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Madras High Court

N. Perumal vs Murugammal on 12 January, 2026

                                                                                        S.A.Nos.235 & 236 of 2014
                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                           RESERVED ON                  : 29.10.2025

                                           PRONOUNCED ON : 12.01.2026

                                                          CORAM:

                             THE HONOURABLE DR. JUSTICE A.D. MARIA CLETE

                                             S.A.Nos.235 & 236 of 2014

                     S.A.No.235 of 2014
                     1. N. Perumal
                     2. Chinnasamy                                                               ...Appellants

                                                            Versus

                     1. Murugammal
                     2. Chinnasamy
                     3. Mariappan
                     4. Perumal
                     5. Selvi
                     6.Eswari
                     7. Madammal                                                          ... Respondents


                     PRAYER in S.A.:
                         Second Appeal filed under Section 100 of the Civil Procedure
                     Code to set aside the judgment and decree dated 30.11.2012 made in
                     A.S.No.56 of 2011 on the file of the Subordinate Judge, Dharmapuri and
                     confirming the judgment and decree made in O.S.No.47 of 2008 on the
                     file of the District Munsif, Palacode dated 20.08.2011 and allow this
                     Second Appeal.




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https://www.mhc.tn.gov.in/judis               ( Uploaded on: 12/01/2026 08:13:37 pm )
                                                                                              S.A.Nos.235 & 236 of 2014
                     APPEARANCE OF PARTIES:
                                  For Appellant         : Mr.C.Umasankar
                                                          for M/s.M.Selvam

                                  For Respondents        : Mr.V.R.Annagandhi for R1 to R6
                                                           R7 – Served no appearance


                     S.A.No.236 of 2014
                     N. Perumal                                                                     ...Appellant

                                                                  Versus

                     1. Murugammal
                     2. Chinnasamy
                     3. Mariappan
                     4. Perumal
                     5. Selvi
                     6.Eswari
                     7. Madammal                                                                ... Respondents


                     PRAYER in S.A.:
                         Second Appeal filed under Section 100 of the Civil Procedure
                     Code to set aside the judgment and decree dated 30.11.2012 made in
                     A.S.No.8 of 2012 on the file of the Subordinate Judge, Dharmapuri and
                     confirming the judgment and decree made in O.S.No.95 of 2009 on the
                     file of the District Munsif, Palacode dated 20.08.2011 and allow this
                     Second Appeal.
                     APPEARANCE OF PARTIES:
                                  For Appellant         : Mr.C.Umasankar
                                                          for M/s.M.Selvam

                                  For Respondents        : Mr.V.R.Annagandhi
                                                           for R1 to R6
                                                            R7 – Served no appearance

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https://www.mhc.tn.gov.in/judis                     ( Uploaded on: 12/01/2026 08:13:37 pm )
                                                                                             S.A.Nos.235 & 236 of 2014


                                              COMMON JUDGMENT

The present Second Appeals arise out of a common judgment and

decree dated 30.11.2012 in A.S.No.8 of 2012 and A.S.No 56 of 2011 on

the file of Sub court , Dharmapuri confirming the common judgment and

decree dated 20.08.2011 in O.S. No. 47 of 2008 and O.S. No. 95 of 2009

on the file of District Munsif, Palacode.

2. The parties in both suits are identical, each being arrayed as

plaintiffs in one suit and as defendants in the other.

3. For the sake of convenience, the parties are hereinafter referred

to according to their rank and description in O.S. No. 47 of 2008.

4. In O.S. No. 47 of 2008, the plaintiffs are the legal heirs of

Shanmugam. The said Shanmugam inherited the suit properties from his

father, Sennappan, who had purchased the suit properties comprised in

Survey Nos. 269 and 270 under Ex.A1, sale deed dated 21.06.1954.

According to the plaintiffs, the 1st defendant took the property on lease,

agreeing to pay one-third of the yield, and was enjoying the same along

https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/01/2026 08:13:37 pm ) S.A.Nos.235 & 236 of 2014 with the 2nd defendant. When the 1st defendant committed default in

payment of the yield in the year 2007, and when the 1st and 2nd

defendants attempted to alienate the property in favour of the 3rd

defendant, the suit for declaration and recovery of possession was filed.

The 1st and 2nd defendants in this suit are the plaintiffs in O.S. No. 95 of

2009 seeking declaration to declare the 1st defendant title in the ‘A’

Schedule property and 2nd defendant title in the ‘B’ Schedule Property

and to declare O.S.47 of 2008 Judgment and decree as null and void and

permanent injunction.

5. The contention of the defendants is that the 1st defendant

purchased the suit properties from Sennappan by an oral sale dated

20.01.1975 for a sale consideration of Rs.7,000/- and that he has been in

possession and enjoyment of the suit properties, with patta standing in his

name. It is further contended that the 1st defendant sold a portion of the

property to the 3rd defendant. The defendants denied the lease pleaded by

the plaintiffs. It is also contended that Shanmugam, the husband of the 1st

plaintiff and father of the other plaintiffs, was not the sole legal heir of

late Sennappan, and that the children born through the second wife of

Sennappan were not arrayed as parties to the suit. Hence, according to the

https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/01/2026 08:13:37 pm ) S.A.Nos.235 & 236 of 2014 defendants, the suit is bad for non-joinder of necessary parties and is

liable to be dismissed.

6. The trial court decreed O.S. No. 47 of 2008 and dismissed O.S.

No. 95 of 2009. The first appellate court confirmed the judgments and

decrees of the trial court by dismissing A.S. No. 8 of 2011 and A.S. No.

56 of 2011.

