Madras High Court
K.Saraswathi vs The State Of Tamil Nadu on 1 July, 2008
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.07.2008
CORAM:
THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN
A.S.Nos.1061 and 1062 of 2007
and
M.P.No.1 of 2007
A.S.No.1061 of 2007
K.Saraswathi .. Appellant/plaintiff
-vs-
1.The State of Tamil Nadu
represented by the Collector of Chennai
Rajaji Salai, Chennai-600 003
2. The City Municipal Corporation
represented by its Commissioner
Rippion Building, Chennai-600 003
3. A.P.Rangarao
4. A.Mukundiah .. Respondents/defendants
A.S.No.1062 of 2007
K.Saraswathi ..Appellant/Defendant
-vs-
1. A.P.Rangarao
2. A.Mukundiah ..Respondents/Plaintiffs
These appeals are filed under Section 96 of C.P.C. against the Judgment and decree passed in O.S.No.2844 of 2004 and O.S.No.8866 of 2005 dated 10.7.2007 on the file of VII Additional Judge, City Civil Court, Chennai.
For appellant : : Mr.T.R.Mani,Senior Counsel
for Mr.T.Srinivasaraghavan,
Advocate(Both appeals)
For respondents: : Mr.B.T.Seshadri,Advocate
for R3 and R4 (A.S.1061/2007)
and R1 and R2(A.S.1062/2007)
Mr.V.Ravi,Spl.Govt.Pleader
for R1(A.S.No.1061/2007)
Mr.G.T.Subramanian,Advocate
for R2(A.S.No.1061/2007)
COMMON JUDGMENT
A.S.No. 1061 of 2007 has been directed against the decree and Judgment in O.S.No.2844 of 2004 and A.S.No.1062 of 2007 has been directed against the decree and Judgment in O.S.No.8866 of 2005 on the file of VII Additional Judge, City Civil Court, Chennai. Both the appeals arise out of a common Judgment of the above said suits.
2. O.S.No.2844 of 2004 was filed by the plaintiff for declaration of her title in respect of the plaint schedule property and also for permanent injunction against the defendants from in any manner interfering with the peaceful possession and enjoyment of the plaint schedule property and also for a declaration that the order of the Commissioner, City Municipal Corporation, Chennai in W.D.C.No.D4/5084/99 dated 29.12.2000 is not valid and against law.
3. The averments in the plaint in O.S.No.2844 of 2004 sans irrelevant particulars are as follows:
The Predecessors-in-title of the plaintiff viz., Sethumadhavan had purchased the plaint schedule property from one A.Sadullah Basha and others by a Sale deed dated 9.11.1983. After the said purchase of the plaint schedule properties, Sethumadhavan was in actual possession and enjoyment of the property who had executed a registered Sale Deed dated 6.9.1984 under document No.3097 of 1984 by the Sub Registrar of Sembium in favour of the plaintiff conveying the right title and possession in respect of the plaint schedule property . The plaintiff after demolishing the small superstructure in the said property applied to the second defendant for planning permission and building licence for construction of a house and after obtaining the building licence for constructing the ground floor in the plaint schedule property under planning permit AEE/V-VI/P.P.A.No.V5/383/87 dated 10.9.1987 and after obtaining the house building loan from the Life Insurance Corporation of India, the plaintiff had constructed the house ie., ground floor only and thereafter the plaintiff was residing in the said ground floor, after getting electricity connection etc., The schedule house was assessed to property tax by the second defendant and the plaintiff is also paying the property tax. Thereafter, the plaintiff has applied to the second defendant for planning permission and for building licence for construction of the first floor in the house. After getting planning permission dated 28.10.1999 and also building license dated 28.10.1999 for putting up additional construction, the plaintiff completed the construction of the first floor in the month of May 2000. The plaintiff is in actual physical and khas possession of the plaint schedule property viz., inclusive of land with building consisting of ground floor and first floor. On 13.11.2000, the plaintiff had received a show cause notice from the second defendant as to why the planning permission and the building license granted to her should not be revoked. The plaintiff sent a suitable reply dated 23.11.2000 to the said show cause notice . But the second defendant had revoked the planning permission and building license granted to the plaintiff on 29.12.2000 under Section 54(2) of the Tamil Nadu Town and Country Planning Act and under Section 365(4) of the Madras City Municipal Corporation Act. The said order of revocation by the second defendant is illegal and arbitrary, bereft of lawful authority. The plaintiff has filed a writ petition in W.P.No.2369 of 2001 before this Court for writ of certiorari to quash the order of the second defendant in W.D.C.No.D4/5084/99 dated 29.12.2000. In the said writ petition, D3 and D4 were also impleaded. In the writ petition, the High Court had directed the plaintiff to establish her title in a Civil Court and further directed the plaintiff as well as the D3 and D4 to work out their remedy in the Civil Court which necessitated the plaintiff to file the suit for declaration of her title in the suit property and for consequential reliefs. The vendor of the plaintiff had traced their title to the said property to one Muthu, Mr.Sadullah Basha had executed