Madras High Court
Vasudevan vs S.Velayudham (Died) ... 1St on 8 July, 2025
Author: T.V. Thamilselvi
Bench: T.V. Thamilselvi
S.A.No.405 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.07.2025
CORAM:
THE HONOURABLE MRS. JUSTICE T.V. THAMILSELVI
S.A.No.405 of 2007
and
C.M.P.No.6006 of 2020
1.Vasudevan
2.V.Rajendran
3.Rajeswari
4.Shanthi ...Appellants/Appellants/Defendants 4 to 7
Vs.
1.S.Velayudham (died) ... 1st Respondent/Respondent/Plaintiff
2.S. Palani ...2nd Respondent/Respondent/2nd Defendant
3.Kasthuri
4.Amudha
5.Mariappan
6.Babu
7.Dilli
8.Manjula
9.Uma ...Respondents
[R3 to R9 brought on record as legal representatives of the deceased 1st
respondent vide order of this Court dated 03.02.2023 made in C.M.P.No.7236
of 2022 in S.A.No.405 of 2007 by RHJ)
1/20
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S.A.No.405 of 2007
Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code
against the Judgment and Decree dated 28.12.2006 made in A.S.No.134 of
2005 on the file of the learned Additional Subordinate Judge, Chengalpattu,
confirming the Judgment and Decree dated 17.10.2005 made in O.S.No.2603 of
1997 on the file of the learned District Munsif, Alandur.
For Appellants : Mr.R.Thiagararjan
For Respondents : Mr.M.K.Murali for R2
Mr.M.V.Seshachari for R3 to R9
JUDGMENT
Challenging the concurrent findings of the Courts below, the defendants
4 to 7 preferred this Second Appeal.
2.The parties are described in the same array as in the Original Suit.
3.The 1st respondent is the plaintiff in O.S.No.2603 of 1997 on the file of
the learned District Munsif, Alandur, filed for partition claiming 1/3 share in
the suit property against the two defendants.
4.According to the plaintiff, the suit property as described in the Plaint
schedule, viz., the lands measuring an extent of 25 cents situated at S.No.119/4
in Zamin Pallavaram Village, Saidapet Taluk, with four boundaries, originally
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belongs to one Nagammal, who is the wife of Ponnurenga Naicker, and the
same was conveyed to one Deivayanai Ammal, who is the wife of Ponnappa
Naicker. The said Ponnurenga Naicker had two brothers, namely, Ponnappa
Naicker and Subramania Naicker. The plaintiff and the 2nd defendant are the
legalheirs of Subramania Naicker. After demise of Deivanai Ammal, the
plaintiff and the 2nd defendant are entitled to 2/3 share in the suit property.
Inspite of demands, the 1st defendant did not agree for an amicable partition of
the suit property. The husband of Deivanai Ammal died in and around 1943.
Thereafter, she struggled for her survival. In these circumstances, Nagammal
executed a Maintenance Deed dated 06.10.1992. As per the recitals in the
Maintenance Deed, the said Deivayanai Ammal can enjoy the suit property till
her lifetime without any power of alienation and after her demise, the suit
property should go to the male heirs of Nagammal and Subramania Naicker.
The said Deivayanai Ammal died 16 years ago. The plaintiff and the 2nd
defendant are the legal representatives of Subramania Naicker. The 1st
defendant is the male issue of the said Nagammal. As per the Maintenance
Deed, after the demise of Deivayanai Ammal, the plaintiff along with other
defendants each entitled to 1/3 share as male heirs. But, the 1st defendant did
not agree for partition. Therefore, he issued a notice dated 07.07.1984 but gave
false reply. Hence, this suit.
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5.Pending the suit, the 1st defendant died leaving behind the defendants 3
to 7 as his legal heirs. The 2nd defendant remained ex parte before the Trial
Court.
6.The 1st defendant contested the suit stating that the suit property
absolutely belongs to his other Nagammal. He denied the other allegations
made in the Plaint. He submitted that after the death of Deivayanai Ammal's
husband in and around 1943, she struggled for her survival. Therefore, the said
Nagammal executed a Maintenance Deed dated 06.10.1992 through which she
intended to help her. As per the deed, the said Deivayanai Ammal can enjoy
the suit property till her lifetime without any power of alienation as she suffered
at the time and after her demise, the suit property should go to the heirs of
Nagammal only. She never intended to give her property to any other persons.
