(Prayer: Second Appeal filed Section 100 of the Code of Civil Procedure against the judgment and decree dated 22.07.1993 and made in A.S.No.95 of 1991 on the file of Principal Subordinate Judge, Coimbatore, confirming the judgment and decree dated 08.01.1991 made in O.S.No.1828 of 1989 on the file of the I Additional District Munsif Court, Coimbatore.)

1. Three suits had been presented inter se the plaintiff and the defendant. The first of the suit was O.S.No.803 of 1985 on the file of the Principal District Munsif at Coimbatore. It was a suit for permanent injunction. The second suit was filed by the plaintiff in the first suit. It was in O.S.No.1524 of 1988 filed for foreclosure of a mortgage dated 18.08.1973. The defendant in this suit was the defendant in O.S.No.803 of 1985. Subsequently, another suit came be presented by the defendant in O.S.No.803 of 1985 and O.S.No.1524 of 1988 against the plaintiff and two others. This suit was numbered as O.S.No.1828 of 1989. This is a suit for declaration of title, recovery of possession and mense profits. All the three suits were tried together by the learned I Additional District Munsif at Coimbatore.

2. By a judgment dated 08.01.1991, the suit in O.S.No.1828 of 1989, for declaration of title and recovery of possession was decreed, the suit for injunction in O.S.No.803 of 1985 was dismissed and the suit in O.S.No.1524 of 1988 for foreclosure was also decreed. Aggrieved by the decreetal order passed in O.S.No.1828 of 1989, the defendants preferred an appeal in A.S.No.95 of 1991. This appeal came to be dismissed by the learned Principal Subordinate Judge at Coimbatore on 22.07.1993, against which the present second appeal.

3. For the sake of convenience, the parties shall be referred to as per their ranks in the suit in O.S.No.1828 of 1989. The appellants will be designated as the defendants and the deceased first respondent will be designated as the plaintiff.

4. The case of the plaintiff is that the suit schedule mentioned property is an ancestral property of his father, one Venkatrama Gounder. Venkatrama Gounder was allotted this property under a registered partition deed dated 05.10.1951. This partition deed had been entered into between Venkatrama Gounder and his brothers.

5. Venkatrama Gounder married one Karuppakkal. This wedlock resulted in the birth of the plaintiff. Karuppakkal passed away leaving behind Venkatrama Gounder and the plaintiff. Venkatrama Gounder also died on 12.10.1984. Hence, the property devolved on the plaintiff and he became the absolute owner of the property.

6. Venkatrama Gounder, after the death of Karuppakkal, was living separately. The first defendant, who was also a widow with two children, started living with Venkatrama Gounder. She created documents as if Venkatrama Gounder had entered into an agreement of sale on 08.12.1972 with her. She also created another document, namely, a mortgage deed dated 18.07.1973, as if Venkatrama Gounder had mortgaged the property in her favour, after receiving a sum of Rs.1500/-.

7. The plaintiff pleaded that the documents are either forged or had been obtained by exerting undue influence on Venkatrama Gounder and as such, they are void ab initio. The plaintiff further pleaded that since the property is ancestral in nature and as the plaintiff has half share in the property, Venkatrama Gounder had no authority to execute any document with respect to the entirety of the property. He pleaded that as the mortgage deed had become time barred, the same is not binding on the plaintiff and he is entitled to ignore the same.

8. The plaintiff alleged that he came to know of the documents and the claim of the defendants only when the suit in O.S.No.803 of 1985 had been presented before the II Additional Subordinate Judge at Coimbatore. Hence, he came forward with the suit for the aforesaid reliefs.

9. Summons were served on the defendants. The defendants filed a common written statement. They pleaded that the present suit in O.S.No.1828 of 1989 is an offshoot of the litigation initiated by the first defendant in O.S.No.803 of 1985 and O.S.No.1524 of 1988. They alleged that the present suit had been filed to sidetrack the issues raised in the previous suits. They alleged that the first defendant had purchased the property from Venkatrama Gounder and that, the documents were not fraudulent or vitiated by undue influence.

10. The defendants stated that Venkatrama Gounder had deceived the first defendant by executing a mortgage deed instead of a sale deed, after having received the consideration for a sale deed. The fraud committed by Venkatrama Gounder came to her knowledge only recently. They denied that the plaintiff came to know about the documents only recently. They asserted that the plaintiff is well aware of the activities of his father and that the documents had been executed with the knowledge of the plaintiff.

