JUDGMENT
A. Ramamurthi, J.
1. The defendant in the suit is the appellant.
2. The case in brief is as follows:- The plaintiff filed a suit for declaration and permanent injunction. The schedule mentioned property belong to the plaintiff. Originally the property belonged to one Rangasamy Reddiar, the father of the plaintiff. Rangasamy Reddiar had three wives, namely, (1) Thayarammal, (2) Radha Bai and (3) Adhilakshmi Ammal. The first wife Thayarammal died in the year 1942 leaving behind two daughters namely, Angammal and Saroja and they also died subsequently. The second wife Radha Bai also died in 1943 without any issues. The third wife Adhilakshmi Ammal alone is alive and the plaintiff and one Chandra are her children. The defendant has no right whatsoever in the suit property. The plaintiff and her mother were enjoying the property for more than the statutory period. Hence, the suit.
The defendant filed a written statement and denied the various averments. Angammal and Saroja are not the daughters of Thayarammal. Thayarammal was the first wife of deceased Rangasamy Reddiar and the two daughters are named Krishnaveni and Suseela. After the death of Thayarammal, he married one Radha Bai, who died issueless. Rangasamy Reddiar has not legally married Adhilakshmi Ammal and the plaintiff is bound to prove the validity of the marriage. The Will dated 20th October 1963 was not at all executed by Rangasamy Reddiar when he was in a sound and disposing state of mind. Rangasamy Reddiar was not alive on 20.10.1963 and he died long prior to that. Even if there is any Will, it is a rank forgery. Krishnaveni and Suseela along with their father have mortgaged all the suit items in favour of Land Mortgage Bank, Kallakurichi under a registered mortgage deed dated 18.08.1958. Further, under a Settlement Deed dated 30th September 1940, a portion of item No.1 and certain other properties were settled in favour of Thayarammal. In the oral partition that took place among the sharers in or about 1979 April, item No.4 fell to her share. She had executed a registered sale deed dated 05.05.1980 in favour of the defendant for Rs.9,500/=. He took possession of the property. The property must be deemed to be joint family property. The plaintiff is not in possession of the items. Rangasamy Reddiar had executed a settlement deed dated 27.08.1940 in favour of Radha Bai giving item No.4 among other items as a marriage settlement. The suit is also bad for non joinder of necessary parties.
The trial court framed 5 issues and on behalf of the plaintiff, P.Ws.1 to 4 were examined and Exs.A-1 to A-4 were marked and on the side of the defendant, D.W.1 was examined and Exs.B-1 to B-3 were marked. The trial court dismissed the suit and aggrieved against this, the plaintiff preferred A.S.No.53 of 1990 on the file of Sub Court, Cuddalore and the learned Judge after hearing the parties, allowed the appeal, set aside the judgment and decree of the trial court and decreed the suit. Aggrieved against this, the defendant has come forward with the present second appeal and the plaintiff filed Cross Objection No.23 of 1993 relating to the finding of the Will Ex.A-1.
3. At the time of admission of the second appeal, this Court framed the following substantial question of law for consideration:
Whether the lower appellate Court was right in law in accepting the plea of adverse possession without any plea or any issue and in the absence of evidence ?
4. Heard the learned counsel for the parties.
5. The plaintiff filed the suit for declaration and consequential relief of permanent injunction. It is admitted that the property originally belonged to one Rangasamy Reddiar, who died in 1963. He had three wives namely, Thayarammal, who died in 1942, Radha Bai, who died issueless in 1943 and Adhilakshmi Ammal, who is alive and she had one son, the plaintiff and another daughter named Chandra. According to the plaintiff, the first wife Thayarammal had two daughters namely, Angammal and Saroja . But according to the defendant, the said Thayarammal had two daughters namely, Krishnaveni and Suseela. The defendant is said to have purchased item 4 of the property from the said Krishnaveni under Ex.B-2 dated 05.05.1980. The defendant is not claiming any right in respect of items 1 to 3. The genealogy referred to above is practically conceded by the parties excepting the names of two daughters of Thayarammal.
6. The trial court dismissed the suit filed by the plaintiff, whereas the lower appellate court reversed the finding and decreed the suit. The learned counsel for the appellant/defendant mainly contended that Krishnaveni Ammal being the daughter of Rangasamy Reddiar is entitled to the property and the courts below erred in granting a decree in favour of the plaintiff. When the Will set up by the plaintiff has been held to be not proved, the courts below erred in granting a decree in favour of the plaintiff. The defendant is in possession of the property, namely, item No.4 having purchased the same under Ex.B-2 and also put up a brick kiln and is in possession of the same. There was no plea of adverse possession as ouster and no issue was also framed and as such, the lower appellate court erred in granting a decree mainly on the ground of adverse possession. In fact, the substantial question of law raised by the appellant is also only with reference to the acceptance of the plea of adverse possession by the lower appellate court without any plea or any issue and also in the absence of evidence.
