JUDGMENT
K. Sampath, J.
1. Defendants 2 to 10 in O.S.No.153/84 on the file of the District Munsif of Paramakudi, are the appellants in the second appeal. The respondents herein filed the suit for declaration and permanent injunction in respect of the suit properties, which are two in number.
2. The necessary facts leading to the second appeal are as under:
There was one Periya Karuppa Konar. He had a son Sivanu Konar, who died about 50 years prior to the suit. His wife Sathayee Ammal pre-deceased him. Sivanu Konar and Sathayee Ammal had one son Thavasi Konar and four daughters, Karuppayee, Ramayee, Kuriyayee and Meenal. Thavasi Konar died about 20 years prior to the suit. His wife Nagammal pre-deceased him. They had three daughters, Chellammal, Guruvammal and Rajammal. Chellammal pre-deceased her father. Guruvammal, Rajammal and Chellammal’s son Kesavan are the plaintiffs in the suit. Karuppayee and Ramayee, two of the daughters of Sivanu Konar and Sathayee Amma; died issueless. Their third daughter Kuriyayee’s son was Vellaichami Konar, the first defendant in the suit, who died pending suit and his children are defendants 5 to 10, while Sivana Konar and Sathayee Ammal’s last daughter Meenal’s children are defendants 2 to 4. According to the plaintiffs, on the death of Sivana Konar, as per the Hindu Law prevailing at that time, though Thavasi Konar alone became entitled to the suit properties, out of affection for his two sisters Kuriyayee and Meenal, he was enjoying all the properties with the assistance of those two sisters. While so, after the lifetime of Thavasi Konar, the plaintiffs were in enjoyment of the suit properties with the assistance of the defendants. However, suddenly as it were, the defendants colluded and conspired and in the first week of May, 1981, committed trespass upon the suit property consisting of vacant site, garden and land. The plaintiffs convened a panchayat and in the panchayat a mutual agreement was reached. On 28-5-1981 an unregistered agreement was entered into between the plaintiffs on the one hand and defendants 1 and 4 on the other. As per the terms of the agreement, the plaintiffs are to enjoy the suit properties absolutely and accordingly, they are also in possession and enjoyment. One of the clauses in the agreement provides that at the time, the plaintiffs applied to the Revenue Officials, the defendants should not raise any objection. The plaintiffs also applied for change of patta to the Revenue Officials. Contrary to the agreement before the panchayat, the defendants not only objected to the change of patta, but also attempted to commit trespass upon the suit properties. The plaintiffs approached the police, who effectively prevented the trespass. The suit properties continued to be in the possession of the plaintiffs. However, since 1-4-1984 the defendants tried to dispute the plaintiffs’ possession and enjoyment and attempting to interfere with the same. Right through the defendants, their parents and grandparents had been only assisting the plaintiffs in their enjoyment of the suit properties and never claimed any right for themselves. In these circumstances, the suit came to be filed.
3. The prayer in the plaint further states that in the event of the Court coming to the conclusion that the plaintiffs are not in possession, they should be granted relief of recovery of possession.
4. It is at this stage necessary to have an idea about the suit items.
Suit Item 1 is S.No.250/3 Mugunthan Oorani Punjai, eastern 90 cents out of 2 acres 40 cents; in S.No.250/1 western 90 cents out of 1 acre 70 cents, bounded on the west by the share belonging to the first defendant Vellaichami Konar and the fourth defendant Kuriyayee, east by the land belonging to Kuriyayee, on the south by the land belonging to Pandia Thevar Baskaran and on the north by Mugunthan Oorani, Vilankamai, etc. land of a total extent of 1 acre 80 cents.
Suit Item 2 is 2 cents of land bounded on the west by Poornammal’s house and the site purchased by Ayothi, on the east by north-south road, on the north by east-west road and on the south by Yadavar Sangam and the house belonging to Ka. Meenal and Sa. Ramayee.
