Madras High Court
Unknown vs Sivakami Ammal (Died) on 25 November, 2025
S.A.Nos.489, 657 & 658 of 2000
IN THE HIGH Court OF JUDICATURE AT MADRAS
DATED : 25.11.2025
CORAM
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
S.A.Nos.489, 657 & 658 of 2000
S.A.No.489 of 2000:
Mohamed Kasem Sahib (died)
2.S.Iasama Bivi
3.M.Mohammed Ali
4.M.Sheik Dawood
5.M.Hussain Moideen
6.S.Ramisa Bivi
7.M.Mohammed Buhari
8.M.Shamsudeen
9.M.Nagoor Meeran (died)
10.S.Subitha Bivi
11.N.Saabeera
12.Kaalesha (Major)
13.Kareem (Major)
14.Khafruddin (Major)
15.Khaleel Rahman (Major)
16.N.Kaadarma
1/42
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
17.Dowlath Begum (Major)
18.M.Mohammed Razack .. Appellants
(Appellants 2 to 10 and respondent 12
brought on record as LRS of the deceased
sole appellant vide order of this Court dated
01.02.2013 made in C.M.P.No.438 to 440 of
2009 in C.M.P.Nos. 15988 to 15990 of 2005
in S.A.No.489 of 2000)
(Appellants 11 to 17 brought on record as
LRS of the deceased 9th appellant vide order
of this Court dated 01.02.2013 made in
C.M.P.No.509 of 2010 in C.M.P.No.1413 of
2008 in S.A.No.489 of 2000)
(Appellants 12 to 15 and 17 are declared as
major and their guardians are discharged
vide order of this Court dated 11.01.2021
made in C.M.P.Nos. 6890 to 6894 of 2020 in
S.A.No.489 of 2000)
(12th respondent transposed as 18th appellant
vide order of this Court dated 24.07.2019
made in C.M.P.No.8168 of 2019 in
S.A.No.489 of 2000)
Vs.
Sivakami Ammal (died)
2.Wahab Sahib
3.Abdul Khader Sahib (died)
4.K.P.M.Mohideen Meera Sahib (died)
5.Alima Bee (died)
6.M.Johara Muthu
2/42
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
7.M.Avula Muthu
8.M.Muhammed Hussain (died)
9.M.Shamsudeen
10.Asma
11.Sherifa
12.G.Gunasekari
13.B.Umapathi
14.S.B.Suryakumar
15.B.Yuvarajan
16.Sameera
17.H.Imran
18.M.H.Murthasa
19.M.H.Hasbiya Fathima .. Respondents
(RR 6 to 11 are recorded as LRS of the
deceased 5th respondent viz., Alima Bee
vide order of this Court dated 17.03.2020
made in S.A.No.489 of 2000 as per memo
dated 17.03.2020 are recorded)
(RR 12 to 15 brought on record as LRS of
the deceased R1 vide order of this Court
dated 07.03.2020 made in
C.M.P.No.12770, 12773 and 12774 of
2019 in S.A.No.489 of 2000)
(RR 16 to 19 are brought on record as LRS
of the deceased 8th respondent vide order
of this Court dated 12.01.2023 made in
C.M.P.Nos.981 & 986 of 2023 in
S.A.No.489 of 2000)
3/42
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
Prayer: Appeal filed under Section 100 of CPC, praying to set
aside the judgment and decree dated 31.08.1999 made in
A.S.No.24 of 1998 on the file of the Sub Court, Madurantakam
reversing the judgment and decree dated 30.01.1997 made in
O.S.No.123 of 1985 on the file of the District Munsif Court,
Madurantakam and allow the Second Appeal with costs through
out by dismissing A.S.No.24 of 1998.
For Appellants : Mr.M.S.Subramanian
For RR 6 to 11 : Mr.V.Chandrakanthan
For RR 12, 14 & 15 : Mr.L.J.Krishnamurthy
For R13 : Mr.Haja Nazirudeen,
Senior Counsel,
for Mr.R.Tholgappian
S.A.No.657 of 2000:
K.P.M.Mohideen Meera Sahib (died)
2.Alima Bee (since died)
3.M.Johara Muthu
4.M.Avula Muthu
5.M.Muhammed Hussain (deceased)
6.M.Shamsudeen
7.Asma
8.Sherifa
4/42
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
(Appellants 2 to 8 are brought on record as
LRS of the deceased sole appellant vide
order of this Court dated 13.06.2019 made
in C.M.P.Nos.3347 to 3349 of 2007 in
S.A.No.657 of 2000)
9.A.Sameera
10.H.Imran
11.M.H.Murthasa
12.M.H.Hasbiya Fathima .. Appellants
(Appellants 9 to 12 brought on record as LRS
of the deceased 5th appellant vide order of
this Court dated 12.01.2023 made in
C.M.P.No.1039 of 2023 in S.A.No.657 of
2000)
Vs.
