Judgment : Third defendant in O.S.No.817 of 1991 on the file of District Munsifs Court, Cuddalore is the appellant. 2. Suit was filed by plaintiff for declaring his title over suit properties and also for permanent injunction restraining defendants from putting up any construction in the suit properties and for mandatory injunction against third defendant directing her to remove the construction put up in item No.2 and deliver vacant possession and for costs of the suit. 3. It is the case of plaintiff that plaint property originally belonged to one Peria Palani, who had two sons by name Kumarasamy and Murugesan. Plaintiffs paternal grandfather Narayanasamy Kadhiriar purchased plaint properties as per Exs.A-1 and A-2, dated 26. 1928 and 1. 1931 respectively. Ex.A-1 was executed by one of the sons of Peria Palani, Murugesan Pillai and the same relate to 1/2 undivided share over the entire item. Ex.A-2 is executed by legal heirs of Kumarasamy, the other son and thus, plaintiffs grant father became absolute owner. In 1956, Ex.A-3 partition was entered and plaint property was allotted to plaintiffs father. Thereafter, plaintiff is in absolute possession of entire properties. 4. Reason for filing the suit was, defendants 1 and 2 wanted to take possession of the property as if it is Government land. But subsequently, third defendant was impleaded, who has trespassed in the property and put up construction. 5. Third defendant alone contested the suit and according to her. plaintiff is not entitled to recover the property as against her. The contention is that in Ex.A-2, all the legal heirs of Kumarasamy are not joined as executants. It is further stated that Kumarasamy had two wives. Through first wife, he had six sons and through second wife, he had nine sons. All of them have not joined in execution of the deed. Third defendant has taken sale deed from one Govindasamy, son of Arumugham one of the sons of Kumarasamy through his first wife. It is her case that when she has taken sale deed from one, of the co-owners, her possession is only that of co-owners, and plaintiff is not entitled to recover the same without partition. She prayed for dismissal of the suit. 6. Trial court took oral and documentary evidence. On the side of plaintiff, Exs.A-1 to A-15 were marked and on the side of defendants Exs.B-1 to B-7 were marked. She prayed for dismissal of the suit. 6. Trial court took oral and documentary evidence. On the side of plaintiff, Exs.A-1 to A-15 were marked and on the side of defendants Exs.B-1 to B-7 were marked. Ex.B-1 is sale deed executed by Govindasamy who was examined as D.W.2, oral evidence consist of plaintiff as P.W.1 and four other independent witness as P.Ws.2 to 5. Third defendant examined herself as D.W.1 apart from three other independent witnesses D.Ws.2 to 4. 7. Trial court after evaluating entire evidence, held that plaintiff is absolute owner of the property and third defendant is only a trespasser and she is liable to remove the structures put up by her in the property. It further held that appellant has not proved that Govindasamy is one of the legal heirs of Kumarasamy. It further came to the conclusion that as per Exs.A-1 and A-2 entire plaint schedule property came to the possession of plaintiffs predecessor and the same was dealt with by them, as per Ex.A-3 partition deed and patta also stand in their name as absolute owners. Trial court also found fault with appellant in taking sale deed after institution of suit and that too from a person who had no right over the property. The suit was decreed. 8. Thematter was taken on appeal in A.S.No.10 of 1996 on the file of Subordinate Judges Court, Cuddalore and lower appellate court also confirmed all the findings of trial court and dismissed the appeal. 9. It is against the concurrent judgments of courts below, this second appeal is filed on the following substantial questions of law: 1. Whether the findings of the courts below that in pursuance of Exs.A-1 and A-2 plaintiffs predecessors in-title have taken possession of the suit items is correct. 2. Whether the finding that the partition has taken place and Ex.A-3 is sustainable. 3. Whether the finding that the plaintiff and predecessors-in-title have been in possession and enjoyment for more than 13 years is correct. 4. Whether the finding that the 3rd defendant has no title and has not presented title by adverse possession is correct. 5. 2. Whether the finding that the partition has taken place and Ex.A-3 is sustainable. 3. Whether the finding that the plaintiff and predecessors-in-title have been in possession and enjoyment for more than 13 years is correct. 4. Whether the finding that the 3rd defendant has no title and has not presented title by adverse possession is correct. 5. Whether irrespective of the finding that the two sons of Kumarasamy through his 1st wife and 4 sons through his 2nd wife who are admittedly the sharers in the suit items who have not joined in the execution of Exs.A-1 and A-2 the findings of the court below in decreeing the suit is sustainable in law and on facts. 6. Whether the finding that the plaintiff is entitled to the reliefs prayed for is correct. 10. Since caveat was entered. I heard the learned counsel on both sides at the stage of admission itself by the consent of parties. 