{"id":118975,"date":"2008-12-15T00:00:00","date_gmt":"2008-12-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-subbiah-vs-t-subbiah-died-on-15-december-2008-2"},"modified":"2015-03-26T07:56:08","modified_gmt":"2015-03-26T02:26:08","slug":"m-subbiah-vs-t-subbiah-died-on-15-december-2008-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-subbiah-vs-t-subbiah-died-on-15-december-2008-2","title":{"rendered":"M.Subbiah vs T.Subbiah (Died) on 15 December, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
M.Subbiah vs T.Subbiah (Died) on 15 December, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED:  15\/12\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE A.SELVAM\n\nSECOND APPEAL No.449 of 2007\n\nM.Subbiah\t\t\t\t   ...  Appellant\/\n\t\t\t\t\t\t1st Plaintiff\nVs.\n\n1.T.Subbiah (died)\n\n2.Seethalakshmi Ammal (died)\n\n3.V.Sathish Nair\t\t\t   ... Respondents 1 to 3\/\n\t\t\t\t\t\t\tDefendants\n4.M.Valli\n\n5.M.Vasanthakumar\n\n6.M.Kalyani\n\n7.M.Seetharaman\n\n8.M.Srinivasan  \t\t\t   ... Respondents 4 to 8\/\n\t\t\t\t\t       Plaintiffs 2 to 6\n\n9.Raviendran\n\n10.Kalyana Sundaram\n\n11.S.Muthu Krishnan\n\n12.Kanaga Valli\n\n13.Vinajayalakshmi\n\n14.Mari\t\t\t\t\t   ... Respondents 9 to 14\t\t\t\t\n\t\t\t\n(3rd respondent in the above\n  appeal is given up)\n\n(Respondents 9 to 14 brought on record\n as LRs of deceased 1st & 2nd respondents\n as per order dated 18.12.2006 made in\n M.P.No.1 of 2006)\n\t\tSecond appeal has been filed under Section 100 of C.P.C., against\nthe judgment and decree dated  13.11.2000 passed in A.S.No.49 of 1999 by the\nSecond Additional District Court, Tirunelveli, confirming the judgment and\ndecree dated 25.04.1996 passed in O.S.No.201 of 1991 by the Principal\nSubordinate Court, Tirunelveli.\n\n!For appellant\t \t...\tMr.R.S.Ramanathan\n^For respondents \t...\tMr.V.Sri Balaji\n 9 to 14\n\n:JUDGMENT\n<\/pre>\n
\t\tChallenge in this second appeal is to the concurrent judgments
\npassed in Original Suit No.201 of 1991 by the Principal Subordinate Court,
\nTirunelveli and in Appeal Suit No.49 of 1999 by the Second Additional District
\nCourt, Tirunelveli.\n<\/p>\n
\t\t2.The appellant and respondents 4 to 8 herein as plaintiffs have
\ninstituted Original Suit No.201 of 1991 on the file of the trial Court, for the
\nreliefs of declaration and perpetual injunction, wherein the present respondents
\n1 to 3 have been shown as defendants.\n<\/p>\n
\t\t3.It is averred in the plaint that the plaintiffs are brothers and
\nsisters.  The plaintiffs 1 & 2 are the children of the deceased Moondruyugam
\nborn through is first wife by name Vasantha and the remaining plaintiffs are the
\nchildren of the said Moondruyugam born through his second wife by name Parvathy.