a gift deed dated 20.5.1983 under a Registered Document No.2190 of 1983 before the Sub Registrar, Sembium. Mr.Sadullah Basha and his sons joined and executed the Sale Deed in favour of Sethumadhavan. From 1983 onwards, there are documents to show that the schedule property had been dealt with by parties by executing Settlement Deed and Sale Deeds etc., The original owner Muthu was in possession of the suit property and Sadullah Basha purchased the property and Sadullah Basha had been in possession and enjoyment of the property. Thereafter, Sethumadhavan had purchased the suit property under a Sale Deed dated 9.111983 from Sadullah Basha and his sons. The plaintiff had purchased the land along with the small superstructure put by Sethumadhavan under the Sale Deed dated 6.9.1984. The Tahsildar granted patta for the schedule land in favour of the plaintiff. The first defendant viz., the Collector of Chennai had cancelled the patta issued in favour of the plaintiff on 13.8.1996. The revenue authorities cannot decide the question of title in respect of immovable properties and it is the prerogative of the Civil Court to adjudicate upon the title in respect of the immovable property. Denduluri Durgaprasad had petitioned to the Collector for cancellation of the patta in favour of the plaintiff had not established his title before the Collector. Whether Denduluri Durgaprasad was in possession of the property in dispute was not considered by the Collector at the time of cancellation of patta which was originally granted in favour of the plaintiff. Defendants 3 and 4 have absolutely no right , title or interest in respect of the schedule land. Even the person who claimed to be the original owner had not been in possession of the land in question for over the statutory period and the title of the said person got extinguished by lapse of time. After the assignment of the patta in favour of the plaintiff, the second defendant had issued planning permission and building license for additional construction on 28.10.1999. For the adjacent lands in the same survey number, Patta was issued to Mr.D.Damodaran, Mr.D.Nithyanandam and Mrs.S.Susheela. The adjacent owners had also constructed superstructure on their respective lands around the plaintiff's building. D3 and D4 had never been in possession of the suit land. The building is in existence for over 15 years. Hence the suit.
4. First defendant remained exparte. Second defendant in his written statement would contend that the suit is not maintainable since the plaintiff has no cause of action to file the suit. The second defendant's name has been wrongly mentioned as City Municipal Corporation instead of Corporation of Chennai. Initially, the plaintiff got sanctioned plan for additional construction in ground floor and first floor in respect of the suit property from Corporation of Chennai vide PPA/D4/5804/99 and BA No.4626/99 dated 28.10.1999. Only after due enquiry, the District Collector of Chennai had cancelled the patta issued in favour of the plaintiff and three others in respect of the larger extent of the properties including the suit property comprised in T.S.No.15/4, Block No.3, Sembium Village, Perambur, Chennai. Even in the proceedings, the District Collector had observed that the documents furnished by the plaintiff have no link with the original owner of the property Denduluri Vaidyanatha Krishnamurthy and the Collecltor has ordered to restore the name of Deduluri Vaidyanatha Krishnamurthy in the original records for the T.S.No.15/4, Block No.3, Sembium Village, Chennai. For the show cause notice issued by this defendant to the plaintiff has not given any specific reply for the points raised in the show cause notice. After careful examination of the records, the planning permission and the building license vide PPA/D4/5804/99 and BA No.4626/99 dated 28.10.1999 were recalled under Section 365(4) of M.C.M.C. Act by the second defendant on 29.12.2000. In lieu of the directions given by the High Court in W.P.No.2369 of 2001, the order of the Commissioner of Corporation of Chennai shall stand automatically vacated . Since the planning permission and the building permit have been revoked and also as per the direction of this Court in W.P.No.2369 of 2001 action has been taken under Section 256(3) of M.C.M.C. Act and notice dated 26.5.2004 was served to the plaintiff. Patta has been issued in favour of the original owner Denduluri Vaidyanatha Krishnamurthy in the year 1985 vide No.C3,7R 537/85-86 dated 14.5.1985 in respect of the property comprised in S.No.15, Block No.3 to the total extent of 6 = grounds. Against the order of cancellation of patta by the District Collector, Chennai,there was no appeal preferred by the plaintiff. Urban Land Tax being paid by the original owner Denduluri Vaidyanatha Krishnamurthy and C.R.Durgaprasad upto 1966 right from his purchase in 1948 for the entire 6 = grounds(15,600 sq.ft) and latter A.P.Rangarao and his elder brother A.Mukundiah paying Urban Land Tax in their name from their purchase in 1986. The plaintiff has filed a civil suit in O.S.No.4842 of 1999 before the City Court but the same was dismissed as withdrawn. The suit is barred by limitation. Hence the suit is liable to be dismissed.
