Madras High Court
K.Ramasamy vs Ayyasamy on 15 December, 2016
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.12.2016
Reserved on: 25.11.2016
Delivered on: 15.12.2016
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
Second Appeal (MD) No.765 of 2014
and
M.P.(MD)Nos.1 and 2 of 2014
K.Ramasamy : Appellant/Appellant/Defendant
-Vs-
Ayyasamy : Respondent/Respondent/Plaintiff
Prayer: Second Appeal filed under Section 100 of Civil Procedure Code,
praying to set aside the judgment and decree dated 11.07.2014 made in
A.S.No.13 of 2014 on the file of the Sub Court, Sankarankovil, confirming the
judgment and decree dated 22.01.2014 made in O.S.No.45 of 2009 on the file of
the Additional District Munsif Court, Sankarankovil and to dismiss the suit
with costs.
!For Appellant : Mr.A.Arumugam
for M/s.Ajmal Associates
^For Respondent : Mr.M.Vallinayagam
Senior Counsel
for M/s.D.Nallathambi
:JUDGMENT
The defendant in the suit in O.S.No.45 of 2009 on the file of the Additional District Munsif Court, Sankarankovil, is the appellant in this Second Appeal.
2.The respondent herein filed a suit in O.S.No.45 of 2009 for permanent injunction restraining the appellant herein from interfering with the plaintiff's peaceful possession and enjoyment of the suit property. The suit property is an extent of 2.21.0 Hectares equivalent to 5.46 acres in Survey No.72/1, Kuruvikulam Village and Panchayat, Kalugumalai Sub Registration District, Sankarankovil Taluk.
3.The case of the respondent in the plaint are as follows:
3.1.The suit property was the self-acquired property of one Sangava Naicker. After his death, the property devolved on his three sons, namely, Seenivasa Naicker, Rajagopal Naicker, and Samy Ayyaa Naicker. After the death of Sangava Naicker, all the three sons of Sangava Naicker were enjoying the property in common. Thereafter, one of the sons, namely, Rajagopal Naicker died leaving behind his wife Tmt.Rajammal. Another son Samy Ayya Naicker died leaving behind his son Thiyagarajan. Seenivasa Naicker had one son by name Thirupathy. The plaintiff purchased the suit property from the legal heirs of Sangava Naicker by a registered sale dated 25.09.2008 for a valid consideration of Rs.2,07,740/-. The plaintiff is also in enjoyment of the suit property pursuant to the sale deed. The plaintiff is raising green gram, black gram, etc., in the suit property. However, the defendant made an attempt on 25.02.2009 to interfere with the possession of the plaintiff. Hence, a complaint was given to the local police and the defendant was warned by the police. However, the defendant is trying to interfere with the peaceful possession of the plaintiff even contrary to the undertaking he had earlier given to the police. Hence, the plaintiff is constrained to file the suit.
4.The suit was contested by the appellant on many grounds. Though it was admitted by the appellant that the suit property originally belonged to Sangava Naicker, it was the specific case of the appellant that in a partition between one of the sons of Sangava Naicker, namely, Samy Ayyaa @ Pappa Naicker and the other legal heirs of Sangava Naicker, the suit property was allotted to the said Samy Ayyaa @ Pappa Nicker and enjoyed by him. It was the further case of the defendant / appellant that the said Samy Ayyaa @ Pappa Naicker sold the suit property orally in August, 1971 and he confirmed the oral sale by an unregistered sale deed dated 31.12.1971. It was on the basis of the said oral sale and as confirmed by his vendor by an unregistered sale deed, the defendant / appellant claimed that he is in exclusive possession and enjoyment of the suit property for more than 38 years continuously, openly and without any interruption or interference as his own property to the knowledge of all the heirs of Sangava Naicker. It was contended by the defendant / appellant that his vendor died only on 04.01.2008 and that the enjoyment of the defendant / appellant was never objected by any other heirs of Sangava Naicker. It was further contented by the defendant / appellant that he is in settled possession for several years and hence, he had prescribed title by adverse possession.
5.The defendant / appellant further pleaded that without any previous notice, it was the plaintiff who made an attempt to interfere with the enjoyment of the defendant by ploughing the land along with the standing crops.
6.The defendant / appellant also raised a counter claim for a declaration of his prescriptive title and for consequential injunction restraining the plaintiff from interfering with his possession and also from alienating the suit property. The defendant / appellant further prayed in the counter claim that the sale deed in favour of the plaintiff dated 25.09.2008 is fabricated and not binding on the defendant / appellant and for directing the plaintiff to pay a sum of Rs.90,000/- towards compensation for destroying the crops which was standing in the suit property.
