [Anathula Sudhakar v. P. Buchi Reddy], wherein at paragraph 21, it has been held as follows:
?21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over the plaintiff?s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff?s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff?s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar Vs. Alagammal [2005 (6) SCC 202]). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.?
(ii) 2005 (9) SCC 354 [K.R. Lakshminarayana Rao v. New Premier Chemical Industries], wherein at paragraphs 8 and 9, it has been held as follows:
?8. A bare perusal of the aforementioned provisions would leave no manner of doubt and in particular having regard to the amendments carried in CPC by reason of the CPC Amendment Act, 1976 that the steps for obtaining delivery of property in occupancy of the judgment-debtor is required to be taken by the auction-purchaser in terms of Order 21 Rule 95 CPC and, thus, a separate suit to enforce such a right would, therefore, be not maintainable.
9. There cannot be any doubt whatsoever that when the decree is satisfied, the execution case comes to an end. Once a decree is satisfied, the question of invoking the provisions of
Article 136 of the Limitation Act, 1963 would not arise, inasmuch as a bare perusal thereof would clearly go to show that the same would be attracted only when an application is filed for executing the decree.
Article 136 of the Limitation Act is, therefore, not attracted when an application is required to be filed in the execution proceedings for a purpose other than for execution of the decree. Once a decree stands satisfied, the execution proceedings come to an end and, in that view of the matter, a proceeding in the nature of one contemplated under Order 21 Rule 95 CPC is required to be initiated for the purpose of obtaining delivery of possession of the property purchased in court auction by the decree-holder. Such an application must be filed within the prescribed period of limitation as provided for under
Article 134 of the Limitation Act, 1963. The Schedule appended to the Limitation Act, 1963 having provided for a specific provision prescribing limitation for filing an appropriate application for recovery of possession of any property in possession of the judgment-debtor, it is idle to contend that
Article 136 of the Limitation Act would apply even in relation thereto. The law enunciated by the majority opinion of the Full Bench of the Calcutta High Court in Kailash Chandra Tarafdar v. Gopal Chandra Poddar [AIR 1926 Cal 798 : ILR 53 Cal 781 (FB)] has been approved by this Court in Harnandrai case [1973 (2) SCC 467] in the following terms: (SCC pp. 470-71, para 5) ?5. As we have already said, the appellant relied on the Full Bench decision of the Lahore High Court. We have carefully gone through the various decisions cited before us and we find ourselves in agreement with the opinion of the Full Bench of the Calcutta High Court in Kailash Tarafdar case [AIR 1926 Cal 798 : ILR 53 Cal 781 (FB)]. If a confirmation of the sale would finally terminate all questions as to execution of the decree it is difficult to appreciate why the legislature would frame such rules as Rules 95 to 102 under Order 21 of the Code of Civil Procedure. We are in respectful agreement with G.K. Mitter, J., that the legislature must have thought that the duty of the executing court should not end with the confirmation of the sale and it is because the legislature thought ?that the auction-purchaser should have the right of applying for possession under the provisions of Rules 95 and 96 that proceedings for obtaining possession were included in the catena of rules relating to the execution of the decree?.??
(iii) 2002 (2) LW 690 [Suseela and others vs. Ramasami], wherein at paragraph 21, it has been held as follows:
?21. It is necessary to state that the plaintiff ought to have taken proceedings within one year from the date of Court auction purchase or issue of Sale Certificate. The plaintiff is not entitled to file a suit for recovery of possession. Moreover, the names of defendants 2 and 3 have already been recorded as cultivating tenants by the competent authority. Now the civil Court cannot go into the question as to whether the entry made there is proper and correct. When once the defendants 2 and 3 are recorded as cultivating tenants, then the civil Court cannot grant the relief of recovery of possession, to the plaintiff also. At the same time, the defendants 2 and 3 claim that their possession is interfered with by the plaintiff and therefore filed a suit claiming relief of permanent injunction. In my view, so long as defendants 2 and 3 claimed to be cultivating tenants in the property, they are entitled to remain in possession unless and until they are evicted by following the due process of law. For the reasons stated above, both the Second Appeals fail and they are dismissed and the judgment and decree of the lower appellate Court are confirmed. However, there shall be no order as to costs.?
