JUDGMENT : (Prayer: Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree of the Principal District Munsif, A.S. No.55/2004, dated 19.09.2006 confirming the judgment and decree of the Principal District Munsif, Karaikal in O.S. No.205 of 2002, dated 13.08.2004.) (Heard Video Conference) 1. This Second Appeal has been filed challenging the concurrent findings of the Courts below. 2. The appellant is the defendant in the suit O.S. No.205 of 2002 on the file of the Principal District Munsif at Karaikal and the respondent is the plaintiff. 3. Henceforth, the respective parties are described as per their litigative status in the suit. 4. The plaintiff filed the suit against the defendant for permanent injunction restraining them from interfering with his possession and enjoyment of the suit schedule property. 5. According to the plaintiff, he is in possession of the suit schedule property measuring 220 kuzhies, pursuant to a written agreement of sale for one half of the property and an oral agreement of sale for the other half of the property. 6. According to the plaintiff under a partition deed of the year 1896, Ramu Pillai was allotted 110 kuzhies; Ramasamy was allotted 55 kuzhies and Radhakrishnan was allotted 55 kuzhies. 7. It is the case of the plaintiff that under an oral agreement, dated 07.01.1976, he was put in possession of 110 kuzhies by Ramadoss, who according to him is the descendant of Ramu Pillai. 8. The plaintiff has also pleaded in the plaint that under a written agreement of sale, dated 13.01.1976, Ramasamy had agreed to sell 55 kuzhies and put him in possession of the said property. According to the plaintiff, he is in possession of the entire suit schedule property measuring 220 kuzhies. However, it is the case of the plaintiff that by mistake at the time of re-survey in the year 1974, the extent of 220 kuzhies, which is the suit schedule property was classified as a Government poromboke land. According to the plaintiff, the defendant by treating the suit schedule property as a burning ghat made an attempt to annexe the suit schedule property by putting a compound wall and only in such circumstances, he was constrained to file the subject suit. 9. However, it is the case of the defendant as seen from their written statement that the suit property is a Government property. 9. However, it is the case of the defendant as seen from their written statement that the suit property is a Government property. According to them, the suit property is protected with a compound wall on all four sides with a provision of pathway to go to Vannankulam for the public to perform their customary rites while cremating the dead bodies belonging to their families. 10. It is their case that right from the beginning the suit schedule property was classified only as a Government poromboke land. The defendant has also denied that the plaintiff is in possession of the suit schedule property. 11. Issues were framed by the Trial Court and after trial, the suit O.S. No.205 of 2002 was decreed in favour of the plaintiff by a judgment and decree dated 13.08.2004 passed by the Principal District Munsif Court, Karaikal in O.S. No.205 of 2002. 12. The Trial Court gave the following findings while decreeing the suit in favour of the plaintiff: a) Plaintiff has proved his title by way of six documents, which included the notorial partition of the year 1896, the sale agreement dated 13.01.1976 and the oral sale agreement dated 07.01.1976. b) During re-survey, the suit schedule property has been classified as a cremation centre. The said classification was done by the Government without notice to the Plaintiff. c) Plaintiff is right in claiming title and recovery of possession, since the defendant has forcibly evicted the Plaintiff. d) Defendant without waiting for outcome of re-survey dispute has constructed compound wall and forcibly evicted the Plaintiff. e) Re-survey R.S.No.113/5 corelates with 560 bis and 562 pt and the extent also tallies. But as per the revenue records, the extent differs. The title claimed under Exs.B2 and B3 is not valid. e) Plaintiff has established possession till re-survey and only in 2002, the suit schedule property has been wrongly described as a Government poromboke. f) The suit has been filed within the period of limitation. g) The plaintiff is legally barred to file civil suit in view of Section 12 of Pondicherry Survey and Boundaries Act, 1967. e) Plaintiff has established possession till re-survey and only in 2002, the suit schedule property has been wrongly described as a Government poromboke. f) The suit has been filed within the period of limitation. g) The plaintiff is legally barred to file civil suit in view of Section 12 of Pondicherry Survey and Boundaries Act, 1967. h) Since, the suit has not been filed within a period of three years as per Section 12 of the Survey and Boundaries Act, any person aggrieved by determination of any Boundary under Sections 8, 9 and 10 is subject to Limitation Act and hence, the suit has been filed within a period of three years. In the case on hand, the said procedure has not been adopted. The reasons for the delay in filing the suit has been satisfactorily explained. 