Judgment:
Srinivasan, J.
1. Defendants 1 to 3 are the appellants before me. Respondents 1 and 2 filed the suit for declaration of the title of the 1st plaintiff to the suit property and also for a declaration that the 2nd plaintiff is a lessee of the 1st plaintiff in respect of the suit property under the registered lease deed dated 7.1.1975. They also prayed for an injunction restraining the defendants from interfering with their possession. Subsequently, they prayed for an alternative relief of recovery of possession by amending the plaint.
2. The case set out in the plaint is shortly as follows: The suit property originally belonged to Muthial Ammal, mother of the 1st plaintiff by purchase under a registered sale deed dated 25.4.1932 executed by one Ramaswamy Maistry. She was in possession till her death in or about 1950. On her death, the property devolved on the 1st plaintiff and as she was living away from the suit village after her marriage, the properties were entrusted to certain persons, who were cultivating the same on her behalf. The 2nd plaintiff started cultivation as a lessee under the 1st plaintiff from about 1969 under a machalika and on 7.1.1975 a lease deed was executed and registered in favour of the 2nd plaintiff. The 1st defendant is a close relation of the 1st plaintiff. Taking advantage of her absence in the village, the 1st defendant is claiming hostile title and setting up defendants 2 and 3 to claim permissive possession through him. Hence the suit instituted. The 4th defendant is impleaded only as a formal party and no relief is sought against him.
3. A written statement was filed by the 2nd defendant, who is said to be a lessee under the 1st defendant. The substance of the written statement is that the suit properties were purchased in the name of Muthial Ammal by her father Narasimha Maistry, benami for his benefit, and Muthial Ammal never had any right to the properties. She was never in possession. After the life-time of Narasimha Maistry and his brother, Muthial Ammal being the ostensible owner received certain amounts from the 1st defendant and sold the properties orally to the 1st defendant. The 1st defendant became the absolute owner onsuch oral sale. The defendants have been in possession ousting the rights of Muthial Ammal. Her right was extinguished by virtue of Section 27 of the Limitation Act. The relationship alleged between the parties is true. But the date of death of Muthial Ammal is not correctly given. The 2nd plaintiff, who is inimical, towards defendants 1 and 2 created false documents with the active assistance of the Village Munsif and several evil-mongers. The 2nd plaintiff obtained an injunction suppressing the facts and producing false documents. The defendants have been in possession for over forty years and thus they have prescribed title by adverse possession. Hence the suit should be dismissed.
4. Neither the 1st defendant nor the 3rd defendant filed any written statement. There is, however, an endorsement on the written statement filed by the 2nd defendant reading as follows: 'Defendants 1 and 3 adopt the statement of the defendant'. There is no signature below the endorsement. There is nothing on record to show as to who made the endorsement. If defendants 1 and 3 wanted to adopt the written statement of the 2nd defendant, they should have made the endorsement themselves, orat least counsel appearing for them should have signed the endorsement to show that the endorsement was made on behalf of the parties. The unsigned endorsement without any date there under does not establish that defendants 1 and 3 adopted the written statement of the 2nd defendant. However, there is a sentence in the judgment of the trial court in paragraph 3 to the effect that the written statement of the 2nd defendant was adopted by defendants 1 and 3.
5. For the purposes of this appeal, I will proceed on the footing that the written statement of the 2nd defendant was adopted by the defendants 1 and 3. However, that will not have the same effect as if the 1st defendant filed a written statement.
6. The trial court found that Muthial Ammal died on 20.9.1957 as is evident from Ex.B-8 a death register extract. It was also found that the 1st plaintiff had no locus standi to sue separately against the defendants as she had a brother living in Ceylon and she did not claim that she was filing the suit on behalf of her brother. The trial court upheld plea of benami and also held that the 1st defendant and his predecessors-in-title had prescribed title by adverse possession. On those findings, the suit was dismissed.
