Madras High Court
Ponnambalam vs Pitchai on 11 March, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11/03/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.168 of 2001 and C.M.P.No.1706 of 2001 Ponnambalam .. Appellant/Respondent/Defendant Vs Pitchai .. Respondent/Appellant/Plaintiff Prayer Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 22.11.1999 passed in A.S.No.77 of 1996 on the file of the Subordinate Court, Kulithalai in reversing the judgment and decree dated 16.11.1995 passed in O.S.No.133 of 1993 on the file of the District Munsif Court, Kulithalai. !For Appellant ... Mr.T.M.Hariharan ^For Respondent ... Mr.K.Govindarajan :JUDGMENT
This second appeal by the defendant is focussed as against the judgment and decree dated 22.11.1999 passed in A.S.No.77 of 1996 on the file of the Subordinate Court, Kulithalai in reversing the judgment and decree dated 16.11.1995 passed in O.S.No.133 of 1993 on the file of the District Munsif Court, Kulithalai.
2. The parties are referred to hereunder in the same order as they were arrayed before the trial Court.
3. Broadly but briefly, the case of the plaintiff as stood exposited from the plaint could be portrayed thus:
The plaintiff is the owner of the suit property which comprised of a plot and a hut constructed therein. As per Ex.A5, dated 19.03.1955 the assignment deed given by the Government, the plaintiff became the owner of the said plot and he constructed the hut thereon. While so, the plaintiff permitted the defendant to be in occupation of the said suit property; subsequently, when the former demanded the latter to vacate and hand over possession of it, the defendant turned turtle, which necessitated the plaintiff to file the suit.
4. Impugning and challenging, denying and refuting the allegations/averments in the plaint, the defendant filed the written statement; the gist and kernel of it would run thus:
The plaintiff is not the owner of the suit property. It was the defendant who of his own accord entered into the property and raised hut and living ever since 1952. He has been paying tax to the suit property. By his long enjoyment, he acquired absolute right and title over the suit property. Accordingly, he prayed for the dismissal of the suit.
5. The trial Court framed the relevant issues and during trial, the plaintiff examined himself as P.W.1 and Exs.A.1 to A.5 were marked. On the side of the defendant, he examined himself as D.W.1 along with D.Ws.2 and 3 and Exs.B.1 to B.10 were marked.
6. The trial Court ultimately dismissed the suit.
7. Being aggrieved by and dissatisfied with the Judgment and decree of the trial Court, the plaintiff preferred the first appeal, whereupon the first appellate Court reversed the Judgment and decree of the trial Court.
8. Challenging the Judgment and decree of the first appellate Court, the defendant filed this second appeal on the following grounds among others:
The first appellate Court erroneously prevented the defendant from adducing additional evidence viz., the photocopy of the voters list relating to the year 1979, intended to prove the possession of the defendant. The first appellate Court fell into error in not considering that the plaintiff, who was expected to prove his case, has not produced any evidence to show that ever since the emergence of Ex.A4, he was in possession and enjoyment of it. The first appellate Court failed to consider the significance of Ex.B4, which enures to the benefit of the defendant to prove his title over the suit property. The other exhibits filed on the side of the defendant also was not considered by the first appellate Court in proper perspective. There was no evidence to indicate that the defendant was put in possession of the suit property by the plaintiff as permissive occupier and in such a case the first appellate court was not right in simply accepting the case of the plaintiff and decreeing the suit. Accordingly, he prayed for setting aside the Judgment and decree of the first appellate Court and for restoring the Judgment and decree of the trial Court which dismissed the original suit.
9. The following substantial questions of law were framed by my learned Predecessor at the time of admitting this second appeal:
"1. Whether the Lower Appellate Court is correct in not permitting the appellant to file the additional document filed under Order 41 Rule 27 CPC without following the procedure as laid down under Order 41 Rule 27 CPC?
2. Whether the Lower Appellate Court is correct in relying upon the Ex.A.5 which is admittedly not acted upon since the year 1955 onwards?
3. Whether the Lower Appellate Court is correct in ignoring the Ex.B.4 assignment deed and Patta pertaining to the suit property issued by Tahsildar in favour of the appellant?