7.For the counter claim, the plaintiff filed a reply reiterating the stand in the original plaint apart from denying the averments made in the written statement filed by the defendant.
8.The trial Court dismissed the suit after framing necessary issues and considering the entire evidence on record both oral and documentary. Aggrieved by the same, the defendant / appellant filed an appeal and the appellate Court also framed specific issues and held against the defendant / appellant on all issues. Thus, the appeal filed by the defendant / appellant was dismissed. The present second appeal has been filed as against the concurrent judgment and decree of the Courts below.
9.The learned counsel for the defendant / appellant has raised the following substantial questions of law in the memorandum of grounds and vehemently argued, attacking the judgment and decree of the Courts below:
(1) Whether the Courts below have applied the correct legal principles regarding adverse possession and Section 64 of Limitation Act in the present case especially when the defendant has proved by the positive oral and documentary evidence that he has been in possession of the suit property in open, hostile and continue possession since the date of oral sale of October, 1971?
(2) Whether the Courts below is legally wrong in coming to the conclusion that merely because of oral sale set up by the defendant is not proved, he is precluded from asserting title to the suit property by way of adverse possession bypassing the time tested legal principle that adverse possession can be claimed alternatively apart from claiming title?
(3) Whether Ex.B1, which is a record of past transaction is liable to be registered under Section 17 of Registration Act or liable to be stamped under the Stamp Act?
(4) Whether the suit for mere injunction is maintainable when the defendant has clearly denied the tile of plaintiff in his written statement and whether the suit is liable to be dismissed for want of a prayer for declaration of title?
(5) Whether the finding of the both the Courts that the plaintiff is in possession of the suit property as owner and the finding that the defendant has not prescribed titled to the suit property by adverse possession are result of admission of immaterial, irrelevant and inadmissible evidence and rejection of material, relevant and admissible evidence and whether such a perverse and legally unacceptable finding is liable to be set aside under Section 100 of C.P.C., 1908?
(6) Whether the First Appellate Court has failed to exercise the power granted under Order 41, Rule 33 of C.P.C., 1908 and to hold that the defendant is the owner of the suit property and entitled to damages?
10.Sum and substance, the main argument is only on the question of adverse possession. After referring to the documents filed on the side of the defendant / appellant, the learned counsel for the appellant submitted that the Courts below ought to have accepted the case of adverse possession pleaded by the appellant. Before answering the questions of law raised by the defendant / appellant, it is necessary to refer to the findings of the lower appellate Court which are relevant to consider the questions of law.
11.The appellate Court specifically framed an issue whether the plaintiff is entitled to title under the registered sale deed dated 25.09.2008. Having regard to the admitted facts as borne out from records and oral evidence of witnesses, the appellate Court found that the suit property originally belonged to Sangava Naicker and that after his death, the property belonged to his three sons and their heirs. Even the defendant / appellant did not dispute the sale deed that was obtained by the plaintiff from all the legal heirs of Sangava Naicker under Ex.A1. The settlement register and the joint patta that was in the name of Sangava Naicker and his heirs was produced by the plaintiff. The Encumbrance Certificate produced by the plaintiff also reveals that there was no alienation by any of the heirs of Sangava Naicker before the plaintiff purchases the property under Ex.A1. The plaintiff examined himself as P.W.1 and examined one Thiyagarajan who is the son of Samy Ayyaa Naicker. Hence, on the admitted facts, the lower appellate Court also confirmed the findings of the trial Court that the plaintiff has established his title to the suit property. The case of the defendant / appellant that the sale deed under Ex.A1 is a forged / concocted document was negatived by the lower appellate Court for valid reasons. The lower appellate Court then found in favour of the plaintiff regarding identity of the suit property. From the evidence, both oral and documentary, the lower appellate Court also found that the plaintiff has proved his possession and enjoyment over the suit property. The lower appellate Court then considered the case of the defendant / appellant whether he has proved his right under the oral sale followed by the unregistered sale deed under Ex.B1. Since the law is settled that an unregistered and unstamped document cannot be relied upon for any purpose, the lower appellate Court rightly held that the document Ex.B1 is inadmissible in evidence. The case of the defendant / appellant that there was a partition among the heirs of Sangava Naicker and that the suit property was allotted to one of the sons of Sangava Naicker by name Samy Ayyaa Naicker was not proved by any evidence. Though the partition alleged was oral, there was no document to show that the property was enjoyed by the three sons independently by getting separate patta for the suit property. No patta was produced to show that the suit property was standing only in the name of Samy Ayyaa Naicker @ Pappa Naicker. The lower appellate Court found that the defendant / appellant has not let in any evidence to prove the alleged partition with reference to the date, place and parties. No independent witness was examined to prove the case. It is pertinent to mention that even the sale deed under Ex.B1 does not refer to the partition that was alleged by the defendant / appellant. In the absence of any document to prove title, the lower appellate Court held that the defendant / appellant is not entitled to any right under Ex.B1. The appellate Court also went further that the document Ex.B1 is not only inadmissible in evidence, even for a collateral purpose but also a document fabricated by the defendant after considering the document Ex.B1 and the evidence of the witnesses apart from other circumstances.