The recitals in that Deed was inserted without her consent and knowledge.
Even otherwise the documents were not acted upon. After the demise of
Deivayanai Ammal, the property should go to the heir of Nagammal, namely,
the 1st defendant. Ever since from the death of Deivayanai Ammal, i.e., from
1962 onwards, the 1st defendant alone is in absolute possession and enjoyment
of the suit property in his own right as absolute owner. The possession and
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enjoyment of the suit property by the 1st defendant has been open continuous,
uninterrupted and also adverse to the interest of all the persons, including the
plaintiff and the 2nd defendant. Furthermore, the plaintiff had already filed a
suit in O.S.No.1616 of 1988 before the District Munsif, Poonamallee and the
same was dismissed for default on 06.01.1992. The plaintiff is not entitled for
any share. The alleged Court Fee is also not correct one and prayed for
dismissal of the suit.
7.In the meanwhile, the 1st defendant died leaving behind his legal heirs.
They contested the suit. The 2nd defendant remained ex parte before the Trial
Court.
8.Considering the evidence on record, the Trial Judge framed two issues
and the foremost issue is whether the plaintiff is entitled for 1/3 share in the suit
property?. On the side of the plaintiff, the plaintiff had examined himself as
P.W.1 and Ex.A1 to Ex.A5 were marked. On the side of the defendants, the 4th
defendant had examined himself as D.W.1 and Ex.B1 to Ex.B3 were marked.
9.The Trial Court, after taking into consideration the oral and
documentary evidences of both sides, held that the relationship between the
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parties are undisputed fact. Also Ex.A.1 - Maintenance Deed dated 06.10.1992
produced on the side of the plaintiff was considered by the Trial Court. As per
the recitals of the document, the mother of the 1st defendant, namely,
Nagammal, executed a Maintenance Deed in favour of her husband's brother's
wife, namely, Deivayanai Ammal, giving life interest to maintain herself. After
her demise, the property shall devolve upon the male heirs born to her and her
husband's another brother Subramania Naicker and she intended to convey the
property to the male heirs since the plaintiff being the son of Subramania
Naicker is entitled to 1/3 share. The Trial Judge also held that though the 1 st
defendant claimed continuous possession from 1962 onwards he has not
produced the relevant documents from that period. There is no plea of ouster
made by the 1st dependant in the pleadings. Mere long continuous possession is
not enough to prove the adverse possession by one co-sharer against the others
and thereby, the claim of adverse possession made by the 1st defendant was held
as unsustainable and the suit was decreed as prayed for.
10.Aggrieved over the Judgment and Decree of the Trial Court, the
defendants 3 to 7 preferred an appeal in A.S.No.134 of 2005 on the file of the
learned Additional Subordinate Judge, Chengalpattu. The Appeal Suit was
contested by the plaintiff and the 2nd defendant who are the sons of Subramania
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Naicker. The First Appellate Court after analysing the evidence as well as the
documents framed separate point for consideration. The foremost issue is
whether the appellants have perfect title over the suit property by adverse
possession and ouster? Considering the evidence on record, the First Appellate
Judge by relying the Ex.A.1 – Maintenance Deed executed by Nagammal in the
year 1949 and it was attested by her husband and her son, namely, the 1st
defendant. During her lifetime of Nagammal, she has not disputed to the
recitals of Ex.A.1. So, the recitals of the documents are unambiguous.
Therefore, the suit property was devolved upon to the male heirs of Nagammal
and Subramania Naicker. After the demise of Deivayanai Ammal, as a male
heirs, the plaintiff and the defendants 1 and 2 are entitled to 1/3 share and also
held that the defendants 4 to 7 has not produced any document to show the
continuous possession and all were the co-sharers and enjoyment of one co-
sharer deemed to be in possession on behalf of other sharerer. Therefore, the
plea of adverse possession by the 1st defendant is unsustainable. Accordingly,
the findings of the Trial Court was confirmed and the Appeal Suit was
dismissed. Challenging the concurrent findings of the Courts below, the
defendants 4 to 7 preferred this Second Appeal.
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11.At the time of admission, this Court had framed the following
Substantial Questions of Law:
“(a)Is the interpretation of Ex.A.1 by the Lower Courts
correct?
(b)In the absence of necessary and proper parties in a
suit for partition, is the suit maintainable?
(c)Are the Lower Courts correct and justified in
negativing the case of the defendants regarding claim based on
adverse possession?”