\nThe first defendant is the husband of the  second defendant and the second
\ndefendant is the sister of Moondruyugam. The suit property is originally
\nbelonged to one Sadagopa Iyengar of Nanguneri.  The second defendant viz.,
\nSeethalakshmi has purchased the suit property under a registered sale deed dated
\n12.04.1955 and the second defendant has leased out the suit property to her
\nfather by name Kalyani Chettiar for monthly rent of Rs.25\/- and the said Kalyani
\nChettiar is the paternal grand father of the plaintiffs.  The said Kalyani
\nChettiar has entered into an agreement of sale with the second defendant and
\nthereby agreed to purchase the suit property for a sum of Rs.3,500\/- and the
\nsale agreement has come into existence between the said Kalyani Chettiar and
\nsecond defendant on 08.06.1956 and the said Kalyani Chettiar has paid Rs.3,000\/-
\ntowards sale consideration.  In the sale agreement, one year has been fixed for
\nexecuting a sale deed.  The possession of the suit property has been handed over
\nto the said Kalyani Chettiar by the second defendant and he has had enjoyed the
\nsuit property till his demise.  He has also borrowed Rs.1,000\/- from one
\nArunachalam Pillai by way of executing a registered mortgage deed dated
\n23.07.1956.  Before the demise of Kalyani Chettiar, he executed a Will dated
\n14.08.1969, bequeathing the  suit property in favour of his wife Valliammal with
\nthe specific direction to enjoy the suit property till her life time and after
\nher demise his son by name Moondruyugam has to succeed the suit property.  The
\nsaid Kalyani Chettiar has passed away on 25.09.1977 and therefore, the Will
\nexecuted by him has come into effect.  Since the father of the plaintiffs by
\nname Moondruyugam has passed away, the plaintiffs have acquired title to the
\nsuit property by virtue of the Will dated 14.08.1969.  The said Kalyani
\nChettiar, his wife Valliammal and their son Moondruyugam and their grand
\nchildren viz., plaintiffs, have been in possession of the suit property for more
\nthan 36 years and thereby prescribed title to the same by adverse possession.
\nNow the defendants are trying to disturb the peaceful possession and enjoyment
\nof the plaintiffs.  Under the said circumstances, the present suit has been
\ninstituted so as to declare that the plaintiffs have prescribed title to the
\nsuit property by adverse possession and also for restraining the defendants from
\ninterfering with the peaceful possession and enjoyment of the plaintiffs by
\nmeans of perpetual injunction.\n<\/p>\n
\t\t4.It is averred in the written statement filed on the side of the
\ndefendants 1 & 2 that the relationship mentioned in the plaint is correct.  It
\nis false to say that the second defendant has executed the sale agreement dated
\n08.06.1956 in favour of her father viz., Kalyani Chettiar.  The second defendant
\nhas never received a sum of Rs.3,000\/- from her father.  It is also equally
\nfalse to say that the second defendant has handed over possession of the suit
\nproperty to her father.  The second defendant has obtained a licence so as to
\nrun a rice mill.  The defendants 1 & 2 have not known about the alleged
\nexecution of Will dated 14.08.1969 executed by Kalyani Chettiar.  The second
\ndefendant is in possession and enjoyment of the suit property.  It is false to
\nsay that the plaintiffs and their predecessors in title have had enjoyed the
\nsuit property for more than a statutory period and thereby prescribed title to
\nthe same by adverse possession.  The plaintiffs have tried to trespass into the
\nsuit property and a police complaint has been lodged.  There is no merit in the
\nsuit and the same deserves dismissal.\n<\/p>\n
\t\t5.On the basis of the divergent pleadings raised on either side, the
\ntrial Court has framed necessary issues and after evaluating both the oral and
\ndocumentary evidence, has dismissed the suit.  Against the judgment and decree
\npassed by the trial Court, the plaintiffs as appellants have preferred Appeal
\nSuit No.49 of 1999 on the file of the first appellate Court.  The first
\nappellate Court, after hearing both sides and after reappraising the evidence
\navailable on record, has dismissed the appeal and thereby confirmed the judgment
\nand decree passed by the trial Court.  Against the concurrent judgments, the
\npresent second appeal has been filed at the instance of the first plaintiff as
\nappellant.\n<\/p>\n
\t\t6.On the side of the appellant, the following substantial questions
\nof law have been raised for consideration;\n<\/p>\n
\t“1)Whether the Courts below erred in dismissing the suit without
\nappreciating the case of the appellant\/plaintiff that he and his predecessors in
\ntitle are enjoying the suit property as owner for the past 36 years to the
\nknowledge of the respondents 1 & 2?\n<\/p>\n
\t2)Whether the Courts below are right in holding that the plaintiffs have
\nnot proved their adverse possession without appreciating Exs.A2 and A3 mortgage
\nand discharge and ex.A55, Will?\n<\/p>\n
\t3)Whether the Courts below are right in dismissing the suit when the
\nplaintiffs were in possession by exercising ownership rights and the defendants
\ndid not prove their possession 12 years prior to the file of the suit?\n<\/p>\n
