Sudarsanaswamy vs K. Rukmani Ammal and 18 others

K. Sampath, J.—The second plaintiff is the appellant, One Rani Ammal, since deceased, filed Suit O.S. No. 105/76 against one Gopala

Koundar, since dead, and the respondents herein for declaration of title and delivery of possession of the suit property With past and future mesne

profits and costs on the following averments:

The total extent of 1.77 acres in dry S. No. 78/1 at Kumarakuppam village belonged to one Dhandapani Chettiar, who sold away the South-

eastern 42 cents together with certain superstructure to Munusamy Pillai on 24.11.1959 (ExA-1) for RS300G/-. The said extent of 42 cents was

subsequently sub-divided as S. No. 78/1-B and the same had been marked as ABKJ in the plaint plan. Munusamy Pillai, who took possession of

the same and was in enjoyment, sold it to the said Rani Ammal on d.11.1971 (E.A-3) for Rs. 10,000/- and Rani Ammal took possession of the

same and was in enjoyment in her own right. The deceased Gopala Koundar trespassed upon the suit property, which is a portion in the above

said 42 cents and it was a vacant land shows as ABCDEFGH in the plaint plan. Munasamy Pillai and subsequently Rani Ammal had perfected title

to the said property by adverse possession. Dhandapani Chettiar sold the remaining portions in the said survey number under a sale deed dated

13.11.1959 to one Balarama Kounder and the deceased Gopala Kounder. Balarama Kounder and Gopala Kounder filed a suit in O.S. No.

141/60 before the District Munsif, Vilhipuram, against Munuswamy Pillai and others claiming title in respect of 135 acre excluding the 42 cents

subject matter of the sale in favour of Munusamy Pillai. The suit was decreed on 27.2.1961 and the appeal therefrom in A.S. No. 166/61 was

dismissed on 15.10.1962 (Ex.A-2). The title in respect of 42 cents had been conceded by Balarama Kounder and Gopala Kounder. Gopala

Rounder was estopped from questioning Rani Ammal''s title to the said 42 cents. The said Gopala Kounder had trespassed upon the suit property

measuring 19 cents out of the said 42 cents on or about 153.1972 shown as ABCDEFGH in the plan. He had been deriving good income from

the trespassed portion by various crops. Inspite of demand, he had not delivered possession of the property. He was also denying Ramani

Ammal''s title to the suit properties since 15.6.1974. It would appear that on 2.7.1965 Dhandapani Chettiar executed a sale deed in favour of one

Kanna Pillai purporting to convey a portion of R.S. No. 78/1. The sale deed was not true or valid. It would not be binding on Rani Ammal. There

was no portion left in R.S. No. 78/1 after the sale in favour of Munuswamy Pillai and Balarama Kounder for selling to Kanna Pillai. Kanna Pillai

died in 1972 and his legal representatives were Rukmani Ammal, Vijayan and Gowri Ammal, who were defendants 2 and 4 in the suit, and

respondents 2 and 4 herein. Since the sale deed in favour of Kanna Pillai had cast a cloud upon the title of Rani Ammal, Kanna Pillai''s legal heirs

had also been impleaded as parties in the suit. They never enjoyed any portion of the said 42 cents.

Originally the suit was dismissed. Rani Ammal preferred an appeal. During the pendency of the appeal she executed a Will on 14.4.1978 in favour

of the appellant herein. Rani Ammal died on 20.4.1978. The appeal was remanded and the present appellant came on record as the second

plaintiff and prosecuted the suit.

Gopala Kounder resisted the suit inter alia contending as follows:

Munusamy Pillai never took possession of the property. It was also incorrect to state that Gopala Kounder and Balarama Kounder conceded and

admitted the title of Munusamy Pillai over 42 cents in the earlier proceedings. It was also incorrect to allege that Gopala Kounder trespassed upon

the suit property. The annual income alleged was highly exaggerated. The sale in favour of Munusamy Pillai was not true or genuine. Equally the

sale in favour of Rani Ammal was also not true and valid. It had been held in the earlier proceedings that the entire sale in favour of Munusamy

Pillai was not genuine. The present suit was therefore barred by res judicata. Subsequent to the earlier proceedings in O.S. No. 141/60 and A.S.