5. Defendants 3 and 4 in their joint written statement would contend that the plaintiff has not filed the suit within the time stipulated by the High Court in the writ petition. Inspite of filing of the suit on or before 4.9.2003, the plaintiff had filed the suit on 12.11.2003. The plaintiff knows that this suit vacant site forms part of large extent of area owned by late Denduluri Vaidyanatha Krishnamurthy and after his death his legal representatives were in possession of the entire area till it was purchased by Defendants 3 and 4 for valid consideration. No one else has got any interest title over the suit property. So the averments in the plaint that one Sethumadhavan had purchased 2419 sq.ft in the suit survey numbebr property from one Sadullah Basha and others in 1983 and had put up a small superstructure over the property and was in actual possession and enjoyment of the property. The plaintiff is silent about how or from whom the said Sadulla Basha got the same. Sadulla Basha had no manner of right whatsoever in the suit property and taking advantage of the fact that the real owners were residing in Kakinada , Andhra Pradesh, the said Sadulla Basha himself as a owner of the suit property had sold the same to one Sethumadhavan from whom the plaintiff was alleged to have purchased the same. On the basis of the fictitious sale deed and by adopting unfair means, the present plaintiff has got a patta in her name which has subsequently been cancelled by the revenue authorities. Only on the basis of the earlier patta granted in favour of the plaintiff, the plaintiff had approached the second defendant to get the building plan sanction and thereafter put up a superstructure on the suit site. The sons of late Thiru Denduluri Vaidyanatha Krishnamurthy on coming to know the fraud played up by the said Sadulla Basha, Sethumadhavan and the plaintiff, presented a petition to the first defendant who enquired into the same and found that they had trespassed into the suit land and created fictitious sale deeds and on the strength of those deeds, manoured to get a patta and so the patta granted in favour of the plaintiff was cancelled. A show cause notice was sent by the second defendant on 13.11.2002, after considering the reply sent by the plaintiff to the show cause notice, the second defendant found the explanation not satisfactory had revoked the licence given for the building plan for the plaintiff. The plaintiff filed O.S.No.4842 of 1999 in the City Civil Court against the second defendant and its Assistant Engineer, for a declaration that the notices sent by those defendants are illegal and null and void and consequential injunction restraining the defendants from demolishing the superstructure. Third defendant and his brother fourth defendant have became the owners of the entire property by virtue of sale deeds executed by the legal representatives of deceased Denduluri Vaidyanatha Krishnamurthy on 14.2.1995 registered as Document No.991/96 and 992/96 in the office of the Sub Registrar, Sembium, Perambur-11. Defendants 3 and 4 have impleaded themselves in the said suit. Thereafter the suit was not pressed by the plaintiff and the same was dismissed as not pressed. Thereafter, the plaintiff had approached this Court by way of writ petition which was also disposed of with a direction to the parties to agitate their right before a Civil Court. Neither the plaintiff nor his predecessors-in-title were in uninterrupted continuous possession of the property and the superstructure because the owners viz., the absentee landowners residing in Andhra Pradesh have been paying Urban Land Tax till date. After the cancellation by the first defendant, the Collector, all the revenue records were restored in the name of the original owner Denduluri Vaidyanatha Krishnamurthy by the Tahsildar, Purasaiwalkam-Perambur, Chennai-11 and the subsequent purchasers were trespassers and have no right whatsoevr in the suit property. It is false to state that Denduluri Vaidyanatha Krishnamurthy had not established his title before the first defendant and the cancellation of the patta by the first defendant was no superfluous grounds and on alien considerations. It is equally false to allege that