JUDGMENT : G. JAYACHANDRAN, J. 1. O.S.No.71 of 2015 was filed by the wife and son of late Erudayaraj as against the defendants D.R.Lurthusamy and D.R.Anthonysamy, who are the brothers of Erudayaraj. On the death of D.R.Lurthusamy, his legal heirs were brought on record. The suit was filed for a declaration of title based on the Will dated 07.04.1997 and for a consequential permanent injunction. 2. The defendants 1 to 3 through an additional written statement, made a counter claim seeking delivery of possession and consequential injunction stating that the suit property belongs to D.R.Lurthusamy, who had settled the property in favour of his sons (defendants 2 & 3) vide settlement deed dated 12.02.2013. 3. Erudayaraj, who is brother of D.R.Lurthusamy, was allowed to stay in the property along with family, since D.R.Lurthusamy, after serving in Army, joined the Civil Service and settled in Bangalore. He permitted his mother along with brother's family to stay in his property. The plaintiffs were only permissive occupants. They have no right or title in the property. Therefore, the defendants are entitled for recovery of possession. 4. On completion of pleadings, the trial Court framed 9 issues in total and examined witnesses. In support of their case, the plaintiffs examined three witnesses as PW.1 to PW.3 and marked 18 documents as Ex.A1 to Ex.A18. On the side of the defendants, two witness was examined as DW.1 and DW.2 and 23 documents were marked as Ex.B1 to Ex.B23. 5. Issues framed and considered are as below:- 1. Whether the case of the plaintiffs that there is a joint family concept in the Christian religion and based on that oral partition was taken place between the deceased Erudayaraj and defendants 1 and 4 is true and acceptable? 2. Whether the registered Will dated 07.04.1997 is true, valid and the deceased Erudayaraj had valid title? 3. Whether the 4 th defendant is in possession and enjoyment of 3,826 sq.feet in the schedule of property? 4. Whether the plaintiffs are entitled for a decree of declaration? 5. Whether the plaintiffs are entitled to the relief of permanent injunction? 6. Whether the counter claim filed by the defendants is barred by limitation? 7. Whether the defendants 1 to 3 are entitled for counter claim relief of mandatory injunction as against the plaintiffs? 8. 4. Whether the plaintiffs are entitled for a decree of declaration? 5. Whether the plaintiffs are entitled to the relief of permanent injunction? 6. Whether the counter claim filed by the defendants is barred by limitation? 7. Whether the defendants 1 to 3 are entitled for counter claim relief of mandatory injunction as against the plaintiffs? 8. Whether the defendants 1 to 3 are entitled for the relief of permanent injunction as against the plaintiffs? 9. To what other relief the plaintiffs are entitled? 6. On appreciation of the evidence, the trial Court dismissed the suit for declaration of title claimed by the plaintiffs which was based on the Will dated 07.04.1997 and declined to grant the consequential prayer of permanent injunction. In respect of the counter claim, based on the documents the relief of mandatory injunction granted directing the plaintiffs to vacate and deliver the vacant possession of the defendants 2 & 3 within three months and permanent injunction restraining the plaintiffs from encumbering the property was granted. 7. The judgment and decree dated 28.06.2024 are the subject matter of these two appeal. One against the dismissal of the suit in O.S.No.71 of 2015 and the other against the decree and judgment in the counter claim passed in favour of the defendants 2 & 3. 8. In A.S.No.659 of 2024 The appeal is directed against the dismissal of the plaintiff's prayer for a declaration of title based on the Will dated 07.04.1997, marked as Ex.A17. 9. According to the appellant, defendants 1 to 3, in their written statement, never claimed that late.Erudayaraj was only permissive occupant of the suit property. It was only as an afterthought, in the additional written statement that they have taken a plea of permissive occupant and made a counter claim for recovery of possession. The construction of the Will marked as Ex.A17 is relied upon to prove that the Erudayaraj had perfected his title over the suit property and had bequeathed the property in favour of his wife and two childrens. 10. The trial Court ought to have considered that there was family arrangement between the three brothers, namely Erudayaraj, D.R.Lurthusamy and D.R.Anthonysamy which was effected and acted upon. The revenue records were mutated in favour of Erudayaraj and patta was granted to him on 03.10.2008. Hence, Erudayaraj having perfect title over the suit property has every right to bequeath it under a Will. The revenue records were mutated in favour of Erudayaraj and patta was granted to him on 03.10.2008. Hence, Erudayaraj having perfect title over the suit property has every right to bequeath it under a Will. The execution and registration of the Will marked as Ex.A17 dated 07.04.1997 were been proved in the manner known to law. The trial Court failed to appreciate this evidence while considering the plea of the plaintiffs. 