Madras High Court
Subramaniyan (Died) vs Venkatachalam Pillai on 8 April, 2011
Author: T.Mathivanan
Bench: T.Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:08.04.2011 CORAM: THE HON'BLE MR.JUSTICE T.MATHIVANAN S.A.No.819 of 2002 1.Subramaniyan (died) 2.S.Jothiammal 3.Jayanarayanan 4.Thirumalaidasan .... Appellants (Appellants 2 to 4 brought on record as heirs of the deceased first appellant vide orders of Court dated 25.06.2007 made in C.M.P.No.1759 of 2007) Vs. 1.Venkatachalam Pillai 2.Sampath ..... Respondents Prayer : Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree dated 03.09.2001 and made in A.S.No.86 of 2000, on the file of the learned Additional District Judge, Villupuram, confirming the Judgment and decree dated 30.06.2000 and made in O.S.No.992 of 1993, on the file of the learned Additional District Munsiff, Thirukoilur. For Appellants : Mr.G.Ilantherian for Mr.M.V.Karunakaran For Respondents : Mr.V.Raghavachari ***** J U D G M E N T
This second appeal is directed against the Judgment and Decree dated 03.09.2001 and made in A.S.No.86 of 2000, on the file of the learned Additional District Judge, Villupuram, confirming the Judgment and decree dated 30.06.2000 and made in O.S.No.992 of 1993, on the file of the learned Additional District Munsiff, Thirukoilur.
2. The facts, which giving rise to the memorandum of second appeal, are detailed as under:
The suit property is the residential house and the vacant site. It was originally belonged to the first defendant. In the year 1977 (at the end of Tamil month of Thai), the plaintiff had orally purchased the suit property from the first defendant for the consideration of Rs.3,000/- and ever since from his purchase he has been in possession and enjoyment of the suit property for more than 16 years and as such the plaintiff has prescribed title over the property by way of adverse possession. That on 05.12.1993, the defendants were trying to trespass upon the suit property, for which they do not have any right or interest. Hence, the plaintiff was constrained to file the suit for the relief of declaration and injunction.
3. The defendants have contended that the suit property is the ancestral property of the first defendant. It is not correct to say that the plaintiff had purchased the said property orally in the year 1977 for the consideration of Rs.3,000/-.
4. The plaintiff is none other than the first defendant's sister's son. Since the father-in-law of the first defendant had passed away the first defendant in order to look after the properties of his father-in-law, had been to Kedar Village at Villupuram Taluk in the year 1982. At the time of his leaving the village, the first defendant had permitted the plaintiff to be in possession of the property in his absence. The plaintiff had also come to be in possession of the suit property on an undertaking that he would surrender the vacant possession of the suit property to the first defendant as and when he is called upon to do so. Hence, the possession of the plaintiff is only permissive possession and he never purchased the property from the first defendant. No document of sale was written in between the plaintiff and the first defendant. The plaintiff had never prescribed title over the suit property by way of adverse possession. Since the value of the property would be more than Rs.10,000/- the appropriate Court fee should be paid as contemplated under Section 25(B) of the Court Fee and Suit Valuation Act. Hence, the suit filed by the plaintiff is not maintainable under Sections 9 and 54 of the Transfer of Property Act. The plaintiff is also not entitled either to the relief of declaration or to the relief of perpetual injunction.
5. Based on the pleadings of the parties to the suit, the Trial Court had formulated as nearly as five issues for the better adjudication of the suit.
6. In order to establish their respective cases, both the plaintiff and the respondents went for trial. Four witnesses which includes the plaintiff were examined on behalf of the plaintiff and during the course of their examination Exs.A1 to A6 were marked. On the other hand, the first defendant had examined himself as DW1 and besides him two more witness were examined on his part. During the course of their examination Exs.D1 to D3 were marked.
7. On evaluating the evidences both oral and documentary, the trial Court had found as follows:
(i) that the purchase of the suit property by the plaintiff from the defendant orally had been proved,
(ii) that the defendants had failed to prove their plea that the plaintiff was permitted to occupy the suit property and hence the plea of permissive possession taken by the defendants was rejected,
(iii)that since the plaintiff claims right over the suit property as it's real owner he could not claim that he had prescribed title over the suit property by adverse possession, Ultimately the trial court had concluded that though it was established that the plaintiff had purchased the suit property orally for the sale consideration of Rs.3,000/-, since the value exceeded Rs.100/-, the sale had to be necessarily registered as contemplated under Sections 9 and 54 of the Transfer of Property Act and hence unless and until the sale was registered, it could not be construed that the plaintiff was having legal right over the suit property and for the reason aforestated, the suit was dismissed.
