Pachiappan v. Muthu Udayar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27/08/2012CORAMTHE HONOURABLE Mrs. JUSTICE. S.VIMALAS.A.No.1351 of 20041.Pachiappan2.Settu3.Muthu Udayar @ Ulakka Udayar,4. Rajendran,5. Saroja6. Pachiammal7. Jegadambal8. Sumathi9. Rajamanickam...Appellants/Defendants 2 to 5 and LRs of deceased 1st Respondents Vs.Muthu Udayar ... Respondent/Plaintiff Prayer:- Second Appeal filed under Section 100 of Civil ProcedureCode, against the judgment and decree dated 12.01.2004 and made inA.S.No.169 of 1999 on the file of Additional District Court, Salem /Fast Track Court-I, Salem, modifying the judgment and decree dated26.07.1999 and made in O.S.No.888 of 1994 on the file of I AdditionalDistrict Munsif Court, Salem.For Appellants: Ms.Muthumani DoraisamyFor Respondent : Mr.V.Srinivasan J U D G M E N TThe appellants / defendants 2 to 5 / respondents 2 to 10have filed the Second Appeal challenging the judgment and decreedated 12.01.2004 rendered in A.S.No.169 of 1999 on the file ofAdditional District court, Salem, modifying the judgment and decreedated 26.07.1999 made in O.S.No.888 of 1994 on the file of IAdditional District Munsif Court, Salem.2. The plaintiff-Muthu Udayar filed the suit in O.S.No.888of 1994 seeking for a declaration that the suit property situated atSalem Taluk, Thadampatti Village, R.S.No.13/4 an extent of AC 2.29, https://hcservices.ecourts.gov.in/hcservices/ belongs to him and for consequential injunction restraining thedefendants from interfering with his peaceful possession andenjoyment of the suit property. The plaintiff also sought formandatory injunction, seeking restoration of the obliterated privatecart track by the defendants and in case of failure permission torestore the cart track by the plaintiff at the cost of thedefendants. 3. The trial Court, on consideration of oral anddocumentary evidence decreed the suit for declaration to an extent of2 acres 19 cents and declaration was not granted to an extent of 10cents. Injunction was granted limiting it to the same extent of 2acres 19 cents. Relief of mandatory injunction was declined. 4. As against the disallowed portion of 10 cents and asagainst dismissal of the suit for mandatory injunction, the plaintifffiled the appeal in A.S.No.169 of 1999. The first appellate Courtgranted declaratory decree in respect of entire extent of the suitproperty viz., 2 acres 29 cents. The relief of mandatory injunctionseeking restoration of cart track was allowed to an extent of 7 feetwidth as per Commissioner's plan under Ex.C5. 5. Aggrieved over the judgment and decree passed by thefirst appellate court, the defendants 1 to 5 / respondents 2 to 10have filed the second appeal raising the following substantialquestions of law:-"(i) Whether the plaintiff has perfected his titled by adversepossession to an extent of 10 cents in S.F.No.13/4?(ii) Whether the plaintiff has discharged the onus upon his toestablish his title by way of adverse possession?(iii) Whether the lower appellate Court is right in relying uponthe Exs.C4 and C5 when the same are in total contradiction of Exs.C1and C2?"6. During the pendency of the appeal, the first defendant /first respondent died and the legal representatives of the deceasedfirst respondent have been added as R-6 to R-10.7. During the pendency of the first appeal, the plaintifffiled two applications one under Order 26 Rule 9, seeking appointmentof Commissioner and also petition under Order 6 Rule 17 CPC, seekingamendment of pleadings to include the alternative claim of the titleby adverse possession. Both the petitions were dismissed by the firstappellate Court and on preferring Civil Revision Petition both theapplications were allowed by the High Court. Thereafter, additionalwritten statement and reply statement have been filed. https://hcservices.ecourts.gov.in/hcservices/

8. The admitted case of both parties are to the followingextent:-(i) The plaintiff's father Anai Udayar and the firstdefendant's father Sevar Udayar were brothers and there was partitionbetween them under Ex.A1 partition deed dated 12.02.1938.(ii) The entire extent of property in R.S.No.13/2 was 3.28out of which, Western 2/3rd share was allotted to Anai Udayar andEastern 1/3rd share was allotted to Sevar Udayar. Thus, the plaintiffclaimed time to an extent of 2.29 acres and defendant became entitledto 1.09 acres.(iii) R.S.No.13/2 was sub-divided later and R.S.No.13/4 wasallotted to plaintiff's property on the Western side and R.S.No.13/5was allotted to the defendant's property on the eastern side.(iv) The plaintiff originally claimed title to the suitproperty under Ex.A1 partition deed and also by virtue of long userand possession as evidenced by Ex.A5 (fasli year 1371 to 1395) andEx.A8 (1988 to 1992) series of kist receipts and later made analternative claim on the basis of title by adverse possession. Onlyunder this context, the substantial questions of law with regard toadverse possession came to be framed.9. The main issue is to be decided is whether plaintiffestablished title to an extent of 10 cents in R.S.No.13/4 either inhis own right as owner or perspective title by adverse possession.The other issue would be whether the plaintiff is entitled torestoration of obliterated cart track. 