5. The first defendant filed a written statement which was adopted by defendants 4 to 7, 9 and 10 and it is to the following effect:
The suit properties did not belong to Sivanu Konar nor was he in possession and enjoyment. The suit properties and other properties belonged to this defendant’s mother’s mother Sathayee Ammal and after her death, as per Hindu Law her daughters Karuppayee, Ramayee, Kuriyayee and Meenal became entitled to the propert6ies. Among those daughters, Karuppayee and Ramayee died issueless. Kuriyayee and Meenal divided the properties between themselves and were in enjoyment. On Kuriyayee’s death, her only son, the first defendant, became entitled to Kuriyayee’s properties. On Meenal’s death, the fourth defendant became entitled to her properties. The first defendant got the properties in S.No.250/3 and the fourth defendant in S.No.250/4. In suit second item, the first defendant got the southern half and the fourth defendant the northern half and were in enjoyment. After Sathayee Ammal her daughters and after them, the first and the fourth defendants had been paying the tax and the pattas also had been transferred in their names. Defendants 1 and 4 have become entitled to the properties by prescriptive title as well. As the properties did not belong to Sivanu Konar, his son Thavasi Konar did not get any right. Thavasi Konar got married and went to live in his wife’s family as per community custom. He passed away in Tanjore District in 1946. The genealogy contained in the plaint is not correct and nobody got the properties as set out in the plaint. It is not correct to say that Thavasi Konar was in enjoyment with the assistance of his sisters. This has been stated to explain the enjoyment of the actual owners. The collusion and conspiracy set out in the plaint are not true. It is equally false to say that defendants 1 and 4 committed trespass in1981 May. They have been in enjoyment throughout. There was no agreement as set out in the plaint. The panchayathars had prepared the agreement and defendants 1 and 4 were compelled to sign the same. It was obtained under duress and it is inadmissible in evidence. It will not extinguish the lawful right of defendants 1 and 4. The plaintiffs do not have either title or possession. They ere not entitled to declaration or injunction. Since defendants 1 and 4 are in possession, the plaintiff has to pay separate Court fee for recovery of possession. The plaintiffs had given a petition before the Revenue Divisional Officer with regard to possession and the petition was dismissed. In these circumstances, the plaint without a prayer for possession is not maintainable.
6. Defendants 2, 3 and 8 did not file any written statement and they remained ex parte.
7. The second plaintiff filed a reply statement stating as follows:
Defendants 1 and 4 never enjoyed the suit properties with any separate right. Neither Sathayee Ammal or her daughters nor defendants 1 and 4 had patta. They did not pay kist. They have not acquired prescriptive title. It is false to say that Thavasi Konar went away to Tanjore District and died there. The agreement between the parties is a valid document. Defendants 1 and 4 only after satisfying themselves about the contents and without any coercion or undue influence, signed the document. The panchayathars did not threaten them. They were not compelled to sign the document. It was not necessary for the panchayathars to do that. The suit is to be decreed.
8. On the above pleadings, the trial Court framed the necessary issues and on the oral and the documentary evidence, decreed the suit. This was confirmed in the appeal in A.S.No.107/88 by the Principal District Judge, Ramanathapuram at Madurai, by judgment and decree dated 19.4.1989.
9. It is as against that, the present second appeal has been filed. At the time of admission, the following substantial questions of law were framed for decision in the second appeal:
“(1) Were the plaintiffs entitled to the relief upon Ex.A-1, not referred to by them in their pleadings, especially when its genuineness was challenged as soon as it was produced during the course of evidence? And
(2) Whether Ex.A-2, an unregistered release deed, is admissible in evidence and what would be its effect if Ex.A-1 were to be rejected?”