7. On appeal by the plaintiffs, the appellate court reversed the findings of the trial court on the questions of maintainability of the suit benami and prescription of title claimed by the defendants. The appellate court also proceeded on the footing that Muthial Ammal died in 1957, though there is no express reference thereto in the judgment. The appellate court held that even if the 1st plaintiff had a brother living, she could maintain the suit for ejectment asagainst trespassers, as one of the co-owners. The appellate court negatived the pleas put forward by the defendants, after discussing the evidence. Consequently, the appellate court granted a decree in favour of the plaintiffs.
8. The aggrieved defendants 1 to 3 have preferred this second appeal. When the appeal was taken up for hearing, an affidavit was filed by learned Counsel for the contesting respondents. The affidavit is sworn to byT. Venugopal Naidu, son of T. Rajagopal Naidu, the 2nd plaintiff. According to the affidavit, the 2nd plaintiff died in July, 1986 and the appeal should be dismissed as abated as his legal heirs were not brought on record by the appellants. This contention put forward by learned Counsel for the respondents cannot be accepted. The decree passed by the lower appellate court while declaring the title of the 1st plaintiff to the suit properties and directing the defendants to deliver possession of the suit properties to the 1st plaintiff merely declares that the 2nd plaintiff is the lessee of the 1st plaintiff under the appeal had abated as regards the 2nd plaintiff /2nd respondent herein, as his legal representatives have not been brought on record. But that would not preclude the appellants from challenging the decree passed in favour of the 1st plaintiff for declaration of title and recovery of possession. Clauses 1 and 3 of the decree which were in favour of the 1st plaintiff do not depend upon Clause 2 of the decree, which is in favour of the 2nd plaintiff. Thus the finality attained by the second clause of the decree will not prevent the appellants from challenging Clauses 1 and 3 of the decree.
9. Learned Counsel for the appellants contends that the suit should be dismissed as the other co-owners of the properties are not impleaded as parties to the suit. Reliance is placed upon the evidence of P.W.I and P.W.2 in which it is admitted that the 1st plaintiff had brother living in Ceylon. It is, therefore, argued that without impleading the brother of the 1st plaintiff, the suit could not be maintained by the 1st plaintiff for declaration of her exclusive title to the suit properties.
10. My attention is drawn to the ruling of the Supreme Court in Kanakarathinammal v. Loganatha : [1964]6SCR1 . The appellant before the Supreme Court filed the suit for recovery of possession of the suit properties claiming that she was the sole heir of her mother, Rajammal, who died on September 13,1946. She claimed exclusive title to the properties under Sub-clause (i) of Sub-section (1) of Section 12 of the Mysore Hindu Law Women's Rights Act, 1933. The case of the respondents therein was that the father of the appellant was the owner of the properties and he executed a will under which, the 1st respondent was appointed as an Executor and as such Executor, he handed over possession to the 2nd respondent-legatee under the Will after obtaining Probate of the Will. It was found that the appellant before the Supreme Court had two brothers and they were also legal heirs of her mother under Section 12 of the Mysore Hindu Law Women's Rights Act, 1933. On that finding the Supreme Court held that the appellant not having taken any steps to implead her brother as parties to the suit inspite of a specific objection having been raised by the respondents before them even at the earliest stage in the written statement, was not entitled to pray for impleading them at the stage of the appeal before the Supreme Court and that the suit was not maintainable as it partook the character of a suit for partition. Consequently, the Supreme Court dismissed the appeal holding that the appellant's suit was itself not maintainable. The relevant passage in the judgment of the Supreme Court is as follows:
It is unfortunate that the appellant's claim has to be rejected on the ground that she failed to implead her two brothers to her suit, though on the merits we have found that the property claimed by in her present suit belonged to her mother and she is one of the three heirs on whom the said property devolves succession under Section 12 of the Act. that, in fact, is the conclusion which the trial court had reached and yet no action was taken by the appellant to bring the necessary parties on record. It is true that under Order 1, Rule 9 of the Code of Civil Procedure no suit shall be defeated by reason of the misjoinder on non-joinder of the parties, but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. Even in such cases, the court can under Order 1, Rule 10, Sub-rule (2), direct the necessary parties to be joined. But all this can and should be done at the stage of trial and that too without prejudice to the said parties' plea of limitation. Once it is held that the appellant's two brothers are co-heirs with , her in respect of the properties leftin testate by their mother, the present suit filed by the appellant partakes, of the character of a suit for partition and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents. The estate can be represented only when all the three heirs are before the court.
