(Prayer in S.A.: Second Appeal filed under Section 100 of the Civil Procedure Code to set aside the judgment and decree dated 30.11.2012 made in A.S.No.56 of 2011 on the file of the Subordinate Judge, Dharmapuri and confirming the judgment and decree made in O.S.No.47 of 2008 on the file of the District Munsif, Palacode dated 20.08.2011 and allow this Second Appeal.

In S.A.: Second Appeal filed under Section 100 of the Civil Procedure Code to set aside the judgment and decree dated 30.11.2012 made in A.S.No.8 of 2012 on the file of the Subordinate Judge, Dharmapuri and confirming the judgment and decree made in O.S.No.95 of 2009 on the file of the District Munsif, Palacode dated 20.08.2011 and allow this Second Appeal.)

Common Judgment

1. The present Second Appeals arise out of a common judgment and decree dated 30.11.2012 in A.S.No.8 of 2012 and A.S.No 56 of 2011 on the file of Sub court , Dharmapuri confirming the common judgment and decree dated 20.08.2011 in O.S. No. 47 of 2008 and O.S. No. 95 of 2009 on the file of District Munsif, Palacode.

2. The parties in both suits are identical, each being arrayed as plaintiffs in one suit and as defendants in the other.

3. For the sake of convenience, the parties are hereinafter referred to according to their rank and description in O.S. No. 47 of 2008.

4. In O.S. No. 47 of 2008, the plaintiffs are the legal heirs of Shanmugam. The said Shanmugam inherited the suit properties from his father, Sennappan, who had purchased the suit properties comprised in Survey Nos. 269 and 270 under Ex.A1, sale deed dated 21.06.1954. According to the plaintiffs, the 1st defendant took the property on lease, agreeing to pay one-third of the yield, and was enjoying the same along with the 2nd defendant. When the 1st defendant committed default in payment of the yield in the year 2007, and when the 1st and 2nd defendants attempted to alienate the property in favour of the 3rd defendant, the suit for declaration and recovery of possession was filed. The 1st and 2nd defendants in this suit are the plaintiffs in O.S. No. 95 of 2009 seeking declaration to declare the 1st defendant title in the ‘A’ Schedule property and 2nd defendant title in the ‘B’ Schedule Property and to declare O.S.47 of 2008 Judgment and decree as null and void and permanent injunction.

5. The contention of the defendants is that the 1st defendant purchased the suit properties from Sennappan by an oral sale dated 20.01.1975 for a sale consideration of Rs.7,000/- and that he has been in possession and enjoyment of the suit properties, with patta standing in his name. It is further contended that the 1st defendant sold a portion of the property to the 3rd defendant. The defendants denied the lease pleaded by the plaintiffs. It is also contended that Shanmugam, the husband of the 1st plaintiff and father of the other plaintiffs, was not the sole legal heir of late Sennappan, and that the children born through the second wife of Sennappan were not arrayed as parties to the suit. Hence, according to the defendants, the suit is bad for non-joinder of necessary parties and is liable to be dismissed.

6. The trial court decreed O.S. No. 47 of 2008 and dismissed O.S. No. 95 of 2009. The first appellate court confirmed the judgments and decrees of the trial court by dismissing A.S. No. 8 of 2011 and A.S. No. 56 of 2011.

7. At the time of admission of these Second Appeals, the following substantial questions of law were framed and the same is extracted verbatim here below:

                     (a) Whether both the courts below erred in declaring the title of Shanmugam who was the Son of the 1st wife of Senniappan , by merely relying upon the oral evidence of P.W.2?

                     (b) In the absence of any documents marked on the side of the plaintiff plaintiffs’ side and in the absence of oral evidence from the close relatives of Sennappan to prove title, whether both the courts erred in holding that the children of the alleged second wife of Sennappan are not necessary and proper parties in the suit?

                     (c) Whether the defendant is entitled to maintain the defence of adverse possession after having claimed title over the property through an oral sale?

                     (d) Whether the findings of both the courts below can be termed as perverse due to improper appreciation of the oral and documentary evidence available on record?

8. The suit properties in O.S. No. 47 of 2008 originally belonged to Sennappan, who purchased the same under a registered sale deed dated 19.06.1954. He died leaving behind legal heirs born through his two wives. The plaintiffs are the wife and children of Shanmugam, who was born to Sennappan through his first wife. The plaintiffs claim title by inheritance. There is no dispute that the plaintiffs are descendants of Sennappan. Thus, on admitted facts, the plaintiffs’ title to the suit properties stands established.

