IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :23.07.2010 CORAM: THE HONOURABLE MR. JUSTICE S.PALANIVELU A.S.No.1070 of 2009 and M.P.No.1 of 2009 1.K.Dharmalingam 2.S.Raja ...Appellants/Plaintiffs Vs 1.Pappathi 2.S.Prakash 3.R.Vijayalakshmi ... Respondents/Defendants Appeal filed under Section 96 of C.P.C. against the judgment and decree dated 25.02.2009 made in O.S.No.129 of 2007 on the file of the Additional District Court cum Fast Track Court-1, Erode. For Appellant : Mr.S.Partha Sarathy Senior Counsel for Mr.V.P.Sengottuvel For R.1 & R.2 : Mr.N.Manokaran for Mr.R.Marudhachala Murthy ****** JUDGMENT This appeal has been preferred against the judgment and decree dated 25.02.2009 made in O.S.No.129 of 2007 on the file of the Additional District Court cum Fast Track Court-1, Erode. 2. The following are the averments in the plaint succinctly stated: 2.1. The suit properties originally belonged to one V.M.Nachimuthu as his ancestral properties. One Elayammal was his wife and they had one daughter by name Eswari and one son by name Durai @ Selvaraj. The daughter Eswari got married to Kandasamy and they had one daughter by name Vijayalakshmi, the third defendant and one son by name Dharmalingam, the first plaintiff. The said Durai @ https://hcservices.ecourts.gov.in/hcservices/ Selvaraj married to Pappathi, the first defendant and they had two sons, the first son is Raja, the second plaintiff and the second son is S.Prakash, the second defendant. 2.2. The said Durai @ Selvaraj died on 29.04.1982. Till his death, the entire suit properties were in the possession and enjoyment of his father, namely, V.M.Nachimuthu. Even after the death of his son, Durai @ Selvaraj, his father refused to give any share in the suit properties to his daughter-in-law Pappathi and his two grand sons, who were minors at that time. Therefore, Pappathi filed a suit in O.S.No.274 of 1982 on the file of the Sub-ordinate Judge, Erode for partition and separate possession. 2.3. After contest, on 04.04.1984, a preliminary decree was passed in the said suit. But the plaintiffs in the said suit neither applied for nor obtained any final decree in that suit, on account of which, V.M.Nachimuthu alone continued to remain in possession and enjoyment of the entire suit properties till his death. After his death, his wife Elayammal got possession of the entire suit properties and since then, she continued to remain in possession and enjoyment of the same as the absolute owner thereof. Infact, Elayammal herself obtained a supplemental preliminary decree on 29.11.1993 in I.A.No.304 of 1989 in O.S.No.274 of 1982 in the Court of the Subordinate Judge, Erode. After the death of her daughter and her son-in-law, their children had become the legal heirs, namely, one Vijayalakshmi, the third defendant and Dharmalingam, the first plaintiff. 2.4. In the above background, Elayammal continued to remain in possession and enjoyment of the entire suit properties as the absolute owner for more than statutory period of 12 years and had been continuously remitting the house taxes and electricity consumption charges. While so, Elayammal obtained the custody of her grand son, the second plaintiff, namely, Raja. He was brought up by Elayammal and after her death, she executed a registered Will dated 22.12.2006 in favour of plaintiffs. They had become the absolute owners of the entire suit properties. The plaintiffs therefore file this suit for declaration that they are the absolute owners of the suit properties and for a permanent injunction restraining the defendants 1 & 2 and their agents and men from trespassing into the suit properties and from causing any obstructions to their peaceful possession and enjoyment. 3. In the written statement filed by the first defendant, the following allegations are available:- 3.1. The relationships of the parties as mentioned in the plaint are admitted by the first defendant. The https://hcservices.ecourts.gov.in/hcservices/ defendant submits that even after the death of her husband, his father-in-law, V.M.Nachimuthu refused to give any share in the suit property to her and her two grand sons, namely, Raja and Prakesh, who were minors at that time. It is admitted that this defendant along with second defendant and second plaintiff filed the suit in O.S.No.274 of 1982 in the Court of the Subordinate Judge of Erode, seeking relief of partition and delivery of separate possession of their lawful share in the suit properties and after due trial, a preliminary decree was passed on 04.04.1984. It is denied that the said V.M.Nachimuthu alone continued to remain in possession and enjoyment of the entire suit properties till his death on 28.01.1998. 3.2. The allegations that by open, continuous and uninterrupted possession and enjoyment of the shares of the defendants 1 to 3 and the first plaintiff in the suit properties with necessary animus for more than statutory period of twelve years Elayammal had perfected her right and title over the entire suit properties by ouster and adverse possession are false and also against the will laid principles of law of joint possession. The first defendant submits that the deceased Elayammal was in possession of the suit property as one of the co-sharers of the suit properties and not as the absolute owner of the suit properties. 3.3. After the preliminary decree, the differences between the defendant and Elayammal were sorted out and that is why, this defendant did not take any further steps in the partition suit in O.S.No.274 of 1982. Therefore, Elayammal had not filed any appeal against the decree and judgment passed in O.S.No.274 of 1982. The first plaintiff with a view to grab the valuable share of the defendants in the suit property, filed this vexatious suit. Therefore, the suit may be dismissed with costs. 