even the person who claimed to the original owner had not been in possession of the land in question for over the statutory period and the title of the said person got extinguished by lapse of time. Not only the original owners have been paying the Urban Land Tax but also got the patta in their names. It is further futile to contend that the original owners had not been in possession for over the statutory period. It is not open to the plaintiff to raise the question of adverse possession when she seeks declaration of title on the basis of the sale deed in her favour. The plaintiff had miserably failed to establish how her predecessors especially Sadulla Basha got title to such a vast property or even to the suit property and from whom he had purchased or how his vendor acquired the suit property. The said Sadulla Basha is a rank trespasser and he had created fictitious documents to cheat the purchasers and subsequently committed fraud on the revenue officers also and manoured to get the patta on 28.1.1988. The above said fictitious documents have no connection whatsoever with the title of the late Denduluri Vaidyanatha Krishnamurthy. Since the suit site and adjacent areas were all vacant sites and the plaintiff and her predecessors have trespassed into a portion and created fictitious sale deeds and cheated the defendants 1 and 2. The original owner late Denduluri Vaidyanatha Krishnamurthy had been paying only the Urban Land Tax and a vacant site said to be in constructive possession and he was latter become permanent resident of Kakinada, Andhra Pradesh. Defendants 3 and 4 after their purchase have been paying Urban Land Tax in their names and are not in a position to make any progress on the land purchased by them because of the trespassers. Hence the suit is liable to be dismissed.
6. On the above pleadings, the learned trial Judge had framed the following issues:
a) Whether the plaintiff is entitled to declaration and consequential permanent injunction as prayed for?
b)Whether the planning permission granted in favour of the plaintiff by the second defendant in its order WDC No.D4/5084/99 dated 29.12.2000 and building license dated 28.10.1999 are not valid and not unenforceable under law?
c) To what relief the plaintiff is entitled?
7. O.S.NO.8866 of 2005:
The plaint averment in O.S.NO.8866 of 2005 runs as follows: Defendants 3 and 4 in O.S.No.2844 of 2004 are the plaintiffs in O.S.No.8866 of 2005 and the plaintiff in O.S.No.2844 of 2004 is the defendant in O.S.NO.8866 of 2005. According to the plaintiffs in O.S.No.8866 of 2005, the plaint schedule property in O.S.No.8866 of 2005 forms part of a larger extent of vacant site measuring about 6 = grounds(15600 sq.ft) situate (old Survey No.2) in T.S.NO.15, Block No.3, Division No.52, in No.1, Jamunabai Street, Sembium, Perambur, Madras -600 011 owned by late Denduluri Vaidyanatha Krishnamurthy , B.A.B.L., by virtue of a sale deed dated 5.4.1948 registered as document No.659/1948 in the office of the Sub Registrar, Sembium, Madras-600 011. Eversince, his purchase, he has been in possession and enjoyment of the same till 1975 when he died leaving behind his wife, four sons and four daughters and they have been in possession of the entire area of 6 = grounds. They have also obtained patta for the said land even as early as in 1985. They have been paying the Urban Land Tax right from the beginning and till this date. The said family of late Denduluri Vaidyanatha Krishnamurthy, after his death, shifted their native place, Kakinada Andhra Pradesh and have been visiting the area often to prevent any encroachment by third parties, since the said property is in open vacant space without any compound wall. Hence the family members of late Denduluri Vaidyanatha Krishnamurthy had appointed the first plaintiff as their agent to look after the property as he is a permanent resident of Chennai. On his inspection, it was found that the defendant has put up superstructure on the north eastern corner abutting E.B.Road and on further probe it was learnt she has obtained a bogus patta from the Revenue Department in respect of the suit property and also a building plan from the Corporation of Madras to put up superstructure. The first