IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.06.2011 Coram: THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI S.A.No.1894 of 1997 1.Syed Mohamed Sahib 2.Suriya Bee ... Appellants/Defendants -Vs- 1.Johara Bee 2.Abdul Ajis 3.Jawahar Banu ... Respondents 1 to 3/ LRs of the deceased plaintiff PRAYER: Second appeal is filed under Section 100 of C.P.C., against the judgment and decree dated 27.09.1996 made in A.S.No.16 of 1996 on the file of Civil Court, Senior Grade, Kallakurichi, reversing the judgment and decree dated 31.08.1990 made in O.S.No.556 of 1985 on the file of Additional District Munsif, Kallakurichi. For appellants : Mr.R.Selvakumar For respondents : Mr.V.Raghavachari JUDGMENT The defendants 1 & 2 in O.S.No.556 of 1985 are the appellants herein. The suit in O.S.556 of 1985 is filed by the plaintiff since deceased for declaration of his title to the suit properties and for the relief of permanent injunction for restraining the defendants and their men and agents from any way interfering with his enjoyment of the suit property. 2.The parties are referred to for the sake of convenience as per their rank in the suit. 3.The suit properties and other properties were admittedly belonging to the paternal grandfather of the deceased plaintiff and the paternal grandfather of the plaintiff died leaving behind his only son Syed Khajee Sahib, who is none else than the father of the plaintiff. Syed Khajee Sahib died 40 years prior to the filing of the suit leaving behind his wife and two sons, one among the whom is the plaintiff, and one daughter. The wife and another son of Syed Khajee Sahib died long back leaving behind the plaintiff and his sister to inherit the suit properties. According to the plaintiff, he has spent money for the funeral expenses of his father and his https://hcservices.ecourts.gov.in/hcservices/ brother and discharged the debt incurred by his parents and his sister orally gifted her shares including the suit properties to him in the year 1965 and handed over the possession of the suit properties to the plaintiff and the plaintiff, since the acceptance of the oral gift, is in open, continuous and uninterrupted possession and enjoyment of the property for more than 40 years and has prescribed title by adverse possession. It is the further case of the plaintiff that his peaceful possession and enjoyment of the suit properties is sought to be interfered with by the defendants, who are strangers, without having any right, title and interest over the same. 4.Such claim of the plaintiff is seriously opposed by the defendants 1 & 2 by denying the oral gift by sister Ammajibi and by denying the plaintiff’s possession and enjoyment of the suit properties as pleaded in the plaint. According to the defendants, the plaintiff and his sister Ammajibi orally partitioned the family properties and Ammajibi was allotted the suit properties and other properties and Ammajibi had, after the partition sold, the suit properties to the defendants 1 & 2 for valid consideration and since the date of the sale on 29.8.1982, the defendants have been in possession and enjoyment of the suit properties by planting trees, by stocking haystack and by fencing the suit properties on all four sides. 5.The trial Court has, on the basis of the suit pleadings, framed the following issues: 1/thjpapd; rnfhjhp mk;kh$pgP tha;bkhHpahf jhdk; bfhLj;jjhf brhy;tJ cz;ikah> cz;ik vd;why; bry;yf;Toajh> 2/thjpf;F ePL mDnghf chpik Vw;gl;Ls;sjh> 3/thjpf;F ntbwd;d ghpfhuk;> 6.The contesting parties in support of their respective claim examined the plaintiff himself and the plaintiff’s sister, who is the vendor of the defendants' 1 & 2 as PW1 and DW1 and have produced Exs.A1 to A3 and B1 to B4 documents. The trial Court has, after considering the oral and documentary evidence, found that the suit properties and other properties are the join family properties of the plaintiff and his sister Ammajibi and the plaintiff failed to establish the oral gift as well as his possession and enjoyment in pursuance of acceptance of oral gift and the plaintiff also failed to establish the prescription of title by adverse possession as against the co-owner and the defendants 1 & 2 having purchased the suit properties from Ammajibi for valid consideration on the strength of their sale transaction obtained patta and updating resurvey patta and have established their ownership of the suit properties. The trial Court has on the basis of such finding further held that the plaintiff is disentitled to the suit reliefs. Aggrieved against the https://hcservices.ecourts.gov.in/hcservices/ same, the unsuccessful plaintiff filed A.S.No.50 of 1994 on the file of the Principal District Munsif, Kallakurichi, Villupuram District. Pending appeal, the plaintiff died and his LRs were impleaded as appellants 2 to 4. 