12.The lower appellate Court has then considered the question whether the defendant / appellant has prescribed title by adverse possession pursuant to the document Ex.B1. The trial Court as well as the appellate Court have considered the issue after analysing the entire evidence on record along with pleadings. Every document filed by the defendant / appellant namely Ex.B1 to B12 were considered by the courts below and found that the defendant / appellant has not proved his case. The kist receipts were found to be in different names and many of the documents do not relate to the patta for the suit property. In such circumstances, the lower appellate Court is right in coming to the conclusion that the kist receipts are not pertaining to the suit property so as to substantiate the case of continuous possession by the defendant / appellant. The adangal extracts produced under Ex.B4 are pertaining to some other property and were obtained very recently. The document Ex.B4 is a certificate issued by the Village Administrative Officer to prove the appellant's possession. These documents do not prove the defendant's /appellant's enjoyment especially having regard to the title of plaintiff and evidentiary value of the revenue records where there is rival claim.
13.Ultimately, the conclusion of the lower appellate Court that the defendant/appellant has not established his possession and the ingredients for claiming title by adverse possession. The lower appellate Court also has relied upon the inconsistencies in the evidence of defendant while considering the question of possession. Again the lower appellate Court relied upon the Court document X1 to X19 and pointed out that the defendant has not explained the discrepancies in those documents which could be manipulated any time with the connivance of the officials. Further, those documents are very clear with regard to the identity of the suit property as the entire extent of 5.46 acres in the suit property having shown in three different survey fields without any corresponding document to prove the sub division. Hence, upon the oral appreciation of evidence on record and in the light of settled principles of law, the lower appellate Court has negatived the plea of adverse possession. Finally, the contention as to the maintainability of the suit for bare injunction without a declaration of title was also answered in favour of the plaintiff.
14.Let me consider the questions of law raised by the appellant in the light of the factual findings of the Courts below. The questions of law 1 and 2 relate to adverse possession. Except making a submission on general principle, the learned counsel for the defendant / appellant was not able to demonstrate how the judgments of the lower appellate Court is vitiated. The learned counsel for the defendant / appellant relied upon the judgment of the Privy Council in the case of Lala Hem Chand v. Lala Pearey Lal and others reported in (1943) 1 MLJ 11 (PC) wherein it has been held that the property in respect of which the trust was created and the said creation of trust was held to be void, the person who retain possession for more than the statutory period was held to have prescribed to the adverse possession. It was further held in that case that the provision in the Will creating the charitable trust is invalid and Section 10 of the Limitation Act is inapplicable to the case. Hence, it was further held in that case that the property held by the executor was adverse to the real owner and the possession of the executor for more than the statutory period would give him title by prescription. The learned counsel for the appellant further relied upon a Constitution Bench judgment of the Hon'ble Supreme Court in the case of Collector of Bombay v. Municipal Corporation of the City of Bombay and others reported in AIR (38) 1951 SC 469 wherein the Hon'ble Supreme Court has held as follows:
?5. ... Both parties acted on the basis of that Resolution and the predecessor in title of the respondent Corporation went into possession of the land in question pursuant to the Government Resolution of 1865 and, acting upon the said Resolution and the terms contained therein, the respondent Corporation and its predecessor in title spent considerable sums of money in leveling the site and erecting and maintaining the market buildings and have been in possession of the land for over 70 years. What, in the circumstances was the legal position of the respondent Corporation and its predecessor in title in relation to the land in question ? They were in possession of the land to which they had no legal title at all. Therefore, the position of the respondent Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under color of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant. This possession has continued openly, as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity free from rent but only for the purposes of a market in terms of the Government Resolution of 1865.?
