Kanagaraj v. Papathi

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 17-06-2011 CORAMTHE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.No.567 of 1997andCMP No.6285 of 19971.Kanagaraj2.Renuka3.Jothi4.Selvi : Appellants/Plaintiffsvs.1.Papathi2.Panneerselvam3.Chinthamani4.Savithiri5.Durairaj6.Purushothaman7.Udayakumar : Defendants/Respondents Prayer: This Second Appeal is filed under section 100 of theCivil Procedure Code, against the judgment and decree, dated31.10.1996 made in A.S.No.32 of 1993, on the file of the PrincipalSub Judge, Myladuthurai, confirming the judgment and and decree, dated 29.03.1993 made in O.S.No.682 of 1979, on the file of theDistrict Munsif Court at Sirgazhi. For Appellants : Mr.V.Kathiravan For Respondents : Mr.A.MuthukumarJUDGMENTThe plaintiffs, who lost in both the Courts below are the theappellants.2.The plaintiffs/appellants filed a suit for injunctionrestraining the defendants from interfering with their peacefulpossession and enjoyment of the suit property. 3.The case of the plaintiffs was that first plaintiff SarojiniAmmal (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 theextent of the property purchased by him was 17 cents and she was putin possession of the same and she continued to be in possession ofthe suit property and also perfected title by adverse possession byher long, continuous, uninterrupted and open possession and she hasput up a thatched shed on the western side of the property abuttingthe road and she was residing there and on the southern side of thesaid thatched shed, she has put a 'Sarpu' and was using the same ascattle shed and now the same has been let out to the 3rd party, byname Philips and in the remaining property, she was enjoying thesame by planting trees and though the suit property is inR.S.No.454/B, it was wrongly mentioned as R.S.No.461/A2 in the SaleDeed (Ex.A1) and the defendants, who claimed to have purchased theproperty on the south of the suit property recently requested theplaintiffs to provide them with some space in the suit property andthat was denied and therefore, the defendants attempted to trespassinto the suit property and therefore, the suit was filed forinjunction.4.On the other hand, the respondents/defendants contested thesuit stating that the plaintiffs/appellants have no title orpossession to the entire suit property and originally, the suitproperty belonged to one Gnana Rathinathammal and under a registeredsale deed, dated 30.09.1897 (Ex.B1), Pichai Vaithiar purchased theproperty measuring an extent of 210 feet east-west, 72 feet north-south and Pichai Vaithiar sold the property under Ex.B2, dated15.11.1915 to Vasudeva Pandithar and Vasudeva Pandithar in-turn soldthe property under Ex.B3 in the year 1920 in favour of Sellathammal,W/o.Pichai Vaithiar and the property was inherited by the grand-sonof Sellathammal viz., Natarajan, Sadasivan and Somasundaram throughhis son Vetrivel and the plaintiffs' vendor, Vijayalakshmi was thewife of Natarajan and therefore, she was entitled to only 1/3th sharein the suit property and she sold an extent of 210 feet east-westand 41 feet north-south, which is more than her share, she wasentitled to and therefore, the plaintiffs have no title over theentire extent. 5.It was further contested that the 1st plaintiff's husbandKanagaraju sought permission of Vellaisamy Nadar for putting up ashed in the disputed portion and that a letter was written by him on17.10.1971 and that would also prove that the plaintiffs were inpermissive possession of the entire extent of the property and underEx.B4, the other two heirs of Sellathammal, Somasundaram, Sadasivanentered into an agreement of sale in respect of the property of anextent of 210 feet east-west and 67 feet north-south and inpursuance of the sale agreement, Ex.B6, Sale Deed was executed bySomasundaram, Chandrasekar, S/o.Sadasivam and Vijayalakshmi, thevendor 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 saidproperty to Vellaisamy Nadar and therefore, the 1st plaintiff'shusband in the year 1971 sought permission of Vellaisamy Nadar toput a shed in the suit property, which is situate in between thehouses of the plaintiffs and the defendants and therefore, theplaintiffs cannot claim any title and possession of the suitproperty. 6.Both the Courts below concurrently held that the plaintiffscannot claim title over the entire extent of the property, asadmittedly the plaintiffs' vendor was entitled to 1/3rd share in theproperty and the plaintiffs also did not prove their possession andthe 1st plaintiff's husband sought permission of the mortgagee fromthe plaintiffs' vendor to put up a thatched shed in the suitproperty and that would show that the plaintiffs were not inpossession of the entire suit property and dismissed the suit. Hence, this second appeal.7.At the time of admission, the following substantial questionsof law were framed:-01.Have not the Courts below erred in dismissing thesuit in total while the defendants admitted theplaintiff's title to 1/3rd of the suit property?02.Have not the Courts below erred, in acceptingExhibit B6 against Exhibit A1 executed by the ostensibleowner 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 claimof the plaintiffs on an adverse possession when thedefendants claimed title after 17 years and possessionproves for such period regarding possession?8.Mr.V.Kathiravan, the learned counsel appearing for theappellants submitted that both the Courts below failed to appreciatethat 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 B10and even assuming that the plaintiffs' vendor was entitled to 1/3rdshare in the suit property, she having conveyed more than 1/3rd shareto the plaintiffs in the year 1962 and the plaintiffs are inpossession of the entire extent in the year 1962, have perfectedtitle by adverse possession and therefore, the plaintiffs became theabsolute owners of the property conveyed under Ex.A1 and they areentitled to protect their possession and therefore, they areentitled 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, theinjunction 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 therespondents/defendants submitted that the plaintiff's cannot claimadverse possession, having pleaded