Madras High Court
Singaravelu Mudaliar And 5 Ors. vs Lakshmi Ammal on 28 April, 1997
Equivalent citations: (1998)1MLJ601
JUDGMENT S.S. Subramani, J.
1. Defendants in O.S. No. 25 of 1985 on the file of the District Munsif Court, Kangeyam are the appellants.
2. The sole respondent herein filed the above suit for a permanent prohibitory injunction to restrain the defendants interfering with her possession on the following allegations. The suit property in the plaint originally belonged to one Venkatammal. About 30 years plaintiff purchased the property on the basis of an oral sale and came into possession.
3. The plaintiff has further stated that from the date of the sale, the plaintiff had been in exclusive possession and effected improvements in the property worth more than Rs. 15,000 and her possession is notorious, exclusive, and open. It is further stated that in the year 1962, the plaintiff took electrical connection to the building and electrical charges are also being paid by her. The plaintiff is doing automobile business and her correspondence all along is in the address of the plaint schedule property. The plaintiff's husband, R.K. Ponnusamy is also doing a small bakery business and the necessary untensils are also stored in the plaint schedule premises, It is further stated that after the sale Venkatammal did not have any possession and the plaintiff's possession was all along adverse. While so first defendant along with others, attempted to interfere with her possession on 25.1.1980 and also locked the schedule building. The plaintiff informed the police to open the same. The defendants 3 to 5 are also interfering with her possession and the suit was therefore filed for a permanent prohibitory injunction. It is further averred in the plaint that since the plaintiff has got possession of the property atleast 30 years prior to the date of filing the suit, the title if any of any person is also lost by adverse possession and by limitation. It is further contended that even the Venkatammal did not have any right nor her legal heirs have any right over the schedule property. It is further alleged that the defendants are claiming right over the property on the basis of the sale deed executed by legal heirs. Since on the date of death of Venkatammal did not have any right or her legal heirs did not have any right to execute any document. Since the plaintiff apprehends disturbance from the defendants, the suit was filed for a permanent prohibitory injunction.
4. In the written statement filed by the appellants, they disputed the claim of the plaintiff. According to them, the plaintiff had no possession over any portion of the property and it is on the basis of an ex parte order, of injunction, she forcibly entered the same. It is stated in the counter that they have taken possession of the property from legal heirs of Venkatammal on 23.1.1980 and on that date, they also obtained physical possession of the property. They also deny the oral sale as alleged in the plaint. It was further stated that at the instance of the plaintiff, a Commissioner was deputed to visit the property and when the Commissioner first came to the property, he was not in a position to enter the property since there was no separate entrance to the plaint schedule property. Subsequently, on that night, the plaintiff with her associates demolished a portion of the property and it was on that basis, the Commissioner could enter the property later. The allegation that the plaintiff has prescribed title by adverse possession was also denied. At any rate, they contended that the suit without relief of a declaration of title is not maintainable since the claim put forward by the plaintiff is on the basis of title. The further allegation that the plaintiff has effected improvements in the property was also denied.
5. On the above pleadings, the trial court took oral and documentary evidence. On the side of the plaintiff Exs. A-1 to A-118 were marked and Exs. B-1 to B-36 were marked as evidence on the defendant's side. Plaintiff got examined as P.W. 1 and her husband had been examined as P. Ws. 5 and 3 other independent witnesses were also examined. Fourth defendant was examined as D.W. I and two other witnesses were also examined. The Commissioner's reports were marked as C-1 and C-2 and the specific signature of other plaintiff was also marked as C-3 to C-7.
6. After discussing the entire evidence adduced before the trial court, it came to the conclusion that the plaintiff has no title, possession claimed by her is not true and her claim that she was continuously in possession of the plaint schedule property is also not true. It further came to the conclusion that the case of adverse possession is also not proved. The trial court also found that the plaintiff had relied on only the oral sale and not the case of adverse possession. When the oral sale is not permitted under law, she cannot get any injunction restraining the defendants and the suit was therefore dismissed. In this connection, it may also be noted that the trial court entered a finding that the suit is not maintainable without the relief of declaration.
7. Aggrieved by the judgment, the plaintiff preferred A.S. No. 64 of 1987 on the file of the Subordinate Judge, Dharapuram. The lower appellate court also found that the suit without a declaratory relief is defective. But at the same time, came to the conclusion that the plaintiff is entitled to injunction. It found that the oral sale must be true taking into consideration the various exhibits produced before it. It further came to the conclusion that if the plaintiff is found to be in possession, she is entitled to injunction even against the owner. Setting aside the judgment of the trial court, a decree was granted in favour of the plaintiff. It is against this judgment, the defendants preferred this appeal. The following substantial questions of law were raised at the time of admission:
(1) Whether the lower appellate court is right in reversing the judgment and decree of the trial court in view of the decision reported in James v. Y. Davidson (1988) 1 L.W. 590? (2) Whether the oral sale put forth by the plaintiff is acceptable in law in view of Section 54 of the Transfer of Property Act?
