Research › Search › Judgment

Madras High Court · body

2001 DIGILAW 1402 (MAD)

Saravanan Pillai v. A. S. Mariappan and others

2001-11-26

M.CHOCKALINGAM

body2001
JUDGMENT: These three second appeals have been preferred from the common judgment made by the learned Principal Subordinate Judge Tiruchi in A.S.Nos.20 of 1986, 105 of 1986 and 21 of 1986, dated 15.7.1989. Those three appeals were preferred from a common judgment made by the learned District Munsif, Manapparai made in O.S.Nos.652 of 1982, 665 of 1982 and 714 of 1982 respectively. 2. The appellant herein filed O.S.No.652 of 1982 seeking for the relief of declaration of his title to the suit property along with permanent injunction with the following averments. The suit property previously belonged to S.P.G. Mission, which sold the same and other property to one Rangasamy Naidu on 26.3.1941 for a valid consideration. The said properties were possessed and enjoyed by Rangaswamy Naidu. The suit property was sold to the mother of the plaintiff by name Gnanammal on 3.10.1957, from which date she was in possession and enjoyment of the suit property. Under a registered family partition deed dated 16.7.1961 the suit property was allotted to the plaintiff and from that time he was maintaining, possessing and enjoying the suit property. The suit property was used as front vassal at the northern side of the plaintiff’s house. He put cow shed there and tied his cows. He also planted vegetable yielding plants there. He was doing electric motor pumpset business in the name of RMS Corporation. From Ramalingam Pillai Street, one has to enter the plaintiff’s house through the suit property. His house has no other entrance. He was having right over the suit property by adverse possession also. The defendants had no right over the suit property. The second defendant sought for plaintiff’s permission to install a small bunk shop in the suit property, which was refused by him. D-2 purchased motor pumpset from the plaintiff, for which certain amount was due, and hence misunderstandings developed. D-2 with the help of D-1, D-3 to D-5 were trying to interfere with the possession of the suit property. The plaintiff intended to put up a compound wall around the suit property. He has also obtained planning permission from Manapparai Municipality for such construction on 21.4.1982. Inspite of the same, the defendants were interfering with the peaceful possession and enjoyment of the suit property by the plaintiff. Hence there arose a necessity to file a suit for the abovestated reliefs. 3. The defendants 2 and 3 admitted the case. He has also obtained planning permission from Manapparai Municipality for such construction on 21.4.1982. Inspite of the same, the defendants were interfering with the peaceful possession and enjoyment of the suit property by the plaintiff. Hence there arose a necessity to file a suit for the abovestated reliefs. 3. The defendants 2 and 3 admitted the case. The first defendant has filed a written statement, which was adopted by the fourth defendant, alleging that the suit property as described in the plaint was not correct, since the same contained the vacant land standing in favour of the defendant and his wife; that the plaintiff filed the suit fraudulently; that the vacant land measuring 20 1/2 feet east west and 63 feet south north situated within the suit property belonged to the defendant and his wife; that there was no common lane measuring 6 feet east west and 52 feet south north; that the said lane also belonged to the defendant; that the plaintiff had no right or interest over the suit property; that the allegation that the suit property and other properties were purchased by one Ramasamy Naidu from S.P.G. Mission through a registered deed dated 26.3.1841 was not correct; that S.P.G. Mission had no right to make such alienation; that either S.P.G. Mission or the said Rangasamy Naidu had never enjoyed the suit property; that the further allegation that the plaintiff’s mother purchased the suit property under a document dated 30.10.1957 was also not correct; that the plaintiff’s mother had never enjoyed the suit property and she had no right over the same; that the averment that under a partition that took place on 16.7.1967, the suit property came to the hands of the plaintiff was not correct; that the suit property was not used as the front vassal, as alleged by the plaintiff; that the plaintiff had not tied his cows; that he had not planted any plants and had not put up any car shed in the suit property; that there was no passage from Ramalingam Pillai street so as to reach the plaintiff’s house; that the abovesaid vacant site was sold by one Pappu Ammal to Venkatachalam Chettiar under a document on 19.6.1937; that Rajagopal Chettiar, son of Venkatachalam Chettiar has sold the same to one Chidambaram Chettiar on 16.3.1956; that the father of the defendant purchased the said properties from Chidambaram Chettiar on 13.11.1957; that the father of the defendant and his predecessors in title have enjoyed the said vacant site; that the father of the defendant had executed a settlement deed dated 19.5.1967 in favour of the defendant and his brother Andiappan; that they got into the possession of the said property; that the said vacant site, as found in the plaint schedule was mentioned in the settlement deed; that his brother had sold his share in favour of the mother-in-law of this defendant by name Chinnamani Ammal; that the said Chinnamani Ammal had executed a Will, on 30.10.1980 bequeathing the said property in favour of the defendant’s wife Kaliammal; that Chinnamani Ammal died on 8.6.1982; that thereafter, Kaliammal was enjoying the said properties; that D-2 never attempted to install a bunk shop as alleged by the plaintiff; that D-2 had not instigated this defendant in any way; that the defendant had not interfered with the plaintiff’s possession and enjoyment; that when a compound wall measuring 1 1/2 feet was put up by Thiruvengadam Chettiar, the defendant and his wife filed a suit in O.S.No.734 of 1982 against the plaintiff and one Perumal Chettiar for injunction and staus quo was also ordered; that inspite of that, the plaintiff had made construction; that a commissioner was also appointed and he filed a report and hence the suit was to be dismissed. 