12.The learned counsel appearing for the appellants would argue that the
Courts below erred in rejecting the plea of adverse possession made by the
appellant. When they clearly proved that they described title by adverse
possession the documents relied by these defendants have not been properly
appreciated. Hence, he prayed to set aside the findings of the Courts below.
He would argue that the Courts below erroneously appreciated Ex.A.1 and
granted 1/3 share in favour of the plaintiff, as such, is erroneous and without
considering the long and uninterrupted possession by the 1st defendant, the
findings of the Courts below is liable to be aside.
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13.The learned counsel for the appellants would contend that the alleged
Ex.A.1 – Maintenance Deed was not acted upon. Even the recitals are true and
valid for the reason that after demise of Deivayanai Ammal, the 1 st defendant,
son of Nagammal alone in possession and enjoyment of the properties open
continuous with the knowledge of the plaintiff ever since from the year 1962
onwards. But the same has not been properly appreciated by the Courts below.
Therefore, the findings of the Courts below is perverse and liable to be set
aside. Even before the Trial Court proper issued has not been filed in respect of
adverse possession pleaded by the contesting defendants. Without which,the
First Appellate Court confirmed the findings of the Courts below as such is
erroneous and liable to be set aside.
14.In support of his arguments, the learned counsel for the appellants
relied the Judgment of the Supreme Court in Ravinder Kaur Grewal and
others v. Manjit Kaur and others [(2019) 8 Supreme Court Cases 729].
(A)(1).Limitation Act, 1963 – S. 27 and Arts. 65 and 64 –
Acquisition of Ownership by possession – effect of elapse of
period prescribed for loss of ownership by adverse possession –
Nature of rights acquired by adverse possessee thereupon –
Remedy available to person who perfects his title to proerty by
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adverse possession (Art. 65), and even to person in settled
possession who is yet to perfect his title by adverse possession
(Art. 64)
(1)Firstly, held, once 12 years' period of adverse
possession is over, the owner's right to eject the person in
adverse possession (adverse possessee/ possessory owner) is lost
and the possessory owner acquires the right, title and interest
possessed by the outgoing person/owner, as the case may be,
against whom he has established the period of prescription.
(2)Secondly, held, such adverse possessee/possessory
owner can not only seek to protect his title as defendant in a suit
but can also file suit for declaration of his title and for
permanent injunction restraining defendant from interfering with
his possession, where owner whose title stood extinguished, or
any other person seeks to dispossess him from property - This
would include the case where the property is sold away by the
owner after the extinguishment of his title: in which case also a
suit can be filed by a person who has perfected his title by
adverse possession to question alienation and attempt of
dispossession Rulings of Supreme Court holding that person who
had perfected his title by adverse possession could only protect
his title as defendant in a suit, but could not file a suit for
declaration of his title/protection of his possession, overruled.”
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15.By way of reply, the learned counsel for the respondents would
contend that as per the recitals of Ex.A.1 – Maintenance Deed, Nagammal, who
is the original owner of the suit property has given limited interest to her
husband's brother's wife Deivayanai Ammal and thereafter, she intended to give
her property to the male heirs of her family and her husband's brother's family.
Therefore, the plaintiffs and the defendants are the male heirs are entitled to
benefit under Ex.A.1 – Maintenance Deed dated 06.10.1992. Accordingly, the
Trial Judge has rightly granted 1/3 share in the suit property. Furthermore, the
possession of one co-sharer deemed to be in possession of other sharers.
Therefore, The 1st defendant being the co-sharer is not entitled to claim adverse
possession and the same has also been proved which was rightly appreciated by
the Courts below, needs no interference. Hence, he prayed to dismiss the
appellant as no merit.
