Maragatham @ Krishnammal v. Marimuthu

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 06.07.2009CORAM:THE HON'BLE MR. JUSTICE M.DURAISWAMYSecond Appeal No.924 of 2000Maragatham @ Krishnammal .. Appellant /Plaintiff Vs Marimuthu .. Respondent/DefendantSECOND APPEAL filed under Section 100 of the Code of CivilProcedure judgment and decree dated 20.12.1999 made in A.S.No.53 of1999 on the file of Subordinate Judge, Mayiladuthurai confirmingthe Judgment and Decree dated 13.04.1999 passed in O.S.No.349 of1995 on the file of the District Munsif, Sirkali. For Appellant :Mr.A.MuthukumarFor Respondent : Mr.M.Arunachalam for Mr.C.PrakasamJ U D G M E N T The above Second Appeal arises against the judgment and decreein A.S.No. 53 of 1999 on the file of Sub Court, Mayiladuthuraiconfirming the Judgment and Decree in O.S.No.349 of 1995 on the fileof the District Munsif Court, Sirkali.2. The plaintiff in the suit is the appellant in theabove second appeal. The respondent is the defendant in the suit. 3. The plaintiff filed suit in O.S.No.349 of 1995 on thefile of the District Munsif Court, Sirkali. for delivery ofpossession in respect of B schedule property and for past and futuremesne profits. 4. The brief case of the plaintiff is as follows:- The plaint 'B' schedule property is part of 'A' scheduleproperty and the 'B' schedule property alone is the subject matter ofthe suit. The plaintiff is the daughter of Lakshmanasamy Nadar, whodied in the year 1981. The plaintiff's father Lakshmanasamy Nadar,by virtue of Inam registered sale deed dated 25.3.1968, conveyedthe 'A' schedule property to the plaintiff. The defendant, who is https://hcservices.ecourts.gov.in/hcservices/ the brother's son of the said Lakshmanasamy Nadar, was permitted toreside in a portion of 'A' schedule property, which is the suit 'B'schedule property. The rest of the 'A' schedule property is in thepossession of the plaintiff. The plaintiff also accepted thepermissive occupation of the defendant in the suit 'B' scheduleproperty to which the plaintiff is the owner from the date of Inamsale deed. By notice dated 20.3.1990, the plaintiff revoked thepermission and demanded to surrender possession of the suitproperty. The defendant, on receipt of the said notice, sent a replynotice raising false allegations. Since the defendant failed todeliver possession, the plaintiff filed the suit. 5. The brief case of the defendant is as follows: According to the defendant, the description of the suitproperty is not correct. The suit property is the self acquiredproperty of the plaintiff's father, Lakshmanasamy Nadar. Thedefendant is in peaceful possession and enjoyment of the 'B' scheduleproperty on his own right by paying tax in his name for the past somany decades and treating the property as his own. According to thedefendant, the suit 'A' schedule property originally belonged to oneDuraisamy Nadar. After his death, it was inherited by his four sons,namely, Lakshnamasamy Nadar, Mahalingam, Muthukumarasamy andAmirthalingam. Muhukumarasamy and Amirthalingam left the village bynot claiming any right over the 'A' schedule property. The propertywas enjoyed by Lakshnamasamy Nadar and Mahalingam. LakshnamasamyNadar is the father of the plaintiff and Mahalingam is the father ofthe defendant. On 11.8.1955, a family arrangement took place betweenLakshmanasamy Nadar, Muhukumarasamy, Amirhaligam and Mahalingam.Another family arrangement took place on 26.9.1955 betweenLakshmanasamy Nadar, Muthukumarasamy, Amirhaliingam, Marimuthu,Gurumurthy and Periyasamy @ Pesal Nadar. As per the said familyarrangement, the property situate west of the suit 'B' schedule is tobe taken by all the 3 and the 'B' schedule property to be taken byMarimuthu and 2 others. 10 days time was fixed for completing thefamily arrangement. Otherwise, it was alternatively agreed, the saidarrangement will be confirmed by engrossing in the stamp papers andhave it registered. After the second family arrangement,Muthukumarasamy and Amirthalingam without laying any claim over theproperty left the village. So far as 'B' scheduled property isconcerned, the defendant is in actual possession and enjoyment of thesame from the year 1955 in his own right and residing there even 10years prior to 1955. From 1995 onwards, the B schedule property wasgiven Door No.5A by the Panchayat Board. Therefore, the defendantprayed for dismissal of the suit. 6. In the additional written statement filed by thedefendant, the defendant pleaded adverse possession. https://hcservices.ecourts.gov.in/hcservices/

