(Prayer: This Second Appeal has been filed under Section 100 of Code of Civil Procedure against the judgment and decree dated 26.06.2014 and made in A.S. No.42 of 2011 on the file of the Subordinate Judge, Kanchipuram confirming the judgment and decree dated 29.07.2010 made in O.S. No.42 of 2008 on the file of the District Munsif-cum-Judicial Magistrate, Sriperumbudur (initially, a Suit in O.S. No.792 of 1995 was filed before the DMC, Poonamallee and subsequently the same was transferred to DM-cum-JM, Sriperumbudur and re-numbered as O.S. No.42 of 2008).)

1. This Second Appeal has been preferred as against the decree and judgment passed in A.S. No.42 of 2011 on the file of the Subordinate Judge, Kanchipuram dated 29.07.2010. The appellant herein is the Plaintiff in the main Suit. The Suit was filed in O.S. No.42 of 2008 on the file of the District Munsif-cum-Judicial Magistrate, Sriperumbudur for the reliefs of delivery of vacant possession of the Suit property and for mandatory injunction directing the defendants 2 and 3 to cancel the patta in respect of the Suit property issued in favour of the 1st defendant and to retain or transfer the patta in the name of the Plaintiff and the said Suit was dismissed. Aggrieved by the said decree and judgment, the Plaintiff had preferred an appeal before the First Appellate Court and said appeal was also dismissed by confirming the decree and judgment of the trial Court and therefore, the present Second Appeal has been preferred by the Plaintiff.

                   1.1. For the sake of convenience and brevity, the parties hereinafter will be referred to as per their status / ranking in the Trial Court.

2. The short facts of the Plaint averments are as follows:-

The Plaintiff is the Trust represented by its President and the Plaintiff Trust was created through a Trust Deed dated 21.10.1959 and one C.N. Varadappan had given lands to the Trust to an extent of 22.76 acres comprised in Kundrathur Village, Sriperumbudur Taluk and the same was accepted by the Plaintiff, whereby the Trust has been in possession and enjoyment of the Suit property. The land situated in S. No.712 situated in Kundrathur Village to an extent of 2.37 acres is also covered under the said Trust Deed. The same is set out in the Plaint schedule. Except the Plaintiff, no others have got any manner of right, title or interest over the Suit property. Patta was also granted in favour of the Plaintiff Trust. While so, in the month of April 1995, the Plaintiff came to know that the said C.N. Varadappan had sold the Suit property to one R. Velayudham and another. Thereafter, the 1st defendant had purchased the said property through a Sale Deed dated 27.06.1986. The said C.N. Varadappan had no manner of right or title or interest to sell the Suit property, thereby, the sale in respect of the Suit property is not valid and will not confer any title to the 1st defendant. Now, the 1st defendant is trying to interfere with the possession and enjoyment of the property and also got patta to that property through the 3rd defendant. The Plaintiff came to know about the same in the month of April 1995 and thereafter, the Plaintiff issued a notice to the defendants on 23.04.1995. After receipt of notice, the 1st defendant issued a reply notice on 23.06.1995 with false averments. The said C.N. Varadappa Mudaliar sold the property through an unregistered Sale Deed dated 06.01.1994 in favour of C. Raju Mudaliar and also registered the Sale Deed in his favour. Therefore, the Plaintiff has filed the Suit for the reliefs of delivery of vacant possession and mandatory injunction and for other reliefs.

3. The brief facts of the Written statement filed by the 1 s t defendant are as follows:-

The defendant denied all the allegations made in the Plaint except those that are specifically admitted herein. The defendants denied the validity of the Trust Deed alleged to have been executed by C.N. Varadappan Mudaliar dated 21.10.1959. The said Trust Deed has not been acted upon at any time. The suit property had never been delivered to the Trust by Varadappan. The person who had verified the Plaint is not entitled to represent the Trust, thereby the Suit is not maintainable. The Suit has to be filed by all the Trustees. The Suit is bad for non-joinder of necessary parties for want non-impleadment of Trustees. Further, the said Varadappan is also a proper and necessary party to the Suit. But he has not been impleaded as one of the parties. The Suit for recovery of possession is barred by limitation. The 1st defendant and her predecessor in title had been in possession for more than the statutory period and during the said period, it was held adverse to the Plaintiff / Trust openly, continuously and in defiance of the claim of the Trust. The allegation that the Plaintiff came to know about the possession of the defendant only in April 1995 is false. The Plaintiff has knowledge about the possession from the date of purchase of the Predecessors of the 1st defendant since 06.01.1964. The legal heirs of Raju Mudaliar sold the property to this defendant through a Sale Deed dated 27.06.1986 and she is in possession and enjoyment of the property. Therefore, the Suit is liable to be dismissed.