(iv) 1987 (3) SCC 146 [Ganpat Singh v. Kailash Shankar], wherein at paragraph 9, it has been held as follows:
?9. Section 47 itself has nothing to do with the question of limitation.
Article 136 prescribes a period of limitation of 12 years for the execution of a decree from the date on which the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making any payment or delivery in respect of which execution is sought, takes place. After a decree is put into execution within the period of limitation under
Article 136, questions relating to execution, discharge or satisfaction of the decree may arise and such questions including the question as to the delivery of possession shall be determined by the executing court. When a property is sold in execution of a decree, an application for setting aside the sale may be made under Rule 89, 90 or 91 of Order 21 of the Code of Civil Procedure by the persons and on grounds as mentioned therein. Such an application has also to be made within the prescribed period of limitation of sixty days from the date of sale under
Article 127 of the Limitation Act, 1963.
Article 134 prescribes a limitation of one year for an application for delivery of possession by a purchaser of immovable property at a sale in execution of a decree. The limitation of one year will be computed from the date the sale becomes absolute. Such an application for delivery of possession can be filed only after the decree is put into execution within the period of limitation as prescribed by
Article 136 of the Limitation Act. The periods of limitation prescribed by Articles 136 and 134 are for two different purposes, the former being for the execution of a decree for possession in respect of which decree is passed and the latter for an application for delivery or possession of immovable property which is purchased in the course of execution of a decree. The two articles have nothing in common for their operation and it is not readily understandable how the two articles stand in conflict with each other. An application for delivery of possession of immovable property purchased in execution cannot, by any stretch of imagination, be construed as an application for execution of a decree for possession of property so as to invoke the provision of
Article 136 of the Limitation Act. Merely because the auction-purchaser will be deemed to be a party in the suit in which the decree has been passed, as provided in clause (a) of Explanation II to Section 47 of the Code, and by virtue of clause (b) of Explanation II all questions relating to delivery of possession of the property shall be deemed to be questions relating to execution, discharge or satisfaction of the decree within the meaning of Section 47, an application for delivery of possession under Order 21 Rule 95 of the Code of Civil Procedure cannot be equated with an application for the execution of a decree for possession so as to apply 12 years? period of limitation as prescribed by
Article 136 of the Limitation Act.?
(v) 1999 (3) SCC 573 [Vidhyadhar v. Manikrao], wherein at paragraphs 17 & 18, it has been held as follows:
?17.Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh [AIR 1927 PC 230 : 32 CWN 119]. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh [AIR 1930 Lah 1 : ILR 11 Lah 142] and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh [AIR 1931 Bom 97 : 32 Bom LR 924]. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat [AIR 1970 MP 225 : 1970 MPLJ 586] also followed the Privy Council decision in Sardar Gurbakhsh Singh case [AIR 1927 PC 230 : 32 CWN 119]. The Allahabad High Court in Arjun Singh v. Virendra Nath [AIR 1971 All 29] held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand [AIR 1974 P & H 7] drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box.
18. Defendant 1 himself was not a party to the transaction of sale between Defendant 2 and the plaintiff. He himself had no personal knowledge of the terms settled between Defendant 2 and the plaintiff. The transaction was not settled in his presence nor was any payment made in his presence. Nor, for that matter, was he a scribe or marginal witness of that sale deed. Could, in this situation, Defendant 1 have raised a plea as to the validity of the sale deed on the ground of inadequacy of consideration or part-payment thereof? Defendant 2 alone, who was the executant of the sale deed, could have raised an objection as to the validity of the sale deed on the ground that it was without consideration or that the consideration paid to him was highly inadequate. But he, as pointed out earlier, admitted the claim of the plaintiff whose claim in the suit was based on the sale deed, executed by Defendant 2 in his favour. The property having been transferred to him, the plaintiff became entitled to all the reliefs which could have been claimed by Defendant 2 against Defendant 1 including redemption of the mortgaged property.?