4. In the additional written statement filed by the first defendant, it was stated that the suit property was never enjoyed by the plaintiff and his predecessors in title; that the documents filed by the plaintiff have not proved his title; and hence the suit was liable to be dismissed. 5. The fifth defendant has alleged in her written statement that the plaintiff had never got right from S.P.G. Mission; that the suit property originally belonged to Packrisamy Chettiar, who relinquished the same to his daughter Pappammal on 26.3.1932; that after the death of Packrisamy Chettiar, Pappammal and her husband were enjoying the property; that Pappammal sold a vacant site measuring 20 1/2 feet east west and 63 feet south north to Venkatachalam Chettiar and she kept the remaining extent viz., that D-5 as the only legal heir of Pappammal had got into the possession of the property; and hence except D-5, nobody else had any right over the property measuring 38 feet x 58 feet; and therefore the suit might be dismissed. 6. The respondents 1 and 4 in S.A.No.978 of 1990 filed a suit in O.S.No.665 of 1982 for permanent injunction with the following averments. The suit property was sold by Chidambaram Chettiaar in favour of the second plaintiff on 13.11.1957. The father of the second plaintiff executed a settlement deed on 19.5.1967 in favour of his brother Andiappan. The said settlement deed was duly registered. The first plaintiff is the wife of the second plaintiff. The said Andiappan sold his share in favour of Chinnamani Ammal, who executed a will on 30.10.1980 in favour of the first plaintiff; when Chinnamani Ammal died on 8.6.1982, the said property came to the hands of the first plaintiff. The plaintiffs have got title over the suit property by adverse possession. The second defendant who had got property on the eastern side, had no right over the suit property. The father of the second plaintiff had instituted a suit against Thiruvengadam Chettiar. An advocate commissioner was appointed and he filed a report wherein the construction made by the defendants therein was shown as KL. When the plaintiffs were away from their place, the defendants 1 and 2 trespassed into the suit property and constructed a compound wall measuring 52 feet x 1 1/2 feet north south. An advocate commissioner was appointed and he filed a report wherein the construction made by the defendants therein was shown as KL. When the plaintiffs were away from their place, the defendants 1 and 2 trespassed into the suit property and constructed a compound wall measuring 52 feet x 1 1/2 feet north south. The report of the Commissioner filed in O.S. No.705 of 1987 might be taken into account as part and parcel of the present suit. Hence, the suit might be allowed. 7. The first defendant was set ex parte. The second defendant in his written statement apart from the averments in O.S. No.652 of 1982, has alleged that the suit property was in the possession and enjoyment of the said S.P.G. Mission even before 1900; that the plaintiffs have no right over the suit property; that the second defendant only had got right over the same and hence the suit might be dismissed. The second defendant had also filed an additional written statement alleging that the plaintiffs were not entitled to get mandatory injunction, as alleged by them in the amended plaint and the suit was liable to be dismissed. 8. The firth respondent in S.A.No.978 of 1990 had filed a suit in O.S. No.714 of 1982 seeking for a declaration of her title and for permanent injunction with the following averments. The plaintiffs had right over the suit property. The suit property originally belonged to one Packrisamy Chettiar. On 26.3.1932 he executed a relinquishment deed in favour of his wife Papammal. On his death she was enjoying the property. She sold part of the property measuring 20 1/2 feet x 63 feet in favour of Venkatachalam Chettiar and the remaining part measuring 38 feet x 58 feet was enjoyed by her. On her death, the plaintiff, who was her daughter, was in possession and enjoyment of the property. The fourth defendant without any right had trespassed into the suit property on 25.8.1982 and attempted to construct a compound wall. The defendants 1 to 3 never enjoyed the suit property. Hence she filed the suit for the abovestated reliefs. 9. The defendants 1 and 5 were set ex parte. The written statement filed by the fourth defendant was adopted by the defendants 2 and 3. The defendants 1 to 3 never enjoyed the suit property. Hence she filed the suit for the abovestated reliefs. 