IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.07.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN SA.No.894/2003 1.Kaluva Kounder (died) 2.Annamalai Kounder 3.Subbaraya Kounder 4.Rajambal 5.Kasambu 6.Ranjitham 7.Kalian 8.Ramachandran Appellants/Defendants 1 to 3 (4 to 8 are brought on record as LRS of deceased 1st Respondent vide order dated 5.9.07 made in CMP No.2317/07 in S.A.No.894/03) Vs 1.Mannankatti 2.Pandurangan Respondents/Plaintiff and R-2 Given up 4th Defendant Prayer:- This Second Appeal is filed against the Judgement and Decree dated 7.3.2003 passed in AS.No.204/02 by the learned Additional District Judge Cum Chief Judicial Magistrate, Villupuram, reversing the Judgement and Decree dated 21.6.2002 passed in OS.No.181/2001 by the learned District Munsif, Tirukoilur. For Appellants : Mr.R.Subramanian For Respondents : Ms.Chitra Sampath JUDGEMENT The case set out in the plaint is shortly as follows:- The suit property originally belonged to Surendra Village. Before 80 years, one Narayana Gounder was in possession of the suit property and after his death, his legal heirs Seena Gounder, Thoppala Gounder, Venkatachala Gounder partitioned the property orally and the suit property was allotted to the share of Seena Gounder. After his death, his son Kuppa Gounder was in possession and enjoyment of the suit property and after him, his legal heir the Plaintiff/1st Respondent is in possession of the same. The suit property is comprised in Old S.No.19/A (Paimash 609) measuring an https://hcservices.ecourts.gov.in/hcservices/ extent of 100 cents and the suit property was reclassified as grama natham in RS.No.331/1. Since, the suit property is a grama natham, there was no tax assessment after its reclassification as Natham. and the predecessors of the Plaintiff were in possession and enjoyment of suit property by way of Kaichathu. In the said oral partition, sons of the Narayana Gounder took 33 cents each and thus Seena Gounder took 33 cents and his legal heirs Subbarayan, Kuppa Gounder, Mottaya Gounder orally partitioned the said suit property and took 11 cents each and and after the death of Kuppa Gounder, the Plaintiff has been in possession and enjoyment of the suit property and he is using the same for storing hay-rick and for tethering cattle. The Defendants have no right in the suit property and on 1.1.2001, the Defendants attempted to trespass into the suit property and hence, the suit has been filed. 2. The case of the Defendants as set out in the Written Statement is as follows:- Kesava Gounder the father of the Defendants got the suit property in a oral parition in the year 1950 from Kuppa Gounder, the father of the Plaintiff and after the death of Kesava Gounder in the year 1970, the Defendants partitioned the suit property orally and they have been using the same for storing hayrick and tethering cattle. In the year, the Plaintiff wanted the suit property for sale in their favour, to which the Defendants refused. Since the daughter of the 4th Defendant was given in marriage to the elder son of the Plaintiff, the Plaintiff and the 4th Defendant colluded together and filed the suit and the suit is bad for non- joinder of necessary parties namely Sivakumar, the brother's son of the Plaintiff and legal heirs of Thoppala Gounder, Venkatachala Gounder, Mottaya Gounder and Subburaya Gounder and it is not correct to say that they trespassed into the suit property on 1.1.2001 as alleged by the Plaintiff and the suit is liable to dismissed. 3. Before the Trial Court, Ex.A1 to A3 were marked on the side of the Plaintiff and the Plaintiff examined himself as PW.1 and one Govindasamy, Rajamanickam, Perumal as Pws.2 to 4. On behalf of the Defendants, Ex.B1 to B4 were marked and the 1st Defendant was examined as DW.1 and one Govindasamy was examined as DW.2. 4. On consideration of the oral as well as the documentary evidence, the Trial Court dismissed the suit. The appeal filed as against the Judgement and Decree of the Trial Court by the Plaintiff was allowed by the first appellate court setting aside the Judgement and Decree of Trial Court. As against the same, this Second Appeal has been filed by the Defendants 1 to 3. 