Munusamy Gounder and Another vs Sadasivam

S.K. Krishnan, J.—Aggrieved by the judgment and decree of the Additional Subordinate Court, Chengleput in A.S.No. 11 of 1993 dated

14.10.1993, the defendants in O.S.No. 6 of 1988 on the file of the District Munsif Court, Madurantakam, have filed this second appeal.

The case of the plaintiff-in-brief is as follows :

a. The suit properties originally belonged to one Govindasamy Gounder, who is the father-in-law of the plaintiff. He had been in possession and

enjoyment of the same for over many years. All the revenue records were standing in the name of the said Govindasamy Gounder.

b. On various dates during the year 1960, the said Govindasamy Gounder purchased the items 3 to 7 referred to in the plaint schedule from the

first defendant by way of oral purchase and he obtained items 1 and 2 from is mother Periyamukkal Muniammal. Thereafter, the said Govindasamy

Gounder had executed a settlement deed in favour of his wife Ambujammal on 17.11.1961. The said Ambujammal enjoyed that property as an

absolute owner and during the course of her enjoyment she mortgaged the property to one Ramaiah and one Devendiran under the registered

mortgage deeds dated 18.8.1975 and 5.6.1980 respectively. Later on, the said mortgage was discharged. Thereafter, the said Ambujammal sold

the suit properties to the plaintiff for a valuable consideration on 8.2.1983 by executing a sale deed in favour of the plaintiff. Thereafter, the plaintiff

took possession of the suit properties and enjoyed the same till the filing of the suit. All the revenue records stands in the name of the plaintiff.

During the course of enjoyment, the plaintiff put up a motor pumpset in the suit properties. For that he obtained electric connection from the

electricity board in his name. The plaintiff and his predecessors have perfected title to the suit properties by virtue of long and continuous

possession and enjoyment beyond the statutory period. Since the first defendant with an ulterior motive interfered with the peaceful possession and

enjoyment of the plaintiff without any basis or right, the plaintiff instituted the suit against the defendants. Since the defendants attempted to trespass

into the land of the plaintiff on 16.12.1997, the plaintiff approached the Civil Court for declaration and injunction against the defendants 1 and 2.

The averments made in the written statement of the second defendant are as follows:

a. The claim of the plaintiff that the suit property was originally belonged to one Govindasamy Gounder is denied by the second defendant. The

said Govindasamy Gounder never purchased the said property by way of oral purchase from the first defendant during the year 1960. There was

no such oral sale effected between the first defendant and the said Govindasamy Gounder. The second defendant also denied the execution of the

settlement deed in favour of Ambujammal on 17.11.1961 as incorrect and the same was created only for the purpose of grabbing the properties

from the defendants. Therefore, those documents were created to file a suit against the defendants. Since the first defendant was residing at

Malaysia, the second defendant was asked to maintain the properties of the first defendant. The alleged sale deed in favour of the plaintiff by

Ambujammal is not a valid one. For selling the same the vendor did not possess any right over the suit property. Taking advantage of the fact that

the first defendant is not residing in the village, the said Govindasamy has changed the patta by influencing the revenue officials. The patta, which

stands in the name of Govindasamy Gounder and subsequent transfer, is not at all valid and not binding on the defendants. In fact, items 3 to 7 of

the suit properties were purchased by the father of the first defendant under a registered sale deed dated 7.3.1934 for a sale consideration of Rs.

267 from one Murukka Gounder and Danapal Gounder. The first defendant inherited the first and second items of the properties from his grand-

mother. When the first defendant came to the village during November 1987, he came to know that the said Govindasamy Gounder misused his

properties by creating unenforceable documents. Since the first defendant was away from the India, he executed a Power of Attorney, to the

second defendant to look after his properties in the suit village. After the execution of the said Power of Attorney in favour of the second

defendant, the second defendant look after the suit properties. The plaintiff is not in possession of the suit properties. Moreover, no title or interest

devolves upon the plaintiff.

Having considered the relevant issues framed by the trial Court and also considering the relevant documentary evidence adduced by either

parties, the trial Court concluded that the plaintiff is not entitled to get the relief of declaration and injunction in respect of the suit properties. Even

though the plaintiff approached the Court and sought for the relief of declaration and injunction in respect of the properties, he has not established

his case by adducing oral and documentary evidence. However, the trial Court, considering the documentary evidence and also considering the

relevant adangals, came to the conclusion that the defendants were in possession and enjoyment of the suit properties before the institution of the

suit, and therefore, the relief sought for by the plaintiff was negatived and dismissed the suit.