11. According to the learned Counsel for the appellants, the Judgment of the Supreme Court on all fours would apply to the present case and the suit filed by the 1st respondent herein should be dismissed on the ground of non-joinder of the co-owners of the properties.
12. Learned Counsel for the appellants also referred to the Judgment in Chandra Mohan v. Union of India A.I.R. 1953 Ass 193 Ramakrishna v. Lakshminarayana : AIR1984Kant45 , and Panchapakesan v. Peria Thambi Naicker : (1972)2MLJ590 , for the purpose of contending that the objection as to non-joinder of necessary parties can be taken at any stage of the proceedings and the fact that the plea was not taken in the written statement in this case would not prevent the appellants from contending that the suit was not maintainable ab initio.
13. Before considering the question as to the applicability of the rulings referred to above, I should refer to certain facts of this stage. At first, it must be pointed out that there is no plea in the written statement in the suit that there is a brother, who was a co-owner along with the 1st plaintiff. There was no issue before the trial court to that effect. In that situation, the parties entered the witness box. No doubt P.W.I and P.W.2 had stated that Muthial Ammal had two sons at the time of her death and one of them passed away later. It is not clear from the evidence as to whether the other son, who was said to be in Ceylon at the time of Muthial Ammal's death was alive at the time of suit. No specific question was put either to P.W.1 or P.W.2 to find out whether any of the brothers of Muthial Ammal was alive on the date of filing of the suit.
14. Per contra, the 2nd defendant, who is the only witness examined on the side of the defendant has deposed that Muthial Ammal had no son. There is no explanation on record as to why the 1st defendant, who is the best person to speak about the members of the family has not entered the witness box. When the evidence before court is conflicting as to whether there are other co-owners along with the 1st plaintiff entitled to the property, the trial court ought not to havediscussed the question as to whether the suit was maintainable, particularly when the issue of non joinder of parties was not raised. When there is no pleading before court, the court ought not to have allowed any evidence to be let in by the parties. It is well settled that no amount of evidence without a plea can be looked into by the court (vide: Pir Siddik Mohammed Shab v. Mussamet Saran 58 M.L.J. 7 . It is also well settled that a party, who is in possession of best evidence and a party who is the best person to give evidence on certain matters should enter the witness box and place the facts before the court and in the event of his failure to do so, the court is bound to draw an adverse inference against him vide: Sardar Gurbaksh v. Gurdial Singh 53 M.L.J. 392 .
15. The trial court did not make any reference whatever to the evidence of D. W. 1 wherein he had stated that Muthial Ammal had no son. The trial court merely referred to the fact that P.W.1 admitted that she had a brother living in Ceylon and proceeded to hold that as she was not filing the suit on behalf of her brother, the suit was not maintainable. The trial court overlooked the fact that P.W.1 spoke only about the existence of a brother in Ceylon at the time of MuthialAmmal's death and not about his being alive at the time of the suit.
16. It was for the defendants to have raised specific plea as to the existence of co-owners at the time of filing of the suit and raised a question that the suit was bad for non-joinder of necessary parties. When the very existence of co-owner is in doubt, it is not proper for the Court to allow the parties to raise a contention in the course of trial or at a later stage and give a decision on the basis of such contentions. In Sri Ram Pasricha v. Jagannath and Ors. : [1977]1SCR395 , it was held by the Supreme Court that a plea as to non-joinder of parties in a suit for eviction should be taken at the earliest opportunity. It was held in that case that a co-owner is as much an owner of the entire property as any sole owner of a property is.