11. The defendants stated that as they are in open, exclusive and uninterrupted possession without any hindrance for over 18 years, they had perfected their title to the property by adverse possession. They added that, as the plaintiff kept quiet during the lifetime of Venkatrama Gounder, the litigation is purely a chance litigation. They further pleaded that the suit has no cause of action and since the plaintiff was aware of the documents executed in their favour, the suit is untenable and has to be dismissed with costs.

12. On the pleadings being completed, the learned Trial Judge framed the following issues:-



13. On 19.11.1990, the learned Trial Judge framed the following additional issues:-



14. The evidence was recorded treating O.S.No.1828 of 1989 as the lead suit. The plaintiff entered the witness box and deposed as PW1. He marked Ex.A1 to Ex.A4. The first defendant, Thangammal entered the witness box and deposed as DW1. She marked Ex.B1 to Ex.B15.

15. On the analysis of the evidence, the learned Trial Judge, as pointed out above, decreed the suit for declaration of title and for recovery of possession and dismissed the suit for injunction and decreed the suit for mortgage and passed a preliminary decree. The plaintiff, instead of contesting the mortgage suit, made payment under the preliminary decree and got the mortgage discharged. The first defendant in O.S.No.1828 of 1989, did not choose to challenge the judgment and decree passed in O.S.No.803 of 1985, but filed only one appeal along with the other defendants against the judgment and decree in O.S.No.1828 of 1989.

16. The learned Principal Subordinate Judge heard the appeal and dismissed the same. He held that, as the defendants had pleaded a mortgage, the doctrine of “once a mortgage always a mortgage” applies, and hence, the defendants cannot raise a plea of adverse possession. Consequently, he dismissed the appeal on 22.07.1993.

17. Aggrieved by the same, the first defendant approached this court by way of a second appeal. Pending the appeal, the appellant / first defendant passed away and hence, the defendants 2 and 3 were transposed as appellants 2 and 3.

18. This appeal was taken up for hearing by this Court on 10.01.2006. The appeal came to be allowed on that day and the suit presented by the plaintiff was dismissed.

19. Aggrieved by the dismissal, the plaintiff preferred a Special Leave Petition to the Supreme Court in SLP(C).No.9614 of 2006. The Supreme Court granted leave and the appeal was numbered as C.A.No.2634 of 2009. By a judgment dated 17.04.2009, the Civil Appeal was allowed holding that this Court had not adverted to the substantial questions of law that had been formulated. The judgment and decree in the Second Appeal was set aside and the matter was remitted to this Court for deciding the appeal afresh.

20. On remand, one Myilsamy filed an application in CMP.No.338 of 2011. The third party pleaded that he is the purchaser of the property from the original plaintiff, Ramasamy and hence, the cause of action had devolved on him and therefore, he wanted to come on record in place of the deceased plaintiff, V.Ramasamy. This court allowed the application on 26.04.2014 and Mr.Myilsamy was brought on record as the legal representative of the original plaintiff, V.Ramasamy.

21. This appeal was taken up for hearing on 01.02.2017. On that day, the appellants pleaded that they wanted to bring on record the legal heirs of the deceased 1st respondent. This Court pointed out that Mr.C.Mayilsamy was already on record. Despite the same, as the appellants insisted on bringing the legal heirs, this Court dismissed the appeal. As the appeal had been dismissed, subsequently EP.No.15/2019 was filed to take delivery of possession of the suit scheduled property. Thereafter, the appellants/defendants filed an application to condone the delay of 1017 days in filing the application to restore the appeal, which had been dismissed on 01.02.2017.

22. I issued notice in the application on 15.09.2025. On service of notice, Mr.Siddarth Sridhar entered appearance for the respondent. He stoutly opposed the application for condonation of delay and restoration of the appeal. I pointed out to the learned counsel that the Supreme Court in SLP(C).No.20753 of 2025 dated 30.07.2025, had requested this court to decide the applications expeditiously and since the appeal had been remanded by the Supreme Court for disposal on merits, the counsel were informed that I would hear the appeal as well as the applications today i.e., on 29.10.2025.

23. Before I start discussing on the respective arguments of the counsel, I have to point out a few facts that have arisen between the parties.

