IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 17-06-2011 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.No.567 of 1997 and CMP No.6285 of 1997 1.Kanagaraj 2.Renuka 3.Jothi 4.Selvi : Appellants/Plaintiffs vs. 1.Papathi 2.Panneerselvam 3.Chinthamani 4.Savithiri 5.Durairaj 6.Purushothaman 7.Udayakumar : Defendants/Respondents Prayer: This Second Appeal is filed under section 100 of the Civil Procedure Code, against the judgment and decree, dated 31.10.1996 made in A.S.No.32 of 1993, on the file of the Principal Sub Judge, Myladuthurai, confirming the judgment and and decree, dated 29.03.1993 made in O.S.No.682 of 1979, on the file of the District Munsif Court at Sirgazhi. For Appellants : Mr.V.Kathiravan For Respondents : Mr.A.Muthukumar JUDGMENT The plaintiffs, who lost in both the Courts below are the the appellants. 2.The plaintiffs/appellants filed a suit for injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit property. 3.The case of the plaintiffs was that first plaintiff Sarojini Ammal (deceased) purchased the suit property under a registered sale https://hcservices.ecourts.gov.in/hcservices/ deed, dated 10.01.1962 (Ex.A1) from Vijayalakshmi & another and the extent of the property purchased by him was 17 cents and she was put in possession of the same and she continued to be in possession of the suit property and also perfected title by adverse possession by her long, continuous, uninterrupted and open possession and she has put up a thatched shed on the western side of the property abutting the road and she was residing there and on the southern side of the said thatched shed, she has put a 'Sarpu' and was using the same as cattle shed and now the same has been let out to the 3rd party, by name Philips and in the remaining property, she was enjoying the same by planting trees and though the suit property is in R.S.No.454/B, it was wrongly mentioned as R.S.No.461/A2 in the Sale Deed (Ex.A1) and the defendants, who claimed to have purchased the property on the south of the suit property recently requested the plaintiffs to provide them with some space in the suit property and that was denied and therefore, the defendants attempted to trespass into the suit property and therefore, the suit was filed for injunction. 4.On the other hand, the respondents/defendants contested the suit stating that the plaintiffs/appellants have no title or possession to the entire suit property and originally, the suit property belonged to one Gnana Rathinathammal and under a registered sale deed, dated 30.09.1897 (Ex.B1), Pichai Vaithiar purchased the property measuring an extent of 210 feet east-west, 72 feet north- south and Pichai Vaithiar sold the property under Ex.B2, dated 15.11.1915 to Vasudeva Pandithar and Vasudeva Pandithar in-turn sold the property under Ex.B3 in the year 1920 in favour of Sellathammal, W/o.Pichai Vaithiar and the property was inherited by the grand-son of Sellathammal viz., Natarajan, Sadasivan and Somasundaram through his son Vetrivel and the plaintiffs' vendor, Vijayalakshmi was the wife of Natarajan and therefore, she was entitled to only 1/3th share in the suit property and she sold an extent of 210 feet east-west and 41 feet north-south, which is more than her share, she was entitled to and therefore, the plaintiffs have no title over the entire extent. 5.It was further contested that the 1st plaintiff's husband Kanagaraju sought permission of Vellaisamy Nadar for putting up a shed in the disputed portion and that a letter was written by him on 17.10.1971 and that would also prove that the plaintiffs were in permissive possession of the entire extent of the property and under Ex.B4, the other two heirs of Sellathammal, Somasundaram, Sadasivan entered into an agreement of sale in respect of the property of an extent of 210 feet east-west and 67 feet north-south and in pursuance of the sale agreement, Ex.B6, Sale Deed was executed by Somasundaram, Chandrasekar, S/o.Sadasivam and Vijayalakshmi, the vendor of the plaintiff in respect of the same extent of the https://hcservices.ecourts.gov.in/hcservices/ property to the defendants and even prior to that, under Ex.B9, Vijayalakshmi, the vendor of the plaintiff mortgaged the said property to Vellaisamy Nadar and therefore, the 1st plaintiff's husband in the year 1971 sought permission of Vellaisamy Nadar to put a shed in the suit property, which is situate in between the houses of the plaintiffs and the defendants and therefore, the plaintiffs cannot claim any title and possession of the suit property. 