5. During the pendency of this second appeal, the 1st Appellant died and his legal representatives were brought on record as the Appellants 4 to 8 herein and this Second Appeal has been entertained on the following substantial questions of law: https://hcservices.ecourts.gov.in/hcservices/ (a)Whether in law the lower Appellate Court was right in failing to see that when title was disputed, the suit filed for injunction without seeking declaration and paying court fee under Section 25 of the Tamil Nadu Court Fees and Suits Valuation Act was not maintainable? (b)Whether in law the lower Appellate Court was not wrong in picking holes in the case of the Defendants instead of casting the burden on the Plaintiff to prove his case? and (c)Whether in law the lower Appellate Court was right in misreading the documents Ex.B1 to B3 thus inviting interference under Section 100 of CPC vide AIR-2001- SC-1275? 6. This court heard the submissions of the learned counsel on either side and also perused the materials on record. 7. At the outset, the trace of title to the suit property by the Plaintiff has been admitted by the Defendants, though it was stated that it is the separate property of Kuppa Gounder. However, in the cross examination of DW.1, he admitted that one Narayana Gounder was in possession and enjoyment for more than 80 years and after him, his sons namely Seena Gounder, Thoppala Gounder and Venkatachala Gounder got divided between themselves taking each 33 cents and that Subburayan, Kuppa Gounder and Mollaiya Gounder were the sons of Seena Gounder and after the death of Seena Gounder, they partitioned between themselves of 33 cents taking 11 cents each. The suit property is the said 11 cents. 8. According to the Defendants, Kuppa Gounder sold the suit property to the father of the Defendants namely Kesava Gounder in the year 1950 by way of oral sale. After the death of Kesava Gounder, the Defendants partitioned the property, except the suit property and an another property purchased by their mother, which was left by them for their common enjoyment. They are storing hay- rick and uses it for tethering cattle. They have also claimed prescription of title by adverse possession on the ground that they are in possession for more than 52 years. 9. The Defendants contested the suit on the ground that when the title of the Plaintiff is disputed, the suit for mere injunction is not maintainable without seeking for a relief for declaration of Plaintiff's title to the suit property. They also contended that the suit is bad for non joinder of necessary parties, as the heirs of other brother are not included in the present suit. 10. The Trial Court, on analyse of facts and evidence placed on record, arrived at the conclusion that the oral sale pleaded by the Defendants has not been proved, which is affirmed by https://hcservices.ecourts.gov.in/hcservices/ the first appellate court. However, the Trial Court relying upon Ex.B2 to B4 has come to the conclusion that even though the oral sale is not proved, but the boundary recitals regarding the property sold on the west and north of the suit property under Ex.B2 to B4 proved that the Defendants' father is the owner of the suit property. The Trial Court's finding on this aspect in paragraph 12 at page 14 of the typed set of papers filed by the Appellant is extracted as below:- @vdnt. gpujpthjpfs; jug;gpy; 1950k; Mz;oy; Vw;gl;l tha;bkhHp fpiuak; epU:gpf;fg;gltpy;iy vd;whYk; Tl jhth brhj;jpw;F tlf;F kw;Wk; nkw;Fg [wj;jpy; cs;s brhj;Jf;fs; rk;ke;jkhf Vw;gl;l fpiua Mtz';fspd; bjspthf jhth brhj;J gpujpthjpfspd; jfg;gdhUf;F ghj;jpag;gl;Ls;sjhf fhl;lg;gl;Ls;sjpypUe;J tHf;F brhj;ij gpujpthjpfspd; jfg;gdhh; thjpapd; jfg;gdhhplkpUe;J fpiuak; th';fp mDgtpj;J te;Js;shh; vd;gJ bjspthf epU:gpf;fg;gl;Ls;sjhf Kot[ bra;fpnwd;/ thjp jd;Dila rhl;rpaj;jpy; jhth brhj;J thjpapd; jk;gp kfd; rptf;Fkhh; vd;gtUf;Fg; ghj;jpak; ,Ug;gjhf xg;g[f;bfhz;Ls;shh;/ Mdhy; thjp gpuhjpy; jhth brhj;J jdf;F kl;Lk; ghj;jpak; vd;W Fwpg;gpl;Ls;shh;. gpuhjpy; ve;j ,lj;jpYk; mtUila jk;gp kfd; rptf;FkhUf;F ghj;jpak; ,Ug;gjhf Fwpg;gpl tpy;iy/ vdnt jhth brhj;J thjpf;F ghj;jpakhdJ vd;gij epU:gpf;ftpy;iy vd Kot[ bra;fpnwd;/@ 11. More particularly Ex.B2 sale deed dated 31.8.1963 executed by Navathammal, Govinda Gounder and his sons Perumal and Subramani in favour of the Defendants' father Kesava Gounder with regard to the property said to have been lying on the north of the suit property has been the basis to arrive at the finding of the Trial Court that the Defendants' father had been in possession and enjoyment of the suit property since from the year 1963. The subject matter of said sale deed was a sale of punja land in Old S.No.19/A New Paimash No.603 situated to the north and west of the suit property. In that document, it was recited that the southern and eastern boundary of the land was the land owned by Kesva Gounder. Kuppa Gounder, the father of the Plaintiff was not a party to the said document. 