IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 22.6.2010 Coram: THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.722 of 2007 1. J.Doss 2. Mariammal 3. Ramesh 4. Mazhalai Selvi 5. Rajambal. R. 6. Vimaladevi.R 7. R.Vijayalakshmi 8. R.Sathya 9. R.Dhachayani 10.R.Sakthivel .. Appellants/Defendants 5,6, 8&9 vs. Rukmangadhan .. Respondent/Plaintiff The Second Appeal has been filed against the judgment and decree, dated 19.7.2005, passed by the Subordinate Judge, Poonamallee, in A.S.No.38 of 2004, confirming the judgment and decree, dated 30.9.2002, passed by the District Munsif, Poonamallee, in O.S.No.825 of 1983. For Appellants : Mr.K.S.Gnanasambandan For Respondent : Mr.V.Lakshminarayanan J U D G E M E N T The second appeal has been filed against the judgment and decree, dated 19.7.2005, passed by the Subordinate Judge, Poonamallee, in A.S.No.38 of 2004, confirming the judgment and decree, dated 30.9.2002, passed by the District Munsif Court, Poonamallee, in O.S.No.825 of 1983. 2. The present second appeal has been filed by the defendants 5,6,8 and 9 in the suit and the legal heirs of one Mahalingam, the third appellant, in A.S.No.38 of 2004, on the file of the Subordinate https://hcservices.ecourts.gov.in/hcservices/ Court, Poonamallee. The respondent had filed the suit, in O.S.No.825 of 1983, on the file of the District Munsif Court, Poonamallee, praying for a decree and judgment directing the defendants 2 to 5 therein to deliver possession of the suit property to the plaintiff and for costs. 3. The trial Court, by its judgment and decree, dated 30.9.2002, had directed the defendants in the suit to handover possession of the suit schedule property to the plaintiff, within a period of three months. The defendants, had filed an appeal before the Subordinate Court, Poonamallee, in A.S.No.38 of 2004, challenging the judgment and decree of the trial Court, dated 30.9.2002, made in O.S.No.825 of 1983. The first appellate Court, by its judgment and decree, dated 19.7.2005, made in A.S.No.38 of 2004, had dismissed the appeal, confirming the judgment and decree of the trial Court. The plaintiff in the suit, who is the sole respondent in the present second appeal, had claimed that the house and the ground, described in the suit schedule, is the ancestral property of his father, Dharmalinga Naicker and his brothers Arumuga Naicker and Vaidyalinga Naicker, who are the sons of one Subramanya Naicker of Chikkarayapuram. 4. It had also been stated that Vaidyalinga Naicker had sold his undivided 1/3rd share of the suit schedule property, by executing a registered sale deed, dated 15.6.1948, in favour of his brother Dharmalinga Naicker, in order to discharge his debts incurred by him for his daughter’s marriage. Accordingly, Dharmalinga Naicker had become the owner of the undivided 2/3rd share in the suit schedule property. Since, Vaidyalinga Naicker and Arumuga Naicker had died issueless and as their wives had predeceased them, the 1/3rd share of Arumuga Naicker in the suit schedule property had been inherited by Dharmalinga Naicker. Thus, Dharmalinga Naicker became the owner of the entire suit property. 5. It had also been stated that since, Dharmalinga Naicker wanted to perform his daughter’s marriage, he had approached the first defendant for borrowing an amount of Rs.3,250/-. The first defendant had insisted that the suit property, belonging to Dharmalinga Naicker, should be given to him for his possession and enjoyment till the money was repaid. As such, the first defendant did not have any other right or interest in respect of the said property. while so, Dharmalinga Naicker had died. The plaintiff is one of the sons of the deceased Dharmalinga Naicker and as such, he is entitled to the share in the suit schedule property, as per the Hindu Law. Since, the plaintiff had required the suit property, including the residential house, for his own use and occupation, he had asked the first defendant to deliver vacant possession of the suit property. Since, the first defendant had not acceded to the request of the https://hcservices.ecourts.gov.in/hcservices/ plaintiff he had filed the suit for delivery of possession of the suit property, in O.S.No.825 of 1983, on the file of the District Munsif Court, Poonamallee. 6. In the written statement filed by the defendant, Jayarama Naicker the claims made by the plaintiffs had been denied. The defendant had stated that the plaintiff’s father, Dharmalinga Naicker, in order to meet the expenses of his daughter’s marriage, had agreed to sell the suit property and had sold the same to the defendant, by way of a sale deed, dated 29.3.1975. The defendant had never agreed for a mortgage, as claimed by the plaintiff. Pursuant to the agreement of sale, the defendant had taken possession of the suit property. The defendant had made many improvements in the suit property by spending a lot of money. In such circumstances, the claim of the plaintiff for handing over the vacant possession of the suit property does not arise. Further, as the sale of the suit property was made, on 29.3.1975, and as the suit had not been filed within a period of three years from the date of the said document, it is time barred. 7. During the pendency of the suit, Jayarama Naicker had died and his legal heirs had been brought on record. 8. The trial Court had framed the following issues for consideration:- "1. Whether the plaintiff is entitled to vacant possession of the suit property? 2. Whether the father of the plaintiff had sold the suit property to the defendant, on 29.3.1975? 