THE HONOURABLE MR v. Muthukrishnan2.Venugopal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 02.01.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANS.A.No.135 of 1997Govindaroyan .. Appellant/Plaintiffvs.1.Muthukrishnan2.Venugopal .. Respondents/DefendantsPrayer: This Second Appeal has been filed u/s. 100 CPC against theJudgment and Decree dated 06.09.1996 made in A.S.No.186 of 1994 onthe file of the Additional District Judge, Villupuram RamasamyPadayachiyar District, Villpuram, confirming the judgment anddecree dated 29.06.1994 made in O.S.No.486 of 1988 on the file ofPrincipal District Munsif, Villupuram.For Appellant : Mr.T.Dhanya KumarFor Respondent : Mr.S.KrishnaswamyJUDGMENTThis second appeal has been preferred against the decree andjudgment in A.S.No.196/1994 on the file of the Additional DistrictJudge, Villupuram. The plaintiff who has lost his case before boththe courts below has preferred this second appeal. The plaintifffiled O.S.No.486/1988 before the Principal District Munsif,Villupuram, for declaration and consequential permanent injunctionin respect of the suit property. 2. The short facts of the case of the plaintiff in the plaintrelevant for deciding this appeal are as follows:-The suit property originally belonged to one Vellan, whohad two sons by name Samykannu and Nagappan and a daughter by nameSambatha. The suit property is S.No.394/1B measuring 0.65 cents.After the death of Vellan both the sons and the daughter Sambathahave partitioned the above said property taking each 0.22 cents.The plaint schedule property was allotted to the share of Sambathaafter partition. The parties were in possession and enjoyment of https://hcservices.ecourts.gov.in/hcservices/ their respective shares. The plaintiff's father Kannan wasresiding about 3 to 4 furlongs away from the suit property alongwith his father. The plaintiff's father got married in the year1969. Since the hut of the plaintiff's father got damaged in fire,he along with his father had put up another hut in the suitproperty with the permission of Sambatha. Plaintiff's father waspaying land tax and house tax. Patta No.63 was assigned to thesuit survey number property. Plaitniff's grand father had put up ahut on the north of the suit property and was residing. Theplaintiff from his birth residing in the hut situated in the suitproperty. The first defendant is residing 1 ½ furlongs away fromthe plaint schedule property in his hut. Plaintiff's grant fatherhas put up a hut ½ furlong North of the first defendant's hut. Thesecond defendant has put up a hut about 100 feet away from the hutput up by the plaintiff's grant father. The defendants arepermanently residing for the past 20 years in the above said hut.The plaintiff's father was in the suit property after gettingnecessary permission from the original owner and he hassubsequently purchased the suit property from Sambatha forRs.4,000/-. As per the above said sale deed, the plaintiff'sfather was enjoying the plaint schedule property and he is inpossession adverse to the interest of other sharers from 1960onwards. The second defendant after knowing that the plaintiff haspurchased the share of Sambatha had purchased in the suit surveynumber an extent of 0.12 cents from Samykannu and his sons on05.02.1987. The first defendant also claims right in respect of0.22 cents in the plaint schedule property on 14.12.1987 from thesaid persons. In the above said sale deeds, the boundaries for theproperty purchased under the said deeds were not correctlymentioned. The vendor has no valid title to convey any right underthe above said sale deed in favour of the defendants. During thelast week of November, 1987, the defendants made an attempt tointerfere with the possession of the plaintiff in respect of thesuit property. Hence, the plaintiff issued a notice dated21.11.1987. In the said notice, the plaintiff has inadvertentlymentioned that his house was constructed with stone. Plaintiff hasreceived a reply notice dated 01.12.1987. Hence, the suit.3. The second defendant has adopted the written statementfiled by the first defendant as follows:-The extent mentioned as 0.65 cents in the suit surveyNo.394/1B in the plaint is not correct. The total extent of thesuit survey number property is 0.68 cents. The suit property wasallotted to the share of Vellan, who had two sons by name Samykannuand Nagappan and a daughter by name Sambatha. But there was nopartition entered into between them and the allegations in theplaint that they were each allotted 0.22 cents in the suit surveynumber property is false. It is also not correct to say that the https://hcservices.ecourts.gov.in/hcservices/ plaint schedule property was