13. Aggrieved by the judgment and decree dated 13.08.2004 passed in O.S. No.205 of 2002, the defendant in the suit preferred a regular appeal before the Additional District Court, Pondicherry at Karaikal in A.S. No.55 of 2004. 14. The Lower Appellate Court confirmed the findings of the Trial Court and dismissed the appeal by its judgment and decree dated 19.09.2006. While dismissing the appeal, the Lower Appellate Court has made the following observations/findings: a) In the partition deed of the year 1896 (Ex.A1), at Sl. No.19, it is described as Vannankulathu Punjai, so the lands measuring 108 kuzhies is in possession of families and therefore, the said land is a private land and not a Government poromboke land as claimed by the defendant. b) As per Ex.B2-Settlement Register, the re-survey was effected only in the year 2002, when re-survey Number R.S. No.113/5, which is the suit schedule property was classified as Government poromboke. c) Under Ex.B3, there are no particulars as to whether the subject land is a Government poromboke or not. The defendant has not filed any document to co-relate the numbers in re-survey. d) The Trial Court rightly concluded re-survey settlements were effected only in the year 2002 and has rightly classified the suit schedule property as poromboke. e) There is evidence of remains of a house that the suit property was used once for a dwelling place or it might be a cow shed. f) The suit schedule was under somebody’s cultivation and those persons planted trees and shrubs. e) There is evidence of remains of a house that the suit property was used once for a dwelling place or it might be a cow shed. f) The suit schedule was under somebody’s cultivation and those persons planted trees and shrubs. g) The Trial Court has concluded that the area claimed by the defendant is not comprised within four boundaries given by the plaintiff. h) In the year 2002, after re-survey, the Government classified the land which was in possession and enjoyment of the plaintiff as a cremation ground. i) Exs.A2, A3, A4 are only sale agreements and it need not be registered. It can be used for collateral purpose of proving possession. j) There is no adangal copy or kist receipt filed by plaintiff to show that land has been in his possession from the year 1976, when the alleged agreements of sale and the oral agreement were set to have been executed in his favour. However, since collateral evidence is available to prove the land has been in possession of the plaintiff and their vendors injunction was rightly granted by the trial Court. l) Hence, even in the absence of any document, plaintiff has demonstrated that he has been in possession of the suit schedule property for a long time. m) The plaintiff alleges that he has not derived the title from his vendors, but he entered into agreements for sale and under the said four agreements he was put in possession of the suit schedule property. The title of the previous owners is not disputed. 15. Aggrieved by the findings of the Lower Appellate Court and the dismissal of the appeal on 19.09.2006 in A.S. No.55 of 2004, this Second Appeal has been filed by the defendant in the suit. 16. This Court while admitting the Second Appeal on 10.09.2007 formulated the following substantial questions of law: i) When a suit is barred by limitation can the same be got over by saying that there are acceptable reasons for the delay? ii) Are not the finding of the appellate Court on the question of re-survey and delay, contrary to the pleadings and evidence and therefore perverse? 17. Heard Ms.Amritha Sarayoo, learned counsel for the appellant and Mr.J.Ram, learned counsel for the respondent and perused the materials and evidence available on record. Submissions of the learned counsels: 18. ii) Are not the finding of the appellate Court on the question of re-survey and delay, contrary to the pleadings and evidence and therefore perverse? 