16.In support of his arguments, the learned counsel for the respondents
relied the following authorities:
“(1) Ram Gopal Vs. Nand Lal [AIR 1951 SC 139
(2) Sokkuthai Ammal Vs. Pandiaraj [1997 (2) MLJ 136]
(3) Kuppusamy Naidu Vs. Kuppusamy Naidu [1998 (2) MLJ 648]
(4) P.Lakshmi Reddy Vs. L.Lakshmi Reddy [AIR 1957 SC 314]
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(5) AKJ.Subbathal Vs. Arunachala Gounder [(2007) 1 MLJ 394]
(6) BRJ.Navanetham Vs. Shanmugavadivelu [(2010) 3 MLJ 49]
(7) Bonder Vs. Hem [2009 (3) LW 174 (SC)]
(8) Binapani Paul Vs. Pratima Ghosh [2007(4) MLJ 1076 (SC)]
(9) Sivashankar Prasad Shah and others v. Baikunth Nath Singh
and Others [AIR 1969 SC 971]”
17.A perusal of the documents would reveal that based on Ex.A.1 –
Maintenance Deed, the plaintiff being the male heir of Subramani Naicker is
claiming 1/3 share in the suit property. But, Ex.A.1 – Maintenance Deed was
disputed by the 1st defendant stating that at the time of execution of documents,
with the consent of his mother Nagammal, who is the wife of Ponnurenga
Naicker, some insertions were made. In fact, she intended to give the property
to her husband's brother's wife, namely, Deivayanai Ammal, who is the wife of
Ponnappa Naicker, till her lifetime. Inserting in the recitals and based on
which, the plaintiff is claiming that as a male heir of Subramania Naicker, he is
entitled to 1/3 share in the property. As per the recitals of Ex.A.1, Nagammal,
the mother of the 1st defendant, was the absolute owner of the suit property.
The said Ponnappa Naicker, who is the brother of Nagammal's husband, died
issueless. So, Deivayanai Ammal struggled for survival of her life. In order to
help her, she intended to give her property and the same could be inferred from
the recitals of the document that after the demise of Deivayanai Ammal, the
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property shall give to the male heirs of Nagammal and Subramaniya Naicker.
The said Subramaniya Naicker is one of the brothers of Nagammal's husband.
When the property belongs to a woman Nagammal absolutely, what made her
to transfer the property to the male heirs of Nagammal and Subramaniya
Naicker. She had one son. In such circumstance, what made her to convey the
suit property to the male heirs not only her son but also the male heirs of
Subramaniya Naicker, Both the parties had not adduced any evidence to
support their contentions. As per the recitals in Ex.A.1, after the demise of
Deivayanai Ammal, the property was devolved upon to the male heirs of
Subramaniya Naicker and Nagammal. Therefore, the Court below held that the
plaintiff who is one of the male heirs of Subramaniya Naicker is entitled to 1/3
share in the suit property.
18.Even assuming that the document is valid one, whether the plaintiff is
put in possession of the property, is to be decided. But, the learned counsel for
the respondent/plaintiff argued that the possession of one co-sharer is deemed
to be in possession of all the co-sharers. In the case in hand, the entire suit
property even possessed by the 1st defendant, the same has be presumed as in
joint possession in respect of other sharers. It is settled proposition that the
possession of one co-sharer deemed to be in possession of all the other co-
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sharers. In the case in hand, originally the 1st defendant claimed right and title
over the property by claiming adverse possession. Even assuming that Ex.A.1
is valid and true one, the 1st defendant claimed right and title over the property
by way of adverse possession. At this juncture, the learned counsel for the
respondent/plaintiff argued that mere long possession is not sufficient and the
1st defendant is bound to establish that he possessed and enjoyed the suit
property, open continuous and uninterrupted and also adverse to the interest of
all the persons, including the plaintiff and the 2nd defendant. But, before the
Trial Court, on the side of the defendants, Ex.B.1 to Ex.B.3 were marked.
Ex.B.1 is the patta stands in the name of the 1st defendant and Ex.B.2 is Chitta
stands in the name of Nagammal. Ex.B.3 is the Chitta Adangal in the name of
the 1st defendant. Ex.B1 to Ex.B.3 clearly reveal that after demise of
Deivayanai Ammal, mutation of records were acted and patta was mutated in
the name of the 1st defendant. To prove the cultivation, she produced Chitta
Adangal of the year 2004. But, Law requires some more evidence to prove her
long and uninterrupted possession. According tot he 1st defendant,
Deivanaiammal died in the year 1962. Ever since he is in possession and
enjoyment of the suit property.
