Thirumalaisamy v. 1.Kuppusamy2.Muthusamy Gounder3.Nachiappan4.Raju5.Mariammal (died)6.Muthulakshmi7.Kalpana (minor)

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 27-04-2007CORAMTHE HONOURABLE MRS.JUSTICE PRABHA SRIDEVANSECOND APPEAL No.895 OF 1995Thirumalaisamy...Appellant/Defendant-vs-1.Kuppusamy2.Muthusamy Gounder3.Nachiappan4.Raju5.Mariammal (died)6.Muthulakshmi7.Kalpana (minor), rep.by mother and natural guardian Muthulakshmi 6th respondent.8.Selvam...Respondents/Plaintiffs 1 to 3 & 5 to 8R8 brought on record as LRof the deceased 5th respondent videorder dated 16.04.2007 made in CMP.Nos.3857 to 3859/06Appeal against the judgment and decree, dated 13.12.1994, madein A.S.No.61 of 1994 on the file of Sub-Court, Udumalpet, as against thejudgment and decree, dated 18.04.1994, made in O.S.No.522 of 1991 on thefile of District Munsif Court, Pollachi.For appellant : Mr.S.KadarkaraiFor respondents : Mr.V.NicholasJ U D G M E N TDefendant is the appellant.2. Suit was filed for declaration and recovery of possession.It was dismissed, but, on appeal, reversed. https://hcservices.ecourts.gov.in/hcservices/

3. The following substantial questions of law were framed, whenthe Second Appeal was admitted :(1) Whether the suit filed by the plaintiffs on thebasis of settlement deed under Ex.A-1 is not barred byres judicata especially when the suit filed byKandasamy Gounder on the strength of the samesettlement deed was dismissed as early as on 24.10.1986?(2) Whether the finding of the lower appellate Court issustainable in law in relation to Ex.A-1 and whetherthe gift is valid and acted upon in the absence ofacceptance by the donee ?(3) Whether the lower appellate court has notmisdirected itself in ignoring the appellant's case foradverse possession?(4) Even granting that Ex.A-1 is genuine, whether thedecree of the lower appellate court is sustainable inlaw ignoring the possession and enjoyment of theappellant even beyond the statutory period prior toEx.A-1?4. Respondents filed the suit, on the ground that Sellammal,original owner of the property, had settled the property on them by way ofregistered settlement deed, Ex.A-1. They had earlier filed another suitfor bare injunction in O.S.No.382 of 1984 and it was dismissed, fordefault. Thereafter, the suit for declaration and recovery of possessionwas filed.5. Learned counsel for the appellant rested his case on twogrounds, viz., (i) Settlement Deed, Ex.A-1, was not acted upon andpossession was not given to the respondents and (ii) appellant hadperfected title by adverse possession for thirty years. It is also hiscase, that prior to the suit, it was the appellant, who had been inpossession, and the settlor of Ex.A-1 had no cause to exclude herbrother's son, namely, the appellant, especially, when it was he who livedwith the settlor Sellammal, during her lifetime. The learned counselrelied on the following decisions : (i) 1997 (2) L.W.453 (Baby Ammal Vs. Rajan Asari) ;(ii) 2001 (3) L.W.704 (Manavalan Vs. Chennammal & Others) and(iii) 2005 (2) L.W.470 (N.S.Spance Vs. D.S.Kanagarajan) https://hcservices.ecourts.gov.in/hcservices/