17. Hence, the decision of the Supreme Court in Kanakarathinammal's case : [1964]6SCR1 , will not apply to the facts of the present case. As pointed out by me already, in the case before the Supreme Court, the plea was raised even at the earliest stage in the written statements. The plea of non-joinder was considered by all the courts. In fact, the trial court held that the suit was bad for non-joinder of necessary parties. That was upheld by the appellate court. The Supreme Court held that for consideration of the appellant's claim under the Mysore Hindu Law Women's Rights Act, 1933 as the exclusive heir to her mother, her brothers were necessary parties and in the absence of necessary parties, the suit could not be maintained.
18. In the present case, no such question will arise. No doubt, the first plaintiff claimed that she was the exclusive heir of her mother Muthial Ammal. But even assuming that she was not the exclusive heir, she would only be a co-owner along with her brother or brothers vis-a-vis the defendants, who are only in the position of trespassers. The suit by one co-owner can certainly be maintained for ejecting them and recovering possession. The suit for recovery of possession was only for the benefit of all co-owners in the event of there being other co-owners. This position in law is also well settled and in so far as this Court is concerned a Division Bench of this Court has clearly laid down in Syed Ahmed Sahib Shutari v. The Magnesite Syndicate Ltd. 28 M.L.J. 598 :I.L.R. 39 Mad 601 : 291 C. 60, that one of several co-owners can maintain an action in ejectment against a trespasser without joining the other co-owners as parties to the action.
19. The above judgment of the Division Bench of this Court was followed in Palani Ammal v. Sethurama Aiyangar : (1949)1MLJ290 . It was relied on by the Nagpur High Court in Nago v. Multanmal , and Patna High Court in Sambhu Gosain and Anr. v. Piyari Mian : AIR1941Pat351 .
20. On the facts of this case, it has not been made out that other co-owners exist along with the first plaintiff to claim title to the property. Theevidence on record does not make out clearly that the first plaintiff had a brother who was alive on the date of suit and that he was entitled to share in the property. Viewing the said facts in the light of the failure of the defendants to raise the plea of non-joinder of necessary parties, I hold that it is not proper for the court to non-suit the plaintiffs on the ground of non-joinder of necessary parties. The rulings cited by learned Counsel for the appellants that the plea of non-joinder of necessary parties can be raise at any stage would undoubtedly apply to cases in which it is proved that there are other parties, who are necessary for proper and complete adjudication of the questions, which arise before the court. In this case, the presence of the brother of the first plaintiff is wholly unnecessary for the purpose of adjudication of the question as between the plaintiffs on the one hand and the defendants on the other. Hence, I reject the contention put forward by learned Counsel for the appellant.
21. The next question relates to adverse possession set up by the defendants. It is the case of the defendants that they had been continuously in possession for over forty years and they have prescribed title to the property by adverse possession. The Supreme Court has held that possession for any number of twelve years will not by itself be sufficient to prove prescription of title by adverse possession, unless it is established before court that possession was adverse vide:S.K. Karim v. Bibi Sakina : [1964]6SCR780 . The Supreme Court has pointed out that long possession is not necessarily adverse possession.
22. The burden is clearly on the persons who set up adverse possession, after the advent of Limitation Act 36 of 1963. Under Article 65 of the said Limitation Act, the burden is on the persons who set up adverse possession to prove that they have prescribed title by adverse possession. In this case, the defendants have not even proved possession for over twelve years. The only person who has been examined on the side of the defendants is the second defendant. He claims to be a lessee under the first defendant. The only document to establish the lease transaction in Ex.B-10 dated 1.11.1958, which purports to be a Kuthagai agreement. An objection was taken by the respondents that the documents is not admissible as it is unregistered. I do not think it necessary for me to consider that objection as it is clear from the evidence that Ex.B-10 cannot be relied on by the defendants as its genuineness is very much in doubt.D.W. 1 speaks about the lease deed. Ex.B-10 has admitted as follows:
The 1st defendant cultivated directly from 1959. For some years from 1959 he was himself cultivating. After cultivating for five years, he expressed his inability to continue and gave the lands to me. I got the lease agreement written. Ex.B-10 is not fabricated for the ease.