3. What other reliefs the plaintiff is entitled to?" 9. The trial Court had found that the sale deed, said to have been executed in respect of the suit property, on 29.3.1975, was an unregistered document, which cannot be considered for the purpose of proving the sale of the said property in favour of the deceased first defendant, Jayarama Naicker. Therefore, the trial Court had come to the conclusion that the claim of the deceased first defendant, that the suit property had been sold to him, cannot be accepted. Further, the trial Court had directed the plaintiff to pay to the first defendant a sum of Rs.3,250/-, which is the amount said to have been borrowed from him. It was also noted that the suit property had belonged to the plaintiff’s father, Dharmalinga Naicker and that the plaintiff was entitled to a share in the said property. Since, the https://hcservices.ecourts.gov.in/hcservices/ defendants 2 to 9 were was in possession of the suit property, they were directed to hand over vacant possession of the said property, to the plaintiff, as prayed for in the suit. 10. In the appeal filed by the surviving defendants against the judgment and decree of the trial Court, dated 30.9.2002, the appellate Court had framed the following points for consideration:- "1. Whether the judgment and decree of the District Munsif Court, Poonamallee, dated 30.9.2002, made in O.S.No.825 of 1983, is correct? 2. What relief the appellants are entitled to in the appeal?" 11. The appellants in the second appeal had claimed that the trial Court had not considered the fact that they had been in possession of the suit schedule property for more than 12 years and as such, they had become the owners of the suit property, by way of adverse possession. It had also been stated that the trial Court had erred in not considering the fact that the defendants had purchased the suit property from the plaintiff’s father, by way of a sale deed, dated 29.3.1975, marked as Exhibit B.8. Further, the trial Court had failed to take into consideration the claim of the appellants that the suit is barred by limitation. As the suit ought to have been redeemed by the plaintiff, within a period of three years, if it is said to be a mortgage. The first appellate Court had rejected the claims made by the appellants, confirming the judgment and decree of the trial Court, dated 30.9.2002. In such circumstances, the appellants in the first appeal, had filed the present second appeal before this Court challenging the judgment and decree of the first appellate Court, dated 19.7.2005, made in A.S.No.38 of 2004. 12. The second appeal had been filed raising the following questions, as substantial questions of law:- "1. Whether a mere oral evidence would be a proof or a substitute for a mortgage without any iota of documentary evidence? 2. Could a mortgagor will keep quiet for a long time without attempting to redeem the mortgage at the earliest if he had really any interest in the suit property? 3. Could the production of the sale deed from the respondent plaintiff would alter the contents of the document and disprove the case of the appellant? https://hcservices.ecourts.gov.in/hcservices/ 4. Could a real owner will keep silent even after the substantial improvement made on the mortgage property by the mortgagee?" 13. The following additional substantial questions of law had also been raised by the appellants by way of a miscellaneous petition, in M.P.No.1 of 2010, dated 15.6.2010, which are as follows: "a) Could not the unregistered sale deed be looked into for the purpose of ascertaining the nature of transaction? b) In the absence of a redemption suit or a counter claim are the Courts below right in directing the respondent to deposit a sum of Rs.3,250/- and could this deposit take away the rights of the appellant and is the deposit binding. c) He is not O.S.No.825 of 1983 filed by the respondent is barred by time as Art.65 is not applicable to this case and only the period of limitation under Art.113 is applicable. d) Having acted upon the unregistered sale deed and enjoyed the benefits of the same he is not the respondent estopped from contending that the sale deed is invalid and still he continues to be real owner of the property. e) As the right of the respondent stands extinguished on the date of the expiry of limitation could be claim possession alone without a suit for declaration." 14. The learned counsel appearing on behalf of the appellants had submitted that even if the transaction between the plaintiff’s father, Dharmalinga Naicker and the deceased Jayarama Naicker is considered to be a mortgage, the plaintiff could have filed only a suit for redemption and as such, the plaintiff could not have filed the suit for recovery of possession of the suit schedule property. The appellants have been in peaceful possession of the suit schedule property, based on the unregistered sale deed, dated 29.3.1975. The plaintiff had filed the suit, belatedly, only on 16.4.1983. As such, the suit is barred by limitation, as it has not been filed within three years from the date of the execution of the sale deed. The appellant had been put in possession by the plaintiff’s father, Dharmalinga Naicker and therefore, the appellant cannot be taken to be an intermeddler or a trespasser and that the appellant is continuing to be in lawful possession of the property in question. As such, under the provisions of the specific relief Act, the suit should have been filed within a period of six months, from the time when the cause of action of the suit had arisen. https://hcservices.ecourts.gov.in/hcservices/ 15. The learned counsel had also stated that no document had been filed by the respondent/plaintiff to show that the appellants had been put in possession of the property, pursuant to a mortgage deed. Since, the suit had been filed after a period of nearly eight years from the date of the alleged cause of auction, it is beyond the period prescribed by the law of limitation. Hence, it is time barred. 