JUDGMENT (Prayer: Second Appeal is filed under Section 100 of C.P.C, to set aside the judgment and decree dated 12.03.2021 made in A.S.No.56 of 2018 on the file of the learned Additional Subordinate Court, Pudukkottai reversing the judgment and decree passed in O.S.No.15 of 2007 dated 05.08.2016 on the file of the District Munsif Court, Pudukkottai and allow the second appeal.) 1. The defendant is the appellant. 2. The plaintiff filed O.S.No.15 of 2007 before the District Munsif Court, Pudukkottai for recovery of possession of the suit schedule property. The suit was dismissed by the trial Court. The plaintiff filed A.S.No.56 of 2018 before the Additional Subordinate Court, Pudukkottai. The learned Subordinate Judge was pleased to allow the appeal and decreed the suit as prayed for. As against the same, the defendant has filed the above second appeal. 3. The plaintiff had contended that the suit schedule property and other adjacent properties are the ancestral properties of one Vasudevan, S/o.Arumugapathar. The said Vasedevan was allotted the suit schedule property as per the partition decree in O.S.No.82 of 1950 on the file of Sub Court, Tanjore. According to the plaintiff, the defendant was a tenant under the said Vasudevan from the year 1993 onwards for a monthly rent of Rs.150/-. The said Vasudevan had borrowed a sum of Rs.9,000/- from the defendant and the defendant had been in possession and enjoyment of the suit schedule property in lieu of interest for the said said amount of Rs.9,000/-. To secure the repayment of the said Rs.9,000/-, the said Vasudevan had obtained a document on 07.05.1995. Though the Vasudevan was ready to repay the sum of Rs.9,000/- and insisted the defendant to deliver back the possession, the defendant refused to do so. 4. The plaintiff further contended that the defendant had instituted O.S.No.436 of 2004 before the Principal District Munsif Court, Pudukottai for the relief of permanent injunction as against the said Vasudevan and the husband of this plaintiff in respect of the suit schedule property claiming that he has acquired title by adverse possession from the said Vasudevan. In the said suit, the defendant had further pleaded that he is in possession of the suit schedule property originally as a lessee but later became an usufructuary mortgagee. 5. In the said suit, the defendant had further pleaded that he is in possession of the suit schedule property originally as a lessee but later became an usufructuary mortgagee. 5. The trial Court in O.S.No.436 of 2004 found that the said Vasudevan is the owner of the suit schedule property and the defendant is in possession of the same based upon an unregistered Othi deed. Since the defendant is in settled possession, the trial Court granted a decree in favour of the defendant herein (plaintiff in the said suit) that he should not be evicted unless by due process of law. The said decree was passed on 07.04.2006. 6. The present plaintiff has purchased the suit schedule property from the said Vasudevan on 26.10.2004 under Exhibit A4 sale deed. Based upon the said sale deed, the plaintiff had filed the suit for recovery of possession from the defendant. 7. The defendant filed a written statement disputing the title of the plaintiff's vendor namely Vasudevan. The defendant further contended that the observation made in O.S.No.436 of 2004 as against the present defendant will not operate as res judicata. He further contended that the observation made in O.S.No. 436 of 2004 with regard to the legal character of the person in possession of the suit schedule properties are not binding upon the defendant. The defendant further contended that Exhibit A1 othi deed is an unregistered document and the same is inadmissible in evidence. Hence, he contended that no right would flow through the said document. Therefore, the present suit for recovery of possession is not maintainable. Hence, he prayed for dismissal of the suit. 8. The trial Court after considering the oral and documentary evidence, arrived at a finding that the suit schedule properties are natham properties. The trial Court also arrived at a finding that the title of the plaintiff's vendor namely Vasudevan Pathar has already been decided in O.S.No.436 of 2004. Hence, there is no dispute that the plaintiff's vendor is the absolute owner of the suit schedule properties. The trial Court also arrived at a finding that since Exhibit A1 othi deed is an unregistered document, the same is inadmissible in evidence. Since there is no reference about Exhibit A1 othi deed in the plaint and the said document is inadmissible in evidence, the plaintiff is not entitled to a decree for recovery of possession. The trial Court also arrived at a finding that since Exhibit A1 othi deed is an unregistered document, the same is inadmissible in evidence. Since there is no reference about Exhibit A1 othi deed in the plaint and the said document is inadmissible in evidence, the plaintiff is not entitled to a decree for recovery of possession. Based upon the said findings, the trial Court dismissed the suit. 9. The First Appellate Court held that the decree for permanent injunction granted in favour of the defendant in the present suit in O.S.No.234 of 2004, was only a qualified injunction not to be evicted unless by due process of law. The First Appellate Court further held that the title of the plaintiff's vendor has been confirmed in the said suit itself. The First Appellate Court further found that the right of the plaintiff to recover possession from the defendant is not traceable to unregistered Exhibit A1 othi deed, but it is traceable only to the sale deed of the plaintiff marked as Exhibit A4 in the suit. The First Appellate Court further held that the defendant is estopped from contending that he is disputing Exhibit A1 othi deed because the said document was marked only on the side of the defendant ( as plaintiff in O.S.No.436 of 2004) as Exhibit A5. Even as per recital in Exhibit A1 othi deed, it is an ancestral property of the plaintiff's vendor. Only based upon the said document, the present plaintiff has taken possession of the suit schedule property admitting the ownership of the Vasudevan Pathar. 