The above passage clearly shows that according to the second defendant, Ex.B-10 came into existence after the first defendant found it difficult for him to continue the direct cultivation of the lands for a period of five years after 1959. That would take us to 1964. But Ex.B-10 bears the date 1.11.1958. The above passage itself shows that if the date mentioned in Ex.B-10 is correct, it was not acted upon, as according to the admission ofD.W. 1, the first defendant was himself directly cultivating from 1959. If, on the other hand, the date is not correct and the date should be only 1964 in Ex.B-10, there is no explanation for giving the date as 1.11.1958. Thus, Ex.B-10 is wholly unreliable, even on the evidence ofD.W. 1.
23. There is yet another circumstance which casts a shadow of suspicion on the truth of Ex.B-10. The defendants have produced a General Power of Attorney dated 24.8.1973 executed by the first defendant in favour of the second defendant. It is marked as Ex.B-2. It is stated in that document that the first defendant being employed in Bangalore, is unable to cultivate his lands and maintain his house and, therefore, nominating the second defendant as his agent. The document empowers the second defendant to institute all proceedings in civil and criminal courts as may be necessary. There is absolutely no reference whatever to the lease transaction under Ex.B-10. If Ex.B-10 is genuine, there would have been a recital that the second defendant is already in possession as a lessee pursuant to Ex.B-10. A perusal of Ex.B-2 shows that the second defendant was never in possession of the lands prior to that date and his deposition that the lands were given to him for cultivation from 1964 is absolutely false. It is quite obvious that Ex.B-2 has been brought into existence only for the purpose of claiming rights in the suit properties and other properties and laying a foundation for litigation.
24. If Ex.B-10 is eschewed from consideration, there is no other document to prove the lease in favour of the second defendant by the first defendant. Reliance is placed upon Ex.B-3 to show that the first defendant was paying kist from 1933 onwards. Ex.B-3 is a small note book containing entries from 2.1.1933 to 30.3.1960. But that document has not been proved by any person. It is simply produced in court by. D.W.1. In cross-examination he is questioned about the document. He admits that he does not know as to who wrote the entries in Ex.B-3. Thus, Ex.B-3 is of no use to the defendants. There is the further admission inevidence of D.W.1 that when all the parties were living together, kist was being paid jointly for all the lands including the lands of the defendants. This admission would show that there was no question of any adverse claim on the part of the defendants as against the plaintiffs. If there was a joint payment of kist for several lands together, the defendants cannot place any reliance on the kist receipts to show that they had exclusive possession of the lands adverse to the interest of the plaintiffs.
25. Ex.B-6 series is another set of kist receipts ranging from 6.3.1962 to 14.1.1975. There are eight receipts in a bunch. The receipts do not make out that the second defendant or the first defendant paid the kist for the relevant years.Only one receipt bears the name of the first defendant. The evidence of D.W.I reads that the first defendant paid kist under Ex.B-6 series. In his deposition, he has stated that Ex.B-6 series pertain to 1386 fasli. This is wholly incorrect. Only one receipt in Ex.B-6 series could, if at all, come anywhere near 1386 fasli and it does not pertain to fasli 1386. Two of the receipts are for fasli 1371. They do not bear any indication that-the payments were made by the first defendant or second defendant. The receipts bearing dates 16.5.1966,2.3.1967, 6.3.1967 and 13.5.1967 mention the first defendant as the remitter. The receipts bearing dates 20.2.1974 and 14.1.1975 mention the name of the second defendant in the first column. None of those receipts will prove the possession of the defendants for a period of 12 years prior to suit.