4. On scrutiny of pleadings and evidence and documents, the learned Fast Track Judge No.1, Erode, dismissed the suit without costs. Hence, the defeated plaintiffs in the suit are before this Court. 5. The following points have arisen for consideration in this appeal. (i) What is the nature of interregnum period between the passing of preliminary decree and final decree? (ii) Whether co-owner who had been in continuous and exclusive possession of the family properties already covered by the partition suit, after the passing of https://hcservices.ecourts.gov.in/hcservices/ preliminary decree till the passing of final decree, prescribed title by adverse possession? (iii) Whether the wills Ex.A.67 and Ex.B.1 are binding upon the respondents? Points No.1 & 2 6. The following is the genealogical table indicating the relationships of the parties. V.M.Nachimuthu Wife Elayammal Eswari Durai @ Selvaraj Husband Wife Kandasamy Pappathi D1 Vijalakshmi Dharmalingam Raja Prakash D3 P1 P2 D2 7. The first respondent filed a suit for partition in O.S.No.274 of 1982 on the file of the First Additional Sub-Judge, Erode for herself and on behalf of her two sons claiming 11/24 share in the family properties which are also the suit properties herein. Elayammal and other third parties Subramany and Vasu were arrayed as defendants on 04.08.1984. The Court passed the preliminary decree for partition entertaining the prayer of the plaintiffs in the suit. Thereafter, there had been no appeal nor the first respondent herein had taken any steps to file petition for passing final decree. It is the allegation in the plaint that even after the passing of the preliminary decree, Elayammal after the death of V.M.Nachimuthu had been in exclusive possession and continued to be enjoying the properties. She also obtained a supplemental preliminary decree on 29.11.1993 in I.A.No.304 of 1989 from the above said Court. Her daughter Eswari died in 1984 and the husband of Eswari pre-deceased her in 1972. The supplemental preliminary decree is Ex.B.3 and copy of the preliminary decree is Ex.A.74 respectively. The supplemental preliminary decree is to the effect that out of 24 shares shall be alloted to Dharmalingam, the present first appellant on his payment of Court fee for his share. On the death of Nachimuthu, his share of 4/24 shall go to Dharmalingam the first appellant and third https://hcservices.ecourts.gov.in/hcservices/ respondent at 2/24 each. By means of passing of supplemental preliminary decree, there had been no change in the status of Elayammal with respect to joint ownership. The above said Court proceedings would amply indicate that Elayammal had been in joint possession of the property and she never enjoyed the property exclusively. 8. In the plaint, it has also been pleaded that Elayammal by virtue of her continuous and exclusive possession for over statutory period has prescribed title by adverse possession. The preliminary decree was passed in the suit on 29.11.1993 and the suit has been laid in the year 2007. Hence, it is claimed that for over 12 years she had been in possession of the suit properties absolutely. 9. The learned Senior Counsel Mr.S.Parthasaraty appearing for the appellants would contend that since Elayammal had been in possession and enjoyment of the properties for a long over a statutory period, she has to be held to have acquired title by adverse possession. He placed reliance upon a decision of the Calcutta High Court reported in AIR 1981 Calcutta 9, Mahadev Vs Basudev, wherein it is decided that the question as to onus of proof is not important and Court has to decide the suit on the basis of materials available. To show that Elayammal had been in exclusive possession of the properties, the appellants have produced umpteen number of documents from Ex.A.1 to A.66 which are patta, property tax notice, electricity receipts, property tax receipts, water tax receipts, property tax, demand notice, the rough sketch issued by the revenue department and the sanction order for construction of a building issued by Veerappan Chatram Town Panchayat standing in the name of V.M.Nachimuthu and Elayammal. By producing those documents, the appellants contend that the above said voluminous records would clearly establish that Elayammal had been in absolute possession of the suit properties and the respondents did not take any steps to have joint possession of the properties and it should be deemed that they have been ousted by Elayammal. 10. The learned counsel for the respondents Mr.N.Manokaran would contend that the possession of the co-owner, however long, will not make him as an absolute owner and mere possession even for a long time could never be construed as exclusive and uninterrupted possession and that the joint ownership would continue till the passing of final decree. He garnered support from the following decisions for the said settled principles:- https://hcservices.ecourts.gov.in/hcservices/ (i)AIR 1995 S.C.895, Annasaheb Bapusaheb Patil Vs. Balwant Babusaheb Patil. (ii)2007 (3) CTC691, M.Durai Vs. Madhu (iii)(2009) 12 SCC 310, Bonder Vs. Hem Singh (iv)(2007) 1 MLJ 394, Subbathal Vs. Arunachala Gounder. 