Madras High Court
C.Selvam vs P.Chellamuthu (Died) ...Plaintiff / ... on 30 August, 2022
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 13.07.2022
Pronounced on :30.08.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
S.A.No.909 of 2000
1.C.Selvam
2.B.A.Chellappan
... Defendants 9 & 10 / Appellants / Appellants
Vs.
1.P.Chellamuthu (died) ...Plaintiff / 1st Respondent / Respondent
2.The District Collector,
Periyar District,
Collectorate, Erode.
3.Deputy Collector,
Survey and Land Records,
7th floor, Collectorate,
Erode.
4.Settlement Tahsildar,
Town Survey Office,
Anna Nagar, Bhavani,
Erode District.
https://www.mhc.tn.gov.in/judis
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5.Inspector,
Town Survey, Anna Nagar,
Bhavani, Erode District.
6.Balachander
7.Rajasekar
8.Vivekanandan
9.Subash Chandra Bose
... Defendants 1 to 8 / Respondents 2 to 9 / Respondents
10.Lakshmi
11.S.Raaji
12.S.Mathaiyan ... Respondents
RR10 to 12 brought on record as LRs of the
deceased 1st respondent viz., P.Chellamuthu
vide order of Court dated 03.02.2021 made
in CMP.No.3812 of 2020 in S.A.No.909 of
2000 (TKRJ)
The Second Appeal filed under Section 100 of CPC, against the
judgment and decree made in A.S.No.54 of 1997 dated 27.10.1998 on the
file of the Sub Court, Bhavani confirming the judgment and decree made in
O.S.No.50 of 1993 dated 17.01.1997 on the file of the Additional District
Munsif Court, Bhavani.
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For Appellant : Ms.J.Prithivi
for Mr.S.Kaithamalai Kumaran
For R6 to R8 &
R10 to R12 : Mr.T.Murugamanickam,
Senior Counsel,
Assisted by Ms.Zeenath Begam
For R2 to R5 : Mr.E.Vijay Anand,
Additional Government Pleader
R1 : Died
For R9 : No appearance
JUDGMENT
The 9th and 10 defendants in O.S.No.50 of 1993 on the file of the Additional District Munsif Court, Bhavani are the appellants herein.
2.The said suit in O.S.No.50 of 1993 had been filed by the 1st respondent, P.Chellamuthu against the District Collector and other officials of the Revenue department as 1st to 4th defendants, and against the predecessor in title of the present appellants as 5th to 8th defendants and against the appellants herein who were shown as 9th and 10th defendants seeking declaration of title by adverse possession with respect to the suit https://www.mhc.tn.gov.in/judis 4 schedule property and for permanent injunction restraining the 1st to 4th defendants from transferring the patta in favour of the 9th and 10th defendants and for permanent injunction restraining the 5th to 10th defendants from interfering with peaceful possession of the suit property.
3.The suit property had been described as being situated to the West of Bhavani to Mettur Main Road and are two houses in Door Nos.37A and 37B in S.No.757 of 2002 at Bhavani in Erode District.
4.By judgment dated 17.01.1997, the Additional District Munsif Bhavani, had decreed the suit, thereby recognizing the declaration of title by adverse possession and also granted an injunction not to transfer patta to the appellants herein / 9th and 10th defendants.
5.The 9th and 10th defendants then filed A.S.No.54 of 1997 before the Sub Court Bhavani. By judgment dated 27.10.1998, the appeal suit was dismissed and the judgment and decree of the Trial Court was confirmed. https://www.mhc.tn.gov.in/judis 5
6.The 9th and 10th defendants then filed the present Second Appeal. The Second Appeal had been admitted on 04.08.2000 on the following two substantial questions of law:-
“i).Whether the findings of the appellate Court that the defendants (sic) (plaintiff) has prescribed title by adverse possession are sustainable in law?
ii).Whether the findings of the appellate Court on the question of adverse possession are supported by evidence on record?”
7.Pending the Second Appeal, the plaintiff in the suit / 1st respondent / P.Chellamuthu died and his legal representatives had been brought on record as 10th to 12th respondents.