allotted to the share of Sambatha.Sambatha was never in possession and enjoyment of the suit propertyat any point of time. The hut in the suit property was not put upby Sambatha. The patta No. assigned to the suit survey numberproperty was 63 and not 81. The plaintiff is not in possession ofthe suit property from the date of alleged sale deed dated12.12.1986. The plaintiff has not prescribed title by way ofadverse possession. After the marriage in the year 1983 Sambathanever visited the suit survey number property. Samabatha's fatherVellan died on 09.12.1943. After the death of Sambatha's fatherVellan, Sambatha had no right or title over the suit property.The sons of Vellan namely Samykannu and Nagappan have partitionedthe entire 0.68 cents in the plaint survey number property in equalmoieties and they are enjoying their respective shares from thedate of death of Vellan in the year 1943. The correct boundariesto the suit properties were not furnished in the schedule to theplaint. There is discrepancies in the four boundaries for theproperty scheduled to the notice issued by the plaintiff dated21.11.1987. The first defendant has purchased 0.22 cents fromSamykannu on 14.12.1981 and as per the partition dated 09.03.1983,the defendants have divided the said 0.22 cents equally amongthemselves allotting 0.11 cents each. The sale deed dated14.12.1981 will bind the plaintiff. The suit survey No.394 hasbeen sub-divided into Survey No.394/1B/1 measuring 0.10.5 ares.The second defendant had purchased the remaining 0.12 cents on5.2.1987 from Samykannu, one of the sons of Vellan. The sons ofNagappan had executed a sale deed in respect of 0.18 cents infavour of third parties and they are in possession and enjoyment ofthe remaining extent of 0.16 cents in the suit survey numberproperty. The tax receipts produced by the plaintiff are notrelated to the plaint schedule property. The Court fee paid in theplaint is not correct. The defendants never made any attempt tointerfere with the possession of the plaintiff in respect of thesuit property. Hence, the suit is liable to be dismissed.4. On the basis of the above pleadings, the Trial Court hasframed as many as ten issues and on the basis of the oral anddocumentary evidence, has come to the conclusion that the plaintiffhas miserabily failed to prove his title and possession in respectof the suit property and consequently dismissed the suit withoutcosts. Aggrieved by the findings of the learned trial judge, theplaintiff preferred A.S.No.186/1994 before the Additional DistrictJudge, Villupuram, who has also dismissed the appeal confirming thedecree and judgment of the trial Court in O.S.No.486/1988. Hence,the plaintiff has preferred this second appeal. 5. The substantial questions of law involved in this appealare as follows:- https://hcservices.ecourts.gov.in/hcservices/ i) Whether the plaintiff is entitled to the reliefof injunction? ii) Whether the plaintiff has prescribed title byadverse possession? iii) Whether the plaintiff has proved title to thesuit property? iv) Whether the permission given by P.W.3 to theplaintiff's family to put up the hut in the suit propertydebars the plaintiff to acquire title by adversepossession against the defendants?6. The point 1 to 4:-6(a) The appellant claimed titled to the suit propertyunder two means. One is under the sale deed dated 12.12.1986 underEx.A.13 from one Sambatha, the daughter of the original ownerVellan. According to the appellant, the total extent of the suitproperty in S.No.394/1B is 68 cents and originally belonged to oneVellan, who died leaving two sons by name Samykannu and Nagappanand one daughter by name Sambatha and that after the death ofVellan, Samykannu, Nagappan and Sambatha have partitioned theplaint schedule property and in the partition each got 0.22 centsin the suit survey number property. The plaintiff would claim thathe had purchased 0.22 cents in the suit survey No.394/1B fromSambatha. But as rightly held by the Court below that after thedeath of Vellan in 09.12.1943, the entire property devolved onSamykannu and Nagappan only, and Sambatha, the only daughter ofVellan, had no right of inheritance on the date of death of Vellanin the year 1943. 