S. Ganesan vs Bharathirajan

M.M. Sundresh, J.—The plaintiff is the appellant. The suit is filed in O.S. No. 80 of 1993 on the file of Sub Court, Ramanathapuram

seeking declaration and permanent injunction. The case of the plaintiff in a nutshell is as follows.

The suit property originally belonged to one Sonaimuthuservai. In pursuant to the partition deed dated 14.05.1970 which is marked as Ex.A2,

the suit property was allotted to one of his son by name Balu. The said Balu has executed a registered mortgage in favour of the plaintiff in Ex.A3

dated 27.07.1971. As per the said mortgage deed the plaintiff is entitled to enjoy the income arising out of the suit property in lieu of the interest to

the paid by the said Balu. Thereafter a sale deed has been executed by the said Balu in favour of the plaintiff in Ex.A.1 dated 11.06.1975.

According to the plaintiff Ex.A4 to E.A36 would show that the plaintiff is in possession and enjoyment of the same as a owner. Since the wife and

minor children of Balu have sold the suit property in favour of the defendant under Ex.B5 the plaintiff was constrained to file the suit based upon

the title and adverse possession and consequential permanent injunction.

The case of the defendant is as follows.

It is true that the said Balu has executed a settlement deed in favour of his wife and his minor children under Ex.B3. Thereafter, the defendant has

purchased the suit property from the wife and children of Balu under Ex.B5. Hence according to the learned Counsel that in pursuant to the said

sale deed he is the absolute owner of the suit property and therefore the suit will have to be dismissed.

Before the Trial Court the plaintiff has examined two witnesses in support of his case and marked Ex.A1 to Ex.A61. The defendants has

examined three witnesses in support of his case and marked Ex.B1 to Ex.B4. The Trial Court has dismissed the suit by holding that the settlement

made by the said Balu in favour of his wife and minor children is an irrevocable settlement deed. The Trial Court has also observed that ex.B5

clearly says that the executor of the document namely the Balu has no right to change or cancel the settlement deed. The Trial Court has further

held that therefore the position of the plaintiff is only the mortgagee and mere possession of the suit property will not help his case.

Being aggrieved against the same the plaintiff has preferred the present appeal. The learned Counsel for the appellant submitted that, on perusal

of Ex.A3 to Ex.A36 the plaintiff is in possession beyond the statutory period and therefore the Court below ought to have decreed the suit.

According to the learned Counsel that the settlement has not been acted upon since no attempt has been made to change all the records in the

name of the vendors of the document. It is further submitted that the Court below has not even looked into the contention of the appellant

regarding the adverse possession and no issue has been framed for the same. The learned Counsel has also submitted that in as much as settlement

deed having been cancelled by the said Balu the suit is liable to be decreed.

The learned Counsel for the respondent submitted that Ex.B3 being a registered settlement deed which is irrevocable, the unilateral cancellation

of the said document by Balu under Ex.A57 dated 14.03.1975 will not have the sanction of law. It is further submitted that it is not necessary that

possession would be handed over while making gift more so when the document is executed by the donor by referring to the mortgage and having

title to the suit property. According to the learned Counsel that the plea of adverse possession and title based upon document cannot go together

and therefore the Trial Court has rightly dismissed the suit.

I have heard the learned Counsels for the appellant as well as the respondent. It is seen from the records that the settlement deed has been

executed by mere appeal in favour of the vendors of the defendant under Ex.B3. The settlement deed being a registered settlement deed and

irrevocable there is no power vested with the said Balu to reve the same under Ex.A57. Therefore the Court below has rightly held that the

unilateral cancellation of the settlement deed by the said Balu is void since he did not have the title to the suit property. The Trial court has also

referred with the specific Clause in the settlement deed. In pursuant to the settlement deed the defendant has purchased the suit property under

Ex.B5 dated 02.09.1992 which is registered sale deed. Therefore it is clear not withstanding the fact that the possession has not been handed over

to donee under a settlement the same would not invalid the transaction. Similarly u/s 127 of the Transfer of Property Act, 1882 a minor is

competent to accept a gift. As held earlier that the settlement itself makes it clear about the existence of the mortgage. It has been held in the

Judgment reported in K. Balakrishnan Vs. K. Kamalam and Others, that gift of title and ownership of property to the donee need not include

actual possession and the minor is competent to accept the gift.

In so far the plea of adverse possession is concerned, it is well settled principle of law that the plea based upon title and adverse possession

cannot come together. The party who pleads on both grounds will have to stick on to either one of them. Therefore the Trial Court has rightly gone

into the plea of title and has held against the appellant. Moreover no specific averments has been made about the date and manner in which the

plaintiff is enjoying the suit property adverse to the true owner. It is well settled principle of law that the party who pleads adverse possession will

have to establish the said fact. Moreover it is seen that the defendant has purchased the suit property under Ex.B5 only on 02.09.1992. Therefore

the absence of making the vendors of the defendant as parties to the suit would nonsuit the plaintiff in claiming adverse possession. In any case the

plaintiff has not even taken steps to examine them in support of his case.

The plaintiff having taken the plea of ownership based upon title cannot claim adverse possession since under the doctrine of adverse possession

are has to accept the title of the owner. It has been held in M. Ganesa Reddiar and Others Vs. C. Krishnasamy Raju, that in such a case the plea

of adverse possession cannot allowed to be raised. Hence this Court finds that contention of the plaintiff regarding adverse possession cannot be

accepted.

It is further seen that mere possession for any length of time would not lead to adverse possession. The duration or length of possession is not a

factor for deciding adverse possession. In fact in the judgment referred above in K. Balakrishnan Vs. K. Kamalam and Others, the Hon''ble

Supreme Court has also held that apart from non-delivery of possession and non-exercising of any rights over the ownership of the property the

fact that the donee has failed to make mutation in the records would not make the gift deed invalid. This Court feels that the said Judgment of the

Supreme Court applies to the facts on hand as well. For the reason stated above this Court finds that no interference is called for. Accordingly the

appeal is dismissed. Consequently, the C.M.P. is closed. No costs.