9. On the defendants’ side, it is stated that during the lifetime of Sennappan, he sold the suit properties purchased under Ex.A1 to the 1st defendant by an oral sale dated 20.01.1975. As elaborately discussed by the courts below, such an oral sale is not valid in law in view of Section 17(1) of the Registration Act, 1908. It is an admitted fact that the 1st defendant is in possession and enjoyment of the property. However, the character of such possession is disputed. According to the plaintiffs, the 1st and 2nd defendants are in possession as lessees, whereas according to the 1st defendant, he is in possession as owner pursuant to the alleged oral sale. Once the oral sale pleaded by the 1st defendant is found to have no legal sanctity, the claim of possession through such invalid sale cannot be accepted.

10. The defendants further contended that they have been in long possession of the suit properties for more than the statutory period and that revenue records also stand in their names, thereby perfecting title by adverse possession. This plea was considered and negatived by the courts below. When the 1st defendant pleads an oral sale by Sennappan, he admits Sennappan’s title. Entry into possession under an oral sale is permissive in origin. Permissive possession can never become adverse unless there is a clear and proved change of animus, communicated to the true owner. A person who enters into possession acknowledging the owner’s title cannot later claim hostile possession unless he specifically pleads and proves when and how such possession became adverse. In the present case, the defendants failed to prove the date of commencement of hostility, any overt act of denial of title, or communication of hostile intent to the plaintiffs or their predecessor-in-title. Therefore, the plea of adverse possession necessarily fails. The defendant does not automatically perfect title by adverse possession merely because patta stands in his name and possession exceeds twelve years.

11. The next issue relates to the non-joinder of the legal heirs of Sennappan born through his second wife. On the plaintiffs’ side, it is admitted that Sennappan had two wives and that the children born through the second wife were not arrayed as parties. According to the plaintiffs, after the demise of Sennappan, the suit properties were allotted to Shanmugam, the father of plaintiffs 2 to 6, and the other properties were allotted to the children born through the second wife.

12. On the plaintiffs’ side, P.W.3, one of the children of Sennappan born through his second wife, was examined. In his chief-examination affidavit, he stated that after the demise of his father, Sennappan, an oral partition was effected between Shanmugam and the other family members, and that the suit properties were allotted to Shanmugam. Though this witness was not subjected to cross-examination, the trial court recorded that despite several opportunities, the defendants failed to cross-examine him. When he was later recalled for cross-examination, he did not appear, and hence his evidence was closed. Apart from this, P.W.2 also deposed that during the family partition among the heirs of Sennappan, the suit properties were allotted to Shanmugam. In such circumstances, the suit is not hit by non-joinder of necessary parties.

13. Even assuming the defendants’ contention that the plaintiffs and the children of Sennappan born through his second wife are coowners of the suit properties, there is no dispute inter se among the coowners. The relief sought does not prejudice the rights of the absent coowners. The issues involved in the suit can be effectively decided in their absence. It is well settled that one co-owner can maintain a suit for declaration of title and recovery of possession against a third party. The dispute is between the true owner(s) and a third party, not among the coowners themselves. A decree in favour of the plaintiffs can be effectively passed and executed. In any event, the children of Sennappan born through his second wife are, at best, proper parties and not necessary parties. A defendant who claims title independently through an alleged oral sale cannot insist that all co-owners must be impleaded. Such an objection is purely technical and obstructive.

14. Thus, the plaintiffs have proved their title by succession. The courts below have ascertained the title of Shanmugam not merely on the oral evidence of P.W.2, but primarily on the registered sale deed Ex. A1 standing in the name of Sennappan, the father of Shanmugam. The suit is not one among co-owners but is directed against third parties. Hence, one co-owner can maintain a suit for all, and the suit is not vitiated by nonjoinder of necessary parties. The defendants cannot claim title either by oral sale or by adverse possession. The findings of the courts below are based on proper appreciation of evidence and are neither perverse nor contrary to law.

15. For the foregoing reasons, this Court holds that all the substantial questions of law are answered against the appellants and in favour of the respondents/plaintiffs. The judgments and decrees of the trial court and the first appellate court are affirmed.

16. In the result, both the Second Appeals (S.A. Nos. 235 and 236 of 2014) are dismissed. The connected miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.