4. Whether the Lower Appellate Court is correct in shifting the burden of proof on the appellant to substantiate the case of permissive possession of the suit property as pleaded by the plaintiff?"
10. Substantial Question of Law No.1:
The substantial question of law No.1 is relating to additional evidence.
11. The learned counsel for the appellant/ defendant would argue that the first appellate Court was not justified in rejecting the photocopy of the voters list of the year 1979, which was filed as additional evidence, whereas the learned counsel for the respondent/plaintiff would argue that by passing a considerate order dated 22.11.1999, the first appellate Court correctly rejected such photocopy of the voters' list.
12. The perusal of the order dated 22.11.1999 passed by the first appellate Court in I.A.No.200 of 1999, reveals that during the pendency of that I.A., steps have been taken to summon the Tahsildar concerned to produce the original Voters' list of the year 1979; but, he gave a reply that those records were destroyed. As such, the first appellate Court correctly held that a mere photocopy of the Voters' list and that too without having been attested and compared by any competent person cannot be entertained in as evidence. It is a trite proposition that regular civil suits are on a higher footing legally than all other proceedings. In a serious title suit, photocopies cannot be entertained and there could be no second thought over it. My mind is redolent with the decision of this Court in Tamil Nadu Industrial Investment Corporation Ltd. v. N. Swaminathan and others reported in 2003(1) CTC 33 : 2002 (4) LW 147. Here, the additional documents attempted to be filed before the first appellate Court is a mere photocopy which was not even compared and certified by any competent person.
13. The learned counsel for the appellant/ defendant also would fairly submit that the attestation signatures of the Advocate in that photocopy is only for the purpose of showing that it was presented by the defendant before the Court and it was not signed after comparing with any original document relating to that photocopy. Hence, I could see no reason to disagree with the first appellate Court's verdict in rejecting it. Accordingly, this substantial question of law No.1 is answered.
14. The substantial questions of law Nos.2 to 4 are taken together for discussion as they are interlinked and interwoven with one another.
15. Ex.A5 is a document, which gained prominence in this case. The learned counsel for the appellant/defendant would submit that there is nothing to indicate that Ex.A5 was acted upon and that in accordance with Ex.A5, the plaintiff raised construction and occupied the suit property at any time. According to him Ex.B4, the certificate issued by the Tahsildar would prove that the defendant is the owner of the suit property.
16. A mere comparison of Ex.A5, vis-a-vis Ex.A4 would clearly highlight that Ex.A5 is legally on a higher footing than Ex.B4. As has been highlighted supra, Ex.A5 is the assignment issued by the authority concerned in proper form and it would certainly enure to the benefit of the plaintiff case that he is the owner of the suit property. Whereas Ex.B4 is only a certificate to the effect that during the year 1992, the defendant was in possession and enjoyment of the suit property to an extent of 3 cents. It is therefore clear that Ex.B4 is not a document, which could confer title on the defendant. Ex.A4 is the patta relating to the suit property issued by the Tahsildar which supports Ex.A5.
17. On the defendant's side, Ex.B1 to B3, the tax receipts pertaining to the years 1991-92, 1992-93 and 1993-94, were filed just to prove that the defendant has been paying the tax. Ex.B7 is the house tax receipt for the year 1994-95 and all those documents would not confer title on the defendant and it is quite obvious and no more elaboration in this regard is required.
18. Exs.B8 and B.9 are the voters' list relating to the year 1984 and Ex.B10 is the voters' list relating to the year 1988 and that would show that the defendant has been in possession and enjoyment of the suit property. But those documents would constitute title over the suit property. The suit itself has been filed in the year 1993, whereas the documents filed on the side of the defendant would be ranging from the year 1988. The core question arises as to whether the plaintiff proved his averments in the plaint that the defendant happened to be a permissive occupier under him. No doubt, the trial Court gave a finding to the effect that there was no clinching evidence except the ipse dixit of P.W.1. However, the trial Court fell into error in page No.4 of its (printed) Judgment in remarking that P.W.1 during cross examination admitted as though the defendant was not a permissive occupier under the plaintiff. The perusal of the deposition of P.W.1 would not convey such a meaning. The deposition of P.W.1 would reveal that his evidence was not as remarked by the trial Court. The relevant excerpt from the deposition of P.W.1 would run thus:
"jhthtpy; trjpapy;yhjjhy; btspa{h; gpiHf;fg; Bghdjhft[k; me;j rkak; gpujpthjpf;F tpl;ljhft[k; brhy;ytpy;iy. gpujpthjp jhd; tPL fl;o 40 tUlkhf mDBghfk; vd;Wk; bgha;".