15. Per contra, the learned counsel for the respondents/plaintiff submitted that;
(i) the plaintiff proved that Vairavan Chettiar purchased the property of Kalimuthu Asari in court auction sale and after death of Kalimuthu Asari, his legal heirs compromised the matter with Vairavan Chettiar and surrendered the suit property. The compromise and earlier surrender of the property was recorded in Ex.A.2;
(ii) By Ex.A.2, transfer of right in the suit property was not recorded and it was only a record of earlier transaction and it is not compulsorily registrable;
(iii) the contention of the learned counsel for the appellants/defendants that the court auction purchaser can take possession of the property purchased by him only through Court, is not acceptable. The auction purchaser can take possession of the property purchased out of Court also, when the judgment debtor or his legal heirs hand over the possession to him;
(iv) in the present case, the plaintiff had proved the auction sale, purchase and taking of possession by producing and marking Ex.A.2;
(v) the plaintiff had proved that she had acquired title by Ex.A.3, Sale Deed, dated 19.09.1982. The first defendant and other sharers have admitted the title of the plaintiff in Ex.A.6 - Sale Deed, dated 24.12.1983, executed in favour of R.Banumathi, W/o.Ragavendra Auditor, when a portion of the property belonging to them was sold to her. Having admitted the title of the plaintiff in Ex.A.6, it is not open to the defendants to dispute the title of the plaintiff as per Ex.A.3;
(vi) it is not in dispute that all the sons of Arunachala Asari inherited 1/7th share each in the properties. It is also not in dispute that the property in question was allotted to the share of Kalimuthu Asari. The first defendant claims that he purchased the property from the legal heirs of Kalimuthu Asari, whereas the plaintiff claims that the property was sold in court auction and the plaintiff purchased the same from court auction purchaser, which was admitted by the first defendant and other sharers in Ex.A.6;
(vii) the contention of the defendants that the plaintiff is not clear about the property and had not given proper description of the property, is without merits. There is no dispute with regard to the property, as both the first defendant and the plaintiff claim the property allotted to Kalimuthu Asari. Due to passage of time, there is change in the owners of the adjacent properties;
(viii) the learned first appellate Judge has given valid reasons for rejecting the contentions of the defendants with regard to wrong description of boundaries and extent;
(ix) Ex.A.2, being the record of past transaction, does not require any registration and it is admissible in evidence as per law; and
(x) the learned Trial Judge without properly appreciating the pleadings, evidence both oral and documentary, erroneously dismissed the suit. The reasoning of the learned Trial Judge is contrary to the facts and law. On the other hand, the learned first appellate Judge has appreciated all the materials on record in proper perspective and allowed the appeal. No substantial question of law arises in the second appeal.
16. The learned counsel for the respondents/plaintiff relied on the following judgements:
(i) 2006 (7) SCC 570 [T.Anjanappa and others Vs. Somalingappa and another], wherein at paragraph 12, it has been held as follows:
?12. 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. The principle of law is firmly established that 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 denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.?
(ii) AIR 1996 SC 869 [Dr.Mahesh Chand Sharma Vs. Smt.Raj Kumari Sharma and others], wherein at paragraph 36, it has been held as follows:
?36. In this connection, we may emphasise that a person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession. For all the above reasons, the plea of limitation put forward by the appellant, or by Defendants Nos.2 to 5 as the case may, be is rejected.?
(iii) AIR 2009 SC 103 [Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan and others], wherein at paragraph 18, it has been held as follows:
?18. ..... The Court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.?