16. The learned counsel had also stated that the Courts below had not addressed the question relating to the substantial right of the appellants when they are in lawful possession of the property in question, for a long period of time, without any disturbance to their peaceful possession and occupation of the property concerned. 17. The learned counsel had also stated that the Courts below had failed to see that the claim of the respondent, that the property in question is in the hands of the appellants as a mortgagee, had not been substantiated by the respondent, by way of sufficient evidence. While so, it is erroneous to deny the claim of the appellants, with regard to the possession of the property, pursuant to the sale deed, dated 29.3.1975. If the property had been mortgaged by the respondent, it would have been redeemed by him at the earliest possible time. Even otherwise, the appellants had perfected title in respect of the suit property, by way of adverse possession. 18. The learned counsel for the appellants had submitted that the unregistered sale deed, dated 29.3.1975, having been acted upon by both the parties, the respondent is estopped from contesting the execution and the validity of the said sale deed. It has also been stated that, after the suit property had been handed over, the appellants’ father had put up a new structure in the said property and had also improved the said property, by spending more than Rs.20,000/-. He had paid the property tax and had also obtained electricity service connection. The respondent had not raised any objection, while such activities were being carried on. The respondent had been keeping quiet for a period of more than 8 years before filing the suit, in O.S.No.825 of 1983, in the year 1983. 19. The learned counsel appearing on behalf of the appellants had also stated that no document had been filed on behalf of the respondent to prove the mortgage. The suit filed by the respondent, in O.S.No.825 of 1983, is only for possession and not for redemption. Therefore, the order of the trial Court, to deposit a sum of Rs.3,250/- into Court, was erroneous. In the written statement filed on behalf of the appellants, in the suit, in O.S.No.825 of 1983, no claim for money had been made. The trial Court has no power to treat the suit for possession as a suit for redemption of mortgage. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the decree passed by the trial Court, in the suit, in O.S.No.825 of 1983, is a nullity. 20. It had also been stated that though the sale deed, dated 29.3.1975, was an unregistered document, it had been impounded and a penalty had been paid and it had been marked as an Exhibit before the trial Court. In the order passed by the High Court in the revision petition, in C.R.P.No.1068 of 1997, it had not been stated that the unregistered sale deed cannot be looked into for collateral purposes. As such, the said sale deed, can be looked into to ascertain the nature of the transaction. Further, the sale deed is binding on the parties, who had acted upon the same. In such circumstances, the respondent cannot be deemed to be the owner of the suit property after the sale deed, dated 29.3.1975, had been executed. Further, the respondent/plaintiff ought to have instituted a suit for possession, within three years from 29.3.1975. The suit filed by the respondent in the year 1983, in O.S.No.825 of 1983, is barred by limitation. Article 65 of the Limitation Act, is not applicable to the present case. The respondent cannot take advantage of the non registration of the sale deed, especially, when he had acted upon the same. Since the other executants of the sale deed had not been joined as parties to the suit, the suit filed by the respondent is bad for non joinder of necessary parties. 21. The learned counsel appearing for the appellants had relied on the following decisions in support of his contentions:- 21.1. In RANGULAL RAM Vs. MAKHAN LAL (A.I.R.(38) 1951 ORISSA 183 (2), it has been held that possession must be distinguished from mere occupation or detention. Possession in the eye of the law consists of the fact of physical occupation and the mental act of holding the subject of possession to the exclusion of others. The physical element is not necessarily connected with any bodily contact with the subject of possession. It implies the physical power or possibility of dealing with the subject immediately. Legal possession is occupation with the intention of exercising the right of ownership in respect of it. Mere acts of user which do not interfere and are consistent with the owner’s title are not sufficient to constitute dispossession of the owner or start adverse possession in favour of the occupant. Whether, in particular circumstances, the acts of the occupant amount to possession and whether such possession is on behalf of the legal owner or in opposition to his title are matters of inference to be drawn from proved facts. 21.2. In P.AMMA Vs. P.NAIR (AIR 1972 KERALA 1 (V 59 C 1), it has been held that dispossession in Art.142 implies taking possession https://hcservices.ecourts.gov.in/hcservices/ without the consent of the person in possession and is a wrong to the person in possession. It furnishes a cause of action to the person who was in possession to recover possession from the person dispossessing. On the other hand, as already stated, the Court, when it takes possession through its agent, does not commit any wrong to any of the parties to the suit and its action in taking possession can never furnish a cause of action to any of the parties to file a suit to recover possession from the receiver. The property simply passes into custodialegis. 