10. Mr. C. Harikrishnan, learned Senior Counsel for Mr. M. Kamalanathan, Counsel for the appellants, made the following submissions:
Ex.A-1 sale deed had not been pleaded in the plaint and it had been trotted out only in the course of the evidence, that the date and details of the purchase in 1909 had not been mentioned in the plaint as also the basis of Sivanu Konar’s title. It was insufficiently stamped for a sale for Rs.85/- and therefore inadmissible in evidence and could not be looked into for any purpose. Equally, Ex.A-2 release deed was inadmissible in evidence and it was unregistered and inadequately stamped and in the absence of any documentary evidence in their favour, the plaintiffs’ case should be rejected. Even as per Ex.A-2 of 1981, possession was yet to be transferred to the plaintiffs from the defendants only under that document and no evidence of possession of the plaintiffs thereafter was forthcoming. According to the learned Senior Counsel, Ex.A-2 was the trump card of the plaintiff and the Courts below had been hypnotized by Ex.A-2 into granting the plaintiffs’ prayer. As regards the enjoyment, there was inconsistency in the pleadings and the Courts below ought to have held that the possession of defendants 1 and 4 had been conceded by the plaintiffs in the plaint itself that they had prescribed for title by adverse possession. Admittedly, the defendants had been paying taxes and supported by receipts. The plaintiffs also did not have patta. They had not produced any document to show their possession. In these circumstances, the second appeal ought to be allowed and the suit consequently dismissed.
11. Per contra, Mr. M.V. Venkataseshan, learned Counsel for the respondents/plaintiffs submitted that under Ex.A-2 the pre-existing right of the plaintiffs had been recognised, that defendants 1 and 4 having been parties to Ex.A-2, they were estopped from contending otherwise, that no registration was necessary and that when the Courts below had properly appreciated the materials on record and reached a finding, there was no case made out for interference.
12. The whole question would depend on the validity or otherwise of Ex.A-2. According to the plaintiffs, the suit properties were being enjoyed by them with the assistance of the defendants. The plaint clearly spells out this position in paragraphs 2 and 3. When in May, 1981 the defendants started to abuse the confidence reposed in them and attempted to claim independent right, there were proceedings before the Revenue Divisional Officer. Before the Revenue Divisional Officer, Ex.A-2 was produced and the defendants did not take a stand that it had been obtained by practice of fraud or undue influence or coercion or compulsion. In fact, the order of the Revenue Divisional Officer recognising the possession of defendants 1 and 4 has been marked as Ex.B-1 on the side of the defendants. In that it is with regard to Ex.A-2 this is what is stated:
V/ ghh;l;;;o vjph;kDjhh; vf;!;;/V1 vd;w g”;rhaj;J Mtzk; K:yk; jd; kidtp uh$k;khSf;F nru ntz;oa brhj;Jf;F chpik nfhUfpwhh;/ ,e;j Mtzk; gp/ghh;l;oapdh; j’;fs; rhh;gpy; vGjpf; bfhLj;jjhf kWf;fhtpl;lhYk; gjpt[ bra;ag;glhkYk;. ,e;j Mtzj;jpw;Fg; gpwF V/ghh;lo jhth brhj;Jf;fis mDgtk; bra;jhh; vd;gjw;F nghJkhd rhd;W ,y;iy/
Thus so far as Ex.A-2, which was marked as Ex.A-1 before the Revenue Divisional Officer, is concerned, defendants 1 and 4 had not disputed their executing that document. No doubt, the Revenue Divisional Officer rejects the contents on two grounds that the document has not been registered and that there is no evidence that after the execution of that document, the plaintiffs were in enjoyment. At the earliest point of time, the defendants had not disputed Ex.A-2 nor did they file any complaint before the police or the Magistrate stating that they had been compelled or forced to sign such a document. Rightly have the Courts below held that it is not open to the defendants to contend that Ex.A-2 had been obtained in an improper or illegal manner by coercion or undue influence.