11. It is further contended that while recasting the issues, the trial Court failed to frame an issue regarding adverse possession. Though it was an issue framed earlier, the non-framing of issue regarding adverse possession is fatal to the case. Without framing an issue regarding adverse possession, the trial Court erroneously concluded that no such plea of adverse possession was raised by the plaintiffs, which is factual incorrect. The finding of the trial Court that family arrangements and oral partitions among Christians are not legally admissible is erroneous. Furthermore, the Court failed to take note that recovery of possession of the suit property through counter claim is hopelessly barred by limitation. 12. The Learned Counsel appearing for the appellant also submitted that, as per the decision in Ashok Kumar Kalva vs. Wing CDR Surendra Agnihotri and others reported in (2020) 2 SCC 394 , a counter claim cannot be entertained after framing of issues. In any event, recovery of possession ought to have been made within a period of 12 years, as per Article 65 of the Limitation Act. However, the plea of recovery of possession was made only on 02.07.2021 by way of a counter claim, which is beyond the period of 12 years, if the date of registration of the Will Ex.A17 dated 07.04.1997 is reckoned as commencement of limitation. 13. The written statement of the defendants and the oral evidence adduced on their behalf were self-contradictory and destructive. While so, the trial Court failed to properly evaluate Ex.B4 (Settlement deed) and Ex.B.22 (Sale Deed) in proper perspective and failed to consider that Ex.B.4, Ex.B6 and Ex.B22 were created only to defeat the plaintiffs' claim through adverse possession. 13. The written statement of the defendants and the oral evidence adduced on their behalf were self-contradictory and destructive. While so, the trial Court failed to properly evaluate Ex.B4 (Settlement deed) and Ex.B.22 (Sale Deed) in proper perspective and failed to consider that Ex.B.4, Ex.B6 and Ex.B22 were created only to defeat the plaintiffs' claim through adverse possession. The alleged settlement deed dated 12.02.2013, marked as Ex.B.6, to show that D.R.Lurthusamy settled his property in favour of his sons, LSagayaraj and L.Leo Stalingraj, will not confer any title to them since there is no delivery of possession and acceptance of the same, which are mandatory under Section 122 of Transfer of Property Act. 14. Per contra, the Learned Counsel appearing for the respondents submitted that it is an admitted fact that the suit property was purchased by D.R.Lurthusamy from one Daniel on 23.07.1976, vide Ex.B3. The property was developed by D.R.Lurthusamy and he allowed his mother and brothers to be in the property as permissive occupant. As occupant of the premises, some of the tax receipts were issued in the plaintiffs names, which will not confer any title. At the most, it is only proof for their occupation in the premises and it only proves that they were permitted to occupy the premises and to pay tax on behalf of D.R.Lurthusamy. 15. The patta relied by the plaintiffs alleged to have been issued by the Headquarters Tahsildar Katpadi, dated 03.10.2008 in favour of Erudayaraj, which is marked Ex.A4 is in respect of old S.No.223/1 (part) and new S.No.223/1F measuring 00.575 sq.m., and it is shown as house site. This patta was issued during the Natham land survey and land tax scheme. The Will Ex.A17, upon which the plaintiffs claim title is dated 07.04.1997, about 11 years prior to the issuance of patta Ex.A4. Under the Will Ex.A17, Erudayaraj bequeathed the property mentioned in the Will to his wife and three children. While describing the property, he stated that the scheduled mentioned properties were jointly held by the testator Erudayaraj along with his brothers, D.R.Lurthusamy and D.R.Anthonysamy. He also referred about the sale agreement entered by him with some third parties and he want to honour that agreement and the beneficiaries must share the sale proceeds in the ratio of 50% by wife and the remaining 50% equally among by his three children. He also referred about the sale agreement entered by him with some third parties and he want to honour that agreement and the beneficiaries must share the sale proceeds in the ratio of 50% by wife and the remaining 50% equally among by his three children. As per his own Will, the property was not divided among brothers. However, he claimed exclusive rights over the superstructure based on the patta No.3146 