Meyyathal & Ors. vs Nachiappan @ Nachan & Ors.

The above second appeal arises out of the judgment and decree, dated 08.10.1998, passed in A.S.No.36/95 on the file of the Principal District

Judge, Sivaganga, reversing the judgement and decree dated 27.4.94, passed in O.S.No.140/92 on the file of the learned Subordinate Judge,

Devakottai.

Parties herein are hereinafter referred to as they were arrayed in the original suit.

One Mayalagu @ Mayan Asari instituted the suit in O.S.No. 140 of 1992 on the file of Sub Court, Devakottai as against seven defendants. It is

a suit for declaration of his title to the suit property and for permanent injunction restraining the defendants from interfering with his possession and

enjoyment of the suit property. The suit property is a site measuring about 16 cents with a tiled shed built thereon. It is situated within Grama

Natham area in S.R.Pattinam, Karaikudi Taluk.

Before the Trial Court, the plaintiff examined four witnesses and marked 26 documents. On the side of the defendants, 5 witnesses have been

examined. They have marked 10 documents. A Commissioner has been appointed to inspect the suit property and his report and plan were

marked as Exs.C1 and C2.

The Trial Court held that the plaintiff had acquired title to the suit property by prescription and decreed the suit as prayed for. Aggrieved by the

judgment and decree, the defendants in the suit preferred A.S.No.36 of 1995 on the file of Principal District Judge, Sivagangai.

The first Appellate Court has come to the conclusion that the plaintiff has failed to establish his adverse possession for the full statutory period.

The appellate court observed that the plaintiff has proved possession for a period of 10 years before suit. However, it reversed the judgment and

decree of the Trial Court and dismissed the suit.

Aggrieved by the judgment and decree of the First Appellate Court, this appeal has been preferred by the legal heirs of the original plaintiff. The

second appeal was admitted on the following substantial questions of law:-

1.Whether the possession by the plaintiff of the suit property is not sufficient to entitle him to the relief of declaration and injunction against the

defendants, who have failed to prove better title than the plaintiff?

2.Whether the judgment of the Learned District Judge is against Section 110 of Indian Evidence Act?

3.When the lower Appellate Court has rightly found the plaintiff has proved his continuous possession over the suit property, whether he is not

entitled to the presumption of title in his favour and has not the Lower Appellate Court committed an error of law in not seeing that the burden of

proving better title was on the defendants?

Points:

The case of the plaintiff is that the suit property originally belongs to one Sappani. He had three sons namely Poochi, Murugan, and Kumaran.

The case of the plaintiff is that Poochi predeceased Sappani, leaving behind his wife Valli and sons Rasappan and Arumugam. The plaintiff filed a

suit in O.S.No.65 of 1969 on the file of District Munsif, Devakottai against the legal heirs of Sappani on the basis of a pro-note executed by

Sappani. He obtained a decree (Ex.A.1) for recovery of Rs.1798.82 payable from out of the joint family properties of Sappani. Pending suit, the

property in question was attached before judgment and it was made absolute (Ex.A.2). The further case of the plaintiff was that the legal heirs of

Sappani handed over this property in lieu of Ex.A.1, decretal amount and left for Malasiya in the year 1969. The plaintiff claims that he has been in

possession of the property since 1969.

The Defendants 1 to 3 have filed a written statement stating that they are unnecessary parties to the suit. The fourth defendant filed a written

statement and it was adopted by defendants 5 to 7. They admitted that the suit property belonged to Sappani. According to them, after the death

of Sappani, the suit property and other properties were allotted to the share of Poochi @ Karuppan, the eldest son of Sappani. Their further case

is that in a subsequent partition, in the family of Poochi, the suit property was allotted to Chokkalingam @ Arumugam, the younger son of Poochi.

Chokkalingam @ Arumugam executed a power of attorney in favour of the 4th defendant, dated 07.10.1988 in respect of the suit property.

According to them, defendants 5 to 7 owned properties adjacent to the suit property. The fourth defendant on behalf of Chokkalingam @

Arumugam sold the suit properties and executed sale deeds dated 10. 10.1988 in favour of Perumal, Muthu and Elanjsekaran, husbands of

Rukmani, Yasotha, Gomathai/D.5 to D.7 respectively. According to them, they have been in possession since 10.10.1988.

The Learned Senior Counsel for the appellant would submit that the Trial Court has recorded a categorical finding that the plaintiff was in

possession of the suit property and that finding was not upset by the First appellate Court and that therefore, the plaintiff is entitled to a decree as

prayed for.

The learned Counsel for the defendants 5 to 7 would submit that the first appellate court was right in dismissing the suit, since the plaintiff had

failed to establish his title to the suit property. He has contended that no relief can be granted to the plaintiff on the ground that the defendants had

failed to establish their title to the suit property.

The trial Court has found that the plaintiff was in possession of the suit property. The First Appellate Court has come to the conclusion that the

plaintiff has proved his possession only for a period of 10 years before suit. As the plaintiff failed to prove adverse possession for the full statutory

period, the first appellate court has come to the conclusion that the plaintiff has failed to establish his title. The finding of the trial court regarding

possession of the suit property was not upset by the first appellate court. Both the courts below have appreciated the evidence and recorded a

finding to the effect that the plaintiff was in possession of the property and there is no ground for interference with the appreciation of the evidence

on record.

As it has been made clear that the plaintiff was in possession of the property, it is to be seen whether the plaintiff is entitled to an order of

injunction restraining the defendants from interfering with his possession. It is well-settled that possession is nine points in law and that a person,

who has been in long continuous possession of a property can protect the same by seeking an injunction against any person in the world other than

the true owner, vide Prataprai N.Kothari Vs. John Braganza [(1999) 4 Supreme Court Cases 403].

Admittedly, the suit property originally belonged to Sappani. The fourth defendant is claimed to have executed Exs.B.3 to B.5 sale deeds as

power agent of Sappani''s grandson viz., Chockalingam @ Arumugam, younger son of Poochi (son of Sappani). It is significant to note that the

defendants 4 to 7 have pleaded that the suit properties have been purchased under three sale deeds viz., Exs.B.3 to B.5. These sale deeds

admittedly stood in the name of Perumal, Muthu and Elanjsekaran. They are not parties to the suit. In their absence, their title to the suit property

cannot be decided. The plaintiff had pleaded that he had perfected title by adverse possession. But, he did not implead the original owners as

parties to the suit. In these circumstances, I am inclined to keep open the question of title.

The learned senior counsel for the appellant submitted that in terms of Section 110 of the Indian Evidence Act, Court can presume that the

person in possession has a good title and granted the relief of declaration and injunction against any person other than the true owner. However, in

the case at hand, there is clear evidence to the contrary. Therefore, the relief of declaration cannot be granted as prayed for by the plaintiff with the

aid of Section 110 of the Indian Evidence Act.

As the plaintiff has been found to be in settled possession of the suit property, I am of the considered view that he is entitled to an order of

injunction. This will be without prejudice to the right of the owner of the property to get back possession by resorting to the due process of law.

The points are answered accordingly.

For the reasons mentioned above, the appeal is allowed in part. The suit in respect of the relief of injunction is decreed as prayed for by the

plaintiff. This will be without prejudice to the right of the owner of the property to get back possession by resorting to the due process of law. In

other respects, the suit is dismissed. In the circumstances of the case, the parties are directed to bear their own costs.