\t\t7.Before perpending the rival submissions made by either counsel, it
\nwould be more useful to look into the necessary averments made in the plaint as
\nwell as in the written statement.\n<\/p>\n
\t\t8.In the plaint, it has been specifically stated that the plaintiffs
\nare the sons of one Moondruyugam who is none other than the brother of the
\nsecond defendant.  The second defendant has purchased the suit  property under a
\nregistered sale deed dated 12.04.1955 from one Sadagopa Iyengar of Nanguneri and
\nsubsequently she entered into an agreement of sale with her father by name
\nKalyani Chettiar on 08.06.1956 and the sale consideration has been fixed at
\nRs.3,500\/- and an advance of Rs.3,000\/- has been given to her and further it has
\nbeen agreed that the second defendant should execute a registered sale deed on
\nor before 07.06.1957. The said Kalyani Chettiar has enjoyed the suit property as
\nowner and he executed a registered Will dated 14.08.1969 with life interest to
\nhis wife viz., Valliammal after his demise and after her demise, the suit
\nproperty should be succeeded by his son Moondruyugam and his legal heirs.  The
\nsaid Kalyani Chettiar has passed away on 25.09.1977 and the said Moondruyugam
\nhas also passed away and therefore, the plaintiffs have succeeded the suit
\nproperty by virtue of the Will dated 14.08.1969 and the plaintiffs and their
\npredecessors in title have had enjoyed the suit property for more than a
\nstatutory period and that too to the knowledge of the second defendant and
\nthereby prescribed title to the suit property by adverse possession.\n<\/p>\n
\t\t9.In the written statement, it has been specifically stated that the
\nsecond defendant has not executed the alleged sale agreement dated 08.06.1956
\nand the second defendant has been enjoying the suit property as its owner and
\nfurther it is false to say that the plaintiffs have perfected title to the same
\nby adverse possession and therefore, the present suit deserves dismissal.\n<\/p>\n
\t\t10.The Courts below, after having threadbare discussions, have
\nuniformly found that the plaintiffs are not entitled to the reliefs sought for
\nin the plaint.\n<\/p>\n
\t\t11.The learned counsel appearing for the appellant has repeatedly
\ncontended that the suit property has been purchased by the second defendant and
\nshe has agreed to sell the same to her father viz., Kalyani Chettiar and both of
\nthem have entered into an agreement of sale on 08.06.1956 and the same has been
\nmarked as Ex.A1 and in Ex.A1 it has been clinchingly stated that the said
\nKalyani Chettiar has been directed to enjoy the suit property as owner from
\n08.06.1956 and the said Kalyani Chettiar has had enjoyed the suit property till
\nhis demise and before his demise, he has executed a will stating that his wife
\nshould enjoy the suit property till her demise and after her demise their son by
\nname Moondruyugam and his legal heirs have to succeed the suit property and the
\nsaid Will has come into effect and the plaintiffs as well as their predecessors
\nin title have had enjoyed the suit property more than a statutory period to the
\nknowledge of the second defendant and thereby prescribed title to the suit
\nproperty by adverse possession and the Courts below without considering the oral
\nand documentary evidence have erroneously non-suited the plaintiffs and
\ntherefore, the concurrent judgments passed by the Courts below are liable to be
\nset aside and the suit is liable to be decreed.\n<\/p>\n
\t\t12.In order to repudiate the argument advanced by the learned
\ncounsel appearing for the appellant, the learned counsel appearing for the
\nrespondents 9 to 14 has also equally contended that the suit property has been
\npurchased by the second defendant and she has not executed the alleged sale
\nagreement dated 08.06.1956 and further she has not known about the Will alleged
\nto have been executed by her father viz., Kalyani Chettiar and the plaintiffs
\nhave not enjoyed the suit property at any point of time and therefore, they are
\nnot entitled to get the reliefs sought for in the plaint and the Courts below,
\nafter having threadbare discussions have rightly non-suited the plaintiffs and
\ntherefore, the concurrent judgments passed by the Courts below are not liable to
\nbe interfered with.\n<\/p>\n
\t\t13.On the basis of the divergent submissions made by either counsel,
\nthe only point that comes for consideration in the present second appeal is as
\nto whether the plaintiffs have prescribed title to the suit property by adverse
\npossession.\n<\/p>\n
\t\t14.At this juncture, the Court has to perpend the circumstances
\nunder which adverse possession can be claimed.  In order to analyse the above
\nlegal aspect, it would be more useful to look into the following decisions;\n<\/p>\n
\t\ta)In 1995 (2) MLJ  294 (Ponnaiyan  Vs.  Munian (died) and others) it
\nhas been held that it is well established that a person who claims title to the
\nproperty by adverse possession must definitely allege and prove how and when
\nadverse possession commenced and what was the nature of his possession.\n<\/p>\n
\t\tb)In 1998 (I) L.W 244 (Roohnisha Beevi and 15 others  Vs.  A.M.M.