8. Being aggrieved by the Judgment and decree dated 30.06.2000 and made in O.S.No.992 of 1993, the plaintiff had preferred the first appeal in A.S.No.86 of 2000, on the file of the learned Additional District Judge, Villupuram. When the first appeal came up for hearing, the following two issues were raised before the first appellate Court.
i. Whether the plaintiff (appellant) is entitled to the reliefs as claimed in the suit?
ii.What are all other reliefs, which the plaintiff (appellant) is entitled to get in the appeal?
9. On hearing both sides and on appreciation of evidences available on record, the first appellate Court has found that the finding of the trial Court that the plaintiff had established the oral sale is erroneous and in consequence thereof the first appeal was dismissed on the ground that as contemplated under Section 54 of the Transfer of Property Act since the sale in respect of the immovable property is exceeded the value of Rs.100/-, it must be registered and the first appellate Court has also found that since the plaintiff had claimed that he had purchased the property orally, he is not entitled to get the relief of declaration.
10. Challenging the Judgment and Decree dated 03.09.2001 and made in A.S.No.86 of 2000, on the file of the learned Additional District Judge, Villupuram, the plaintiff has approached this Court by way of this second appeal.
11. When the second appeal came to be admitted the following substantial questions of law were arisen for the disposal of this appeal.
1. Whether the first appellate Court can reverse the finding on issue No.1 of the trial Court, even without challenging the finding by way of filing a cross appeal by the respondents/defendants?
2. Is it competent under law for the Court to ignore the classical requirements of the law of adverse possession, when admitting and giving a finding that the appellant is in possession of the suit property since 1977 till date?
3. Whether it is permissible under law for the Court to ignore the position of law when the respondents/defendants, themselves admit the continuous possession of the appellant/plaintiff in the trial Court?
4. Is not the trial Court bound under law to formulate the pertinent point regarding the adverse possession of the appellant/plaintiff and framed the specific issue to that effect so that the premises may advert to it and advance their case?
12. During the pendency of this second appeal, the appellant/plaintiff had died. Hence, the appellants 2 to 4 being the wife and children of the deceased first appellant have been impleaded in view of the order dated 25.06.2007 and made in C.M.P.No.1759 of 2007.
13. Mr.G.Ilantherian, learned counsel appearing for Mr.M.V.Karunakaran, learned counsel who is on record for the appellants has submitted that the trial Court had rightly found that the plaintiff had been in possession and enjoyment of the suit property since 1977. The trial Court had also rightly found that the contention of the defendants that the possession of the suit property by the plaintiff was only permissive from the year 1982 is untrue and unfounded and that the defendants had not proved their plea of permissive possession. He has also submitted that both the trial Court and the appellate court had lost sight upon paragraph No.3 of the plaint, in which the plaintiff has stated that he had perfect title of adverse possession over a statutory period.
14. Further, the learned counsel for the appellants has submitted that the testimonies of PW1 to PW4 and documentary evidences under Ex.A1 to A6 have categorically supported the claim of the plaintiff that he had purchased the suit property orally for the value of Rs.3,000/-. He has also added that the trial Court had also found that the plea of oral purchase for the value of Rs.3,000/- had been established by the plaintiff. But, the first appellate Court had miserably failed to approach the facts of this case with proper perspective and hence it had wrongly dismissed the first appeal.
15. Further, the learned counsel has also submitted that the possession of the plaintiff over the suit property had not been disputed by the defendants. The trial Court had also found that the plea of permissive possession taken by the defendants had not been established. But, the finding of the trial Court in this aspect had not been properly considered by the first appellate Court. He has also added that had the first appellate Court approached the facts, which are in issue in this case with proper perspective the plaintiff would have succeeded even in the first appeal. Further, the learned counsel would contend that though the plaintiff had lost the suit before the trial Court as well as the before first appellate Court still he could maintain the second appeal before this Court and that this Court could revisit the issues which had been formulated by the trial court and render justice as contemplated under Order 41 Rule 33 of the Code of Civil Procedure.
