Madras High Court
Kunjamma Alias P.J.Aliamma vs R.Sankara Subramanian Thevar ... 1St on 12 August, 2008
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/08/2008 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM Second Appeal No.672 of 2008 and M.P.No.1 of 2008 Kunjamma alias P.J.Aliamma ... Appellant/ 1st defendant Vs. 1.R.Sankara Subramanian Thevar ... 1st Respondent/ Plaintiff 2.Hari Das ... 2nd Respondent/ 2nd defendant (Rs dispensed with as he remained exparte in Court below) Second Appeal has been filed under Section 100 of C.P.C., against the judgment and decree dated 12.02.2008 passed in Appeal Suit No.52 of 2007 by the Principal District Judge, Tirunelveli, confirming the judgment and decree dated 04.09.2007 passed in Original Suit No.120 of 2005 by the Additional Subordinate Judge, Tenkasi. !For appellant ... Mr.T.S.R.Venkatramana ^For 1st respondent ... Mr.K.Srinivasan :JUDGMENT
Challenge in this second appeal is to the concurrent judgments passed in Original Suit No.120 of 2005 by the Additional Subordinate Court, Tenkasi and in Appeal Suit No.52 of 2007 by the Principal District Court, Tirunelveli.
2.The first respondent herein as plaintiff has instituted the Original Suit No.120 of 2005 on the file of the trial Court for the reliefs of declaration, recovery of possession and also for mesne profits, wherein the present appellant has been shown as first defendant.
3.The epitome of the averments made in the plaint is that the suit properties are originally belonged to one M.C.Jabbu and he has executed a will dated 24.12.1978 in favour of his wife Mariyamma Jabbu. The power of attorney agent of the said Mariamma Jabbu by name K.G.Alexander has executed a sale deed in respect of the suit properties in favour of the plaintiff on 07.02.1989 and the plaintiff has paid sale consideration of Rs.55,000/-. The original owner of the suit properties and some other properties by name M.C.Jabbu and his wife Mariamma Jabbu and their children have worked in Qwaith. The sister's husband of M.C.Jabbu by name C.J.George has managed the entire estate of M.C.Jabbu and the said George has not properly managed the entire estate of M.C.Jabbu and in the year 1979, he has been removed. The said Mariamma Jabbu has appointed the first defendant to manage the Milinipuram Estate from the last month of 1979. The first defendant has managed the said estate. The first defendant has been permitted to reside in the suit properties. The first defendant has acted against the interest of Mariamma Jabbu and therefore, the first defendant has been removed on 12.09.1981. Then, K.G.Alexander has been appointed to manage Milinipuram Estate. The first defendant has been directed to vacate the suit properties. The first defendant has instituted Original Suit No.90 of 1981 by way of alleging that she is having an oral sale agreement in respect of the suit properties and the said suit has been dismissed on 28.03.1988. The plaintiff, after dismissal of the said suit, has approached the first defendant and asked her to vacate the suit properties, but the first defendant has refused and she has filed Appeal Suit No.40 of 1988 and the same has also been dismissed. Against the concurrent judgments, the first defendant has filed Second Appeal No.1458 of 1989 and the same has been remanded to the Second Additional District Court, Tirunelveli and subsequently Appeal Suit No.40 of 1988 has been dismissed on 10.07.2002 and thereafter the first defendant has filed Second Appeal No.1044 of 2003 and the same has been dismissed on 13.02.2004. In the meanwhile, the first defendant has filed Original Suit No.97 of 1989 for the reliefs of permanent injunction and the same has also been dismissed on 13.03.1996. The first defendant has let out the building bearing Door No.26 to the second defendant and the second defendant has been running a shop by name Sakthi Sports. The defendants are liable to surrender possession of the suit properties. Under the said circumstances, the present suit has been instituted for the reliefs indicated supra.