17. Heard Ms.Amritha Sarayoo, learned counsel for the appellant and Mr.J.Ram, learned counsel for the respondent and perused the materials and evidence available on record. Submissions of the learned counsels: 18. The learned counsel for the appellant drew the attention of this Court to the pleadings contained in the plaint and she would submit that the plaintiff has himself admitted in paragraph 4 of the plaint that the re-survey of the lands was conducted by the Government in the year 1974, when the suit schedule property measuring 220 kuzhies was unilaterally classified as Government poromboke. Hence, she would submit that the suit O.S. No.205 of 2002 filed by the plaintiff is hopelessly barred by the law of limitation. 19. She then drew the attention of the Court to Section 12 of Pondicherry Survey and Boundaries Act, 1967 and would submit that as per the said Section, a suit will have to be filed within three years, but in the instant case, the suit has been filed after a lapse of almost 20 years and hence, it is barred by law of limitation. 20. She also drew the attention of this Court to the findings of the Trial Court in its judgment and decree dated 13.08.2004 passed in O.S. No.205 of 2002 and would submit that the Trial Court has erroneously given a finding that the reasons for delay in filing the suit has been satisfactorily explained. She would submit that Section 5 of the Limitation Act has no applicability for a suit and by total non application of mind, the Trial Court has given an erroneous finding that the delay for filing the suit has not been satisfactorily explained. 21. The learned counsel for the appellant then drew the attention of this Court to the findings of the Lower Appellate Court in its judgment and decree dated 19.09.2006 passed in A.S. No.55 of 2004 and submitted that the Lower Appellate Court has also erroneously concurred with the findings of the Trial Court by holding that the suit filed by the plaintiff is maintainable, even though the said suit was filed in the year 2002, though the re-survey even according to the plaintiff was conducted in the year 1974. 22. 22. The learned counsel for the appellant then submitted that the plaintiff has claimed possession of the suit schedule property measuring 220 kuzhies based on written agreements of sale, dated 13.01.1976 and 07.04.1976, which have been marked as Exs.A2 and A4 and an oral agreement of sale on 07.01.1976. 23. She drew the attention of this Court to Ex.A1, the partition deed of the year 1896 and would submit that under the said partition deed, there is no reference to any survey number and the partition deed also refers to some poromboke lands without describing them in detail. She would also submit that the partition deed refers to 54 kuzhies for Ramu Pillai and 54 kuzhies for Gopal Pillai without any survey number and for the remaining extent of 110 kuzhies, the plaintiff has not traced the title in the plaint. 24. She also drew the attention of this Court to Ex.A5, the sale receipt dated 07.01.1976 and would submit that the said sale receipt issued under the oral agreement dated 07.01.1976 was issued by Ramadoss and not the plaintiff (Arokiasamy). 25. She then drew the attention of this Court to Ex.A2, the sale agreement dated 13.01.1976 and would submit that even in the said agreement, the survey number for 55 kuzhies has not been mentioned. According to her, the agreement has also not been duly stamped as in the year 1975, the stamp duty required on a sale agreement was Rs.5/-, whereas Ex.A2 has been written on a 25 paise stamp paper. 26. The learned counsel for the appellant then drew the attention of this Court to the agreement of sale dated 07.04.1976, which has been marked as Ex.A4 and would submit that the said agreement is an invalid agreement, since it has not been properly stamped, but it has been typed on a plain paper. The said agreement pertains to 55 kuzhies. 27. She then drew the attention of this Court to the agreement of sale, dated 07.03.1979, which pertains to 110 kuzhies which has been marked as Ex.A3, which according to her is also an invalid agreement since the same has not been properly stamped as it is on a plain paper. 28. The said agreement pertains to 55 kuzhies. 27. She then drew the attention of this Court to the agreement of sale, dated 07.03.1979, which pertains to 110 kuzhies which has been marked as Ex.A3, which according to her is also an invalid agreement since the same has not been properly stamped as it is on a plain paper. 28. The learned counsel for the appellant would finally conclude her arguments by submitting that no documentary evidence has been produced by the plaintiff to prove his alleged possession by way of kist, Adangal or chitta. Hence, according to her, both the Courts below by total non application of mind to the evidence available on record have given a perverse finding against the appellant/defendant and has erroneously decreed the suit in favour of the plaintiff. 