10. So far as the issue regarding cart track is concerned,it is a right given under Ex.A1 partition deed. The first appellateCourt has given a finding that usage of common cart track is not amere convenience but it is an absolute necessity. The trial Courtdeclined the relief of restoration of cart track on the ground thatunder Ex.C1, the Commissioner did not disclose the portion ofobliterated cart track. This omission does not assume importancebecause it is a right granted under Ex.A1 partition deed. In thesecond report of the Commissioner under Ex.C5, the cart track ismentioned in yellow colour. The width mentioned Ex.A1 partition deedis ( nalu (4) muzha agalam (breath) . The Commissioner has mentionedin the report that the width of atleast 7 feet is necessary for thecart track. The learned counsel for the appellant has placed a planindicating the cart track to be formed, so that it is convenient forthe defendant to use the cart track for his adjacent land also. Noprejudice would be caused to the plaintiff if the new cart track ispermitted to be formed in the place indicated in the plan. If thecart track is shifted from the middle of the property in R.S.No.13/1Cto the Eastern side of R.S.No.13/1C, then the defendant will have https://hcservices.ecourts.gov.in/hcservices/ access to the Survey No.13/5 also, apart from Survey No.13/3. Thiswill be an added advantage. When the consent of the plaintiff wassought for, the learned counsel for the plaintiff represented thatthe plaintiff was not willing to express his consent. However, whenthe question was raised as to the probable prejudice if any, whichcould be caused due to change of cart track, the learned counsel forthe plaintiff was not able to point out any prejudice. Therefore, thedefendant is directed to restore the cart track in the placeindicated in the plan, ear-marked as PQYR, marked in yellow colour,which shall form part of the decree. 11. The learned counsel for the defendants pointed out thestage at which, the plaintiff sought for amendment of pleadingsseeking to add the alternative claim of title by adverse possessionand it was contended that the High Court ought not to have allowedthe plaintiff to amend the plaint especially, in the stage of appeal.In support of the contention, the following decision is relied upon:- (2012) 2 SCC 300 (J.Samuel v. Gattu Mahesh). "A. Civil Procedure Code, 1908 – Or. 6 R.17 proviso (asintroduced in 2002) and Appendix A Form 47 – Amendment of pleadingafter commencement of trial – Object of proviso – Principlesreiterated – "Due diligence" of party seeking amendment – Meaning andsignificance of – "Due diligence" provides test to determine whetherCourt's discretion to allow amendment should be exercised or not –Omission of a specific plea mandatorily required by statute to bestated in plaint amounts to negligence and lack of due diligence –Amendment sought to incorporate such a plea on ground that it wasmissed due to typographical mistake cannot be accepted. 16. As stated earlier, in the present case, the amendmentapplication itself was filed only on 24.09.2010 after the argumentswere completed and the matter was posted for judgment on 04.10.2010.On proper interpretation of the proviso to Rule 17 of Order 6, theparty has to satisfy the Court that it could not have discovered thatground which was pleaded by amendment, in spite of due diligence. Nodoubt, Rule 17 confers power on the Court to amend the pleadings atany stage of the proceedings. However, the proviso restricts thatpower once the trial has commenced. Unless the Court satisfies (sicitself) that there is a reasonable cause for allowing the amendment,normally the Court has to reject such a request."This decision would have been helpful to the defendant at thestage when the revision was pending before the High Court, duringwhich, the application for amendment came to be allowed. The decisionwill not help the defendants at this stage because, the plaintiff hasbeen permitted to carry out the amendment and the claim made underthe amendment has been tested by two Courts. However, the fact thatthe prayer for amendment has been made at the stage of appeal would https://hcservices.ecourts.gov.in/hcservices/ have its own impact on the merits of the case with reference to theclaim for adverse possession. 12. Issue on Title: The main contention of the learnedcounsel for the defendants is that the title claimed by the plaintiffis not supported by the partition deed dated 12.02.1938 or 29.01.1959and legally the plaintiff cannot base his claim on the basis of pattaalone as patta is not a document of title. It is further submittedthat having regard to the mutually contradictory plea, true ownershipviz., prescriptive title by adverse possession which is destructiveof each other, the plaintiff is not entitled to a declaration. Inorder to support these contentions the learned counsel relied uponthe following decisions:-(i) 1999 (III) CTC 304 ( Kammavar Sangam Vs. ManiJanagirajan)(ii) 1999 (III) CTC 650 (Guruvammal and another Vs. SubbiahNaicker and others)As per these decisions, the plaintiff cannot make claim fortitle based upon patta alone in the absence of any document of title.Therefore claim for title cannot be sustained, based on patta alone.13. The next issue to be decided is the justifiability /sustainability of the claim made title by adverse possession.13.1. The concept of “Adverse Possession” may be understoodas such