16. In support of his arguments, he has placed reliance upon the decision in N.S.Spance vs. D.S.Kanagarajan and another, reported in 2005 (1) CTC 494. In this case, the learned single Judge of this Court has held in Paragraph No.25 as follows:
"25. As submitted by the learned counsel for the respondents, it is for the person, who claims adverse possession, to prove that his possession had become adverse to the real owner, as held in Naran Behera v. Mohan Jethi, AIR 1985 Ori 40 and mere possession over a statutory period is not sufficient to succeed in the plea of adverse possession, unless it is accompanied by adverse animus as held in Venkatachalaiah v. Nanjundaiah, AIR 1992 Kar.270.
It is also held that the alternative plea of adverse possession set up by the plaintiff cannot, therefore, be accepted, which does not mean that alternative plea is not permissible, since adverse animus has not been established in that case. The above decision may not come to the aid of the defendant in this case, in view of the hostile possession established, that too to the knowledge of the first defendant. The contention of the learned counsel for the respondents, that the possession must be without title against a person with original title and then only adverse possession would arise, is not acceptable, since a person, who is in possession of the property, is entitled to take alternative plea, as pointed out supra."
in Paragraph No.17 it is held as follows:
"17. It is the trite law, that the burden to establish the continuous possession and the right claimed on that basis viz., adverse possession rest upon the person, who claims so, in this case viz., the appellant/plaintiff. The plaintiff has elaborately pleaded possession continuously, openly without concealment and he has established that continuous, open possession also, that too, to the knowledge of the first defendant, who is admittedly residing near the suit property. In this case, it is not the case of the first defendant, that the plaintiff's possession of the suit property is traceable to legal origin from the origin, such as permissive possession, licensee or lessee and such persons alone are not entitled to claim hostile possession, adverse to the real owner, without surrendering possession or something like that........."
This Court has carefully gone through the above cited Judgment and considered that the facts and circumstances narrated therein are not made applicable to the instant case on hand.
17. On coming to the present case, it is manifest that the plaintiff had claimed that he had purchased the suit property orally from the first defendant for the consideration of Rs.3,000/-. As rightly found by the trial Court his claim has been duly supported by the PW2 to PW4. Admittedly, the value of the sale consideration has exceeded Rs.100/-. Since the plaintiff had claimed oral sale and the value exceeded Rs.100/- the proviso to Sections 9 and 54 of the Transfer of Property Act have taken the lead role in this case. Section 9 of the Transfer of Property Act deals with oral transfer and it reads as follows:
Section 9. Oral transfer.- A transfer of property may be made without writing in every case in which a writing is not expressly required by law.
With regard to the scope and amplitude of Section 9, writing was not necessary under the Hindu law for the validity of any transfer whatsoever, and in all ancient systems of law, transfer of possession was the only requisite to the transfer of title. The Transfer of Property Act makes writing necessary in the case of a sale of tangible immovable property of the value of Rs.100 or upwards, or the sale of a reversion or other intangible thing. Section 9 of the Transfer of Property Act itself contemplates that where writing is not expressly required by law, a transfer of immovable property can be made without writing.
18. What is the sale, how the sale made and what is the contract for sale of immovable property has been explained in Section 54 of the Transfer of Property Act. Section 54 of the Transfer of Property Act reads as follows:
54."Sale" defined.- "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made.- Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.- A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.
19. Hence, it is thus clear from Sections 9 and 54 of the Transfer of Property Act that where writing is expressly required by law, the transfer of tangible immovable property shall be made in writing and not by oral. It is also made clear under Section 54 of the Transfer of Property Act that where such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards is made it could be made only by a registered instrument.
20. On coming to the instant case on hand as rightly concluded by the trial Court, the oral sale is established by the plaintiff. But, since the sale consideration exceeds Rs.100/- ie.the sale was effected for the consideration of Rs.3,000/- it should have been transferred through a registered instrument. That is what Sections 9 and 54 of the Transfer of Property Act contemplates.
21. However, the possession of the plaintiff in the suit property has been established by adequate evidences. It has not been disputed by the defendants. The claim of the defendants is that the plaintiff was permitted to reside in the suit property on his request in the year 1982. But, the plaintiff has contended that in the year 1977 (at the end of Tamil month of Thai) he had purchased the suit property. The plaintiff has however proved his longer and continues possession and enjoyment over the suit property.
22. The question as to whether the character of the plaintiff i.e. in continuous and uninterrupted possession over the property would entitle him to claim adverse possession over the suit property, has been negatived by the trial Court , as he has claimed legal title over the suit property by oral purchase.