\nMadhudu Mohamed and 29 others), it has been held like thus;
\n\t“The party pleading adverse possession must state with sufficient clarity
\nas to when his adverse possession commenced and the nature of its possession.”
\n\t“Adverse possession means a hostile assertion i.e. a possession which is
\nexpressly or impliedly in denial of title of the true owner.”
\n\t“The person who bases his title on adverse possession, therefore, must
\nshow by clean and unequivocal evidence i.e., possession was hostile to the real
\nowner and amounted to a denial of his title to the property claimed.”\n<\/p>\n
\t\tc)In 1998 (2) L.W. 171 (The State of Tamilnadu represented by the
\nDistrict Collector, Tiruchirapalli Vs.  K.Purushothaman) it has been held that
\nlong possession itself is not adverse possession and possession with animus to
\nhold it against the true owner is the basic requirement to prescribe title by
\nadverse possession.\n<\/p>\n
\t\t15.From the conjoint reading of the decisions referred to supra, it
\nis made clear that the person who claims adverse possession must have requisite
\nanimus and without requisite animus, his or her possession however long would
\nnot be adverse to the real owner and further the person who claims adverse
\npossession must state as to when and in what manner his possession becomes
\nadverse to real owner.  Unless these conditions are established plea of adverse
\npossession cannot be entertained.\n<\/p>\n
\t\t16.With these legal backdrops, the Court has to anlayse the plea of
\nadverse possession raised on the side of the plaintiffs.\n<\/p>\n
\t\t17.The specific averments made in the plaint are that the second
\ndefendant is the owner of the suit property and she has agreed to sell the same
\nin favour of her father by name Kalyani Chettiar under Ex.A1 and in Ex.A1 it has
\nbeen specifically stated that from the date of execution of Ex.A1 the said
\nKalyani Chettiar can enjoy the suit property as its owner.\n<\/p>\n
\t\t18.The sheet anchor of the case of the plaintiffs is Ex.A1.  Ex.A1
\nis nothing but a sale agreement.  In fact, this Court has closely perused the
\nsame and found that before Ex.A1 the said Kalyani Chettiar has enjoyed the suit
\nproperty as a lessee.  On the side of the defendants, 1 & 2 execution of Ex.A1
\nhas been specifically denied.  Even forgetting the stand taken on the side of
\nthe defendants 1 & 2, the Court has to analyse as to under what capacity the
\nsaid Kalyani Chettiar has enjoyed the suit property.\n<\/p>\n
\t\t19.As stated earlier, prior to the execution of Ex.A1, he enjoyed
\nthe suit property as a lessee and after execution of Ex.A1 his lease hold right
\nhas merged with the rights mentioned in Ex.A1.  Of-course it is true that in
\nEx.A1 it has been stated that the said Kalyani Chettiar can enjoy the suit
\nproperty as its owner.  It is an acknowledged principle of law that an agreement
\nof sale would not convey title to an agreement holder and at the most he can
\nprotect his possession by virtue of sale agreement. In the instant case, after
\nexecution of Ex.A1, the said Kalyani Chettiar has dealt with the suit property
\nas its owner by way of executing a mortgage deed dated 23.07.1956 which has been
\nmarked as Ex.A2 and the Will dated 14.08.1969 which has been marked as Ex.A55.\n<\/p>\n
\t\t20.As stated earlier, the said Kalyani Chettiar has not derived any
\ntitle in respect of the suit property under Ex.A1.  At the most he can protect
\nhis possession of the suit property by virtue of Ex.A1.  Therefore, the mortgage
\ndeed as well as the will alleged to have been executed by the said Kalyani
\nChettiar, would not clothe title either to him or to the plaintiffs.\n<\/p>\n
\t\t21.The plaintiffs have stated in their plaint that the said Kalyani
\nChettiar has enjoyed the suit property by virtue of Ex.A1 and after his demise
\nas well as the demise of his wife, his son by name Moondruyugam has enjoyed the
\nsuit property and after his demise, the plaintiffs have been enjoying the suit
