Person in lawful passion without title cannot sue to declaration of title.

(Second appeal filed under Section 100 of Civil Procedure Code against the judgment and decree dated 27.04.1995 made in A.S.No.4 of 1995 on the file of the Subordinate Judge, Sankagiri, confirming the judgment and decree dated 28.03.1994 made O.S.No.833 of 1985 on the file of District Munsif, Tiruchengode.)

The plaintiffs, who lost their case before the Courts below, are the appellants herein. The plaintiffs have filed O.S.No.833 of 1985 on the file of District Munsif, Tiruchengode for permanent injunction and the same was dismissed, against which, they have preferred an Appeal in A.S.No.4 of 1995 on the file of Subordinate Judge, Sankagiri and the same was also dismissed. Hence the present second appeal.

2. The case of the appellants is that their father viz., Perumalsami Chettiar purchased the suit property from Murugesan Chettiar and Arthanari Chettiar under Ex.A1 dated 16.11.1950. The said Perumalsami Chettiar died on 17.06.1982, which is evident under Ex.A2. Ex.A3 series are house tax receipts issued in the name of the appellants. Citing the above said documents, the appellants sought for permanent injunction against the respondent Municipality, who attempted to construct a toilet in a portion of the suit property.

3. The case of the respondent is that under Ex.B1 sale deed dated 04.08.1930 one Arumugha Chettiar and 8 others including Kuppan Palani Chettiar purchased a total extent of 5.46 acres from Rengammal and Mallajiammal. Later they have partitioned the property into equal shares, thereby each one acquired 1/9th share in the said property with metes and bounds. The said Kuppan Palani Chettiar also got 1/9th share, which is equivalent to 60 2/3 cents and the same was sold under Ex.A1 by his sons Murugesan and Arthanari to the said Perumalsami Chettiar, who is the father of the appellants herein. Thus, the appellants acquired only 60 2/3 cents. It is the further case of the respondent that the appellants claimed 74 cents, for which they have no title at all. The respondent has also relied on Exs.B2, B3 and B4. Ex.B2 is the proceedings of the respondent, showing the places fixed for erecting bore wells; Ex.B3 is the resolution passed by the Municipality to construct lavatories and Ex.B4 is the approval of tender for construction of lavatories. Citing the abovesaid Exs.B2, B3 and B4, the respondent took a plea that they already erected a bore well and proposed to construct a lavatory and in view of the same, necessary steps are being taken. Hence it is not open to the appellants to seek injunction against them, that too in respect of the property not belonged to them. The respondent also took a plea of adverse possession.

4. Before the trial Court, the appellants herein have marked Exs.A1 to A3 and examined second plaintiff as P.W.1 and one Arthanari as P.W.2. The respondent herein has marked Exs.B1 to B4 and examined one Shanmughasundaram as D.W.1 and one Sakunthala as D.W.2.

5. Considering the oral and documentary evidence adduced, the trial Court dismissed the suit on the ground that when the respondent denied the title, the appellants ought to have filed the suit for declaration, but they confined it only to the relief of injunction. P.W.2 has admitted in his evidence that the respondent Municipality occupied the suit property as early as 1982 and erected a bore well. In view of the same, at the time of filing the suit, the respondent was in possession, hence, the injunction sought for by the appellants cannot be granted. While dismissing the suit, the trial Court accepted the plea of adverse possession set out by the respondent. The first appellate Court also on the very same lines dismissed the appeal filed by the appellants.

6. The second appeal is admitted on the following substantial questions of law:-

“1. Whether the defendant had established title over the vacant site south of the built-up portions of the suit property by adverse possession in respect of the entire vacant site by satisfactory and cogent