8.In the plaint in O.S.No.50 of 1993, the plaintiff P.Chellamuthu claimed that he and several other families trespassed into the suit property in or about 1974. The original owner of the suit property was the grand father of the 5th to 8th defendant. He discontinued his possession. The property was vacant site. It was called Thamaraikulam. The plaintiff and other families reclaimed the land and raised the level and constructed residential buildings. The plaintiff also constructed two houses. The houses https://www.mhc.tn.gov.in/judis 6 have been assessed to property tax. He also obtained electricity service connection. He claimed to be in possession and enjoyment visibly, exclusively and hostile and continuous to the knowledge of the true owners namely, the grandfather of the 5th to 8th defendants. Since, the defendants were interfering with possession and the 1st to 4th defendants were trying to change the patta in the name of 9th and 10th defendant, the suit had been filed seeking declaration of title and for permanent injunction.
9.The 1st to 4th defendants filed a written statement, wherein they claimed that further steps would be taken with respect to the patta on conclusion of the civil litigation.
10.The 9th defendant filed a written statement claiming that he had purchased the property from the sons of Radhakrishnan Chettiyar and that he was in possession. He further claimed that the plaintiff was a tenant. He further claimed that the suit was false and frivolous. He further claimed that the plaintiff was not entitled to seek the relief sought. https://www.mhc.tn.gov.in/judis 7
11.On the basis of the said pleadings, the learned Additional District Munsif Bhavani, framed necessary issues with respect to whether the plaintiff was entitled for declaration of title on the ground that he had prescribed title by adverse possession.
12.During trial, the plaintiff examined himself as PW-1 and examined another witness as PW-2. Exs.A1 to A50 were marked. Two witnesses were examined on the side of the defendants. The defendants marked Exs.B1 to B16. A Commissioner had been appointed and his report and sketch were marked as Exs.C1 and C2.
13.Among the documents filed by the plaintiff, Ex.A1 which was dated 05.10.1978 to Ex.A9 were house tax receipts. Exs.A10 to A21 were electricity payment receipts. Exs.A35 to A49 were also house tax receipts for the years 1979 to 1989. The documents on the side of the defendants included the sale deed dated 06.07.1992 as Ex.B6 and tax receipts for the years 1992 and 1993 as Exs.B10 and B11.
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14.On the basis of the evidence adduced, the learned Additional District Munsif came to a definite conclusion that the plaintiff had been in continuous possession, hostile to the owners of the property namely, the grandfathers of the 5th to 8th defendants. It was specifically found that the 5th to 8th defendants or their father or grandfather had never objected to the possession of the plaintiff or to the putting up of the construction of house of the plaintiff. It was therefore held that such possession and putting up construction was hostile and adverse to the title of the grandfather of the 5th to 8th defendants and also to the title of the 5th to 8th defendants. The 9th and 10th defendants claimed to have purchased the properties but had not asserted title. It was concluded that the possession of the plaintiff was adverse to their interest also. Holding so, the suit was decreed.
15.The 9th and 10th defendants then filed A.S.No.54 of 1997 before the Sub Court Bhavani.
16.By judgment dated 27.10.1998 the learned Sub Judge Bhavani framed necessary points for consideration under Order 41 Rule 31 CPC., particularly, whether the plaintiff had prescribed title by adverse possession. https://www.mhc.tn.gov.in/judis 9
17.On the basis of the evidence it was found that the plaintiff had indeed prescribed title by adverse possession as against the true owners namely, the grandfather of the 5th to 8th defendants and also against the 5th to 8th defendants and subsequently, against the 9th and 10th defendants. It was also found that the Government had recognized the possession of the plaintiff and had also issued joint patta in his name. It was also found that the property constructed had been assessed to tax. All these factors were considered and it was held that the plaintiff had prescribed title by adverse possession against the true owner and had been in possession for well over the prescribed period of 12 years. The appeal suit was dismissed.
18.Questioning that particular judgment, the 9th and 10th defendants filed the present Second Appeal. The Second Appeal had been admitted on 04.08.2000 on the following two substantial questions of law:-
“i).Whether the findings of the appellate Court that the defendants (sic) (plaintiff) has prescribed title by adverse possession are sustainable in law?
ii).Whether the findings of the appellate Court on the question of adverse possession are supported by evidence on record?” https://www.mhc.tn.gov.in/judis 10
19.Heard arguments advanced by Ms.J.Prithvi, learned counsel for the appellants and Mr.T.Muruganmanickam, learned Senior Counsel for the 6th to 8th and 10th to 12th respondents and also Mr.E.Vijay Anand, learned Government Pleader for the 2nd to 5th respondents.
