(Prayer in S.A.: Second Appeal filed under Section 100 of the Civil Procedure Code to set aside the judgment and decree dated 16.04.2013 passed in A.S.No.26 of 2003 on the file of the Sub Court, Ranipet in confirming the judgment and decree dated 21.02.2003 passed in O.S.No.94 of 1995 on the file of the District Munsif cum Judicial Magistrate No.1, Walaja.)

1. This Second Appeal is directed against the judgment and decree dated 16.04.2013 passed in A.S. No.26 of 2003 on the file of the Subordinate Court, Ranipet, confirming the judgment and decree dated 21.02.2003 passed in O.S. No.94 of 1995 on the file of the District Munsif-cum-Judicial Magistrate No.I, Walaja.

2. The suit in O.S. No.94 of 1995 was instituted by the first respondent herein for the relief of permanent injunction restraining the defendants therein, namely the present appellants, from interfering with her alleged peaceful possession and enjoyment of the suit schedule property, described as a vacant house site measuring about 4,371 sq.ft., bearing Door No.9, situate at Swaranachettipet, Walajapet Town, Vellore District.

3. For the sake of convenience, the parties are referred to as they were arrayed before the trial court.

4. The case of the plaintiff, in brief; The suit property was an ancestral property belonging to the family of her husband, late A.S. Rajasekarappa, son of A. Subramaniappa. According to her, the property had been in possession and enjoyment of her husband and his predecessors for a long period. The Walajapet Municipality had allegedly recognised such possession and ownership by issuing ownership certificates and property tax receipts in the name of her husband.

5. It is further contended that her husband, by a registered settlement deed dated 02.03.1989 (Ex. A7), settled the suit property in her favour, pursuant to which she had been in exclusive possession and enjoyment. The cause of action for the suit is stated to have arisen on or about 12.07.1992, when the defendants allegedly attempted to interfere with her possession by raising a thatched shed, compelling her to file the present suit for bare injunction.

6. The Defendants’ case: The defendants denied the plaintiff’s claim of ancestral title in toto. According to them, the suit property originally belonged to Neelammal, wife of Subramaniappa (plaintiff’s mother-in-law). Neelammal sold the property to her daughter Sarojammal under a registered sale deed dated 08.12.1969 (Ex. B4). Sarojammal, in turn, sold the property to Kanniyammal under a registered sale deed dated 21.10.1972 (Ex. B5).

7. Upon the death of Kanniyammal, her grandson Udayashankar inherited the property and conveyed the same to the second defendant, M.M. Geetha ( wife of 1st defendant ), under a registered sale deed dated 24.11.1988 (Ex. B3). The second defendant, after purchase, obtained municipal plan approval, building permission, effected name transfer in municipal records, and paid property tax in her name. The defendants asserted that the plaintiff was never in possession of the suit property and that, in the presence of a serious dispute regarding title, a suit for bare injunction was not maintainable.

8. On the side of the plaintiff, oral evidence was adduced through PW1 (the plaintiff herself) and PWs 2 and 3, who broadly supported the plaintiff’s version of possession through her husband and thereafter in her own right. The plaintiff asserted that the suit property was her husband’s ancestral property and that he had executed the settlement deed (Ex. A7) in her favour.

9. To support the alleged ancestral character of the property, the plaintiff relied mainly upon boundary recitals found in Ex. A40 dated 10.02.1917 and Ex. A41 dated 06.08.1929, wherein the suit property was described as belonging to her husband’s grandfather, Mariyappa Chetty. She also relied upon municipal tax receipts and records to substantiate her claim of possession.

10. On the side of the defendants, oral evidence was adduced through DWs 1 to 7, including the first defendant, who deposed in support of the defence version tracing title through Neelammal and her successors. The defendants also spoke to their possession, payment of municipal taxes, name transfer, and steps taken for construction pursuant to municipal approval.