6. Learned counsel for the respondents submitted that theobjection regarding the non-acceptance of the settlement deed was neverpleaded and it is not open to the appellant now to raise the issue and,further, even though the appellant had averred in the written statementthat he has been in possession and enjoyment of the suit property for thelast thirty years, there is no pleading that he had the intention to holdthe property adverse to the title of the true owner and, therefore,however long and continuous possession he had, it may not have ripen intoadverse possession, in the absence of pleading regarding animus to holdadverse to the real owner and also the specific date from which theappellant acted hostile to the true owner.The learned counsel relied onthe following judgments :(i)AIR 1975 MADRAS 167 (The Commissioner, Hindu Religious andCharitable Endowments, Madras. Vs. V.Krishnaswami andanother) ;(ii)1980 MLJ 232 (Kasi Ammal Vs. Vellai Gounder and another) ;(iii)1997 (I) CTC 256 (J.Kuppuswami Mudali and others Vs.Mahalingam) and(iv)1998 (III) MLJ 267 (Govindammal and others Vs.Ammasi Kounder)7. The Written Statement, in this regard, will settle the wholeissue, the relevant portion of which statement reads as follows :" 4. It is admitted that the suit propertiesoriginally belonged to one Sellammal. But it is anutter-falsehood to allege that the said Sellammalexecuted a registered settlement deed dated 16.7.1981in favour of Kandasamy gounder. No such settlementdeed was executed by Sellammal and the allegedsettlement deed is nothing but a forged document.Possession was also not handed over to the saidKandasamy gounder as per the alleged settlement deed.Kandasamy gounder was never in the possession andenjoyment of the suit property as per the so calledsettlement deed.5. It is submitted that only this defendant is inthe possession and enjoyment of the suit property forthe last 30 years. Even during the life time of lateSellammal only this defendant was in the possession andenjoyment of the suit property. Sellammal did not haveany issues and only she was bringing up this defendantas her own son from the child-hood of the defendant.Sellammal never intended to give the property to late https://hcservices.ecourts.gov.in/hcservices/ Kandasamy gounder to the exclusion of this defendant.Only with a view to grab the properties illegally lateKandasamy gounder has created such a settlement deed bymaking forgery.6. It is submitted that the plaintiffs havesuppressed the fact that late Kandasamy gounder alreadyfiled a suit in O.S.No.382/84 on the file of thisHon'ble Court basing upon this title upon the very samesettlement deed dated 16.7.1981 said to have beenexecuted by Sellammal. The suit was filed praying forthe permanent injunction in favour of the saidKandasamy gounder restraining the present defendantfrom interfering with the alleged peaceful possessionand enjoyment of Kandasamy gounder in the suitproperty.....7. The suit was dismissed on 24.10.1986, fordefault. Hence, it is not open to the plaintiffs tocome forward with a fresh suit for the same property onthe strength of the same settlement deed. The suit isto be dismissed in limine on this ground alone. Thesuit is hit by the principles of res-judicata.8. The suit is not maintainable because theplaintiffs and their father were never in thepossession and enjoyment of the suit property withinthe statutory period or at any point of time. Hence,also the suit is not maintainable and is to bedismissed. The allegation that this defendanttrespassed into the suit property on 8.1.1989, is anutter-falsehood and as submitted above he is in thecontinuous possession and enjoyment of the suitproperty for 30 years. There is no cause of action forthe suit and the alleged cause of action is false."8. P.Ws.2 and 3, attestors to Ex.A-1, were examined and, throughthem, the genuineness of Ex.A-1 has been proved. The lower appellateCourt came to the conclusion that Ex.A-1 is a genuine document.9. In Govindammal and others Vs. Ammasi Kounder, 1998 (III)M.L.J. 267, it was held that Section 123 of the Transfer of Property Actdoes not contemplate handing over of possession of properties whenproperty gifted is immovable property. To the same effect is the case ofJ.Kuppuswami Mudali and others Vs. Mahalingam, 1997 (I) CTC 256.10. On the side of appellant, the case of Baby Ammal v. RajanAsari, 1997 (2) L.W.453 has been cited. That was a case where the settlorhimself claimed that possession was not handed over, which will not apply https://hcservices.ecourts.gov.in/hcservices/ to the present case. In Manavalan Vs. Chennammal & Others, 2001 (3)L.W.704, also, which has been relied on by the appellant, D.W.1, who wasthe settlor, had continued in possession. As regards adverse possession,learned counsel for the appellant relied on N.S.Spance Vs.D.S.Kanagarajan, 2005 (2) L.W.470, wherein it was held as follows : "Possession based upon trespass is an offence at itsorigin. But, that possession, if not disturbed and isallowed to continue well over the statutory periodviz., more than 12 years, it confers right to suchproperty upon the person, who had committed trespass."11. As regards the question of res judicata, learned counsel forthe respondents relied on The Commissioner, Hindu Religious and CharitableEndowments, Madras. Vs. V.Krishnaswami and another, AIR 1975 MADRAS 167. 12. The earlier suit was one for injunction and it was dismissedfor default. In that suit, the cause of action was the alleged trespassby the appellant. Here, the cause of action for the suit is different andthe respondents prayed for recovery of possession. 13. In 2000 (7) Supreme Court Cases 543 (Gram Panchayat ofVillage Naulakha v. Ujagar Singh & Ors.), the Supreme Court held asfollows :"10. We may also add one other important reasonwhich frequently arises under Section 11 CPC. Theearlier suit by the respondent against the Panchayatwas only a suit for injunction and not one on title.No question of title was gone into nor decided. Thesaid decision cannot, therefore, be binding on thequestion of title. See in this connectionSajjadanashin Sayed v. Musa Dadabhai Ummer (2000 (3)SCC 350) where this Court, on a detailed considerationof law in India and elsewhere held that even if, in anearlier suit for injunction, there is an incidentalfinding on title, the same will not be binding in alatter suit or proceeding where title is directly inquestion, unless it is established that it was'necessary' in the earlier suit to decide the questionof title for granting or refusing injunction and thatthe relief for injunction was founded or based on thefinding on title. Even the more framing of an issueon title may not be sufficient as pointed out in thatcase."14. Exs.A-21 to A-23 would show that no finding was given ontitle in the earlier suit. The appellate Court rightly held that theearlier suit will not operate as res judicata. The appellate Court hadalso held that Ex.A-1 was proved in accordance with law and, therefore, it https://hcservices.ecourts.gov.in/hcservices/ was not necessary that possession should have been handed over. Thesettlement deed came into effect contemporaneously. Moreover, during thelifetime of the settlor, no steps have been taken for revocation of thesettlement deed. The only way in which the appellant could have resistedthe relief for recovery of possession is by pleading and proving adversepossession. The pleadings in the written statement have been extracted,wherein, at no point of time, the appellant had pleaded that he had animusto hold the property, adverse to the right of the true owner. 15. It is well settled that long and continuous possession,without the required animus, will not give a person the right to resistthe claim of the true owner. No substantial questions of law arise forconsideration in this appeal. Therefore, this Second Appeal is dismissed.No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrardixitTo1.The Sub-Court, Udumalpet.2.The District Munsif, Pollachi.3. The Section Officer, V.R.Section, High Court, Madras1 cc To Mr.S.Kadarkarai, Advocate, SR.29656.S.A.No.895 OF 1995GG(CO)RVL 27.06.2007