Sivakami Ammal (died)
2.Wahab Sahib (Exparte)
3.Mohammed Kasim Sahib (died)
4.Abdul Khader Sahib (died)
(R4 remained exparte in A.S.No.24 of 1998,
there was no need to implead the LRS of R4
vide order of this Court dated 20.12.2022
made in S.A.No.657 of 2000)
5.S.Iasama Bivi
6.M.Mohammed Ali
7.M.Sheik Dawood
8.M.Hussain Moideen
5/42
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
9.S.Ramisa Bivi
10.M.Mohammed Razack
11.M.Mohammed Buhari
12.M.Shamsudeen
13.M.Nagoor Meeran (died)
14.S.Subitha Bivi
15.G.Gunasekari
16.B.Umapathi
17.S.B.Suryakumar
18.B.Yuvarajaj
(R1 died. RR 15 to 18 brought on record as
LRS of the deceased R1 and S.A.No.657 of
2000 restored vide order of this Court dated
28.09.2022 made in C.M.P.Nos.16556,
16548, 16550, 16544 & 16559 of 2022 in
S.A.No.657 of 2000)
19.N.Saabira
20.N.Kaalesha
21.N.Kareem
22.N.Khafruddin
23.N.Khaleel Rahman
24.K.Kaadarma
25.N.Dowlath Begam .. Respondents
(RR 19 to 25 brought on record as LRS of
the deceased R13 vide order of this Court
6/42
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
dated 12.01.2023 made in C.M.P.No.1029 of
2023 in S.A.No.657 of 2000)
Prayer: Appeal filed under Section 100 of CPC, praying to set
aside the judgment and decree dated 31.08.1999 made in
A.S.No.24 of 1998 on the file of the Sub Court, Madurantakam
reversing the judgment and decree dated 30.01.1997 made in
O.S.No.123 of 1985 on the file of the District Munsif Court,
Madurantakam and allow the Second Appeal with costs through
out by dismissing A.S.No.24 of 1998.
For Appellants : Mr.V.Chandrakanthan
For RR 5 to 12, 14,
19, 20, 22 to 25: Mr.M.S.Subramanian
For RR 15, 17 & 18 : Mr.L.J.Krishnamurthy
For R16 : Mr.Haja Nazirudeen,
Senior Counsel
for Mr.R.Tholgappian
S.A.No.658 of 2000:
K.P.M.Mohideen Meera Sahib (died)
2.Alima Bee (since died)
3.M.Johara Muthu
4.M.Avula Muthu
5.M.Muhammed Hussain (deceased)
6.M.Shamsudeen
7.Asma
8.Sherifa
(Appellants 2 to 8 are brought on record as
LRS of the deceased sole appellant vide
7/42
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
order of this Court dated 13.06.2019 made
in C.M.P.Nos.3347 to 3349 of 2007 in
S.A.No.657 of 2000)
9.A.Sameera
10.H.Imran
11.M.H.Murthasa
12.M.H.Hasbiya Fathima .. Appellants
(Appellants 9 to 12 brought on record as LRS
of the deceased 5th appellant vide order of
this Court dated 12.01.2023 made in
C.M.P.No.1039 of 2023 in S.A.No.657 of
2000)
Vs.
Sivakami Ammal (died)
2.G.Gunasekari
3.B.Umapathi
4.S.B.Suryakumar
5.B.Yuvarajaj .. Respondents
(R1 died. RR 2 to 5 brought on record as
LRS of the deceased R1 viz., Sivakami
Ammal vide order of this Court dated
28.09.2022 made in C.M.P.Nos.5211 to
5213, 5196 & 5204 of 2021 in S.A.No.658 of
2000)
Prayer: Appeal filed under Section 100 of CPC, praying to set
aside the judgment and decree dated 31.08.1999 made in
A.S.No.23 of 1998 on the file of the Sub Court, Madurantakam
reversing the judgment and decree dated 30.01.1997 made in
O.S.No.144 of 1985 on the file of the District Munsif Court,
8/42
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
Madurantakam and allow the Second Appeal with costs through
out by dismissing A.S.No.23 of 1998.
For Appellants : Mr.V.Chandrakanthan
For RR 2, 4 & 5 : Mr.L.J.Krishnamurthy
For R3 : Mr.Haja Nazirudeen,
Senior Counsel
for Mr.R.Tholgappian
COMMON JUDGMENT
These three second appeals impugn the judgment and
decree of the Court of the learned Subordinate Judge at
Madurantakam in A.S.No.23 of 1998 & A.S.No.24 of 1998 dated
31.08.1999 in reversing the judgment and decree in O.S.Nos.123
& 144 of 1985 on the file of the District Munsif Court at
Madurantakam, dated 30.01.1997.
2. Since all the three appeals are connected to each other,
they are disposed of by this common judgment.
3. For the sake of convenience, the parties shall be referred
to as per their ranks in O.S.No.123 of 1985.
4. The facts gleaned from the pleadings are as follows:
The properties situated in Old Survey No.68/5, 68/6 and
68/7 of Vilambur Village, Kadapakkam Firka, Madurantakam
Taluk, Chengalpattu District, belonged to the 4th defendant,
K.P.M.Mohideen Meera Sahib. He had mortgaged the property in
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
favour of one Balasundara Mudaliar, the husband of the
plaintiff-Sivagami Ammal. Balasundara Mudaliar brought forth a
suit for foreclosure in O.S.No.410 of 1962, on the file of the
learned District Munsif at Chengalpattu. A preliminary decree
was passed on 18.08.1966. Subsequently, a final decree also
came to be passed. As the mortgagor failed to comply with the
decree by defaulting in payment, Balasundara Mudaliar
presented an execution petition in E.P.No.278 of 1968. The
petition sought the sale of the mortgaged properties. The Court
ordered sale and the property were sold on 11.02.1970.