possession commencing in “wrong” and being continued asagainst right. It is actual hostile possession as against true ownerby express or implied denial of title. Adverse possession impliesthe possession by a person holding the land on his own behalf of someother person and setting up his claim as the true owner of the land.If adverse possession is continuous, peaceful, undisturbed and openfor more than twelve years then title of the true owner isextinguished and the person in possession becomes the true owner.Both animus and corpus is necessary to constitute adverse possession.13.2 The Indian Limitation Act has provided that 12 yearsadverse possession of land by a wrong-doer not only bars the remedyand extinguishes titles of the rightful owner but confers a goodtitle upon the person in wrongful possession. After the lapse ofstatutory period of limitation the person in adverse possessionacquires the right of full ownership and acquires superior title evenagainst the true owner.13.3 The requirements to make possession adverse may varyaccording to the facts and circumstances of a particular case or therelationship between the parties. Under certain circumstancesparticular acts may amount to ouster of others but if there iscertain relationship between the parties such acts may not amount todispossession or ouster. In determining the question of adverse https://hcservices.ecourts.gov.in/hcservices/ possession the Court has to take into consideration the facts of eachcase and the circumstances under which the right by adversepossession is claimed.13.4 The contention of the defendants is that the plaintiffneither pleaded nor placed evidence with regard to claim of adversepossession and therefore, the claim should not be accepted. Thiscontention is supported by the decision reported in Nallan v.Vellaiyankudumban, AIR 2001 Mad 6, where-under it has been held asfollows:-"Claim of title by adverse possession. - When there wasneither pleadings nor evidence by party, claiming adverse possessionover suit property, held that mere possession over suit property,over the statutory period would not give him any right to claim titleby adverse possession" The classical requirement regarding adverse possession had beensuccinctly summarised in the decision reported in 2004 (1) SCC 779(Karnataka Board of Wakf v. Govt. Of India) at para 11, this Courtobserved as under:-"11. In the eye of the law, an owner would be deemed to be inpossession of a property so long as there is no intrusion. Non-use ofthe property by the owner even for a long time won't affect histitle. But the position will be altered when another person takespossession of the property and asserts a right over it. Adversepossession is a hostile possession by clearly asserting hostile titlein denial of the title of the true owner. It is a well-settledprinciple that a party claiming adverse possession must prove thathis possession is 'nec vi, nec clam, nec precario', that is,peaceful, open and continuous. The possession must be adequate incontinuity, in publicity and in extent to show that their possessionis adverse to the true owner. It must start with a wrongfuldisposition of the rightful owner and be actual, visible, exclusive,hostile and continued over the statutory period."The Court observed that: (SCC p.785, para 11)"11. ... Plea of adverse possession is not a pure question oflaw but a blended one of fact and law. Therefore, a person who claimsadverse possession should show: (a) on what date he came intopossession, (b) what was the nature of his possession, (c) Whetherthe factum of possession was known to the other party, (d) how longhis possession has continued, and (e) his possession was open andundisturbed. A person pleading adverse possession has no equities inhis favour. Since he is trying to defeat the rights of the trueowner, it is for him to clearly plead and establish all factsnecessary to establish his adverse possession." https://hcservices.ecourts.gov.in/hcservices/ As per this decision, the plaintiff is expected to state when he cameinto possession, what was the nature of possession and whether thefactum of possession was known to the other party. Pitiably theplaintiff has no answer for all these questions. He himself was notaware and not clear as to whether he was in possession and enjoymentin his own right as the real owner or he was in possession andenjoyment of the property of the defendant but, in possessionasserting hostile possession as against the true owner. That is why,the plaintiff has chosen to take a plea which is mutually destructiveof each other. Therefore, the plaintiff is not entitled todeclaratory decree in respect of 10 cents of the property coveredunder item no.1. When the plaintiff himself is indecisive incontending as to the nature of possession of the property with himthen the claim for adverse possession remains unproved. 