# K.V. SWAMYNATHAN AND ORS v. E.V. PADMANABHAN AND ORS - **Citation:** [1990] Supp. 3 S.C.R. 709 - **Court:** Supreme Court of India - **Decided:** 1990-12-21 - **Bench:** K.N. Saikia, M. Fathima Beevi - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-v-swamynathan-and-ors-v-e-v-padmanabhan-and-ors-10881 - **Pages:** 38 ## Headnote Constitution of India, 1950-Article 136-Concurrent findings of trial Court and High Court-Interpretation of document of title and finding of existence of adverse possession-Whether questions of law. A B Code of Civil Procedure, 1908---0rder 7, rule I-Suit for possesC sion-Delivery pursuant to Court's decree-Effect, of-Question of adverse possession-When arises. Transfer of Property Act, 1882-Sections 54, 55(f)-Sale-De/ivery when takes place-Duty of seller indicated. The appellants-plaintiffs instituted a suit (O.S. No. 298/76) against the respondents-defendants, for title and exclusive ownership of the suit-properties in T.S. No. 666/2 and for recovery of possession and for damages for wrongful use and occupation of the properties by the defendants. The appellants-plaintiffs' case was that originally the suit-properties were joint-family properties of one Annayyar, who adopted one Vakil Ramaswamy as his son. After the adoption he had three aurasa sons-Ellayar, Sankaranarayana Iyar and Meenakshisundaram Iyer. D E On 21.8.1896, a partition was entered Into between the Annayyar F and his sons and the properties including the suit-properties were allotted to the aurasa sons. On 31.5.1926 over the properties, the aurasa sons executed. a mortgage deed In favour of one Yaghasami Iyer, who obtained a decree f"tling a suit (O.S. No. 147 /1932). G On 4. 7 .1934 when the hypotheca was brought to sale by the mortgagee in execution of the decree in O.S. No. 147 /1932, the aurasa sons executed a subsequent mortgage deed in favour of one Salem Bank. On 9.12.1942, the Bank mortgaged the properties to the father of H 709 710 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R. A the appellants. While so, he also purchased vide a sale deed an undivided l/3rd share of the equity of redemption in the properties from Sankaranarayana Iyar, one of the aurasa sons of Annayyar. On 12.12.1942, Ellayyar, another aurasa son, entered into an B agreement with the father of the appellants for the sale of his 1/3rd share. Defendants 13 and 14, meanwhile, in collusion with Ellayyar brought into existence a sale deed in their favour by antedating an agreement for sale of his share. This forced the father of the appellants • · to file a suit (O.S. No. 202of1942) against Ellayyar and his sons and the C defendants 13 and 14, for specific performance of the agreement for sale. The suit was decreed in favour of the father of the appellants, against which appeal preferred, was also dismissed. On 7.2.1945, in pursuance to the decree, the Court executed a sale 0 deed in favour of the father of the appellants, and symbolic possession of the properties was taken by him. The appellants contended that their father had mortgage rights over the suit-properties in T.S. No. 666/2 and he had become the owner of the equity of redemption in respect of 2/3rd of the properties in T .S. No. 665 and T .S. No. 666. The balance share of 1/3rd was purchased by E the defendants 13 and 14 from Meenakshisundaram, the youngest aurasa son of Annayyar, on 29.12.1942. F G H The father of the appellants filed a suit for partition and separate possession of the 2/3rd share (O.S. No. 54 of 1950) against the defendants 13 and 14. On 28.3.1950, a preliminary decree for partition and separate possession was passed by consent of the parties. When the fmal decree proceedings were pending a compromise was entered into by the parties, according to which, final decree was passed on 6.10.1950. As per the fmal decree the properties were demarcated and allotted between the parties and on 19.1.1953 the father of the appellants was issued possession receipt, who could take only the symbolic possession of the properties, because tenants were there in the properties. Since then the father of the appellants and the appellants were in possession of the suit-properties. .