CoramThe Honourable Mr v. Govinda Gowdu2.Gurrappa3.Kakasuradu

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 11-01-2007CoramThe Honourable Mr.Justice A.C.ARUMUGAPERUMAL ADITYANSecond Appeal No.157 OF 1997Venkatasami..Appellant/Plaintiff.vs.1.Govinda Gowdu2.Gurrappa3.Kakasuradu..Respondents/1st and 2nd DefendantRespondents/3rd Defendant.This Second appeal was filed under Section 100 CPC against the decreeand judgment dated 12.08.1996 made in A.S.No.29 of 1996 on the file of theCourt of the Subordinate Judge, Hosur, reversing the decree and judgmentmade in O.S.No.359 of 1980 dated 1.2.1995 on the file of the Court of theDistrict Munsif, Hosur. For Appellant: Mr.D.J.Venkatesh for Mr.V.RaghavachariFor Respondent : Mr.V.Sekar for Mr.D.ShivakumaranJUDGMENTThis appeal has been preferred against the decree and judgment inA.S.No.29/1996 on the file of the Subordinate Judge, Hosur, by theplaintiff in O.S.No.359/1980 on the file of the Court of District Munsif,Hosur, who has got decree in his favour before the trial Court andsubsequently lost his case in the appeal preferred by the defendants 1 & 2before the first appellate Court.2. The suit was filed for declaration of the plaintiff's possessoryright in respect of the suit property and also for delivery of possessionfrom the defendants and for mesne profit. The averments in the plaint inbrief relevant for the purpose of deciding this appeal are as follows:-The suit property belong to one Ellapa Chetty of Beerje Pallim, whohad three sons. The suit property is a highways poramboke bearingS.No.539. The suit property comprises of a house and vacant site. The https://hcservices.ecourts.gov.in/hcservices/ said house was constructed some 20 years back by Ellappa Chetty. Therevenue department after collecting 2 cess have recognised the possessionof the Ellappa Chetty in respect of the suit property. Apart from thehouse of Ellappa Chetty, the houses of Nasigan, Muniyappan and Maligachariare also stand in S.No.539. At the time of partition of the propertybelonging to Ellappa Chetty the suit property was originally allotted toone Subramanian towards his share. Since the said Subramanian wasresiding at Bangalore, the suit property was looked after by his brotherSathiyanarayana Reddy. The said Subramanian had executed a sale deed infavour of the plaintiff on 8.8.1980 in respect of the suit property for aconsideration of Rs.1,000/-. From on that date onwards the plaintiff isin possession and enjoyment of the plaint schedule property. Thedefendants have no right or title in respect of the suit property. Theattempt made by the defendants to purchase the suit property ended futile.Hence, the defendants have developed a grudge against the plaintiff. Thedefendants are attempting to disturb the possession of the plaintiff overthe plaint schedule property. The first defendant with the grosser ofdefendants 2 & 3, trespassed into the suit property in the year 1981 atthe time when the plaintiff was away from the suit property. The seconddefendant has trespassed into the front portion of the house in the suitproperty and the third defendant has trespassed into the back portion ofthe suit property. Inspite of several panchayats took place between theparties, the defendants have refused to vacate and handover the possessionof the suit property. Hence, the plaintiff has impleaded defendants 2 & 3in the array of parties. Hence, the suit.3. The defendants 2 & 3 remained exparte. The first defendant in hiswritten statement would contend that the house in the suit property is acommon house. Neither the vendor of the plaintiff nor the plaintiff hadany exclusive right in respect of the said house. Ellapa Chetty has notconstructed the suit house and he was never in possession and enjoyment ofthe said house and under the sale deed cannot claim any right in respectof the suit property. The vendor of the plaintiff had no right of his ownto convey the same in favour of the plaintiff. The said sale deed is aconcocted document. Since the suit property is a road poramboke, theplaintiff cannot claim any right in respect of the suit property. For theconvenience of the public the defendants have constructed a shed near thesuit property some 15 years back. The said shed was used by thedefendants and those who do not have any house used to dwell in the saidshed. The suit property is still with the possession of the defendants.The suit property is being used by the public as a 'rest house'. Afterobtaining an order of interim injunction the plaintiff is making allattempts to enter into the plaint schedule property. Only to grab at theplaint schedule property the plaintiff has filed this vexatious suit. Theplaintiff has examined P.W.1 to P.W.4 and exhibited Ex.A.1 to A.4. On theside of the defendants D.W.1 & D.w.2 were examined and Ex.B.1 and Ex.B.2were marked. A Commissioner was appointed by the trial Court, who hadfiled Ex.C.1-report and Ex.C.2-plan. https://hcservices.ecourts.gov.in/hcservices/