9. The defendants 1 and 5 were set ex parte. The written statement filed by the fourth defendant was adopted by the defendants 2 and 3. It was alleged therein that the allegation that the plaintiff had right over the suit property was not correct; that the suit property was belonging to S.P.G. Mission before 1900; and that the fourth defendant had got right over the property subsequently. He had also made the averments stated by him in O.S.No.652 of 1982 and he prayed that the suit might be dismissed. 10. In the additional written statement filed by the fourth defendant, it was alleged that the plaintiff was not entitled either for mandatory injunction, or for permanent injunction. 11. The learned District Munsif, who framed the necessary issues in the respective suits, tried the same and made a common judgment wherein the suit in O.S. No.652 of 1982 was dismissed with costs, while the suit in O.S. No.655 of 1982 and O.S. No.714 of 1982 were decreed with costs. Aggrieved over the same, the appellant herein preferred A.S.Nos.20, 21 and 105 of 1986 on the file of the Sub Court, Tiruchirapalli, wherein all the three appeals were dismissed confirming the judgment of the trial Court. Against the dismissal of his three appeals, the appellant in those appeals has brought for these second appeals. 12. At the time of admission, the following substantial question of law formulated in S.A. No.978 of 1990 which is adopted in both the other second appeals. “Whether the lower appellate accurate is right in interpreting that under Ex.A-9 Mr.Edward Harimans Field has subdelegated his powers to Mr.Rathinam Asirvatham Manuel, which interpretation vitiates the judgment?” 13. At the time of hearing, the following substantial question of law was formulated. “Whether the Courts below were not correct in rejecting the claim of the appellant for the prayer of injunction, in view of the contention of the appellant that he was having better title than the opposite party?” 14. At the time of hearing, the following substantial question of law was formulated. “Whether the Courts below were not correct in rejecting the claim of the appellant for the prayer of injunction, in view of the contention of the appellant that he was having better title than the opposite party?” 14. All these three second appeals have been preferred by the same appellant, whose case for declaration and consequential permanent injunction in respect of the immovable property and whose defence put forth in the suits filed by the respondents for declaration, permanent injunction and mandatory injunction were rejected by both the Courts below. 15. All these three second appeals have been preferred by the same appellant, whose case for declaration and consequential permanent injunction in respect of the immovable property and whose defence put forth in the suits filed by the respondents for declaration, permanent injunction and mandatory injunction were rejected by both the Courts below. 15. Arguing for the appellant, the learned senior counsel Mr.S.V. Jayaraman, representing the counsel Mr.K.Jeyakumar would submit that both the Courts were not correct in finding that the power of attorney given in favour of Rathnam Asirvatham Manuel to execute the sale deed in favour of Rangaswamy Naidu, the predecessor in interest of the plaintiff was not valid; that the finding that the abovesaid power of attorney was not valid on the ground that it was not registered, cannot be sustained in law; that the lower Courts have not considered that the power of attorney, even though not registered, was valid and both the Courts have proceeded in the wrong footing that a delegatee cannot further delegate the power which was absolutely contrary to law; that in case the original grantee assigned his power to a third person empowering him to appoint his own agent empowering him to make his own arrangement to look after the duties that were arrangement to look after the duties that were assigned under the power of attorney deed, then the question of delegatee cannot further delegatee would not arise; that when the defendants in the written statement have not disputed the validity of the power of attorney deed and when there was no issue framed on that question, both the Courts had no jurisdiction to traverse that question and give a finding; that when admittedly in some of the documents produced by the appellant, the boundary recitals have been given as the property mentioned in the Mission, naturally it lead to an inference that the property belonged to the Christian mission; that when the disputed property was a vacant site and when there was no documents to prove the mission, naturally the Courts have to rely upon the documents produced before the Court; that when the plaintiffs have produced the documents which were more than 30 years old, both the Courts should have drawn an inference in favour of the plaintiff as recitals in those documents were to be taken to be true and no further proof was necessary; that both he Courts were in error in holding that the defendants have got title merely on the basis of the police complaint given by Venkatachalam Chettiar, which was of the year 1944; that both the Courts have not looked into the documents with regard to the recitals relating to the description of the property and find out the identity of the property; that when the suit was of the year 1982, the possession of the predecessor in interest on the side of the defendants 40 years ago cannot be taken into consideration as conclusive proof of their possession; that when the extent claimed by each party was different, naturally it should relate to different properties or even if was the same property, the Courts ought to have taken into consideration of the extent claimed by