• SWAMYNATHAN v. PADMANABHAN 711 Further the appellants-plaintiffs averred in the instant suit-plaint A that a portion of the land was acquired by the M ## Text _Characters 0–39,976 of 96,932. This is a partial read: ask again with offset=39976 for what follows._ K.V. SWAMYNATHAN AND ORS. v. E.V. PADMANABHAN AND ORS. DECEMBER 21, 1990. [K.N. SAIKIA AND M. FATHIMA BEEVI JJ.] Constitution of India, 1950-Article 136-Concurrent findings of trial Court and High Court-Interpretation of document of title and finding of existence of adverse possession-Whether questions of law. A B Code of Civil Procedure, 1908---0rder 7, rule I-Suit for possesC sion-Delivery pursuant to Court's decree-Effect, of-Question of adverse possession-When arises. Transfer of Property Act, 1882-Sections 54, 55(f)-Sale-De/ivery when takes place-Duty of seller indicated. The appellants-plaintiffs instituted a suit (O.S. No. 298/76) against the respondents-defendants, for title and exclusive ownership of the suit-properties in T.S. No. 666/2 and for recovery of possession and for damages for wrongful use and occupation of the properties by the defendants. The appellants-plaintiffs' case was that originally the suit-properties were joint-family properties of one Annayyar, who adopted one Vakil Ramaswamy as his son. After the adoption he had three aurasa sons-Ellayar, Sankaranarayana Iyar and Meenakshisundaram Iyer. D E On 21.8.1896, a partition was entered Into between the Annayyar F and his sons and the properties including the suit-properties were allotted to the aurasa sons. On 31.5.1926 over the properties, the aurasa sons executed. a mortgage deed In favour of one Yaghasami Iyer, who obtained a decree f"tling a suit (O.S. No. 147 /1932). G On 4. 7 .1934 when the hypotheca was brought to sale by the mortgagee in execution of the decree in O.S. No. 147 /1932, the aurasa sons executed a subsequent mortgage deed in favour of one Salem Bank. On 9.12.1942, the Bank mortgaged the properties to the father of H 709 710 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R. A the appellants. While so, he also purchased vide a sale deed an undivided l/3rd share of the equity of redemption in the properties from Sankaranarayana Iyar, one of the aurasa sons of Annayyar. On 12.12.1942, Ellayyar, another aurasa son, entered into an B agreement with the father of the appellants for the sale of his 1/3rd share. Defendants 13 and 14, meanwhile, in collusion with Ellayyar brought into existence a sale deed in their favour by antedating an agreement for sale of his share. This forced the father of the appellants • · to file a suit (O.S. No. 202of1942) against Ellayyar and his sons and the C defendants 13 and 14, for specific performance of the agreement for sale. The suit was decreed in favour of the father of the appellants, against which appeal preferred, was also dismissed. On 7.2.1945, in pursuance to the decree, the Court executed a sale 0 deed in favour of the father of the appellants, and symbolic possession of the properties was taken by him. The appellants contended that their father had mortgage rights over the suit-properties in T.S. No. 666/2 and he had become the owner of the equity of redemption in respect of 2/3rd of the properties in T .S. No. 665 and T .S. No. 666. The balance share of 1/3rd was purchased by E the defendants 13 and 14 from Meenakshisundaram, the youngest aurasa son of Annayyar, on 29.12.1942. F G H The father of the appellants filed a suit for partition and separate possession of the 2/3rd share (O.S. No. 54 of 1950) against the defendants 13 and 14. On 28.3.1950, a preliminary decree for partition and separate possession was passed by consent of the parties. When the fmal decree proceedings were pending a compromise was entered into by the parties, according to which, final decree was passed on 6.10.1950. As per the fmal decree the properties were demarcated and allotted between the parties and on 19.1.1953 the father of the appellants was issued possession receipt, who could take only the symbolic possession of the properties, because tenants were there in the properties. Since then the father of the appellants and the appellants were in possession of the suit-properties. .