The cited excerpt would in no way convey the idea that P.W.1 had given a goby to his plea in the plaint. As such, the trial Court was not right in assuming as though P.W.1, the plaintiff gave contradictory version during the trial. It is the consistent plea of the plaintiff that the defendant was a permissive occupier under him. He could not examine anyone on his side to prove his version that the defendant was a permissive occupier under him, because the fact that the permission given by the plaintiff and taken by the defendant, were within the knowledge of both of them only. Hence, in such a case, the Court has to proceed based on the broad principle that possession follows title. In this connection, I would like to refer to the following decisions:
(i) Rajender Singh and others v. Santa Singh and others reported in (1973) 2 Supreme Court Cases 705. An excerpt from it would run thus:
"One of the questions attempted to be raised here, involving investigation of fresh facts, was that a portion of the land, entered in the revenue records as "Banjar", cannot be adversely possessed at all because it is vacant so that it must be deemed to be in the possession of the plaintiffs on the principle that possession follows title. The plaintiffs had not taken such a case even in their replication in answer to the written statement of the defendants. Apart from the fact that the question does not appear to have been missed in the Courts below, we think that the plaintiffs' admission of dispossession by defendants, implying that the defendants-respondents were in actual adverse possession of all the land in dispute debars plaintiffs' learned Counsel from raising such a question now. Furthermore, the patent fallacy underlying such a contention is that Banjar land is incapable of adverse possession. It may be that Banjar land cannot be cultivated, but, we do not think that it could possibly be urged that it is per se incapable of being actually physically possessed by use for other purposes, such as building or storing of wood or crops, apart from cultivation. We will say no more about this unsustainable contention".
(ii) Prataprai N. Kothari v. John Braganza reported in (1999) 4 Supreme Court Cases 403:
"If not for any other reason, at least on account of the doctrine of law that possession follows title, the defendant must be held entitled to be in full possession of the open space".
(iii) Murugaiyan and 2 others v. Subbaiyan reported in 2001(3) CTC 393:
"12. The only question surviving for consideration is as regards possession. No doubt, the Commissioner has found that the defendant had raised paddy in the area covered by AJDEI. The suit was filed in the year 1985. The Commissioner filed his report in 1988. This would not show that on the date of the suit, the defendant was in possession of the area AJDEI or in any event in enjoyment of the palmyrah trees along the line/ridge AID. In one of this documents it is stated that the property excluding the palmyrah trees has been sold, though the other document shows including palmyrah trees. Those are documents among the family members of the defendant. His uncle or cousin had sold the middle and the southern portions of the property claimed by the defendant, to his wife. As rightly pointed out by the trial Court, the document which says that palmyrah trees were also subject matter of sale, is a self serving document and that will not prove the title of the defendant to the palmyrah trees or his possession and enjoyment of the same. The defendant set up two Panchayats with regard to palmyrah trees. None of the panchayatdars was examined before the courts below. The panchayats set up by the defendant have not been established. Exs.A.2 to A.12 show plaintiffs' possession for the period 1962 to 1976 and 1985. Even otherwise the established legal position when there is no adequate evidence with regard to possession by either party, is possession should follow title. In the instant case, the title of the plaintiffs having been clearly found, the lower appellate court was in error in finding that the defendant was in enjoyment of the palmyrah trees. There is some vague averment in the written statement with regard to adverse possession by the defendant. However, there is no proof of the same. The claim of the defendant on the basis of adverse possession cannot therefore be countenanced.
13. The plaintiffs have title. Possession follows title. The Substantial question of law is answered in favour of the appellants. The second appeal is allowed. The judgment and the decree of the lower appellate Court are set aside and those of the trial Court restored. In as much as the lower appellate court has committed a serious blunder with regard to the point arising for consideration, this Court is perforce obliged to interfere under Section 100 C.P.C."