24. The second appeal was originally allowed by this Court finding that the defendants have made out a case for adverse possession. This was on 10.01.2006. This judgment was set aside by the Supreme Court in Civil Appeal No.2634 of 2009, and the second appeal was restored onto the file of this Court. The order of remand was on 17.04.2009. Subsequently, the purchaser of the property from the original plaintiff filed an application to implead himself in the proceedings. This was in C.M.P.No.338 of 2011. After hearing both sides, Mr.C.Mayilsami was brought on record as the legal representative of the deceased original plaintiff V.Ramasamy, by an order of this Court dated 24.06.2014.

25. Despite the fact that the legal representative was brought on record, the appellants sought for time before this Court on 10.01.2017, to bring on record the legal heirs of the deceased original plaintiff. Taking note of this plea, this Court adjourned the appeal. When the matter was listed on 01.02.2017, the learned counsel for the appellants pleaded that they are unable to trace the legal heirs of the deceased original plaintiff and sought permission of this Court to appoint an Administrator General or an officer of the Court or such other person as this Court thinks to represent the sole respondent. This Court had pointed out to the learned counsel that when C.Mayilsamy was already on record, being a party interested in the estate, and there being no necessity to file an application under Order XXII Rule 4(A) of the Code of Civil Procedure, 1908, seeking an adjournment is unnecessary. As no convincing response was given by the learned counsel for the appellants, the second appeal was dismissed on 01.02.2017.

26. After the dismissal of the second appeal, Mr.C.Mayilsamy, filed E.P.No.15 of 2019 to take delivery of possession of the suit schedule mentioned property. The Executing Court passed an order of delivery on 06.01.2022. Challenging the same, a civil revision petition was preferred to this Court in C.R.P.No.680 of 2022. Initially, this Court in order to give a breathing time to the petitioner to get the second appeal restored, issued notice in the revision and granted interim stay. The revision was finally listed before me on 11.07.2025. By an order on that day, I dismissed the civil revision petition holding that the plea of the defendants / civil revision petitioners are untenable. The defendants preferred a special leave petition to the Supreme Court challenging the order dated 11.07.2025. This appeal was numbered as S.L.P.(C).No.20753 of 2025. By an order dated 30.07.2025, the Supreme Court requested the High Court to dispose of the applications filed for restoration within a period of three months.

27. After having obtained the order from the Supreme Court, yet again, a revision was filed before this Court challenging the order of delivery made by the Executing Court pursuant to the directions given in C.R.P.No.680 of 2022. The challenge was in C.R.P.No.3591 of 2025. By an order dated 08.08.2025, this Court in order to give an opportunity to the defendants to contest the restoration applications, granted an order of interim stay of execution till 03.09.2025.

28. Mr.C.Deepak Kumar moved an application for restoration in C.M.P.No.2247 of 2025. Though Mr.Siddarth Sridhar stiffly opposed the application. Taking into consideration the order passed in C.A.No.2634 of 2009, dated 17.04.2009; S.L.P.(C).No.20753 of 2025, dated 30.07.2025; and C.R.P.No.3591 of 2025, dated 08.08.2025, I condoned the delay in filing the application to restore the appeal and also allowed the application filed to restore the appeal. The appeal having been restored and since there is a request from the Supreme Court to dispose of the appeal, I heard the appeal on the very same day.

29. I heard Mr.C.Deepak Kumar for Mr. I. Abrar Md. Abdullah for the appellants/defendants and Mr.Siddarth Sridhar for Mr.R.Barathkumar for the respondent.

30. Mr.C.Deepak Kumar pleaded that the following substantial questions of law arises for consideration in the present appeal:-

                     “(a)Is the learned Subordinate Judge right in negativing the plea of adverse possession when the first defendant has proved possession for over his statutory period and purchasing documents to show his exclusive possession adverse to the real owner?

                     (b)Whether the learned Subordinate Judge right in granting a decree for possession when the first defendant is in possession of the suit property pursuant to an agreement of sale and her possession being lawful?”

31. After narrating the facts relating to the appeal, he pleaded that under Ex.B1, Venkatrama Gounder had executed an agreement of sale as early as on 08.12.1972, and had handed over possession of the property to Thangammal. He pleads that Thangammal having been in possession and enjoyment of the property for over 18 years before filing of the suit on 09.08.1989, she had crystallised her right by adverse possession. In addition, he points out that Venkatrama Gounder under Ex.B15, had executed a registered mortgage in her favour on 18.07.1983. He points out that there was no necessity for Venkatrama Gounder to hand over possession to Thangammal under Ex.B15, as he had already handed over possession to Thangammal under Ex.B1. As the defendants have been in possession for a long number of years to the knowledge of the plaintiff and since the plaintiff kept quiet, despite the defendants being in possession of the property independently, the decree of the Courts below are vitiated as they do not consider the crucial plea of adverse possession of the defendants and hence, they may be set aside.