7.The appellants 2 to 4 before the lower appellate Court have during the pendency of the appeal filed I.A.No.28 of 1996 for receiving additional documents and the petition was, with the consent of the learned counsel for the respondents in the appeal, allowed and the documents filed along with this Second Appeal are received as Exs.A4 to A7 additional evidence on the side of the plaintiff. The lower appellate Court has mainly relying upon the additional documents received as Ex.A4, registered mortgage deed and Ex.A5, chitta for the faslis 1385 to 1388 and Exs.A6 & A7, adangal for the faslis 1378 to 1380 and 1383 to 1388 and on the basis of Exs.A2 & A3, chitta and adangal found that the plaintiff has been in possession and enjoyment of the properties from 1965 and the same is only on the strength of oral gift made in his favour by his sister who as RW1 admitted his possession of the entire properties excluding 16 and 4 cents sold to third parties by the plaintiff and the oral gift is made in favour of the plaintiff in lieu of 25 cents allotted to the sister in the family properties. The lower appellate Court also accepted the plea that the plaintiff has prescribed title by adverse possession. The lower appellate Court has hence arrived at further conclusion that the plaintiff’s sister, having orally gifted the suit properties to the plaintiff, had no right to convey the same to the defendants 1 & 2 under Exs.R1 and R2 and the defendants 1 & 2 do not derive any title and interest under Exs.R1 & R2 and the same are created only for the purpose of contesting the suit. Aggrieved against the same, the defendants preferred the present second appeal before this Court. 8.The second appeal is admitted on the following substantial questions of law: "1.Whether the lower appellate Court is right in relying on the additional documents filed in the appeal stage, to fill up the lacunae made in the trial Court? 2.Whether the lower appellate Court is right in upholding the plea of the plaintiff with reference to oral gift, exclusively based on the documents to show possession that too when the defendants were holding a registered sale deed over the suit property, which is not disputed at all? 3.Whether the lower appellate Court is right in upholding the plea of the plaintiff with reference to prescriptive title of the plaintiff, against the co- owner that too based only on documents evidencing https://hcservices.ecourts.gov.in/hcservices/ possession?" 9.The dispute is between the brother and the vendors of the sister. The facts that the suit property measuring 0.16 cents out of 0.49 cents, originally belonged to the grand father of the plaintiff since deceased and the deceased plaintiff and his sister, Ammajibii succeeded to the same, are not denied. The right of the sister and her vendors is sought to be denied on the side of the plaintiff on the strength of oral gift of the sister's share by the sister and on the strength of adverse possession of the entire property. 10.The deceased plaintiff in support of his claim for title on the strength of oral gift and for adverse possession, examined himself as P.W.1 and has produced Ex.A1 gift receipts for the faslis from 1390 to 1392, Ex.A2 chitta relating to the lands covered in patta no. 300 for the faslis from 1389 to 1395 and Ex.A3 adangal for the faslis from 1389 to 1396. The defendants, in support of their contention denying the oral gift, examined the sister of the deceased plaintiff as D.W.1 and have produced Exs.B1 and B2 sale deeds executed by the sister of the deceased plaintiff in favour of the defendants 1 and 2 and Exs.A3 and A4 gift receipts and patta issued in their names. 11.The trial court having found no sufficient and substantial evidence to prove the oral gift and claim for adverse possession of the plaintiff, dismissed the suit. During the course of the appeal, the appellants/plaintiffs produced discharge mortgage deed executed by the plaintiff in favour of one Chittan Chettiar during 1974, Chitta and adangal for the faslis from 1385 to 1388, from 1378 to 1382 and from 1383 to 1388 and the same, on consent, were received on the side of the plaintiffs as Exs.A4 to A7 additional documents. The lower appellate court has not only on the basis of the additional documents, but also on the basis of the admission made by P.W.1, found out a new case, as if, the sister of the deceased plaintiff in lieu of 25 cents of family property sold by her without giving any share to her brother, orally gifted the suit extent to her brother and her brother, had been since then in open, continuous and uninterrupted possession and enjoyment of the same to the knowledge of all, including the sister and prescribed title by adverse possession and the brother has hence, become the absolute owner of the suit property on the basis of oral gift and on the strength of adverse possession. Hence, this Second Appeal by the vendors of the sister. 12.Though the suit is filed for the relief of title and for permanent injunction on the strength of oral gift by the sister of the deceased plaintiff and on the strength of prescriptive title through adverse possession, the sister has not been impleaded as one of the defendants in the suit. Whereas, the plea of oral gift and adverse possession as asserted by the plaintiff is denied by none else than the sister. The documents produced on the side of the https://hcservices.ecourts.gov.in/hcservices/ plaintiffs both in the course of trial as well as in the course of appeal, are in the nature of chitta, adangal and kist receipts for the lands covered under patta no.300, that too, for the faslis from 1378 to 1396 (corresponding years from 1965 to 1986). Admittedly, Ex.A1 is the only kist receipt dated 18.6.1983 which is much after the date of sale in favour of the defendants 1 and 2 by the sister of the deceased plaintiff and the other documents chitta and adangal are obtained only much after the suit i.e., during 1990 and 1992 and the suit extent is, in chitta and adangal relating to different period described in different manner, such as punjai and house with house site. As rightly pointed out by the learned counsel for the appellants, the documents can be, notwithstanding the factors, as referred to above, treated as evidence to prove