6(b) The plaintiff would claim right to the suitproperty by way of adverse possession too. According to theappellant, even before Ex.A.13-Sale deed, his father had put up ahut in the suit property and he was living therein from 1969. Tosubstantiate this contention, the plaintiff has filed Ex.A.1 toA.11 house tax receipts. But the learned trial judge has rightlyrejected the claim of the appellant/plaintiff's claim of adversepossession on the ground that Ex.A.1 to A11 receipts do not relateto the suit house. Ex.A.1 is of the year 1979 whereas Ex.A.2 toEx.A.5 are relating to the year 1984, 1985, 1986 and 1988 in thename of the plaintiff Govindan. The suit was filed in the year1988. There is no house tax receipt produced by the plaintiff forthe period from 1980 to 1983. Ex.A.6 is dated 21.04.1979 in thename of Vellayutham Gounder, the grand father of theappellant/plaintiff. Ex.A.7 is dated 19.05.1984 in the name kannanthe father of the appellant/plaintiff. If the plaintiff/appellantis in continuous possession of the suit property, then he wouldhave produced the house tax receipt for the suit property for the https://hcservices.ecourts.gov.in/hcservices/ period 1980 to 1983 also. There is no explanation forthcoming fromthe appellant/plaintiff for the non-production of the house taxreceipt relating to the year 1980 to 1983. The only one land taxreceipt produced by the appellant/plaintiff is dated 15.05.1985under Ex.A.12. But all those receipts Ex.A1 to A12 are not relatedto the plaint schedule survey number property. If the case of theappellant/plaintiff is that he is in possession of the suitproperty from 1969 along with his father Kannan, then he would haveprescribed title by adverse possession even by 1981 itself. Undersuch circumstances, there is absolutely no necessity for theplaintiff to take sale deed in the year 1986 from Sambatha underEx.A.13. Further, Sambatha, the vendor, under Ex.A.13 had no rightin respect of the suit property to convey the same in favour of theplaintiff as rightly observed by both the Courts below on theground that Sambatha's father Vellan died in the year 1943 and onthe date of death of Vellan, Sambatha is not entitled to inheritthe property of Vellan. 6(c) Learned counsel appearing for the appellant reliedon 2000(3) LW 848 (Thangamani Vs. Santhigagu) and contended thatthe plaintiff has specifically pleaded in the plaint that he hasprescribed title to the property by way of adverse possession andon that score, he is entitled to a decree. The pleading in theplaint alone will not cloth the plaintiff with the right to claimadverse possession. The plea of adverse possession must be pleadedand proved. The plaintiff must prove that he is in possession ofthe suit property adverse to the interest of the real owners of theproperty. There is absolutely no evidence let in by the plaintiffto show that he was in possession of the plaint schedule propertyadverse to the interest of the two sons of Vellan viz. Nagappan andSamykkannu. The facts of the above said dictum runs as follows:-"According to the plaintiff in the said suit, thesuit property is comprised in S.No.148/3 in AdiyanoothuVillage. The entire extent was 1 acre and 65 cents.Originally, it was owned by one Kitheri Ammal and by aseries of sales, the plaintiff purchased the property inthe year 1972 from one Pitchamuthu Servai. He was doingpersonal cultivation in the suit property. The defendantowns the property north of the plaintiff's property andthe same was comprised in Survey No.148/1B. Takingadvantage of the fact that the plaintiff was an absenteelandlord, the defendant in the course of one year hadslowly encroached upon the plaintiff's property to anextent of 18 cents. He had shifted the ridge separatingthe properties to south and it was known to the plaintiffonly two or three months prior to the filing of the suit.The plaintiff thereupon applied to the Tahsildar formeasuring the property and accordingly, the Taluk https://hcservices.ecourts.gov.in/hcservices/ Surveyor measured the property and found that a portionof the plaintiff's property had been encroached by thedefendant. Though the defendant agreed to vacate theencroached portion he was refusing to hand overpossession of encroached portion of 18 cents.In the written statement filed by the defendant, itwas contended that the ridge separating his property andthat of the plaintiff's property was in its present formfor the past several years. The land north of the ridgewas originally owned by one Rayan Servai and by a seriesof sales, the defendant's father and uncle had purchasedthe property in 1943. In 1954, the defendant's fatherpurchased the share of the defendant's uncle and became afull owner. After his death in 1970, the defendant wasin absolute possession of the property and therefore, thedefendant and his predecessors in interest have been incontinuous possession of the property of the entireextent north of the ridge and hence perfected title byadverse possession to the knowledge of the plaintiff andhis predecessors in interest. Therefore, the plaintiffhas no title or possession over the suit property and hehad not asserted title to the disputed portion.The trial