\nproperty by virtue of Exs.A1 as well as A55.  In the plaint, at Paragraph No.19,
\nit has been simply stated that the said Kalyani Chettiar, his wife Valliammal,
\ntheir son viz., Moondruyugam and their grand children viz., plaintiffs have been
\nin open, continuous, uninterrupted, exclusive and hostile possession of  the
\nsuit property for more than 36 years with the knowledge of the defendants 1 & 2
\nand thereby, prescribed title to the same by adverse possession.\n<\/p>\n
\t\t22.It has already been pointed out that the person who claims
\nadverse possession must state in definite terms as to how and when his
\npossession has become adverse to real owner. In the instant case, such condition
\nis not present. On that score alone, the plea of adverse possession raised on
\nthe side of the plaintiffs is liable to be thrown out.\n<\/p>\n
\t\t23.As stated earlier, through out the plaint it has been stated that
\nthe said Kalyani Chettiar has enjoyed the suit property by virtue of Ex.A1 and
\nthe plaintiffs have been enjoying the suit property by virtue of the Will dated
\n14.08.1969. In Ex.A1 it has been stated that the said Kalyani Chettiar has
\nenjoyed the suit property as a lessee prior to execution of Ex.A1.  As stated
\nearlier, after execution of Ex.A1, his lease hold right has become merged with
\nthe rights created under Ex.A1. Therefore, the said Kalyani Chettiar has had
\nenjoyed the suit property as an agreement holder.  The learned counsel appearing
\nfor the appellant has repeatedly contended that in Ex.A1 it has been clinchingly
\nstated that the said Kalyani Chettiar can enjoy the suit property as its owner.
\nEx.A1 is a sale agreement and the same has not conveyed any title to the said
\nKalyani Chettiar. If the contention of the learned counsel appearing for the
\nappellant is legally valid, definitely, the provision of Section 54 of the
\nTransfer of Property Act, would become redundant. Therefore, the said contention
\nurged by the learned counsel appearing for the appellant is not legally
\nacceptable.\n<\/p>\n
\t\t24.In many places, it has been pointed out that the said Kalyani
\nChettiar has enjoyed the suit property as an agreement holder by virtue of
\nEx.A1.  At this juncture, a nice legal question arises as to whether the person
\nwho is having an agreement of sale can claim adverse possession.\n<\/p>\n
\t\t25.The plaintiffs have claimed title to the suit property by adverse
\npossession on the basis of Ex.A1, sale agreement alleged to have been executed
\nby the second defendant in favour of Kalyani Chettiar.  The said Kalyani
\nChettiar has dealt with the suit property as its owner by way of executing
\nmortgage deed as well as Will.\n<\/p>\n
\t\t26.In 1991(1) MLJ Supreme Court 32 (Achal Reddy  Vs. Ramakrishna
\nReddiar and others) it has been held as follows;\n<\/p>\n
\t\t“In the case of an agreement of sale, the party who obtains
\npossession acknowledges the title of the vendor even though the agreement of
\nsale may be invalid.  It is an acknowledgment and recognition of the title of
\nthe vendor which excludes the theory  of adverse possession.  The well settled
\nrule of law is that if a person is in actual possession and has a right to
\npossession under a title involving a due recognition of the owner’s title, his
\npossession will not be regarded as adverse in law even though he claims under
\nanother title having regard to the well-recognized policy of law that possession
\nis never considered to be adverse if it is referable to a lawful title.  The
\npurchaser who got into possession under an executory contract of sale in a
\npermissible character cannot be heard to contend that his possession was
\nadverse. In the concept of adverse possession there is an essential and basic
\ndifference between a case in which the other party is put in possession of
\nproperty by an outright transfer, both parties stipulating for a total
\ndivestiture of all the rights of the transferor in the property and in a case in