8. When the appeal was heard the learned Counsel for the respondent submitted that he had already filed C.M.P. No. 5195 of 1997 to have the plaint amended. In the affidavit in support of C.M.P. the learned Counsel states that he is claiming title on the basis by adverse possession and makes reference to paragraph 9 of the plaint. It is further stated that since all other legal requirements are already available in the existing plaint, she may be permitted to amend the plaint by seeking the additional relief of declaration. Though the learned Counsel for the appellant, opposed the C.M.P. I will consider the C.M.P. while disposing of the appeal.
9. Before going into a detailed discussion on the evidence, we have to take note of the statement recorded in the trial court judgment in paragraph 16. While discussing the issue Nos. 1 to 3 the trial court has recorded, thus.
The trial court has stated that during the cross-examination of the plaintiff, she relied only on oral sale. The statement recorded in the judgment is not challenged by the counsel. In fact, even in the lower appellate court, the said statement was not challenged. So, it stands. The plaintiff relies only on oral sale and wants an injunction on that basis.
10. How far the sale is proved or attempted by the plaintiff to prove the same has to be considered. The suit was filed originally as O.S. No. 112 of 1980 on the file of the District Munsif Court, Dharapuram. Subsequently, it was transferred to the District Munsif Court, Kangeyam and renumbered as O.S. No. 25 of 1985. In paragraph 4 of the plaint, it is averred thus:
It is on the basis of these two allegations in the plaint, the plaintiff wants an injunction. The plaintiff seeks relief of injunction only on the basis of her title, either on the basis of oral sale or on the basis of prescriptive title. The trial court in its judgment has recorded that the case of adverse possession as claimed by P.W. I was not pursued during her examination.
11. How far the case of oral sale is proved.
12. In the plaint, the details are not given as to the date of oral sale. It only shows "about 30 years ago". While she was examined as P.W. 1, she stated that she purchased the property in the month of December, 1950. It is further stated that at that time, her husband, her father and other relations were also present and the plaintiff makes a reference to one Alappa Chettiar, a close relation to the Venkatammal. It is further stated that since the oral sale took place in the month of Markazhi, it was agreed that Sale Deed could be executed in the month of January, 1951. But, during that time, Venkatammal was not well and therefore, the document could not be executed. She further stated that she came into possession of the property on the basis of the oral sale. As I have said, the details are not given in the plaint. P.W. 2 stated that the sale took place sometime in the month of Karthigai 1950. He has further stated that in the presence of one Alappa Chettiar, plaintiff's father and Ors. a sum of Rs. 5,000 was paid and the transaction was effected. He further says that the actual execution of the sale deed was decided to be had in the month of January, 1951. Along with the same, the key of the house was also handed over to the plaintiff. P.W. 3, who claims to be a neighbour, stated that for the last 35 years, the plaintiff was in possession of the scheduled property building. P.W. 4 stated that 32 years back, improvements have been effected by plaintiff and a sum of Rs. 15,000 was spent by her. P.W. 5 is the husband of the plaintiff. According to him, for the past 37 years, the plaintiff is in possession and he knows that the plaintiff came into possession only on the basis of oral sale. He also denied the statement that he is a tenant in the building as alleged by the defendants as per Exs. B-35 and B-36. This is the evidence that was let in to prove the oral sale.