23. At the same time, it cannot be construed that his possession over the suit property is wrongful one. He is not even a trespasser over the suit property. The trial Court itself has found that since the sale is not registered as the value exceeded Rs.100/- he cannot claim legal right over the suit property.
24. It is obvious to note here that the possession and enjoyment of the plaintiff over the suit property has been established and not denied by the defendants. His possession must be protected. But, the trial Court as well as the first appellate Court have failed to consider this issue. Since the transfer of the property has not been legally effected as contemplated under Sections 9 and 54 of the Transfer of Property Act the relief of declaration cannot be granted. His possession however must be protected and safeguarded until he is evicted by due process of law.
25. In James v. Y.Davidson, reported in 1988 1 LW 590, in a suit for declaration that plaintiff is in possession of the suit property as owner in pursuance of the oral sale by the defendant in his favour and also for an injunction restraining the defendant from executing the decree for eviction in rent control proceedings the defendant had contended that the alleged oral sale was false and that the plaintiff cannot claim title to the suit property under oral sale. The lower court held that the plaintiff was entitled to succeed and the suit was decreed with costs as prayed for and an appeal was preferred by the defendant before this Court, in which it was contended that in law, there cannot be an oral sale, where such a sale requires to be made in writing and to be registered and that no amount, as alleged by the plaintiff, was ever paid.
26. On hearing both sides, a Division Bench of this Court has held that even though, no authority is required in view of the emphatic language of Section 9 of the Transfer of Property Act, suffice for us to refer to one Full Bench Judgment of this Court reported in 45 Madras 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.
27. It is also held that the relief of injunction is as owner or qua-owner. 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 by the respondent.
28. In the given case on hand, it is pertinent to note here that the plaintiff had filed the suit for the relief of declaration of title and consequential relief of injunction. Since the consideration of oral sale exceeds Rs.100/- i.e. the alleged sale consideration is Rs.3,000/-, as contemplated under Sections 9 and 54 of the Transfer of Property Act, the sale must be in writing and registered. Only on this ground it is construed that the title has not been legally passed on to the plaintiff. As adumbrated supra, it is not the case of the defendants that the possession of the plaintiff is unlawful. According to the plaintiff, he has been in possession from 1977 onwards. As on the date of filing the suit also the plaintiff was in possession and till date he has not been evicted from the suit property by due process of law.
29. It is also important to note here that the present suit is filed for declaration of title and injunction. Obviously the legal title has not been passed on to the plaintiff, and hence the question of title will have to be kept open without denying the plaintiff's claim for injunction, in view of the fact that he has been in possession and there is nothing to show that he had gained possession by any unfair means just prior to the suit. Therefore, this Court is of view that even if the plaintiff is not entitled for the relief of declaration, he is entitled to the relief of injunction until he is evicted by due process of law.
30. To suit the above circumstances, this Court consider that it may be better to place reliance upon the decision in Kallappa Rama Londa v. Shivappa Nagappa Aparaj, reported in AIR 1995 Karnataka 238. In this case, a question was arisen as to whether the suit filed by Sivappa in O.S.No.260 of 1977 for a mere injunction without declaration is opposed to law. This question had been answered by the Karnataka High Court in the following manner. The evidence on record discloses that Shivappa was in possession of the suit schedule properties and he was claiming the possession of the properties by virtue of a gift deed executed by Krishnabai. Krishnabai was the person to whom Neelavva had given those properties for her maintenance and by virtue of Section 14(1) of the Act she had become absolute owner of the suit schedule properties. She had a right to give the property in favour of Shivappa. When such is the case, it cannot be said that the possession of Shivappa was illegal. The ruling cited in the question of law lays down that where the suit for declaration of title and injunction is filed and the title is not clear, the question of title will have to be kept open without denying the plaintiff's claim for injunction, in views of the fact that the plaintiff has been in possession and there is nothing to show that the plaintiff had gained possession by any unfair means just prior to the suit.
31. In another case, N.Kallappa Setty vs. M.V.Lakshminarayana Rao, reported in AIR 1972 SC 2299, the suit was filed by the plaintiff prayed for two reliefs viz:
1. declaring that the plaintiff is the absolute owner of the plaint schedule site being in possession and enjoyment of the same, and that the defendant has no right whatever in this site, nor is he in enjoyment of the same and
2. granting permanent injunction restraining the defendant from unlawfully and forcibly entering upon the suit site, and disturbing the plaintiff's possession and also from constructing the house by unlawfully obtaining a licence from the Municipality.