29. Per contra, the learned counsel for the respondent would submit that only in the year 2002, re-survey of lands are conducted by the Government and only in the said re-survey, the suit schedule property was classified as a cremation ground and therefore, the suit filed in the year 2002 is filed within the period of limitation. According to him, the Trial Court and the Lower Appellate Court has rightly held that the plaintiff has proved his possession through six documents, which were marked as Exs.A1 to A6. According to him, there was a boundary dispute between the parties and without waiting for the outcome of the boundary dispute, the defendant has constructed a compound wall and attempted to forcibly evict the plaintiff. 30. According to him, as seen from Exs.A1 to A6, the plaintiff has been in possession of the suit schedule property ever since 1976 and therefore, the Trial Court has rightly granted permanent injunction in his favour which has been rightly confirmed by the Lower Appellate Court. According to him, being in lawful possession, the plaintiff is entitled to protect his possession by the grant of permanent injunction. According to him, only based on materials and evidence placed on record, both the Courts below have held that the plaintiff is entitled for grant of a permanent injunction as sought for in the plaint. Discussion: 31. This is a classic case where interference by this Court under Section 100 CPC has become necessary for the following reasons:- a) The suit is hopelessly barred by law of limitation. Discussion: 31. This is a classic case where interference by this Court under Section 100 CPC has become necessary for the following reasons:- a) The suit is hopelessly barred by law of limitation. Even in the plaint filed in O.S. No.205 of 2002 in paragraph No.4, the plaintiff himself has admitted that re-survey was conducted by the Government only in the year 1974 and in the said re-survey the extent of 220 kuzhies, which is the suit schedule property was unilaterally classified as Government poromboke. The relevant portion of the plaint is extracted hereunder: “4. Whileso.......... But at the time of re-survey, the extent of 220 kuzhies agreed to be purchased by the plaintiff was also treated as Government Poromboke. Being adjacent to the burning ghat it was included in R.S.No.113/5 and classified as Government Poromboke. This was done without any notice to the plaintiff and ignoring his possessary title to the extent of 220 kuzhies. But resurvey appears to have been untaken by the Government in 1974 when the extent of 220 kuzhies was also unilaterally classified as Government Poromboke”. b) The submission of the learned counsel for the respondent that the cause of action for filing of the suit arose only in the year 2002 when the defendant started putting up a compound wall in the suit schedule property is not correct in view of the fact that as admitted by the plaintiff himself in the plaint that the suit schedule property was classified as Government poromboke land in the year 1974 itself. The construction of the compound wall by the defendant in the year 2002 will not save limitation as even in the year 1974, the suit schedule property was already classified as Government poromboke land, even according to the plaintiff. The suit has been filed only in the year 2003 after a lapse of almost 30 years from the year when the suit schedule property was classified as Government poromboke land. Hence, the suit is hopelessly barred by law of limitation. 32. The suit has been filed only in the year 2003 after a lapse of almost 30 years from the year when the suit schedule property was classified as Government poromboke land. Hence, the suit is hopelessly barred by law of limitation. 32. The Trial Court and the Lower Appellate Court by total non application of mind to the admitted fact as seen from the plaint that re-survey was conducted by the Government in the year 1974 and under the said re-survey the suit schedule property was already classified as Government poromboke land, but whereas, the suit was filed only in the year 2002 has erroneously held that the suit has been filed within the period of limitation by giving a perverse finding. Hence, the first substantial question of law formulated by this Court has to be answered in favour of the appellant/defendant. 