Balasundara Mudaliar, being a permitted decree holder,
successfully bid in the auction and knocked the auction in his
favour. The sale was confirmed in his favour on 23.08.1970. He
took out an application in E.A.No.163 of 1971 to take possession
of the property. The learned District Munsif ordered the
application and Balasundara Mudaliar / the successful auction
purchaser took possession of the same on 09.08.1971. Pending
the litigation, the mortgagor / 4th defendant sold the property in
favour of the defendants 2 & 3.
5. The plaintiff alleged that Balasundara Mudaliar was in
possession and enjoyment of the property till he passed away on
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
04.11.1982. She pleaded that her husband had orally gifted the
property to her and that, she had been in possession and
enjoyment of the same on and from that date. She pleaded that
she mutated the revenue records in her favour and paid kist for
the properties.
6. The plaint further alleged that the defendants, who have
no right, title, or interest in the property, approached her to
alienate the same in their favour. The plaintiff refused to do so.
Angered by the same, the defendants attempted to trespass into
the suit properties. One such attempt was made on 17.04.1985,
which the plaintiff's watchman successfully prevented. Fearing
that they would be successful on the next occasion, she
presented a suit for declaration of title and for injunction on
19.04.1985.
7. Pending the suit, she had taken out an application for
injunction. The said application I.A.No.285 of 1985 came to be
dismissed. The plaintiff pleaded that the defendants, thereafter,
trespassed into the property. Consequently, she amended the
plaint into one for delivery of possession in I.A.No.844 of 1991.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
8. Suit summons were served on the defendants. The
defendants 2 & 3 filed a written statement. They admitted that
the property belonged to the 4th defendant, K.P.M.Mohideen
Meara Sahib. They pleaded that they purchased an extent of
2.60 acres in Survey No.198/5, by way of a registered sale deed
dated 07.06.1965. They pleaded that they are in possession and
enjoyment of the property by paying the revenue charges. They
added that the revenue records continues to stand in the name
of the vendor, Mr.K.P.M.Mohideen Meara Sahib. They pleaded
that they removed the trees standing in the land and have been
raising casuarina crops and were generating funds by cutting
and selling the same.
9. They pleaded that they were not parties to the suit in
O.S.No.410 of 1962 or to the execution proceedings in
E.P.No.278 of 1968. Hence, they urged that the decree and the
Court auction sale, which took place in 1970, would not bind
them. They took a plea that the decree in O.S.No.410 of 1962
might be a collusive one and the Court auction sale does not
have any force in law. They denied the fact that Balasundara
Mudaliar took possession of the property as pleaded in the
plaint. Instead, they asserted that they have been in continuous
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
possession and enjoyment of the property from the date of
purchase, without interruption from anybody, at any time and
hence, they had perfected title by adverse possession.
10. They denied the fact that the defendants had
approached the plaintiff for purchasing the property. They added
that the remaining 68 cents continues to be in possession of
their vendor's family. They denied that the plaintiff had any
right, title or interest over the property and stated that there is
no cause of action for the suit and pleaded that the same may be
dismissed.
11. The 4th defendant entered appearance in the suit. He
filed a separate written statement. He admitted to the sale to an
extent of 2.60 acres in favour of the defendants 2 & 3. He
pleaded that he retained the balance of 68 cents. On this 68
cents, he added that he had put up a hut and was paying house
tax for the same. He also stated that his sister's son Ibrahim,
and his family members are residing therein. He denied that
Balasundara Mudaliar ever took possession of the property and
that the delivery was merely a paper delivery. He further pleaded
that the plaintiff has no title to the property and the defendants
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
had never attempted to trespass into the same.
12. He further pleaded, he had filed a suit in O.S.No.144 of
1985 against the plaintiff herein as she attempted to dispossess
him from the property. He pointed out that Advocate
Commissioner's report in that suit would point out that he is in
possession and enjoyment of the same. Insofar as the revenue
records are concerned, he added that the plaintiff had exerted
influence with the officers of the Revenue Department and
procured the patta in her favour. This too, was just before the
filing of the suit. Hence, he had initiated proceedings before the
revenue authorities to cancel the patta in favour of the plaintiff.
As he alleged that as the plaintiff does not have title to the suit
property and that, she is not in possession for the same, there is
no cause of action for the suit and that the suit should be
dismissed with costs.
13. More or less on the same pleas, the 4th defendant as
the plaintiff presented O.S.No.144 of 1985 seeking declaration of
title with respect to 68 cents out of 3.28 acres. The plaintiff
Sivagami Ammal filed a written statement which mirrors her
plea in O.S.No.123 of 1985.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
14. Both the parties filed a memo for joint trial of
O.S.Nos.123 of 1985 and 144 of 1985. The learned District
Munsif ordered the memo. The evidence was recorded in the
primary suit in O.S.No.123 of 1985.
15. In order to substantiate her case, the plaintiff
examined herself as PW1 and her son as PW2. The 4th defendant
examined himself as DW1 and the 2nd defendant was examined
as DW2. Two other persons were examined as DW3 & DW4. On
the side of the plaintiff, Exs.A1 to A7 were marked. On the side
of defendants, Ex.B1 to B41 were marked. The report of the
Advocate Commissioner and the plan drawn by him were
received by the Court as Exs.C1 & C2.