13. Even according to the plaintiff, she wanted a sale deed to be executed. If we believe the evidence of P. Ws. l and 2, the statement is very clear that they wanted to execute the sale deed pursuant to the transfer alleged by them. According to P.W. 1, it was in the month of Markazhi 1951, and according to P.W. 2, it was in Karthigai 1950, but both of them stated that the actual sale deed was to be executed in Thai 1951. If that is the arrangement, it is clear that the transaction took place on the expectation that a sale deed will be executed, and the plaintiff entered possession. Even according to their case, sale deed was necessary to confer title on her. So, the allegation that 30 years back, there was an oral sale by late Venkatammal in favour of the plaintiff is not proved. The oral sale is not permissible under law, for, Transfer of Property Act prohibits such a transfer. Admittedly, in this case, the consideration is more than Rs. 100. According to plaintiff, she paid Rs. 5,000 for the transfer. If so, the sale can only be by a registered instrument and could not be effected by an oral arrangement and that is why P.W. 2 was very particular in saying that actual sale deed was decided to be executed in January, 1951. If the parties contemplated the execution of a real sale deed, there cannot be an oral sale and that too fixing a date after the entire consideration is paid. The case put forward by the plaintiff is that she paid entire sale consideration of Rs. 5,000 in the month of December, 1950 though it was agreed to execute sale deed sometime in January, 1951. If the parties intended to execute a sale deed, steps would have been taken by the plaintiff herself at least in January, 1951 or thereafter. Till date, plaintiff has not taken any steps to have the sale deed executed. All these circumstances improbabilise the theory of an oral sale. The trial court minutely discussed the evidence of the parties and came to the conclusion that the oral sale pleaded is dot true. If we go by the evidence of plaintiff's husband P.W. 5, he is not supporting the case of the plaintiff when he said that the sale took place sometime 37 years ago before the date of filing the suit. The above inconsistency shows that the case pleaded cannot be true.
14. That is why in the plaint she pleads for the alternate case of adverse possession. Even though during her examination, she said she is not pursuing the plea of adverse possession to prove her title and asserted that she relies only on oral sale, the present C.M.P. is filed going back on the words of P.W. 1. How far the plea of adverse possession is proved in the case can also be considered, and since learned Senior Counsel on both sides argued that point also, I am referring to oral sale for the reason that the relief of injunction is claimed only on the basis of title and not on the basis of possession. If injunction is claimed, the court may have to consider whether the story put forward by her is true and if the ownership is not proved and the case of adverse possession also goes, she becomes trespasser as against the real owner. That compels me to enter a finding on the case of adverse possession also. I have already extracted the pleadings on adverse possession. It only says that the plaintiff came into possession 30 years before the date of filing the suit. The 30 years is connected with the oral sale. She has not given the date in the plaint though in her examination she stated that it was in the month of the December, 1950. P.W. 2 gives a different date. The pleading in so far as the case of adverse possession is concerned, is very vague and the plaint herself is not definite about it. That apart, if we go by the evidence of P. Ws. l and 2, we are able to see that possession was taken on the expectation that the sale deed would be executed in the month of January, 1951. They also knew that the title will be completed only on executing a sale deed and also wanted a sale deed to be executed. It is their case that after the oral sale, the deed could not be executed since Venkatammal was ill and subsequently she died. So, the initial possession was on the basis of an arrangement recognising the title of Venkatammal, till the sale deed is to be executed. When they entered possession recognising the title of Venkatammal, it could never be adverse.
15. In the decision of Kerala High Court, in the case of Sankara v. Balakrishna , a Division Bench of the Kerala High Court considered the point regarding possession of a person on the expectation of getting registry from the Government in respect of a Government land. The plaintiff in that case obtained registry from the Government and filed a suit for recovery. At the same time, the defendant was in possession of the plaint schedule property. The question was, what is the nature of defendant's possession. While considering the same, learned Judge stated thus:
Possession by a person who entered on Government land with the hope that it may be registered in his name was not adverse possession but only precarious possession and cannot avail against the Government or a person acquiring title from the Government The learned Judge further went on to say that: "The defendant's possession in fact did not amount to a possession in law, that is, did not involve an animus possidendi of occupation with the intention of excluding the owner and other people.
On the date when the plaintiff obtained possession, she did not have an animus possidendi to hold the property against Venkatammal. If that be so, limitation cannot start on the date on which she entered possession. Thereafter, the date from which she had the animus possidendi to hold the property against Venkatammal or against her legal heirs is nowhere pleaded in the plaint and during all these time, plaintiff was paying tax for the building only in the name of Venkatammal. That means, she continued to recognise the title of Venkatammal and never wanted to pay the tax in her name. The various tax receipts marked as Exs. A-1 to A-37 are upto the year 1978. The tax was paid only in the name of Venkatammal. In this connection, it may also be noted that there is no document to show that the plaintiff was residing in the schedule building from the year 1962 till 1971. It is defendants' case that even though the plaintiffs husband was residing in the house as a tenant, subsequently they shifted their residence to some other place. Ex. B-4 shows that in the year 1977, plaintiff purchased some property from one Sivan Malai Chettiar. There the address is not the plaint schedule property, but a different building. Ex,B-5 also shows that during the relevant time, plaintiff was residing at some other building. Electoral rolls marked as Exs. B-6, B-7 and B-8 also support such an inference. 16. What is the overt act by plaintiff to prove her possession as adverse? No evidence has been let in in that regard except for a statement that she has taken electric connection to the building. To prescribe adverse possession, acts of ownership must be notorious. That means, it must be visible to others. Taking electric connection to the building is not a notorious act. Even a person in permissive possession, is entitled to take electric connection, for, that is only to add amenities to his residence. Apart from that piece of evidence, the notoriety is also not proved. 17. I have already stated that possession at the inception was not adverse since the plaintiff expected a sale deed to be taken. I have also said that the possession of the plaintiff, if any, is only precarious possession and not with an animus to hold against the late Venkatammal. If that be so, the law requires specific pleading as to when the adverse possession began. In a very recent decision of the Supreme Court in the case of Dr. Mahesh Chand Sharma v. Raj Kumari Sharma in paragraph 32 of the Judgment, at page 151, their Lordships held that, It is also well established that the party pleading adverse possession must state with sufficient clarity as to when his adverse possession commenced and the nature of its possession. " In that case, their Lordships went on to say in paragraph 37 that, We may emphasise that a person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession.