plaintiff asked Denduluri Durgaprasad, one of the legal heirs of late Denduluri Vaidyanatha Krishnamurthy to give a complaint to the Collector of Madras which had led to the grant of patta in favour of the defendant and three others. The enquiry discloses that the defendants have purchased the suit site from one Sethumadhavan who has nothing to do with the suit property and who is an utter stranger. He has created a fictitious sale deed and the defendant appears to have purchased the suit site from the said Sethumadhavan who is only a way farer. On the strength of the fictitious sale deed, the defendant appears to have persuaded both the Revenue Officials to grant patta in her favour and Corporation Officials to sanction a plan to put up a building on the suit site. In the enquiry, the Collector of Madras found that the patta granted in her favour was based on false and fictitious sale deed by persons who do not have any right, title or interest in the said property and the vendor was only a way farer and so the patta was cancelled by his proceedings NO.J4/69381/1993 dated 13.9.1996. The defendant did not prefer any appeal or challenged the orders of the Collector in any Court of law , or before any appropriate forum at any time and the order of the Collector became final and conclusive. The bogus patta obtained under the circumstances stated by the Collector of Madras, the defendant managed to get a building plan also from the Corporation of Chennai when the cancellation of patta was brought to the notice of the Corporation Officials they set the law in motion to get the unauthorised building demolished by issuing a show cause notice to the defendant calling for an explanation as to why the planning permission and the building permit granted for the construction of the building on the suit site should not be cancelled, on the ground the Collector of Madras had cancelled patta in favour of the defendant in respect of the suit site in question in T.S.No.15/4, Block No.3, in Sembium Village, Chennai-11. After finding the explanation given by the plaintiff on 23.11.2000, not satisfactory under the impugned order dated 29.12.2000, the planning permission and building permit already granted were cancelled by the Corporation authority. So the defendant filed O.S.No.4842 of 1999 in the City Civil Court, against the Corporation Officials to declare that the show cause notices issued by the Corporation Officials are illegal and void and consequential injunction for demolishing the superstructure put up in the suit site and latter the defendant had withdrawn the suit in O.S.No.4842 of 1999 for the reasons best known to her. Since the family of Denduluri Vaidyanatha Krishnamurthy find it very difficult to look after the entire area of 6 1/2grounds, the plaintiffs were persuaded to purchase the same. The plaintiffs have also agreed and the sale deed was executed in their favour for a valid consideration on 15.2.1996 and thus they have now become absolute owners of the said 6 = grounds including the suit site. The first plaintiff got himself impleaded in O.S.No.4842 of 1999. Thereafter, the defendant herein who was plaintiff in O.S.NO.4842 of 1999 had withdrawn the suit as not pressed and filed W.P.No.2369 of 2001 against the Commissioner of Corporation, Chennai and the Collector of Madras without impleading the plaintiffs, to quash the order of revocation show cause notices issued by the said Officials. So the plaintiff filed a petition in W.P.M.P.No.24077 of 2001 and they were impleaded with a direction to the parties to agitate their grievance before a competent civil court. The said writ petition was disposed of by High Court. As per the direction of High Court, the defendant herein ought to have filed the civil suit on or before 4.7.2003. Inspite of the above said specific direction given by this court, the defendant has not filed the suit in time. The defendant is a trespasser and she has no manner of right, title in the suit vacant site. Hence the suit for delivery of possession, after the removal of the superstructure put up by the defendant and also for past damages to the tune of Rs.18,000/- and also for future damages at the rate of Rs.500/- per mensum and for costs.