10. The First Appellate Court further found that the defendant had originally entered into the possession of the property as tenant admitting the title of Vasudevan. Hence, thereafter, he cannot dispute the title of his landlord which would be in violation of Section 116 of Indian Evidence Act. Based upon the said finding, the First Appellate Court decreed the suit for recovery of possession with a direction to the plaintiff to pay a sum of Rs.9,000/- to the defendant within a period of one month. As against the said judgment, the present second appeal has been filed by the defendant. 11. The learned counsel for the appellant contended that the plaintiff has not established his title to the suit schedule property. The title of the plaintiff has been specifically disputed in the written statement. As against the said judgment, the present second appeal has been filed by the defendant. 11. The learned counsel for the appellant contended that the plaintiff has not established his title to the suit schedule property. The title of the plaintiff has been specifically disputed in the written statement. In such an event, the suit for recovery of possession without a prayer for declaration to title is not maintainable. The learned counsel for the appellant further contended that he is not in possession of the suit schedule property as a mortgagee. Exhibit A1 othi deed is an unstamped document and hence, the plaintiff cannot derive any title under the said document. The learned counsel for the appellant further contended that he is not admitting the genuineness, validity and enforceability of Exhibit A1 Othi deed. 12. The learned counsel for the appellant further contended that the First Appellate Court erred in holding that the title of the plaintiff's vendor has already been decided in the previous suit. According to the learned counsel for the appellant that O.S.No.436 of 2004 is only a permanent injunction suit and any observation made therein with regard to the title of the suit property is only incidental and hence, the same would not operate as res judicata. 13. The learned counsel for the appellant further contended that when the observation in O.S.No.436 of 2004 is not coming to the help of the plaintiff, the plaintiff has to establish her title independently in the present suit to seek a prayer for recovery of possession. Since there is no prayer for declaration of title, present suit is not maintainable. He further contended that at no point of time, the defendant has admitted title of the plaintiff or his vendor. Hence, the findings of the First Appellate Court that the defendant has admitted the title of the plaintiff is perverse. The learned counsel for the appellant further contended that the First Appellate Court was not right in invoking Section 116 of Indian Evidence Act for arriving at a finding that the defendant is estopped from disputing the title of the plaintiff. When the plaintiff has not established that the defendant is a tenant, the question of invoking Section 116 of Indian Evidence Act does not arise. 14. When the plaintiff has not established that the defendant is a tenant, the question of invoking Section 116 of Indian Evidence Act does not arise. 14. The learned counsel for the appellant further contended that when the plaintiff's vendor has not permitted the plaintiff to recover possession of the suit schedule property, the present suit is not maintainable. He further contended that the suit schedule properties are Government poromboke and hence, the present suit for recovery of possession without impleading the Government is bad for non-joinder of necessary parties. Hence, he prayed for allowing the second appeal. 15. Per contra, the learned counsel for the respondent contended that O.S.No.436 of 2004, the present defendant had contended that the suit schedule property is only a Government natham and hence, she cannot turn around and contend that it is a Government poromboke. The learned counsel for the respondent further contended that the defendant herein had marked the unregistered othi deed as Exhibit A5 in O.S.No.436 of 2004 and contended that he is in possession of the suit schedule property only based upon the said unregistered othi deed. Now, he cannot turn around and contend that the said document is invalid and no right will flow through the said document. 