I find that there is absolutely no pleading as to when the adverse possession began, the statement she is in possession for about 30 years is not a pleading which could be accepted as a pleading under Article 65 of the Limitation Act. In the decision in S.M. Karim v. Bibisakina , their Lordships held thus, Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. A mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.
Likewise, in the case of A. Abdul lnamdar (Dead) by L. Rs. and Ors. v. Harun Abdul lnamdar and Ors. . Their Lordships held thus, "With regard to the plea of adverse possession, the appellant having been successful in the two courts below and not in the high Court, one has to turn to the pleadings of the appellant in his written statement. There he has pleaded a duration of his having remained in exclusive possession of the house, but nowhere has he pleaded a single overt act on the basis of which it could be inferred or ascertained that from a particular point of time his possession became hostile and notorious to the complete exclusion of other heirs, and his being in possession openly and hostilely. It is true that some evidence, basically of Municipal register entries, were inducted to prove the point but no amount of proof can substitute pleadings which are the foundation of the claim of a litigating party. The High Court caught the appellant right at that point and drawing inference from the evidence produced on record, concluded that correct principles relating to the plea of adverse possession were not applied by the courts below. The finding, as it appears to us, was rightly, reversed by the High Court requiring no interference at our end. " [Italics supplied] Regarding the proof of adverse possession, in the book 'Rustomji on Limitation', seventh edition 1992, the learned author has stated at page 1021 that, "No court should take the plea of acquisition of title by adverse possession casually and no importance should be attached to the evidence of witnesses who simply depose that the land is in possession of somebody or other. The burden of proving adverse possession is a heavy one. It must not be lost sight of that acts sufficient to constitute possession on the owner may not be sufficient to constitute possession in the trespasser. In determining the question of acquisition of title by adverse possession, the court must depend on clear, full and definite evidence relating to different points of time.
Apart from various tax receipts and the receipts for getting electric connection, no evidence of adverse possession is adduced in this case. The proof that is required under Article 65 of the Limitation Act is totally lacking in this case. The possession of the plaintiff can be viewed in another angle also. On the basis of P.W. 1 and 2, the plaintiff paid a sum of Rs. 5,000 with an oral agreement to have the sale deed executed in the month of Thai 1951. So their possession is on the basis of that agreement. The present occupation of the property cannot be a possession and legally it is only recognising the title of the original owner. I am supported to have that view by the decision in the case of Achal Reddy v. Ramakrishna Reddiar , wherein it is held that, Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse. Therefore, if a person is in actual possession and has a right to possession under a title involving a due recognition of the owner's title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well recognised policy of law that possession is never considered adverse if it is referable to a lawful title. In a case in which there is a mere executory contract of sale where the transferee is put in possession of the property in pursuance of the agreement of sale and where the parties contemplate the execution of a regular registered sale deed, the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. In such case the animus of the purchaser throughout is that he is in possession of the property belonging to the vendor and that the former's title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and convey his title. The purchaser's possession in such cases is of a derivative character and in clear recognition of and in acknowledgement of the title of the vendor. The position is different in the case where in until the date of registration of the conveyance is permissive or derivative and in law is deemed to be on behalf of the owner himself. " The said principle is adopted in the decision in the case of Mohan Lal v. Mira Abdul Gqffar A.I.R. 1996 S.C. 306, In paragraph four of that Judgment, it is held that, "As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nec vi nec clam nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant. " [Italics supplied] Looking at any angle, the case pleaded by the plaintiff cannot be accepted. Either on the ground of oral sale or on the ground of adverse possession, the plaintiff is not having title.
