IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 27.09.2011 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.No.894 of 2011 Govindammal .. Appellant/Plaintiff Vs. 1.Maharani 2.Vellaiyammal .. Respondents 1 and 2/ Defendants 1 and 2 3. P.Palanisamy 4. Sekar .. Respondents 3 and 4 / Defendants 3 and 4 Prayer:- Second Appeal filed under Section 100 of Code of Civil Procedure against the judgment and decree dated 12.8.2010 made in A.S.No.117 of 2009 on the file of the I Additional Subordinate Court, Salem, reversing the judgement and decree in O.S.No.487 of 2007, dated 14.10.2009 on the file of the Principal District Munsif Court, Salem. For Appellant .. Mr.I.C. Vasudevan for Mr. R.Nalliyappan J U D G E M E N T The plaintiff in O.S.No.487 of 2007 on the file of the Principal District Munsif Court, Salem, is the appellant. 2. The appellant/ plaintiff filed the suit for declaration that the sale deed dated 10.9.1980 executed by Valliammal on behalf of the defendants 3 and 4 who are minors at the time of sale deed is void ab-initio and also not binding on the plaintiff and consequentially for permanent injunction. 3. The case of the plaintiff/ appellant was that the suit property originally belonged to her husband Perumal and the defendants 3 and 4 are her sons born through Perumal. The plaintiff's husband Perumal purchased the suit property under a registered sale deed dated 5.7.1978 and subsequently he died leaving behind the plaintiff, the defendants 3 and 4 and Valliammal. In the year 1980, the plaintiff went to North India for eking out her livelihood and the defendants 3 and 4 were in the custody of the grand monther Valliammal and taking advantage https://hcservices.ecourts.gov.in/hcservices/ of the absence of plaintiff, the grand mother Valliammal as the guardian of the minors namely the defendants 3 and 4 sold the property under the sale deed dated 10.9.1980 in favour of one Ramalingam whose wives are the defendants 1 and 2. The plaintiff returned to her native place and she came to know about the same and her possession was also sought to be disturbed by the defendants 1 and 2 and therefore she filed the suit for declaration and injunction as stated above. 4. The defendants 1 and 2 contested the suit stating that the sale deed was validly executed by the grand mother Valliammal under whose custody the defendants 3 and 4 were living and the plaintiff went away from the family and therefore it is not open to the plaintiff to challenge the sale deed executed by the grand mother Valliammal as the guardian of minors who are now arrayed as defendants 3 and 4. Further, the defendants 3 and 4 after attaining majority did not question the sale deed and therefore the sale deed was accepted by the defendants 3 and 4 and the plaintiff is not entitled to the relief prayed for. 5. The 3rd defendant filed the statement admitting the case of the plaintiff and prayed for passing a decree in favour of the plaintiff. 6. The 1st defendant also filed additional written statement stating that they are in possession of the property after the sale in favour of the husband and also perfected title by adverse possession. 7. The trial Court partly decreed the suit holding that the plaintiff is entitled to 1/3rd share in the suit property and therefore the sale is not binding in respect of the plaintiff's 1/3rd share and dismissed the suit in other aspects. The trial Court also held that the defendants 1 and 2 failed to prove that they have perfected title by adverse possession. Aggrieved by the same, the defendants 1 and 2 filed the appeal and the first appellate Court reversed the finding of the trial Court and held that the defendants 1 and 2 have perfected title by adverse possession and the plaintiff is not entitled to challenge the sale deed as the same was executed by the grand mother as the guardian of minors who were in her custody and the minors also did not challenge the sale deed after attaining the majority. The lower appellate Court allowed the appeal and set aside the Judgement and Decree of the trial Court. Hence the Second Appeal. 8. The learned counsel for the appellant submitted that the lower appellate Court erred in holding that the defendants 1 and 2 perfected title by adverse possession inasmuch as they are claiming title under the sale deed executed by the grand mother for herself and on behalf of the minor children namely the defendants 3 and 4 and even according to the plaintiff/ appellant the grand mother and the defendants 3 and 4 are https://hcservices.ecourts.gov.in/hcservices/ entitled 1/4th share each and therefore by virtue of the purchase the defendants 1 and 2 became the owner only 3/4th share in the suit property and therefore they cannot claim adverse possession in respect of the remaining extent of property against the plaintiff/ appellant who is admittedly entitled to 1/4th share in the property. He therefore contended that the trial Court was not correct in holding that the plaintiff/ appellant is entitled to 1/3rd share, as the class one heir along with Valliammal and defendants 3 and 4, the plaintiff/ appellant is entitled to 1/4th share in the suit property and to that extent the lower appellate Court ought to have modified the decree of the trial Court. 