Chinnaponnu (died) and Soundarapandiyan vs Lakshmana Naidu, Devanatha Naidu and Krishnamurthy Naidu

Prabha Sridevan, J.—The 2nd defendant has filed the appeal. According to the respondents, they belong to a Hindu undivided family and

the suit property belongs to them and they were enjoying it under the old patta no. 227 new patta no.504. Both the pattas were in the name of the

1st respondent as the Manager of the Joint family. They were also paying kist and nobody else but the respondents have any right in the suit

property. They have also enjoyed it for over 45 years and have perfected title by adverse possession. According to the respondents, originally this

property belonged to one Appurangan in patta no. 286. He sold the property under an oral sale for Rs.75/- in 1920 to one Veeraja Naidu and

handed over possession to Veeraja Naidu. Veeraja Naidu''s wife was one Thirumalai Ammal and they had a daughter called Andal and a son by

name Narayanasamy. Narayanasamy''s widow Thayarammal is residing with the respondents. She had no issue. The respondents are the sons of

Narayanasamy''s sister Andalammal. Andalammal''s husband Ramanuja Naidu had some property and on 29.1.1943, Veeraja Naidu''s wife

Thirumalai Ammal, Thayarammal and Andalammal''s husband Ramanuja Naidu executed a settlement deed in favour of the respondents. At that

time, the respondents were minors. Under the settlement deed, the suit items have been mentioned and pursuant to the settlement deed, the

guardian of the minors took possession of the suit property on their behalf and had been enjoying the same. This is with regard to suit item no.1. As

regards the suit item no.2, after Veeraja Naidu''s lifetime, his son Narayanasamy was enjoying the same and after him, his widow Thayarammal

was enjoying the property. Since the respondents are her close relatives and she had no one to assist her, the respondents are also in enjoyment of

the said item 2 on her behalf and therefore, the suit was filed for declaration and injunction against the appellant who is a stranger.

The appellant was the 2nd defendant and she filed a written statement. According to her, there was no cause of action for the suit, nor did the

respondents have any right to title or for possession in the suit property. According to the appellant, her father Anjaapuli and his father Ponnan

bought the suit property from one Krishnan on 21.7.1931 under Ex.B3. From that date, Ponnan and Anjaapuli have been in possession of the suit

property. They have also been given patta no.280. This was in Ponnan''s name and Ponnan alone was paying the kist. Thereafter, the suit

properties were included in patta no.227. Anjaapuli died 10 years prior to the suit. In suit item 1, the appellant had fixed a bore-well and an oil mill

and she claimed to be enjoying and cultivating the suit properties. An additional written statement was filed in which it was denied that the suit

property belonged to Appurangan and that there was an oral sale in favour of Veeraja Naidu. The relationship was denied. The settlement deed

was also denied.

The trial Court disbelieved the settlement deed. The trial Court also found that no document was filed to show that the mother of the

respondents took possession of the suit property pursuant to the settlement deed or that there was anything to show that the settlement deed was

accepted. The trial Court also took note of the evidence of P.W.1 in which he had admitted that only two months prior to the suit he knew about

the oral sale, and also held that when the documents do not prove the case, it is not possible to grant title on the basis of the patta passbook.

Therefore, the trial Court held that the respondents had not proved their title to the suit properties.

As regards the case of the appellant, the trial Court found that the document dated 21.7.1931 Ex.B1 would show that the suit property has

been sold to the appellant''s father and grandfather for discharging a mortgage debt. Exs.B1, B3 and B4 clearly refer only to the suit properties and

Exs.B5 to B11 show that the suit properties were in the appellant''s possession. D.W.4 is a Panchayat President and he had given evidence that

the suit properties have been cultivated by the appellant. On a consideration of the documents to which the respective parties trace their title, the

trial Court came to the conclusion that Ex.A1 was invalid and that Ex.B1 was true and valid and therefore dismissed the suit.

The appellate Court was inclined to believe the oral evidence on the side of the respondents but rejected the oral evidence on the side of the

appellant and came to the conclusion that the respondents have perfected title by adverse possession and therefore decreed the suit.

The learned counsel for the appellant would submit that the question of adverse possession has not been dealt with correctly by the appellate

Court and when the plaintiffs have come to Court stating that there was an oral sale in favour of Veeraja Naidu who was put in possession of the

suit property and thereafter Veeraja Naidu''s widow Thirumalai Ammal, Narayanasamy''s widow Thayarammal and the respondents'' father

Rangasamy Naidu had executed settlement deed in respect of the suit properties and thereby they got the title, it was not open to the appellate

Court to grant them a decree on the basis of adverse possession which runs contrary to their claim of title by virtue of the oral sale and settlement

deed. It was also submitted by the learned counsel that when the trial Court had rejected the settlement deed as invalid, the appellate Court ought

to have referred to the finding and if it intended to differ, should have given reasons for the same. On these grounds, the learned counsel would

pray that the appeal be allowed.

Learned counsel for the respondents would submit that as regards item 1 of the suit property, the respondents claim title by virtue of the

settlement deed, failing which, by long possession for over a period of 45 years hostile to the title of the true owner and as regards item 2 which

was not included in the settlement deed and which Veeraja Naidu had purchased orally along with item 1, it had devolved on Thayarammal, the

widow of Narayanasamy who is Veeraja Naidu''s son, and since she is living with the respondents and they had been put in possession by her,

they must be deemed to have established their title. The learned counsel submitted that the failure on the part of the trial Court to frame an issue

regarding the adverse possession pleaded by the respondents had greatly prejudiced the respondents. The trial Court ought to have seen that this

was a pleading that was raised at the first instance. The failure to frame the issue had deprived the respondents of an opportunity to plead and

prove the same.