15.The learned counsel for the appellant relied upon a judgment of the learned Single Judge of this Court in the case of Parvathy Thilagam and others v. Rengasamy Nadar (Died) and others in S.A.No.1289 of 2002, dated 23.08.2016, for the proposition that the possession of a person on the basis of a oral sale is illegal and hence, became adverse to the true owner. The learned counsel for the appellant then relied upon a judgment of the Hon'ble Supreme Court in the case of Achal Reddy v. Ramakrishna Reddiar and others reported in 1991 (1) MLJ 32 wherein the Hon'ble Supreme Court has held in paragraph 10 as follows:
?10. In the case of an executory contract of sale where the transferee is put in possession of the property in pursuance of the agreement of sale and where the parties contemplate the execution of a regular registered sale deed the animus of the purchaser throughout is that he is in possession of the property belonging to the vendor and that the former's title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and convey his title. The purchaser's possession in such cases is of a derivative character and in clear recognition of and in acknowledgement of the title of the vendor. The position is different in the case where in pursuance Of an oral transfer or a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property. In such a case the owner of the property does not retain any vestige of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether. The transferee after getting into possession retains the same with the clean animus that he has become the absolute owner of the property and in complete negation of any right or title of the transferor, his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person. So far as the vendor is concerned both in mind and actual conduct, there is a total divestiture of all his right, title and interest in the property. This applies only in a case where there is a clear manifestation of the intention of the owner to divest himself of the right over the property. On the other hand in the case of an executory contract the possession of the transferee until the date of registration of the conveyance is permissive or derivative and in law is deemed to be on behalf of the owner himself. The correctness of the decision in Annamalai v. Muthiah (supra) cannot, therefore, be doubted.?
16.Again the learned counsel for the appellant relied upon a judgment of the leaned Single Judge of this Court in the case of N.S.Spance v. D.S.Kanagarajan and another reported in 2005 (1) CTC 494 wherein the general position of law is stated in paragraphs 16 and the learned counsel relied upon paragraphs 24 and 25 and hence, they are extracted as follows:
?16. A possession based upon trespass is an offence at its origin. But that possession, if not disturbed, allowed to continue well over the statutory period viz., more than 12 years, it confers right to such property, upon the person, who had committed trespass. Thus, a trespasser, as well as a person who takes a property by forcible possession and continue to enjoy the same uninterruptedly for more than 12 years, his right is recognised under law, extinguishing the title of the original owner, subject to certain conditions. The law is well settled and it may be unnecessary to quote any judicial precedent also, that in order to perfect title by adverse possession, the ingredients required, which are inseparable are; corpus possidendi and animus possidendi i.e the physical possession on the one hand and the intention to exclude the real owner if any from possession, without concealment, with adequate continuity upon enjoyment. In this view, it is said, mere possession alone will not constitute adverse possession, unless it is accompanied by open assertion of hostile title.
24. The submission of the learned counsel for the respondents, that mere possession alone is not sufficient to claim title by way of adverse possession, in this case, is not acceptable to me, since the possession of the plaintiff here cannot be described as mere possession, without exercising the right of the ownership. It is not only admitted, but also established by evidence that the plaintiff had leased the suit property, collected rent, transferred the property registered in his name and denied the title of the defendant also, when it was challenged. It is unnecessary, that the person, who is enjoying the property should inform to the real owner, that he is enjoying the property adversely against the true owner in categorical term. If it could be inferred from the attending circumstances, that to the knowledge of the owner, the person is enjoying the property, which was not disturbed, that itself is sufficient to conclude, that to the knowledge of the original owner, here the plaintiff is enjoying the property, thereby it should give and confer title upon the suit property in favour of the plaintiff. In otherwords, it had extinguished the title to the first respondent in respect of share.
25. As submitted by the learned counsel for the respondents, it is for the person, who claims adverse possession, to prove that his possession had became adverse to the real owner, as held in Naran Behera v. Mohan Jethi and mere possession over a statutory period is not sufficient to succeed in the plea of adverse possession, unless it is accompanied by adverse animus as held in Venkatachalaiah v. Nanjundaiah (AIR 1992 Karnataka 270). It is also held in the above decision that the alternative plea of adverse possession set up by the plaintiff cannot, therefore, be accepted, which does not mean that alternative plea is not permissible, since adverse animus has not been established in that case. The above decision may not come to the aid of the defendant in this case, in view of the hostile possession established, that too to the knowledge of the first defendant. The contention of the learned counsel for the respondents, that the possession must be without title against a person with original title and then only adverse possession would arise, is not acceptable, since a person, who is in possession of the property, is entitled to take alternative plea, as pointed out supra.?