4.It is averred in the written statement filed by the first defendant that the deceased M.C.Jabbu has left behind him, his wife viz., Mariamma and daughters viz., Susan, Anitha & Milini as his legal heirs. It is false to say that he has executed the will dated 24.12.1978 in favour of his wife and it is also equally false to say that the plaintiff has purchased the suit properties under a registered sale deed dated 07.02.1989. The will dated 24.12.1978 has not been probated. One of the daughters M.C.Jabbu by name Susan has passed away leaving behind her legal heirs and therefore, the present suit is bad for non-joinder of necessary parties. The permission given to the first defendant has not been cancelled so far. From 1979 onwards, the first defendant has enjoyed the suit properties against Mariamma Jabbu and thereby the first defendant has prescribed title to the suit properties by adverse possession. It is false to say that the plaintiff has asked the first defendant to vacate the suit properties and the first defendant has evaded. In Original Suit No.90 of 1981 no relief of recovery of possession has been sought for. The plaintiff is not entitled to get the reliefs sought for in the plaint and therefore, the present suit deserves dismissal.
5.On the basis of rival pleadings raised on either side, the trial Court has framed necessary issues and on the side of the plaintiff, Exs.A1 to A6 and on the side of the defendants Exs.B1 & B2 have been filed. On the side of the plaintiff, PW1 and on the side of the defendants, DW1 have been examined.
6.The trial Court, after perpending both the oral and documentary evidence adduced on either side, has decreed the suit as prayed for with costs. Against the judgment and decree passed by the trial Court, the first defendant as appellant has preferred Appeal Suit No.52 of 2007 on the file of the first appellate Court. The first appellate Court, after reappraising the evidence available on record, has dismissed the appeal, whereby and whereunder confirmed the judgment and decree passed in Original Suit No.120 of 2005 by the trial court. Against the concurrent judgments, the present second appeal has been filed at the instance of the first defendant as appellant.
7.As agreed by the counsel appearing for both sides, the present second appeal is disposed of on merits at the stage of admission.
8.On the side of the appellant/first defendant the following substantial questions of law have been raised for consideration;
"a)When admittedly the appellant/ respondent was removed from service with effect from 12.09.1891 will not Sec.62(g) of Easement Act will come into play and is not the suit claim barred?
b)When Ex.A5 judgment gives a clear finding that the possession of the appellant was not based on an agreement of sale, was the District Judge right in holding that possession was as part performance offending the rules of "Resjudicata and Estopple"?
c)When Ex.A1 dated 07.02.1989 mandates the respondent to recover the property from defendants specifically and it was admitted in Box, but when the suit was filed only on 10.04.2004 is not the suit claim barred by time?
d)Whether the Courts below are right in granting a relief for mesne profits, when the pleading is that appellant/defendant is in permissive possession?"
9.The crux of the case of the plaintiff is that the suit properties and some other properties are originally belonged to one Milinipuram Estate and its owner by name M.C.Jabbu and his family members have worked in Qwaith and in order to administer the estate, one C.J.George has been appointed as manager and he has failed to give proper accounts and he has been removed and subsequently, during the last month of 1979, the first defendant has been appointed to administer the said estate and the first defendant has also mismanaged and she has been removed and during her administration, she has been permitted to reside in the suit properties and the plaintiff has purchased the suit properties under a registered sale deed dated 07.02.1989 and after his purchase, he approached the first defendant to vacate the suit properties, but the first defendant has instituted Original Suit No.90 of 1981 for the relief of specific performance on the ground that the original owner of the suit properties has given an oral sale agreement and the same has been dismissed and subsequently she has filed the first and second appeals and the same have also been dismissed. Even after dismissal of the said suit, the plaintiff therein (appellant/first defendant) has refused to vacate the suit properties and therefore, the present suit has been laid for the reliefs sought for in the plaint.
10.The crux of the contention urged on the side of the first defendant is that from the year 1979 she has enjoyed the suit properties to the knowledge of the original owner by name Mariamma Jabbu and thereby the first defendant has prescribed title to the suit properties by adverse possession.
11.The learned counsel appearing for the appellant/first defendant has repeatedly contended that the specific pleading made in the plaint is that the first defendant has been permitted to reside in the suit properties so as to administer the Milinipuram Estate and subsequently she has been removed in the year 1979 and the first defendant is only a licensee and from the date of cancellation of license, the first defendant is deemed to be a trespasser and she has enjoyed the suit properties to the knowledge of the original owner for more than a statutory period and thereby, prescribed title to the suit properties by adverse possession, but the Courts below without considering the contentions urged on the side of the appellant/first defendant, have erroneously rejected the same and therefore, the concurrent judgments passed by the Courts below are liable to be interfered with and the present suit is liable to be dismissed.