The trial Court decreed the suit as prayed for. The first appellate Court affirmed the decision of the trial court. In second appeal the High Court reversed the decree of the courts below and dismissed the plaintiff's suit with costs, primarily on the ground that the plaintiff has failed to establish satisfactorily his title to the suit property.
32. The suit property is a building site measuring 80 X 40 feet. The plaintiff claims to have purchased the same from one Banavarada Abdulla Saheb for a sum of Rs.100/-, on January 11, 1947. His case is that ever since the purchase he was in possession of the suit property and before the sale in his favour, his vendor was in possession of the suit property. The property sold to the plaintiff is described in the sale deed both by survey number as well as the boundaries. There is dispute with regard to the survey number of the suit property. According to the boundaries shown in the sale deed in favour of the plaintiff, it is the suit site that had been sold to him.
33. Now coming to relief No.1 ie.relief of declaration of title, the plaintiff cannot obtain that relief unless he satisfies the court that he has good title to the suit property. The High Court has come to the conclusion and with that conclusion the Hon'ble Supreme Court has agreed, that on the material on record, it is not possible to come to the conclusion that the plaintiff has satisfactorily established his title to the suit property and held that he is not entitled to relief No.1. Ordinarily, under these circumstances we would have remanded the case for deciding the question of title afresh. But, this litigation has gone for a long time and the property in dispute was purchased for Rs.100/-. Under these circumstances, it is in the interest of the parties to keep open the question of title to be agitated by the parties if they so desire in a fresh proceeding and confirm the decree of the trial court in respect of relief No.2 and set aside its decree in respect of relief No.1.
34. The Apex Court has also held that so far as the question of possession is concerned, as mentioned earlier, both the trial court and the first appellate court have accepted the plaintiff's case that he was in possession of the suit site ever since he purchased the same in 1947. This is essentially a finding of fact. That finding is based on evidence. The High Court, in our opinion, erred in coming to the conclusion that the possession of the plaintiff after the sale deed in his favour is not a relevant circumstance. We are of opinion that it is an extremely important circumstance. The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the trial court and the first appellate court have done, that the plaintiff was in possession of the suit property ever since 1947 then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily. Therefore, in our opinion, the High Court was not right in interfering with the judgment of the trial court as affirmed by the first appellate court regarding relief No.2.
35. On coming to the instant case on hand, as observed in the above cited decision, it is established by the plaintiff that he has been in possession of the suit site ever since he purchased the property in 1977. This is essentially a finding of fact and this finding is based on evidence. The possession of the plaintiff in the suit property from 1977 has been upheld by the trial court as well as by the first appellate court. Though legal right has not been passed on the plaintiff, as he had purchased the property orally, his possession respect of the suit property has to be protected as he is entitled to resist the interference of the defendants on the strength of his possession. Once the possession of the plaintiff in the suit has been accepted his possession has to be necessarily protected.
36. Keeping in view of the above fact, it is in the interest of justice, this Court consider to keep open the question of title to be agitated by the parties, if they so desire. In so far as the present case on hand is concerned, the suit has been filed by the plaintiff (since deceased) for the following two reliefs:
1. To declare that the plaintiff is the owner of the suit property,
2. For permanent injunction restraining the defendants and their men, agents from forcibly trespassing upon the suit property.
37. As observed in the earlier paragraphs, the plaintiff is not entitled to the relief of declaration as no title could pass under an oral sale. In so far as the second relief ie.the relief of injunction is concerned, since he has been in possession of the suit property right from the year 1977 and his possession over the suit property has not been obtained under unfair manner his possession has to be protected and therefore this Court is of the view that he is entitled to the relief of permanent injunction.
38. In the result, this second appeal is partly allowed and the Judgment and Decree dated 03.09.2001 and made in A.S.No.86 of 2000, on the file of the learned Additional District Judge, Villupuram and the Judgment and decree dated 30.06.2000 and made in O.S.No.992 of 1993, on the file of the learned Additional District Munsiff, Thirukoilur are set aside and the suit in respect of the relief of declaration is dismissed and the suit in respect of permanent injunction is decreed. No order as to costs.
krk To
1.The learned Additional District Judge, The Additional District Court, Villupuram.
2.The learned Additional District Munsiff, The Additional District Munsiff Court, Thirukoilur