7. The learned counsel for the respondent/plaintiff now contended that Krishnaveni and Suseela are the daughters of one Thayarammal, who was the kept concubine of Rangasamy Reddiar. In fact, P.W.2, who happened to be the third wife of Rangasamy Reddiar, stated in her evidence that she came to know that Thayarammal was the concubine of Rangasamy Reddiar. It is significant to state that nowhere in the plaint it is stated that one Thayarammal was also a concubine of Rangasamy Reddiar. On the other hand, a bare reading of the plaint clearly indicates that the deceased Rangasamy Reddiar had three wives, namely, Thayarammal, Radha Bai and Adhilakshmi Ammal. Ex.B-1 dated 15.08.1958 is a mortgage deed executed by Rangasamy Reddiar for himself and on behalf of minor son Janardhanam (the plaintiff herein), and his two daughters Krishnaveni and Suseela in favour of Land Development Bank. There is a reference that Thayarammal is the wife of Rangasamy Reddiar and moreover, Krishnaveni and Suseela have been described as the daughters of Thayarammal through Rangasamy Reddiar. In view of Ex.B-1, I am of the view that Krishnaveni and Suseela are the daughters of Rangasamy Reddiar through Thayarammal. Ex.B-1 had come into existence as early as 1958 when parties could not have thought of any dispute among themselves at a later point of time. Now, the explanation put forward by the learned counsel for the respondent that Krishnaveni and Suseela are the daughters of one concubine is only an afterthought.
8. Ex.A-1 is the unregistered Will executed by Rangasamy Reddiar in favour of Adhilakshmi Ammal dated 20th October 1963. Ex.A-2 is the patta granted in favour of the plaintiff. Ex.A-3 series is the kist receipts numbering about 31. The Will has not been proved properly in accordance with law, is the finding given by the courts below. Aggrieved against this only, the respondent/plaintiff has filed Cross Objection. P.Ws.3 and 4 are attestors to Ex.A-1 and their evidence has been clearly discussed by the trial court and came to the conclusion that Ex.A-1 has not been proved in accordance with law. The conflicting versions of P.Ws.3 and 4 have been clearly highlighted. They have actually not seen the testator signing the document and in fact, their evidence only disclosed that when they went to the spot, the document was ready and it was already signed by the testator. The lower appellate court also agreed with the finding given by the trial court relating to the Will. It is therefore evidently clear that there is a concurrent finding by the courts below relating to the Will Ex.A-1.
9. As adverted to, the defendant did not claim any right in respect of items 1 to 3; but, however, claimed right in respect of item No.4 by virtue of Ex.B-2 dated 05.05.1980 said to have been executed by one Krishnaveni. It is stated that Krishnaveni got right in the property in the oral partition. Although Krishnaveni was alive, she was not examined in the Court. The brick kiln was in item No.4 of the property is evidently conceded. There is no record to show the transfer of patta in favour of Krishnaveni. But, however, the lower appellate court came to the conclusion that the plaintiff was in possession of the property from 1964 to 1980 and hence, by virtue of adverse possession, the plaintiff was granted the relief. In my view, the finding given by the lower appellate court is not proper and correct. There is no plea in the written statement that the plaintiff and his predecessors-in-interest were in possession and enjoyment of the property for more than the statutory period and they have also prescribed title by adverse possession. The evidence of P.W.1 in the course of re-examination is relevant to be considered. He admitted that item 4 of the property was not enjoyed by him as well as by the defendant. This admission has not been taken into consideration by the lower appellate court and blindly granted the relief of permanent injunction even in respect of item No.4 of the property.
10. The learned counsel for the appellant/defendant relied on the decision reported in S.Subba Reddiar and others ..vs.. Bhagyalakshmi Ammal and another (1996-2-L.W.31) relating to adverse possession as follows:-
“It is for the person claiming title to prove existence of hostile title and that the person remained silent even after knowledge thereof – Exception in the recognition by law of acquisition of title only through lawful means. Mere silence or keeping animus in mud cannot make the title lost to the real owner. Pleading relating to definite date required to claim adverse possession is absolutely necessary.
What was the adverse character and when it started are only within the personal knowledge of the person claiming it. He alone can plead his possession from a particular date and claim that it was adverse. Article 65 of the Limitation Act provides that for recovery of possession on the basis of title, 12 years from the date on which adverse possession began. So, a definite date is required to claim adverse possession”.
This decision is applicable to the case on hand.
