Kannammal and Another vs Mannammal and Others

A. Ramamurthi, J.—The unsuccessful plaintiffs in O.S.No. 383 of 1986 on the file of the Additional District Munsif, Tiruvannamalai, have

preferred the second appeal, aggrieved against the judgment and decree dated 16.12.1999 on the file of the District Court, Tiruvannamalai, partly

allowing the judgment and decree dated 21.4.1999 made in O.S.No. 383 of 1986.

The case in brief is as follows:

The plaintiffs filed a suit for permanent injunction. The suit property originally belonged to Tirumalai Reddiar, the father of the plaintiffs and it was

his ancestral property. Out of love and affection, Tirumalai Reddiar executed a registered settlement deed in favour of the plaintiffs. The settlement

deed was duly executed, attested and registered. The plaintiffs also accepted the settlement deed and they were put in possession and enjoyment

of the property. Patta was also transferred in their name and they paid kist. The portion originally belonged to the plaintiffs'' father was purchased

by the defendants 1 and 3. The defendants are the Pangalies of the plaintiffs. The defendants were expecting that they would inherit the property of

Tirumalai Reddiar, but now, after realising that the property has been settled in favour of his daughters, the defendants are now giving trouble.

There is open space in front of the plaintiffs, house and the plaintiffs reach their house through the pathway. The property of the defendant is situate

to the north and south of the pathway. Consequently, the defendants are preventing the plaintiffs from entering their house through the vacant site.

During the pendency of the suit, the first plaintiff died leaving behind the third plaintiff as his legal heir. Hence, the suit.

The defendants filed a written statement and contended that the plaintiffs'' father Tirumalai Reddiar had no manner of right over the entire suit

properties. The suit properties and other properties originally belonged to 1. Govindasamy Reddiar, 2. Rama Reddiar, 3. Lakshmana Reddiar, 4.

Kesava Reddiar and 5. Kuppu Reddiar. They orally divided their properties including the suit properties long ago. In the partition, Govindasamy

Reddiar was allotted the northern most 6 cents in S.No. 30/14. On the southern side of the share of Govindasamy Reddiar, 5 cents was allotted to

Kuppu Reddiar; on further south, 3 1/2 cents was allotted to Kesava Reddiar and on further south, 15 1/2 cents was allotted to Lakshmana

Reddiar. No share was allotted to Rama Reddiar in S.No. 30/14. Thus, Tirumalai Reddiar was allotted only 5 cents in S.No. 30/14 and he had

been enjoying the same. Tirumalai Reddiar succeeded to only 5 cents in S.No. 30/14 and nothing more. He constructed a thatched house on the

southern portion of his site leaving the northern portion and eastern portion as vacant site. Out of the 5 cents, Tirumalai Reddiar sold the northern 2

1/2 cents to one Srinivasa Reddiar, son of Chinnasamy Reddiar, under the registered sale deed dated 25.2.1954. In the partition, the said 2 1/2

cents was allotted to the share of Veerasamy Reddiar who had been in possession and enjoyment. From Veerasamy Reddiar, D-1 purchased the

northern 2 1/2 cents and other properties for a sum of Rs. 3,052 under the registered sale deed dated 16.11.1979. After selling the northern 2 1/2

cents, Tirumalai Reddiar retained the southern 2 1/2 cents including the thatched house. D-1 constructed a terraced house measuring 22 feet north

to south and 48 feet east to west on the northern portion. The remaining portion is lying vacant, which is being enjoyed by D-1. D-1 had been

paying tax due to the Panchayat Board. In respect of item No. 1 of the property, the plaintiffs'' father was entitled to only 2 1/2 cents and not 3 1/2

cents in S.No. 30/14. Veerasamy Reddiar sold 3 1/2 cents including the thatched house situate to one Venkatasamy Chettiar and

Nagarathinammal for a sum of Rs. 200 under the registered document dated 23.3.1944. They were in possession and enjoyment of the properties.

In turn, the father of D-2 and D-3 purchased a portion of the house from Venkatasamy Chettiar and Nagarathinammal under the registered sale

deed dated 2.2.1945. The said Veerasamy Reddiar demolished the remaining thatched house which was situated on the southern portion and later

sold to one Sivanandha Chettiar. Thus, the father of D-2 and D-3 became the absolute owner of the thatched house and site. Veerasamy Reddiar

orally divided the house and site into two shares of which the northern share was allotted to D-2 and the southern share was allotted to D-3.

