Rajamanickam v. Ramayi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.07.2007CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENSecond Appeal No.1465 of 1996 Rajamanickam .. Appellant/Defendant VersusRamayi .. Respondent/PlaintiffThis second appeal has been filed against the judgment and decree, dated 1.7.1996, in A.S.No.5 of 1996, before the Sub-Court, Bhavani, preferred against the judgment and decree, dated 27.3.1995, in O.S.No.1 of1988, before the District Munsif Court, Bhavani. For Appellant : Mr.A.Nilaphar forM/s.S.VenkateswaranFor Respondent : Mrs. Mythilisuresh for M/s.Sarvabhauman AssociatesJ U D G M E N TThe second appeal has been filed against the judgment and decree, dated 1.7.1996, made in A.S.No.5 of 1996, on the file of the Sub-Court, Bhavani, confirming the judgment and decree, dated 27.3.1985, made inO.S.No.1 of 1988, on the file of the District Munsif Court, Bhavani.

The defendant in the suit O.S.No.1 of 1988, is the appellant inthe present second appeal. The plaintiff had filed the suit in O.S.No.1of 1988, on the file of the District Munsif Court, Bhavani, praying for adecree of declaration of title, possession and for past and future mesneprofits.

The brief facts of the case, as stated by the plaintiff, are asfollows: The plaintiff is the daughter of one Nadupalaniammal. On 8.3.1956,the said Nadupalaniammal had purchased the suit properties from oneChinnapalaniammal. On 19.4.1973, the plaintiff's mother, Nadupalaniammal, had executed a registered settlement deed in favour of the plaintiff. Thedefendant had entered into possession of the suit properties as a tenant https://hcservices.ecourts.gov.in/hcservices/ of the plaintiff's mother in the year, 1973. The monthly rent payable bythe defendant was Rs.25/-. The defendant and the plaintiff's brotherChinna Gounder were friends. On 10.3.1973, the plaintiff's mother and Chinna Gounder had executed an agreement to sell the suit properties tothe defendant. The defendant had filed a suit in O.S.No.1101 of 1973, onthe file of the District Munsif Court, Erode, praying for the relief ofspecific performance of the alleged agreement, dated 10.3.1973. In thesaid suit, the plaintiff's, mother Nadupalaniammal was the firstdefendant, the plaintiff's brother Chinna Gounder was the second defendantand the plaintiff was the third defendant.

The suit in O.S.No.1101 of 1973, on the file of the DistrictMunsif Court, Erode, was decreed, on 5.9.1975. The plaintiff and hermother had filed an appeal in A.S.No.257 of 1975, before the DistrictCourt, Erode. Later on, the said appeal had been transferred to the Subordinate Judge, Erode, and renumbered as A.S.No.128 of 1976. Theappellate Court by its judgment and decree, dated 1.3.1977, had allowedthe appeal holding that the alleged agreement of sale, dated 10.3.1973,set up by the defendant was not true and valid and that the settlementdeed, dated 19.4.1973, was true and valid and binding on the defendant. The defendant had filed a second appeal before the High Court at Madras inS.A.No.972 of 1978. The said second appeal had been dismissed by the HighCourt at Madras by its judgment and decree, dated 10.2.1982. The plaintiffis the owner of the suit properties.

The plaintiff had issued a notice to the defendant for recovery ofpossession. However, the defendant had issued a reply notice claimingtitle over the suit properties by adverse possession. The defendant doesnot have any title by adverse possession as claimed by him. The defendanthad again filed a second appeal before the High Court at Madras. Thedefendant had not paid any rent with regard to the suit properties and thedefendant has no title by adverse possession. When the title to the suitproperties is vested with the plaintiff, the defendant cannot claimadverse possession. Therefore, the plaintiff had claimed damages for useand occupation for a period of three years prior to the filing of the suitat the rate of Rs.25/- per month and that the plaintiff is also entitledto mesne profits from the date of the suit till the delivery of possession.