\nwhich there is a mere executory agreement of transfer both parties contemplating
\na deed of transfer to be executed at a later point of time. In the latter case
\nthe principle of estoppel applies estopping the transferee from contending that
\nhis possession, while the contract remained executory in stage was in his own
\nright and adversely against the transferor.  Adverse possession implies that it
\ncommenced in wrong and is maintained against right.  When the commencement and
\ncontinuance of possession is legal and proper referable to a contract, it cannot
\nbe adverse.  In the case on an executory contract of sale where the transferee
\nis put in possession of the property in pursuance of the agreement of sale and
\nwhere the parties contemplate the execution of a regular registered deed, the
\nanimus of the purchaser through out is that he is in possession of the property
\nbelonging to the vendor and that the former’s title has to be perfected by a
\nduly registered deed of sale under which the vendor has to pass on and convey
\nthe title.  The purchaser’s possession in such cases is of a derivative
\ncharacter and in clear recognition of and in acknowledgment of the title of the
\nvendor.  The position is different in the case where in pursuance of an oral
\ntransfer or a deed of transfer not registered, the owner of the property
\ntransfers the property and puts the transferee in possession with the clear
\nanimus and on the distinct understanding that from that time onwards, he shall
\nhave not right of title to the property.  In such a case, the owner of the
\nproperty does not retain any vestige of right in regard to the property and his
\nmental attitude towards the property is that it has ceased to belong to him
\naltogether.  The transferee after getting into possession retains the same with
\nthe clear animus that he has become the absolute owner of the property and in
\ncomplete negation of any right or title of the transferor, his enjoyment is
\nsolely as owner in his right and not derivatively or in recognition of the title
\nof any person so far as the vendor is concerned both in mind and actual conduct,
\nthere is total divestiture of all his right, title and interest in the property.
\nThis applies only in a case where there is a clear manifestation of the
\nintention of the owner to divest himself of the right over the property.  On the
\nother hand, in the case of an executory contract, the possession of the
\ntransferee until the date of registration of the conveyance is permissive or
\nderivative and in law is deemed to be on  behalf of the owner himself.”\n<\/p>\n
\t\t27.From the close reading of the above decision rendered by the
\nHonourable Apex Court, it is made clear that the party obtaining possession of
\nproperty in pursuance of sale agreement is not entitled to claim adverse
\npossession and the possession of transferee until registration is nothing but
\npermissive or derivative.\n<\/p>\n
\t\t28.In the written statement filed on the side of the defendants 1 &
\n2, it has been clearly stated that the second defendant has not executed Ex.A1
\nin favour of Kalyani Chettiar.  At this juncture, the Court has to refer the
\nfollowing decisions;\n<\/p>\n
\t\ta)In 89 Law Weekly p-79(1976) (Rajammal Alias Sundayee Ammal (died)
\nVs. Perumalswami) it has been held as follows;\n<\/p>\n
\t“The question of adverse possession has to be determined with reference to
\nthe animus of the person in possession.  Such animus has to be determined solely
\nwith reference to his mental attitude and not with reference to any finding
\nrendered by the Court in respect of matters advanced by him. Once the
\nproposition is accepted that so long as a person links his possession of a
\nproperty with an agreement of sale in his favour, his possession cannot be
\nconsidered hostile to that of the real owner.  It is not open to any one to
\ncontend that because the agreement of sale projected by him is held untrue, it
\nmust automatically be held that his possession was adverse to the real owner.