4. Based on the above said pleadings and after hearing both sides, the trial Court had framed the following issues:

                   (i) Whether the Plaintiff is entitled for the relief of eviction as prayed for?

                   (ii) Whether the Plaintiff is entitled for the relief of permanent injunction as prayed for?

                   (iii) To what relief?

Before the trial Court, on the side of the Plaintiff, PW1 to PW3 were examined and Ex.A.1 to Ex.A.12 were marked. On the side of the defendants, DW1 was examined and Ex.B.1 and Ex.B.2 were marked. After analysing the oral and documentary evidences adduced on either side, the trial Court dismissed the Suit. Aggrieved by the said decree and judgment passed by the trial Court, the Plaintiff had preferred an appeal in A.S. No.42 of 2011 on the file of the Subordinate Judge, Kanchipuram.

5. The First Appellate Court, after hearing both sides and perusing the records, framed the following points for determination:

                   (i) Whether the decree and judgment passed by the trial Court is correct or not?

                   (ii) Whether the appellant is entitled to allow this appeal?

                   (iii) To what other reliefs?

The First Appellate Court after hearing both sides and perusing the records, dismissed the appeal by confirming the decree and judgment passed by the trial Court. Aggrieved by the decree and judgment of the First Appellate Court, the present Second Appeal has been preferred by the appellant / Plaintiff.

6. This Court, at the time of admitting the Second Appeal, has formulated the following substantial questions of law:

                   a. Whether the First Appellate Court is right in dismissing the Appeal Suit on the ground that the Plaintiff sought only recovery of possession without seeking the relief of declaration of title when the Plaintiff had clear and absolute right and title over the Suit schedule property under Exhibits A2 and A7?

                   b. Whether the Courts below are right in dismissing the Suit without considering the fact that the Suit property has been conveyed several times and that as per Provisions of Section 48 of Transfer of Property Act, the first conveyance i.e., Exhibit A2 alone will hold good?

7. The learned counsel appearing for the Plaintiff would submit that the Plaintiff is the Trust represented by its President and the Suit property originally belonged to one C.N. Varadappan and the Plaintiff Trust was created through a Trust Deed on 15.09.1958 for giving education to the poor people and registered on 22.09.1958. The said C.N. Varadappan is one of the Trustees and he executed a Gift Deed and donated about 21 Acres in favour of the Trust. The Suit property situated in S.A. No.712 of Kundrathur Village measuring an extent of 2.37 acres also was donated to the Trust through the said Gift Deed. While so, on 01.10.1995, the 1st defendant trespassed into the Suit property and thereby, the Plaintiff issued a notice on 23.04.1995 and the same was replied by the 1st defendant with false allegations through notice dated 23.06.1995. The Gift Deed executed by C.N. Varadappan was acted upon and the Trust is in possession and enjoyment of the property. The 1st defendant had taken a plea that she is the owner of the property by relying upon the Sale Deed and Patta issued in favour of the 1st defendant. But she has not produced the Sale Deed. Per contra, the Plaintiff has produced all the Title deeds and without considering the evidences adduced on the side of the Plaintiff, the trial Court has dismissed the Suit. The First Appellate Court also without appreciating the facts in a proper and perspective manner, dismissed the appeal.

                   7.1. In fact, the Suit is not barred by limitation. The Suit has been filed for delivery of vacant possession and for consequential reliefs, immediately after trespass by the 1st defendant and originally the Suit was filed before the District Munsif Court at Poonamallee in the year 1995 itself and thereafter, the case was transferred to District Munsif-cum-Judicial Magistrate, Sriperumbudur and re-numbered as O.S. No.42 of 2008. The trial Court also erroneously dismissed the Suit on the ground of non-joinder of necessary parties. In fact, neither the original owner namely C.N. Varadappan nor his successors in interest had any right over the property, since the said C.N. Varadappa Mudaliar settled and conveyed the Suit property in the year 1959 itself through Ex.A2, Registered Trust Deed dated 21.10.1959. The First Appellate court also went wrong in dismissing the first appeal on the ground that the Plaintiff is not entitled to mandatory injunction without seeking prayer of declaration of title. After giving the properties to the Trust, the said C.N. Varadappa Mudaliar cannot sell the property and thereafter, he sold the property through a Sale Deed dated 09.09.1985, Ex.B.2 and the same is not valid. Therefore, the subsequent purchasers are not valid in the eye of law, but the Courts below failed to consider the same. The Courts below failed to consider that the revenue records. Mutation of revenue records had taken place pursuant to the subsequent purchase, which are not valid in the eye of law. Therefore, the Courts below have committed error and the decree and judgments passed by the Courts are liable to be set aside.