12. Likewise Ex.B3 was a sale deed dated 7.3.89 executed by one Marimuthu Gounder in favour of (1) Pavadai Gounder, (2) Veeramuthu Gounder, (3) Rajamanickam Gounder and (4) Mannangatti Gounder, the Plaintiff herein with regard to the punja land of an extent of 10 cents to enable the purchasers to construct a Murugan Temple. In the said document, there is a recital to the effect that the eastern boundary which is the suit property is a natham Poramboke without referring to the party to whom the said natham belong to. 13. The Trial Court has been impressed upon the recital of eastern boundary made in Ex.B4 showing Kaluvan, the 1st Defendant herein as the owner of the land on the eastern side. According to the Defendants, the subject matter of Ex.B4 sale deed relates to https://hcservices.ecourts.gov.in/hcservices/ the land on the south of Murugan Temple, purchased by Balakrishnan from one Ramasamy and Chandru by a registered sale deed dated 19.2.1983. 14. The contention of the Plaintiff before the courts below was that those documents Ex.B2 to B4 cannot be relied upon as proof of title or possession of the Defendants or their predecessors, in view of the settled principle of law that a recital as to boundary in documents not inter se parties are inadmissible in evidence unless the executants thereof are examined. The first appellate court considering the above said contention and taking note of the fact that the oral sale was not proved by the Defendant and further, the Plaintiff's title to the suit property having been admitted by the Defendants both in the Written Statement and in the evidence, reversed the finding of the Trial Court on applying the principle that possession follows title. 15. The contention of the learned counsel for the Appellants before this court was that the recitals in question were admissible under Sections 11 and 13 of the Indian Evidence Act and his contention would be that the recitals were made by persons who had no interest in the dispute and they were made at a time when the dispute in question did not arise making it probable that the Defendant was the owner of the suit property. 16. This fact in my opinion to a great extent minimises the importance of the recitals contained in these documents. If the documents in question had been executed by a stranger in favour of another stranger, there would have been some force in the contention that they have no interest in the subject matter of the recitals. But, the same cannot be said with regard to the document under Ex.B2 which is executed by a stranger in favour of one of the parties to the suit. 17. Ex.B4 is not between the parties to the suit and admittedly it is between two strangers. At this juncture, it is useful to refer to the decision of this court relied on by the learned counsel for the Respondents reported in V.A.Amiappa Nainar (died) and others Vs. Annamalai Chettiar (died) and others [84-LW- 691], wherein it was observed that the recitals as to boundaries in documents not inter-se parties are inadmissible in evidence under Sections 11, 13(a), 32(3) and 32(7) of the Evidence Act and further held that the only method by which recitals in a document not inter parties could be admitted in evidence is by examination of the executant of the document in which such recitals as to boundaries are found. Admittedly, the executants of Ex.B2 to Ex.B4 sale deeds were not examined. In the absence of the evidence of the executants of the sale deeds Ex.B2 to B4, the boundary recitals found in these documents will not be admissible in evidence. This was the view expressed by this court in the decision rendered in the case of Amiappa Nainar Vs. Annamalai Chettiar [1972-1-MLJ-317]. I am in entire agreement with the view expressed by this court in the decision cited supra and I hold that the recitals as to the https://hcservices.ecourts.gov.in/hcservices/ boundaries in the documents marked as Ex.B2 to B4 are not admissible in evidence without examining the executant of the sale deeds. 