in respect of S.No.223/1D. The lack of clarity in the description of the property mentioned in the schedule and admission that there was no partition at that time and claiming 3/5 share in the undivided portion, all indicates that the Will of Erudayaraj is not worth consideration. Besides, the alleged patta (Ex.A4) is not a proof for title. In the absence of any proof of family arrangement, the evidence of the plaintiffs deserves to be rejected for a simple reason that the Will executed by Erudayaraj in respect of a property which he had no title and for the reason that the said Will not been proved in the manner known to law. 16. P.W.3 Loganatha Reddy, who claims to be one of the attestor to the Will, was examined and deposed about the execution of the Will by Erudayaraj in his presence. However, in the absence of recital in the Will explaining how the testator got the property and the ambiguity in the schedule of property, the trial Court has rightly held the Will will not confer title on the plaintiff. 17. The Learned Counsel appearing for the respondents submitted that a person who intend to execute the Will in respect of the property should have a clear title over the property. Without title in the property even if the execution of the Will is proved, the property mentioned in the Will will not confer any right to the beneficiaries of the Will unless the testator himself has valid title over the property. In the present case, the title is not with the testator therefore, the beneficiaries under the Will cannot claim a better title. 18. Regarding plea of adverse possession, the Learned Counsel appearing for the respondents submitted that, no doubt the issue of adverse possession omit to be framed while recasting the issues. In the present case, the title is not with the testator therefore, the beneficiaries under the Will cannot claim a better title. 18. Regarding plea of adverse possession, the Learned Counsel appearing for the respondents submitted that, no doubt the issue of adverse possession omit to be framed while recasting the issues. Even otherwise, when plea of permissive occupation been averred by the defendants and the counter claim for recovery of possession also been filed it has to be dated back to the date of the plaint and not on the date of filing the counter claim. The person who pleads ouster should prove the same. In the present case, the plaintiffs have miserably failed to prove ouster and therefore, cannot set up an alternate plea of adverse possession to the main plea of declaration of title. Point for consideration:- Whether the plaintiffs, having set up title based on the Will marked as Ex.A17 can also sustain an alternate plea of adverse possession? 19. It is the case where the plaintiffs seek declaration of title based on Will marked as Ex.A17. To show that the testator had title over the property, they relied upon the patta (Ex.A3) and tax receipts. No doubt, in the plaint the plaintiffs have also taken an alternate plea of adverse possession and ouster. The said plea is contested by the defendants, denying their title as well as ouster by placing documents and oral evidence to show that the property was purchased by D.R.Lurthusamy, the father of the defendants 2 & 3, while he was in Army service and was later developed by him. It is their case that he permitted his mother and brothers to occupy the premises and they were only permissive occupant and he was not ousted by his brothers at any point of time. 20. The plea of adverse possession can be claimed only when the title is accepted and exclusion of the title holder from possession with his knowledge is pleaded. In the present case, the plaintiffs have pleaded an oral partition and conveyance of title through a Will. However, there is no evidence for oral partition and division of the property as per the oral partition. In the present case, the plaintiffs have pleaded an oral partition and conveyance of title through a Will. However, there is no evidence for oral partition and division of the property as per the oral partition. Likewise, though in the Will, it is mentioned by Erudayaraj that he had entered into a sale agreement with some third parties in respect of portion of the property, the plaintiffs were not able to prove that the said sale agreement was given effect as per wish of Erudayaraj. They have not placed any documentary evidence to prove title and right of Erudayaraj to bequeath the suit property in favour of the plaintiffs. Except the patta which apparently issued 11 years after the execution of the Will, cannot lend any support to the case of the plaintiffs. The version that D.R.Lurthusamy that he allowed his mother and brothers to occupy the property is more probable than the occupants claiming ouster of the real owner, adverse to his interest, open and continuous. 