that she is the owner of theproperty and having sought the permission of Vellaisamy Nadar forputting up a shed in a portion of the suit property and theplaintiffs have admitted that Sarojini Ammal (deceased plaintiff)was not in possession of the entire extent and in the absence of anytitle to the entire extent, the plaintiffs cannot maintain a suitfor injunction against any lawful owner.10.The counsel appearing for the respondents/defendants furthersubmitted that admittedly, the respondents have purchased theproperty from the other two co-sharers and therefore, that therecannot be any injunction against the co-owner and the propertieswere not found to be in the exclusive possession of the plaintiffsand considering all these aspects, the Courts below have rightlydismissed the suit.11.Heard both sides.12.It is admitted that the plaintiffs have put up a housebearing No.11 and the defendants have put up a house bearing No.12and so far as the house portions are concerned, there is no dispute. The dispute is only with regard to the lane, which is situate inbetween the two houses. 13.According to the plaintiffs, Sarojini Ammal (the deceasedplaintiff) has put up a shed in that portion and that was let out toone Philips and thereafter, she was let out to another person andthat would prove the possession of the suit property. The deceasedplaintiff, Sarojini Ammal, filed the suit for injunction on thebasis of title. Though the deceased plaintiff Sarojini Ammal alsofiled Exs.A2 to A10 being the kist receipts to prove her possession, as rightly held by the Courts below that all those receipts cameinto existence, after the filing of the suit and therefore, thosedocuments will not prove the plaintiffs' possession over theproperty and the plaintiffs/appellants having filed the suit forinjunction based on their title has to prove that Sarojini Ammal, the deceased plaintiff, has got valid title and she is in possessionof the suit property. 14.As rightly submitted by the learned counsel appearing forthe respondents, the suit property was originally owned by GnanaRathinammal 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 VasudevaPanthidar and latter, under Ex.B3, Sellathammal purchased fromVasudeva Panthidar. 15.It is also not in dispute that Natarajan, the husband ofVijayalakshmi, the vendor of the plaintiffs, Sadasivam, Somasundaramwere the grand-sons of Sellathammal through her son Vetrivel, whoinherited the properties. Therefore, the plaintiffs' vendor'shusband Natarajan, was entitled to 1/3rd share in the property. However, the plaintiffs' vendor sold an extent of more than 1/3rdshare under Ex.A1. When the plaintiffs claim that Sarojini Ammal, the deceased plaintiff is in possession of the property as a ownerunder Ex.A1, it is not open to her to claim title by adversepossession. Therefore, the claim by the plaintiffs that SarojiniAmmal has perfected title by adverse possession to the property, even assuming that her vendor was entitled to 1/3rd share cannot beaccepted and is liable to be rejected. Therefore, the 3rd substantialquestions of law is answered against the plaintiffs/appellants.16.As per Ex.B6, the defendants purchased the property from thelegal-heirs of Sadasivam, Natarajan and also from the other co-ownerSomasundaram. Therefore, after the purchase in the year 1979 underEx.B6, the defendants became entitled to 2/3rd share in the suitproperty and the plaintiffs were entitled to 1/3rd in the suitproperty and as rightly observed by the Lower Appellate Court thatthere is no dispute that the plaintiffs constructed a house, whichis having Door No.11 and the defendants constructed a house bearingDoor No.12 and the dispute is only with respect to the lane, whichis situate in between two those houses. In the year 1970, theplaintiff's vendor created a mortgage in favour of Vellaisamy Nadarunder Ex.B9 and on 17.10.1971, the deceased plaintiff's husband, sought permission of Vellaisamy Nadar to put up a construction inthe vacant space that is situate in between two houses. If reallySorojini Ammal, the deceased plaintiff is in possession of theentire extent, there was no need for her husband to seek permissionfrom the mortgagee of the property for putting up a shed. Though, the letter, Ex.B10 was disputed, it was marked through DW2 and DW3and both the Courts below have rightly held that Ex.B10 was provedand it was a genuine document and as per the document, the deceasedplaintiff's husband sought permission of the mortgagee to put up aconstruction. Therefore, both the Courts below have rightly heldthat the plaintiffs have not proved their possession in respect ofthe entire extent of the suit property. Further, in a suit forinjunction, the plaintiffs have to prove their possession in respectof the entire property and in the absence of possession, theplaintiffs cannot ask for a decree. Further, injunction cannot begranted against the co-owner when the plaintiffs are not inexclusive 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 2/3rdshare in the suit property and the plaintiffs are entitled to 1/3rdshare and even though, the larger extent was given to theplaintiffs, they have not proved their possession in respect of theentire extent and therefore, the plaintiffs are not entitled to anyinjunction and rightly dismissed the suit. Therefore, thesubstantial questions of law Nos.1 and 2 are also answered againstthe appellants/plaintiffs that there cannot be any injunctionagainst a co-owner, even assuming that the plaintiffs are entitledto 1/3rd share and the plaintiffs cannot claim title under Ex.A1without proving that they were in possession of the entire extent ofthe property and in a suit for injunction, the plaintiffs cannot askfor declaration of their title and the court is bound to see whetherthe plaintiff was in possession of the property on the date of suit.17.In the result, the judgment and decree of the Courts beloware confirmed and the second appeal is dismissed. Consequently, connected C.M.P. is closed. No costs. Sd/- Deputy Registrar. /true copy/ Sub Asst. Registrar.erTo,01.The District Munsif, Sirgazhi.02.The Principal Subordinate Judge, Myladuthurai.1 cc to Mr.A. Muthukumar, Advocate, Sr. 35040S.A.No.567 of 1997RSY (CO)kk 16/9