16. The learned Trial Judge framed the following issues to
be answered in O.S.No.123 of 1985:-
“1/thjp jhth brhj;ij cilikap y; bg W tj w; F u p a t u h >
2/thjp jhth brhj;ij mD gt ghj;jpa k; K:yk; vjpu pil
mD gt cu pik te;Jtpl;ljhfr; brhy;t J cz;ika h >
3/thjp jhth brhj;jpy; tps k; g[if cu pik
bg W tj w; F u p a t u h >
4/gpujpthjpf s; jhth brhj;jpy; mD gt ghj;jpaij K:yk;
vjpu pil mD gt cu pik te;Jtpl;ljhfr; brhy;t J cz;ika h >
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
5/ 9/8/71y; jhthr; brhj;ij thjpa p d; fztu; e Pj p k d ; w
blyptu p K:yk; Rthj P dj;jpy; vLj;Jf; bfhz;ljhfr; brhy;t J
cz;ika h >
6/thjp ep u e ;ju jila[j;jput[ bg w mUfij cilatuh >
7/ntW vd;d gupfh u k; >”
17. Similarly, he framed the following issues to be
answered in O.S.No.144 of 1985:-
“1/thjp jhth 'gp ' ml;ltizr; brhj;jpy; tps k; g[if nfhu
jFjp cilatuh >
2/thjp ep u e ;ju jila[j;jut[ nfhu jFjp cilatuh >
3/vjpupil Rthj P d cu pik K:yk; vjpu pil Rthj P d cu pik
thjp bg w jFjp cilatuh >
4/,we; J n g h d gpujpthjp a p d ; fztuh d ghy R e ;j u
Kjyp a h u; br';fw;gl;L khtl;l e Pj p k d; w m/t/vz;/410- 62y;
11/2/70?f;F tplg;gl;l e Pj p k d ; w Vy cj;jutpd; g o jhth brhj;ij
bg w; w h u h >
5/gpujpthjp a p d ; fztu; jhth brhj;jpy; Rthj P d k;
vLj;Jf; bfhz;lhu h >
6/thjp jhth brhj;jpy; Rthj P dj;jpy; c s; s h u h >
7/ntW vd;d gupfh u k; >”
18.The learned Trial Judge came to a conclusion as
follows:-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
(i)The other legal heirs of Balasundara Mudaliar had not
been impleaded and hence, the suit was bad for non-joinder of
necessary parties;
(ii)No evidence had been let in to show that Balasundara
Mudaliar had been in possession and enjoyment of the property;
(iii)The plaintiff had not filed the “co-relation register” to
prove that old Survey Nos.68/5, 68/6 & 68/7 correspond to new
Survey Nos.198/5 and had not described the suit schedule of
property in a proper manner; and finally,
(iv)The alleged oral gift had not been proved by Sivagami
Ammal – the plaintiff.
Consequently, he dismissed O.S.No.123 of 1985 and decreed
O.S.No.144 of 1985.
19. Aggrieved by the judgment and decree, Sivagami
Ammal preferred an appeal before the Principal Subordinate
Judge at Chengalpattu. This appeal was received as A.S.No.47 of
1997. This appeal corresponds to O.S.No.144 of 1985. She also
preferred an appeal against the dismissal of her suit in
O.S.No.123 of 1985 before the Principal Subordinate Judge at
Chengalpattu. This appeal was numbered as A.S.No.48 of 1997.
Subsequently, both the appeals were transferred to the file of the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
Sub Court at Madurantakam and re-numbered as A.S.No.23 of
1998 and A.S.No.24 of 1998.
20. The learned Subordinate Judge by a judgment dated
31.08.1999, allowed both the appeals. By allowing A.S.No.23 of
1998, he dismissed the suit in O.S.No.144 of 1985 and by
allowing A.S.No.24 of 1998, he decreed the suit in O.S.No.123 of
1985 and declared the title of the plaintiff and directed delivery
of possession.
21. Aggrieved by the same, three second appeals have been
preferred. S.A.Nos.657 & 658 of 2000 have been preferred by the
original owner of the property, namely, K.P.M.Mohideen Meera
Sahib and S.A.No.489 of 2000 has been preferred by the 2nd
defendant against the judgment and decree in A.S.No.24 of
1998.
22. Being appeals which impugn the same judgment and
decree, this Court clubbed the appeals and heard them together.
23. At the time of admission, the following substantial
questions of law were framed in all the appeals:
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
“1.When the plaintiff has claimed title
under a settlement from her husband, can there
be a decree declaring her title when admittedly
she has not proved any such settlement?
2.Is not the suit bad for non-joinder of
parties?
3.Have not the defendants prescribed title
by adverse possession when it is proved they
have been in possession from 1965 (prior to
Court auction purchase)?”
24. I heard Mr.M.S.Subramanian for the appellant in
S.A.No.489 of 2000, Mr.V.Chandrakanthan for the appellants in
S.A.Nos.657 & 658 of 2000. They were opposed by Mr.Haja
Nazirudeen, Senior Counsel appearing for
Mr.L.J.Krishnamurthy.