32. Per contra, Mr.Siddarth Sridhar urges that mere possession over long period will not crystallise into adverse possession. He points out that the defendants had presented O.S.No.1524 of 1988, on the basis of the mortgage executed under Ex.B15, and the plaintiff had also discharged the same. Hence, he urges that the plea of adverse possession is absolutely untenable in the facts of the case.

33. He relies upon the three judgments of the Supreme Court in support of his contention. They are as follows:-

                     (i)T.Anjanappa and others Vs. Somalingappa and another, (2006) 7 SCC 570;

                     (ii)P.T.Munichikkanna Reddy and others Vs. Revamma and others, (2007) 6 SCC 59; and

                     (iii)L.N.Aswathama and another Vs. P.Prakash, (2009) 13 SCC 229.

34. He pleads that, being a case of concurrent findings of the fact by the Courts below, this Court should not interfere in the second appeal. Consequently, he pleads for dismissal of the appeal.

35. I have carefully considered the submissions of both sides and I have also gone through the records.

36. The plea of the defendants is that they have crystallised rights to the property by adverse possession. Hence, the suit for declaration and recovery of possession has to be dismissed. The execution of Ex.B1 and Ex.B15 make it clear that the suit schedule mentioned property was an ancestral property of Venkatrama Gounder. Venkatrama Gounder secured this property through a partition entered into by his co-sharers in the year 1951. It is not in dispute that the original plaintiff V.Ramasamy is the son of Venkatrama Gounder. Though the plaintiff had caused aspersions over the character of the original first defendant, I do not think it is necessary to go into that aspect in this case. The agreement entered into between Venkatrama Gounder and the 1st defendant reveals that the suit schedule mentioned property is an ancestral property. Though an agreement for sale was entered into on 08.12.1972, no suit for specific performance to convert the agreement of sale into a sale agreement was presented by Thangammal, till the death of Venkatrama Gounder on 12.10.1984. Nor has any such suit been filed thereafter.

37. As per the agreement, the first defendant would have to pay the remaining balance of Rs.300/- to Venkatrama Gounder and get the sale deed executed. There is no evidence to show either the tender of the Rs.300/- or the fact that the agreement stood extended soon after Ex.B1 (dated 08.12.1972) and Ex.B15 had come into force. Ex.B15 is a registered mortgage deed dated 18.07.1973. By virtue of this document, the status of the first defendant from being a mere agreement holder was raised to the level of a mortgagee.

38. On the strength of Ex.B15, the defendants filed a suit for foreclosure in O.S.No.1524 of 1988. A perusal of the plaint in that suit shows that Thangammal did not plead adverse possession, but had only claimed right as a mortgagee. Arraying the plaintiff herein, as the only legal heir of the deceased Venkatrama Gounder, as the person liable to repay the mortgage amount with interest. Hence, it is clear that atleast till July, 1988, when O.S.No.1524 of 1988 was presented, the plaintiff claimed right only as a mortgagee. She did not make a claim nor did she file a suit that her right has been crystallised by virtue of prescription and that she has become the absolute owner of the suit schedule property. The plaintiff too, who was the defendant in that suit, on the passing of the decree, had discharged the mortgage debt. This shows both the parties had accepted their status as mortgagor and mortgagee.

39. Apart from this circumstance, the other documents filed by the defendants also lead me to the conclusion that the defendants are not entitled to succeed on the plea of adverse possession. Ex.B2 to Ex.B14 are the property tax receipts paid by the defendants. A perusal of the original of these documents shows that the 1st defendant had paid the property tax and the receipts had been issued in the name of the deceased Venkatrama Gounder. Even post his death in the year 1984, the 1st defendant continued to pay the taxes only in the name of Venkatrama Gounder. This is evident from Ex.B11 to Ex.B14. During the lifetime of Venkatrama Gounder too, the 1st defendant was only paying the property tax only in his name and not in her name. Apart from property tax receipts, there is nothing on record to show that the defendants were holding the property adverse to Venkatrama Gounder, and after his death, against V.Ramasamy.