No. 166/61 Kanna Pillai had purchased 30 cents in the suit property on 2.7.1965 for Rs. 600/- and ever since the date of the said sale Gopala

Kounder was in possession as a permissive occupant under Kanna Pillai till his death and there after, his legal representatives, viz, respondents 2 to

Thus the title of the deceased Ramani Ammal, if any, got extinguished by adverse possession of respondents 2 to 4 their predecessors in title.

The tress pass alleged was not true. The plea of adverse possession was invented for the purpose of the case. Rani Ammal had not acquired title

by adverse possession.

The trial Court framed the necessary issues and on the basis of the pleadings, oral and documentary evidence, found that Rani Ammal had not

acquired any title in respect of the suit property, that in any event, the suit was barred by the principles of res judicata, that Rani Ammal and her

predecessors in title had not prescribed for title by adverse possession and consequently, the second plaintiff viz, the appellant herein was not

entitled to the relief of declaration and recovery of possession or for mesne profits.

Aggrieved, the appellant herein filed A.S. No. 193/S2 before the Subordinate Judge''s Court, Villupuram. The learned Subordinate Judge found

that the decision in the earlier suit O.S. No. 141/60 and A.S. No. 161/61 would operate as res judicata, that the appellant had not acquired title

by adverse possession in respect of the suit property and that the appellant was not entitled to recover possession or mesne profits and in that

view, by his judgment and decree dated 193.1984 the learned Subordinate Judge dismissed the appeal. Aggrieved, the present Second Appeal

has been filed.

At the time of admission the following substantial questions of law were framed for decision in the Second Appeal:

(1) Whether the lower Court was right in holding that the present claim of the plaintiff would be barred by the principle of res judicata, even when

there was no active contest between the co-defendants in the prior suit and even when it was not necessary to decide the same then?

(2) Whether the lower Court was right in thinking that the plaintiff would not be alternatively entitled to the suit properties by reason for

prescription and adverse possession and whether the lower court was right in merely surmising that the period for prescription would start only

from 24.11.1971?

(3) For its own findings, particularly with reference to the absence of title in favour of the defendants, either proprietary or prescriptive, was the

lower Court still right in negativing the claim of the plaintiff? Will not the defendants be estopped from claiming title to this property? and

(4) Even on the assumption of bare possession on the part of the plaintiff, was the lower court right in not granting the relief on principles of

possessory title?

Mrs. Mala, learned Counsel for the appellant, submitted that the earlier proceedings would not operate as res judicata as the title in respect of

42 cents was not decided in the earlier proceedings and what was decided was only the title of Balarama Kounder and Gopala Kounder to an

extent of 1.35 acres in S. No. 78/1 excluding the property subject matter of the present suit. The learned Counsel further submitted that there were

abundant materials in the case to show that the deceased Rani Ammal, the first plaintiff in the suit, and her predecessor-in-title Munusamy Pillai had

prescribed for title by adverse possession and these materials had been clearly overlooked by the courts below. In any event, the learned Counsel

wanted the possessory title of the appellant to be declared. In support of her submissions, she relied on the following judgments:

(1) Ponnusami Mudaliar and another v. Pappammol Annachatram and others (AIR 1958 Madras 497) and

(2) Nair Service Society Ltd. v. Rev. Father K.C. Alexander and others (AIR 1968 SC 1165 = (1968) - 3 SCR 163).

The learned Counsel also relied on. the oral evidence of P.W.1, and P.W.4 to show that even in November, 1971 the possession of Rani Ammal

had become adverse.

Per contra, Mr. V. Raghavachari learned Counsel, for the contesting respondents, submitted that in the prior proceedings the sale deed Ex.A-1

in favour of Munusamy Pillai had been declared to be void and consequently, the deceased Rani Ammal, who claimed by purchase under Ex.A-2

from Munusamy Pillai, would not derive any title as the sale deed in favour of her vendor had been declared to be not valid. This would operate as

res judicata. Therefore, the finding reached by the Courts below that the principles of res judicata would apply to the present case was in order.