The averments in the written statement filed by the defendant areas follows: The claims made by the plaintiff are incorrect. There is no cause ofaction for the suit and hence the suit is to be dismissed with costs. Itwas stated that the District Munsif Court has no jurisdiction to entertainthe suit. It was also stated that the claim of the plaintiff that thedefendant entered into possession of the suit property as a tenant in the https://hcservices.ecourts.gov.in/hcservices/ year, 1973 on a monthly rent of Rs.25/- under the plaintiff's mother istotally false. The defendant was at no time the tenant under theplaintiff's mother Nadupalaniammal. The defendant is the absolute owner ofthe suit property and is in uninterrupted, continuous and exclusivepossession and enjoyment of the suit property from the month of March,1973, with the knowledge of the plaintiff's mother Nadupalaniammal, theplaintiff and her brother Chinna Gounder.

The defendant has spent over Rs.10,000/- to repair the suit house. It is incorrect to claim that the defendant and the plaintiff's brotherwere friends.

It has been further stated that the defendant is willing to handover possession of the property to the plaintiff on payment of Rs.10,000/-spent by the defendant in repairing the suit house. The defendant had senta reply to the notice given by the plaintiff, on 9.1.1986. The defendanthad not entered into any tenancy agreement with the plaintiff and hermother. The plaintiff is not entitled to any declaration of title to thesuit properties. The suit is barred by limitation. There is no cause ofaction for the suit and the cause of action stated in the suit isincorrect. The plaintiff is not entitled to any relief. Hence, the suitis to be dismissed with costs.

Based on the rival claims made on behalf of the plaintiff as wellas the defendant, the trial Court had framed the following issues forconsideration: (1) Is the plaintiff entitled to get the relief ofdeclaration with regard to the suit properties?(2) Whether the defendant has to execute a sale of the suitproperties in favour of the plaintiff?(3) Is the plaintiff entitled to get the mesne profits forthree years as claimed by her and also to get the future mesneprofits?(4) Is the amount of mesne profits correct?(5) Whether the defendant is the absolute owner of the suitproperties?(6) Whether the defendant is bound by the judgment anddecree of the Sub-Court, Erode, in A.S.No.128 of 1976 and of the High Court at Madras in S.A.No.972 of 1978?(7) Whether the defendant has spent Rs.10,000/- for thesuit property? https://hcservices.ecourts.gov.in/hcservices/ (8) Whether the plaintiff has to give possession to thedefendant by way of adverse possession?(9) Whether the suit is barred by limitation?(10) To what other relief the plaintiff is entitled to?10. Based on the settlement deed, dated 19.4.1973, marked as ExhibitA.1 and based on the oral and documentary evidence available, the trialCourt had come to the conclusion that the suit properties had originallybelonged to the plaintiff's mother Nadupalaniammal. It was found that theplaintiff's mother had executed a settlement deed, dated 19.4.1973, withregard to the suit properties in favour of the plaintiff. The suitproperty has been described as the separate properties of the plaintiff'smother, which had been purchased by her, on 8.3.1956, and has been in herpossession and enjoyment ever since. It has been stated in the settlementdeed that the suit property had been executed by the plaintiff's mother infavour of the plaintiff due to love and affection and without receivingany other benefit or consideration.

It had been stated before the trial Court that after thesettlement deed, dated 19.4.1973, the plaintiff had permitted thedefendant to stay in the suit house. It was found that thereafter thedefendant had filed a suit praying for specific performance before the District Munsif Court, Erode, stating that the plaintiff's mother hadexecuted a sale agreement agreeing to sell the suit property to thedefendant. The suit had been decreed in favour of the defendant as seenfrom Exhibit A.2. Against the judgment and decree passed by the DistrictMunsif Court, Erode, the plaintiff's mother had filed an appeal inA.S.No.257 of 1975, before the District Court, Erode. Later, it wastransferred to the Subordinate Court, Erode, and numbered as A.S.No.128 of1976. The said appeal had been decided in favour of the plaintiff and hermother holding that the alleged agreement of sale, dated 10.3.1973, set upby the defendant was not true and valid. The defendant had filed a secondappeal in S.A.No.972 of 1978, before the High Court at Madras challengingthe judgment and decree of the Subordinate Court, Erode. The High Court of Judicature at Madras, had confirmed the decision of the Subordinate Court, Erode, as seen from Exhibits A.4 and A.5. Thus, it was seen that the saleagreement, dated 10.3.1973, entered into between the plaintiff's motherand the defendant was not valid in law. Hence, the claim of the defendantthat the suit property belonged to him in accordance with the saidagreement of sale cannot be accepted. Therefore, the trial Court had foundthat the claim of the defendant that he is entitled to the suit propertybased on the sale agreement cannot be accepted.