20.The Special Government Pleader (Civil Side) had also filed written arguments, wherein he stated that land in S.No.757 / 2 had been recorded in the name of B.Ramanthan Chettiyar S/o. Balakrishna Chettiyar and P.Chellamuthu the 1st respondent / plaintiff by patta No.720. It was stated that since litigation is pending, no further steps have been taken. It had been stated that the Settlement Tahsildar, Bhavani, would pass final orders as per the Tamil Nadu Survey and Boundaries Act, 1923 and related laws, in accordance with the directions given by the Court.
21.Both the substantial questions of law surround the claim of the 1st respondent herein / plaintiff that he had prescribed title by adverse possession. It has been his specific case that he had encroached into the suit property in the year 1974 and that such encroachment was hostile to the https://www.mhc.tn.gov.in/judis 11 then owner of the suit property namely, the grandfather of the 5 th to 8th defendants in the suit and thereafter, had reclaimed the land and filled it up and then raised the level and also constructed houses which were also assessed to tax. He had consolidated his possession by obtaining electricity service connection and every other facility from the statutory authorities.
22.To substantiate these averments, exhibits have also been filed and produced. The oral testimonies and documentary evidence have withstood cross-examination. The property tax, demand notice of the year 1978 had also been produced as a document. Further tax receipts had also been produced. Electricity connection receipts had been produced. Notices from the municipality had been received, which indicated that the municipality had recognized possession and recognized that such possession had been consolidated by putting up constructions. All these factors, would show that the respondent has been in continuous possession hostile to the true owner and also been in possession for well over the prescribed period.
23.The 9th and 10th defendants in the suit, the appellants herein had canvased before both the Courts below that the respondent was a tenant but https://www.mhc.tn.gov.in/judis 12 to substantiate that statement had not produced any document and therefore both the Court below had concurrently returned a finding that the respondent had perfected title by adverse possession.
24.The learned Senior counsel for the respondents relied on the judgment in AIR 1986 Mad 106, V.Muthiah Pillai (died) and others V. Vedambal and others, wherein it was held as follows:-
“29. The only point that is harped upon by the appellants is that they had no knowledge of these transactions. We are of the opinion that there is a great distinction between adverse possession as between strangers and ouster pleaded in the case of co-owners. There is a basic difference between the two. In the case of adverse possession, as against strangers it is enough that adverse possession is overt, which should be without any attempt or concealment so that the person against whom time is running if be had exercised due vigilance he would be able to be aware of what is happening. We do not think that it is necessary that adverse possession should be brought home to the knowledge of the owner. If the rights of the third defendant have been openly usurped and not secretly, as the above chain of events would disclose, he cannot be heard to complain that the fact of adverse possession was not brought to his knowledge. In this case, the adverse possession, https://www.mhc.tn.gov.in/judis 13 for which the animus of the first defendant alone is necessary, is open, visible and notorious. If, therefore, the third defendant had remained ignorant and indifferent, it is his own fault. The observations in cases like Puttathayammal v. Ratanaraji A.I.R. 1955 Mysore 33 are general in character. Therefore, they do not help the appellants. In the case of adverse possession on the part of the owner is not a essential element. For this view we are fortified by a ruling of the Privy Council reported in the Secretary of State of India in Council v. Debendralal Khan 66 M.L.J. 134. It was held at page 137 as follows— “As to what constitutes adverse possession, a subject which formed the topic of some discussion in the case, their Lordships adopt the language of Lord Robertson in delivering the judgment of the Board in Radhamoni Debi v. Collector of Khulna 1900 L.R. 27 I.A. 136 at 140=27 Cal. 943 (P.C.), where His Lordship said that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor”. The classical requirement is that the ‘possession should be nee vi nec clamnec precario. Mr. Dunne for the Crown appeared to desiderate that the adverse possession should be shown to have been brought to the knowledge of the Crown, but in their Lordships' opinion there is no authority for this requirement. It is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is https://www.mhc.tn.gov.in/judis 14 running ought, if he exercises due vigilance, to be aware of what is happening. If the rights of the Crown have been openly usurped it cannot be heard to plead that the act was not brought to its notice.”