(iv) AIR 2000 SC 1485 [Roop Singh (Dead) Through LRs. Vs. Ram Singh (Dead) Through LRs.], wherein at paragraph 7, it has been held as follows:
?7. .... Mere possession for a long time does not result in converting permissive possession into adverse possession. .....?
(v) 2008 (4) SCC 594 [Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs. and others], wherein at paragraph 13.1, it has been held as follows:
?13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.?
17. I have carefully perused all the materials available on record, the judgment and decree of the Courts below and considered the arguments advanced by the learned counsel appearing for the parties and the judgments relied on by the learned counsel for the appellants/defendants and the learned counsel for the respondents/plaintiff.
18. From the materials available on record, it is seen that the following facts are not disputed:
(i) Originally, Arunachala Asari was the owner of the properties and after his death, his 7 sons partitioned the properties and 1/7 share was allotted to each.
(ii) The property in question was allotted to the share of Kalimuthu Asari, one of the sons of Arunachala Asari.
(iii) Both the first defendant and the plaintiff claim that they have purchased the share of Kalimuthu Asari.
18.1. The dispute is that the first defendant claims that he purchased the property from the legal heirs of Kalimuthu Asari, while the plaintiff claims that the properties of Kalimuthu Asari was sold in court auction for mortgage due, after death of Kalimuthu Asari, his legal heirs surrendered the suit property to Vairavan Chettiar, the owner/court auction purchaser, as per court auction purchase and from him, the plaintiff purchased the property.
19. The defendants disputed that the purchase and title of the plaintiff on the ground that the auction purchaser did not take possession of the property through Court and he was never in possession of the property. The defendants claim that by Ex.A.2 title of the property was transferred and therefore, Ex.A.2 is not admissible in evidence for want of registration. The plaintiff had not proved that as per Exs.A.1 and A.2, Vairavan Chettiar became owner and he took possession of the suit property. In the circumstances, the sale in favour of the plaintiff as per Ex.A.3 is not valid and the plaintiff did not acquire any title. Even before Ex.A.3, the first defendant had purchased the property from the legal heirs of Kalimuthu Asari as per Ex.B.1. The said contention is untenable and unsustainable and is devoid of merits. The first defendant, the plaintiff and other sharers including D.Ws.1 and 2 have sold a portion of the property belonging to Arunachala Asari, inherited by his sons, through Ex.A.6 Sale Deed to one R.Banumathi. In the said Sale Deed, the purchase of the suit property by the plaintiff from Vairavan Chettiar through Ex.A.3, was admitted.
20. In Ex.A.6, D.Ws.1 and 2, who were vendors and Valliammai, W/o.Kalimuthu and Ponnusamy, the legal heirs of Kalimuthu Asari made endorsements in the sale deed. In Ex.A.6, it has been specifically mentioned that 1/7th share of Kalimuthu Asari was sold in Court auction and the plaintiff purchased the same subsequently from the Court auction purchaser. D.W.1 and D.W.2 are estopped from contending that the plaintiff did not acquire title or not in possession of the suit property.
21. In view of the said admission, the contention of the learned counsel for the appellants/defendants that the plaintiff did not acquire any title as per Ex.A.3, is without any merit. The learned first appellate Judge has considered all the facts in proper perspective and by giving valid reasons held that Vairavan Chettiar got possession of the property from the legal heirs of Kalimuthu Asari. The learned first appellate Judge has rightly held that the court auction purchaser can take possession of the property, purchased in court auction, out of Court also. There is no necessity to take possession only through Court. There is no error in the said finding.
22. The reasoning of the learned Trial Judge rejecting Exs.A.1 and A.2 are not valid. Ex.A.2 did not transfer title of the property. It records only past transaction and is not compulsorily registrable and is admissible in evidence. The learned first appellate Judge considered Exs.A.1 and A.2 in proper perspective and has given valid reason for accepting the same as valid documents. Similarly, as far as Ex.A.3 is concerned, the learned first appellate Judge considered Exs.A.1, A.2 and A.6 and rightly concluded that the plaintiff acquired title as per Ex.A.3.
