(Prayer: Second Appeal is filed under Section 100 CPC, to call for the records and to set aside the judgment and decree dated 18.11.2019 passed in AS No. 92 of 2019 on the file of the learned Subordinate Judge, Manamadurai and to confirm the judgment and decree dated 22.08.2014 passed in OS. No. 3 of 2010 on the file of the learned Principal District Munsif Court, Manamadurai.)

1. The defendants 2 to 5 in O.S.No.3 of 2010 are the appellants, aggrieved by the reversal findings rendered by the first appellate Court.

2. I have heard Ms.T.Shiva Shree, for Mr.B.Ramanathan, learned counsel for the appellants and Mr.V.N.Arjun, for Mr.N.Vallinayagam, learned counsel for the respondents.

3. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

4. The second appeal was admitted by this Court on 06.11.2020 on the following substantial questions of law:

               “a. Whether the learned first appellate Court is right in allowing the appeal filed by the plaintiffs/respondents without considering the filing of the suit itself is barred by limitation as contemplated under Articles 58, 59 and 65 of the Law of Limitation Act, 1965?

               b. Whether the learned first appellate Court is right in rejecting the documents filed on the side of the Appellants/Defendants that is Exhibits B2 and B3 and as to whether those documents are valid in the eye of law especially they are admitted by the respondents/plaintiffs?

               c. Whether the first appellate Court is right in accepting the case of the Respondents/Plaintiffs when they have admitted the entrustment of the possession of the properties in the life time of their father that is much earlier to the original suit?

               d. Whether the benefits and credibility contemplated under section 90 of the Indian Evidence Act is applicable to Exhibits B-2 and B-3?

               e. Whether Section 54 of Transfer of Property Act is applicable to the case of the Appellants/Defendants?

               f. Whether the totality of the case is rightly considered by the learned first Appellate Court or not?”

5. Brief facts that are necessary for deciding the second appeal are as hereunder:

               5.1. An extent of 32 cents comprised in survey No.52/1, originally belonged to one Thandi Thevar, who is the grand father of the plaintiffs and another extent of 30 cents comprised in survey No.52/2 belonged to one Rasu thevar, who is the father of the plaintiffs, who had purchased the same under sale deed dated 18.05.1951. According to the plaintiffs, the entire extent of 62 cents was a single lot. After the life time of the father of the plaintiffs, viz., Rasu Thevar, his wife/ Ponnammal and the plaintiffs /daughters, enjoyed the property in common and subsequent to the demise of the mother / Ponnammal, the plaintiffs have been in possession and enjoyment of the property and there are 30 coconut trees available in the property. According to the plaintiffs, they being women, they had appointed the first defendant to take care of the cultivation and the first defendant was also giving yields to the plaintiffs. However, the first defendant attempted to mutate the revenue records in his name. Hence, the plaintiffs sent a legal notice to the 1st defendant on 09.11.2009 and the same was received by the first defendant on 11.11.2009. As the first defendant failed to reply and also hand over possession of the suit property, the plaintiffs were constrained to file the suit for declaration of their title and for recovery of possession.

               5.2. The suit was resisted by the defendants stating that the properties comprised in survey No. 52/1 were not belonging to the grandfather of the plaintiffs as claimed in the plaint, but, it was purchased by Rasu Thevar under sale deed dated 15.08.1952 and even during his life time, the father of the plaintiffs, on 13.08.1977 had agreed to sell the said 64 cents to the 1st defendant by way of a sale agreement and subsequently in and by registered sale deed dated 15.10.1978, the plaintiffs' father along with the plaintiffs sold the entire extent to the first defendant. The first defendant has also obtained patta in the UDR scheme and he has paid taxes to the Government. The first defendant also mortgaged the property in favour of one Puspavalli, which was redeemed on 22.03.2005. Thereafter, he once again mortgaged the property to one Palanisamy on 29.03.2005, which was also redeemed on 08.02.2008. The plaintiffs were fully aware of the enjoyment of the property by the first defendant. The first defendant has also executed a settlement deed on 03.10.2007 in respect of 10 cents to his daughter/Atheeswari. The first defendant thereafter settled 10 cents to his grand son, viz., Suthanthirathileepan/ third defendant, by way of a settlement deed dated 03.10.2007. Subsequently, he settled another extent of 10 cents vide settlement deed dated 24.11.2009. As the said Atheeswari died, the first defendant cancelled the said settlement deed on 27.11.2009. after the death of Atheeswari and the first defendant executed a fresh settlement deed in respect of 10 cents in favour of the 3rd defendant. The third defendant therefore claimed to be in possession of 30 cents ,and the same was subdivided in to survey No.52/1B and revenue records were mutated in the name of the third defendant. The first defendant also settled on the second defendant, an extent of 10 cents, which was subdivided as survey No.52/1A and patta has also been issued in her name. The first defendant sold 22 ½ cents under a sale deed dated 08.02.2008, to one Selvaraj, who in turn, sold the same to the 5th defendant/Sakthivel, by way of a sale deed on 21.01.2009. The plaintiffs therefore have no right over the suit property.