Under the registered sale deed dated 3.1.1974, by mistake the survey number was given as 30/12 instead of 30/14. The boundaries have been

correctly mentioned in the document and a rectification deed dated 9.6.1986 was also executed in favour of D-3 rectifying the mistake. D-3 is the

absolute owner of the thatched house and site in S.No. 30/14 and he is in enjoyment of the same in his own right, paying tax etc.

Item No. 2 is in S.No. 30/13 situated on the western side of the S.No. 30/14. In S.No. 30/13, the five brothers were jointly entitled to the

eastern 31 cents. In the partition, Govindasamy Reddiar was allotted the northern 8 cents; the next southern 9 cents were allotted to Kuppu

Reddiar; the next southern 5 1/4 cents were allotted to Ramu Reddiar and the next southern 8 1/4 cents were allotted to Lakshmana Reddiar. Ever

since the date of partition, the respective sharers had been enjoying the property by putting fences and after their lifetime, their heirs have been

enjoying the shares. Ramu Reddiar sold his share in S.No. 30/13 to one Muthu Chettiar whose son Sivarama Chettiar sold the same to one

Veerasamy Reddiar, who is the father of D-2 and D-3 under a registered sale deed dated 7.8.1946. The property covered under this document is

situate on the western side of the thatched house of D-3. The plaintiffs'' father was entitled to 9 cents, out of which, he sold 4 1/2 cents to one

Sreenivasa Reddiar under the registered sale deed dated 25.2.1954. In the partition between Sreenivasa Reddiar and Veerasamy Reddiar, the

aforesaid 4 1/2 cents fell to the share of Veerasamy Reddiar. D-1 purchased the same for a valid consideration of Rs. 3,052 under the registered

sale deed dated 16.11.1979. The said 4 1/2 cents is situate on the western side of the terraced house of D-1. Thus, D-1 is the absolute owner of

4 1/2 cents in S.No. 30/13. Out of 5 1/4 cents, Veerasamy Reddiar sold the middle 2 1/8 cents to Venkatasamy Chettiar under the registered sale

deed dated 29.7.1957 and retained the remaining extent. By mistake, the survey number was wrongly written as 30/14 instead of 30/13 but the

boundaries have been correctly given in the sale deed. The father of D-2 and D-3 divided his remaining northern property in S.No. 30/13 into two

shares and the northern share was allotted to D-2 and the southern share was allotted to D-3. In turn, D-2 sold his share to D-3 under the

registered sale deed 3.1.1974. Thus, D-3 is the owner of the property of D-2 also. Thus, in respect of item No. 2, the plaintiffs'' father was entitled

to only 4 1/2 cents and the remaining portion absolutely belonged to D-3 and Sivanandha Chettiar. They deny the due execution, attestation and

validity of the settlement deed dated 12.11.1985. Even if the execution is true, it will not confer any title in respect of the entire extent. The plaintiffs

never took possession of the entire property. Under the guise of the settlement deed, they are claiming falsely. These defendants are not aware of

the alleged transfer of patta in the name of the plaintiffs. The plaintiffs can utmost claim title only to 2 1/2 cents in item No. l and 4 1/2 cents in item

No. 2 of the property and the rest of the property belonged to the defendants. D-3 has been in possession and enjoyment of his house paying tax

to the Panchayat Board for several years. D-3 and his predecessors have also perfected the title by way of adverse possession. Since Tirumalai

Reddiar is having three daughters including the plaintiffs, the defendants could not have expected that they would inherit the properties. The

plaintiffs and their father have no manner of right or title over the entire property and as such, the suit for bare injunction is not maintainable and

liable to be dismissed.

The trial court decreed the suit and aggrieved against this, the defendants preferred appeal before the lower appellate court and the judgment

and decree of the trial court were partly modified and aggrieved against this, the plaintiffs have come forward with the present appeal and they

raised the following substantial questions of law for consideration:

Whether the lower appellate court was right in dismissing the suit for permanent injunction when the respondents themselves have admitted the

appellants'' possession of the suit property, when it is the settled law that the best piece of evidence in a case is the admission of the opposite

party?