\nTo make it clear, the test of animus must be determined from the stand point of
\nthe occupant and not from the other end, namely, the pronouncement made by a
\nCourt regarding the truth and validity of the contentions raised by him.”\n<\/p>\n
\t\tb)In 78 Law Weekly  P-172 (Annamalai Chettiar and another Vs.
\nMuthiah Chettiar and another) it has been held that in the case of an agreement
\nof sale the party who obtains possession, acknowledges the title of the vendor
\neven though the agreement of sale may be invalid.  It is the acknowledgment and
\nrecognition of the title of the vendor which excludes the theory of adverse
\npossession.\n<\/p>\n
\t\t29.From the conjoint reading of the decisions referred to above, it
\nis made clear that even the concerned agreement of sale is invalid or untrue,
\nthe person who has been put in possession of the suit property in pursuance of
\nsale agreement is not entitled to claim adverse possession.\n<\/p>\n
\t\t30.In the instant case, as noted down earlier,  the plaintiffs have
\nfailed to aver in the plaint as to when and how the possession of Kalyani
\nChettiar and after his demise, their possession has become adverse to the owner
\nof the suit property viz., second defendant. Therefore, the basic requirements
\nof theory of adverse possession have not been averred in the plaint and further
\nthe paternal grandfather of the plaintiffs viz., Kalyani Chettiar has enjoyed
\nthe suit property only in pursuance of Ex.A1, the sale agreement alleged to have
\nbeen entered into between him and second defendant and in view of the decisions
\nreferred to earlier, it is very clear that the said Kalyani Chettiar and the
\nplaintiffs are not at all entitled to claim adverse possession and therefore,
\nthe plaintiffs are not entitled to get the reliefs sought for in the plaint.\n<\/p>\n
\t\t31.The cumulative effect of the substantial questions of law raised
\non the side of the appellant is as to whether the appellants have perfected
\ntitle to the suit property by adverse possession.\n<\/p>\n
\t\t32.It has already been elaborately dealt with that the plaintiffs
\nare not entitled to  claim adverse possession in view of the bereft of necessary
\nparticulars of adverse possession in the plaint and also in view of the
\ndecisions referred to supra and therefore, all the substantial questions of law
\nraised on the side of the appellant\/first plaintiff are not factually and
\nlegally sustainable.\n<\/p>\n
\t\t33.The Courts below after having elaborate discussions have rightly
\nnon-suited the plaintiffs.  In view of the foregoing narration of both the
\nfactual and legal premise, this Court has not found even a flimsy ground to make
\ninterference with the well merited judgments passed by the Courts below and
\ntherefore, the argument advanced by the learned counsel appearing for the
\nappellant is sans merit, whereas the argument advanced by the learned counsel
\nappearing for the contesting respondents is really having subsisting force and
\naltogether the present second appeal deserves dismissal.\n<\/p>\n
\t\t34.In fine, the present second appeal deserves dismissal and
\naccordingly is dismissed with costs.  The judgment and decree passed in Original
\nSuit No.201 of 1991 by the Principal Subordinate Court, Tirunelveli, upheld in
\nAppeal Suit No.49 of 1999 by the Second Additional District Court, Tirunelveli
\nare confirmed.\n<\/p>\n
gcg<\/p>\n
To\n<\/p>\n
1.The Second Additional District Judge,
\n  Tirunelveli.\n<\/p>\n
2.The Principal Subordinate Judge,
\n  Tirunelveli.\n<\/p>\n
3.The Record Keeper,
\n  V.R. Section,
\n  Madurai Bench of Madras High
\n  Court, Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M.Subbiah vs T.Subbiah (Died) on 15 December, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15\/12\/2008 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL No.449 of 2007 M.Subbiah … Appellant\/ 1st Plaintiff Vs. 1.T.Subbiah (died) 2.Seethalakshmi Ammal (died) 3.V.Sathish Nair … Respondents 1 to 3\/ Defendants 4.M.Valli 5.M.Vasanthakumar 6.M.Kalyani 7.M.Seetharaman 8.M.Srinivasan […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-118975","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM.Subbiah vs T.Subbiah (Died) on 15 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-subbiah-vs-t-subbiah-died-on-15-december-2008-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.Subbiah vs T.Subbiah (Died) on 15 December, 2008 - 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