6. On the above pleadings, the trial Court framed the following issues.

               “1) Whether the plaintiffs are entitled to the suit property?

               2) Whether the plaintiffs are estopped by estoppel for deed ?

               3) Whether the suit is bad for noh-joinder of necessary party?

               4) Whether the plaintiffs are entitled to the relief of declaration and          recovery of possession?

                5) To what relief?”

7. At trial, the first plaintiff has examined herself as P.W.l and two other witnesses as P.W.2 and P.W.3 and 7 documents were marked as Ex.Al to Ex.A7. On the side of the defendants, the defendants 1,2 and 4 examined themselves as D.W.l to D.W.3 and independent witnesses were examined as DW4 and DW5 and 23 documents were marked as Ex.Bl to Ex.B23 documents.

8. The trial Court dismissed the suit. Against the same, the plaintiffs preferred an appeal in A.S.No.92 of 2019 before the Subordinate Court, Manamadurai. The first appellate Court allowed the appeal and decreed the suit, holding that long possession of the defendants would not give any legal right and the plaintiffs were entitled to reliefs as prayed for, since they had established title and were consequently entitled to the relief of possession.

9. Against the reversal findings of the first appellate Court, the defendants filed the second appeal.

10. Arguments of Ms.T.Shiva Shree , learned counsel for appellants :

               10.1. Ms.T.Shiva Shree, learned counsel for the appellants would take me through the pleadings and the documents that had been exhibited before the trial Court and relying on the unregistered sale agreement as well as unregistered sale deed, which were marked as Ex.B2 and Ex.B3, the learned counsel would bring to my notice that the plaintiffs themselves were witnesses to Ex.B2 and they were estopped from denying the factum of possession being handed over to the first defendant. She would also rely on the patta mutated in the name of the first defendant and the exercise of ownership rights by various mortgages and redemption of the same (Ex.B6 to Ex.B9). She would further contend that admittedly, the plaintiffs are from the same village and they were fully aware of the fact that the first defendant was enjoying the property as owner and at no point of time, the plaintiffs have chosen to question the same and they cannot take advantage of the fact that the plaintiffs attempted to get mutation of revenue records, giving rise to a cause of action. She would further state that having been witnesses to the unregistered sale deed in favour of the first defendant executed by her father, the plaintiffs cannot feign ignorance about the first defendant being put in possession of the suit property and invent a cause of action to bring the suit within the law of limitation. She would further state that for over the statutory period of 12 years, the first defendant has been in open, continuos, and hostile possession and therefore, even if no right accrued under the unregistered sale deed (Ex.B2), the first defendant has, in any event, perfected his title to the suit property by adverse possession and therefore, the plaintiffs cannot claim the relief of declaration and consequential relief of recovery of possession, which were hopelessly time barred. She would further state that the plaintiffs had also miserably failed to prove their case that the first defendant was a permissive occupant and he was only as lead to manage the cultivation of the suit property and the first appellate Court ought not to have decreed the suit, having confirmed the findings of the trial Court that the plaintiffs had not established permissive possession. She would further state that the amendment of Transfer of Property Act had also come into force only on 24.09.2009, mandating registration of agreements in order to claim protection Section 53-A and in the present case, the agreement was prior to the date of amendment and hence, the defendants cannot be non-suited on the ground of the plea of part performance being claimed under an unregistered agreement of sale, followed by an unregistered sale deed.