6.Both the Courts below concurrently held that the plaintiffs cannot claim title over the entire extent of the property, as admittedly the plaintiffs' vendor was entitled to 1/3rd share in the property and the plaintiffs also did not prove their possession and the 1st plaintiff's husband sought permission of the mortgagee from the plaintiffs' vendor to put up a thatched shed in the suit property and that would show that the plaintiffs were not in possession of the entire suit property and dismissed the suit. Hence, this second appeal. 7.At the time of admission, the following substantial questions of law were framed:- 01.Have not the Courts below erred in dismissing the suit in total while the defendants admitted the plaintiff's title to 1/3rd of the suit property? 02.Have not the Courts below erred, in accepting Exhibit B6 against Exhibit A1 executed by the ostensible owner under Section 41 of the Transfer of Property Act, which is prior to exhibit B6 by 17 years? 03.Is it not an error of law in rejecting the claim of the plaintiffs on an adverse possession when the defendants claimed title after 17 years and possession proves for such period regarding possession? 8.Mr.V.Kathiravan, the learned counsel appearing for the appellants submitted that both the Courts below failed to appreciate that the sale deed in favour of the plaintiffs viz., Ex.A1 was, dated 10.01.1962, which is earlier to the documents Exs.B4 to B10 and even assuming that the plaintiffs' vendor was entitled to 1/3rd share in the suit property, she having conveyed more than 1/3rd share to the plaintiffs in the year 1962 and the plaintiffs are in possession of the entire extent in the year 1962, have perfected title by adverse possession and therefore, the plaintiffs became the absolute owners of the property conveyed under Ex.A1 and they are entitled to protect their possession and therefore, they are entitled to injunction as prayed for. He further submitted that https://hcservices.ecourts.gov.in/hcservices/ even assuming that the plaintiffs are entitled 1/3rd share, the injunction ought to have been given in respect of the plaintiffs' title over 1/3rd share. 9.On the other hand, the learned counsel appearing for the respondents/defendants submitted that the plaintiff's cannot claim adverse possession, having pleaded that she is the owner of the property and having sought the permission of Vellaisamy Nadar for putting up a shed in a portion of the suit property and the plaintiffs have admitted that Sarojini Ammal (deceased plaintiff) was not in possession of the entire extent and in the absence of any title to the entire extent, the plaintiffs cannot maintain a suit for injunction against any lawful owner. 10.The counsel appearing for the respondents/defendants further submitted that admittedly, the respondents have purchased the property from the other two co-sharers and therefore, that there cannot be any injunction against the co-owner and the properties were not found to be in the exclusive possession of the plaintiffs and considering all these aspects, the Courts below have rightly dismissed the suit. 11.Heard both sides. 12.It is admitted that the plaintiffs have put up a house bearing No.11 and the defendants have put up a house bearing No.12 and so far as the house portions are concerned, there is no dispute. The dispute is only with regard to the lane, which is situate in between the two houses. 13.According to the plaintiffs, Sarojini Ammal (the deceased plaintiff) has put up a shed in that portion and that was let out to one Philips and thereafter, she was let out to another person and that would prove the possession of the suit property. The deceased plaintiff, Sarojini Ammal, filed the suit for injunction on the basis of title. Though the deceased plaintiff Sarojini Ammal also filed Exs.A2 to A10 being the kist receipts to prove her possession, as rightly held by the Courts below that all those receipts came into existence, after the filing of the suit and therefore, those documents will not prove the plaintiffs' possession over the property and the plaintiffs/appellants having filed the suit for injunction based on their title has to prove that Sarojini Ammal, the deceased plaintiff, has got valid title and she is in possession of the suit property. 