18. The learned counsel for the Appellants strenuously urged that even though the Plaintiff was a party to the document Ex.B3 dated 27.3.1989 in which the eastern boundary is only mentioned as "natham Poramboke" and the Plaintiff's name is not mentioned and pointing out to such recital, he contended that if the Plaintiff was the owner of the suit property, there would not have been a omission from including his name. In my view, the explanation given by the Plaintiff for not including his name appears to be probable. The Plaintiff has explained in his evidence that the suit property was reclassified as "natham'" and in order to indicate that the eastern boundary is "natham", it is shown in the sale deed. He has also given explanation by citing a reference to the recital made to the south of the suit property as belonging to Balakrishnan, since the said land is the patta land of the said Balakrishnan. There is no dispute that the property referred to under Ex.B3 lies on the west of the suit property and the property of Balakrishnan lies on the south of Ex.B3 property. Therefore, the explanation given by the Plaintiff appears to be more probable and acceptable taking into consideration the reclassification of the suit property. 19. There is no evidence to show that the Defendants were in possession of the suit property for more than 52 years. Ex.B2 cannot be of any avail to the Defendants to prove their possession, as the boundary recitals in the said document cannot prove the possession of the Defendants. In my view, the statement made in Ex.B2 that the land on the west and south belonged to the Kesava Gounder is a mere recital and does not amount to a claim or assertion of his right, in other words, it cannot be said that the Defendants' father's right has either been exercised or recognised or asserted by such boundary recitals. 20. The suit property is admittedly a vacant site. There is no tax assessment after its reclassification as Natham. The Plaintiff has filed Ex.A1 Kaichathu for the faslis 1932 to 1972 before reclassification as natham. The learned counsel for the Appellants contended that there is no material to correlate the said documents to the suit property and even assuming that it relates to the suit property, it was only in the name of Kuppa Gounder and only the last entry is made in the name of the Plaintiff. At the outset, it is not the case of the Defendant before the courts below that Ex.A1 does not relate to the suit property. In the cross examination of PW.1, there is not even a suggestion to that effect. To show that the suit property is reclassified as "natham:, Ex.A3 is filed. As already discussed, the Defendants have admitted that the suit property fell to the share of Kuppa Gounder. Both the courts below have held that oral sale pleaded by the Defendants is not proved. The said concurrent finding of fact is on proper analyse of evidence placed on record and is not shown to have suffered from lack of evidence or https://hcservices.ecourts.gov.in/hcservices/ misreading of evidence. In such circumstances, the boundary recitals in the documents that are relied upon by the Defendants where the Plaintiff or his father was not a party to the said document which is not inter se parties cannot be considered either to show possession or title of the Defendants. 21. To base a claim of adverse possession, it is not enough to allege that one is in possession of the land, but the ingredients of adverse possession must be established. In order to establish the plea of adverse possession, the persons claiming adverse possession are required to show firstly as to when they and/or their predecessor dispossessed either the owner or his predecessor in interest which could be the starting point for reckoning the period of 12 years and are further required to establish by cogent, unimpeachable as well as trustworthy evidence the factum of their having remained in continuous open and hostile possession of the suit property, that too, with the knowledge as well as exclusion of the real owner. 22. In the case of Saroop Singh Vs. Banto and others [AIR- 2005-SC-4407], the Honourable Supreme Court reiterated the legal position that in a suit for possession, based on title, the Plaintiff having proved the title, the onus to prove the acquisition, by adverse possession lies on the Defendant. 23. Referring to the decision in A.Vedanayagam and others vs. Annakili and others [2006-3-MLJ-465], the Division Bench of this Court held as under at p.477:- "From the above cases, one thing is certain, that the law requires 'animus' to extinguish the title of the true owner, then to confer title upon the squatter, by adverse possession, whatever may be the length of possession. In view of the recent decisions of the Apex Court, as well as the settled position, regarding the law and adverse possession, we fell it may not be necessary for us to quote all the judgements, relied on by either side, unnecessarily loading this judgement and the above rulings would suffice to settle the dispute between the parties, based on facts." 