               10.2. The learned counsel for the appellants has relied on the following decisions of the Hon'ble Supreme Court:

               (i) Bondar Singh and others v. Nihal Singh and others, reported in 2003-4-SCC-141;

               (ii) Oswal Fats and Oil Limited v. Additional Commissioner (Administration) Bareilly Division, reported in 2010-4-SCC-728.

11. Arguments of Mr.V.N.Arjun, learned counsel for the respondents: 11.1. Per contra, Mr.V.N.Arjun, learned counsel for the respondents would submit that the first appellate Court has rightly decreed the suit, reversing the erroneous and perverse finding rendered by the trial Court.

               11.2. The learned counsel for the respondents has relied on the following decisions of this Court:

               (i) N.V.Nageswara Aiyar v. Alagu Srinivasa Aiyangar (dead), reported in 1926-23-LW-675;

               (ii) D.Balachandran, Prop. Of Balu Tex v. T.C.Shanmugam, reported in 2013-2-CTC-832; and

               (iii) N.Pandurangan v. N.Kannaboss, reported in 2019-6- MLJ-241.

               11.3. The learned counsel for the respondents would contend that the defendants cannot rely on unregistered documents, especially a sale deed under which they claimed absolute right and interest. He would therefore state that no interference is warranted in the second appeal.

12. I have carefully considered the submissions advanced by the learned counsel for the appellants as well as the learned counsel for the respondents.

13. Discussion:

               13.1. The case on which the plaintiffs approached the Court was that they were the owners of the suit property, having inherited the same from their father and they had entrusted the property with the first defendant for taking care of the same, including the cultivation of coconut trees. It was their further case that the first defendant, in furtherance of the permission, was managing the suit property and giving yield to the plaintiffs. However, no evidence insofar as the said plea of permissive possession or entrustment of the suit property for management was let in. Both the trial Court as well as the first appellate Court have rightly found that the plaintiffs have not established the plea of permissive possession of the first defendant. It is only on the basis of the alleged permissive possession of the first defendant that the suit came to be filed, alleging that taking undue advantage of the permission, the first defendant was attempting to get patta in his name.

               13.2. However, it is the case of the defendants that even during the life time of the father of the plaintiffs/Rasu Thevar, the first defendant was put in possession under an unregistered sale deed, in and by which, the said Rasu Thevar has sold the property to the first defendant. According to the first defendant eversince, the first defendant has been in peaceful possession and enjoyment and has also mutated revenue records in his name.

               13.3. On the side of the plaintiffs, no documents have been exhibited to establish the fact the suit property was mutated in the name of the plaintiffs, subsequent to the original mutation in the name of their grand father/ Thandi Thevar and subsequently, their father/Rasu Thevar. On the other hand, the defendants have produced voluminous documentary evidence to establish the fact of continuous possession and enjoyment of the suit property, exercising their rights as mortgagors over the said property, besides also mutation of revenue records in favour of the defendants 1 and 2.

               13.4. The main questions that needs to be addressed are as to whether the defendants are entitled to resist the suit claim on the ground that they have perfected title by way of adverse possession and whether the suit is barred by limitation. Also, it is to be seen whether the unregistered sale deed will confer any right on the defendants to defeat the plaintiffs claim for declaration and recovery of possession.

               13.5. With regard to the issue of adverse possession, from the written statement, it is seen that there is no specific plea of adverse possession, however, there is sufficient material in the written statement to gather that the first defendant had clearly set up a plea of adverse possession stating that right from 1978, the first defendant has been in possession of the property and that he has mutated the revenue records in his name and also paying taxes in his name, besides also mortgaging the property to various persons and subsequently, redeeming the same as well. The first defendant also executed settlement deeds in favour of his children, who have obtained patta in their names and subdivisions have also been effected. The plaintiffs, being witnesses to the unregistered sale deed, were clearly aware of the fact that their father had initially agreed to sell the property to the first defendant and thereafter, for consideration, had also sold the property and put up the first defendant in possession the same was way back in 1977 (agreement of sale) and 15.10.1978 (unregistered sale deed). The plaintiffs have not taken any steps to question the enjoyment of the suit property by the first defendant to the detriment of the plaintiffs, despite having attested the unregistered sale deed executed by their father on 15.10.1978, the plaintiffs have not exhibited any material documents to establish that they had exercised rights as owners of the suit property by payment of taxes to the revenue authorities.