the possession of the plaintiff, but the same will in no way prove the oral gift or adverse possession. Whereas, the lower appellate court has, on the basis of the additional documents, arrived at a conclusion that the plaintiff's possession of the property is adverse in nature for more than the statutory period. When the deceased plaintiff has admittedly claimed his basic title on the strength of oral gift, the burden is upon him to prove either the oral gift or to plead and prove the point from and at which his possession becomes adverse to the knowledge of all, including his sister. As rightly argued by the learned counsel for the appellants, there is absolutely no pleading or evidence regarding both oral gift and the nature of his possession which is according to him, constitutes adverse possession. The lower appellate court has believed the theory of possession through oral gift and introduced new theory as if the sister admittedly sold another land belonging to her father, without giving any share in the sale proceeds to the brother and has hence, effected oral gift of her share in the suit extent. When such case is not pleaded and spoken by the plaintiff either in the plaint or in the witness box and no such ground is raised in the memo of grounds of appeal before the lower appellate court, the lower appellate court has totally erred in accepting the plea of oral gift on the strength of such new theory. As rightly argued by the learned counsel for the appellants, the finding so rendered by the lower appellate court, in the absence of any sufficient proof to establish the oral gift and inspite of specific denial of the same by sister, is baseless and is perverse and is hence, factually and legally unsustainable and the claim for title on the basis of oral gift has to be necessarily set aside. 13.Regarding the plea of adverse possession, the plaintiff has not raised the plea of ouster. It is his specific case that his sister gifted the property during 1965 and since then, he succeeded to the entire property and had been in open, continuous and uninterrupted possession to the knowledge of all including his sister for more than 40 years and prescribed title by adverse possession. Though according to the plaintiff, misunderstanding arose between brother and sister only after the sale deed executed in favour of the defendants 1 and 2, the plaintiff has neither in the plaint nor in the witness box, stated the period during which his possession on the https://hcservices.ecourts.gov.in/hcservices/ strength of oral gift became adverse. In that event, his mere possession cannot be treated as adverse possession for more than the statutory period on the date of filing of the suit, so as to uphold his claim for prescriptive title. 14.It may be true that the plaintiff's sister as DW1 is unable to furnish any details regarding the date on which oral partition was effected between the parties. But, her inability to do so cannot automatically go to prove the plaintiff's claim. The lower appellate court has also by placing serious reliance on Ex.A5 mortgage deed executed by the plaintiff in favour of third party, arrived at a conclusion that the plaintiff has been dealing with the property as absolute owner of the same. Though Ex.A5, on consent, is received as additional document at the first appellate stage, the consent so given will not dispense with the proof of execution of the document. As rightly argued by the learned counsel for the appellants, the lower appellate court ought not to have in the absence of oral evidence, relied upon Ex.A5, particularly when the sister is not a party to the same in any capacity and when the same is not binding upon her. The oral documents produced in the course of trial, as rightly found out by the trial court, are not sufficient enough to prove the oral gift or adverse possession. The lower appellate court has erroneously placed more reliance on additional documents to uphold the plaintiff's claim for title both on the basis of title and adverse possession. The lower appellate court while doing so, failed to consider the nature of the documents adduced, the period during which they obtained and the failure of the plaintiff to speak about the nature of his enjoyment as evidenced through Exs.A5 to A8. The lower appellate court has also failed to consider that in the absence of any specific plea of ouster between the co-owners, the documents in the nature of kist receipt, chitta and adangal would not establish the plea of adverse possession as against the sister and her vendors. That being so, the lower appellate court has erred in reversing the well considered finding of the trial court and the same is liable to be set aside and the substantial questions of law are accordingly answered in favour of the appellants/defendants. 15.In the result, the second appeal is allowed by setting aside the judgement and decree dated 27.9.1996 made in A.S.No.16 of 1996 on the file of the Civil Court, Senior Grade, Kallakurichi and by confirming the judgement and decree dated 31.8.1990 made in O.S.No.556 of 1985 on the file of the Additional District Munsif, Kallakurichi. No costs. Sd/- Deputy Registrar //true copy// Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ gcg/rk To 1.The Civil Judge, Senior Grade, Kallakurichi. 2.The Additional District Munsif, Kallakurichi. 1 cc to Mr.R.Selvakumar, Advocate, Sr.No.35525 1 cc to Mr.V.Raghavachari, Advocate, Sr.No.34773 Judgment in S.A.No.1894 of 1997 UG {CO} TP/12.11.2011. https://hcservices.ecourts.gov.in/hcservices/