11. Reliance is also placed in Ramachandra Naidu (died) and others ..vs.. Seshachala Naidu (1994-2-L.W.500) as follows:
“Mere non-participation in the profits of the property by one co-owner and exclusive possession by the other will not be sufficient to constitute adverse possession by the latter. To constitute ouster by a co-owner, there must be an open and unequivocal denial of the title of the other coparcener to the knowledge of the latter”.
The same view has been reiterated in Darshan Singh ..vs.. Gujjar Singh .
12. The learned counsel for the respondent relied on D.Sahul Hameed ..vs.. Swamy Nellaiappar Sri Kanthimathi Ambal Devasthanam, Tirunelveli under Order 41 Rule 33 of Civil Procedure Code as follows:
“Appellate Court delivered judgment without framing points for determination – Judgment of appellate Court is not vitiated by not framing points for determination if other requirements set out in Order 41, Rule 33 are satisfied – Framing of points for determination in lower appeal is not mandatory requirement – Judgment of lower appellate court is not vitiated by not framing points for determination if court have adverted to materials on record for reaching conclusions”.
There is no dispute about this proposition, but it has no application to the case on hand. In the present case, as adverted to, the lower appellate court granted a decree in favour of the plaintiff based upon adverse possession in the absence of any plea or any issue being framed.
13. The respondent also relied on Baldev Singh ..vs.. Darshani Devi that a co-owner cannot transfer valid title in specific portion of land which is not in his exclusive occupation. There is also no dispute about this principle; but so far as this case is concerned, it is the specific case of the defendant that there was some oral partition, in which Krishnaveni was allotted some share and she had conveyed the same to the defendant under Ex.B-2. Now, admittedly, a brick kiln is run in item No.4 of the property and the plaintiff had disowned the same. There is clear evidence to conclude that item 4 is in the possession and enjoyment of the defendant. Further more, the plaintiff has to fail or succeed on his own case and he cannot take advantage of the weakness in the defence.
14. The respondent relied upon Kumaraswami Chettiar (died) and others ..vs.. Veliburammal and others (1998-2-L.W.766) in respect of adverse possession, wherein it was stated that “lack of pleadings does not affect the case of the plaintiffs as evidence shows that the parties have understood nature of dispute”. This decision cannot be made applicable since it was given under Indian Succession Act.
15. The respondent also relied on Jagdish Singh ..vs.. Natthu Singh under section 100 of Civil Procedure Code that even if there is a concurrent finding of fact, if finding by Court of facts vitiated by non-consideration of relevant evidence or by essentially wrong approach, the High Court not precluded from recording proper findings. This decision has been relied upon by the learned counsel for the respondent to reappreciate the evidence of P.Ws.3 and 4, who happened to be the attestors to Ex.A-1. As adverted to, both the courts below have given cogent and convincing reasons for not accepting the evidence of P.Ws.3 and 4 and this being so, I am of the view that no further reappreciation is necessary.
16. The respondent also relied on Ishwardeo Narain Singh ..vs.. Kamta Devi that as there was nothing in law which requires the registration of a will and as wills are in a majority of cases not registered at all, to draw any inference against the genuineness of the will on the ground of its non-registration was wholly unwarranted. There is no dispute about this principle, but it has no application to the case on hand. But for want of registration only, the case of the plaintiff was not accepted. There were also other grounds for rejecting the will.
17. It has been held in Satipada ..vs.. Annakali Debya that having regard to the circumstances of a case it is open to the Court to discard that part of the testimony of a witness whereby he repudiates the fact of attestation of the will. There is no dispute about this principle.
18. Reliance is also placed upon Ammu Balachandran ..vs.. O.T.Joseph that if the Will was not registered, merely because of that, no inference can be drawn against that Will. There is no dispute about this principle also.
19. It is therefore clear from the aforesaid decisions and discussion that the Will projected by the plaintiff has not been satisfactorily established. Further more, so far as item 4 of the property is concerned, in the absence of any plea in the plaint relating to the adverse possession and in the absence of any issue relating to adverse possession in the trial court, the granting of decree for this item in favour of the plaintiff, is not proper and correct and as such, it is liable to be set aside. So far as items 1 to 3 are concerned, the defendant has not disputed the title of the plaintiff and under the circumstance, the relief granted by the lower appellate court has to be necessarily modified. The lower appellate court has given a finding in favour of the plaintiff and placed reliance upon improper materials in the absence of any plea or issue relating tot he same and as such, it has to be interfered with.
20. For the reasons stated above, the Second Appeal is allowed in part and the judgment and decree of the lower appellate court are modified and the suit is decreed in respect of items 1 to 3 and dismissed in respect of item No.4. However, there will be no order as to costs. Cross Objection is dismissed. No costs.