               13.6. As rightly held by the first appellate Court when, the case of the defendants was under Ex.B3, an unregistered sale deed, claiming title with the first defendant, then, the plea of adverse possession has to necessarily fail. I do not find any infirmity in the said findings of the first appellate Court. However, the first appellate Court ought to have seen that though Ex.B3-sale deed was a compulsorily registrable document, the said document in terms of Section 49 of the Registration Act could have been looked into, for collateral purpose, to consider the character of possession of the first defendant.

               13.7. As already discussed, the case of the plaintiffs was that the first defendant was a permissive occupant. On the contrary, it is the case of the first defendant that he had purchased the suit property from the father of the plaintiffs/Rasu Thevar and that he had been put in possession of the property, in pursuance of the said sale deed. In such circumstances, in order to ascertain the character of possession, the Courts are certainly entitled to look into the unregistered sale deed, for such collateral purposes. Unfortunately, the first appellate Court relied on Section 54 of the Transfer of Property Act, to hold that the sale deed has no value in the eye of law. Section 54 of the Transfer of Property Act defines 'Sale' to be a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised and mandates such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, to be made only by a registered instrument.

               13.8. The first appellate Court has lost sight of the provisions available under Section 49 of the Registration Act, which permit even an unregistered sale deed to be received in evidence, provided it is for collateral purpose. I have already held that character of possession of the first defendant is clearly a collateral purpose, which falls within the ambit of Section 49 of the Registration Act and therefore, the first appellate Court fell in error in holding that since the sale deed does not qualify to be a valid transfer of property under Section 54 of the Transfer of Property Act, it cannot be received in evidence at all.

               13.9. The first appellate Court in fact ought to have seen that the document was received without any objections and also marked as Ex.B3. Hence, even on the ground that the document was insufficiently stamped as well, the document could not have been discarded and the document could have been relied on by the Court.

               13.10. The first appellate Court also failed to see that once the case of the plaintiffs regarding permissive possession was held to be not proved, then, the plaintiffs' suit for recovery of possession and also relief of declaration would have to be brought within the period of limitation. The first appellate Court rightly applied Article 65 of the Limitation Act, but, however, erroneously came to the conclusion that since the first defendant has not proved the plea of adverse possession, the possession of the first defendant from 1978 will be of no avail to the case of the defendants and that the title of the father of the plaintiffs / Rasu Thevar would remain intact. The plaintiffs do not even plead as to when the first defendant was put in possession. In fact, in the plaint, they claim to have handed over possession to the first defendant for looking after the coconut trees. Hhowever, in cross-examination, P.W.1 states that the possession was given to the first defendant even by their father/ Rasu Thevar. Though the plaintiffs feebly denied having attested the unregistered sale deed in Ex.B3, even the first appellate Court found that the plaintiffs have not been able to demonstrate that the signatures found in the attestation of Ex.B3 are not their signatures. Thus, it can be safely presumed that even as early as in 1978, the plaintiffs were aware of the defendants having been in possession of the suit property, under an unregistered sale deed. The fact that the father of the plaintiffs received consideration and executed the said document, though it remains unregistered, it would certainly clothe the defendants with rights adverse to the interests of the plaintiffs.