4. On the above pleadings the trial Court has framed four issues andon the basis of the available documentary and oral evidence, the trialJudge has come to a conclusion that the plaintiff is entitled to therelief as prayed for in the plaint and consequently decreed the suit withcosts. Aggrieved by the findings of the learned trial Judge, thedefendants 1 & 2 have preferred A.S.No.129/1996. The learned firstappellate judge after giving due deliberation to the submissions made byboth the parties and after going through the documentary and oralevidence let in before the trial Court, accepted the case of the appellantand allowed the appeal thereby dismissed the suit. Hence, the secondappeal before this Court by the plaintiff. 5. The substantial question of law involved in this second appeal iswhether the lower appellate court has misconstrued the evidence of D.W.1and also failed to notice that adjunct to the matam is the suit propertyand it is in the possession of the plaintiff/appellant?6.The point:- I have heard the submissions made by Mr.Venkatesh, whoargued on behalf of his senior Thiru.Rahavachari, learned counsel for theappellant and Mr.Sekar, who argued on behalf of Mr.Sivakumaran, learnedcounsel for the respondents and considered their rival submissions. Theappeal by the plaintiff cannot be allowed for the following reasons:-(i) Admittedly the suit property is a highway poramboke. In thecause of action column in the plaint, the plaintiff has stated that he hadpurchased the suit property under Ex.A.1-sale deed dated 8.8.1980 andEx.A.2-Correction deed dated 6.10.1980. It is the case of theappellant/plaintiff that the suit property was originally possessed by oneEllappa Chety, who had partitioned his property along with his sons inwhich the suit property was allotted to one of his sons Subramanian, whowas residing at Bangalore and that the said Subramanian had executedEx.A.1-sale deed. Ex.A.1 is in Telugu and the Tamil translation copy hasbeen attached with Ex.A.1, which on translation in English reads asfollows:-"The property sold under Ex.A.1 is bearing NathamS.No.529 measuring 1.5 cents comprising a house. It cannotbe disputed that the Government is the paramount holder oftitle in respect of Natham poramboke land. But in this case, Government was not arrayed as a party. Under Order 1Rule 9 of CPC also the claim of the plaintiff cannot be upheld because ofnon-joinder of necessary party subsequent to the amendment of CPC underAct 104 of 1976. To show his possession the plaintiff relied on Ex.A.3and Ex.A.4. Ex.A.1 is in the name of one Sathiyanarayana son of EllapaChety and also in the name of Ellapa Chety. A reading of the recital inEx.A.1 will go to show that the property sold under Ex.A.1 was anancestral property of the said Subramanian. In the plaint it has beenstated that under a partition between Ellapa Chety and his sons,Subramanian was allotted with the plaint schedule property. But there wasno document produced to show that subsequent to the oral partition between https://hcservices.ecourts.gov.in/hcservices/ Ellapa Chety and his sons mutation has been effected in respect of thesuit property in favour of Subramanian. No tax receipt in the name ofSubramanian was produced to show that after the allotment by thepartition, Subramanian, the vendor of the plaintiff, was in exclusivepossession and enjoyment of the suit property. Ex.A.3(series) stands inthe name of Sathiyanarayana. There are several corrections in Ex.A.3(series)-tax receipts. (ii) The learned counsel for the appellant would contend thatSathiyanarayana, who is none other than the brother of Subramanian, hadpaid the tax on behalf of Subramaniyan. P.W.2 is Sathiyanarayana. In thecross-examination he would depose that he does not know whether the suitproperty has been mentioend in Ex.A.1 and A.3 as ancestral property orhighways poramboke. He has further deposed in the cross-examination thatthere were documents to show that his father had constructed house inporamboke land. The house tax receipts produced under Ex.A.4 are allsubsequent to the filing of the suit which ws filed in the year 1980. Thelearned first appellate Court has given a clear finding that the vendorunder Ex.A.1 in favour of the plaintiff in respect of the suit propertyhimself has no right to execute sale deed in respect of the suit propertybecause the suit property is in highway poramboke. Futher it is pertinentto note from Ex.C.2, Commissioners plan, that the plaintiff's house issituated North of the suit property. Ex.C.1-report at para 4, theCommissioner has clearly stated that house marked as "A" and "C" inEx.C.1-plan are in the suit place which are Mangalore tiled house and thevacant site lying in between house "A" and "C" has been marked as "B" inEx.C.2-Plan. The learned Commissioner has further stated that Gurapa-D2was not available in the house belonging to him, which has been marked as"A" in the Ex.C.2-Plan, but one Munima was present in the house marked as"C" to Ex.C.2-Plan. So it is clear from Ex.C.1-report and Ex.C.2-Planthat D2 and another person by name Munima are residing in the housesituated in the suit property. (iii) The learned counsel appearing for the appellant relying on2004(1) SCC 769 [Rame Gowda (dead) By LRs. Vs. M.Varadappa Naidu (dead)by LRs. And another], and contended that the settled possession of anoccupant cannot be dispossessed without recourse to law. What is asettled possession has been defined in the said judgment by the learnedjudge of the Honourable