17.The learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court in the case of Bondar Singh andothers v. Nihal Singh and others reported in 2004-1-L.W.706 wherein the relevant portion in paragraphs 5 and 6 are extracted for convenience:
?5.The main question as we have already noted is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9.5.1931 by Fakir Chand, father of the defendants in favour of Tola Singh, the predecessor interest of the plaintiff, is an admitted document in the sense its execution is not in dispute. The only defence set up against said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorized. It is significant to note that the sale deed is dated 9.5.1931 and Fakir Chand died somewhere in the year 1949-50. During his lifetime Fakir Chand never disputed plaintiffs' title or possession of the suit land. There is other reliable evidence on record which establishes that the plaintiffs have been in continuous possession of the land in question.
6. ... while the plaintiffs have been denying their title to the suit land and were setting up their own title to the same. This lends support to the plea of adverse possession set up by the plaintiffs. It will be seen from this clear and clinching evidence on record that the plaintiffs were in continuous and uninterrupted possession of the suit land since 1931 and they had been setting up a hostile title thereto as against the defendants. The defendants were asserting their title to the land since 1956. They had however failed to get possession of the suit land. The plea of adverse possession raised by the plaintiff is thus clearly established.?
18.By referring to the above judgments, the learned counsel for the appellant submitted that if possession is being held by a person under invalid title and continues to remain in possession for more than 12 years, the title of the possessor becomes unassailable because such person acquires title by prescription. Since the defendant in the present case pleads possession on the basis of an invalid oral sale, he may not acquire title by unregistered sale deed but his title by adverse possession has been established. The learned counsel for the appellant relied upon a judgment of the Kerala High Court in the case of B.Valsala v. Sundaram Nadar Bhaskaran reported in AIR 1994 Kerala 164 wherein it has been held that a co-owner is entitled to maintain a suit against the trespasser for declaration and recovery of possession and however, an exception is reiterated in the said judgment. It has been held that if the co-owner claims exclusive right in derogation of the interest of the other co-owners, such co-owner is not entitled to maintain suit. The relevant portions in paragraphs 12 and 13 are extracted as follows:
?12. A tenant continuing in possession after the determination of his tenancy, without the assent of the landlord being thus only in the position of a trespasser, necessarily the rule relating to suits against trespassers by a co-owner must apply that is a co-owner can in his own right sue for recovery of possession from such a person without arraying the other co- owners as parties to the suit.
13. But the question still arises as to whether the plaintiff in this case can recover possession from the defendants. An exception to the rule above mentioned has been made where the suing co-owner claims exclusive title to the property in derogation or denial of the rights of the other co-owners. In such an event, the co-owner whose rights are denied or against whose interest the plaintiff is suing is a necessary party to the suit, and his absence will be fatal to the suit itself.?
19.The argument of the learned counsel for the appellant relying upon this judgment has not been raised earlier. Since the plaintiff claims title only on the basis of the sale deed executed by the heirs of the original owner, this issue does not arise in this case. Further, plaintiff's title is not denied by any other heir who is not a party to the sale deed that was executed in favour of the plaintiff and hence, this issue is neither permissible nor sustainable. The contention of the learned counsel for the appellant relying upon the judgment is rejected.