7. Before the trial court, on the side the plaintiff, 3witnesses were examined and 8 documents Exs. A1 to A8 were marked.On the side of the defendant, 2 witnesses were examined and 19documents Exs. B1 to B19 were marked. 8. The trial court, after taking in to consideration theoral and documentary evidences of both the parties found that byvirtue of Exs.B18 & B19 family arrangements, the defendant derivedtitle and is in possession and enjoyment of the suit propertyTherefore, the trial court dismissed the suit. 9. Aggrieved over the judgment and degree of the trialcourt, the plaintiff filed an appeal in A.S.No.53 of 1999 on thefile of Subordinate Judge, Mayiladuthurai and the lower appellatecourt after taking into consideration the materials available onrecord, confirmed the judgment and decree of the trial court anddismissed the appeal. 10. Aggrieved over the judgments and decrees of the courtsbelow, the plaintiff filed the above second appeal. 11. Heard Mr.A.Muthukumar, learned counsel appearing forthe appellant and Mr.M.Arunachalam, learned counsel for therespondent. 12. At the time of admission of the above Second Appeal,the following substantial questions of law arose for consideration:-i) Whether the lower appellate court not erredin law in holding that the defendant has perfectedtitle by adverse possession especially when thedefendant admitted title of the plaintiff's father?andii) whether mere execution and registration ofthe documents by the defendant would operate as noticeto the plaintiff and the defendant's possessionadverse to the plaintiff contrary tot eh decision ofSupreme Court reported in 1998 (7) SCC 436 ? 13. On a careful consideration of the materials availableon record and the submissions made by both the learned counsel, itcould be seen that one Duraisamy Nadar had four sons, namely,Lakshnamasamy Nadar, Mahalingam, Muthukumarasamy and Amirthalingam.The plaintiff is the daughter of Lakshmanasamy Nadar and thedefendant is the son of Mahalingam. Lakshmanasamy Nadar executedEx.A1 settlement deed on 25.3.1968 in favour of theappellant/plaintiff. The appellant/plaintiff is claiming titleover the suit property by virtue of the said settlement deed. The https://hcservices.ecourts.gov.in/hcservices/ respondents are claiming title over the suit property by virtue ofthe two family arrangements Exs.B18 and B19, dated 11.8.1955 and26.9.1955 respectively. The respondent/defendant also producedEx.B17, patta, dated 8.2.1996 standing in his name. Ex.B4 is thepaper publication published in 'Sudesamithran' daily on 3.5.1966.Ex.B5 dated 10.6.1958 is the conductor licence issued to therespondent/defendant in which, address of the 'B' schedule propertyhas been mentioned. The respondent/defendant also produced housetax receipts and water connection receipts pertaining to the suitproperty. The respondent/defendant in his written statement claimedtitle to the suit property by virtue of Exs.B18 and B19 namely,family arrangements. Whereas in the additional written statement hehas pleaded adverse possession.14. Since the respondent/defendant pleaded both title tothe suit property by virtue of the family arrangements and alsopleaded adverse possession, the learned counsel for the appellantcontended that claiming title and pleading adverse possession shallnot go together and in support of his contention, he relied on thefollowing judgments :(i) In 2002(2) CTC 219 (Kannappan v. Pargunan and 9 others),itis held as follows: " Plaintiff can contend adverse possession only whenhe admits that another person has got title. Plea ofadverse possession rejected as plaintiff claimed title inhis vendors."(ii) In 2002(5) CTC 147 (Chinnaponnu (died) & Another v.Lakshmana Naidu & Others), it is held as follows: " 15. ... The respondents claim that they are entitledto the suit property by virtue of Ex.A1. Therefore,adverse possession would mean setting up title hostile toex.A1. Therefore, adverse possession would mean setting uptitle hostile to themselves. These two pleas cannotcoexist and therefore, it is only in these circumstancesthat the new substantial question of law was permitted tobe raised by the appellant and it is answered in favour ofthe appellant."(iii) In 2002(2) CTC 58 (Neelavathi v. Shanmugam and another),it is held as follows: "7. Again, when plaintiff had relied upon aparticular document of title, namely, Ex.A-1 gift deed, inorder to claim right and title to suit property, she cannotclaim it by adverse possession, because when once sheclaims title upon a particular document, then whateverright plaintiff claims would be flowing if at all underthat document, in which case there is no element ofadverse nature of possession in order to make out a case of https://hcservices.ecourts.gov.in/hcservices/ prescription by title. Thus, the substantial question oflaw is answered against the appellant/plaintiff and I findno reason to allow this second appeal."