court held that the defendant had admittedthe plaintiff's title in the written statement andtherefore, it was not open to the defendant or hiswitnesses to go back from the recitals in the documents.As regards the claim of adverse possession by thedefendant, it was held that the trespass could not havebeen before 1974 and since the suit had been filed in theyear 1980 itself the said plea cannot be upheld. Theappellate Court however, held that the evidence clearlyestablished that the defendant was in possession of thedisputed portion even long prior to the purchase by theplaintiff in the year 1972. With the result, claim ofadverse possession by the defendant was upheld and thedecree granted by the trial Court was set aside. Hencethe Second appeal.Relying on AIR 1947 PC 19 (Bibhabati Devi Vs.Ramendra Narayan), AIR 1964 SC 1254 (S.M.Karim Vs.Bibi Sakina), AIR 1971 SC 996 (State Bank ofTravancore Vs. A.K.Panicker), AIR 1992 Karnataka 270(Venkatachalaiah Vs. Nanjundaiah), AIR 1976 Madras 124(Bhagavathy Vs. Savarimuthu), 1979(I) LW 419 (KarmegaKone Vs. Udayar Kone), AIR 1985 Orissa 40 (NaranBehera Vs. Mohan Jethi), 1995-1 LW 680 (Ponniyan Vs.Munian (died) and others), 1996(I) CTC 699 (NatesanVs. Chinnachi Kandar), 1998-1 LW 244 (Roohnisha Beeviand 15 others Vs. AMM.Mahudu Mohamed and 29 others),1998(2) LW 171 (The State of Tamil Nadu represented by https://hcservices.ecourts.gov.in/hcservices/ The District Collector, Thiruchirrapalli Vs.K.Purushothaman), AIR 1934 PC 23 (Secretary of StateVs. Debendra Lal), AIR 1935 PC 36 (Srischandra Vs.Baijnath), AIR 1981 SC 707 (Kshitish Chandra Bose Vs.Commissioner of Ranchi), 1993 (4) SCC 375 (ParsinniVs. Sukhi), it has been held by the learned judge ofthis Court as follows:-The expression that there should be animusagainst the real owner, came to be made in particularcases, where the question arose as to whether thecontesting party was the real owner of the property ornot and in cases where the person in possession wasrequired to prove ouster strictly and particularlyagainst the specific individual or individuals as in thecase of a co-owner pleading ouster and adverse possessionor a case of possession which was permissive at theinception and the person in occupation claims to haveacquired hostile title vide AIR 1971 SC 996. But incases where the occupier and the predecessors in titlehave been in open and continuous occupation assertingpositive title in themselves and against every one, andthe real owner does not take any step to assert his rightand to interrupt the running of the period, there is noreason as to why the occupier cannot claim adversepossession. The following judgments emphasise that whatis necessary is open and unconcealed possession and thatit is not necessary that his possession should have beenbrought to the notice of the real owner.6(d) The above said dictum will not be applicable to thepresent facts of the case, because even though there is a pleadingin the plaint filed by the plaintiff to the effect that he is inpossession by way of adverse possession, there is absolutely noevidence produced by the plaintiff to show that he is in possessionof the plaint schedule property in continuous possession againstthe interest of the real owner for a statutory period of twelveyears. The documents Ex.A.1 to A.12 produced by the plaintiff donot relate to the suit property. Under such circumstances, theclaim of the plaintiff over the suit property under long continuouspossession, which according to the plaintiff is adverse to theinterest of the real owner cannot be sustainable. The titleclaimed by the plaintiff under Ex.A.13-sale deed dated 12.12.1986cannot also be upheld because the vendor Sambatha had no right ortitle in respect of the suit property to execute a sale deed infavour of the plaintiff in the year 1986 because she has notderived any title to the suit property after the death of herfather in the year 1943. Under such circumstances, I do not findany reason to interfere with the concurrent findings of the Courtsbelow. Points are answered accordingly. https://hcservices.ecourts.gov.in/hcservices/

7. In the result, the appeal is dismissed, with costs throughout, confirming the decree and judgment of the first appellateCourt in A.S.No.186/1994 on the file of the Additional DistrictJudge, Villupuram.ssvSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo, 1.The Additional District Judge, Villupuram Ramasamy Padayachiyar District, Villpuram.2.The Principal District Munsif, Villupuram.3. The Section officer, VR Section, High Court, Madras.+ 1 cc to Mr. S. Krishnasamy, Advocate SR No. 138+ 1 cc to Mr. T. Dhanyakumar, Advocate SR No. 304BK(CO)SR/20.2.2007S.A.No.135 of 1997