19. The defendant's evidence that he has been occupying the suit property from the year 1988 or for that matter even from the year 1984 would not in any way enure to his benefit to plead that he acquired prescriptive title over it. My mind is redolent with the maxim 'nec vi, nec clam, nec precario' (not by violence, stealth or permission). Over and above that I would also like to refer to the decision of the Hon'ble Apex Court in P.T.Munichikkanna Reddy v. Revamma reported in (2007) 6 Supreme Court Cases 59 relating to adverse possession. Certain excerpts from it, would run thus:
"34. The law in this behalf has undergone a change. In terms of Articles 142 ans 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Bibi Sakina in the following terms: (AIR p. 1256, para 5) "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." (See also M. Durai v. Muthu (2007) 3 SCC 114 : (2007) 2 Scale 309.)
35. The aforementioned principle has been reiterated by this Court in Saroop Singh v. Banto stating: (SCC p. 340, paras 29-30) "29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC 376.)
30. 'Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita (2004) 1 SCC 271, SCC para 21.)"
36. In Mohammadbhai Kasambhai Sheikh v. Abdulla Kasambhai Sheikh this Court held: (SCC p. 386, para 4) "But as has been held in Mahomedally Tyebally v. Safiabai the heirs of Mohammedans (which the parties before us are) succeed to the estate in specific shares as tenants-in-common and a suit by an heir for his/her share was governed, as regards immovable property, by Article 144 of the Limitation Act, 1908. Article 144 of the Limitation Act, 1908 has been materially re-enacted as Article 65 of the Limitation Act, 1963 and provides that the suit for possession of immovable property or any interest therein based on title must be filed within a period of 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. Therefore, unless the defendant raises the defence of adverse possession to a claim for a share by an heir to ancestral property, he cannot also raise an issue relating to the limitation of the plaintiff's claim."
37. The question has been considered at some length recently in T. Anjanappa v. Somalingappa wherein it was opined: (SCC p. 577, para 21) "21. The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable."
(See also Des Raj v. Bhagat Ram (2007) 9 SCC 641 : (2007) 3 Scale 371 ; Govinammal v. R.Perumal Chettiar (2006) 11 SCC 600 : JT (2006) 10 SC 121.)
40. There is another aspect of the matter, which cannot be lost sight of. The right of property is now considered to be not only a constitutional or statutory right but also a human right.
41. Declaration of the Rights of Man and of the Citizen, 1789 enunciates right to property under Article 17:
"since the right to property is inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid".
42. Moreover, the Universal Declaration of Human Rights, 1948 under Sections 17(i) and 17(ii) also recognises right to property:
"17. (i) Everyone has the right to own property alone as well as in association with others.
(ii) No one shall be arbitrarily deprived of his property."
20. As such, the perusal of the aforesaid Judgment would clearly highlight that the plea of prescription should be proved by the defendant in a clinching manner. Mere possession for any number of years would not constitute title in his favour. Hence, considering all these facts, I am of the considered opinion that the first appellate Court properly appreciated the evidence and circumstances before it and reversed the Judgment and decree of the trial Court and decreed the suit, which warrants no interference. Accordingly, the substantial questions of law Nos.2 to 4 are answered as under:
(i) The substantial question of law No.1 is decided to the effect that the lower appellate Court was correct in permitting the appellant to file the additional document;
(ii) The substantial question of law No.2 is decided to the effect that the lower appellate Court was right in relying upon Ex.A5, which cannot be stated it was acted upon.
(iii) The substantial question of law No.3 is decided to the effect that the lower appellate Court was right in holding that Ex.B4 would not confer title on the defendant; and
(iv) The substantial question of law No.4 is decided to the effect that after the plaintiff having discharged his burden of proof, it got shifted on the defendant's side, but he failed to prove his case.
21. In the result, there is no merit in the second appeal and the same is dismissed, confirming the judgment and decree of the first appellate Court. However, in the facts and circumstances of the case, there is no order as to costs. Consequently, the connected Miscellaneous Petition is dismissed.
smn To
1. The Subordinate Judge, Kulithalai.
2. The District Munsif, Kulithalai