the respective parties and dealt with it separately by identifying the property in respect of their claim and the other reasons adduced by lower Courts were not correct and convincing. Added further the learned counsel that even assuming that the plaintiff has not produced the original document through which the Mission acquired title to the property, there was sufficient documentary evidence to show that the mission was in possession of the property for a long time; and has sold the property under Ex.A-1 to Rangasamy Naidu, from whom the plaintiff’s mother had purchased, which would be clearly indicative of the fact of the sem-blance of title; that it is pertinent to note that the defendants have not produced any documentary evidence to show that they have got title to the property; that the lower appellate Court without any documentary evidence or basis whatsoever has found that the predecessor in interest of the defendants/ respondents were entitled to the property and the documentary evidence adduced by both sides would clearly indicate that the appellant had a better title than the respondents; that it is pertinent to note that O.S. No.714 of 1982 was filed by the respondent No.5 seeking for mandatory injunction against the appellant to remove the compound wall put by him and there are clear averments in the plaint filed by the respondents that the property was in the possession of the appellant and the same would clearly be pointing to the admission made by the respondents as to the possession of the appellant and hence such circumstance even assuming that the appellant has not proved by sufficient documentary evidence, he was entitled for a permanent injunction in view of his possessory title and he was entitled for protection of his possession from interference and infringement by the respondent herein, and hence the second appeals have got to be allowed granting the necessary reliefs to the appellant. In support of his contention, the learned Senior Counsel relied on a decision reported in Kammavar Sangam through its Secretary R.Krishnaswamy v. Mani Janagarajan, (1999)3 C.T.C. 304 . 16. In support of his contention, the learned Senior Counsel relied on a decision reported in Kammavar Sangam through its Secretary R.Krishnaswamy v. Mani Janagarajan, (1999)3 C.T.C. 304 . 16. The learned counsel appearing for the respondents 1 and 2 Mr.S.Parthasarathy would submit that the trial Court only after elaborate discussion of the evidence both oral and documentary has dismissed the suit filled by the appellant and has decreed the suit filed by the respondents herein; that the lower appellate Court has rightly confirmed the same; that insofar as the finding of the lower appellate Court regarding the non-registration of the power of attorney and the delegation of powers by the power of attorney, he had no quarrel with the contentions put forth by the appellant’s side; that it would be futile to contend that the appellant had a better title than the respondents and hence he was entitled for injunction; that the respondents were necessitated to file a suit for mandatory injunction against the appellant, since he attempted to raise a wall within the respondents’ property; that an Advocate Commissioner was appointed by the trial Court, who made his inspection and brought to the notice of the Court as to the fact that the construction of the compound wall was just commenced; that it is pertinent to note that pending interim injunction by the trial Court, the appellant disobeying the orders of the Court, continued his construction and raised the compound wall which fact was also brought to the notice of the Court by the Commissioner’s report and thus the pleadings and the evidence adduced by the respondents would clearly reveal that the respondents were resisting the unlawful acts and attempted encroachment of the appellants then and there; that both the Courts have pointed out that there was no evidence available indicating to the appellant’s possession or lawful possession of the suit property either before or at the time of filing of the suit, but on the contrary the respondents have adduced number of documents through the respondents have adduced number of documents through which they have clinchingly proved that they were in possession of the property for number of decades and hence under such circumstances, it can neither be held that the appellant had got a better title or possessory title or possession of the suit property, but the defendants by adducing sufficient evidence have proved the title and possession of the suit property and hence the judgment of the lower appellate Court has got to be confirmed by dismissing all the three appeals. In support of his contention, the learned counsel relied on the following decisions: (1) A.I.R. 1958 Mad. 497; (2) Amiappa Nainar v. Annamalai Chettiar, (1973)1 M.L.J. 317: A.I.R. 1972 Mad. 154; (3) Cheventhipaul Nadar v. Srinivasa Nadar, (1982)2 M.L.J. 348 ; (4) 1996 T.L.N.J. 378 and (5) A.I.R. 1998 S.C. 1132. 