• SWAMYNATHAN v. PADMANABHAN 711 Further the appellants-plaintiffs averred in the instant suit-plaint A that a portion of the land was acquired by the Municipality and in C.C. No. 3 of 1957 the Municipality was ordered to pay the appellants compensation for the land acquired by it. It is stated that the names of the appellants were recorded iu Revenue Recor~ and in the Town Survey Field Register and the House B Tax Demand Register of the Municipality. The appellants· were paying the Municipal Property tax of the house Door Nos. 268, 269, 270, 271, 271-A and 272 in T.S. No. 666/2 from 1.4.1964 to 30.9.1969, when respondents-defendants 1 to 3 made objections and the Municipality registered the Door Nos. 272 in the C name of the defendant No. 1, whereas Door Nos. 269, 270, 271 and 271-A were registered in the names of the defendants Nos. 2 and 3 and Door No. 268 in one Kalyana Sundaram's name. The appellants filed a writ petition \ll!ainst such alternations made by the Municipality, which was dismissed by the High Court, as remedy D was available by suit. When their appeal was dismissed, by the· Division Bench of the High Court, the appellants-plaintiffs filed the instant suit (O.S. 298/ 1976). Defendant No. l's case was that the portion of the suit properties, consisting of Door Nos. 269 to 272 became her. father-in-law's properties under a family arrangement, as be being the adopted son of Annayyar. On his death, his son, the husband of the defendant No. 1, became entitled to the properties in T,S. No. 666/2 and be was in E possession and enjoyment thereof directly and through tenants. F On 1.5.1945 defendant No. l's husband leased out a vacant site in T .S. No. 666/2 to the father of the defendants 2 to 4 for a period of 10 years, whereon the lessee put up Door Nos. 269, 270, 271 and 271-A. On the death of her husband, the defendant No. 1 granted fresh G lease to the defendants 2 to 4, who sublet the buildings to defendants 5 to 8. The defendant No. 1 stated that her predecessors and she was in -, continuous and uninterrupted possession of the suit-properties in T .S. No. 666/2 for more than 60 years and bad perfected title to the suitH 712 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R. A properties by adverse possession and the appellants-plaintiffs did not have any right, title or interest over the suit-properties. She also denied all other contentions of the plaintiffs. B The second defendant corroborated the facts ,stated by the first defendant and adopted the written statement of the defendant No. 1. The sixth defendant stated that he took Door No. 270 on lease from the father of the defendants 2 to 4 to do business and the Cather-inlaw of the defendant No. 6, the defendant No. 7, took the Door No. 271 on lease from the father of the defendant Nos. 2 to 4 and later on the defendant No. 6, the son-in-law of defendant no. 7 took possession of C Door No. 271 from defendant No. 7 and the business run by him therein. The defendant No. 6 adopted the written statement of his lessors-defendants 2 to 4. D E F G H In the joint-written statement, the defendants 9 and IO claimed to be in possession of Door No. 272, which was belonging to the Mahaganapathi Dhandayathapani Swamy temple of the Sambanda Swamy Matam. According to the defendants 9 and IO, their father had been in occupation of the Door No. 272, as he was doing the services in the temple and on his death, the defendants 9 and IO, being his sons, were in possession and enjoyment thereof. They also averred that the proceedings in O.A. No. 28 of 1970 were pending before the Deputy Commissioner, Hindu Religions and Charitable Endowment with respect to Door No. 272. They had perfected title to the property, which was in their possession for more than 50 years. The contentions of the defendant No. 11 were that he was running a petty shop in Door No. 272 for more than 25 years and the R.R.& C.E. Board had issued notices to all occupiers like him to surrender possession to the Sambanda Swamy Matam, as the suit-properties belonged to the Matam. The 12th defendant stated that Door No. 268, where he was residing originally belonged to Ellayyar's family. On 14.11.1896, under a deed executed by the members of Ellayyar's family, the paternal grand father of the defendant 12 was permitted to live in Door No. 268, and to perform puja in their family temple. The defendant had been performing pooja after the deaths of his grand fa titer and father. The defendant No. 12 stated that ever since 14.11.1896 he and his pre-decessors-ininterest had been in possession and enjoyment of Door No. 268. • .. SWAMYNATHAN v. PADMANABHAN 713 Defendants 13 and 14 stated that in O.S. No. 54/1950 the properties were divided between them and the father of the appellantsplaintiffs and same was allotted and delivered to them. They took delivery of possession of the same, wherein they had put up superstructures and subsequently affected partition between them. A All the respondents-defendants claimed that the appelalntsB plaintiffs had