Whether the lower appellate court is right in law in proceeding on the wrong footing that there was an oral partition between the ancestors of the

appellants and respondents and specific extent was allotted to Kuppu Reddiar the grandfather of the plaintiff without there being any evidence

whatsoever in this regard?

Whether the conclusion reached by the lower appellate court that there was an oral petition is sustainable especially when there is absolutely no

proof of the same?

Heard the learned Counsel for the parties.

The plaintiffs filed a suit for permanent injunction in respect of times 1 and 2 of the properties. According to the plaintiffs, the suit property

originally belonged to their father Tirumalai Reddiar and out of love and affection, he had executed a registered settlement deed in favour of the

plaintiffs and it was duly accepted and acted upon. They were also put in possession of the property and patta was also transferred in their name.

The defendants happened to be their Pangalis who were expecting that they would inherit the property of Tirumalai Reddiar, but after the

settlement deed, finding that they may not get any right in the property, they began to give trouble to the plaintiffs and, in fact, prevented the

plaintiffs from entering into their house from the vacant site.

The learned Counsel for the plaintiffs/ appellants contended that the lower appellate court failed to appreciate that in a suit for permanent

injunction, possession is the main factor to be determined and even according to the admission of D.Ws.1 and 2, the possession is only with the

plaintiffs. Moreover, the documents relied upon by the defendants do not relate to the suit property. The lower appellate court also erred in coming

to the conclusion that the grandfather of the plaintiffs was allotted only 5 cents in S.No. 30/ 14 and 9 cents in S.No. 30/13 and it was inherited by

Tirumalai Reddiar on the basis of the partition pleaded but not proved by the defendants. The documents Exs.B-13 and B-14 are'' relied ""on by

the defendants to claim title and possession of the property and Ex.B-14 is only a rectification deed obtained by D-3 and D-2 after 12 years

correcting the S.No. from 30/12 to 30/14 and it had come into existence after filing of the suit.

The defendants contended that the suit properties as well as the other properties originally belonged to Govindasamy Reddiar and four others

and they orally divided the property and in the partition, only 5 cents was allotted to Kuppu Reddiar and this came to Tirumalai Reddiar, father of

the plaintiffs in S.No. 30/14. Out of this 5 cents, Tirumalai Reddiar is said to have sold the northern 21/2 cents to one Srinivasa Reddiar, son of

Chinnasamy Reddiar, under a registered sale deed dated 25.2.1954. In the partition, the said 2 1/2 cents fell to the share of Veerasamy Reddiar

and from him, D-1 had purchased the northern 2 1/2 cents and other properties under a registered document dated 16.11.1979. According to the

defendants, Tirumalai Reddiar, after selling northern 2 1/2 cents, retained the southern 2 1/2 cents including the thatched house. D-1 constructed a

terraced house and he has been paying the tax to the Panchayat Board. Now, the plaintiffs have come forward claiming 3 1/2 cents in item No. l of

the property whereas they are entitled to only 2 1/2 cents. The boundaries have been correctly mentioned in the document dated 3.1.1974, but by

mistake, the survey number was given as 30/12 instead of 30/14. This was subsequently corrected by means of a rectification deed. It is,

therefore, clear that the plaintiffs'' predecessor got 5 cents and out of which, 2 1/2 cents have been already disposed of and there would be a

balance of 2 1/2 cents, but the plaintiffs have claimed that about 3 1/2 cents are in their possession and enjoyment.

The learned Counsel for the plaintiffs contended that D.Ws.1 and 2, in the course of evidence, admitted that possession of the property was

only with the plaintiffs and for the purpose of granting the relief of permanent injunction, possession alone is sufficient. But, P.W.1, in the course of

cross-examination, stated that he was not aware of the total extent in respect of item Nos. 1 and 2 of the property. Even assuming that the

rectification deed which had come into existence after the filing of the suit, it is just and necessary to find out the actual area in the possession and

enjoyment of the plaintiffs before granting the relief. According to the plaintiffs, no partition took place and the oral partition pleaded by the

defendants has not been substantiated. When the total extent of the property is. more than the one claimed by the plaintiffs, then the burden is only

on the plaintiffs to establish as to what had happened to the remaining extent in the survey numbers. It is also pertinent to state that the plaintiffs

have not thought it fit to take the appointment of any Commissioner to find out the actual area in their possession and enjoyment. When the title of

the plaintiffs for a larger area has been disputed, the plaintiffs also have not thought it fit to amend the relief as the one for declaration.