24. Observing that where possession could be referred to a lawful title, it will not be considered to be adverse as held by the Honourable Supreme Court in T.Anjanappa and others Vs. Somalingappa and another [2006-7-SCC-570], as follows:- "15. "Adverse possession" means a hostile possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, burden is on the Defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding https://hcservices.ecourts.gov.in/hcservices/ whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. 16. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all." 25. Viewed in the light of the above decisions, absolutely there is no evidence to show as to when the Defendants came into possession, having not proved the oral sale. Further, when possession claimed by the Defendant is referred to their own title, even assuming that they are in possession, it cannot be considered adverse. When there is no cogent evidence to show open, continuous and hostile possession, the Defendants cannot succeed the plea of adverse possession. 26. That apart, admittedly, the suit property is a vacant site which is reclassified as "natham". Both the parties claim that they are in possession by tethering cattle and storing manure and hayrick. The learned counsel for the Appellants contended that in Ex.B1 notice the Plaintiff having admitted the possession of the Defendants, no injunction could be granted against the Defendants. On a careful perusal of Ex.B1 notice, it is seen that the Plaintiff has not admitted the possession of the Defendants, but only says that the Defendants are committing acts of trespass and they should restrain themselves from doing such acts. Even otherwise, the established legal position is that possession follows title when there is no adequate evidence with regard to possession by either party. In the instant case, the title of the Plaintiff having been clearly found, the claim of the Defendants cannot be countenanced. 27. The learned counsel for the Appellants has also raised another contention that the suit for mere injunction is not maintainable without seeking for declaration of title when the title of the Plaintiff is disputed by the Defendants. 28. The general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a https://hcservices.ecourts.gov.in/hcservices/ suit for declaration and/or possession without injunction as consequential relief are well settled. 29. In a suit for permanent injunction to restrain the Defendant from interfering with the Plaintiff's possession, the Plaintiff will have to establish that as on the date of the suit, he was in lawful possession of the suit property and the Defendant tried to interfere or disturb such a lawful possession. Where the property is a building or buildings with appurtenant land, there may not be much difficulty in establishing possession as the Plaintiff may prove physical or lawful possession, either of himself or by him through his family members or lessees/licensees. Even in respect of agricultural land possession may be established with reference to the actual use and cultivation. But, if the property is a vacant site which is not physically possessed and if both the parties claim to be in possession, one who is able to establish title thereto will be considered to be in possession as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, the court is not precluded from examining and determining the title of the either of the parties. In such a situation, when the title of one party is clear and the court may venture a decision on the issue of title, even though the suit is for a mere injunction. A prayer for declaration will be necessary only if the denial of title by the Defendants raises a cloud on the title of the Plaintiff to the suit property, that is, if there is some apparent defect in his title to a property or when a right of the third party is made out or shown. In the present case, the Plaintiff has shown to be in lawful possession referable to a better title and as such, he has a right to protect his possession against any person who does not prove a better title by seeking a permanent injunction. Therefore, I am of the considered view that since the possession of the Plaintiff is interfered or threatened by the Defendants, a suit for an injunction simpliciter would lie and the suit filed by the Plaintiff for such