no right, title or interest on the suit-properties in T .S. No. 666/2; that the suit was barred by limitati~n; that plaintiff-appellants could not claim any relief from them; and that all of them have perfected title, as they were in uninterrupted and peaceful possession ~·· and enjoyment of the suit properties in T .S. No. 666/2 since a long time. During the pendency of the suit, the defendant No. 15 was impleaded, being the legal representative of the defendant No. 1, on her death. Dismissing the suit, the trial Court held that the appellantsplaintiffs had no title to the suit properties, that the husband of the defendant No. 1 and his heirs had been in possession and enjoyment of Door Nos. 269 to 272 through their tenants for over the prescriptive period, that Door No. 272 and T .s. No. 666 were not temple properties as contended by defendants 9 and 10, that the 12th defendant was entitled to be in occupation of a portion of Door No. 268 in lieu of his services to the temple. 1n their appeal to the High Court, the appellants-plaintiffs contended that the trial Court erred in coming to the conclusion that the plaintiffs bad no title to the suit properties; and that when once the title of the plaintiffs to the suit properties was found in their favour, it was for the defendants to establish that they had prescribed title to the suit properties by adverse possession and limitation. The respondents-defendants contended that the title having been found in their favour, the suit was rightly dismissed. c D E F Dismissing the appeal of the appellants, the High Court held that G as the appellants-plaintiffs had not proved their title over the suitproperties, they were not entitled to a decree for recovery of possession of the suit-properties. The High Court also declined the leave to appeal. In this Court, the respondents raised a preliminary point contending that this appeal against the concurrent findings of the Courts below H A B c D E F G 714 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R. to be dismissed. The appellants contended that the questions formulated by the High Court were questions oflaw. It wa~ the contentions of the appellants that their father had derived title to suit properties-the 2/3rd shares of the aurasa sons as Annayyar, on the basis of sale deeds dated 19.12.1942 and 7.2.1945 executed in his favour about 38 years prior to the filing of the instant suit, which were executed by the Court in pursuance of the decree for specific performance; that the defendants 13 and 14 purchased I/3rd share of the 3rd aurasa son by the sale deed dated 29.12.1942; that all the three sale deeds expressly referred to the suit-properties in T.S. No. 666/2, even though there was no reference as to the boundaries and the High Court erred in not mentioning in its judgment the vital fact that the sale deeds-the documents of title-expressly included the suitproperties; that other documents like the mortgage deed dated 4. 7 .1934, the deed of assignment of mortgage right dated 9.12.1942, the deed of mortgage dated 31.5.1921, the sketch and the revenue map etc. expressly referred to the suit-properties; that though the instant suitproperties were not the subject matter in the partition suit in O.S. No. 54 of 1950, between the father of the appellants-plaintiffs and defendants 13 and 14, it would not affect their title to the instant suitproperties; that by a process of argumentative inference title was to be found in the certified copy of the original plaint; that the defendant No. 1 only claimed title or possession related to Door Nos. 269 to 272 and defendant No. 12 (respondent No. 7) claimed the Door No, 268 on the basis of permissive possession vide document dated 14.11.1896, that on the questions of adverse possession of Door Nos. 269 to 272 by defendant No. 1 was not justified, as per the witness evidence it was stated that the father-in-law of defendant No. 1 was in possession· only over Door No. 272 and it had commenced by way of permissive possession only at the time of partition between the father-in-law of defendant No. 1 and other members of the family and permissive possession could not be converted Into adverse possession because the defendant No. 1 did not set up any evidence to prove that there was such hostile title to the knowledge of the true owner; that the defendant l(respondent No. 8) made sales of the suit properties to respondents 9 to 12. The respondents-defendants, on the other hand, contended