Apex Court relying on an earlier judgment of theApex Court in 1975 (4) SCC 518, (Puran Singh Vs. State of Punjab), asfollows;-"The settled possession must be (i) effective, (ii)undisturbed, and (iii) to the knowledge of the owner or withoutany attempt at concealment by the trespasser. The phrase'settled possession' does not carry any special charm or magicin it; nor is it a ritualistic formula which can be confined ina straitjacket. An occupation of the property by a person asan agent or a servant acting at the instance of the owner willnot amount to actual physical possession. The Supreme Court inPuran Singh Case, (1975)4 SCC 518, 527, para 12, has laid downtest which may be adopted as a working rule for determining the https://hcservices.ecourts.gov.in/hcservices/ attributes of 'settled possession'.Settled possession gives a right to possession such thateven the rightful owner may only recover it by taking recourseto law. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . It is the settled possession or effective posession of a personwithout title which would entitle him to protect his possessioneven as against the true owner. The concept of settledpossession and the right of the possessor to protect hispossession against the owner has come to be settled by a catenaof decisions. Illustratively, we may refer to AIR 1968 SC 702(Munshi Ram Vs. Delhi Adman), 1975(4) SCC 518) (Puran Singh Vs.State of Punjab) and 1977(1) SCC 188 (Ram Rattan Vs. State ofUP). The authorities need not be multiplied. IN Munshi Ramcase it was held that no one, including the true owner, has aright to dispossess the trespasser by force if the trespasseris in settled possession of the land and in such a case unlesshe is evicted in the due course of law, he is entitled todefend his possession even against the rightful owner. Butmerely stray or even intermittent acts of trespass do not givesuch a right against the true owner. The possession which atrespasser is entitled to defend against the rightful ownermust be settled possession extending over a sufficiently longperiod of time and acquiesced to by the true owner. A casualact of possession would not have the effect of interrupting thepossession of the rightful owner. The rightful owner mayreenter and reinstate himself provided he does not use moreforce than is necessary. Such entry will be viewed only asresistance to an intrusion upon his possession which has neverbeen lost. A stray act of trespass, or a possession which isnot matured into settled possession, can be obstructed orremoved by the true owner even by using necessary force. InPuran Singh Case the Court clarified that it is difficult tolay down any hard-and-fast rule as to when the possession of atrespasser can mature into settled possession. The 'settledpossession' must be (i) effective, (ii) undisturbed, and (iii)to the knowledge of the owner or without any attempt atconcealment by the trespasser. The phrase 'settled possession'does not carry any special charm or magic in it; nor is it aritualistic formula which can be confined in a straitjacket.An occupation of the property by a person as an agent or aservant acting at the instance of the owner will not amount toactual physical possession."(iv)At least to come within the protection and shelter of thephrase 'settled possession', the plaintiff must show his possession on thedate of filing of the suit. But Ex.A.4(series)-tax receipts will go toshow that the bunch of house tax receipts produced by him are all https://hcservices.ecourts.gov.in/hcservices/ subsequent to the filing of the suit and not even a single receipt datedbefore the suit has been produced in the name of the plaintiff before thetrial Court to show that the plaintiff is in possession and enjoyment ofthe house situated in the suit property even before filing of the suit.Ex.C.1-Commissioner's report and Ex.C.2-plan will to go show that thesecond defendant and another woman are residing in the house shown as "A"and "C" respectively in the suit property and that the plaintiff'sproperty is situated North of the suit property. Further it is admittedthat the suit property is a highways poramboke. It is not the case of theplaintiff that he is in possession of the suit property hostile to theinterest of the original owner viz. Government for more than the statutoryperiod. Under such circumstances, I do not find any valid reason tointerfere with the well considered judgment in A.S.No.29/1996 on the fileof the Court of Subordinate Judge, Hosur. The learned counsel for theappellant would represent that this court may give him liberty to file afresh suit adding the Government as a party. Such a direction cannot begiven by this Court. It is left to the plaintiff to take on his ownaccord the right decision. Point is answered accordingly.7. In the result, I find no merit in this appeal and the appeal isdismissed with costs confirming the decree and Judgment in A.S.No.29/1996on the file of the Court of Subordinate Judge, Hosur.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssvTo1.The Sub-Judge, Hosur.2.The District Munsif, Hosur.3. The Section Officer, VR Section,High Court, Madras.+ 1 CC To Mr. D.Shivakumaran, Advocate SR NO. 2385/07S.A.No.157 of 1997sgl[co]gp/31.1