23. The contention of the appellants/defendants that the plaintiff did not examine either the Scribe, Ponnusamy or witnesses to Ex.A.2 or Attestor or any independent witness to prove Ex.A.2, even though Ponnusamy is the relative of the plaintiff, has no merits. In view of Ex.A.6, the genuineness of Ex.A.2 is proved. It is pertinent to note that the first defendant has also did not examine Ponnusamy and Valliammai, the vendors in Ex.B.1. They are also relatives of the first defendant. The vendors of the first defendant did not have any right or interest or title to the suit property, when they sold the property to the first defendant by Ex.B.1 Sale Deed. The property was sold earlier in court auction and Ponnusamy and Valliammai had surrendered the possession to Vairavan Chettiar as evidenced by Ex.A.2. In view of Exs.A.1 and A.2, the first defendant had not acquired any title to the suit property by Ex.B.1 ? Sale deed.
24. The next contention of the learned counsel for the appellants/defendants that description of the property given in the schedule is not correct and the plaintiff is not clear as to the extent of the property claimed by her, has no force. There is no dispute with regard to the property claimed by the plaintiff. It is an admitted case that the plaintiff is seeking injunction in respect of the property allotted to the share of Kalimuthu Asari. The boundaries as given by the plaintiff have changed due to change of ownership of adjacent properties. Once the first defendant admits that the plaintiff is seeking injunction in respect of the property originally allotted to the share of Kalimuthu Asari, the discrepancies in the boundaries are not fatal to the claim of the plaintiff.
25. The plaintiff is seeking a decree of injunction against the defendants to restrain them from interfering with her peaceful possession and enjoyment of the suit properties. For the said relief, she has to prove her possession. Therefore, the suit as prayed and the relief sought for are valid. The first defendant is estopped from disputing the title of the plaintiff in view of his admission along with other sharers the title of the plaintiff, as per Ex.A.3.
26. There is no serious dispute with regard to title of the plaintiff and the plaintiff is in possession and enjoyment of the suit property from the date of purchase. In the circumstances, the suit for injunction is maintainable and there is no necessity for the plaintiff to file suit for declaration and injunction.
27. The defendants have not proved their title and possession to suit property. Even if they claim title by adverse possession, they have not alleged and proved their hostile possession for statutory period to the knowledge of the rightful owner.
28. The first defendant is not entitled to claim adverse possession. The first defendant has not pleaded adverse possession and has not stated that he is in possession, as owner, to the knowledge of rightful owner and his possession is hostile to the right of the plaintiff. It is pertinent to note that the plaintiff has paid property tax as evidenced by Exs.A.8 to A.15. These receipts relate for the period from 1991 onwards. The first defendant also filed Exs.B.4 to B.6, the property tax receipts. These receipts relate to the period prior to 1991. Hence, the first defendant had failed to prove that he is in possession of the suit property.
29. The right of Vairavan Chettiar, the Court auction purchaser, never extinguished and the legal heirs of Kalimuthu Asari surrendered possession to Vairavan Chettiar, who sold the property to the plaintiff. The title of Vairavan Chettiar was not an issue in the suit filed by the husband of the plaintiff in O.S.No.2 of 1969.
30. For the reasons stated above, the judgements relied on by the learned counsel for the appellants/defendants do not advance their case. The judgments relied on by the learned counsel for the respondents/plaintiff are applicable to the facts of the present case. In the circumstances, the substantial questions of law are answered against the defendants.
31. In the result, this second appeal is dismissed, confirming the judgment and decree of the first appellate Court, dated 22.10.2002, passed in A.S.No.34 of 2000, reversing the judgment and decree of the Trial Court, dated 13.01.2000, passed in O.S.No.73 of 1998. No costs.
To
1.The Additional District-cum-
Chief Judicial Magistrate, Sivagangai.
2.The Subordinate Judge, Devakottai.
3.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
.