that the concurrent f"mdings of the Court's below were based on the Exts. and the conduct of the appellants-plaintiffs and their father through-out the litigation. Further they contended that if really T.S. No. 666/2 belonged to the aurasa sons under the partition deed, the plaintiffs' father would H be entitled only to 2 /3rd share in the suit properties under the sale deeds • ... SWAMYNATHAN v. PADMANABHAN 715 in Ext. A. S and A.8, and defendants 13 and 14 would be entitled to the A remaining l/3rd share and the instant plaint could have proceeded on the basis that the appellants-plaintiffs were entitled to only 2/3rd share and defendants 13 and 14 were entitled to the remaining 1/3rd share, which was not the basis on which the present plairit had been filed. Dismissing the appeal of the appellants-plaintiffs, this Court, B HELD: 1.01. Concurrent fmdings of fact will not be disturbed unless it is shown that there has been a miscarriage of justice or the violation of some procedure or principle or that they have been arrived at by reason of any error or method or mistake through neglect of any aspect of the evidence, or important aspects of the case escaped notice C .or failed to receive due _emphasis, or that the forms of legal ' process · were disregarded or principles of natural justice were violated or sub- '1stantial and grave injustice resulted or that it cannot be supported by the evidence or it is perverse, or that the rule of prudence that the evidence of an unrelial>le witness should not as accepted without corroboration has been departed from. It is also true that they will not be D disturbed on the ground that inadmissiable evidence was received, when the findings cannot on any reasonable view be regarded as based or dependent upon such evidence. [731B-D] 1.02. In an appeal by special leave there has to be a substantial questionoflaw. [7310] E 1.03. Interpretation of a document of title is a question of law. [73111] 1.04. Construction of a document of title which was the foundation of the rights of parties necessarily raises a question of law. [732B] • 1.05. The question as to whether the possession of a person can be regarded in law as adverse possession is partly a question of fact and partly a question of law. [732D] - - Mithilesh Kumari v. Prem Benahi Khare. [1989] 2 SCC 95: J.T. F 1989 (1) SC 275, Distinguished. G Kaolapati v. Amar, AlR 1939 PC 249: 44 CWN 66; Chunilal V. Mehta & Sons, Ltd v. The Century Spinning and Manufacturing Co. Ltd., AlR 1962 SC 1314: [1962] 3 Supp. SCR 549; Jadu Gopalv. Panna Lal, A1R 1978 SC 1329: [ 1978] 3 SCR 855 and Meenakshi Mills, Madurai v. The Commissioner of Income-tax, Madras, AIR 1956 SC H 49: [ 1956] SCR 691, followed. 716 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R. A State Bank of Travancore v. A.K. Panikkar, AIR 1971 SC 9%; Kesar Singh v. Ba/want Singh, AIR 1957 SC 487: [ 1962] Supp. (1) SCR 325; Sabapathiv. Huntlay, AIR 1938 P.C. 91: 173 IC 19; Sitalakshmiv. Venkata, 34 CWN 593, 597; Khoo Sit v. Lim Thean. [1912] AC 323, 325; Sarju v. Jwaleshwari, AIR 1951 SC 120: [1950] SCR 781; Radha Prasad v, Gajadhar, AIR 1960 SC 115: [1960] 1 SCR 663; Karbada v. B Chhaganlal, AIR 1969 SC 395; Robin v. National Trust Ltd., 101 IC 903: AIR 1927 PC 66; Watt v. Thomas, [ 1947] AC 484, 486; Sara Veeraswami v. Talluri, AIR 1949 PC 32: 1949 Mad. 487: 75 IA 252; Benmak v. Austin Motor Co. Ltd. [1955] l All. E.R. 326, H.L. Bodhraj v. Sitaram, 40 CWN 257: 160 IC 45; AIR 1936 PC 60 and Virappa v. Periakaruppan, 49 CWN 211: AIR 1945 PC 35, referred to. c The path of the Law (1897) in collected Legal Papers Page 173; Best 11th Ed. S. 12-Referred to. 2.01. In the instant case, while interpreting the Exts. A. 5 and A. 8, and the decree one has to take into consideration what the Parties D themselves intended. Quia non refert out quis intionem suam declarat, verbis out rebus ipsis vel factis. It Is immaterial whether the Intention he collected from the words used or the acts done. Intention was manifested in the acts performed by tbe parties concerned pursuant thereto. It was immaterial that T.S. No. 666 was there In the deeds. lntentio mea imponit nomen operi meo. My intent gives name to my act. Facta sunt E potentiora verbis. Facts are more powerful than words. Factum cuique suum adversarie nocere debet. A party's own act should prejudice himself, not his adversary. Traditio loqui facit certam. Delivery makes a deed speak. Delivery gives effect to the words of