14.As rightly submitted by the learned counsel appearing for the respondents, the suit property was originally owned by Gnana Rathinammal and the extent of the suit property was 210 feet east- west and 72 feet north-south and that was purchased by Pichai https://hcservices.ecourts.gov.in/hcservices/ Vathiar under Ex.B1 and the same was sold under Ex.B2 to Vasudeva Panthidar and latter, under Ex.B3, Sellathammal purchased from Vasudeva Panthidar. 15.It is also not in dispute that Natarajan, the husband of Vijayalakshmi, the vendor of the plaintiffs, Sadasivam, Somasundaram were the grand-sons of Sellathammal through her son Vetrivel, who inherited the properties. Therefore, the plaintiffs' vendor's husband Natarajan, was entitled to 1/3rd share in the property. However, the plaintiffs' vendor sold an extent of more than 1/3rd share under Ex.A1. When the plaintiffs claim that Sarojini Ammal, the deceased plaintiff is in possession of the property as a owner under Ex.A1, it is not open to her to claim title by adverse possession. Therefore, the claim by the plaintiffs that Sarojini Ammal has perfected title by adverse possession to the property, even assuming that her vendor was entitled to 1/3rd share cannot be accepted and is liable to be rejected. Therefore, the 3rd substantial questions of law is answered against the plaintiffs/appellants. 16.As per Ex.B6, the defendants purchased the property from the legal-heirs of Sadasivam, Natarajan and also from the other co-owner Somasundaram. Therefore, after the purchase in the year 1979 under Ex.B6, the defendants became entitled to 2/3rd share in the suit property and the plaintiffs were entitled to 1/3rd in the suit property and as rightly observed by the Lower Appellate Court that there is no dispute that the plaintiffs constructed a house, which is having Door No.11 and the defendants constructed a house bearing Door No.12 and the dispute is only with respect to the lane, which is situate in between two those houses. In the year 1970, the plaintiff's vendor created a mortgage in favour of Vellaisamy Nadar under Ex.B9 and on 17.10.1971, the deceased plaintiff's husband, sought permission of Vellaisamy Nadar to put up a construction in the vacant space that is situate in between two houses. If really Sorojini Ammal, the deceased plaintiff is in possession of the entire extent, there was no need for her husband to seek permission from the mortgagee of the property for putting up a shed. Though, the letter, Ex.B10 was disputed, it was marked through DW2 and DW3 and both the Courts below have rightly held that Ex.B10 was proved and it was a genuine document and as per the document, the deceased plaintiff's husband sought permission of the mortgagee to put up a construction. Therefore, both the Courts below have rightly held that the plaintiffs have not proved their possession in respect of the entire extent of the suit property. Further, in a suit for injunction, the plaintiffs have to prove their possession in respect of the entire property and in the absence of possession, the plaintiffs cannot ask for a decree. Further, injunction cannot be granted against the co-owner when the plaintiffs are not in exclusive possession of the suit property. In this case, both the https://hcservices.ecourts.gov.in/hcservices/ Courts below have rightly held that the defendants are having 2/3rd share in the suit property and the plaintiffs are entitled to 1/3rd share and even though, the larger extent was given to the plaintiffs, they have not proved their possession in respect of the entire extent and therefore, the plaintiffs are not entitled to any injunction and rightly dismissed the suit. Therefore, the substantial questions of law Nos.1 and 2 are also answered against the appellants/plaintiffs that there cannot be any injunction against a co-owner, even assuming that the plaintiffs are entitled to 1/3rd share and the plaintiffs cannot claim title under Ex.A1 without proving that they were in possession of the entire extent of the property and in a suit for injunction, the plaintiffs cannot ask for declaration of their title and the court is bound to see whether the plaintiff was in possession of the property on the date of suit. 17.In the result, the judgment and decree of the Courts below are confirmed and the second appeal is dismissed. Consequently, connected C.M.P. is closed. No costs. Sd/- Deputy Registrar. /true copy/ Sub Asst.Registrar. er To, 01.The District Munsif, Sirgazhi. 02.The Principal Subordinate Judge, Myladuthurai. 1 cc to Mr.A. Muthukumar, Advocate, Sr. 35040 S.A.No.567 of 1997 RSY (CO) kk 16/9 https://hcservices.ecourts.gov.in/hcservices/