The learned Counsel further submitted that so far as adverse possession is concerned, if at all Munusamy Pillai could claim any possession, it could

be only from the date of passing of the decree for possession in appeal in A.S. No. 166/61, viz, 16.10.1962 and from 15.10.1962 till the alleged

trespass by Gopala Kounder in 1972 the period of 12 years, had not elapsed and there could be no adverse possession. The learned Counsel

relied on the decision of Raju, J. in Veeramuthu v. Puttaiayee (1997 - II CTC 245). The learned Counsel also stressed the fact that deceased Rani

Ammal was guilty of laches as she did come to court nearly four years, after the alleged trespass in 1972. The learned counsel lastly submitted that

the decision of the courts-below was based on an appreciation of oral and documentary evidence and sitting in second appeal this Court could not

interfere with the factual finding u/s 100 of Code of Civil Procedure.

Let us start with the first substantial question of law relating to res judicata. It can be immediately noticed that Balaram Kounder and Gopala

Kounder claimed title to only 1.35 acres in S. No. 78/1 in the earlier suit. They did not claim title to the additional extent of 42 cents, which was

also the subject matter of the sale in favour of Munusamy Pillai under Ex.A-1 on 24.11.1959. The lower Appellate Court has dealt with the

question of res judicata in paragraph 6 of its judgment. It has proceeded on the basis that in the previous proceedings it had been held that the sale

deed in favour of Munusamy Pillai was not true and genuine and according to the learned Judge the above said facts were borne out under Ex.B-2,

certified copy of the plaint in O.S. No. 141/60, Ex.B-1, certified copy of the judgment in O.S. No. 141/60, Ex.A-2 printed copy of judgment in

A.S.166/61 and Exs.B-3 and B-4 certified copies of the decrees in the said suit and appeal respectively. Indeed, Munusamy Pillai had not

preferred any appeal. Though in the earlier proceedings the sale deed had been declared to be not true and genuine, what was in controversy in the

earlier proceedings was the title in respect of 135 acres purchased by Balaram Kounder and Gopala Kounder. There was no controversy with

regard to the 42 cents in the said survey number, which is the subject matter of the present suit. I am clearly of the view that the title to 42 cents

was not in dispute in the earlier proceedings and the decision of the courts below holding that the earlier decree would operate as res judicata

merely because the sale deed had been found to be not true and genuine cannot be sustained. The decision in respect of 42 cents, the subject

matter of the present suit, was not necessary for the determination of the earlier suit. R. Srinivasa Rao v. Kaliyaperumal (79 L.W.180 = 1966 - II

SCJ 259). It has therefore to be held that the earlier proceedings would not operate as res judicata in respect of the 42 cents, subject matter of the

present proceedings. The decision contra by the courts below has therefore to be set aside. The first substantial question of law is therefore

answered in favour of the appellant.

The next question is regarding adverse possession. The lower Appellate Court while dealing with the question of adverse possession finds as

follows:

The first defendant, since deceased, who is only contesting defendant in the present suit under appeal who was examined as D.W. 1 in this suit,

had deposed that while they filed the suit O.S. No. 141/60 the above said Munusamy Pillai was in possession and enjoyment of the entire 1.77

acres. From this evidence we find that after the said suit was decreed the appeal was disposed, they took delivery of the property as per the

decree through court But the delivery receipt is not filed in Court. If we go through this evidence we can very well find that they took delivery of

only 1-35 acres which was subject matter in O.S. No. 141/60 through Court. Therefore, the remaining extent, i.e. 42 cents might have necessarily

been in possession and enjoyment of the said Munusamy Pillai while they took delivery of 1.35 acres. There is nothing to show that they took

delivery of more extent than 135 acres in R.S.78/1. Therefore, from the date of sale deed in favour of Munusamy Pillai, the said Munusamy Pillai

was in enjoyment of the entire 1.77 acres till the said Halarama Kounder and his brother took delivery of 135 acres through Court and after they

took delivery of the said extent, the said Munusamy Pillai continued to be in possession and enjoyment of the remaining 42 cents. There is nothing

to show that Dhandapani (Chettiar or anybody else on his behalf took delivery of any extent in the remaining 42 cents at any time from the said