Item No. 2 is in S.No. 30/13 and situate on the west of S.No. 30/14. According to the defendants, in the partition, Kuppu Reddiar was

allotted only 9 cents and ever since the date of partition, the respective sharers have been enjoying the property by putting fence and after their

lifetime, their heirs are enjoying the same. Ramu Reddiar sold his share to one Muthu Chettiar whose son Sivarama Chettiar sold the same to one

Veerasamy Reddiar, who is the father of the second defendant under a registered sale deed dated 7.8.1946. The plaintiffs'' father was entitled to 9

cents and out of which, he sold 41/2 cents to one Sreenivasa Reddiar and in the partition between Sreenivasa Reddiar and his brother, 4 1/2 cents

fell to the share of Veerasamy Reddiar and D-1 purchased the same under a registered document dated 16.11.1979. As such, D-1 is the absolute

owner of 4 1/2 cents in S.No. 30/13. The father of D-2 and D-3 divided the remaining northern property in S.No. 30/13 into two shares and the

northern share was allotted to D-2 and the southern share to D-3. D-2 sold his share to D-3 under a registered sale deed dated 3.1.1974. Thus,

D-3 became the owner of the property of D-2 also. It is only under these circumstances, according to the defendants, the plaintiffs are entitled to

only 2 1/2 cents in this survey number and not more than that. They further stated that D-3 and his predecessors have also perfected the title by

adverse possession and under these circumstances, the plaintiffs are not entitled to the relief of permanent injunction.

It is, therefore, clear from the aforesaid discussion that there is a dispute between the parties with reference to the extent of property in each

item. The burden is only upon the plaintiffs to show that they have got title in respect of 3 1/2 cents in item No. l and 8 1/2 cents in item No. 2 of

the property. No doubt, boundaries of the properties are given in the schedule of property, but whether the boundaries are tallied on the ground

has to be ascertained. The records produced by the defendants indicated that the plaintiffs could not have title in respect of 3 1/2 cents in item No.

l and in respect of 8 1/2 cents in item No. 2. The documents filed on the side of the defendants indicated that they have also acquired right title and

interest in both the items of the property and if the plaintiffs are granted relief of permanent injunction relating to a larger extent, then the defendants

will be very much affected. There is a larger extent in the documents of the defendants and by any stretch of imagination if the entire extent is taken

together from the title deeds of the parties, the total extent should not exceed the available area on the ground. Furthermore, the plaintiffs cannot

take Advantage of the defendants weakness if any and the burden is mainly upon the plaintiffs to show that they have got title to the extent to which

they have claimed and they are in actual possession of that area for getting the relief of permanent injunction.

The learned Counsel for the plaintiffs relied on V.A. Amiappa Nainar (Died) and Others Vs. N. Annamalai Chettiar (Died) and Others, , for

the proposition that the recitals as to boundaries in documents not inter partes are inadmissible in evidence. Reliance is also placed upon another

decision in M. Kallappa Setty Vs. M.V. Lakshminarayana Rao, , that ""in a suit for possession in the suit property, on the strength of the

possession, they can resist interference from the defendant who has no better title than himself and get injunction restraining the defendants from

disturbing the possession."" There is no dispute about this proposition but this has no application to the case on hand. It has also been held in R.

Anandavalli Vs. Alagammal and Others, , that ""admission is the best form of evidence and the plaintiff can certainly rely on it. In the present case,

no attempt whatsoever has been made by the defendants to show that the said admission was wrong. When the defendants themselves have not

given any explanation, the court cannot on some presumption think that the admission may not be true"". This decision is relied upon to establish that

D.Ws.1 and 2 themselves have admitted in the cross-examination about the possession of the plaintiffs.

It has also been held in Madhavan v. Kannammal (1990) 2 L W. 274, that,

the plaintiff cannot abandon his own case and claim relief on the basis of defendant''s case- Principle not applicable where plaintiff does not seek

relief on the basis of pleading of the defendant, but only on the facts established on the record, though they are at variance with his own pleading.