As against the dismissal, the plaintiff preferred an appeal. The first appellate Court having considered the fact that the appellant/plaintiff has not

established that he has derived any right or interest over the suit properties, it held that the appellant/plaintiff has not established the oral sale

effected between the first defendant and the Govindasamy Gounder during the year 1960. Following this, the subsequent settlement deed executed

by the said Govindasamy Gounder in favour of his wife Ambujammal dated 17.11.1961 and the subsequent mortgage deed executed by the said

Ambujammal in favour of one Ramaiah and Devendran are not binding on the defendants.

Moreover, since the first sale itself alleged to have been effected between Govindasamy Gounder and the first defendant was not a valid one, no

interest or title over the suit properties passed on to the said Govindasamy Gounder. Therefore, the subsequent sale in favour of the

appellant/plaintiff by the said Ambujammal is also not valid one and the same is not binding on the first defendant.

In such circumstances, the lower appellate Court endorsed the view taken by the trial Court. Therefore, the lower appellate Court negatived the

relief sought for by the appellant/plaintiff with regard to declaration. However, the lower appellate Court came to the conclusion that the

appellant/plaintiff as well as the vendors of the plaintiff were in possession and enjoyment of the suit properties and therefore, the lower appellate

Court granted injunction against the respondents/defendants.

It is to be noted that while granting said injunction, the lower appellate Court has stated that till the eviction of the plaintiff from the suit

properties, he should not be disturbed. That is the finding given by the lower appellate Court while deciding the appeal.

As against the said order passed by the lower appellate Court the defendants 1 and 2 preferred this appeal and the plaintiff also filed his cross

objection with regard to declaration.

The second appeal was admitted on the following substantial questions of law for consideration.

a. Whether the lower appellate Court was right in granting consequential relief of injunction when the plaintiff is found to have no title especially

against the first defendant who is found to be the true owner having subsisting title ?

Since the plaintiff also preferred cross objection in respect of the relief of declaration it is just and necessary for this Court to discuss the

relevant facts connecting with the said relief. It is a fact that the father of Govindasamy Gounder and the fathers of the defendants 1 and 2 were

brothers. It is also a fact that the first defendant Munisamy Gounder settled at Malaysia. Since the first defendant settled at Malaysia, he asked

other brothers, namely, Govindasamy Gounder and Ponnusamy Gounder to look after his property.

It is an admitted fact that the items 3 to 7 referred to in the plaint schedule purchased by the father of the first defendant Veerasamy Gounder.

The said sale was effected in favour of the said Veerasamy Gounder on 7.3.1934. The father of the first defendant Veerasamy Gounder purchased

the said properties from Murukka Gounder and Danapal Gounder under a registered sale deed dated 7.3.1934 for a valuable consideration. This

fact is also admitted by Govindasamy Gounder.

The case of the defendants is that in the absence of the first defendant, the Govindasamy Gounder instead of protecting his property left by the

first defendant, he attempted to grab the said properties for his benefit, for which, he created a settlement deed in favour of his wife dated

17.11.1961. His wife Ambujammal, subsequently, sold the said property in favour of the plaintiff, who is her son-in-law, on 8.2.1983.

It is seen that the entire transactions in favour of Ambujamnmal and also in favour of the plaintiff have been transacted without the knowledge

of the first defendant. This fact came to know by the first defendant only when he came to India from Malaysia during the year 1987. Thereafter,

he questioned the Govindasamy Gounder. However, he did not receive any satisfactory reply from the said Govindasamy Gounder for handing

over the possession of the said properties from the plaintiff.

Meanwhile the plaintiff on the strength of a sale deed, which was executed by Ambujammal in his favour, filed a suit for the relief of declaration

and injunction against the defendants.

It is seen that the plaintiff claims that he is the absolute owner of the suit property. He also denied the title and interest of the first defendant

over the suit property. The case, of the plaintiff is that originally the said Govindasamy Gounder was the absolute owner of the suit property. He

purchased the same from the first defendant on the basis of the oral sale and thereafter, he was in possession of the suit property. Subsequently, he

settled the same in favour his wife Ambujammal by executing a settlement deed, dated 17.11.1961.

It is further stated by the plaintiff that thereafter, the said Ambujammal was in possession as absolute owner and during her enjoyment of the

same, she executed a mortgage deeds in favour of one Ramaiah and Devendran.