21. The preponderance of probability is more in favour of the defendants 2 & 3, who claims that the suit property was purchased by their father under a sale deed dated 23.07.1976 and was dealt exclusively by their father Erudayaraj during his lifetime. One of the brothers D.R.Anthonysamy, who was alive at the time of trial, was examined as D.W.2. He had deposed that in the agricultural land, there was no income and the family was maintained with the money sent by Erudayaraj. He further stated that there was a partition in respect of the common property of the family under Ex.B2. As far as suit property is concerned, it does not form part of the common properties. His evidence carries more weightage since it is based on the document and he is a neutral witness, among the disputing legal heirs of his two brothers. 22. Insofar as the plea of adverse possession is concerned, as already pointed out, it has been taken only as an alternate plea by the plaintiffs. To prove the adverse possession, the plaintiffs have not produced any evidence or document to satisfy the well established triple conditions for adverse possession, namely, nec vi (without force), nec clam (without secrecy), nec precario (without permission). 23. To prove the adverse possession, the plaintiffs have not produced any evidence or document to satisfy the well established triple conditions for adverse possession, namely, nec vi (without force), nec clam (without secrecy), nec precario (without permission). 23. The plea of counter claim is objected to by the appellants based on the judgment of the Hon'ble Supreme Court rendered in Ashok Kumar Kalra vs. Wing CDR. Surendra Agnihotri and others reported in (2020) 2 SCC 394 , wherein, it is held that under Order VIII Rule 6-A of C.P.C., enables a party to make a counter claim in order to avoid multiplicity of proceedings. However, even though there is no limitation is prescribed to make counter claim, it should be within the period of limitation from the date of accrual of the cause of action. It was suggested by the majority of the Bench that plea of counter claim cannot be raised after framing of issues. In this case, the issues recasted after the additional written statement, containing counterclaim. Therefore, the dictum laid down in Ashok Kumar Kalra (supra), has no application to the case in hand. 24. In the said circumstances, this Court finds that the appellants have failed to prove that, they gained title to the suit property through the Will Ex.A17. When the testator of Ex.A17, Erudayaraj himself had no title over the suit property, merely by virtue of the registered Will, the title cannot get conferred on the plaintiffs. The plaintiffs neither proved adverse possession by establishing open, continuous and hostile possession of the suit property as against the defendants 2 & 3. On the Contrary, the defendants 2 & 3 through the sale deed marked as Ex.B3 and settlement deed Ex.B4 (later cancelled under Ex.B5 and re- settled under Ex.B6), along with the encumbrance certificates marked as Ex.B13 to Ex.B16, would show that the possession of the plaintiffs whatsoever was not open or in exclusion of the defendants 1 to 3. 25. Furthermore, from the evidence, we find the patta marked as Ex.A3 and relied by the plaintiffs is the subject matter of an enquiry proceedings by the Revenue Divisional Officer initiated on 06.04.2015 vide Ex.B12. Subsequently, the patta been issued in favour of the defendants 2 to 3 marked as Ex.B17. As pointed out earlier, patta is not a conclusive proof for title. Subsequently, the patta been issued in favour of the defendants 2 to 3 marked as Ex.B17. As pointed out earlier, patta is not a conclusive proof for title. For limited purpose, to accept the case of the plaintiffs based on Ex.A3 patta, patta in favour of the defendants issued subsequently is placed before the Court to waterdown the patta relied by the plaintiffs. 26. Therefore, from any angle, it is obviously clear that the plaintiffs have not conferred with any title under the Will (Ex.A17) or through the patta (Ex.A3). On the Contrary, the defendants 2 & 3 have got the property through their father D.R.Lurthusamy, who purchased the property in the year 1976 under Ex.B3. No doubt, they have been some family properties held jointly by the brothers and same got divided through a partition deed of the year 2010. However, as far as the suit property is concerned, which is the exclusive property of D.R.Lurthusamy, the plaintiffs, who are legal heirs of brother, cannot claim any right or title based on their occupation of the premises, which apparently was with permission of the landowner of the land and not in exclusion of his right. 27. Accordingly, these Appeal Suit Nos.659 & 660 of 2024 stands dismissed. There shall be no order as to costs. Consequently, connected Miscellaneous Petitions are closed.