8. The defendant in her written statement would contend that the plaintiffs are not in possession of a vacant site measuring about 6 = grounds(15600 sq.ft) situaute in Old Survey No.2, T.S.No.15, Block No.3, Division No.52, in No.1, Jamunabai Street, sembium, Perambur, Madras-600 011, in pursuance of the sale deed taken by late Denduluri Vaidyanatha Krishnamurthy dated 5.4.1948. The plaintiffs have not stated who are the predecessors in title of late Thiru Denduluri Vaidyanatha Krishnamurthy. The said late Denduluri Vaidyanatha Krishnamurthy had no title to the said land referred to above much less in the suit land. The vendor of the said late Denduluri Vaidyanatha Krishnamurthy was never in possession of the suit property. The vacant land measuring 2419 sq.ft with a superstructure therein which is the suit land, and some other properties were purchased by one Sethumadhavan, son of K.Appukutty for valuable consideration from one A.Sadulla Basha and others in and by a sale deed dated 9.11.1983 and registered as document No.5014 of 1983 by the Sub Registrar, Sembium. After the said purchase, Sethumadhavan was in actual possession and enjoyment of the suit property and he sold the suit land and superstructure then existed to the defendant herein in and by a registered sale deed dated 6.9.1984 which was registered as document No.3097 of 1984 by the Sub Registrar, Sembiam. Thereafter, this defendant had demolished the small superstructure referred to above and the defendant herein applied to the City Municipal Corporation, Chennai for planning permission and a building license for construction of a house. Necessary building licence was also granted by the Corporation authorities on 28.10.1999 to put up additional construction. The defendant had completed the construction of the first floor in the suit house in May 2000 itself. The defendant is the absolute owner of the suit property. She is in actual possession and enjoyment of the same. For show cause notice dated 13.11.2000 received from the Corporation, she had sent a suitable reply dated 29.11.2000. However, the City Municipal Corporation have revoked the planning permission and building license granted on 15.10.1999 which necessitated the defendant to approach this Court by way of writ of certiorari which was disposed of by this court with a direction to the parties to approach the civil Court for efficacious remedy. Thereafter, the defendant filed O.S.No.2844 of 2004 before the City Civil Court, Chennai for declaration of her title and for permanent injunction and also for a declaration that the order of revocation dated 29.12.2000 by the Corporation authorities, Chennai revoking the planning permission dated 28.10.1999 as illegal and void and unenforceable. The plaintiffs herein are parties in the above said writ petition as well as in the Civil Suit in O.S.No.2844 of 2004. Originally patta was granted to the plaint schedule property in favour of this defendant. The suit land is part of a larger extent of land and also the adjacent lands in the same survey number patta was issued to D.Damodaran, D.Nithayanandam and S.Suseela and they have constructed superstructure on their respective lands. The land owners of all four sides in the suit property have also put up construction around the suit property. The suit building is in existence for over 17 years . The defendant and the predecessors-in-title have not been in possession of the suit land for over the statutory period. It is false to allege that Denduluri Vaidyanatha Krishnamurthy had been in possession of the land till 1975 and thereafter his heirs are in possession of the land. The first plaintiff was not appointed as agent by the heirs of Denduluri Vaidyanatha Krishnamurthy. The sale in favour of Sethumadhavan is true and valid. Patta is not a document of title. The cancellation of patta by the revenue authorities cannot affect the title of the plaintiffs. The plaintiffs have no right or title in respect of the suit property. The plaintiffs claim that under the sale deed dated 15.2.1996, they have not produced the same before the Court. Even the said document exists, it is not true and valid one. The title was conveyed under the said document in favour of the plaintiffs. The suit is barred by limitation. The plaintiffs have no cause of action . Hence the suit is liable to be dismissed.
9. The plaintiffs have filed a reply statement contending that late Denduluri Vaidyanatha Krishnamurthy was the owner of the suit property in lieu of the sale deed dated 5.4.1948. It is an ancient document. So the defendant is not competent to question the title of late Denduluri Vaidyanatha Krishnamurthy in respect of the suit property under the above said sale deed dated 5.4.1948. The plaintiffs' vendor was having patta for the entire 6 = grounds in his favour and was paying Urban Land Tax till the execution of the sale deed in favour of the plaintiffs. The document relied on by the defendant is forged one. The orders of the District Collector cancelling the patta of the defendant is final. The plan sanction and building permission were obtained by the defendant on the basis of the bogus patta. Hence the defendant is liable to deliver the vacant possession of plaintiff's land after removing the illegal superstructure put up by her.