The learned counsel also submitted that in the event of this Court coming to the conclusion that the appellate Court had not considered the

genuineness or validity of Ex.A1 and had failed to set aside the finding of the trial Court in respect of the same, this Court must consider the case of

the respondents though no appeal has been filed on behalf of the respondents. For this purpose, reliance was placed on the decision in K.

Muthuswami Gounder Vs. N. Palaniappa Gounder, where the Supreme Court held thus:

No hard and fast rule can be laid down as to the circumstances under which the power can be exercised under O.41.R.33, C.P.C. and each case

must depend upon its own facts. The role enables the appellate Court to pass any order/decree which ought to have been passed. The general

principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings, ordinarily the appellate Court must not vary or

revere a decree/order in favour of a party who has not preferred any appeal and this rule holds good notwithstanding O.41.R.33.C.P.C. However,

in exceptional cases the rule enables the appellate Court to pass such decree or order as ought to have been passed even if such decree would be

in favour of parties who have not filed any appeal. The power though discretionary should not be declined to be exercised merely on the ground

that the party has not filed any appeals.

So, the learned counsel would urge that had the appellate Court considered the genuineness of the settlement deed, then, that Court being the final

Court of fact, the respondents might have obtained a favourable decision on that issue, but the failure on the part of the appellate Court to decide

the question of the genuineness has deprived the litigant of a valuable right before the final Court of fact.

Though the substantial questions of law that were framed at the time of admission were with regard to the admissibility of Ex.A1 without

examining atleast one attesting witness and the acceptance of the case of oral sale without showing that pursuant to that possession was given and

finally decreeing the suit in respect of item 2 when admittedly the respondents had no title. The learned counsel for the appellant sought leave of this

Court to raise an additional substantial question of law regarding the permissibility of declaring title by adverse possession to plaintiffs who have

also claimed title to it in their own right.

To support the substantial question of law that was raised at the time of hearing of the second appeal, the learned counsel for the appellant

referred to two decisions: (i) PONNAIYAN vs. MUNIAN (DIED) AND OTHERS (1995) 1 L.W.680 and (ii) Kannappan Vs. Pargunan and 9

others, . In both these judgments, the Court had dealt with the animus which is required to be proved to establish adverse possession and the mere

factum of patta standing in the name of the person or the person paying kist may not apply and unless hostile possession express or implied, in

denial of the title of the true owner is pleaded and proved, no title can be granted on the basis of this plea.

But more importantly in Kannappan Vs. Pargunan and 9 others, , the learned Judge had held that a plaintiff can contend adverse possession

only when he admits that another person has got title. The plea of adverse possession was rejected in that case since the plaintiffs claimed title in

their vendor and simultaneously claimed title by adverse possession.

The lapse on the part of the appellate Court to decide the question of genuineness or validity of the settlement deed must be accepted and the

submissions made by the learned counsel that this had deprived the respondents of one opportunity to show that the settlement deed is true and

valid must also be accepted. But however, one has to see whether, even if the appellate Court had failed in its duty, an order of remand is

necessary in order to obtain a finding regarding the settlement deed.

The substantial question of law relating to item 2 must necessarily be answered in favour of the appellant. It is not the respondents'' case that

they are entitled to item 2 of the suit property. Their case is that it belongs to Thayarammal as the heir of Veeraja Naidu and that they have been

permitted to enjoy the same by her because she is old and they are their relatives. If the case of the respondents is true and Thayarammal is the

true owner and she had permitted them to be in possession because she is old and they are her only relatives, the appellate Court''s finding that

they have perfected title by adverse possession must necessarily be set aside because, they have no animus to hold the property hostile to the right

of Thayarammal who they admit is the true owner. Therefore, as regards item 2, there cannot be a decree in favour of the respondents.

As regards item 1, the decision relied on by the learned counsel for the appellant comes to their aid. This substantial question of law was

permitted to be raised at this stage because, to decide this issue, it was not necessary to go any further than the plaint. This Court did not have to

look even at the oral or documentary evidence. In the plaint, the respondents have pleaded that they have been in continuous possession over the

suit properties for 45 years and at the same time, they claimed that these suit properties have been settled on them under Ex.A1 by the settlors

who were either entitled to the suit property in their own right like Ramanuja Naidu, or who had got it from Veeraja Naidu who in turn had

purchased it under an oral sale. The decision in Kannappan Vs. Pargunan and 9 others, is somewhat similar to the present case. There also, the

plaintiff had sought declaration of title on the basis of a document and had also vaguely stated that even if any other person had title, the plaintiff

had prescribed title by adverse possession. The learned Judge held as follows:

When plaintiff is recognising title only by him and he is claiming title in vendors, he cannot say that he has got animus to hold the property against

others. Only when he admits that another person got title, the question of prescribing title by adverse possession will arise. In S.M. Karim Vs. Mst.

Bibi Sakina, their Lordships said as to how to plead and prove adverse possession. That pleading is also not in this case. From the various

documents, it could be seen, defendants are also in possession of the property. Apart from the same, parties are also close relations. Being close

relations something more is to be proved to prescribe title by adverse possession than a case between two strangers. Animus to hold the property

against relations must be brought to their notice.

Even if we assume that to prove adverse possession it is not necessary to acknowledge the title of another and that it is sufficient to show that

the long possession, open and continuous, ought to have put true owner on guard, yet, this question must be answered in favour of the appellant.

The respondents claim that they are entitled to the suit property by virtue of Ex.A1. Therefore, adverse possession would mean setting up title

hostile to themselves. These two pleas cannot coexist and therefore, it is only in these circumstances that the new substantial question of law was

permitted to be raised by the appellant and it is answered in favour of the appellant.

The judgment and decree of the appellate Court is set aside. The judgment and decree of the trial Court is restored. The appeal is allowed. No

costs.