a deed. What was delivered purusant to the decree on interpretation of the sale deeds has to be accepted as the parties themselves after night-long deliberation F fixed and accepted. [745B-D] G H 2.02 The right to T .S. No. 666/2 having not been acquired at all, no question of adverse possession against the plaintiffs would arise at all. The plaintiffs case has to fail for want of proof of title to T .S. No. 666/2. [745E] 2.03. Adverse possession by nature implies the ownership of another. Where one person Is in possession of property under any title, and another person claims to be the rightful owner of the property under a different title, the possession of the former Is said to he adverse possession with reference to the latter. Adverse possession Is a statutory method of acquiring title to land by limitation. It depends on animus or ' ,, • .. -.. • SWAMYNATHAN v. PADMANABHAN (SAIK!A, J.] 717 intent of occupant to claim and bold real property in opposition to all the world; and also embodies the idea that the owner of the property bas knowledge oftbe assertion of ownership of the occupant. [745F] 3.01. Under Section 54 of the Transfer of Property ,Act, delivery of tangible property takes place when the seller places the buyer, or such person as be directs, in possession of the property. Under section SS(f) of that Act the seller is to give, on being so required, the buyer, or such person as be directs, such possession of the property as its nature permits. [746CJ A B 3.02. In the instant case the father of the appellants was never proved to have acquired ownership of T .S. No. 666/2. there is no evidence of T .S. No. 666/2 rter having been delivered to him. On the other C band the Commissioner's plan and the partition decree did not include T.S. No. 666/2. It cannot, therefore, be said that the father of the appellants acquired any title to it. Obviously the appellants also could not inberittbe same. [746B, DI - Austin on Jurisprudence P, 177, referred to. CIVIL APPELLATE JlJRISDICTION: Civil Appeal No. 1224 of 1980. D From' the Judgment and Order dated 18.12.1979 of the Madras E High Court in Appeal No. 919 of 1975. Shanti Bhushan, P.N. Ramalingam, S.V. Ramesh, S. Balakrishnan, Ramesh N. Keshwani andNijay Kumar for the Appellants. U.R. Lalit, S. Srinivasan and P.K. Chokkalingam for the F Respondents . The Judgment of the Court delivered by K.N. SAIK.IA, J. This plaintiffs' appeal by special leave is from the Judgment of the Madras High Court, dated 18.12.1979 in A.S. No. G 919 of 1975, dismissing the appeal against the Judgment and decree of the Subordinate Judge, Erode, dismissing the suit. The plaintiffs in O.S. No. 298 of 1970 sought a declaration that they were the exclusive owners of the plaint schedule properties and for recovery of possession thereof alongwith a prayer that the defendants 1-12 and 15 or such of them_as were liable should be directed to pay Rs.3,600 as damages for H 718 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R. A wrongful use and occupation of the suit properties. B c J) E F The suit property as described in schedule B to the plaint is comprised in Town Survey (shortly, T.S.) No. 666/2 in Erode Municipality. There are in all six house-doors in the suit property bearing Door Nos. 268, 269, 270, 271, 271-A and 272. The parties for tracing their title admit the following genealogy: Ellayyar alias Annayyar (dead) GENEALOGY Ellayyar Kalyanasundaram Ayer (dead) R.P. Seetharama Iyer R.P. Ramahadran (dead) (dead) R.S. Kothandaraman R. Lokabiraman Iyer (dead) (adopted son) R.A. Ellayar R.A. Sankara Vakil Ramasamy Iyer (dead) R. Ellusubramania Iyer(dead) wife Nagammal (D-1) (dead) narayana Iye._r (dead) Kalyanarama Subramania Iyer (dead) Pattabirama Iyer (dead) R.P. Ellurama Iyer (dead) R.A. Meenakshi Sundaram Iyer (dead) R. Sivasubramania Iyer (dead) The four instant appellants K.V. Swamynathan, K.V. Ganesan, V. Ramasundaram and V. Sam.igasundaram, all sons of K.S. VaiyaG puri Chettiar instituted O.S. No. 298 of 1970 aforesaid against the 14 original defendants, namely, (1) R. Nagammal, widow of R. Ellusubramania Iyer, (2) E.V. Padmanabhan, son of R.K. Venkatasami Naicker, (3) E.V. Gopinath, son of R.K. Venkatasami Naicker, (4) Srimathi Audal, wife of G. Venkatakrishnan, (5) P. Thambayya Naidu, resident of Door Nos. 268, 269 and 270, (6) P. Rangasami, H carrying on business at Door Nos. 271and271-A, (7) A.K. Pangianna, ·r -, ... SWAMYNATHAN v. PADMANABHAN [SAIKIA, J.] 719 father-in-law