12.In order to remonstrate the argument advanced by the learned counsel appearing for the appellant/first defendant, the learned counsel appearing for the first respondent/plaintiff has also equally contended that the original owner of the suit properties has permitted the first defendant to administer Milinipuram Estate and the first defendant has also been permitted to reside in the suit properties and her possession is nothing but permissive possession and since the possession of the first defendant with regard to the suit properties is nothing but permissive possession, no animus is present and therefore, the first defendant is not entitled to raise the plea of adverse possession and the Courts below, after considering the contentions urged on the side of the first defendant, have clearly rejected the claim of the first defendant and therefore, the concurrent judgments passed by the Courts below are perfectly correct and the same need no interference.
13.The learned counsel appearing for the appellant/first defendant has advanced his argument mainly on the basis of the provision of Section 62(g) of the Indian Easements Act, 1982 and the same reads as follows;
"A license is deemed to be revoked, where the license is granted to the licensee as holding a particular office, employment or character and such office, employment or character ceases to exists."
14.From the close reading of the said provision, it is made clear that if any license is granted to a licensee in respect of office, employment or character and if such office, employment or character, ceased to exists, the license granted is deemed to be revoked.
15.In the instant case, the specific pleading made in the plaint is that during the last month of 1979, the first defendant has been appointed by the owner of the suit properties to administer Milinipuram Estate and within a short span, she has been removed. Therefore, from the date of removal, the Court can come to a conclusion that the license granted in favour of the first defendant to enjoy the suit properties as administrator of the said milinipuram Estate, is deemed to be revoked. After revocation of license, the first defendant is nothing but a trespasser.
16.At this juncture, it would be more useful to look into the litigation emerged between the first defendant and original owner of the suit properties. It is an admitted fact that the first defendant as plaintiff has instituted the Original Suit No.90 of 1981 for the relief of specific performance contending interalia that the original owner of the suit properties has entered into an oral sale agreement with the first defendant and thereby agreed to sell the suit properties in her favour. The said suit has been instituted against Mariamma Jabbu and her power agent K.G.Alexander. The said suit has been dismissed on 28.03.1988. Against the judgment and decree passed in Original Suit No.90 of 1981 the plaintiff therein (appellant/first defendant herein) as appellant has filed Appeal Suit No.40 of 1988 on the file of the Second Additional District Court, Tirunelveli and the same has been dismissed on 09.08.1989 and against concurrent judgments, Second Appeal No.1458/1989 has been filed on the file of this Court and this Court has remanded Appeal Suit No.40 of 1988 to the first appellate Court and the first appellate Court has dismissed Appeal Suit No.40 of 1988 on 10.07.2002 and against the judgments and decrees passed by the Courts below, Second Appeal No.1044 of 2003 has been filed on the file of this Court and the same has also been dismissed by this Court on 13.02.2004. The judgment passed in Original Suit No.90 of 1981 has been marked as Ex.A5 and the decree passed in Appeal Suit No.40 of 1988 has been marked as Ex.A2. The judgment passed in Second Appeal No.1044 of 2003 has been marked as Ex.A3. In the meanwhile, the first defendant as plaintiff has instituted Original Suit No.97 of 1989 for the relief of permanent injunction. In Original Suit No.90 of 1981, the specific stand taken by the plaintiff therein (first defendant) is that she has been enjoying the suit properties in pursuance of alleged oral sale agreement. In the plaint filed in Original Suit No.97 of 1989 at paragraph 3 it is averred as follows;
"The II schedule of properties originally belonged to one Mrs.Mariamma Jabbu. She agreed to sell the suit properties to this plaintiff for Rs.21,500/- and she has also made a discount of Rs.500/- by the end of June 1980. The plaintiff was put into possession of II schedule properties."