25. Mr.M.S.Subramanian and Mr.V.Chandrakanthan
submitted that the Lower Appellate Court had erred in allowing
the appeals. They pleaded that the said court ought to have
come to a conclusion that the appellants have perfected title by
adverse possession with respect to 2.60 acres and 68 cents,
respectively. They pleaded that the plaintiff, Sivagami Ammal
had failed to prove that Balasundara Mudaliar had taken actual
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
possession of the property. Though the plaintiff claimed title to
the property by virtue of a settlement deed, she had not proved
the same. They pointed out that Balasundara Mudaliar had left
behind the plaintiff, five sons and a daughter and since the
remaining legal heirs have not been impleaded as parties to the
suit, it is fatal to the case. In addition, Mr.M.S.Subramanian
urged that Balasundara Mudaliar was aware of the purchase
that had been made by the defendants 2 & 3, in the year 1965
and as he had not taken any steps to take actual possession of
the property, they have perfected title to the property by adverse
possession. Both the counsels pleaded that the Trial Judge had
properly appreciated the case, whereas the Lower Appellate
Court had neither discussed and considered the documents filed
by the defendants nor the witnesses produced by them and had
erroneously allowed the appeal.
26. Per contra, Mr.Haja Nazirudeen, learned Senior
Counsel pleaded that there is no dispute with regards the
identity of the property, yet the learned Trial Judge held to the
contrary. He urged that Balasundara Mudaliar had acquired title
to the property by way of a Court auction sale and had taken
delivery under Ex.A3. Ex.A3 being a record of the Court, carries
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
the presumption under Section 114(e) of the Indian Evidence
Act, 1872, and the defendants had not let in any evidence to
displace the presumption, attached to the said document.
27.He added that the defendants 2 & 3 are purchasers
pendente lite and therefore, they are bound by the decree passed
against their vendor, the 4th defendant. He took a plea that even
assuming that the delivery was a paper delivery, by virtue of the
Court auction sale, title vests with Balasundara Mudaliar and
not with the 4th defendant. He added that though the plaintiff,
Sivagami Ammal had pleaded an oral gift, however, that becomes
immaterial as it is undisputed, she is the wife of the auction
purchaser and as a co-owner of the property, she is entitled to
maintain a suit for title and recovery of possession. In such a
suit, he states other co-owners are not necessarily to be made
parties.
28. With respect to the plea of adverse possession, he
argued that it is a settled position of law that a person pleading
adverse possession would have to specifically state the starting
point, when his possession became adverse to the owner and in
what manner the property was enjoyed by him in an open,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
continuous, and hostile manner to the knowledge of
Balasundara Mudaliar and his wife, Sivagami Ammal. He
pointed out that the defendants 2 & 3 had pleaded ignorance
about the mortgage suit and the execution proceedings and
delivery of possession, which indicates that they did not know,
who the actual owner of the property was and consequently,
cannot plead adverse possession. He pointed out that the
documents relied upon by the defendants are all revenue
receipts and they utmost point out the possession of the
defendants 2 to 4 and are not helpful to substantiate the plea of
adverse possession. Consequently, he urged that the plea of the
defendants is absolutely moonshine and that the judgment and
decree of the Lower Appellate Court deserves to be confirmed
and sought for dismissal of the second appeals.
29. I have carefully considered the submissions of both
sides and have gone through the records. I have paid anxious
consideration to the submissions made by the respective
counsels.
30. Before I delve into the facts of the case, the previous
proceedings become relevant.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
31. It is not in dispute that the entire extent of 3.28 acres
belonged to one K.P.M.Mohideen Meera Sahib. He executed a
mortgage in favour of one S.M.Mohideen Kasim Sahib, who in
turn, made over this mortgage in favour of one, Balasundara
Mudaliar. On account of the defaults committed by the debtor;
the creditor, Balasundara Mudaliar presented O.S.No.410 of
1962. Summons was served in the suit on both the defendants.
They remained exparte. Consequently, a preliminary decree had
been passed by the learned District Munsif at Chengalpet.
32. Ex.A7 reveals that K.P.M.Mohideen Meera Sahib filed
an application to set aside the exparte decree and the exparte
decree was set aside. As the exparte decree had been set aside,
the final decree application, which was filed on the basis of the
original exparte decree, was not prosecuted and it was dismissed
for default. After restoration, a fresh preliminary decree came to
be passed on 18.08.1966. Balasundara Mudaliar filed an
application for passing of final decree in I.A.No.1087 of 1967.
Final decree also was passed on 18.03.1969.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
33. The suit register extract of O.S.No.410 of 1962
indicates that an appeal had been preferred to the Sub Court,
Chengalpet in A.S.No.375 of 1966. It came to be dismissed on
07.04.1967. It also shows that a second appeal had been
presented to this Court in SA.No.1496 of 1967, which came to be
dismissed on 06.12.1967.
34. As the preliminary and final decree had attained
finality, Balasundara Mudaliar presented E.P.No.278 of 1968 on
the file of the District Munsif Court at Chengalpet. With the
decree not being satisfied, the Execution Court ordered sale.
Balasundara Mudaliar, being a permitted decree holder,
participated in the auction and purchased the entire extent of
the property on 11.02.1970. The sale was also confirmed in his
favour on 23.03.1970. In order to take possession of the
property, pursuant to the sale, Balasundara Mudaliar filed an
application in E.A.No.163 of 1971. Delivery was ordered and he
took delivery on 09.08.1971. Balasundara Mudaliar died on
04.11.1982.
35. O.S.No.123 of 1985 was initially presented for
declaration and injunction. Subsequently, it was amended to the
relief of recovery of possession was presented on 09.08.1985.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
When the suit was originally presented, the owner,
K.P.M.Mohideen Meera Sahib, had not been impleaded as a
party to the suit. K.P.M.Mohideen Meera Sahib, in order to
protect his alleged possession, presented O.S.No.144 of 1985 on
the file of the District Munsif Court at Madurantakam.
