M.Manickam v. R.Rukmini

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 11.12.2009CoramThe Hon’ble Mr.Justice M.JEYAPAULSecond Appeal No.646 of 19991. M.Manickam2. M.DevarajAppellantsvs. R.Rukmini2. S.MarudachalamRespondentsFor appellants : Mr.Suresh ViswanathFor respondents : Mr.V.Prakash, Senior Counsel for Mr.K.SudalaikannuPrayer:- Second Appeal against the judgment and decree of the learnedI Additional District Judge, Coimbatore dated 21.1.1999 made inA.S.No.70 of 1998 preferred against the judgment and decree of thelearned I Additional District Munsif, Coimbatore dated 27.2.1998 madein O.S.No.720 of 1994.JUDGMENTDefendants, who suffered a decree before both the courts below,have preferred the present second appeal.2. The suit is one for declaration of title with respect to Bschedule property and also for delivery of vacant possession. Theplaintiffs also sought for past arrears of rent and future rent. 3. It is the case of the plaintiffs/respondents that theplaintiffs purchased A schedule property from one Vamannan by virtueof the sale deed dated 17.10.1978. The husband of the firstdefendant and father of the second defendant was let in possession ofB schedule property by Vamannan as tenant on a monthly rent ofRs.10/=. Claiming that Marumuthu, husband of the first defendant,attorned the tenancy and subsequently paid rent for a few monthsafter the purchase of the suit B schedule property by the plaintiffs,the plaintiffs have sought for the aforesaid reliefs having failed toobtain a relief of eviction before the Rent Controller, for there wasa live dispute raised by the defendants as to the title to B scheduleproperty. https://hcservices.ecourts.gov.in/hcservices/

4. The defendants resisted the suit on the ground that Marimuthuwas given possession about 15 years ago by Vamannan, the vendor ofthe plaintiffs. Having disputed the allegation found in the plaintthat the defendants are the tenants of the suit B schedule property,they have come out with a defence that they have been in possessionand enjoyment of the suit property for over a statutory period andprescribed title to the suit property. Therefore, the defendantssought for dismissal of the suit. 5. On the side of the plaintiffs,the second plaintiff wasexamined as PW1 and the vendor of the plaintiffs was examined as PW2.As many as 12 documents were marked on their side. On the side ofthe defendants, the first defendant was examined as DW1 and thealleged sub-tenant of the defendants was examined as DW2. Totally 4documents were marked on the side of the defendants. 6. The Trial Court as well as the first appellate court, havingaccepted the case of the plaintiffs that they have become owners ofthe B schedule property by virtue of the sale deed, Ex.A2 dated17.10.1978, held that the defendants are bound to vacate the suit Bschedule property as they failed to establish adverse possessionpleaded by them and they have been found in permissive possession ofthe suit B schedule property. The courts below, having found thatthe plaintiffs have not produced any document to establish that thefirst defendant's husband and thereafter, the defendants were letinto possession of the suit properties in their capacity as tenants,negatived the relief for past rent and future rent. 7. At the time of admission of the second appeal, the followingsubstantial questions of law were formulated for determination bythis court:-"1. Whether, in a suit instituted in pursuance of the 2ndproviso to section 10 of the Tamil Nadu Buildings (Leaseand Rent Control) Act, a decree for recovery ofpossession can be passed without any finding as to theexistence of the grounds enumerated in Sections 10, 14 or16 of the Act.2. Whether the burden of proof does initially lie on theplaintiff to prove his title in a suit for recovery ofpossession.3. Whether the admission in the plaint that thepossession of the defendants was hostile from 1979onwards is not sufficient to prove the defendants' pleaof adverse possession."8. Learned counsel appearing for the appellants/defendants wouldvehemently submit that the plaintiffs, who came forward with a case https://hcservices.ecourts.gov.in/hcservices/ that Marimuthu, the husband of the first defendant was inducted intopossession of the suit B schedule property as tenant and thereafter,the defendants continued to be the tenant, failed to produce anydocument to show that they were so inducted in the suit property.Admittedly, the defendants have been in possession and enjoyment ofthe suit property long prior to the purchase of the suit B scheduleproperty by the plaintiffs. Inasmuch as the suit has been filed wellafter the prescribed period of 12 long years, the defendants haveprescribed title to the suit property. Referring to the evictionproceedings originally initiated by the plaintiffs, the learnedcounsel appearing for the defendants would submit that the competentRent Controller had already decided that there was no landlord-tenantrelationship between the plaintiffs and the defendants. Though theplaintiffs have produced title deeds to establish their title to thesuit property, inasmuch as the defendants have admittedly been inpossession of the suit property for over 12 long years, the suit fordeclaration of title and recovery of possession will have to bedismissed. 