9. I am unable to accept the contention of the learned counsel for the appellant. Admittedly, the appellant has not prayed for declaration of her share in the suit property and she specifically prayed for declaration that the sale deed dated 10.9.1980 executed by Valliammal in favour of one Ramalingam the husband of defendants 1 and 2 was void ab-initio and not binding on the plaintiff/ appellant. As stated supra, admittedly, Perumal is the owner of the property and he died intestate leaving behind his mother Valliammal, his widow the plaintiff and two minor children the defendants 3 and 4. It is the specific case of the defendants 3 and 4 that the plaintiff left the family immediately after the death of her husband and it is the case of the appellant / plaintiff that she went to North India to eke out her livelihood and she came to her native village after some years ago. It is also admitted that Valliammal was looking after the minor children and she sold the property for herself and on behalf of the minor children to the husband of defendants 1 and 2 namely the respondents 1 and 2 under a registered sale deed dated 10.9.1980. Under the said sale deed dated 10.9.1980 Valliammal sold the entire property and she did not reserve that the plaintiff is entitled to 1/3rd share in the property. It is also not in dispute that the defendants 3 and 4 did not challenge the sale deed by their grand mother after attaining majority and till date the sale by the grand mother was not challenged by the defendants 3 and 4. Therefore, from the date of sale Ramalingam was enjoying the property and thereafter by his two wives namely the defendants 1 and 2 are enjoying the property and the plaintiff did not make any claim till she filed the suit. Therefore, the lower appellate Court has rightly held that the defendants 1 and 2 perfected title by adverse possession. No dobut, it is true that the co-owner cannot claim adverse possession against another co-owner as contended by the learned counsel for the appellant. But having regard to the fact that the entire property was sold under the sale deed dated 10.9.1980 by the grand mother and the defendants 1 and 2 are enjoying the property to the knowledge of the persons who are entitled to question the same and therefore the lower appellate Court is right in holding that the defendants 1 and 2 perfected title by adverse possession and the Hon'ble Supreme Court also in the Judgement reported in 2009 (13) Supreme Courts Cases 229 https://hcservices.ecourts.gov.in/hcservices/ (L.N.Aswathama and another v. P.Prakash) held as follows: " The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/ actual, exclusive, open uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence. (Vide P.Periasami v. P.Periathambi (1995 (6) SCC 523, Md. Mohammad Ali v. Jagadish Kalita (2004 (1) SCC 271, and P.T.Munichikkanna Reddy v. Revamma (2007 (6) SCC 59). In this case he was in possession as a tenant under Gowramma from 1962 and he became the owner by purchasing the plot from Gowramma in 1985. He alternatively contended that if Gowramma did not have title and consequently his claim based on title was rejected, then having regard to the fact that he had been in possession by setting up title in Gowramma and later in himself, his possession was hostile to the true owner; and if he was able to make out such hostile possession continued for more than 12 years, he could claim to have perfected his title by adverse possession. There is considerable force in the contention of the defendant provided he is able to establish adverse possession for more than 12 years. When a person is in possession asserting to be the owner, even if he fails to establish his title, his possession would still be adverse to the true owner. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative pleas available on the same facts. Therefore, the contention of the plaintiffs that the plea of adverse possession is not available to the defendant is rejected. " 10. In the present case also the respondents 1 and 2 claimed that they purchased the entire property under sale deed dated 10.9.1980 from the vendors. They did not admit the title of the plaintiff/ appellant. Even assuming that the plaintiff is entitled to 1/4th share in the suit property as the respondents 1 and 2 are in possession of the property and claiming title on themselves their possession became hostile to the true owner namely the plaintiff/ appellant and they continue to enjoy the property for more than 20 years and therefore they have perfected title by adverse possession. Hence, the right of the plaintiff is also lost. https://hcservices.ecourts.gov.in/hcservices/ 11. Further, the plaintiff only prayed for declaration that the sale deed is void ab-initio and not binding on her and she has not asked for any declaration that she is entitled to any share in the property or for partition. Hence, the lower appellate Court has rightly allowed the appeal and dismissed the suit, having regard to the prayer prayed for and as the plaintiff has also lost her right in the suit property she is also not entitled to claim any share in the suit property. Unfortunately, the trial Court without appreciating these facts held that the plaintiff is entitled to 1/3rd share in the property and the sale is not binding in respect of 1/3rd share. Hence, I do not find any infirmity to interfere with the Judgement and Decree of the lower appellate Court and no substantial question of law arises for consideration in the Second Appeal and the Second Appeal is dismissed. 12. In the result, the Judgement and Decree of the lower appellate Court are confirmed and the Second Appeal is dismissed. No costs. kr Sd/- Deputy Registrar //True Copy// Sub Asst. Registrar To 1.The I Additional Subordinate Judge, Salem. 2. The Principal District Munsif, Salem. + 1 cc to the Mr. R. Nalliyappan, Advocate SR No.60253 MS(CO) SR/11.11.2011 S.A.No.894 of 2011 https://hcservices.ecourts.gov.in/hcservices/