It has also been held in Sherwood Educational Society Vs. Abid Namazie and Others, , that,

it is settled law that the best evidence in a case is the admission of the opposite party"". It has also been held in Roohnisha Beevi and Ors. v.

A.M.M. Mahudu Mohammed and Ors. (1998) 1 L.W. 244, that, ""evidence supplied by boundaries, extent, survey numbers and lakhoms

(paimash numbers) are the determining factors when the identity of the property is put in issue; in case of conflict, usually boundaries predominate

and the rest is regarded as erroneous or inaccurate descriptions.

The plaintiffs also placed reliance in P. Buchi Reddy v. Ananthula Sudhakar AIR 1999 A.P. 188, that,

the suit is maintainable without prayer for declaration of title -- If the defendant disputes plaintiff''s title, it is not necessary that the plaintiff should

amend the plaint accordingly"". This decision is given u/s 34 of the Specific Relief Act. A mere suit for declaration does not lie when the

consequential relief like injunction is available. But, u/s 3.8, the relief of injunction can be granted even if no declaratory relief is expressly prayed

for. It is well settled that in a suit for injunction, the primary question said to be considered is one of possession on the date of filing of the suit. It is

also well settled that a person in possession, though without title, can resist interference from another who has no better title than himself and get

injunction. There is no dispute about this principle.

The learned Counsel for the defendants relied on Govindammal (died) and 3 others Vs. Arumugham, , that,

the claim for recovery of possession without asking for declaration of title is improper and when both the parties derived title from same erstwhile

owner under different sale deeds, the suit for partition is proper.

When both plaintiff and defendants based their respective claims from the same owner after being divided into three shares and the plaintiff filed

suit for bare recovery of possession without seeking declaration of title, the question of prima facie title alone can be gone into incidentally and no

final adjudication or declaration of title can be made in such a suit. This decision has no application to the case on hand as it is not a suit for

recovery of possession.

It is, therefore, clear from the aforesaid discussion as well as the position of law that the plaintiffs must positively establish that they have got

title to the entire extent claimed in the plaint and they are in actual possession of the entire property. When the defendants have filed number of

documents to show that they have also acquired right title and interest in the same survey number, I am of the view that a cloud has been created in

respect of the title of the entire extent in the survey numbers to the plaintiffs. It is the duty of the plaintiffs to clear the doubt by taking out an

appointment of Advocate Commissioner to actually measure the property and establish that they are in possession of the properties as per the title

deed. Furthermore, if necessary, the plaintiffs also can amend the relief as the one for declaration and establish that even though larger extent is

given in the property, they have prescribed the title to the same by adverse possession also. The admission of D.Ws.1 and 2 alone cannot be taken

for granting the relief in favour of the plaintiffs. Both the parties are not clear in the area in their occupation and enjoyment since there are number of

transactions relating to the same survey numbers. Similarly, a rectification deed came to be executed after 12 years and the validity of it can also be

ascertained only on the basis of legal and proper evidence. In order to find out whether the rectification deed was done properly or whether it has,

been done only to lay claim in the suit, survey numbers are also to be considered.

Under these circumstances, I am of the view that it is just and necessary to remand it to the lower appellate court for finding out the exact area

in the enjoyment and possession of the plaintiffs and the defendants. The appointment of an Advocate Commissioner is also necessary to decide

the dispute between the parties. A finding has been given by the trial court as if the plaintiffs have proved that they are in possession of the entire

property and the said finding has been modified by the lower appellate court to a lesser extent and as such, it is just and necessary to remand the

case before the lower appellate court for disposal according to law. Hence, these points are answered accordingly.

For the reasons stated above, the second appeal is allowed and the judgment and decree of the lower appellate court are set aside and the

matter is remitted back to the lower appellate court for disposal according to law in the light of the above observations. The plaintiffs are also given

liberty to amend the plaint, if necessary. The parties are also given liberty to take the appointment of an Advocate Commissioner to measure the

properties in the enjoyment of the respective parties. The lower appellate court is directed to dispose of the appeal in a period of three months

after receipt of case records. Consequently, the connected C.M.P. is also closed.