(ii) In 2004(10) SCC 779 (Karnataka Board of Wakf v. Governmentof India and others), it is held as follows: " Adverse Possession - Essentials of – Held, areexclusive physical possession and animus possidendi to holdas owner in exclusion to the actual owner – facts toestablish claim for adverse possession, stated – Pleas ofadverse possession and of title are mutually inconsistent –Limitation act, 1963.Art.65." From the above judgments, it could be seen that therespondent/defendant cannot plead title based on document and adversepossession simultaneously. Therefore, in view of the judgmentsreferred above, the plea of adverse possession is not maintainable. 15. Learned counsel for the appellant further contendedthat the lower appellate court erroneously came to the conclusionthat the respondent/defendant has prescribed title by adversepossession. This finding cannot be sustained and it is liable to beset aside. The learned counsel for the appellant also contendedExs.B18 and B19 family arrangements were unstamped and unregisteredtherefore, it cannot be looked into. The said documents were markedthrough D.W.1. From the perusal of the deposition of D.W.1, it couldbe seen that there is no mention that the appellant/plaintiff hadobjected to the marking of the said document. However, the trialcourt in the judgment gave a finding that the appellant/plaintiffobjected to the marking of the two documents and after hearing bothsides, the documents were marked as Exs.B18 and B19. In support ofthe said contention, learned counsel for the appellant relied on ajudgment reported in 2001(1) CTC 112 (A.C.Lakshmipathy and another v.A.M.Chakrapani Reddiar and others) The Division Bench of thiscourt in the above judgment found that a family arrangement reducedto writing purporting to create, declare, assign limit or extinguishany right, title or interest of any immovable property should bestamped and registered. The Division Bench also found that a familyarrangement, which is compulsorily registerable, if not registered,the same can be looked into by the court for collateral purposes.In the judgment of the Hon'ble Supreme Court reported in 2009(1)Scale 80 (Avinash Kumar Chauhan v. Vijay Krishna Mishra), it is heldas follows:"11. Section 36 of the Act provides that where aninstrument has been admitted in evidence, such admissionshall not, except as provided in section 61 thereof, becalled in question at any stage of same suit or proceedingon the ground that the instrument has not been dulystamped. Section 38 provides for the mode and manner in https://hcservices.ecourts.gov.in/hcservices/ which the instrument impounded is to be dealt with. 12. The parliament has, in Section 35 of the Act,advisedly used the words "for any purpose whatsoever".Thus, the purpose for which a document is sought to beadmitted in evidence or the extent thereof would not be arelevant factor for not invoking the aforementionedprovisions.16. Therefore, applying the principles laid down in theabove judgment, Exs.B18 and B19 family arrangements, which areunstamped and unregistered, cannot be looked into. Therespondent/defendant cannot claim any right or title to the suitproperty under the said documents.17. In the case on hand, Exs.B18 and B19 were executed inthe year 1955.Subsequent to the said document, therespondent/defendant also mortgaged suit property under Ex.B3 andpaid house tax, water charges and electricity charges in respect ofthe suit property. The respondent/defendant also obtained patta inhis name.18. Learned counsel for the appellant also relied on ajudgment reported in 1996(7) SCC 436 (Meethiyan Sidhiqu v. MuhammedKunju Pareeth Kutty and others) which reads as follows:"11. ... So also the mere fact that the thirddefendant who was in exclusive possession executeddocuments and put the transferees in possession of theproperty also will not prove ouster or adverse possession.As a matter of course plaintiff cannot be fixed withknowledge of those documents simply because of the factthat they are registered documents. Registration of thedocuments by itself cannot operate as notice to theplaintiff that third defendant was holding the propertyadverse to him and dealing with it as full owner. ..." 19. Learned counsel for the appellant further relied on ajudgment reported in 2006(4) CTC 79 (Hero Vinoth (Minor) v.Seshammal), which reads as follows:" 19. ... The High Court will, however interferewhere it is found that the conclusion drawn by the lowerAppellate Court were erroneous being contrary to themandatory provisions of law applicable or tis settledposition on the basis of pronouncements made by the apexCourt, or was based upon inadmissible i evidence orarrived at by ignoring material evidence. https://hcservices.ecourts.gov.in/hcservices/