The trial Court had found that the plaintiff had given a noticemarked as Exhibit A.6 asking the defendant to hand over possession of thesuit property. The defendant had issued a reply notice marked as Exhibit https://hcservices.ecourts.gov.in/hcservices/ A.9 in which the defendant had stated that the suit property belonged tohim and that he is in occupation of the suit property as a tenant. It hadbeen further stated that the defendant has spent Rs.10,000/- to carryoutthe repairs in the suit properties. Further, the defendant had alsoclaimed title in the suit property by adverse possession. However, thetrial Court had found that there was no basis on which the defendant hadclaimed such title. Further, there was no documentary evidence in supportof the claim of the defendant that he was in possession of the suitproperty.

From the oral evidence of the defendant, the trial Court hadfound that the defendant was living in Erode in two of the ten housesbelonging to him. It was further found that the defendant in his evidencehad stated that he did not know the measurements of the suit house inquestion and that there is no electricity connection for the said suithouse and that the house, which is claimed by the defendant to be in hispossession and enjoyment, is very old and that it is not fit foroccupation.

The trial Court had also come to the finding that the claim ofthe defendant that he had spent Rs.10,000/- on repairing the house wasincorrect. If the said amount had been spent on carrying out the repairson the house, it could not have been in such a dilapidated condition beingunfit for occupation. The trial Court had also found that the defendanthad not shown any proof, by way of evidence, in support of his claim thathe is in adverse possession of the suit property. Since the defendant hadfiled the suit in O.S.No.1101 of 1973 on the file of the District MunsifCourt, Erode, and the dispute with regard to the title and ownership ofthe suit house has been pending before the Courts of law, the defendantcannot claim adverse possession by counting the period during which suchlitigation was pending.

Based on Exhibit A.1, the trial Court had found that the suithouse belonged to the mother of the plaintiff and that it was given to theplaintiff by way of settlement deed. Further, decisions of the High Courtat Madras has confirmed that the suit property belonged to the plaintiffand therefore, it could be held that she is entitled to the relief ofdeclaration as prayed for. Consequently, the plaintiff is also entitledfor the relief of recovery of possession.

The trial Court had also held that the plaintiff had no otherhouse to live in except the one in the suit property, whereas thedefendant had 10 houses in Erode. Further, the defendant had notsubstantiated his claims by way of evidence to show that he was in adversepossession of the suit property to claim title over the said suitproperty. The trial Court had also found that there was no proof to showthat the defendant had spent Rs.10,000/- for carrying out the repairs asclaimed by him. In conclusion, the trial Court had declared that the suitproperty belonged to the plaintiff and had also held that the defendant https://hcservices.ecourts.gov.in/hcservices/ was to hand over the vacant possession of the suit property to theplaintiff. Thus, the trial Court had decreed the suit as prayed for by theplaintiff and it had directed the defendant to hand over possession ofthis suit property to the plaintiff, within one month from the date of thedecree. Further, it had directed the defendant to pay damages at a rate ofRs.25/- per month, for three years prior to the filing of the suit. Withregard to the claim of the plaintiff for mesne profits, it was held thatthe plaintiff can claim the same under Order 20 Rule 12 of the CivilProcedure Code by way of separate proceedings.

Aggrieved by the judgment and decree of the trial Court, dated27.3.1995, made in O.S.No.1 of 1988, the defendant had filed an appealbefore the Sub-Court, Bhavani.