21.3. In S.KALADEVI Vs. V.R.SOMASUNDARAM (2010) 4 MLJ 529(SC), it has been held that the main provision in Section 49 of the Registration Act, (16 of 1908), provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein, nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882, to be registered may be received as evidence to the contract in a suit for specific performance. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs.100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document 21.4. In ACHAL REDDI Vs. RAMAKRISHNA REDDIAR (1989 SUPP.2 S.C.R.194), it has been held that if a person is in actual possession and has a right to possession under a title involving a due recognition of the owner's title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well recognised policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into possession under an executory contract of sale in a permissible character cannot contend that his possession was adverse. Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse. The position is different in the case where in pursuance of an oral transfer or a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property. In such a case the owner of the property does not retain any vestige of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether. The https://hcservices.ecourts.gov.in/hcservices/ transferee after getting into possession retains the same with the clear animus that he has become the absolute owner of the property and in complete negation of any right or title of the transferor, his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person. So far as the vendor is concerned both in mind and actual conduct, there is a total divestiture of all his right, title and interest in the property. This applies only in a case where there is a clear manifestation of the intention of the owner to divest himself of the right over the property. 21.5. In MOHINI MOHAN Vs. SRIS CHANDRA (AIR 1978 CALCUTTA 434), it has been held that dispossession in Art.3 implies some active element in the mind of a person in ousting or dislodging or depriving a person against his will or consent and there must be some sort of action on the part of Zamindar. If a person amicably or voluntarily gives up possession, he is in that case not dispossessed by a person. Dispossession is quite different from discontinuance in possession. ... On the very face of the pleading as well as the evidence on record, the defence of special limitation for two years under Art.3 of Sch.III of the Bengal Tenancy Act is untenable. The plaintiff has filed the suit within 12 years from the refusal of his cosharers to deliver possession of the lands and the suit is maintainable. In view of our discussion, therefore, the courts below failed to consider the pleadings of the parties and also the relevant evidence adduced in this case and the findings of the courts were clearly illegal and perverse in the absence of evidence in support of the findings and also because the learned courts below relied upon surmises and evidence illegally admitted. The decisions of the courts below did, therefore, cause gross injustice. 21.6. In TIRUMALA TIRUPATI DEVASTHANAMS Vs. K.M.KRISHNAIAH (AIR 1998 SC 1132), it had been held that the suit for possession filed by the plaintiff beyond a period of six months, after he had been dispossessed from the property, is not maintainable, especially, when the title of the defendant was subsisting and not extinguished. 22. Per contra, the learned counsel appearing on behalf of the respondent had submitted that the Courts below were right in coming to the conclusion that the respondent is entitled to recover possession of the suit property, as prayed for by him in the suit, in O.S.No.825 of 1983. It is also clear that the possession of the property in question has been handed over to the appellants only by way of mortgage and therefore, the trial Court had directed the respondent to deposit a sum of Rs.3,250/-. Pursuant to the order https://hcservices.ecourts.gov.in/hcservices/ passed by the trial Court, the respondent had deposited the said sum into Court. When the appellants had marked the sale deed, which was unregistered and under valued, the respondent had filed a civil revision petition before the High Court, in C.R.P.No.1068 of 1997. By its decision reported in RUCKMANGATHAN Vs. RAMALINGAM (1997 (II) CTC 595), this Court had come to the conclusion that the alleged sale deed cannot be marked as an exhibit in favour of the appellants, as it was an unregistered document. Further, the fact that the respondent’s father was the owner of the property in question had been admitted. 23. The learned counsel had also stated that the suit had been filed well within 12 years from the time when the property had been put in possession of the appellants. Therefore, it cannot be stated that the suit is barred by limitation. 24. It had also been stated that the document marked by the appellants as Exhibit B.8, calling it as a sale letter, cannot be said to be a sale deed. Further, the appellants had not raised any substantial question of law in the present second appeal. 25. The learned counsel for the respondent had relied on the following decisions in support of his contentions. 25.1. In SUMAN MAHAJAN Vs. KUSUM SANDHU (AIR 1999 DELHI 314) it has been held that in a suit for specific performance, when there is an ambiguity as to