16. The learned counsel for the respondent further contended that the defendant had disputed the title of the plaintiff's vendor in O.S.No.436 of 2004. However, the trial Court in para No.13 of the said judgment had arrived at a conclusion that the plaintiff's vendor is the owner of the suit schedule property and the trial Court had also arrived at a finding that the plaintiff's vendor has mortgaged the property and the plaintiff is in possession of the property only as a usufructuary mortgagee. Since the defendant was in settled possession, the trial court had granted a qualified decree for permanent injunction restraining the plaintiff's vendor from evicting him unless by due process of law. The defendant herein has not challenged the said judgment and its finding. Hence, the said judgment would operate as res judicata with regard to the title of the suit schedule property. The learned counsel for the respondent further contended that in a suit for permanent injunction, the plaintiff herein had disputed the title of the plaintiff's vendor. Hence, the trial Court had gone into the issue and ultimately decided the title in favour of the present plaintiff's vendor. The learned counsel for the respondent further contended that in a suit for permanent injunction, the plaintiff herein had disputed the title of the plaintiff's vendor. Hence, the trial Court had gone into the issue and ultimately decided the title in favour of the present plaintiff's vendor. The said finding on the title would operate as res judicata. Hence, he prayed for dismissal of the second appeal. 17. I have considered the submissions made on either side. 18. The defendant herein had disputed the title of the plaintiff and his vendor by contending that the suit schedule properties are natham properties and the defendant is in possession of the same for the past two decades. The same contention was raised by the present defendant as plaintiff in O.S.No.436 of 2004. The trial Court after elaborate discussion had arrived at a finding that the plaintiff's vendor alone is the title holder of the suit schedule property. The trial Court had also found that the present defendant's possession is only traceable to an unregistered othi deed. Since the defendant herein was in settled position, the trial court had granted a qualified decree for permanent injunction that he should not be evicted unless by due process of law. Hence, it is evident that the title of the suit schedule property has been decided in O.S.No. 436 of 2004 in favour of the plaintiff's vendor. 19. The learned counsel for the appellant had contended that the defendant is in possession of the suit schedule property for more two decades. That apart, the present plaintiff is claiming right of recovery of possession on the basis of Exhibit A1 othi deed which is an unregistered and unstamped document. According to the learned counsel for the appellant, such a document is inadmissible in evidence and hence, the plaintiff would not be entitled to a decree for recovery of possession. 20. A careful perusal of the plaint averments would show that the plaintiff is claiming right to recover possession of the suit schedule property not based upon Exhibit A1 othi deed, but based upon his sale deed from Vasudevan under Exhibit A4. Only the defendant was relying upon Exhibit A1 othi deed to protect his possession claiming that he is in possession pursuant to Exhibit A1 unregistered othi deed. 21. Only the defendant was relying upon Exhibit A1 othi deed to protect his possession claiming that he is in possession pursuant to Exhibit A1 unregistered othi deed. 21. The title of the plaintiff's vendor has been confirmed in the judgment in O.S.No.436 of 2004 which has been marked as Exhibit A2 in the present suit. The plaintiff has purchased the suit schedule property from the said Vasudevan under Exhibit A4 registered sale deed. Hence, the plaintiff has established his title to the suit schedule property. 22. When the plaintiff has established his title to the suit schedule property unless the defendant pleads and proves his right to be in possession of the suit schedule property, the plaintiff will be entitled to a decree for recovery of possession. In the present case, the defendant had admitted that he come into the possession of the property after payment of Rs.9,000/- under Exhibit A1 to the plaintiff's vendor. Hence, his possession is only traceable to Exhibit A1 unregistered document. When the plaintiff repays the said amount of Rs.9,000/-, the defendant is duty bound to hand over the possession to the plaintiff. The defendant has not pleaded adverse possession as against the plaintiff. 23. The First Appellate Court has rightly passed a decree directing the plaintiff to pay a sum of Rs.9,000/- to the defendant within a period of one month and on receipt of the said amount, the defendant has to execute a proper document. Thereafter, the defendant has to hand over the possession of the suit schedule property to the plaintiff within one month from the receipt of Rs.9,000/-. The decree of the First Appellate Court will disclose that on payment of the suit amount, the defendant has no right whatsoever to be in possession of the suit schedule property. When the plaintiff has established her title and the defendant has not established his right to be possession of the suit schedule property, the decree passed by the First Appellate Court for recovery of possession in favour of the plaintiff, does not warrant any interference from this Court. 24. In view of the above said discussion, I do not find any question of law much less a substantial question of law that arises for consideration in the present Second Appeal. The Second Appeal stands dismissed at the admission stage itself. No costs. Consequently, connected miscellaneous petition is closed.