8. The learned counsel appearing on the side of the respondents would submit that the Plaintiff filed the Suit for recovery of possession and mandatory injunction. According to the Plaintiff, one Mr. C.N. Varadappan Mudaliar had executed a Gift Deed, but the defendants denied the said Gift Deed and the Gift Deed has not been acted upon. The Plaintiff is not in the possession of the Suit property and the same is admitted by the Plaintiff. One Mr. Raju Mudaliar had purchased the property in the year 1964 and he had been in possession and enjoyment of the property till his death and thereafter, the legal heirs of the said Raju Mudaliar had been in possession and enjoyment of the property till 27.06.1986 and they sold the property to the 1st defendant on 27.06.1986 through a Sale Deed and the 1st defendant is in the possession and enjoyment of the property from the date of the Sale deed i.e., 27.06.1986. The revenue records have been mutated in the name of the 1st defendant. Therefore, the Suit is barred by limitation and hit by non-joinder of necessary parties. Without seeking declaration of title, the Suit is not maintainable and the prayers for recovery of possession and mandatory injunction cannot be maintainable. Therefore, the trial Court has rightly dismissed the Suit and the First Appellate court has also correctly appreciated the facts and dismissed the Suit and the Suit has also not been filed by the Trustees. Therefore, the Courts below have correctly dismissed the Suit and there are no grounds to allow the second appeal. There are no substantial questions of law involved in this second appeal and therefore, the second appeal is liable to be dismissed.

9. Heard both sides and perused the entire materials available on record.

10. In this case, the Plaintiff has filed the Suit for recovery of possession and mandatory injunction. According to the Plaintiff, the Trust was created through a Trust Deed dated 21.10.1959 and the Suit property along with other properties were gifted to the Trust by one C.N. Varadappan Mudaliar. Thereafter, the Trustee of the Trust was in possession and enjoyment of the property and the title was also conveyed to the Trust. While so, the said C.N. Varadappa Mudaliar sold the property to one C. Raju Mudaliar through an unregistered Sale Deed and after the demise of the said Raju Mudaliar, his legal heirs sold the property to the 1st defendant. The Plaintiff is in possession and enjoyment of the property. While so, the 1st defendant attempted to interfere with the possession and enjoyment of the property in the month of April 1995. Thereafter, the Plaintiff issued a notice and the same was replied by the 1st defendant. Therefore, the property belongs to the Trust.

11. The 1st defendant trespassed into the property during the month of April 1995. The case of the 1st defendant is that she purchased the property through a Sale Deed dated 27.06.1986 and thereafter, the revenue records have been mutated in her favour and she is in possession and enjoyment of the property. The Plaintiff is not the owner of the property and the alleged Gift Deed executed in favour of the Trust has not been acted upon. The Suit is barred by limitation and the original owner of the property is one Vamanan and he is also a proper and necessary party to the Suit proceedings. Therefore, the Suit is not maintainable and hence the Suit is liable to be dismissed.

12. The trial Court framed the necessary issues and thereafter, dismissed the Suit by holding that from the very recitals of Ex.B.2, it is made clear that C.N. Varadappa Mudaliar is the owner of the property under Patta No.345. Ex.B.3 is the Sale Deed dated 27.06.1986 executed by Velayudham and Sankari Ammal in favour of the 1st defendant Leela. The property of Survey No.712 to an extent of 2 acres and 37 cents was conveyed under Ex.B.3 and Ex.B.4 is the Sagupadi Adangal extract and name of the Alagesan was removed and the 1st defendant was incorporated in the year 1989 itself. In the Ex.B.5, Encumbrance Certificate, sale by C.N. Varadappa Mudaliar was reflectd. The defendants also produced the revenue records from their possession. Thereafter, analysing the evidences adduced on both sides held that the Plaintiff has to prove the existence of the Trust and to show that the Suit property was endowed to the Trust. The executant Varadappa Mudaliar was available till 1995 and the Suit property was in the hands of Raju Mudaliar. Thereafter, the property was sold to the 1st defendant. The 1st defendant has been under possession and enjoyment of the property. The Plaintiff has not filed the Suit for the relief of declaration of title. The said observations of the trial Court are based on the oral and documentary evidences. Therefore, the trial Court has correctly appreciated the facts and decided the Suit.