It is contended by the plaintiff that his vendor the said Ambujammal enjoyed the property as absolute owner and on that strength, she executed

a mortgage deeds in favour of Ramaiah and Devendran. Thereafter, the said mortgage was redeemed and the plaintiff purchased the suit property

from her for a valuable consideration on 8.2.1983. By producing the same, the plaintiff claims that he was in possession and enjoyment of the same

continuously till he filed the suit against the defendants. Thereafter, he installed a motor pumpset in the suit property and performed cultivation. For

establishing this fact, he also produced relevant receipts, namely, electricity bills and electricity card under Ex.A. 11 to A. 16. The plaintiff stated

that the first defendant never been in possession and enjoyment of the suit properties for the reason that the first defendant permanently settled at

Malaysia. To prove the case of the plaintiff, he was examined as P.W.1.

It is a fact that the plaintiff approached the Court for the relief of declaration and permanent injunction. In such circumstances, it is the bounden

duty of the plaintiff to establish his case. However, when considering the evidence adduced by P.W.1., he has not at all stated relevant facts with

regard to boundaries and other particulars relating to the suit properties. It is pertinent to refer to the following evidence adduced by P.W.1 in his

cross examination for better appreciation of the plaintiffs case.

As already stated above, since the plaintiff approached this Court for the relief of declaration in respect of the suit properties, he should have

convinced the Court by adducing the oral as well as documentary evidence to establish his case, whereas during the course of his cross

examination P.W.1 has not come forward to establish his case.

One another important point to be noted in this case is that the plaintiff not only claims title over the suit property by way of purchasing the

same from Ambujammal as well as the predecessors in title, but also he also claims adverse possession. In para 5 of the plaint, the plaintiff has

stated as follows:

Prior to plaintiffs vendors were being valid title and were in possession and enjoyment of the same. The plaintiff and his predecessors have

perfected title to the suit properties by virtue of the long and continuous possession and enjoyment beyond the statutory period.

Even though the plaintiff claims that he has been in possession of the suit property for many years without any interruption and with the

knowledge of the first defendant, he has not come forward to establish the same before the Court, whereas he has stated that Govindasamy

Gounder was in adverse possession. In his evidence, the plaintiff has stated as follows:

Even though the plaintiff has pleaded in the plaint that his predecessors as well as himself derived adverse possession over the suit property, he

has not come forward to establish his case by adducing satisfactory evidence as well as by producing documentary evidence. Even though the

plaintiff claims that he is an absolute owner on the basis of the sale deed under Ex.A.4, dated 8.2.1983, which was executed by Ambujammal and

claims that he has been in possession for many years and his predecessors were also in continuous possession and enjoyment for many years, with

regard to long and continuous and uninterrupted possession of the same, P.W.2 Govindasamy Gounder in his cross examination has categorically

admitted that he was supervising the said land and sent some amount to the first defendant. In this connection, it is pertinent to discuss the evidence

of P.W.2.

P.W.2 has stated as follows:

With regard to oral purchase, both P.W.1 and P.W.2 have not come forward to adduce satisfactory evidence for proving the same.

Having considered the fact that even though the plaintiff totally denied the title and interest of the first defendant over the suit property, since he

miserably failed to establish the same, the trial Court as well as the first appellate Court have concurrently held that the plaintiff is not entitled for the

relief of declaration.

Moreover, P.W.2 also admitted the fact that items 3 to 7 of the suit properties belonged to Veerasamy. In this connection, he has stated as

follows:

Since the first defendant is the son of the said Veerasamy, he inherited the said property from his father. Moreover, D.W.1 produced Ex.B.6

adangal. Ex.B.6 relates to pasali 1381, 1382, 1383, 1388, 1389 and 1390. In the adangal, the first defendant name is mentioned. Therefore, the

first defendant was in possession of the suit property prior to the filing of the suit by the plaintiff. Adangal period covers 1970-1981.

Moreover, the said property was cultivated by Govindasamy Gounder as well as the second defendant. This fact has been stated by D.W.1.

In this connection, he has stated as follows:

Moreover D.W.2 also categorically stated as follows:

In such circumstances, considering the oral as well as the documentary evidence of either parties, the trial Court as well as the first appellate

Court have concurrently held that the plaintiff is not entitled to declaration.

As far as the relief of permanent injunction granted by the first appellate Court, the learned counsel appearing for the appellants would

vehemently contend that the said relief given by the first appellate Court in favour of the plaintiff is not sustainable under law for the reason that

since both the Courts have concurrently held that the plaintiff is not the owner of the suit properties.

In such circumstances, as against the true owner, the order of injunction granted against by the lower appellate Court is not sustainable. In this

connection, the learned counsel appearing for the appellants relied on the following decisions.