Based on the averments made on behalf of the plaintiff as well asthe defendant and relying on the records available, the lower appellateCourt had framed the following point for consideration: "Whether the plaintiff has the right over the suitproperty as per the decision of the High Court, and if so, whether the defendant has to vacate the suit property? "

The lower appellate Court had found that the High Court of Judicature at Madras, had held in S.A.No.972 of 1978 that the defendant isa tenant as held by the lower appellate Court in A.S.No.128 of 1976.Further, it had been found that the suit property belonged to theplaintiff and that the defendant was not entitled to the relief ofspecific performance. Since the defendant has been held to be a tenant, the notice, which had been sent on behalf of the plaintiff describing thedefendant as a trespasser, cannot be held to be causing serious damage tothe claims of the plaintiff. In such circumstances, the lower appellateCourt had confirmed the findings of the trial Court by its judgment anddecree, dated 1.7.1996 made in A.S.No.5 of 1996. Aggrieved by the judgmentand decree of the lower appellate Court, dated 1.7.1996, made in A.S.No.5of 1996, the present second appeal has been filed before this Court on thevarious grounds raised in the grounds of appeal.

The second appeal had been admitted on the following substantialquestions of law. "1. Whether the Courts below erred in not holding that theappellant has been in possession and enjoyment of the propertyand perfected title by adverse possession?2. Are the decrees and judgments passed by the Courtsbelow correct and sustainable in law?"

The learned counsel appearing on behalf of the appellant hadcontended that both the Courts below had erred in law in holding that the https://hcservices.ecourts.gov.in/hcservices/ appellant/defendant is a tenant in the suit property and that he is notentitled to claim adverse possession with regard to the suit property. TheCourts below had not considered the discrepancies in the claims made bythe plaintiff in the notice issued by her marked as Exhibit B.1 and in hersuit in O.S.No.1 of 1988.

The learned counsel appearing on behalf of the appellant hadrelied on the following decisions in support of her contentions:22.1. The learned counsel appearing on behalf of the appellant hadrelied on the decision of this Court made in Fathuma and another Vs.K.S.Kadherkani (1995(2) L.W.705), to show that this Court can interferewith the concurrent findings of the Courts below in a second appeal filedunder Section 100 of the Civil Procedure Code, if the findings arrived atby the Courts below are perverse. 22.2. In Thailammal Vs. Batumalai, (1965 (I) M.L.J.383), this Courthas held that the suit was barred by limitation under Article 139 of the Limitation Act. The period of limitation began to run from 1935 when thelease came to an end by efflux of time. The plaintiffs' attempt to pleadthat he was a minor and he could bring the action within three years ofattaining majority must fail, for, in 1935 he was not even born.

Per contra, the learned counsel appearing on behalf of therespondent/plaintiff had contended that the claims made by theappellant/defendant are not sustainable in law and that the Courts belowwere right in coming to the conclusion that the suit property belonged tothe respondent/plaintiff and that the appellant/defendant is not entitledto claim adverse possession.

The learned counsel appearing on behalf of therespondent/plaintiff had relied on the following decisions in support ofher contentions.24.1. In Bhura Mogiya and others Vs. Satish Pagariya and others(2001) 9 SCC 385), the supreme Court has held that admittedly, thedefendants came into possession on the basis of agreement, which was apermissible possession. Once the defendants' possession was by virtue ofan agreement it is not open to them to take a plea that they acquiredtitle by adverse possession. Permissible possession cannot be convertedinto adverse possession unless it is proved that the person in possessionasserted and acquired adverse title to the property to the knowledge ofthe true owner for a period of 12 years and above. 24.2. In Roop Singh (Dead) Through Lrs. Vs. Ram Singh (Dead) ThroughLrs. (2000) 3 SCC 708), the Supreme Court has held that if the defendantgot the possession of suit land as a lessee or under a batai agreementthen from the permissive possession it is for him to establish by cogentand convincing evidence to show hostile animus and possession adverse tothe knowledge of the real owner. Mere possession for a long time does notresult in converting permissive possession into adverse possession.

On analysing the records available before this Court, the caselaws cited and based on the rival contentions of the learned counselsappearing on behalf of the appellant/defendant as well as therespondent/plaintiff, this Court is of the considered view that the Courtsbelow have come to the right conclusion that the respondent/plaintiff isentitled to the suit property and that the appellant/defendant cannotclaim title by adverse possession with regard to the suit property.