17. As seen above the appellant herein filed a suit in 652 of 1982 seeking declaration of his title with consequential permanent injunction wherein the suit property measuring 56 feet east west and 52 feet north south within the specified boundaries was mentioned. The first and the fourth defendant in O.S.No. 652 of 1982. filed a suit in O.S. No.665 of 1982 seeking for a permanent injunction not to interfere with their possession and also a mandatory injunction not to interfere with their possession and also mandatory injunction for removal of the constructions made in the suit property. The fifth defendant in O.S. No.665 of 1982 has filed another suit in O.S. No.714 of 1982 seeking declaration of her title in the suit property with consequential permanent injunction and for mandatory injunction against the defendants for removal of the constructions made by them. Admittedly the suit property covered in all the above threes units was a vacant site measuring b56 feet east west and 52 feet north south. The case of the appellant in short is that the suit property in respect of which he sought for the reliefs originally belonged to S.P.G. Mission, that a sale deed was executed by the Mission through its power of attorney in favour of one Rangasamy Naidu on 26.3.1941 under Ex.A-1 in respect of the entire property; that the appellant’s mother Gnanammal purchased the property under a sale deed Ex.A-2 dated 3.10.1957 and the suit property was allotted to the appellant in a registered partition dated 16.6.1981 as found under Ex.A-3; and that the property was originally under the possession and enjoyment of the mission, and subsequently by Rangasamy Naidu and on purchase, by Gnanammal and from the time of partition in 1961, by the appellant all along. It is also further contended that the said Rangasamy Naidu executed a sale deed on 3.10.1957 under Ex.A-4 in respect of the remaining vacant site measuring 28 feet east west and 52 feet north south, to one Chinniah Pillai and the said Chinniah Pillai conveyed the said piece of land in favour of the appellant under Ex.A-5 dated 22.3.1982 and thus the appellant has been in possession and enjoyment of the suit property. What was contended by the respondents in both the Courts below and equally here also is that the vacant site measuring 20 1/2 feet east west and 63 feet north south belonged to the first defendant and his wife; that the vacant site originally belonged to the husband of Pappammal who bequeathed the same in favour of his wife Papammal; that Papammal executed a sale deed in favour of Venkatachalam Chettiar on 14.6.1937 under Ex.B-1; that the son of Venkatachalam Chettiar by name Rajagopal executed a sale deed in favour of CTK Chidambaram Chettiar in respect of the said vacant site and other properties; that the father of the first defendant purchased the immovable properties including the vacant sit measuring 20 1/2 feet x 61 feet by a sale deed dated 13.11.1957 under Ex.B-2 and thus the first defendant all along and that the appellant had no title, right or possession in the suit property at any point of time. In order to prove his title, the appellant has examined himself as P.W.1 and has examined Rangasamy Naidu, the vendor of Gnanammal as P.W.2 and has relied on Exs.A-1 to A-18. In order to substantiate their case, the defendants have examined the first defendant in O.S. No.652 of 1982 as D.W.1 and the plaintiff in O.S. No.714 of 1982 as D.W.2 and one Arumuga Chettiar as D.W.3 and they have relied on Exs.B-1 to B-18. An Advocate commissioner was appointed to inspect the suit property and he has filed his report and plan, marked as Exs.C-1 and C-2. As pointed out earlier, the parties have put forth their rival claims of title to the suit property by seeking declaration of title and for consequential injunction. 18. As seen from the submissions made by the learned counsel for the respective parties, the area of controversy was not only in respect of the title to the property, but also as to the possession and enjoyment of the property. 18. As seen from the submissions made by the learned counsel for the respective parties, the area of controversy was not only in respect of the title to the property, but also as to the possession and enjoyment of the property. In pursuance of a power of attorney executed in his favour under Ex.A-9 one Edward Hari Mansfiled Wolter executed a sale deed in favour of P.W.2 Rangasamy Naidu on 26.3.1941, which was marked as Ex.A-1. The said Rangasamy Naidu, the vendor of the property to Gnanammal, the mother of the appellant herein has categorically deposed that he did not know his vendor viz., the S.P.G. Mission was entitled to the suit property. In order to show that the property originally belonged to the Mission or was under its direct enjoyment and possession, no documentary evidence was placed. No one representing the Mission was also examined. It is not stated by the vendor P.W.2 Rangasamy Naidu that any document of title was handed over by the representative of the Mission at the time of the sale in his favour. But on the contrary he would say that he had no idea how the Mission got the property. Thus without any hesitation it can be stated that no material is available to show that the origin of title was with the Mission, whose power of attorney conveyed the property to Rangasamy Naidu. 