In Alagi Alamelu Achi Vs. Ponniah Mudaliar, , this Court held as follows:

No Court can by its own order help a party who is found to be in wrongful possession as against the lawful owner. The fact that if the lawful

owner were to institute a suit, he might possibly fail on the ground that he was not in possession within twelve years of suit, could make no

difference and that cannot, in my opinion, be a proper justification for the issue of an injunction virtually maintaining or advancing the wrongful act

of the plaintiffs. I hold, therefore, that the lower appellate Court went wrong in gaining an injunction against the first defendant.

In Premji Ratansey Shah and Others Vs. Union of India (UOI) and Others, , the Supreme Court held as follows:

It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of

declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their

possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained

unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner.

Emphasising the above legal position, the learned counsel appearing for the appellant would submit that the order of injunction passed by the

first appellate Court against the real owner, the first defendant herein, is not sustainable under law and therefore, it is just and necessary for this

Court to interfere with the decision arrived at by the lower appellate Court.

Per contra, the learned counsel appearing for the respondent would rely on the following decisions for consideration.

In Sadasiva Gounder and Anr. v. Purushothaman, 2000 (3) M.L.J. 785, this Court held as follows:

The defendant has come forward with a case of title and having failed in his attempt to prove his title, the question is whether he can claim title by

adverse possession. There is a school of thought that to claim adverse possession there must be an admission that the property belonged to other

party and the party claiming adverse possession has to have this ''animus'' viz., that it is somebody had title and he did not have title. Animus in the

legal parlance would mean mind, design, will, intention, disposition. To claim with regard to possession, the term is animus possidendi, which

means the intention of possession. The person claiming adverse possession must intend in his mind to possess a property as his own. In my view, it

does not mean that he must be conscious that the property belongs to somebody else. All that is required by the term ''animus'' in the context of

adverse possession is that the person must have intention to possess the property as his own. Of course,, in a case where the person sets up title in

himself and fails to substantiate the same the question may rise as to whether such a person can still claim adverse possession. In my view, he can

do so.

As far as the decisions cited by the learned counsel appearing for the respondent is not applicable to the facts of the case. As far as the case is

on hand, the plaintiff in this case, is not a owner. He claims that he is the real owner. However, the first defendant is said to be the real owner of the

suit property. Though the plaintiff claims to be the real owner of the suit property, since he could not establish his case, the relief sought for by the

plaintiff with regard to declaration has not been granted by the Courts below.

In the decisions cited by the learned counsel for the respondent, the plaintiffs are real owners. They seek for declaration and consequential

relief against the defendants. In that case, the plaintiffs, who are real owners, have not established their case. On the contrary, the defendants have

established that the case of adverse possession. In such circumstances, in both the cases, the second appeals were allowed.

In K.Krishnan and Anr. v. S. Mari Naickar and Anr., 2004 (3) L.W. 273 and in Thangamani v. Santhiagu, 2000 (3) M.LJ. 589, the learned

Judges of this Court have categorically discussed the ingredients of adverse possession and therefore, the said decisions are not applicable to the

case on hand.

As far as this case is concerned, the plaintiff claims that he is the real owner and he claims title and interest over the suit properties on the basis

of the sale deed, dated 8.2.1983, which was executed in his favour.

As already discussed above, when the alleged oral sale in favour of Govindasamy Gounder itself is not a valid one, the whatever the

subsequent transaction in connection with the suit properties are not sustainable under law.

In such circumstances, the plaintiff cannot claim any title or interest or ownership over the suit properties. In such circumstances, the Courts

below have categorically held that the plaintiff is not entitled to get such relief.

In addition to that, he also claims adverse possession. The claim of adverse possession is also not established and proved by the plaintiff. In

such circumstances, the decisions relied on by the respondent are not applicable to the case on hand.

On a careful consideration of the oral and documentary evidence adduced by either parties, this Court is of the view that it is just and

necessary for this Court to interfere with the decision of the lower appellate Court. The lower appellate Court without considering the relevant

materials produced by the defendants under Ex.B.6, has erroneously concluded that since the plaintiff was in possession and enjoyment over the

suit properties, he is entitled for injunction till such time of action being taken by the defendants against the plaintiff legally.

In such circumstances, the judgment and decree of the lower appellate Court in respect of granting injunction is liable to be set aside.

Accordingly, the judgment and decree of the lower appellate Court is modified to the extent as indicated above.

In result, the second appeal is allowed and the cross objection filed by the plaintiff is dismissed. No costs.