Munusamy Pillai. D.W.I at one stage has categorically admitted that the building portion which forms part of the said 42 cents belongs to the said

Munusamy Pillai. From this one can reasonably infer that the said Munusamy Pillai alone was in possession and enjoyment of the remaining 42

cents,

Gopala Kounder filed a written statement in the present suit saying that he was in permissive possession after the sale in favour of Kanna Pillai.

Kanna Pillai''s heirs have not chosen to appear and contest the suit, nor did Gopala Kounder examine any of them in support of his case of

permissive possession of the suit property. Ultimately, the lower Appellate Court found as follows;

Therefore when (Gopala Kounder) has not claimed adverse possession) it will not lie in his mouth to state that he has perfected title by adverse

possession. From these circumstances wo can very well find that he purchased the said 30 cents from Kanna Pillai after paying Rs. 600/- is false to

his knowledge.

Thus, the lower Appellate Court has found as a question of fact that Gopala Kounder did not have possession of the suit property at any time prior

to the alleged trespass, This is a question of fact and this finding that Gopala Kounder, the first defendant in the suit, did not have possession of the

suit property at any time has to be accepted.

The next question therefore is whether Rani Ammal had perfected title by adverse possession. While dealing with this question of adverse

possession, the lower Appellate Court made a factual mistake in saying that the first defendant Gopala Kounder trespassed upon the suit property

on or before 2.10.1971. This factual mistake, which goes to the root of the matter, had come to be made because the learned Judge got the wrong

impression that the sale in favour of Rani Ammal by Munusamy Pillai was on 2.7.1971. The sale actually in favour of Rani Ammal by Munusamy

Pillai was on 6.11.1971. The specific case of Rani Ammal, was that the trespass was within two or three months from the date of her purchase.

The learned Subordinate Judge assumed that the date of purchase was 2.7.1971, added three months to that and arrived at a date 2.10.1971 and

adding 12 years to the date of the sale deed, viz, 24.11.1959"" in favour of Munusamy Pillai, he held that twelve full years had not been completed.

This mistake has, indeed, got to be rectified by this Court. If we add 12 years to 24.11.1959, the completion of title by adverse possession would

be on 24.11.1971. The purchase under Ex.A-3 by Rani Ammal was on 6.11.1971. If we add three months to 6.11.1971, the trespass would be

only in February, 1972 which would be after Rani Ammal had perfected title by adverse possession. The possession of Rani Ammal and her

predecessor-in-title Munusamy Pillai from 24.11.1959 had been accepted by the lower Appellate Court. The enjoyment of Munusamy Pillai and

Rani Ammal was beyond dispute.

It was contended by the learned Counsel for the respondents, that adverse Intersession, if at all would commence only from 15.10.1962, the

date of decision in A.S. No. 166/61. According to the learned Counsel, the proceedings in the earlier suit would arrest the running of adverse

possession. The learned Counsel relied on Veeramuthu v. Pitttalayee (1997 - II CTC 245) and in particular, relied on paragraphs 10 and 11 of the

judgment. That was a case where the suit was for declaration of title and injunction. Pending suit the plaintiff obtained an order of interim injunction

and it was held by the learned judge that possession of party by virtue of injunction order obtained from court would not endure to the benefit of

the party who set up plea of perfection of title by adverse possession against real title holder. The learned Judge, having regard to the facts of that

case, held that the said decree in the earlier suit constituted sufficient break in the so-called quality of adverse possession and snapped or disturbed

the continuity of the adverse character of possession. In my view, the decision will not apply to the facts of the present case. Admittedly, the earlier

suit was for declaration and recovery of possession with regard to 135 acres by Balarama Kounder and Gopala Kounder. They did not want

recovery of possession in respect of the present 42 cents claimed by Munusamy Pillai and it has already been noticed that the said 42 cents was

not the subject matter of the earlier suit and it was also found that the said extent was only in the possession of Munusamy Pillai and subsequently

in the possession of Rani Ammal. The earlier proceedings will not arrest the running of adverse possession from the date of sale in favour of

Munusamy Pillai, viz, 24.11.1959.