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19.Admittedly, Nagammal is the relative of the plaintiff. But, as per the
cause of action of the Plaint, the plaintiff stated that on 07.07.1994, when he
issued a Lawyer Notice for partition, the same was returned with false
allegations. Therefore, the plea of cause action arose from the year 1994
onwards. The Original Suit was filed in the year 1997. But, as per the
contentions of the 1st defendant ever since 1962 onwards, after demise of
Deivayanai Ammal, he alone is in possession and enjoyment of the property
with the knowledge of the plaintiff. Admittedly, in the year 1962, the said
Nagammal died. Being the close relative, the plaintiff would also have known
about the said Deivayanai Ammal's death. Therefore, the 1st defendant alone in
possession and enjoyment of the property from 1962 onward. There is no proof
on the side of the plaintiff that he caused interference immediately, after the
death of Deivayanai Ammal, in the year 1962 onwards, nearly about 26 years.
Furthermore, the plaintiff filed one more suit in the year 1988 for permanent
injunction and the same was dismissed for non-prosecution. So, upto the year
1988, the plaintiff has not caused any interference in the enjoyment of the 1st
defendant over the suit property. Even according to the plaintiff, 1st defendant
is in possession of the suit property, but claimed as in joint possession which
clearly implies that the 1st defendant alone is in possession and enjoyment of
the suit property. After the death of Deivayanai Ammal, ever since from the
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year 1962, nearly about 26 years, the 1st defendant was in possession and
enjoyment of the suit property as a legal heir of Nagammal with the knowledge
of the plaintiff and the 2nd defendant. In the year 1988, the plaintiff filed a suit
for bare injunction and the same was dismissed for default. Thereafter, in the
year 1994, the plaintiff filed the present suit. Nearly about 32 years, the 1st
defendant is in possession and enjoyment of the suit property open, continuous,
uninterrupted and hostile to the interest of all the persons including the
plaintiff.
20.Moreover, in the Written Statement itself, the 1st defendant
specifically pleaded that in Para 5 that from 1962 onwards, he alone in absolute
possession and enjoyment of the suit property in his own right as absolute
owner and also stated that he possessed and enjoyed the suit property open,
continuous and adverse to the interest of all the persons including the plaintiff
and thereby, he has perfect title by adverse possession. Therefore, from the
beginning itself, the 1st defendant pleaded that he has perfect title by adverse
possession. But, the Trial Court has not framed any issue with regard to adverse
possession made by the 1st defendant. But the First Appellate court has framed
separate issued to that effect.
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21.In such circumstances, the plaintiff is not entitled to claim that the
possession of the 1st defendant deemed to be the joint possession since all were
co-sharers. But, as described above, when all are the close relatives, what
permitted the plaintiff to approach the Court nearly about 30 years, after the
demise of Deivayanai Ammal. If really, Ex.A.1 was acted upon, the plaintiff
and the 2nd defendant ought to have demanded for partition, but there is no
reliable evidence on the side of the plaintiff that immediately, after the demise
of Deivayanai Ammal, they demanded for partition. Therefore, as submitted by
the 1st defendant, Ex.A.1 – Deed has not been acted upon. The 1st defendant
have perfect title by adverse possession. The Courts below failed to appreciate
the facts properly, thereby, the findings rendered by the Courts below is
perverse and liable to be set aside. Accordingly, the Substantial Question of
Law (c) is answered.
22.When the 1st defendant has title by adverses possession, the plaintiff is
not entitled for the relief of partition. Therefore, the absence of necessary
parties is not arose. Accordingly, the Substantial Question of Law (b) is
answered. By relying the recitals of Ex.A.1, the Courts below held that the
plaintiff is entitled to 1/3 share in the suit property, but as per the findings of
this Court, Ex.A.1 - Maintenance Deed dated 06.10.1992 was not acted upon
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after the demise of the said Deivayanai Ammal. Therefore, the recitals of
Ex.A.1 needs no relevant since because the 1st defendant has perfect title over
the suit property by adverse possession and by ouster also. The long and
uninterrupted possession was proved by the 1st defendant. Therefore, the
citation relied by the appellant is supported to their contentions. But, the ratio
relied by the respondents is not supported to their case.
Accordingly, this Second Appeal is allowed. The findings of the Courts
below is set aside. Consequently, the suit is dismissed as no merit. The
plaintiff is not entitled to any share in the suit property. There shall be no order
as to costs. Consequently, connected Miscellaneous Petition is closed.
08.07.2025
Speaking / Non Speaking order
Neutral Citation : Yes/No
Index :Yes/No
mps
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To
1.The Additional Subordinate Judge,
Chengalpattu.
2.The District Munsif,
Alandur.
3.The Section Officer,
VR Section,
Madras High Court.
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T.V.THAMAILSELVI, J.
mps
and
08.7.2025
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