13. It is now necessary to refer toEx.A-2. A reading of Ex.A-2 shows the following things:
An arrangement is being entered into in respect of the properties belonging to Sivanu Konar and his wife Sathayee Ammal in the presence of panchayathars. The plaintiffs are to become absolutely entitled to those properties; for transfer of patta in the names of the plaintiffs, defendants 1 and 4 had no objection and in case their signatures were required, they would sign the required documents; in respect of the properties covered under Ex.A-2, defendants 1 and 4 had no rights whatsoever; and in respect of the properties standing in the names of defendants 1 and 4 by purchase or ancestrally, the plaintiffs and their heirs cannot claim any right. It is needless to point out that the suit properties are set out in the schedule to the document. This, in my view, is only in recognition of the rights of the plaintiffs in the suit properties. It does not create any right in praesenti. Ex.A-1 dated 15-5-1909 is in a damaged condition and a reading of that document shows that the owner of the property himself had written out the document conveying the properties to Sivanu Konar for Rs.85/-. It is a holograph document. The Courts below have rightly concluded that Sivanu Konar was the owner of the suit properties and as heirs to Sivanu Konar, the plaintiffs became entitled to them, that the properties belonged to Sivanu Konar is only affirmed in Ex.A-2, Ex,A-2 had come into existence when according to the plaintiffs, defendants 1 and 4 started claiming right to the suit properties on the basis of their possession. Any prior possession up to the date of Ex.A-2 cannot be taken advantage of by defendants 1 and 4 and put against the plaintiffs. Ex.A-2 accords recognition to the ownership of the plaintiffs and requires defendants to agree to transfer of patta and if required to sign documents to enable the plaintiffs to have mutation. One of the attesting witnesses of Ex.A-2 Karuppiah has been examined as P.W.2. He deposed that in the presence of panchayathars, the ownership of the plaintiffs to the suit properties was acknowledged. The Courts below have pointed out that there is absolutely nothing found in the whole evidence of P.W.2 to reject the same. The Courts below have also adverted to the oral evidence of D.W.1 as to the execution of Ex.A-2. Except for the ipse dixit of D.W.1, there is nothing to show that Ex.A-2 had been obtained by force or undue influence. The Courts below were justified in concluding that the suit properties absolutely belonged to the plaintiffs. The defendants have also not established that the suit properties belonged to Sathayee Ammal and that as heirs to Sathayee Ammal, they became entitled to the same. It is significant to note that none of the defendants has entered the box. The first defendant’s wife’s brother one Jayaseelan alone was examined as D.W.1, who had admitted that only after his marriage in 1977 he knew about the first defendant’s family. He was utterly incompetent to talk about the prior ownership of the suit properties.
14. We have already noted that before the Revenue Divisional Officer the defendants had not pleaded that they were compelled to sign Ex.A-2. Ex.A-2 came into existence in 1981. The suit was filed in 1984. The possession of the defendants prior to 1981 and the documents evidencing such possession prior to 1981 cannot at all be taken advantage of by the defendants in furtherance of their case of adverse possession. The Courts below have properly considered this aspect and held against the defendants.
15. Before the lower Appellate Court, the defendants took out two applications, one for reception of
documents as additional evidence and the other for permission to examine one of the defendants as a witness before the Appellate Court. The Appellate Court dismissed the application for permission to examine one of the defendants as a witness and in my view, rightly. So far as the application for reception of documents as additional evidence is concerned, the learned Principal District Judge has adverted to each one of the documents in paragraph 20 of his judgment and rejected them. In my considered view, after the execution of Ex.A-2 the defendants do not have any right over the suit properties. The title of Sivanu Konar in the suit properties having been admitted, it is unnecessary to go into the question as to whether Ex.A-1, though executed for Rs.85/-, having been reduced to writing would require registration. It is not as if the defendants have been denied right in any property. Ex.A-2 specifically recites that the properties of Sathayee Ammal and the properties purchased defendants 1 and 4 have to take them absolutely. Both the Courts below have rightly upheld the contentions of the plaintiffs and dismissed the suit.
16. Both the substantial questions of law are answered against the appellants. The second appeal fails and the same is dismissed. However, there will be no order as to costs.