9. Learned counsel appearing for the respondents/plaintiffswould submit that the title deeds produced by the plaintiffs would goto establish that Vamannan, who was the undisputed owner of the suitA schedule property, sold away the said property in favour of theplaintiffs under the sale deed, Ex.A2 dated 17.10.1978. Even as perthe own showing of the defendants, Marimuthu, the husband of thefirst defendant was put into permissive occupation of the suitproperty by Vamannan. The Tax Receipt, Ex.B1 would also show thatMarimuthu had paid tax only on behalf of Vamannan. It is hissubmission that once the title of the suit property is established bythe plaintiffs, the defendants, who have set up a plea that they haveprescribed title by adverse possession, will have to establish thatthey have prescribed title by adverse possession. A permissiveoccupier cannot claim adverse possession as against the real owner ofthe suit property, he would further submit. Therefore, he woulddefend the verdicts pronounced by the courts below. 10. It is true that in the Rent Control proceedings initiated bythe plaintiffs herein as against the defendants, it was held by thecompetent Rent Controller under Exs.A3 to A5 that the plaintiffsfailed to establish that there was any attornment of tenancy byVamannan in favour of the plaintiffs and that there was a livedispute between the plaintiffs and the defendants with respect to thetitle of the suit property. Such a finding recorded by the RentController would not disentitle the plaintiffs to seek fordeclaration of title and also for recovery of possession if theyestablish title to the suit property and the defendants fail toestablish that they had prescribed title to the suit property. 11. Ex.A1 dated 2.12.1975 would go to establish that Vamannangot the suit property in the partition that took place in his family. https://hcservices.ecourts.gov.in/hcservices/ Under Ex.A2 dated 17.10.1978, the said Vamannan sold the suit Aschedule property in favour of the plaintiffs herein. Theplaintiffs, having purchased the suit property under Ex.A2, have beenpaying property tax as evidenced by Exs.A6 to A11. Ex.A12 dated27.4.1954 also would go to show that the suit property was dealt byVamannan when the property was not divided. The aforesaid documentswould go to establish that the plaintiffs have proved their title tothe suit property. 12. As rightly pointed out by the learned Senior Counselappearing for the respondents/plaintiffs, the defendants have comeout with an unambiguous defence that Marimuthu, husband of the firstdefendant was permitted to occupy the suit property about 15 yearsprior to the litigation. Ex.B1 would also establish that Marimuthu,husband of the first defendant paid property tax not in hisindividual name but, in the name of the original owner Vamannan andhis brother Sivaramakrishnan. Ex.B1 does not go to show that thedefendants or the husband of the first defendant paid property tax intheir names asserting title to the suit property. It appears thatMarimuthu had paid property tax only in his capacity as a permissiveoccupier. The application submitted by the second defendant foradmission into a school under Ex.B2 dated 3.6.1970 would show thatthe defendants have been in possession of the suit B scheduleproperty, but, there is no evidence on the side of the defendants toestablish that the defendants openly and continuously enjoyed thesuit properties asserting their right to the suit property. 13. Once the plaintiff establish his title to the suit property,the burden shifts on the defendant to establish that he perfectedtitle by adverse possession. In the instant case, it is found thatthe plaintiffs have established their title to the suit properties.The defendants miserably failed to establish that they perfectedtitle by adverse possession. Though the plaintiffs have notestablished that the defendants are only the tenants of the suitproperty, they are still entitled to declaration of title and alsofor recovery of possession as it has been established that thehusband of the first defendant was only put in possession of the suitproperty on permission. 14. In a suit for declaration of title and recovery ofpossession from the person who has been in occupation of the subjectproperty, the plaintiffs are not bound to establish the existence ofany of the grounds enumerated under Section 10 or 14 or 16 of theTamil Nadu Buildings (Lease and Rent Control) Act. True it is thatthe initial burden of proof of title lies on the plaintiffs. Theplaintiffs, in the instant case, have established their title to thesuit property. It is held that they have discharged their initialburden of establishing title to the suit property. On facts, it isfound that there was no admission by the plaintiffs that thedefendants have been in hostile possession of the suit properties https://hcservices.ecourts.gov.in/hcservices/ right from the year 1979. In fact, the defendants have set up a pleathat the first defendant's husband Marimuthu was a permissiveoccupier of the suit property under Vamannan. Therefore, it is heldthat there is no admission on the part of the plaintiffs that thedefendants have been in possession hostile to the interest and titleof the plaintiffs right from the year 1979. It is found that thecourts below, having thoroughly adverted to the evidence on record,has rightly returned findings that the plaintiffs, who haveestablished their title to the suit property, are entitled todeclaration of title and also for recovery of possession from thepermissive occupier of the suit property. There is no warrant forinterference with the concurrent verdict of the courts below. 15. In view of the above, confirming the judgments of the courtsbelow, the second appeal stands dismissed. There is no order as tocosts. The defendants shall vacate the suit premises within threemonths from the date of this judgment. Sd/-Asst. Registrar//true copy//Sub Asst.Registrarssk. To1. I Additional District Judge, Coimbatore. 2. I Additional District Munsif, Coimbatore.3. The Section Officer, V.R.Section, High Court, Madras-104.1 cc to M/s.Srinath Sridevan, Advocate, Sr.No.683602 cc to Mr.K.Sudalaikannu, Advocate, Sr.No.68281S.A.No.646 of 1999RB {CO}TP/16.12.2009.