24. The general rule is that High Court will notinterfere with concurrent findings of the Courts below.But it is not an absolute rule. Some of the wellrecognized exceptions are where (i) the Courts below haveignored material evidence or acted on no evidence; (ii)the Courts have drawn wrong inferences from proved factsby applying the law erroneously; or (iii) the Courts havewrongly cast the burden of proof. When we refer to'decision based o no evidence', it not only refers tocases where there is a total dearth of evidence, but alsorefers to any case, where the evidence, taken as a whole,is not reasonably capable of supporting the findings.25. In the case at hand the High court found that theapproach of the trial court and the First Appellate Courtwas erroneous inasmuch as they proceeded on the basis asif it is a case of easement of necessity. Had the trialcourt and the first appellate court considered theevidence in the light of the respective stands of theparties and then concluded one way or the other, theposition would have been different. When the approachwas fundamentally wrong, the High Court cannot be faultedfor having gone into the question as to what was theproved intention of the party as culled out from thepartition deed." 20. Countering the submissions made by the learned counsel forthe appellant, learned counsel for the respondent submitted that theappellant/plaintiff failed to discharge the burden of proof. On thecontrary, he shifted the burden of proof on the defendant to provethe case. The learned counsel for the respondent also contendedthat there is no substantial question of law in the above secondappeal and on that ground the above second appeal is liable to bedismissed. 21. In support of the said contention, learned counsel for therespondent relied on the following judgments:(i) 2009 (1) CTC 376 (U.R.Virupakshaiah v. Sarvamma andanother), which reads as follows: "Whether High Court, while exercising its jurisdictionunder section 100 of Code of Civil Procedure could whiledictating judgment, frame additional question of law andallow same without even referring to questions of lawformulated at time of admission thereof, arise forconsideration herein."(ii) AIR 1995 ORISSA 270 ( Nirakar Das v. Gourhari Das andothers), which reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "(B) Evidence Act (1872), Ss. 101 and 3 Burden ofProof – Civil Suit – Plaintiff must establish his own case– Mere failure of defendant to establish his case –Plaintiff would not succeed automatically." (iii) AIR 1984 MADHYA PRADESH 147 (Kalooram and another v.Mangilai), which reads as follows:"Limitation Act (9 of 1908), Ars. 142, 144 –Applicability of – Suit for possession of property based ontitle alleging previous possession and subsequentdispossession by defendants – Art.142 is applicable and not144 – Burden to prove dispossession within 12 years nextbefore institution of suit – Is on plaintiff. (Evidence Act(1872).Ss.101 to 104.)"From the above judgments, it could be seen that theappellant/plaintiff must establish his own case and mere failure ofdefendant to establish his case, will not entitle theappellant/plaintiff to succeed automatically. 22. In the case on hand, the plaintiff though pleaded thatthe property was settled by her father Lakshmanasamy Nadar under Ex.A1 dated 25.3.1968 and that the respondent/defendant is inpossession of the B schedule property as permissive occupant andthat she revoked the permission on 20.3.1990, the appellant/plaintifffailed to produce any evidence to prove that the respondent/defendantwas permitted to occupy the suit property by her. Though theappellant pleaded that the respondent is only a permissive occupantof the suit, she has not proved the same by any acceptable evidence.The appellant is solely relying on the weakness of therespondent/defendant. Merely because the respondent/ defendant failedto establish his case, would not mean that the appellant/plaintiffcould succeed automatically. The courts below after taking intoconsideration the oral and documentary evidences of both the partieshave correctly came to the conclusion that the appellant/plaintifffailed to prove her case by producing any acceptable evidence. 23. Therefore, I find no ground much less substantial questionsof law to interfere with the findings of the courts below. Theabove second appeal is liable to be dismissed. Accordingly, theabove Second Appeal is dismissed. However, there will be no orderas to costs. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar rj https://hcservices.ecourts.gov.in/hcservices/ To1.The Subordinate Judge, Mayiladuthurai.2.The District Munsif, Sirkali.3.The Section Officer, V.R.Section, High Court, Madras.+ 2 cc to Mr.C.Prakasam,Advocate,SR.28683+ 1 cc to Mr.A.Muthukumar,Advocate,SR.28530S.A. No.924 of 2000GV(CO)EM/10.7.09