13. The First Appellate Court also, in its judgment, discussed about the evidence of PW1 and came to a conclusion that PW1, does not know about the members of the Trust and its functions and about the Suit property, who is in the possession of the property and evidence of PW1 has not supported his case and PW1 had no personal knowledge about the Trust and the documents and enjoyment of the Suit property and PW1 is the Power of Attorney and he has no knowledge about the property and he is not a competent person to speak about the acceptance of gift and possession of the Suit property and the defendants’ side documents show that Varadappa Mudaliar sold the property in favour of Velayudha Mudaliar and Sankari Ammal. The said Velayudha Mudaliar S/o. Raju Mudaliar and the Sankari Ammal Wife of Raju Mudaliar sold the property to the 1st defendant on 27.06.1986 through a Sale Deed and the defendants have also produced the revenue records for the continuous possession over the property. The Plaintiff filed the Suit for recovery of possession and mandatory injunction to cancel the patta issued in the name of the 1st defendant and there is a cloud on the title of the Suit property. The documents filed by the defendants are cogent and proved the continuous possession. Till the life time of the Varadappa Mudaliar, the Plaintiff has not challenged the Sale Deed executed by Varadappa Mudaliar. The mutation of revenue records have not been challenged by the Plaintiff during the life time of the Varadappa Mudaliar and the Plaintiff has not filed Suit for declaration of title, when the 1st defendant claimed the title of the property by denying the title of the Plaintiff. Therefore, the Suit for recovery of possession and mandatory injunction are not maintainable.

14. Further, the First Appellate court relied upon the judgment of Hon’ble Supreme Court in Anathula Sudhakar vs. P. Buchi Reddy (dead) by Lrs and Others in Civil Appeal No.6191 of 2001, and after relying upon the said judgment, came to a fair conclusion that the Suit is not maintainable without seeking declaration of title over the property. The above said findings of the First Appellate Court are based on the sound principles of law and the available evidence. Therefore, the Courts below have correctly appreciated the facts.

15. It is well settled law that when there is a cloud over the title of the property, it is the duty of the Plaintiff to seek relief of declaration. In this case, the Plaintiff filed the Suit for recovery of possession and for mandatory injunction in respect of the Suit property. The defendants claimed the title through a Sale Deed dated 27.06.1986 and thereby, there is a cloud over the title of the property, but the Plaintiff has not sought for relief of declaration. Therefore, both the Courts have correctly applied law and rendered concurrent findings. Therefore, this Court has no warrant to interfere with the findings rendered by the Courts below.

16. As far as the substantial questions of law that a) Whether the First Appellate Court is right in dismissing the Appeal Suit on the ground that the Plaintiff sought only recovery of possession without seeking the relief of declaration of title when the Plaintiff had clear and absolute right and title over the Suit schedule property under Exhibits A2 and A7? is concerned, the Plaintiff has filed the Suit for the reliefs of recovery of possession and for mandatory injunction. According to the Plaintiff, the properties were gifted to the Trust by one C.N. Varadappan Mudaliar through a Gift Deed. The said C.N. Varadappan Mudaliar was also one of the Trustees and during his life time, he sold the properties to one C. Raju Mudaliar and thereafter, the legal heirs of the said C. Raju Mudaliar sold the properties to the 1st defendant in the year 1986. The said C.N. Vardadappa Mudaliar died in the year 1995 and till the demise of the said Varadappan Mudaliar, the Plaintiff had not questioned the transactions made in respect of the Suit property. The 1st defendant is in possession and enjoyment of the Suit property. The Plaintiff has also admitted that the 1st defendant is in possession and enjoyment of the property. According to the Plaintiff, the 1st defendant was in possession and enjoyment of the property only in the month of April 1995. But the 1st defendant established that from the date of her purchase in the year 1986, she has been in possession and enjoyment of the property. Therefore, the Plaintiff has failed to file the Suit immediately after entering into the property by the 1st defendant. Moreover, the Plaintiff failed to file the Suit during the life time of the said Varadappan Mudaliar. Once the Suit is filed for recovery of possession and mandatory injunction based on the title of the property and the 1st defendant claimed the title by denying the title of the Plaintiff, it is the duty of the Plaintiff to seek relief of declaration as there is a cloud over the title of the Suit property.