26. The first defendant is admittedly related to the first plaintiff as her maternal uncle's son. Thus possession of the first defendant by itself will not be adverse to the first plaintiff. There is no document on record to show that the first defendant ever claimed adverse title as against the first plaintiff. Reliance is placed upon the fact that the patta stood in the name of the first defendant for quite a long time. The plaintiffs have produced Ex. A-6, a copy of the order of the Revenue Divisional Officer, Ranipet. It is clear from Ex. A-6 that patta was wrongly transferred in the name of the first defendant without any orders of the appropriate authority. The Revenue Divisional Officer has pointed out in the said order that the karnam of the village effected transfer of registry presuming that the Deputy Tahsildar had accepted the recommendations made by the village officers to transfer the patta in favour of the first defendant. It is also found that false information was furnished by the village officers to the Deputy Tahsildar and the same was not verified by him. It was held by the Revenue Divisional Officer that there was no order passed by the Deputy Tahsildar, Wallajah in P.T.R.60/83, dated 15.10.1973 as shown in the adangals and other village records. Hence, no reliance can be placed by the defendants on the issue of patta in the name of the first defendant.
27. Two patta books have been produced by the defendants and marked as Exs.B-4 and B-5. They are only dated 5.12.1974. They cannot help the defendants to prove adverse possession or prescription of title. The suit was filed on 1.12.1975. The defendants must prove adverse possession at least from 1963. There is nothing on record that would show that the defendants were in possession of the properties for over twelve years prior to suit and much less adversely claiming title in themselves as against the claim put forward by the plaintiffs. Hence, the plea of adverse possession has to be negatived.
28. Even on the question of adverse possession, the failure of the first defendant to file a written statement on his own and to examine himself as a witness tospeak about his possession is significant and the court is bound to draw an adverse inference against the first defendant from the said circumstance. The second defendant has not proved that he came on the scene prior to 1973. I have already discussed the relevant evidence. Hence, the burden is on the first defendant to prove his exclusive possession for the requisite period in order to support his case of adverse possession. As he has failed to file a written statement and enter the witness box, I have no hesitation to hold that the plea of adverse possession by the defendants has not been made out.
29. The lower appellate court has come to the conclusion that the defendants have not established the plea of adverse possession. The lower appellate court has drawn an inference that the first defendant came into the picture only in the year 1973 after Ex.B-19. Ex.B-19 is a statement showing the cases of absolute transfers in which neither of the parties has applied for change of registry for fasli 1383. No doubt, an inference cannot be drawn from Ex.B-19 that the first defendant came on the scene only in 1973. But, Ex.B-19 shows that the first defendant, for the firsttime thought of having patta in liis name in 1973 and got it transferred in his name. I have already referred to the fact that the said entry transferring patta in favour of the first defendant was unauthorised and there was no order by the Deputy Tahsildar directing such transfer as found by the Revenue Divisional Officer. The other documents produced by the defendants in the case do not prove their adverse possession for twelve years continuously prior to the filing of the suit. Hence, the finding of the appellate judge that the defendants have not made out their plea of adverse possession has to be confirmed, though some part of his reasoning may not be fully correct.
30. Learned Counsel for the appellants vehemently contended that the plaintiffs have miserably failed to prove the case set out in the plaint with regard to their continuous possession of the property after the death of Muthial Ammal. Learned Counsel drew my attention to the discussion found in the judgment of the trial court of the various documents produced by the plaintiffs and the rejection of the same by the trial court. It was argued that the plaintiffs not having established their specific case set out in the plaint, are not entitled to get a decree inthe suit and that the trial court was right in dismissing the same. There is no substance in this contention. As pointed out already, the burden is heavily on the defendants toprove adverse possession and prescription of title. As they have failed to establish the same, the plaintiffs are entitled to get a decree.
31. The question of benami, which was considered by the Court below, has not been argued before me. Learned Counsel for the appellants stated fairly that the plea of benami is not available to the appellants in view of the provisions of the Benami Transactions (Prohibition) Act, 1988 (Act No. 45 of 1988).
32. In the circumstances, the second appeal has to fail and it is dismissed. There will, however, be no order as to costs.