Subsequently, he was impleaded as a party to the first suit.
36. The facts and pleadings have already been adverted to
and hence, are not been reiterated in this portion of judgment.
Non-impleading of other legal heirs to the suit
37. It is not in dispute that Balasundara Mudaliar left
behind several heirs including, Sivagami Ammal. In fact, the
person, who deposed as PW2, is his son. The trial court, on the
basis of the plea taken by the defendants and the admission of
the plaintiff Sivagami Ammal that there are other legal heirs,
dismissed the suit on the point that other legal heirs had not
been impleaded.
38. The view taken by the learned District Munsif is
against the settled position of law of this court, which has been
holding the fort for nearly a century or more. The earliest of the
judgments I am able to trace is Syed Ahamed Sahib Suttari v.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
Magnacite Syndicate Limited, (1915) 2 LW 460. It was urged
before the Mr.Justice Seshagiri Ayyar that one of the lessors is
not competent to maintain a suit for ejectment in law without
impleading the other co-lessors. Referring to the judgment in Sri
Raja Simhadri Appa Rao v. Prattipati Ramayya ILR (1906)
29 Mad 29 and Korapalu v. Narayana, (1913) 25 MLJ 315,
Justice Ayyar held that one of the several tenants, in common,
can sue to recover possession of his share from the joint lessee.
39. In that case, the plaintiff, as a tenant in common with
others in respect of the suit property. He sued for ejectment and
damages. He alleged that the first defendant had trespassed
upon the property over which he did not have a right. The
defendants denied the same. Parties proceeded to trial and the
learned Principal District Munsif at Salem decreed the suit.
Aggrieved by the same, the defendants preferred an appeal to
the District Court at Salem. The learned District Judge
dismissed the suit, holding that one co-owner cannot, maintain a
suit for ejectment of a trespasser without impleading the co-
owners. The appeal came up before a Division Bench consisting
of Seshagiri Ayyar and Kumaraswamy Sastri, JJ. The learned
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
Judges held that as against a trespasser, any one of the co-
owner can maintain an action.
40. Following this verdict, the Hon'ble Mr.Justice
M.Srinivasan, (as His Lordship then was) held in
Ramachandran and two others. v. Valliammal and two
others, (1992) 2 LW 470 that a suit by one co-owner can
certainly be maintained for ejecting trespassers and recovering
possession. He pointed out that such a suit was for the benefit of
all the co-owners, in the event there being other co-owners. The
view taken by the Division Bench in Syed Ahmed Sahib
Shutari's case has been consistently followed by this court as is
clear from the judgment reported in Palani Ammal v.
L.Sethurama Aiyangar. (1949) 62 LW 204. This position
having been settled, this issue need not detain us any further.
This Court, applying these precedents has to conclude the suit
filed by Sivagami Ammal, as a legal heir of Balasundaram
Mudaliyar, to recover the property from the defendants is
perfectly maintainable. The view taken by the learned District
Munsif, as pointed by Mr. Justice Seshagiri Ayyar, is
unsupported by any authority to the contrary.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
Lis Pendens
41. The defendants 2 and 3 (Appellants in SA.No..489 of
2000) are purchasers of the property from the fourth defendant.
It is a plea of Mr.M.S.Subramanian that the defendants 2 and 3
had purchased the property by way a registered document on
05.06.1965 and therefore, this amounts to notice to
Balasundara Mudaliar of the fact that they were in possession of
the property and hence, they have been holding the property
adverse to the purchaser. Though this argument appears
tantalising in the beginning, on the scrutiny, it becomes clear
that there is nothing more in this argument than a cotton candy
held in the hands of a child.
42. The suit filed by Balasundara Mudaliar against the
fourth defendant commenced in 1962. Lis pendens commences
with the presentation of a plaint and continues till the execution
is terminated. There is a difference between the word
'presentation' and 'institution'. 'Institution' occurs when a plaint
is found to be in order and the court furnishes a number to the
plaint. Lis pendens does not commence when the suit is
numbered, but commences much earlier when a plaint is filed
before a court of competent jurisdiction. Though this clarification
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
does not make a difference to the present case, I am doing so in
order that I must not be understood to have held lis pendens
commences only when the suit is taken on file by the court. Lis
Pendens commenced with the filing and is not postponed till the
papers are scrutinized and the case is numbered.
43. The defendants 2 and 3, by virtue of the sale deed
dated 05.06.1965, acquired the equity of redemption that the
mortgagor-the fourth defendant possessed. They could have,
under the sale deed, extinguished the mortgage and obtained
clear title to the property. They did not do so. Though
Mr.M.S.Subramanian pleaded that the defendants 2 and 3 had
filed an application to implead themselves in O.S.No.410 of 1962
and the application had been dismissed, a perusal of the records
do not reflect the same.
44. Taking the submissions of the learned counsel to be
true, I feel that, it would still not make a difference to the case.
This is because, having purchased the property from the
mortgagor, the purchasers merely step into his shoes. The sale
deed does not act adverse to the interest of Balasundara
Mudaliar. Post the sale, Balasundara Mudaliar, merely had two
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
more persons, who are entitled to discharge the mortgage.