19. As seen from Ex.A-1 sale deed in favour of Rangasamy Naidu, it was executed on 26.3.1941 by the power of attorney under Ex.A-9. A perusal of Ex.B-16 would clearly show that it was a complaint made by Venkatachalam Chettiar, father of Papammal complaining about the attempted encroachment by Rangasamy Naidu and others. It is pertinent to note that Ex.B-16 complaint was given by the father of Pappammal on 14.4.1944, raising objections against the attempted encroachment. This would be indicative of the fact that his Rangasamy Naidu even without obtaining possession of the property has executed Ex.A-2 sale deed in favour of Gnanammal on 3.10.1957. It remains to be stated that even in Ex.A-3 partition deed under which the suit property as allotted to the appellant, it was shown only as vacant site. This would be indicative of the fact that his Rangasamy Naidu even without obtaining possession of the property has executed Ex.A-2 sale deed in favour of Gnanammal on 3.10.1957. It remains to be stated that even in Ex.A-3 partition deed under which the suit property as allotted to the appellant, it was shown only as vacant site. Relying on Ex.A-6 building permit, it was contended by the appellant’s side that the appellant as the owner of the land in question applied for permit for construction of his new building and it was accordingly granted in his favour. A perusal of Ex.A-6 would reveal that the permit was granted on 24.2.1983, which was subsequent to the institution of the suit in the year 1982. The Court is of the view that this cannot be a piece of evidence which would be relied on by the appellant to prove his plea of possession. From all the above, without any hesitation it can be stated that the appellant has miserably failed to prove the title or possession of either the Mission or Rangasamy Naidu or on purchase by Gnanammal or by he appellant prior to the filing of the suit. 20. Claiming title to the suit property, the first defendant was examined as D.W.1 and one Shenbagavalliammal the plaintiff in O.S. No.714 of 1982 was examined as D.W.2. According to them, the vacant site measuring 20 1/2 feet east west and 61 feet north south originally belonged to Packrisamy Chettiar, who executed a will in favour of his wife Pappammal in the year 1932 as found under Ex.B-15. A perusal of Ex.B-15, dated 26.3.1932 would reveal that the said Packrisamy Chettiar has bequeathed not only the said vacant site but also number of properties in favour of his wife Pappammal, who in turn executed a sale deed in favour of Venkatachalam Chettiar under Ex.B-1 on 14.6.1937. It is pertinent to point out that it was this Venkatachalam Chettiar who complained of the attempted encroachment of Rangasamy Naidu under Ex.B-16. This would be pointing to the fact that as per the sale deed executed by Pappammal, Venkatachalam Chettiar got possession of the suit property. It is pertinent to point out that it was this Venkatachalam Chettiar who complained of the attempted encroachment of Rangasamy Naidu under Ex.B-16. This would be pointing to the fact that as per the sale deed executed by Pappammal, Venkatachalam Chettiar got possession of the suit property. The so of Venkatachalam Chettiar viz., Rajagopal has conveyed the vacant site and other properties under a document dated 16.3.1956 in favour of one Chidambaram Chettiar, who in turn sold the same to to the first defendant’s father on 13.11.1957 under Ex.B-2. All the above facts have been spoken toby D.W.2 Shenbagavalliammal the daughter of Pappammal. The witness has also further added that excepting 20 1/2 feet east west and 63 feet north south conveyed by her daughter, the remaining area measuring 38 x 50 feet was under the direct possession and enjoyment of Pappammal and on her death as the heir of her mother, she has been in direct possession of the same. It could also be seen from Ex.B-3 settlement deed that the said Chinnasamy Chettiar, father of the first defendant has settled the property purchased by him as above, wherein out of 20 1/2 feet he has settled 10 1/4 to the first defendant and the remaining 10 1/4 to his brother. Under Ex.B-4 the brother of the first defendant has conveyed his share in favour of the first defendants’ mother-in-law, who bequeathed the same in favour of their daughter viz., the wife of the first defendant. Thus from the oral and documentary evidence adduced above, it could be seen that Pappammal has conveyed the vacant site measuring 20 feet x 63 feet on the west while she retained the remaining part on the east which came to the hands of D.W.2. At this juncture the learned senior counsel for the remaining part on the east which came to the hands of D.W.2. At this juncture the learned senior counsel for the appellant would urge that even assuming that there is no documentary evidence to prove the title of the original owner viz., the Mission, no document is filed by the respondents to prove that the said Packrisamy Chettiar who executed the Will under Ex.B-15, had title to the property as urged by them. True it is the respondents have not produced any documentary evidence to prove that Packrisamy Chettiar who executing a Will in the year 1932 under Ex.B-15 had title in respect of the property, what be bequeathed under the Will. 21. It would be evident from Ex.B-8 a certified copy of the decree made by the learned District Munsif in O.S. No.705 of 1957, that the first defendant’s father Chinnasamy Chettiar filed the said suit for permanent injunction against Thiruvengadam Chettiar and three others to restrain them from interfering with his peaceful possession and enjoyment of the property and that the said suit ended in a compromise wherein the defendants therein recognising the title of Chinnasamy Chettiar have given an undertaking not to interfere with the possession of Chinnasamy Chettiar. The report and the plan filed by the Commissioner in that suit have been marked as Exs.B-6 and B-7 respectively. It is pertinent to point out that subsequent to the disposal of the said suit in O.S. No.705 of 1997, the said Chinnasamy Chettiar has executed Ex.B-3 settlement deed in favour of his two sons viz., the first defendant and his brother. The documentary evidence adduced by the respondents as above would be pointing to the possession and