17.The present suit properties have been shown as second schedule in Original Suit No.97 of 1989. Even in Original Suit No.97 of 1989, the first defendant herein has categorically admitted that she has been put into possession of the suit properties only in pursuance of alleged sale agreement. It has already been pointed out that upto the year 2004, the specific stand taken by the first defendant is that she has been enjoying the suit properties in pursuance of the alleged oral sale agreement. Therefore, it is not factually correct to say that the first defendant has enjoyed the suit properties adverse to the knowledge of the owner for more than a statutory period and thereby prescribed title to the suit properties by adverse possession. Therefore, from the plaints filed in Original Suit Nos.90 of 1981 & 97 of 1989, the Court can unflinchingly come to a conclusion that the first defendant has not enjoyed the suit properties adverse to its real owner and therefore, the requisite animus is totally absent on the part of the first defendant.
18.The learned counsel appearing for the appellant/first defendant has advanced his argument mainly on the basis of adverse possession. The person claiming adverse possession should clearly establish possession for twelve years and more than that, necessary animus to hold hostile title and unless it is shown, the present position is that possession follows title. Mere oral evidence for proving possession is wholly inadequate. After the new Limitation Act, it is wholly unnecessary for the plaintiff to prove possession within twelve years prior to the suit. Further, a person claiming title by adverse possession has to prove "NEC", "NECVI", "NECCLAM", and "NEC-PRICARIO". In other words, he must show that his possession is adequate in continuity, in publicity and in extent. Unless these conditions are proved by the person claiming title by adverse possession, he is not entitled to claim the same.
19.The learned counsel appearing for the first respondent/plaintiff has meticulously drawn the attention of the Court to the following decisions;
a) In 2007 (2) Law Weekly 955 (T.Anjanappa and Others Vs. Somalingappa and another), the Honourable Apex Court has held that the concept of adverse possession contemplates a hostile possession i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. Where possession could be referred to a lawful title, it will not be considered to be adverse. A person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. Mere possession however long does not necessarily means that it is adverse to the true owner. Further possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.
b) In 2006(2) Law Weekly 742 (A.Vedanayagam and others Vs. V.Annakili & five others) the Division Bench of this Court has held that a person who claims adverse possession, alone has to establish the same and on his failure, whatever may be the period of his occupation, the owner of the properties is entitled to recover the property, which cannot be prevented. Failure on the part of the plaintiffs or their predecessors in interest, in not taking steps to recover possession, on the basis of title, from the dates of their acquiring title to the suit property, certainly would not bar them from initiating the suit, for recovery of possession at a later point of time. Law requires 'animus' to extinguish the title of the true owner, and to confer title upon the squatter, by adverse possession, whatever may be the length of possession.
20.From the conjoint reading of the decisions referred to above, the Court can deduce the following aspects;
a)Adverse possession means a possession which is expressly or impliedly in continuity against the title of the true owner;
b)Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them;
c)Where possession could be referred to a lawful title, it will not be considered to be adverse;
d)Mere possession however long does not necessarily means that it is adverse to the true owner;
e)Possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action; and
f)Law requires 'animus' to extinguish the title of the true owner, and to confer title upon the person who claims adverse possession.
21.With these legal aspects, the Court has to analyse the plea of adverse possession raised on the side of the appellant/first defendant. It has already been clinchingly stated that in the plaints filed in Original Suit Nos.90 of 1981 and 97 of 1989, the specific contention of the plaintiff therein is (appellant/first defendant herein) is that she has been enjoying the suit properties in pursuance of alleged oral sale agreement. Even in the written statement filed in the present suit at paragraph No.4, it has been admitted that the first defendant has been enjoying the suit properties on the basis of the permission given by the original owner of the suit properties viz., Mariamma Jabbu. Therefore, it is quite clear that there is no requisite animus on the part of the first defendant to the effect that she has been enjoying the suit properties adverse to its real owner and thereby prescribed title to the same by adverse possession. It is not an adulation to say that the averments made in the plaints filed in Original Suit Nos.90 of 1981 and 97 of 1989 are clear and befitting answers to the plea of adverse possession raised in the present suit.