11. The question whether plaintiff and his predecessors have obtained possession on the basis of Exs.A-1 and A-2 is purely a question of fact. Courts below have come to the conclusion on appreciation of evidence that plaintiff is in possession on the basis of sale deed and subsequent partition. Various revenue receipts. Patta for property, etc. will show that plaintiff is in possession. Oral evidence of witnesses was also believed by the trial court in holding that Exs.A-1 and A-2 were acted upon and plaintiffs predecessor was in absolute possession of the property. 12. An argument was taken by learned counsel for appellant that admittedly in Ex.A-2 one of the co-owners has not joined and his right is now purchased by appellant under Ex.B-1. According to him, third defendant also stands in the shoes of co-owner along with plaintiff having taken Ex.B-1 sale deed. I do not think the said argument of learned counsel for appellant could be accepted. Findings of courts below is that D.W.2 did not have any right to execute the deed and his relationship with Arumugham and Kumarasamy is not proved. Apart from the same, legally also this argument cannot stand. 13. In V.C.Thani Chettiar v. Dakshinamurthy Mudaliar V.C.Thani Chettiar v. Dakshinamurthy Mudaliar V.C.Thani Chettiar v. Dakshinamurthy Mudaliar [1955]1 MLJ. 414:A.I.R. 1955 Mad. 288 their Lordships held that an alienee from coparcener of a Hindu joint family is not entitled to possession. Apart from the same, legally also this argument cannot stand. 13. In V.C.Thani Chettiar v. Dakshinamurthy Mudaliar V.C.Thani Chettiar v. Dakshinamurthy Mudaliar V.C.Thani Chettiar v. Dakshinamurthy Mudaliar [1955]1 MLJ. 414:A.I.R. 1955 Mad. 288 their Lordships held that an alienee from coparcener of a Hindu joint family is not entitled to possession. His right is only to seek partition with a prayer that he may be put in possession of that portion of the family property allotted to his vendor. 14. If alienee is not entitled to possession, and if he enters possession, what is the nature of his possession. 15. In Palania Pillai v. Amjath Ibrahim [1942]2 MLJ. 321:A.I.R. 1942 Mad. 622 [F.B.] the question that came for consideration was whether a usufructuary mortgage executed by some of the co-owners for the entire property and mortgagee enters possession, whether such possession is adverse. Their Lordships said that mortgagees possession will be adverse to the real owners and if the mortgagee is allowed to continue for a period of more than 12 years till prescribing mortgagees right, the moment he fails to enter possession, that will be adverse to the non-alienating co-owners. At page 625, it is held thus: …When one of several co-sharers lets into possession a stranger who proceeds to cultivate the land for his own benefit the other cosharers must, unless they deliberately close their eyes, known of what is going on, but if they are so regardless of their own interests they must taken the consequences. Where a mortgage granted by one of several coparceners remains in possession of the land and cultivates it for years, a position which we have here, there can be no doubt that the requirements of continuity, publicity and extent for adverse possession are fully complied with. … “ [Italics supplied] 16. In Jivaji Keshav v. Venkatesh Krishna A.I.R. 1940 Bom. 146 at 149 it is held thus: ”As to the character of the possession of the alienee there is good authority for holding that his possession is prima facie adverse against the interests of those members of the family whose interests are not legally affected by the transfer; see:3 Bom.L.R. 682, 6 Bom.L.R. 925 and 23 Bom. 146 at 149 it is held thus: ”As to the character of the possession of the alienee there is good authority for holding that his possession is prima facie adverse against the interests of those members of the family whose interests are not legally affected by the transfer; see:3 Bom.L.R. 682, 6 Bom.L.R. 925 and 23 Bom. 137 Although the facts in the latter case were not quite similar, for it was a case where certain members of a joint Hindu family alienated by sale and mortgage specified plots of lands out of “their share,” the ratio decidendi was that the alienee entered as owner and not as a co-sharer and was therefore in a position to defeat the title of the coparceners under Art.144, see observations in 56 Cal. 616, where that case has been distinguished. There are observations in the judgment of the Chief Justice who delivered the judgment of the Full Bench in 23 Bom. 137 which are relevant to the question of the purchasers position vis-a-vis, the coparceners of his vendor. The learned Chief Justice said (page 141); … as he enters as owner and in right of his conveyance, his possession is adverse to them also. In the eye of the law, all the copurchasers, though for the sake of convenience they may be in separate possession of portions of the joint estate, are the owners of the whole estate including the alientated portion. If the unity of title and possession of the coparceners is assumed the alienees possession is against that title, and all those interested in it would be barred having regard to the character of the interest they can claim. ……“ 17. A Division Bench of Kerala High Court in the decision reported in John v. Joseph [1964] I.L.R. 1 Ker. 211 considered a very same question and held that the possession of alienee will be adverse the moment he entered the property. The Division Bench took note of the decisions in , A.I.R. 1942 Mad. 622 and , A.I.R. 1955 Mad. 288. 