45. The sale deed dated 05.06.1965 will not operate as an
adverse document as against the mortgagee. For adverse
possession to operate, there must exist a true owner and
another person acting in adverse to his interest. One person
cannot hold the property in adverse possession against oneself.
Similarly, a purchaser of the mortgaged property from the
mortgagor cannot hold the property in adverse possession
against the mortgagee. Therefore, from 05.06.1965, till the EP
was terminated, after Balasundaram Mudaliyar took possession,
the lis continued. Hence, the purchase by the defendants 2 and
3 attract the doctrine of lis pendens. Consequently, they are
bound by the decree in O.S.No.410 of 1962 and the execution
proceedings initiated on that decree.
Adverse Possession
46. When this aspect was pointed to Mr.M.S.Subramanian,
he pleaded that post the purchase by Balasundara Mudaliar,
adverse possession commences. For the purpose of proving
adverse possession, the possession must not be a passive one. It
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
must be proven to be hostile, open, continuous, and with an
intention to possess the property as the owner Animus
Possidendi. Merely because possession has been for a long
duration in a passive form, it is insufficient to extinguish the
rights of the true owner. The defendants 2 to 4 ought to have let
in evidence to show that they held the property nec vi, nec clam,
nec precario with animus possidendi in that capacity. In the view
of this court, they have failed to do so.
47. Though the Supreme Court in Hemaji Waghaji Jat v.
Bhikabhai Khengarbhai Harijan, (2009) 16 SCC 517
criticised that the doctrine of adverse possession, as being unfair
to the true owner and called for a legislative review,
nevertheless, the doctrine holds field. Continuing this view,
Mr.Justice Dalveer Bhandari renewed his call for amendment to
the Limitation Act to remove the concept of adverse possession
in State of Haryana v Mukesh Kumar and Others (2011) 10
SCC 404. He declared that the theory of adverse possession is
perceived by the general public as a dishonest way to obtain a
title to the property. He pointed out that when a court deals with
adverse possession, it should remember the person raising such
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
plea has no equity in his favour, since he seeks to defeat the
right of the true owner. He pointed out that it is for a person
claiming title by adverse possession to clearly plead and
establish all necessary facts to substantiate that claim. The
principles laid down by the learned Judge found acceptance in
Ravinder Kaur Grewal v. Manjit Kaur and others, (2019) 8
SCC 729.
48. As long as the Doctrine of adverse possession remains
in the books, this court will have to apply the principles laid
down by the Supreme court in T.Anjanappa & Others v.
Somalingappa, (2006) 7 SCC 570. The court observed as
follows:
“20. … The classical requirements of
acquisition of title by adverse possession are that
such possession in denial of the true owner's title
must be peaceful, open and continuous. The
possession must be open and hostile enough to be
capable of being known by the parties interested in
the property, though it is not necessary that there
should be evidence of the adverse possessor
actually informing the real owner of the former's
hostile action.”
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
49. It is here that the written statement filed by the
defendants 2 and 3 in S.A.No.489 of 2000 becomes relevant.
They pleaded that, after purchasing the property from the
fourth defendant on 07.06.1965, they had been raising
casuarina crops over the suit property, harvesting and selling
the same. They pleaded that, as on the date of filing of the suit,
they had raised casuarina crops. They wanted the suit to be
dismissed on the ground that they were not parties to the
foreclosure suit in O.S.No.410 of 1962 or the execution petition
in E.P.No.268 of 1968. They pleaded that, as they are in
continuous possession of the property, they perfected title by
adverse possession. However, There is not even a sentence in the
written statement that the defendants held the property in a
hostile manner. Though they have pleaded that they have been
raising casuarina crops on four occasions, absolutely no
evidence has been let in before the court to establish that plea.
50. Continuous possession, as pointed out above, does not
by itself amount to adverse possession. All the three ingredients
have to be satisfied. Since adverse possession, being a plea to
defeat the legal title of the actual owner, the court would have to
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
be very cautious while appreciating and granting the said plea. If
there is a lack of pleading, or if the evidence is bereft of the legal
requirements, a court cannot accept the plea of adverse
possession. The defendants not having produced any document
to substantiate their plea of adverse possession, I am
constrained to hold against them.
Paper Delivery
51. A faint attempt had been raised by the defendants that
the delivery that has been taken by Balasundara Mudaliar is
only a paper delivery and not an actual delivery. On the aspect of
delivery, there are few observations that I have to make.
52. If the decree-holder, holds out at the time of taking
delivery that he is satisfied with symbolic delivery and not with
actual delivery, then he cannot turn around and file a second
execution petition and seek for actual delivery alleging that there
is no legal, complete or effective delivery on the earlier occasion.
Once actual delivery is recorded, the court has to come to a
conclusion that it has been so. This is because, the court is
permitted to presume that judicial and official acts have
regularly been performed. Delivery effected by a bailiff is not a
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
judicial act, but it is certainly an official act. There has been one
instance of this Court calling for a finding from the trial court as
regards, who is actually in possession of the property, despite
the plea of delivery. Such an exercise is undertaken only in
exceptional cases, as pointed out in K.Ramalingam and others
v. K.N.Krishna Reddi and Another, (1974) 87 LW 63. Even in
such cases, the learned Judge held that calling for a report from
the trial court, when there is a delivery athatchi is not warranted
in every case, where the petitioner alleges that he or she is in
actual possession and that the delivery is only a paper delivery.