enjoyment of Chinnasamy Chettiar pursuant to the sale deed executed in his favour in the year 1957, and pursuant to the settlement deed executed by him, the first defendant and his brother obtained possession in respect of their half share in the site and that the brother of the first defendant conveyed his half share to the mother-in-law of the first defendant under Ex.B-4, who in turn executed a will in favour of his daughter viz., the wife of the first defendant. The learned senior counsel for the appellant would urge that the decision made in O.S.No.705 of 1957 of the learned District Munsif would not be behind on the appellate since he was not a party therein, and apart from that, that was a suit for bare injunction. Relying on a decision of the Hon’ble Apex Court reported in Tirumala Tirupathi Devasthanams v. K.M. Krishnaiah, (1998)3 M.L.J. (S.C.) 49: A.I.R. 1998 S.C. 1132, the learned counsel for the respondents would answer the above contention by stating that though the appellant was not a party to the said proceedings, the said document was admissible in evidence. Relying on a decision of the Hon’ble Apex Court reported in Tirumala Tirupathi Devasthanams v. K.M. Krishnaiah, (1998)3 M.L.J. (S.C.) 49: A.I.R. 1998 S.C. 1132, the learned counsel for the respondents would answer the above contention by stating that though the appellant was not a party to the said proceedings, the said document was admissible in evidence. This contention of the appellant’s side has got to be rejected i view of the judgment rendered by the Hon’ble Apex Court in a case referred supra nd relied on by the respondents. The compromise decree made in 7 as evidence by Ex.B-8 was admissible in evidence, though the appellant was not a party. The Court is of the view that the compromise decree entered into between the parties in O.S. No.705 of 1957 would be indicative of the possession of the suit property. 22. The next contention that was urged by the learned senior counsel for the appellant was that the respondents even in the suits filed by them have sought for mandatory injunction for removal of the construction and the compound wall made by the appellant in the suit property and the same would be an admission of the appellant’s possession of the suit property by the respondents. This contention cannot be countenanced, in view of the specific pleading of the respondents, they have specifically averred that the appellant and one Perumal Chettiar made trespass into the suit property and commenced the construction of a compound wall to a height of 1 1/2 feet which necessitated the respondents to file O.S. No.734 of 1982 on the file of the District Munsif, Kulithalai for a mandatory injunction directing the appellant and Perumal Chettiar for the removal of the said illegal construction; and that a commissioner was appointed, who visited the property injunction order by the Court, the appellant proceeded with the construction and raised the wall to a height of 8 feet. The Commissioner’s report under Ex.C-1 reads: “5. On the date of my inspection on 27.8.1982 the second defendant had construed granite stone well to the height of 1 feet 6 inches at the southern extremity and 2 feet 8 inches at the northern extremity from ground level, and brick wall to the height 2 feet 6 inches on the granite stone wall along the entire H.E. line. On the date of my inspection on 27.8.1982 the second defendant had construed granite stone well to the height of 1 feet 6 inches at the southern extremity and 2 feet 8 inches at the northern extremity from ground level, and brick wall to the height 2 feet 6 inches on the granite stone wall along the entire H.E. line. The granite stone wall and brick wall were unplastered and these walls would have been put just one or two days back. At the time of my inspection, masons and labourers were proceeding with construction work along H.E line. The construction materials such as bricks, well sized granite stones, soils, stands, etc. were lying heaped in the suit site. 6. On 2.9.1982, this Hon’ble Court, again directed me to visit the suit site and note down further constructions carried on by the second defendant in violation of Court order. In difference to such directions, I visited the suit sit eon 3.9.1982 and found further constructions as given below. 7. A granite stone wall has been constructed to the height of 4 feet from ground level and to the length of 18 feet 10 inches along C.D. line. Two brick Pillars have been constructed on the granite stone wall along C.D. line to the height of 7 feet each. After full constructions, the height of brick wall measures 8 feet 8 inches throughout along HE line and the length of brick wall along E.P. line measures 11 feet. The second defendant has construed a brick wall along KL line to the height of 8 feet from ground level and a door way has been provided therein.” As seen from the pleadings, the respondents have filed a suit for permanent injunction to restrain the defendant/ appellant and Perumal Chettiar from interfering with their possession and further grant of a mandatory injunction directing them to remove the unlawful construction made in the suit property. From the above part of the commissioner’s report, it would be clear that despite an order of interim injunction order, the appellant has proceeded with the unlawful construction in between the two visits made by the commissioner. From the above part of the commissioner’s report, it would be clear that despite an order of interim injunction order, the appellant has proceeded with the unlawful construction in between the two visits made by the commissioner. Under such circumstances the appellant whose acts were complained of by the respondents by way of a suit and who proceeded with the unlawful and illegal construction, despite an order of the Court, cannot be permitted to say that the construction found therein would show his lawful possession. Under the aforestated circumstances, without any hesitation whatsoever it can be found that the appellant though was not in possession has made an unlawful attempt to trespass into the suit property, which was restrained by the respondent by an order of the Court. 