14. The learned counsel for the plaintiff relied upon adecision reported in (2000) 3 L.W. 848, (Thangamani v. Santhiagu),wherein it has been held that absence of animus and knowledge aboutthe true owner is immaterial when possession was open and incontinuos assertion of ones own right. The necessary paragraphs areextracted:- "17. The principles relating to the claim of adverse possessionas stated in the above rulings are undoubtedly beyond any doubt orsecond opinion. The only aspect on which Mr.V.Natarajan would try tofocus the issue is that the statement of law as expressed byRamanjunam, J. In 93 L.W.278 cited supra, was not correct. Accordingto the learned judge, absence of animus and knowledge about the trueowner was immaterial where the possession was open, in continuousassertion of one's own rights. None of the judgments cited above byMr.v.Natarajan, which could be binding on this Court, really expressany contradictory view. Some of the other judgments have held thathostile possession would mean denial of the title of the real owner.The question is whether the said denial of title or animus should beexpress, implied or could be inferred from the circumstances.18. Let us consider the following instance. 'A' purchases theproperty from 'B' and the property conveyed is larger in extent thanspecified in the Schedule. 'B' was in possession of the property formore than 12 years asserting ownership in himself and after 'B', 'A'is put in possession and he also continues to be in possession foranother 12 years. Will it be open to 'C' the real owner of theproperty to contend that neither 'A' nor 'B' had any knowledge thatthe property belonged to 'C' and therefore, they had no animusagainst 'C'? I am inclined to agree with the views expressed byRamanujam, J namely, what is required in such a case is only open andcontinuous assertion of title in themselves namely, by 'A' and 'B' asagainst the whole world. In my opinion, the expression that thereshould be animus against the real owner, came to be made in https://hcservices.ecourts.gov.in/hcservices/ particular cases, where the question arose as to whether thecontesting party was the real owner of the property or not and incases where the person in possession was required to prove ousterstrictly and particularly against specific individual or individualsas in the case of a co-owner pleading ouster and adverse possessionor a case of possession which was permissive at the inception and theperson in occupation claims to have acquired hostile title-videA.I.R.1971 S.C.996 cited above. But in cases where the occupier andthe predecessors in title have been in open and continuous occupationasserting positive title in themselves and against every one and thereal owner does not take any step to assert his right and tointerrupt the running of the period, there is no reason as to why theoccupier cannot claim adverse possession. The following judgmentsemphasis that what is necessary is open and unconcealed possessionand that it is not necessary that his possession should have beenbrought to the notice of the real owner."The principle laid down in this decision by this High Court has beenoverruled by the decision of the Hon'ble Supreme Court, reported in(2009) 16 SCC 517 (Hemaji Waghaji Jat v. Bhikhabhai KhengarbhaiHarijan), where under it has been held that the title of theplaintiff must be hostile to the true owner. In the decision reportedin (2006) 7 Supreme Court Cases 570, T.Anjanappa V.Somalingappa,which is quoted in (2009) 16 SCC 517, it has been held that a personwho bases claim on adverse possession must show by clear andunequivocal evidence that his title was hostile to the real owner andamounted to denial of his title to the property claimed. 15. The possession must be open and hostile enough to be capableof being known by the parties interested in the property, though itis not necessary that there should be evidence of the adversepossessor actually informing the real owner of the former's hostileaction. 16. So far as this case is concerned, the parties to thelitigation are close relatives. The plaintiff himself has enjoyed theproperty unaware of the fact that he is entitled to only AC.2. 19only, though he has actually enjoyed AC. 2.29. When the plaintiffhimself was unaware of the extent of the property there is nooccasion for the defendants to understand that the plaintiff is inpossession of the property which is hostile to the interest of thedefendants. According to the plaint averments the defendants havebeen claiming title over part of the property in R.S.No.13/4 for thepast six months, when the suit was filed in the year 1994.Subsequently, only during the pendency of the appeal, the plaintifftook the plea that they have title by adverse possession. Thiscircumstance would clearly go to show that the plaintiff has failedto establish the claim for adverse possession as per legalrequirement. https://hcservices.ecourts.gov.in/hcservices/

16. Therefore, in the result, the Second Appeal is partlyallowed. So far as the substantial question of law regarding adversepossession is concerned it is answered against the plaintiff holdingthat the plaintiff has not discharged the onus to establish the titleby adverse possession. So far as the claim for restoration of carttrack is concerned, the relief granted is modified allotting theplace of restoration of the cart track as per the plan furnished bythe defendants, which shall form part of the decree. No costs.Sd/Asst. Registrar/true copy/Sub Asst.Registrarsrk / rnsTo1. The Judge,The Additional District Court/Fast Track Court I Salem.2. The Isr Additional District MunsifSalem.3. The Section Officer, VR Section, High Court, Madras.+ 1 cc to Muthumani Doraisamy Advocate Sr.51222+ 1 cc to Mr.V. Srinivasan, Advocate Sr.51216 S.A.No.1351 of 2004 RS(CO)EU 19.2.13