17. At this juncture, it is relevant to refer the judgment of the Hon’ble Supreme Court passed in the case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) by Lrs and others in Civil Appeal No.6191 of 2001, wherein it has been held as follows:-

                   Re. Question(i)

                   11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled.

                   We may refer to them briefly.

                   11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

                   11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

                   11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

                   12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.

Therefore, though Ex.A2 and Ex.A7 have been filed by the Plaintiff, those documents have not been proved in accordance with law. There is no evidence to prove as to whether the gift was accepted by the Trust and as far as Ex.A7 is concerned, patta will not confer any title in respect of the Suit property. Mere production of patta is not sufficient. Moreover, the defendants have produced the Sale Deed dated 09.09.1985 executed by Mr. C.N. Varadappan Mudaliar to the heirs of the Raju Mudaliar and in turn, the heirs of the said Raju Mudaliar sold the property to the 1st defendant and the 1st defendant is in possession and enjoyment of the property. The said Sale Deed executed in the name of the heirs of the Raju Mudaliar by C.N. Varadappan Mudaliar has not been challenged by the Plaintiff. Therefore, the Plaintiff ought to have sought for relief of declaration of title and without praying for declaration, when there is a cloud over the title of the property, the reliefs sought for recovery of possession and mandatory injunction are not maintainable. Therefore, the Courts below have correctly appreciated the facts and law and dismissed the Suit. Thus, substantial question of law (a) is answered.

18. As far as the substantial question of law b. Whether the Courts below are right in dismissing the Suit without considering the fact that the Suit property has been conveyed several times and that as per Provisions of Section 48 of Transfer of Property Act, the first conveyance i.e., Exhibit A2 alone will hold good? is concerned, according to the Plaintiff, one C.N. Varadappan Mudaliar gifted the property to the Trust through a Trust Deed dated 21.10.1959 and the said C.N. Varadappan Mudaliar was also one of the Trustees of the Trust. During the life time of the said Varadappan Mudaliar itself, he sold the property to the heirs of one Raju Mudaliar through a Sale Deed dated 09.09.1985. While so, it is the duty of the Plaintiff to establish that the property was gifted to the Trust and the Trust had accepted the said gift. There is no evidence that the Gift Deed was acted upon and the Plaintiff has also in his evidence admitted that he was not in a position to state about the Trust and its functions and property purchased was in favour of the Trust. Therefore, the Plaintiff was not in a position to say about the Trust and its functions and acceptance of the gift by the Trust through a Gift deed. It is true that as per Section 48 of the Transfer of Property Act, the first conveyance alone will hold good when the property has been conveyed several times after the first conveyance. As per Section 48 of Transfer of Property Act, where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created. However, in the case on hand, there is no proof to show that the property was conveyed to the Trust by the said Varadappan Mudaliar. During the life time of the said Varadapan Mudaliar, the Plaintiff has not filed any Suit. Therefore, there is no evidence as to whether the Trust Deed was in existence and the property was gifted to the Trust. Per contra, the defendants’ side evidence clearly shows that the property was conveyed by one of the Trustees namely Varadappan Mudaliar. The said Sale Deed was executed in the individual capacity of C.N. Varadappan Mudaliar and not as a Trustee of the Trust. Once the Sale Deed is executed in favour of the defendant, it is the duty o f the Plaintiff to establish his title and possession over the property. Once the possession of the defendant is admitted by the Plaintiff and the Plaintiff is out of possession, he has to prove that how his possession was excluded. While so, it is the duty of the Plaintiff to prove that the Gift Deed was acted upon and the gift was accepted by the Trust. In the absence of any such evidence, it is not appropriate to invoke Section 48 of the Transfer of Property Act. Therefore, the Courts below are right in dismissing the Suit. Thus, the substantial question of law b) is answered.

19. In view of the above said discussions and answers to the substantial questions of law, this second appeal has no merits and deserves to be dismissed.

20. Accordingly, this Second Appeal is dismissed. There shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.