When there is a denial of title or a challenge raising a cloud, parties should file a suit for declaration of title, and adverse possession requires hostile possession denying the true owner's title.

JUDGMENT

(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Decree and Judgment dated 08.02.2005 in A.S.No. 7 of 2004 on the file of the Principal Sub Judge, Salem, confirming the decree and Judgment of the trial Court dated 09.02.2004 passed in O.S.No. 565 of 2002 on the file of the Principal District Munsif of Salem.)

1. The defendants in O.S.No. 565 of 2002 on the file of the Principal District Munsif Court at Salem, are the appellants herein. Pending the Appeal, the first appellant died but his legal representatives were already on record as 2nd to 5th appellants. A memo filed in that regard had been recorded.

2. The suit in O.S.No. 565 of 2002 had been filed by the respondent Santhi Krishnan against the defendants Periyasamy and his sons Murugesan, Ramakrishnan, Sengottaiyan and Vivekanandan, seeking a Judgment and Decree in the nature of permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the suit schedule properties and for costs.

3. The suit schedule properties were agricultural lands in patta Nos. 772, 623 and 654 in Kothanur Village, Salem.

4. By Judgment dated 09.02.2004, the learned Principal District Munsif, Salem, had decreed the suit.

5. Aggrieved by such Judgment, the defendants filed A.S.No. 7 of 2004 before the Principal Sub Court at Salem. They also filed I.A.No. 48 of 2004 under Order 41 Rule 27 CPC, seeking permission to file two additional documents.

6. By Judgment dated 08.02.2005, the learned Principal Sub Judge, Salem, had allowed I.A.No. 48 of 2004, and by consent, permitted marking of the said two documents, but had dismissed A.S.No. 7 of 2004, thereby confirming the Judgment and Decree in O.S.No. 565 of 2002.

7. Aggrieved by the Judgment of the First Appellate Court, the defendants filed the present Second Appeal.

8. The Second Appeal had been admitted on the following substantia1 questions of law:-

“i) Whether a party to a suit could abandon the suit abruptly and institute another suit in the borrowed name by creating a sale deed as a document of title and file a fresh suit by abusing the process of the Court?

ii) Whether the lower appellate Court can decide only few of the issues and omit others on being satisfied with the points decided?

iii) Whether the revenue records are documents of title?

iv) Whether documents brought into existence subsequent to the filing of the suit could be used to prove any fact which is in dispute in the suit?”

O.S.No. 565 of 2002 [ Principal District Munsif Court, Salem]:

9. The plaintiff claimed that the suit schedule properties had been purchased by her husband Krishnan on 04.11.1998 from one Palani Gounder and his children. The husband of the plaintiff died on 19.09.2001. The plaintiff claimed that her husband was in possession of the suit properties and that patta was also transferred to his name. Thereafter, she continued to be in possession. However, taking advantage of the death of her husband, the defendants tried to encroach into the suit properties necessitating instituting the suit seeking permanent injunction.

10. A written statement was filed by the first defendant which was adopted by the other defendants. It was claimed that the sale deed in favour of the husband of the plaintiff was a sham and nominal document created collusively with the vendors. It was claimed that possession was never handed over to the husband of the plaintiff. It was stated that even the predecessors in title were never in possession. It was stated that the defendants had been in continuous, uninterrupted possession of the suit property openly for past 22 years adversely against the vendors of the plaintiff and against the plaintiff. It was also stated that the possession remained unchallenged. It was stated that therefore, the defendants had prescribed title by adverse possession. It was stated that item Nos. 1, 2 and 9 are also contained in patta no. 64 iss