The court is entitled to ask for a report, when the time gap
between the actual delivery and the grant of an interim order by
the appellate court is short. That is not the situation in the
present case. Here, the delivery was taken in 09.08.1971 and the
suit came to be filed in the year 1985.
53. The fourth defendant had taken a plea that the delivery
receipt is only a paper delivery and not an actual delivery. The
defendants 2 and 3 did not even plead to that effect. They
attempted to circumvent the decree in O.S.No.410 of 1962
pleading it is a collusive decree. When allegations are made that
the decree is only a paper decree, a mere averment in the written
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
statement to that effect is wholly insufficient.
54. The Hon'ble Mr.Justice M.Srinivasan has held that a
bald allegation that delivery is only a paper delivery and the
appellant continuous to be in possession is hardly sufficient to
direct an enquiry as to, whether there has been actual delivery
or not. In addition, to such a plea, the party pleading that the
delivery is a paper delivery should plead fraud with full
particulars in order to support such a plea. He cautioned that in
every case, the judgment debtor is interested in stating that
there is no physical delivery in order to obtain an order from the
appellate court (See, C. Ramasami v. Kuruva Boyan, 1991 (1)
LW 244).
55. Insofar as the plea of fraud is concerned, there must be
specific averments to that effect in the pleadings. Order VI Rule
4 of the Code of Civil Procedure demands that in all cases where
a party pleading relies upon any misrepresentation, fraud,
breach of trust, wilful default or undue influence and in all other
cases, where particulars may be necessary, beyond those such
are exemplified in the appendix particulars (dates and items if
necessary) should be included in the pleadings. The reason for
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
the Code demanding such an averment is because, when a party
alleges a fraud is said to have been practised by the other party
utilising the offices of the Bailiff, an opportunity should be given
to the person relying upon such a report to let in evidence to
prove to the contrary. A vague or a general plea can never be a
substitute for a specific pleading. The precise nature of a fraud
exercised, the manner of use of influence by the deceased
Balasundara Mudaliar on the Bailiff and the unfair advantage
obtained by him should have been specifically stated.
56. The Code of Civil Procedure is a code of fairness and a
litigant, who has been charged with improper contact, should not
be taken by surprise. I need not expound this principle as the
Constitution Bench has clearly held so in Ladli Parshad
Jaiswal v. Karnal Distillery Co. Ltd. And Others, AIR 1963
SC 1279. The view taken in this judgment has been recently
followed by the Supreme Court in Electrosteel Castings Ltd. v.
UV Asset Reconstruction Co. Ltd. And Others, (2022) 2 SCC
573. Hence, I am of the view that the verdict of Mr.Justice
M.Srinivasan in C. Ramasami v. Kuruva Boyan, cited supra
applies to the facts of the present case.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
57. I also take support of the view expressed in the
following judgment:
(i) Shenbagavalli v. Nagooran and Another, (2022) 3
MLJ 159 paragraph Nos.14 and 15;
(ii) Thiruvaduthurai Adheenam Gurumaha
Sannithanam v. K. Manickam, (2008) 6 CTC 215; and
(iii) Govindaswamy Pillai v. Marudan, (2002) 1 LW 113.
58. In the light of the above discussion, I answer the
substantial questions of law in the following terms:
Question No.1:-When the plaintiff has claimed title under
a settlement from her husband, can there be a decree declaring
her title when admittedly she has not proved any such
settlement?
As the plaintiff is a co-owner of the property, on the death
of her husband, Balasundara Mudaliar, she is entitled to
maintain the suit for declaration of title and for recovery of
possession against third parties/trespassers. She maintains the
suit, for and on behalf, of the co-owners. Therefore, this
substantial question of law is answered against the appellants.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
Question No.2:- Is not the suit bad for non-joinder of
parties?
Since the question of law No.1 is answered against the
appellant, the fact that the other legal heirs of Balasundara
Mudaliar were not impleaded as parties to the suit becomes
irrelevant and loses significance. Accordingly, this question too,
is answered against the appellant.
Question No.3:- Have not the defendants prescribed title
by adverse possession when it is proved they have been in
possession from 1965 (prior to Court auction purchase)?
As the defendants have not proved their open, hostile and
continuous possession of the property, they have not proved
their title by adverse possession.
59. In fine, all the second appeals stand dismissed.
Accordingly, the judgment and decree dated 31.08.1999 passed
in A.S.Nos.24 of 1998 on the file of the Sub Court,
Madurantakam reversing the judgment and decree dated
30.01.1997 passed in O.S.No.123 of 1985 on the file of the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
District Munsif Court, Madurantakam, and A.S.Nos.23 of 1998
on the file of the Sub Court, Madurantakam reversing the
judgment and decree dated 30.01.1997 passed in O.S.No.144 of
1985 on the file of the District Munsif Court, Madurantakam are
hereby confirmed. Costs throughout.
25.11.2025
krk/nl
Index : Yes / No
Internet : Yes / No
Speaking Order : Yes / No
Neutral Citation : Yes / No
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
To
1.The Subordinate Judge,
Sub Court,
Madurantakam.
2.The District Munsif,
District Munsif Court,
Madurantakam.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
S.A.Nos.489, 657 & 658 of 2000
V.LAKSHMINARAYANAN, J.
krk/nl
S.A.Nos.489, 657 & 658 of 2000
25.11.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 01/12/2025 04:25:40 pm )