33. With regard to the 2nd substantial question of law also it has to be answered only in favour of the appellant/defendant for the following reasons : a) the documents which have been marked as Exhibits before the Trial Court under which, the plaintiff claims possession of the suit schedule property are all unregistered and improperly stamped documents. The partition deed (Ex.A1) of the year 1896, by which the plaintiff traces the title pertains only to 110 kuzhies being allotted for Ramasamy. However, the suit schedule property measures an extent of 220 kuzhies. There is no parent document produced by the respondent/plaintiff for the remaining extent of 110 kuzhies. Further, the survey number is also not mentioned in item No.19 of the partition deed (Ex.A1) which pertains to 110 kuzhies which was allegedly agreed to be purchased by the plaintiff under the agreements of sale, which have been marked as Exhibits before the Trial Court. b) It is not known as to how Ramadoss, Ramasamy and Radhakrishnan, the persons who executed the respective agreements of sale viz., Exs.A2, A3 and A4 have become the owners of the respective properties as the title to the respective properties having the respective measurements have not been traced by the plaintiff in the plaint. As rightly contended by the learned counsel for the appellant, all the agreements are also not been duly stamped. 34. The oral agreement for a sale deed dated 07.01.1976 pertains to 110 kuzhies has also not been proved by the plaintiff. As rightly contended by the learned counsel for the appellant, all the agreements are also not been duly stamped. 34. The oral agreement for a sale deed dated 07.01.1976 pertains to 110 kuzhies has also not been proved by the plaintiff. It is not known as to why the sale deeds have not been executed in favour of the plaintiff for the respective extent of land as per the respective agreements, which have been marked as Exhibits before the Trial Court. All the agreements of Sale is of the year 1976, whereas the suit has been filed only in the year 2002. No documentary evidence has been produced by the plaintiff to prove his possession over the suit schedule property. As rightly contended by the learned counsel for the appellant, the plaintiff ought to have produced kist, adangal or chitta or other tax receipts to prove his possession, which he has failed to do so before the Trial Court. There are several discrepancies found in the documents which have been marked as Exhibits on the side of the plaintiff which will clearly reveal that even if assuming the plaintiff is in possession over the suit schedule property, the said possession will amount to illegal possession. The documents which are marked on the side of the appellant/defendant which were marked as Exs.B1 to B4 (B1, Survey sketch of the year 1974; B2, Survey settlement register, 1974; B3, Tableau Synoptique Buchet (Cremation Centre) and B4 Government G.O., dated 01.05.1990 would also reveal that the suit schedule property is a cremation ground ever since 1940. The Trial Court as well as the Lower Appellate Court by total non application of mind to the Exhibits have erroneously held the suit to be maintainable and have erroneously granted the relief of permanent injunction in favour of the plaintiff. 35. Under Section 35 of the Indian Stamp Act, an instrument not duly stamped is inadmissible in evidence. Admittedly, the agreements of sale which have been marked as Exhibits are not duly stamped and hence the same is inadmissible in evidence. The Trial Court as well as the Lower Appellate Court despite the inadmissibility in evidence of the agreements of sale which have been marked as exhibits on the side of the plaintiff has erroneously relied upon the same while deciding the case in favour of the plaintiff. 36. The Trial Court as well as the Lower Appellate Court despite the inadmissibility in evidence of the agreements of sale which have been marked as exhibits on the side of the plaintiff has erroneously relied upon the same while deciding the case in favour of the plaintiff. 36. The suit filed by the plaintiff is a frivolous and vexatious suit, hopelessly barred by law of limitation. However, the Courts below have by a perverse finding held the suit to be filed within time and have erroneously granted the relief of permanent injunction in favour of the plaintiff, even though no documentary evidence has been produced whatsoever by the plaintiff to prove his possession over the suit schedule property. Hence, this Court is constrained to exercise its power under Section 100 CPC by setting aside the judgment and decrees of the Courts below passed in O.S. No.205 of 2002, dated 13.08.2004 and A.S. No.55 of 2004, dated 19.09.2006 and accordingly, the Second Appeal is allowed. No costs. Consequently, connected miscellaneous petitions are closed.