23. The last contention that was raised by the appellant’s side is that both the Courts below were not correct in rejecting the claim of the appellant for the prayer of injunction in view of the better title of the appellant to the suit property than the opposite party. The Court is of the considered view that there is no merit in this contention. Neither the predecessor in interest was in possession of the property at the time of the suit. Needless to say that the burden was on the appellant to prove that he has got a better title, but he has not discharged the same in any way. As rightly pointed out by the Courts below, the predecessor of the appellant or the appellant was never in possession and enjoyment of the suit property. But on the other hand the respondents and the plaintiffs in that suit were in possession and enjoyment of the suit property. In view of the available evidence both the Courts were perfectly correct in coming to the conclusion that the appellant had no possession, but the respondents were in possession. In Sarkar ‘On Evidence’- 14th Edition (1993), the learned author has said thus at page 1448: “...A person shown to be in possession of property should be presumed to be owner of it. In Sarkar ‘On Evidence’- 14th Edition (1993), the learned author has said thus at page 1448: “...A person shown to be in possession of property should be presumed to be owner of it. Possession is evidence of title and gives a good title against a wrongdoer; but a person who has not had possession, cannot, without proof of title, turn others put of possession even though that they may have no title; for possession is a good title against any one who cannot prove a better..... When a person makes a costly ‘building on a land and remains in possession for a considerable time, the presumption is that he had a right to build on it in preference to one who is the ostensible owner..... Possession is evidence of title, and if a plaintiff proves that he had possession and that the possession had been forcibly disturbed by defendant, he makes out a prima facie title which it is for the defendant to rebut. Person in lawful possession need not prove his title in a suit for injunction against a trespasser..... The mere fact that the defendant claimed rent could not defeat the presumption of title arising in plaintiff’s possession when the suit was instituted.... Possession need not be long in order to be some evidence of title...... Evidence of possession and enjoyment for a series of years is of itself, if unanswered, cogent evidence of title....” It has to be stated that in the instant case neither the appellant nor the respondents have proved the origin of title. The appellant has miserably failed to prove the possession of the property either by his vendors or by himself either in the past or at the time of filing of the suit. On the contrary the respondents by sufficient documentary evidence have proved the long possession and enjoyment of the property. Under the stated circumstances without any hesitation it can be held that the respondents have proved their possessory title to the suit property, which the appellant has failed. On the contrary the respondents by sufficient documentary evidence have proved the long possession and enjoyment of the property. Under the stated circumstances without any hesitation it can be held that the respondents have proved their possessory title to the suit property, which the appellant has failed. The Court is of the view that the civil action filed by the appellant seeking the relief of declaration and injunction cannot also be sustained in law in view of the settled Proposition of law that when a person who was found to be out of possession of the disputed property had not sought for recovery of possession as a consequential relief for the main relief of declaration, the suit could not be maintained. In the instant case, the appellant who was not in possession of the suit property, has filed a suit for declaration and injunction instead of the prayer for recovery of possession, and hence the suit filed by him is not maintainable. On the other hand the respondents who are found to be in possession of the suit property could well maintain a suit for declaration, permanent injunction and for mandatory injunction for the removal of the unlawful construction. Thus both the Courts below were perfectly correct in dismissing the suit in O.S. No.652 of 1982 and decreeing the suits in O.S. Nos.665 of 1982 and 714 of 1982. There is nothing to interfere in the judgment of the lower appellate Court. The Court is of the view that all the three second appeals are without merits and the same are liable to be dismissed. 24. In the result, all the three second appeals in S.A. Nos.978, 1195 and 1236 of 1990 are dismissed. The judgment and decree of the lower appellate Court are confirmed. The parties shall bear their costs.