of (6) above, (8) Venkatachalam, shopkeeper at Door Nos. 271 & 271-A (9) S. Beshadri Iyer of Door No. 272, (10) Lakshmi Ammal, resident of poor No. 272, (11) A. Ramaswamy of Door No. 272, ( 12) N.B. Darayanasami Sastri, resident of Door No. 268, (13) A. Marimuthu Mudaliar, businessman at Door No. 275-A and (14) A. Arumuga Mudaliar, carrying on business at Door No. 275. By order dated 29.1.1974 in I.A. 1283/73, Meenammal, wife .of R. Ramamoorthy Iyer was added as defendant No. 15. A. Marimuttu Mudaliar and A. Nagammal having died, their legal representatives were brought on record. In this- appeal, however, there are only 12 respondents. Ext. A-1 reproduced herein is the sketch map for the site T.S. No. 666 in Ward 1, Brough Road, Brode Town. A B c The plaintiffs' case was: The buildings and the vacant sites in original T.S. No. 666 and T.S. No. 665 which lay North ofT.S. No. 666 were the joint family .properties of the propositus Ellayyar alias Annayyar, hereinafter called Annayyar. Before the aurasa sons were D born to Annayyar, he adopted one Ramasamy Iyer, who later came to be known as Vakil Ramasamy Iyer. Besides the adopted son Vakil Ramasamy Iyer, Annayyar had, as would be clear from the gendslogical table, three aurasa sons, namely, R.A. Sllayar, R.A. Sankaranarayana Iyar and R.A. Meenakshisundaram Iyer. Vakil Ramasamy Iyer had three sons, namely, Ellusubramania Iyer, kalayanarama SubraE mania Iyer and Sivasubramania Iyer. The first defendant, Nagammal is, the widow of Ellusubramania Iyer and daughter-in-law of Vakil Ramasamy Iyer. On 21.8.1896 a partition was entered into among Annayyar and his aurasa sons and his adopted son Ramasamy Iyer. Under the partition deed, the suit properties were allotted to R.A. Ellayar, R.A. Sankaranarayana Iyer and R.A. Meenakshisundaram p Iyer, the aurasa sons of Annayyar. On 31.5.1921, the aurasa sons of Annayyar executed a mortgage over the properties, obtained by them under Ext. S. 5 partition deed including the suit properties, to one Yaghasami Iyer who filed O.S. No. 147 of 1932 in the Sub Court, Coimbatore and obtained a decree. When the hypotheca was brought to sale by the mortgagee in execution of the decree, the mortgagors, G namely, the aurasa sons executed on 4.7.1934 the subsequent Ext. A. 3 mortgage in favour of Salem Bank Limited. The mortgagee, Salem Bank Limited in turn assigned their rights under Ext. A. 3 mortgage to K.S. Vaiyapuri Chettiar. the deceased father of the plaintiffs under Ext. A. 4 dated 9.12.1942. While so, the said Vaiyapuri Chettiar purchased an undivided 1/3rd share of the equity of redemption in T.S. H 720 SUPREME COURT REPORTS ]1990] Supp. 3 S.C.R. A Nos. 665 and 666 from R.A. Sankaranarayana Iyer, one of the aur11sa sons of Annayyar. The· sale- deed is marked as Ext. A. 5. On 12. 12.1942, R.A. Ellayyar, one of the aurasa sons of Annayyar entered into an agreement with Vaiyapuri Chettiar for the sale of his 1/3rd share in the equity of redemption over T.S. Nos. 665 and 666. B c Then defendants 13 and 14 in collusion with the said Ellayar brought into existence a sale deed in their favour by antedating an agreement for sale. Therefore, the plaintiffs' father Vaiyapuri Chettiar filed O.S. No. 202 of 1942 in the Sub-court, Coimbatore against R.S. Ellayyar and his sons for specific performance of the agreement for sale of the l/3rd share of the equity of redemption in T.S. No. 665 and 666. The defendants 13 and 14 were also made party defendants to the said suit. The suit ended in a decree for specific performance being granted in favour of the plaintiffs' father Vaiyapuri Chettiar. Appeal from that decree was dismissed by Ext. A. 9 Judgment dated 11. 7. 1946. On 7.2.1945, the Subordinate Judge, Coimbatore executed Ext. A. 5 sale deed in favour of Vaiyapuri Chettiar in execution of the decree for specific performance, and he is said to have taken symbolic possession D of the properties. Thus, the plaintiffs' father Vaiyapuri Chettiar, the plaintiffs claimed, had mortgage rights over T.S. Nos. 665 and 666, when which were. allotted to the aurasa sons of Annayyar under Ext. S. 5, partition deed and he became the owner of the equity of redemption in respect of 2/3rd of the said properties under Exts. A. 5 and A. 6. The balance of l/3rd share in T.S. Nos. 665 and 666 which was vested E under R.K. Meenakshisundaram Iyer, the youngest of the three aurasa sons of Annayyar was admittedly purchased by defendants 13 and 14 on 29.12.1942 under Ext. A. 6 with a direction to discharge the l/3rd share of the mortgage debt due to the plaintiffs' father under Ext. A. 4 assignment of Ext. A.3. F The plaintiffs' father Vaiyapuri Chettiar, it is averred, then filed O.S. No. 54 of 1960 in the Sub Court. Coimbatore against defendants .. 