               13.11. Section 53-A of the Transfer of Property Act also protects such purchasers, who are put in possession of the property in part performance of an agreement of sale and even when transfer has not been completed in the manner prescribed under law, then the transferor or any person claiming under him shall be debarred from enforcing any right against the transferee, i.e., the agreement holder/purchaser, or any person claiming under such purchaser, in respect of the purchased property on which the transferee has taken or continued in possession, other than the right expressly provided in the terms of the contract. Therefore, the plaintiffs, not only on account of being witnesses to Ex.B3-sale deed, but, also on account of taking a claim under their father/Rasu Thevar, who had admittedly entered into a contract for sale in favour of the first defendant, and is clearly barred from enforcing any right against the first defendant or persons claiming under the first defendant. Section 53-A of the Transfer of Property Act was amended by amendment Act 48/2001 with effect from 24.09.2001 and the effect of the amendment is that in order to claim the benefit of part performance, the contract has to be registered. The amendment will not affect the case of the appellants in the present case, since the agreement is admittedly of the year 1977 and the unregistered sale deed is also of the year 1978. Thus, even applying the principles of Section 53-A of the Transfer of Property Act, the appellants were entitled to succeed. The first appellate Court ought to have seen that having failed to establish the case of permissive possession, the cause of action on which the suit came to be filed, the plaintiffs cannot maintain the suit beyond the period of 12 years and there is clear evidence adduced by the appellants that they had acted adverse to the interest of the plaintiffs, even from the year 1978 onwards. While so, the suit ought to have filed within the period of 12 years, at least from 1982, when the first defendant exercised rights of ownership over the property by executing registered mortgage deeds and subsequently several settlement deeds as well. The first Appellate Court also applied Section 54 of the Transfer of Property Act, without noticing the permissibility of the unregistered sale deed being admitted in evidence under Section 49 of the Registration Act. However, I do not see how Section 90 of the Indian Evidence Act will come to the rescue of the appellants to rely on Ex.B2 and Ex.B3. Section 90 of the Indian Evidence Act only exempts documents that are more than 30 years old from being proved and in the facts and circumstances of the present case, I do not see how Section 90 can be applied to uphold ExB2 and Ex.B3. The Courts below even found that Ex.B2 and Ex.B3 were executed only by the father of the plaintiffs and infact Ex.B3 was even witnesses by the plaintiffs themselves and there is no necessity to go into the issue of Section 90 of the Indian Evidence Act being applied for the purposes of validating ExB2 and Ex.B3. Hence, the question of law (D) does not beg an answer in the present case. The other substantial questions of law, for the foregoing reasons, are answered in favour of the appellants and the suit is held to be clearly barred by limitation and the plaintiffs are not entitled to the relief of declaration and recovery of possession as prayed for, in the teeth of their father, having agreed to convey the suit property even as early as in 1977 and subsequently having executed an unregistered sale deed and put the first defendant in possession in 1978.

               13.12. In Bondar Singh 's case, the Hon'ble Supreme Court held that a document like a sale deed, even though not ordinarily admissible in evidence, can be looked into for collateral purposes. In fact, on the facts of that case, similar to the facts of the present case, an unregistered sale deed was objected on the ground that it cannot convey title on account of being improperly stamped and also unregistered. However, the Hon'ble Supreme Court held that the sale deed evidenced the fact that the initial possession of the plaintiffs therein was not illegal or unauthorized and for such purposes, the unregistered document can be looked into.

               13.13. In Oswal Fats and Oil Limited 's case, the Hon'ble Supreme Court held that a person, who approaches the Court for grant of relief, equitable or otherwise, is under solemn obligation to candidly disclose all the material / important facts which have bearing on the adjudication of the issues raised in the case and if the person is found to be guilty of concealment of material facts , then the Court as duty to deny relief to such person. This decision is pressed into service to contend that the plaintiffs, being signatories to the sale deed executed by their father, suppressed a material fact and approached the Court with a false plea, as if they had permitted the first defendant to manage the suit property.

               13.14. Coming to the decision relied on by the learned counsel for the respondents, in N.V.Nageswara Aiyar's case, the Hon'ble Division Bench of this Court held that in the absence of registration, the transaction itself cannot be proved.

               13.15. In D.Balachandran's Case, this Court held that even when a document is admitted in evidence and said document is not duly stamped, the admission cannot be questioned by virtue of Section 36 of the Stamp Act. However, this Court further held that an objection that the document is inadmissible in evidence can be raised at any state of the case. However, in the very same judgment, this Court has clearly held that such a document cannot be looked into for any purpose, except for collateral purpose. For similar proposition, the judgment of this Court in N.Pandurangan's case is also relied upon.

               13.16. I have already held that even if the document is inadmissible in evidence, being unregistered, in terms of Section 49 proviso of the Registration Act, the document can be admitted in evidence for collateral purpose. Hence, the decisions relied on by the learned counsel for the respondents, Mr.V.N.Arjun, are no of avail to the case of the respondents. In fact, the decisions have been pressed into service unsuccessfully before the first appellate Court as well, to decree the suit and to deny the entitlement of the appellants herein to rely and fall back upon the unregistered of sale deed executed by the father of the plaintiffs,which in fact was attested by the plaintiffs themselves and that too way back in the year 1978. The substantial questions of law are answered in favour of the appellants.

14. For all the foregoing reasons, the second appeal is allowed and the judgment and decree in A.S.No.92 of 2019 is set aside and the judgment and decree in O.S.No.3 of 2010 is restored to file. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.