11. In support of their case, the defendants marked Exs.B1 to B32. Ex. B4 is the registered sale deed dated 08.12.1969 executed by Neelammal in favour of her daughter Sarojammal. Ex. B5 is the sale deed dated 21.10.1972 executed by Sarojammal in favour of Kanniyammal. Ex. B3 is the sale deed dated 24.11.1988 executed by Udayashankar in favour of the second defendant. Ex. B14 is a Will dated 29.12.1979 executed by the plaintiff’s father-in-law, wherein, in the boundary recital, the suit property is described as belonging to Kanniyammal. Municipal tax receipts and related records were also produced to evidence the defendants’ possession.

12. The Advocate Commissioner’s report and plan were marked as Exs.C1 and C2.

13. The trial Court framed issues relating to (i) whether the suit property was ancestral or belonged to Neelammal, (ii) whether Neelammal and her successors were in possession pursuant to the sale deeds, (iii) whether the plaintiff and her husband were in possession, and (iv) whether the plaintiff was entitled to the relief of injunction.

14. The trial Court decreed the suit, holding that the plaintiff had established possession and that the defendants had failed to prove better title or possession. The first appellate Court concurred with the findings of the trial Court, holding that in a suit for injunction a detailed examination of title was unnecessary and that the plaintiff’s evidence of possession outweighed that of the defendants.

15. At the time of admission, this Court framed the following substantial questions of law:

               1) Whether the present suit for permanent injunction is maintainable without seeking the relief of declaration of title when the plaintiff and the defendants are seriously disputing each other’s claim of title over the suit property?

               2) Whether in law the courts below erred in holding that the suit property belonged to plaintiff’s husband’s family ancestrally on the basis of boundary recitals in Ex.A40 & A41,the sale deed and mortgage deed respectively of the year 1917and 1929 without there being any title deed ignoring similar boundary recital in favour of the defendants in Ex.B14 Will executed by the plaintiff's father-in-law in favour of the plaintiff's husband? 16. The plaintiff claims title to the suit property on the footing that it was an ancestral property of her husband. Her assertion of ancestral character rests primarily on the boundary recitals found in Exs.A40 and A41, wherein the name of her husband’s grandfather, Mariyappa Chetty, appears.

17. On the other hand, the defendants trace their title through Neelammal, the mother-in-law of the plaintiff. Ex. B4, the registered sale deed dated 08.12.1969 executed by Neelammal in favour of her daughter Sarojammal, is much earlier in point of time than the settlement deed dated 02.03.1989 (Ex. A7) executed by the plaintiff’s husband. Significantly, the plaintiff’s father-in-law stood as one of the attesters to Ex.B4 and, during his lifetime, never asserted any independent right over the suit property.

18. Further, the plaintiff’s father-in-law executed two Wills, marked as Exs.B1 and B14, dealing with his ancestral properties. In neither of the Wills did he assert ownership over the suit property. On the contrary, in the boundary recital contained in Ex. B14, the suit property is described as belonging to Kanniyammal. This circumstance materially weakens the plaintiff’s plea that the suit property formed part of the ancestral estate of her husband.

19. Thus, the fundamental issue that arises is whether the suit property was ancestral property of the plaintiff’s husband or the separate property of her mother-in-law Neelammal. The objection raised by the defendants to the plaintiff’s title is not a vague or illusory plea, but one supported by a clear and consistent chain of documents commencing from Ex. B4, followed by Ex. B5, and culminating in Ex. B3.

20. The Courts below attached undue importance to the boundary recitals found in Exs.A40 and A41, which are documents not inter parties, while failing to give due weight to Ex.B4 and the boundary recital contained in Ex.B14. It is well settled that boundary recitals, particularly in third-party documents, are at best a weak piece of evidence and cannot, by themselves, confer or establish title. It is also a matter of common knowledge that properties are often described in the name of the head of the family in boundary recitals without reflecting the true legal ownership.

21. Neelammal, being the daughter-in-law of Mariyappa Chetty, was not a stranger to the family. There is no legal bar for a mother to execute a sale deed in favour of her daughter. Merely because the transaction was effected through a sale deed instead of a settlement or gift deed, the transaction cannot be suspected or invalidated. The motive for such a transaction or the source of funds is wholly immaterial in a suit for bare injunction and, in any event, cannot be gone into in such a suit.