A Bench of this Court in Rukmani and another v. V. Gopalswamy and another (1993 -II MLJ 598) considered a case where the sale deed

under which the parties claimed title was disputed as void and held that,

even if it was assumed that the sale deed was void, in view of the evidence showing that the vendors were in open, continuous and uninterrupted

possession and enjoyment of the land since 1954 in that case they had acquired title by adverse possession.

Even assuming therefore that the sale dated 24.11.1959 was void, the possession of Munusamy Pillai and after him of Rani Ammal having been

found to be for over 12 years from 24.11.1959, it has to be held that the appellant had prescribed for title by adverse possession with regard to

the present suit property. The second substantial question of law has therefore to be answered in favour of the appellant. The finding of the lower

Appellate Court on the question of adverse possession is therefore set aside and it is held that Rani Ammal had prescribed for title by adverse

possession.

The next question is with regard to declaration of possessory title. It may not be necessary to give a finding with regard to this contention raised

by the learned Counsel. However, for the sake of completeness, I am dealing with the same. It was held in Nair Service Society Ltd., v. Rev.

Father K.C. Alexander & others (AIR 1968 SC 1165 = (1968) - 3 SCR 163) on its fact that the case of the plaintiff as to forcible dispossession

was true, that the view taken in Perry v. Clissold (1907 AC 73) that a person in possession of land had a perfectly good title against all the world

but the rightful owner, had been consistently accepted in India and the amendment of the Indian Limitation Act had given approval to that

proposition. In that case, the unsuccessful defendant set up the plea of jus (sic) and the Supreme Court noticed that such a plea if allowed would

always place the defendant in a position of dominance. He had only to evict the prior trespasser and sit pretty pleading that the title was in

someone else. Admittedly, Gopala Kounder in the present case set up title in Kanna Pillai and that he was in permissive occupation. It has already

been found that Dhandapani Chettiar did not leave any property in S. No. 78/1 to be conveyed to Kanna Pillai. There could not even be any valid

purchase by Kanna Pillai nor could there be any permissive possession by Gopala Kounder from Kanna Pillai.

The Supreme Court in Thirumala Tirupati Devasthanam v. K.M. Krishnaiah (JT 1998(2) SC 231 = (1998)-2-L.W310) has-referred to the

judgment in Nair Service Society Ltd. v. Rev. Father K.C. Alexander (AIR 1968 SC 1165) and followed the ratio that,

even if the time for filing a summary suit u/s 6 of the New Specific Relief Act corresponding to Section 9 of the Specific Relief Act, expired, the

dispossessed person could still file a suit for possession on the basis of the prior possession. Such a suit is described as one based on ''possessory

title''. In such a situation, the defendant who dispossessed the plaintiff could defend himself by proving title and if he proved title, be could remain in

possession.

In the present case, Gopala Kounder or the other respondents had not established their title. The decision of the Supreme Court will squarely

apply to the facts of the present case. In these circumstances, the contention put forward by the learned counsel for the appellant that the

possession of the appellant prior to the dispossession in February or March, 1972 should be recognised and relief of recovery of possession

against the respondents should be granted, has to be accepted.

The third substantial question of law has also to be answered in favour of the appellants. The defendants had neither proprietary nor

prescriptive title as has been found by the lower Appellate Court. The lower Appellate Court ought to have upheld the claim of the appellant. The

respondents were indeed estopped from claiming title to i the suit property. In view of the discussion above, the Second Appeal succeeds and it is

allowed. The judgments and the decrees of the courts below are set aside. The suit will stand decreed as prayed for. There will, however, be no

order as to costs.