17. As I have already said, the suit is filed for injunction on the basis that the plaintiff is the owner. In the decision in the case of James v. Y. Davidson (1988) 1 L.W. 590, it was held as:
Even though no authority is required in view of the emphatic language of Section 9 of the Transfer of Property Act, sufficie for us to refer to one Full Bench Judgment of this Court reported in 45 Mad. 612. It will follow, therefore, that an oral sale of a tangible immovable property of the value of more than rupees one hundred is invalid in law. In this case, it is a tangible immovable property, the value being Rs. 1,04,000 and therefore no title could pass under the oral sale set up by the plaintiff. The contrary finding of the learned Sub Judge exhibits his ignorance of the law. Therefore, we do not have the slightest hesitation in holding that the judgment of the learned Sub Judge is a perverse one.
Pursuance of an oral transfer of a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property. In such a case the owner of the property does not retain any vesting of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether. The transferee after getting into possession retains the same with the clear animus that he has become the absolute owner of the property and in complete negation of any right or title of the transferor, his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person. So far as the vendor is concerned both in mind and actual conduct, there is a total divestiture of all his right, title and interest in the property. This applies only in a case where there is a clear manifestation of the intention of the owner to divest himself of the right over the property. On the other hand in the case of an executory contract the possession of the transferee the relief of injunction is as owner or quaowner. When once we have held that no title could pass under an oral sale, the question of upholding his possession as owner will not arise. Therefore, that request has also to be denied to the respondent. In view of the above, we also vacate the other findings.
18. The learned Senior counsel for the respondent then contended that once the plaintiff is found to be in possession, even if she is not the owner, she is entitled to continue in possession till she is lawfully dispossessed. According to the counsel, that point was not taken note of or considered by the Division Bench in the decision in the case of James v. Y. Davidson (1988) 1 L.W. 590. 1 do not think th at the said submission is correct. Even assuming that the said contention could be taken, we have to consider what is the nature of the possession of the plaintiff. Admittedly, defendants have taken sale deed from the legal heirs of Venkatammal and they have obtained ownership. I have already found that the acquisition of title by prescription or on the basis of oral sale cannot be accepted. If that be so, the possession of the plaintiff can only be that of a trespasser or of a person in unauthorised occupation. Whether such person can get a relief of injunction against the real owner. In the decision in the case of Premji Ratansey Shah v. Union of India , their Lordships have held thus:
It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identify of the land should not be an excuse to claim injunction against true owner.
19. The grant of injunction is purely discretionary. Plaintiff, who is in unauthorised occupation, is not entitled to get protection from Court. A person in unlawful possession is not entitled to get any equitable relief. When she pleads that she is in adverse possession, she admits her possession as wrongful, as was held in the case of Dr. Mahesh Chand Sharma v. Raj Kumari Sharma , in para 37 at page 153 of the judgment cited supra. A person claiming adverse possession, and failing to prove the same, is not entitled to any equity. The grant of injunction is an equitable relief. Law discourages unlawful act and granting relief on the basis of an unlawful act is not to be encouraged. A person in unlawful possession which has not ripened into title is therefore, not entitled to get an injunction.
20. The trial court, rightly dismissed the suit and held that the plaintiff has no right over the property and the injunction cannot be granted. But, the lower Appellate Court came to a different conclusion and granted the relief on the ground that the plaintiff is in possession for a long time. Whether the possession is adverse or whether the plaintiff has prescribed title was not considered. But, since a C.M.P. was filed by the counsel for the respondent to have the title declared on the basis of title, I am bound to take a decision on the point raised. I hold that the possession of the plaintiff can never be treated as adverse, though wrongful. The appellants are the real owners of the property and as against them the relief of injunction cannot be granted.
21. In the result, I set aside the judgment of the lower appellate court and restore the decree and judgment of the trial court, i.e., O.S. No. 25 of 1985, on the file of District Munsif's Court, Kangeyam stands dismissed. The appeal is allowed and the appellants are entitled to their costs in all the three courts.
22. C.M.P. No. 5195 of 1997 : Since learned Senior Counsel on both sides argued the case on the question of adverse possession also and did not want any further evidence to be let in even if the amendment is allowed and since I also considered this question while disposing of the second appeal, I do not think any prejudice will be caused to the appellants if the C.M.P. is allowed. The C.M.P. is, therefore, allowed, and the respondent is directed to incorporate the amendment within seven days. There will be no order as to costs in this C.M.P.