18. Recently aDivision Bench of Bombay High Court has taken similar view and the same is reported in A.I.R. 1993 Bom. 134 Paragraphs 21 and 22. of the judgment, their Lordships held thus: ”21. The purchasers (the defendants) on the other hand rely upon the Full Bench decision of this court in Bhavrao v. Rakhmin I.L.R. [1899]23 Bom. 137. 288. 18. Recently aDivision Bench of Bombay High Court has taken similar view and the same is reported in A.I.R. 1993 Bom. 134 Paragraphs 21 and 22. of the judgment, their Lordships held thus: ”21. The purchasers (the defendants) on the other hand rely upon the Full Bench decision of this court in Bhavrao v. Rakhmin I.L.R. [1899]23 Bom. 137. Where coparceners have alienated their shares in the joint family property by sale and mortgage and the alienees have been in possession for more than 12 years, a claim for partition, as against such alienees, is barred by limitation under Art.144 of the Limitation Act. We have extracted the relevant portion as under: “What, then, is the purchasers position with reference to the coparceners of his vendor or mortgagor. The answer, we think, must be that, as he enters as owner and in right of his conveyance, his possession is adverse to them also. In the eye of the law, all the coparceners, though for the sake of convenience they may be in separate possession of portions of the joint estate, are the owners of the whole estate including the alienated portion. It may be and indeed is the case that such a purchaser by his purchase does not get a good title to the land conveyed to him by a single coparcener, but only the qualified right laid down in Pandurang v. Bhaskar [1871]11 Bom H.C.R. 72 and he is liable under some circumstances even to be evicted if the coparceners take the requisite steps within the statutory period. Nevertheless his exclusive possession does not on that account cease to be adverse, He, entering as owner, his possession must, we think, necessarily be adverse to the true owners. Adverse possession depends upon the claim or title under which the possessor holds and not upon a consideration of the question in whom the true ownership is vested - whether in a single person or in many jointly.” Adverse possession is possession by a person holding the land, on his own behalf, or of some person other than the true owner “ - Per Markby, J., in Bejoy Chunder v. Kally Prosonno [1879] I.L.R. 4 Cal. 327. In favour of such a holder limitation begins to run from the date of his possession, provided the true owner is not under disability and is capable of suing.” 22. 327. In favour of such a holder limitation begins to run from the date of his possession, provided the true owner is not under disability and is capable of suing.” 22. The decision of the Full Bench in , (1899) I.L.R. 23 Bom. 137, would squarely apply to the facts involved in the present case. The very fact that the stranger has been inducted into possession and consequently, the possession of the co-owners terminated would be sufficient to put the other co-owners to notice of the conduct of the alienating co-owners. Therefore, ouster would be to their notice and the possession of transferee would be adverse from the date of possession. In this connection, it will also be worthwhile to refer to the case of Khato Lal Das v. Mohd. Jahiruddin Babar Khato Lal Das v. Mohd. Jahiruddin Babar Khato Lal Das v. Mohd. Jahiruddin Babar A.I.R. 1984 Pat. 239 or even Full Bench decision of Madras High Court in T.P.R.Palania Pillai v. Amjath Ibrahim Rowther T.P.R.Palania Pillai v. Amjath Ibrahim Rowther T.P.R.Palania Pillai v. Amjath Ibrahim Rowther A.I.R. 1942 Mad. 622. 19. From the above decisions it is clear that by taking Exs.A-1 and A-2, plaintiffs grandfather was allowed to be in possession of the entire property. His possession is in denial of the right if any of other co-owners or other legal heirs of Kumarasamy Pillai. The sale deed in favour of defendant Ex.B-1 will be of no legal consequences even if Govindasamy D.W.2 is the son of Arumugham and legal heir of Kumarasamy. 20. It has come out in evidence that appellant put up the construction only in the year 1992 on the basis of Ex.B-1. Suit was filed in 1991. Naturally, plaintiff cannot claim any equitable right in her favour. 21. The decision of courts below are therefore, confirmed. As I said earlier, the question as to possession is a question of fact, from which no substantial question of law arises. Ex.A3 is a partition deed between members of the family of plaintiff and predecessors are in possession eversince the date of Exs.A-1 and A-2 and have obtained absolute right. Question based on materials is not liable to be interfered under Sec.100 of Code of Civil Procedure. There cannot be any question of adverse possession by appellant since her claim is based only on Ex.B-1. Even though she claimed possession anterior to Ex.B-1. Question based on materials is not liable to be interfered under Sec.100 of Code of Civil Procedure. There cannot be any question of adverse possession by appellant since her claim is based only on Ex.B-1. Even though she claimed possession anterior to Ex.B-1. that is belied by the document itself. On question No.5, the answer is already given in the earlier paragraphs of this judgment. 22. In the result, all the substantial questions of law raised by the appellant are found against him and the appeal is dismissed. No costs. Consequently, C.M.P.No.9745 of 1999 is also dismissed.