25.The learned Senior Counsel for the respondents then relied on the judgment in 2003 (1) CTC 290, K.Krishnan and another Vs. S.Mari Naicker and another, wherein it was held as follows:-
“10. ...... The first defendant has let in oral and documentary evidence to show that his father and later himself are in continuous enjoyment of the suit properties as their own and the real owners, namely, the plaintiffs, did not take any step to assert their right and to interrupt the running of the period of limitation. I am in agreement with the view expressed by K.P. Sivasubramaniam, J in Thangamani v. Santhiagu, 2000 (3) M.L.J. 589 that it was not necessary that the adverse possession should be brought to the knowledge of the person against whom it is claimed and that it was sufficient that possession should be open and without any concealment so that the person against whom the time was running was aware of what was happening.
The other decision cited by the learned counsel for the respondent is Sadasiva Gounder and https://www.mhc.tn.gov.in/judis 15 another v. Purushothaman, 2000 (3) M.L.J. 785, in which K. Sampath, J has held that ‘animus’ in the legal parlance would mean mind, design, will, intention, disposition and to claim with regard to possession, the term is animus possidendi, which means the intention of possession and the person claiming adverse possession must intend in his mind to possess a property as his own and it does not mean that he must be conscious that the property belongs to somebody else and all that is required by the term ‘animus’ in the context of adverse possession is that the person must have intention to possess the property as his own and I agree with the above view of the learned Judge.”
26. The learned Senior Counsel for the respondents (2020) 11 SCC 263, Uttam Chand (Dead) Through Legal Representatives Vs. Nathu Ram (Dead) Through Legal Representatives, wherein it was held as follows:-
“14. As to whether the plaintiff can claim title on the basis of adverse possession, this Court in a judgment Ravinder Kaur Grewal v. Manjit Kaur [Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 : (2019) 4 SCC (Civ) 453] has held as under: (SCC p. 777, para 60) “60. The adverse possession requires all the three classic https://www.mhc.tn.gov.in/judis 16 requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.”
27.The dictum laid down in the aforementioned judgments are that possession should not only be continuous but it should be open and hostile to the true owner.
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28.In the instant case, the possession of the 1st respondent had been not only continuous but also open and hostile to the grandfather of the vendors of the appellants herein. The possession had not been disturbed but had actually been recognized by the statutory authorities. It is thus evident that both the Courts below had come to a correct conclusion that the 1st respondent who was the plaintiff in the suit had prescribed title by adverse possession and such findings are supported by evidence on record.
29.In Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un- Niswan, (1999) 6 SCC 343, it was held as follows by the Hon’ble Supreme Court :
“12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.
https://www.mhc.tn.gov.in/judis 18 “13. In Ramanuja Naidu v. V. Kanniah Naidu [(1996) 3 SCC 392] this Court held:
“It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.” “14. In Navaneethammal v. Arjuna Chetty [(1996) 6 SCC 166] this Court held:
“Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. … Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.” https://www.mhc.tn.gov.in/judis 19 “15. And again in Secy., Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. [(1997) 4 SCC 484] this Court held:
“The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible.”
30. I hold that the appellants have not made out any case of perversity in the appreciation of evidence. The findings of both the Courts below that the 1st respondent herein as plaintiff in O.S.No.50 of 1993 had prescribed title by adverse possession is upheld and confirmed.
31.In the result, the Second Appeal is dismissed with costs.
30.08.2022 Index:Yes/No Internet:Yes/No Speaking / Non speaking order smv https://www.mhc.tn.gov.in/judis 20 To
1.The Sub Court Bhavani.
2.The Additional District Munsif, Bhavani.
3.The Section Officer, VR Section, Madras High Court. https://www.mhc.tn.gov.in/judis 21 C.V.KARTHIKEYAN,J.
Smv Pre-delivery Judgment made in S.A.No.909 of 2000 30.08.2022 https://www.mhc.tn.gov.in/judis