22.In Original Suit Nos.90 of 1981 and 97 of 1989, the specific contention of the first defendant herein is that she has been enjoying the suit properties in pursuance of the alleged oral sale agreement. Of-course, it is true that from the year 1979, the first defendant has been enjoying the suit properties. At this juncture, it would be apropos to rely upon the decision reported in AIR 1990 Supreme Court 553 (Achal Reddi Vs. Ramakrishna Reddiar and others), wherein the Honourable Apex Court has held as follows;
"In the case of an agreement of sale the party who obtains possession, acknowledges title of the vendor even though the agreement of sale may be invalid. It is an acknowledgment and recognition of the title of the vendor which excludes the theory of adverse possession. The well-settled rule of law in that 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 recognized policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case 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. 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."
23.From the dictum made in the decision referred to above, it is needless to say that a person who is having an agreement of sale and obtained possession, acknowledges title of the vendor. Even though the agreement of sale may be invalid, the person who got into possession under a contract of sale cannot claim adverse possession. Therefore, it is quite clear that the first defendant is not entitled to claim adverse possession.
24.In the light of the foregoing enunciation of both the factual and legal aspects, this court has not found any valid force in the argument advanced by the learned counsel appearing for the appellant/first defendant and whereas the argument advanced by the learned counsel appearing for the first respondent/plaintiff is really having subsisting force.
25.The learned counsel appearing for the appellant/first defendant has also advanced his residual argument stating that even in Ex.A1, sale deed which stands in the name of the plaintiff, it has been clearly mentioned that the plaintiff should institute necessary proceeding so as to get possession of the suit properties and Ex.A1 has come into existence on 07.02.1989 and the present suit has been instituted in the year 2005 and the plaintiff has been examined as PW1 and he has also clearly stated in his evidence that there is no interdiction on his part to institute a suit so as to recover the suit properties from the first defendant and since from the year 1989, the plaintiff has failed to institute a suit so as to recover possession of the suit properties, the possession of the first defendant is adverse to him.
26.Even at the risk of jarring repetition, the Court would like to point out that through out the proceedings made in Original Suit No.90 of 1981, the specific stand taken by the first defendant herein is that he has been enjoying the suit properties in pursuance of the alleged oral sale agreement and even in Original Suit No.97 of 1989 she has clearly admitted that she has been put into possession with the suit properties in pursuance of the alleged oral sale agreement. Original Suit No.90 of 1981 has come to an end only on 13.02.2004. Therefore, till 13.02.2004 the definite stand of the first defendant is that she has been enjoying the suit properties in pursuance of the alleged oral sale agreement. Under the said circumstances, it is too much on the part of the learned counsel appearing for the appellant/first defendant to contend that possession of the first defendant is adverse to the present plaintiff. Therefore, the residual argument advanced by the learned counsel appearing for the appellant/first defendant has no legs to stand.
27.The present suit has been instituted for the reliefs of declaration of title and recovery of possession and also for mesne profits. Ex.A1 is the sale deed which stands in the name of the plaintiff and Ex.A1 has been executed by the rightful owner of the suit properties. From the date of Ex.A1, the plaintiff is having valid title to the suit properties and since the plaintiff is having valid title to the suit properties in pursuance of Ex.A1 and since the first defendant has not perfected title to the suit properties by adverse possession, the plaintiff is entitled to get the reliefs sought for in the plaint. The trial Court, after considering all the rival evidence adduced on either side, has rightly decreed the suit as prayed for. The first appellate Court, after having thorough discussion has also rightly dismissed Appeal Suit No.52 of 2007 and In fact, this Court has not found even a flimsy ground to make interference with the well merited judgments passed by the Courts below and further all the substantial questions of law raised on the side of the appellant/first defendant are not legally sustainable and altogether the present second appeal deserves dismissal at the stage of admission.
28.In fine, this second appeal deserves dismissal at the stage of admission and is dismissed with costs. The judgment and decree passed in Original Suit No.120 of 2005 by the Addi tonal Subordinate Court, Tenkasi, upheld in Appeal Suit No.52 of 2007 by the Principal District Court, Tirunelveli are confirmed. Consequently, connected miscellaneous petition is also dismissed.
gcg To
1.The Principal District Judge, Tirunelveli.
2.The Additional Subordinate Judge, Tenkasi.