11. In the above-said decisions, it has been held that adverse possession really means hostile possession, possession proved must be adequate in continuity in publicity and in extent sofar to show that it is adverse to the true owner and the possession in denial of true owner's title must be peaceful, open and continuous and burden of proof to establish that one had perfected his title by remaining his possession would be on him and that mere mutation of the name of the revenue records would not establish exclusive possession and that there shall be animus possidendi, that is, intention to possess. 12. When the above said principles are followed, it has to be held that if a person who has been in continuous, uninterrupted exclusive and unobjectionable possession for over statutory period would prescribe title by adverse possession, provided such possession shall be prior to the filing of the suit. It is incumbent upon him to show that there was no interruption for his exclusive possession for over statutory period. 13. But as far as the facts of the present case are concerned, the pleading in the plaint is to the effect that after the preliminary decree was passed Elayammal had been in exclusive possession. It is well settled that after the passing of the preliminary decree in a partition suit, till the final decree was passed, the suit has to be deemed to have been pending, and whatever be the time taken for filing the petition for passing of final decree by the parties concerned. 14. In the considered view of this Court, the suit has to be treated to have been pending from the date of passing of preliminary decree till the date of passing of final decree. In the preliminary decree, the rights of the parties to the partition suit are ascertained and the status of joint ownership of the parties would remain intact till the passing of final decree which would lead to the actual division of the properties among the co-owners. If any of the parties to the suit, whose legal status is co-owner in the properties, claims to have been in exclusive possession and enjoyment of the properties, it has to be considered that such possession is being held during pendency of the suit and the plea of prescription of title by adverse possession is not at all available to him. His exclusive possession however long will not clothe him with the right of ownership by adverse possession as against the https://hcservices.ecourts.gov.in/hcservices/ other co-owners who would be still having the joint ownership in the properties till the actual division of the properties. It is contended that Elayammal prescribed title by adverse possession on account of her exclusive possession in the suit properties after passing of preliminary decree. Like other sharers, she had also been in possession as co-sharer and she has to be treated as trustee of the properties on behalf of the other co-sharers. 15. By no stretch of imagination, she could be termed to be an absolute owner of the properties. At the time of filing of this suit, no body had filed petition for passing final decree, but in the year 2008, the first respondent has filed a petition under Order 27 Rules 13 and 14 Section 151 CPC for passing of final decree in I.A.No.868 of 2008 in O.S.No.274 of 1982 which is pending. The present suit has been filed during the interregnum period between the stages of preliminary decree and final decree in a suit for partition. The partition suit filed in the year 1982, is deemed to have been pending in the interregnum period between the passing of preliminary decree and final decree. Hence, there could be no pleading that Elayammal prescribed title by adverse possession in the suit properties during the intervening period since both the parties in the earlier partition suit continue to be the co-owners in the suit properties. The points 1 and 2 are answered as indicated above. 16. Elayammal, on 26.12.2006, had executed a Registered Will under Ex.A67 in favour of the first and second appellants. Earlier on 17.12.1997, she had executed a Will under Ex.B1 bequeathing her rights in favour of the second appellant. It is contended on behalf of the respondents that the Wills are not genuine and that without cancelling the earlier Will Ex.B1 the subsequent Will was executed and hence, Ex.A67 is not valid. Attesting witness P.W.3 and Ex.A67 will has been examined to prove the execution of the Will. Even if the execution of both the Wills are deemed to have been proved, still Elayammal in both the wills had mentioned that she was bequeathing the rights in her share in the properties in favour of the legatees. Hence, even if the wills are taken into consideration, it will not affect the shares of the respondents. At the most, the legatees under the Will can get her rights. I answer this point as indicated above. 17. In view of the above said findings rendered in points No.1 to 3, it is held that the present suit for declaration and permanent injunction does not lie since all the parties are continuing to remain in the suit properties as co-owners. The final decree in the partition suit is yet to be passed. The appellants are not entitled for the relief claimed in the plaint. This Court does not find any infirmity in the judgment challenged before this Court. It deserves to be confirmed and it is accordingly confirmed. The https://hcservices.ecourts.gov.in/hcservices/ appeal has to fail. In the result, the appeal is dismissed. Consequently, connected miscellaneous petition is closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssm To The Additional District Judge cum Fast Track Court-1, Erode. +1cc to Mr.V.P.Sengottuvel, Advocate Sr 53467 +1cc to Mr.R.Marudhachala Murthy, Advocate Sr 53709 NG(CO) km/27.8. A.S.No.1070 of 2009 https://hcservices.ecourts.gov.in/hcservices/