20.The learned Senior Counsel appearing for the respondent would rely upon the judgment of the learned Single Judge of this Court in the case of Govindan and other v. Jayalakshmi Ammal reported in 2010 (2) MWN (Civil) 426 wherein the learned Single Judge after taking note of Section 54 of the Transfer of Property Act, held that an oral sale in respect of a immovable property of value more than Rs.100/- is not valid in law. Though no authority is required for the said proposition and Section 54 of the Transfer of Property Act is very clear. However, the defendant's case that his possession became adverse from the date of oral sale has to be considered having regard to the facts of this case. It is to be seen that the trial Court as well as the appellate Court have categorically found that the plaintiff is in possession of the suit property as on the date of suit. The trial Court has accepted the case of the plaintiff regarding his enjoyment by giving eight reasons. Apart from the fact that the plaintiff has proved his title under Ex.A1 and the admission that patta stands in the name of the plaintiff's vendor even as admitted by the defendant, the Courts below referred to the documents filed by the defendant and found that those documents are not relating to the suit property. The evidence of defendant with regard to the revenue records it can be seen that they are not reliable and the defendant was only trying to mislead the Court by producing documents without any proof or corroborating documents to show that the documents filed by the defendant relates to the suit property. The plaintiff's possession and enjoyment having been proved, as a matter of fact, there is no question of considering the issue relating to adverse possession pleaded by defendant. Since, the question of adverse possession has been seriously pressed into service it is necessary to consider in the light of the precedents that were referred to by the learned counsel for the appellant. It can be seen that the defendant has relied upon a oral sale and a document namely the unregistered and unstamped sale deed dated 31.12.1971. Though the unregistered sale deed was executed by one of the sons of Sangava Naicker as his absolute property, his son one Thyagarajan was examined as P.W.2. P.W.2 categorically disputed the genuineness of the unregistered sale deed marked as Ex.B1. P.W.2 specifically denied the signature of his father in Ex.B1. P.W.2 categorically stated in his evidence that the vendors of the plaintiff were in peaceful possession and enjoyment of the suit property till the property was sold in favour of the plaintiff. Since the execution of the document itself is in dispute, the contention of the learned counsel for the appellant that the possession of the defendant became adverse from the date of the invalid sale cannot be accepted. Since the execution of the document Ex.B1 is specifically denied and it is not open to the defendant to rely upon the unregistered and unstamped document for the purpose of proving his enjoyment. The unregistered document cannot be relied upon for the purpose of proving execution as execution of a document cannot be for collateral purpose. Hence, this Court rejects the contention of the learned counsel for the appellant that the defendant's possession became adverse from the date of Ex.B1 and that the defendant has prescribed title by adverse possession.
21.The learned Senior Counsel for the respondent relied upon another judgment of this Court in the case of D.Arunachalam v. P.Ekambaram and others reported in 2012 (1) MWN (Civil) 8 wherein the Single Judge of this Court held that a person may not be able to succeed in his plea of adverse possession, if his initial possession was lawful. If this principle is applied, having regard to the case pleaded by the defendant in the written statement, the appellant cannot sustain his plea of title by prescription. Again the learned Senior Counsel appearing for the respondent relied upon another judgment of this Court in the case of Govindan and other v. Jayalakshmi Ammal reported in 2010 (2) MWN (Civil) 426 wherein this Court dealt with a plea of adverse possession by a person who pleaded a oral sale similar to the case on hand. The case of the appellant relying on the basis of an unregistered and unstamped document of sale cannot be relied upon to prove the case of the plaintiff. The position is reiterated in several judgments of this Court and the Hon'ble Supreme Court. The judgments in the case of Govindan and other v. Jayalakshmi Ammal reported in 2010 (2) MWN (Civil) 426 and in the case of Ruckmangathan v. Ramalingam reported in 1998 (1) MLJ 114 are relevant in this aspect.
22.It is pertinent to mention that Ex.B1 is not a document where a past transaction is recorded as rightly held by Courts below and it is a document intended to create right in presenti and hence, there is no substance in the third question of law. With regard to the maintainability of the suit for bare injunction, it is to be seen in the present case that the plaintiff has neither considered nor acknowledged the claim of title by the defendant. Hence, having regard to the averments in the plaint, a suit for bare injunction is maintainable. Further, the defendant / appellant in this case has specifically admitted the fact that the suit property originally belonged to one Sangava Naicker under whom the plaintiff and the defendant claim. Since the defendant / appellant claimed titled by adverse possession on the basis of an unregistered sale deed under Ex.B1 which is not admissible in evidence, the Courts below are right in holding that the suit is maintainable. A suit for bare injunction is maintainable against any one who has no better title than the plaintiff. Even for a suit for bare injunction, the question of title can be incidentally gone into and having regard to the facts in this case that the defendant / appellant has not even pleaded a case to get him title, the suit for bare injunction cannot be dismissed on the ground of failure to seek declaration of title. The fifth question of law is also relating to the findings of the Courts below which have been approved by this Court as proper and do not suffer from any legal infirmity. The lower appellate Court has framed necessary issues and it is surprising to note that the appellant has raised a mechanical ground as seen from the sixth question of law. No argument was advanced by the learned counsel for the defendant / appellant on the sixth question of law. In the light of the findings of the Courts below on all issues against the defendant / appellant, I am unable to find any legal infirmity or error in appreciation so as to hold that the findings are perverse. The Second Appeal has therefore no merit and hence, dismissed. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are closed. .