13 and 14 for partition and separate possession of the 2/3rd share in the • buildings and lands in T.S. Nos. 665 & 666. A preliminary decree for partition and separate possession was passed by consent of parties on 28.3. 1950. Exhibit A. 11 is the certified copy of the preliminary decree G in that suit. When the final decree proceedings were pending, Vaiyapuri Chettiar and defendants 13 and 14 entered into a compromise. Accordingly, a final decree was passed on 6.10.1960 under Ext. S. 1. Iris the case of the plaintiffs that as per Ext. S. 1 final decree the northern portion of T.S. No. 665 and a portion in the western extremity of T.S. No. 664 were allotted to defendants 13 and 14 and H the remaining portions of the property in the suit O.S. No. 64 of 1950 • SWAMYNATHAN v. PADMANABHAN [SAIKIA, J.) 721 were allotted to the plaintiffs' _father. The plaintiffs claimed that their father obtained symbolical possession of the properties allotted to him under the final decree on 19.1.1953 under Ext. A. 13 possession receipt passed in fevour of Vaiyapuri Chettiar in S.P. No. 23 of 1961 in 0.S. No. 54 of 1960. According to the plaintiffs symbolic possession happened to be taken by the plaintiffs' father because there were tenants in the buildings on the suit properties. Since that date it is claimed, the plaintiffs' father and the plaintiffs have been in possession of the buildings and vacant portions in T.S. Nos, 665, 666 and 664. In 1954; a portion of T.S. No. 666 was compulsorily acquired by A B the Erode Municipality. Subsequently T.S. No. 666 came to be subdivided and T.S. No. 666/1 was allotted to the acquired portion and to C the remaining portion T,S. No. 666/2. Compensation for the acquired portion in T.S. No. 666 was, it is stated, ordered to be paid to the plaintiffs in C.C.. No. 3 of 1957. Subsequently, it is stated, the plaintiffs were registered as the sole and exclusive owners of T.S. No. 666/2 in the revenue records. The Erode Municipality also said to have registered the names of the plaintiffs in the Town Survey Field RegisD ter. Again in March-April, 1964 the Erode Municipality is said to have registered the names of the plaintiffs in the House Tax demand register in respect of house doors Nos. 268, 269, 270, 271, 271-A and 272, situated in T.S. No 666/2. The plaintiffs claim to have been paying the property tax to the Municipality from 1st April, 1964 to 30th September, 1969, Whereat defendants 1 to 3 having raised objections E the names in the property tax register were altered and Door No. 272 was registered in name of the first defendant and Door Nos. 269, 270, 271, & 271-A were registered in the names of the defendants 2 and 3. Door No: 269 was registered in the name of Kalyanasundaram Iyer. When the plaintiffs came to know of these alterations they filed Writ Petition No. 2790 of 1967 against the alterations but the Writ Petition F was dismissed on the ground that the remedy of the plaintiffs lay in civil suit. Their writ appeal also failed. Subsequently they filed the instant suit O.S. 298 of 1970 for aforesaid reliefs. According to the plaintiffs, the defendants have no manner of right or title over the suit properties. Defendants 1, 2, 6, 9, 10, 11, 12, 13, and 14 filed separate written statements . G . The first defendant has denied that the building and the vacant site in T.S. Nos. 666 and 665 belonged to Annayyar and his three i'Urasa sons. According to her, her father-in-law Vakil Ramasamy Iyer H A 722 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R. bacame entitled to the portion consisting of Door Nos. 269 to 272, Brough Road, Brode under a family arrangement. On his death, his son, her husband Ellusubramania Iyer, became entitled to the properties and he was in possession and enjoyment thereof directly and through tenants. On 1.5.1945, the first defendant's husband Ellusubramania Iyer based out the vacant site comprised in then T.S. No. R · 666 to one R.K. Venkatasamy Naicker, deceased father of defendants 2 to 4 for a period of ten years under Ext. S. 34. The said Venkatasamy Naicker put up Door Nos. 269, 270 and 271-A in T.S. No. 666. On the death of her husband and Venkatasami Naicker the first