40. Perusal of the judgments cited by Mr.Siddarth Sridhar brings out the following propositions:-

                     (i) Mere possession, however long does not necessarily mean it is adverse possession;

                     (ii) For the proof of adverse possession, the defendants must demonstrate before the Court hostile possession, which is expressly or impliedly, the denial of the title of the true owner;

                     (iii) Possession adequate in continuity and in publicity; and

                     (iv) To the extent to show it is adverse to the true owner.

41. The essential requirements of acquisition of title by adverse possession are the denial of title of the true owner and the possession of the claimant being open, continuous and hostile.

42. When a defendant claims adverse possession, it should be hostile enough, to be capable of being known to the person(s) interested in the property, even if, there is no direct evidence to show that the defendant had actually informed the true owner of his / her hostile action.

43. If these principles are applied to the facts of the present case, the evidence of the defendants owefully fall short of the essential requirements. In matters of adverse possession, it is the duty of this Court to take note of the view of the Supreme Court expressed in P.T.Munichikkanna Reddy and others Vs. Revamma and others, (2007) 6 SCC 59, holding that property, being a human right, the Courts across the world have started taking an unkind view towards statutes of limitation overriding property rights.

44. At the cost of repetition, I should point out that the plaintiff had approached the Court only as a mortgagee and was successful in obtaining a decree. At no point of time, did she hold even tacitly, that she was in possession of the property adverse to that of the true owners, Venkatrama Gounder and his son V.Ramasamy.

45. When animus posedendi – the intention to possess a property as owner in denial of the right of the true owner, is absent, then, the possession remains only as a permissive one or one in recognition of the owner’s right. Merely holding a possession under a sale agreement does not automatically qualify the agreement holder to claim adverse possession. In case such as this, there should be clear evidence of hostile animus and overt acts accepting adverse rights. [See, Ravinder Kaur Grewal Vs. Manjit Kaur, (2019) 7 SCC 559].

46. Though Mr.C.Deepak Kumar pointed out that it was the intention of Venkatrama Gounder to execute a sale deed and he had failed to do so, but had played a fraud on the first defendant by executing a mortgage deed, I should point out that a plea of fraud cannot be taken in a casual manner.

47. The plea of fraud requires specific and detailed particulars of the alleged fraudulent act. A general allegation cannot be treated as a sufficient pleading. A party alleging fraud must plead and prove the material facts with precision. This is essential because, as fraud is being alleged against a party, the party who is said to have acted in a fraudulent manner must be given sufficient opportunity to rebut and reject the claim. The specificity and particularity of the plea is totally absent. As to the date and time when the fraud had been committed has not been pleaded or proved. What was the fraudulent act and how it was committed are also absent in this case. Failure to plead fraud with the specificity and particularity cannot be entertained by the Court. Hence, this plea of Mr.C.Deepak Kumar also stands rejected.

48. An additional factor which I have to consider in this case is the plea of res judicata. Three separate suits namely, O.S.No.803 of 1985, O.S.No.1524 of 1988 & O.S.No.1828 of 1989, involved the same parties and similar issues. They were consolidated and tried together. The suit filed by the present plaintiff for title and recovery of possession was decreed. The suit filed for injunction by the first defendant was dismissed and the suit of mortgage was decreed. The first defendant was obviously aggrieved by the judgment in O.S.No.803 of 1985 and O.S.No.1828 of 1989. However, she had preferred only one appeal, i.e., against O.S.No.1828 of 1989, to the file of the learned Principal Sub Judge, Coimbatore, in A.S.No.1995 of 1991. Failure to appeal against O.S.No.803 of 1985 resulted in finality of the un-appealed decree. This decision acts as “a former suit” for the purpose of applying res judicata to the issues in the single appeal in A.S.No.1995 of 1991.

49. In both the suits, i.e., the suit for injunction filed by Thangammal against Ramasamy and the suit filed by Ramasamy against Thangammal, the issue of title and the right of Ramasamy to recover possession and the right of Thangammal to resist the same was central. In such an eventuality, the appeal in A.S.No.95 of 1991 ought to have been dismissed on grounds of res judicata also.

50. In the result, the substantial questions of law framed by the appellant are answered against him. I do not find any reason to interfere with the judgment and decree of the learned Principal Sub Judge at Coimbatore, in A.S.No.95 of 1991 dated 22.07.1993, in confirming the judgment and decree of the First Additional District Munsit at Coimbatore, in O.S.No.1828 of 1989, dated 08.01.1991.

51. Accordingly, this Second Appeal stands dismissed. Cost throughout.