22. Ex. B4 is a registered document more than 30 years old and comes from proper custody. It therefore attracts the presumption under Section 90 of the Indian Evidence Act, 1872. The burden lies upon the person who disputes such an ancient document to disprove its execution or validity. The plaintiff has failed to discharge this burden.

23. The plaintiff has not sought an injunction purely on the basis of possession. Her claim is substantially founded on title derived under Ex. A7 settlement deed. Both parties have adduced documentary evidence relating to possession, and the Advocate Commissioner’s report describes only the physical features of the property. In such circumstances, the existence of a serious cloud over title becomes decisive.

24. The legal position governing such cases has been authoritatively laid down by the Supreme Court in Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs, reported in (2008) 4 SCC 594, wherein it was held as follows: “Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.”

25. The present case squarely falls within the said category, as the plaintiff’s title is seriously disputed and is clouded by prior registered documents produced by the defendants.

26. Further, the plaintiff cannot seek to indirectly establish title in a suit framed only for injunction. In Bachhaj Nahar v. Nilima Mandal, reported in (2008) 17 SCC 491, the Supreme Court has categorically held that: “ A Court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.”

27. The Courts below, in effect, adjudicated upon title while granting a decree for injunction, which is impermissible in law.

28. The plaintiff herself has pleaded that the suit schedule property was an ancestral property of her husband, Rajasekarappa. Even if this contention is accepted without demur, on the admitted facts the plaintiff, prima facie, had no title to the entire extent of the suit property.

29. It is not in dispute that Subramaniappa, the father-in-law of the plaintiff, executed Wills under Exs.B1 and B14 in the year 1979. The materials on record further disclose that Subramaniappa had three children, namely, one son, Rajasekarappa (plaintiff’s husband), and two daughters, Suseelammal and Sarojammal.

30. The pleading of plaintiff shows that the ancestral properties were enjoyed jointly by Subramaniappa and his son Rajasekarappa as coparceners, and that Subramaniappa died after the commencement of the Hindu Succession Act, 1956. The suit property, on the date of suit, admittedly remained a vacant site.

31. Under Section 6 of the Hindu Succession Act, 1956 (as it stood prior to the Amendment Act of 2005), where a Mitakshara coparcener dies intestate leaving behind female heirs specified in Class I of the Schedule, a notional or deemed partition takes place, and the female heirs become entitled to a share in the coparcenary property along with the male heirs. Consequently, upon the death of Subramaniappa, his daughters Suseelammal and Sarojammal became co-sharers, along with Rajasekarappa, in his undivided coparcenary interest.

32. In such circumstances, the settlement deed dated 02.03.1989 (Ex. A7) executed by Rajasekarappa alone, purporting to convey the entire extent of the alleged ancestral suit property, prima facie gives rise to a serious dispute regarding title. Rajasekarappa could not have conveyed more than his own undivided share, even assuming the property to be ancestral. The extent of his share, and the effect of the rights of the daughters of Subramaniappa, necessarily require adjudication in a properly framed suit for declaration of title.

33. Therefore, even on the plaintiff’s own case that the suit property is ancestral, the title claimed under Ex. A7 is inherently clouded. Such a cloud cannot be cleared in a suit for bare injunction, particularly when the property is a vacant site and both parties assert competing claims of possession founded on title.

34. The approach adopted by the Courts below in selectively relying upon certain boundary recitals in Exs.A40 and A41, while ignoring the legal effect of Ex. B4 and Ex. B14, amounts to misapplication of settled principles of law. The findings recorded, therefore, suffer from a substantial error of law warranting interference under Section 100 CPC.

35. Accordingly, the substantial questions of law are answered in favour of the appellants, holding that the Courts below erred in placing reliance upon boundary recitals in third-party documents while ignoring the suit is filed for bare injunction and the title of plaintiff is seriously disputed.

36. In the result, the judgments and decrees of the Courts below are set aside. This Second Appeal is allowed, and O.S. No.94 of 1995 stands dismissed. No costs. If there any miscellaneous petition the same is ordered to be closed.