7. At the time of admission of these Second Appeals, the

following substantial questions of law were framed and the same is

extracted verbatim here below:

(a) Whether both the courts below erred in declaring the title of Shanmugam who was the Son of the 1 st wife of Senniappan , by merely relying upon the oral evidence of P.W.2?

(b) In the absence of any documents marked on the side of the plaintiff plaintiffs’ side and in the absence of oral evidence from the close relatives of Sennappan to prove title, whether both the courts erred in holding that the children of the alleged second wife of Sennappan are not necessary and proper parties in the suit?

https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/01/2026 08:13:37 pm ) S.A.Nos.235 & 236 of 2014

(c) Whether the defendant is entitled to maintain the defence of adverse possession after having claimed title over the property through an oral sale?

(d) Whether the findings of both the courts below can be termed as perverse due to improper appreciation of the oral and documentary evidence available on record?

8. The suit properties in O.S. No. 47 of 2008 originally belonged

to Sennappan, who purchased the same under a registered sale deed dated

19.06.1954. He died leaving behind legal heirs born through his two

wives. The plaintiffs are the wife and children of Shanmugam, who was

born to Sennappan through his first wife. The plaintiffs claim title by

inheritance. There is no dispute that the plaintiffs are descendants of

Sennappan. Thus, on admitted facts, the plaintiffs’ title to the suit

properties stands established.

9. On the defendants’ side, it is stated that during the lifetime of

Sennappan, he sold the suit properties purchased under Ex.A1 to the 1st

defendant by an oral sale dated 20.01.1975. As elaborately discussed by

the courts below, such an oral sale is not valid in law in view of Section

17(1) of the Registration Act, 1908. It is an admitted fact that the 1st

https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/01/2026 08:13:37 pm ) S.A.Nos.235 & 236 of 2014 defendant is in possession and enjoyment of the property. However, the

character of such possession is disputed. According to the plaintiffs, the

1st and 2nd defendants are in possession as lessees, whereas according to

the 1st defendant, he is in possession as owner pursuant to the alleged

oral sale. Once the oral sale pleaded by the 1st defendant is found to have

no legal sanctity, the claim of possession through such invalid sale cannot

be accepted.

10. The defendants further contended that they have been in long

possession of the suit properties for more than the statutory period and

that revenue records also stand in their names, thereby perfecting title by

adverse possession. This plea was considered and negatived by the courts

below. When the 1st defendant pleads an oral sale by Sennappan, he

admits Sennappan’s title. Entry into possession under an oral sale is

permissive in origin. Permissive possession can never become adverse

unless there is a clear and proved change of animus, communicated to the

true owner. A person who enters into possession acknowledging the

owner’s title cannot later claim hostile possession unless he specifically

pleads and proves when and how such possession became adverse. In the

present case, the defendants failed to prove the date of commencement of

https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/01/2026 08:13:37 pm ) S.A.Nos.235 & 236 of 2014 hostility, any overt act of denial of title, or communication of hostile

intent to the plaintiffs or their predecessor-in-title. Therefore, the plea of

adverse possession necessarily fails. The defendant does not

automatically perfect title by adverse possession merely because patta

stands in his name and possession exceeds twelve years.

11. The next issue relates to the non-joinder of the legal heirs of

Sennappan born through his second wife. On the plaintiffs’ side, it is

admitted that Sennappan had two wives and that the children born

through the second wife were not arrayed as parties. According to the

plaintiffs, after the demise of Sennappan, the suit properties were allotted

to Shanmugam, the father of plaintiffs 2 to 6, and the other properties

were allotted to the children born through the second wife.

12. On the plaintiffs’ side, P.W.3, one of the children of Sennappan

born through his second wife, was examined. In his chief-examination

affidavit, he stated that after the demise of his father, Sennappan, an oral

partition was effected between Shanmugam and the other family

members, and that the suit properties were allotted to Shanmugam.

Though this witness was not subjected to cross-examination, the trial

https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/01/2026 08:13:37 pm ) S.A.Nos.235 & 236 of 2014 court recorded that despite several opportunities, the defendants failed to

cross-examine him. When he was later recalled for cross-examination, he

did not appear, and hence his evidence was closed. Apart from this, P.W.2

also deposed that during the family partition among the heirs of

Sennappan, the suit properties were allotted to Shanmugam. In such

circumstances, the suit is not hit by non-joinder of necessary parties.

13. Even assuming the defendants’ contention that the plaintiffs

and the children of Sennappan born through his second wife are co-

owners of the suit properties, there is no dispute inter se among the co-

owners. The relief sought does not prejudice the rights of the absent co-

owners. The issues involved in the suit can be effectively decided in their

absence. It is well settled that one co-owner can maintain a suit for

declaration of title and recovery of possession against a third party. The

dispute is between the true owner(s) and a third party, not among the co-

owners themselves. A decree in favour of the plaintiffs can be effectively

passed and executed. In any event, the children of Sennappan born

through his second wife are, at best, proper parties and not necessary

parties. A defendant who claims title independently through an alleged

https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/01/2026 08:13:37 pm ) S.A.Nos.235 & 236 of 2014 oral sale cannot insist that all co-owners must be impleaded. Such an

objection is purely technical and obstructive.

14. Thus, the plaintiffs have proved their title by succession. The

courts below have ascertained the title of Shanmugam not merely on the

oral evidence of P.W.2, but primarily on the registered sale deed Ex. A1

standing in the name of Sennappan, the father of Shanmugam. The suit is

not one among co-owners but is directed against third parties. Hence, one

co-owner can maintain a suit for all, and the suit is not vitiated by non-

joinder of necessary parties. The defendants cannot claim title either by

oral sale or by adverse possession. The findings of the courts below are

based on proper appreciation of evidence and are neither perverse nor

contrary to law.

15. For the foregoing reasons, this Court holds that all the