10. On the above pleadings, the learned trial Judge has framed the following issues in O.S.No.8866 of 2005.
1. Whether the plaintiffs are entitled to get vacant possession of the plaint schedule property?
2. Whether the plaint schedule property belongs to the defendant?
3. Whether the defendant is liable to pay the damages to the plaintiffs? If it is so, then from which date?
4. Whether the plaintiffs and predecessors-in-title had right and title over the suit property?
5. To what relief the plaintiffs are entitled?
11. The learned trial Judge had conducted a joint trial of the above said suits. The husband of the plaintiff in O.S.No.2844 of 2004 was examined as P.W.1 and a neighbour of the plaintiff in O.S.No.2844 of 20o4 was examined as P.W.2. The third defendant in O.S.No.2844 of 2004 was examined as D.W.1 . On the side of the plaintiffs in O.S.No.2844 of 2004, Exs A1 to A24 were marked. On the side of the defendants in O.S.No.2844 of 2004 Exs B1 to B12 were marked. After due deliberation on the submission made by the counsels for both sides and also after scanning the evidence both oral and documentary, the learned trial Judge has come to a conclusion that the plaintiff in O.S.No.2844 of 2004 is not entitled to any relief under the suit and accordingly dismissed the suit in O.S.No.2844 of 2004 and decreed O.S.No.8866 of 2005 filed by the plaintiffs in O.S.No.8866 of 2005 who are the defendants in O.S.No.2844 of 2004 giving two months time for the plaintiff in O.S.No.2844 of 2004/defendant in O.S.No.8866 of 2005 to vacate and hand over the vacant possession to the plaintiffs in O.S.No.8866 of 2005. Aggrieved by the findings of the learned trial Judge, the plaintiff in O.S.No.2844 of 2004 has preferred A.S.No.1061 of 2007 as well as A.S.No.1062 of 2007 against the decree and Judgment in O.S.No.2844 of 2004 and O.S.No.8866 of 2005.
12. Heard the learned Senior counsel appearing for the appellant in both appeals and also learned counsel appearing for the respondents in both appeals and considered their respective submissions.
13. The points for determination in these appeals are
1) Whether the plaintiff in O.S.No.2844 of 2004 /defendant in O.S.No.8866 of 2005/appellant in both appeals viz., K.Saraswathi had prescribed title to the suit schedule properties(one and the same in both the suits) by way of adverse possession?
2) Whether the plaintiffs in O.S.No.8866 of 2005/defendant in O.S.No.2844 of 2004/respondents 3 and 4 in A.S.No.1061 of 2007 and respondents 1 and 2 in A.S.No.1062 of 2007 have proved their right title and possession in respect of the plaint schedule properties?
3)Whether the decree and Judgment in O.S.No.2844 of 2004 and O.S.No.8866 of 2005 respectively on the file of VII Additional Judge, City Civil Court, Chennai is liable to be set aside for the reasons stated in the respective memorandum of appeals in A.S.No.1061 of 2007 and A.S.No.1062 of 2007?
14. Point Nos.1 and 2:
The case of the plaintiff in O.S.No.2844 of 2004 viz, K.Saraswathi is that she had purchased the suit property under Ex A2 sale deed dated 6.9.1984 from one Sethumadhavan who in turn had purchased the same under Ex A1 sale deed dated 9.11.1983 from one Sadulla Basha. Even though, the plaintiff Saraswathi had not entered into the box, her husband was examined before the trial Court as P.W.1 whowould depose that about 2419 sq.ft in T.S.No.15 part in Sembiam Village together with a small superstructure was purchased by the plaintiff from one Sethumadhavan under Ex A2 sale deed dated 6.9.1984. The predecessors-in-title of the plaintiff, the vendor under ExA2 had purchased the property under Ex A1 sale deed dated 9.11.1983. The recitals in Ex A1 would go to show that the vacant site , the suit property was previously under the possession and enjoyment of one Muthu for four years and that he had put up a thatched hut in the suit property under whom Sadulla Basha party No.1 to Ex A1 was a tenant and after the death of said Muthu, Party No.1 viz., Sadulla Basha continued his tenancy under the legal representatives of the said Muthu under the sale deed dated 24.4.1982 and Sadulla Basha had executed the settlement deed in favour of Party Nos.2 to 5 , his children on 20.5.1983(registered as document No.2190 of 83) and from that date on wards, Sadulla Basha was in possession and enjoyment of the property scheduled to Ex A1 and had executed Ex A1 in favour of Sethumadhavan, the vendor of the plaintiff Sarawathi. Admittedly, Saraswathi had not produced the documents recited in Ex A1 viz., the sale deed dated 24.4.1982 and the settlement deed dated 20.51983. If the sale deed dated 24.4.1982 would have been produced then, it will be throwing light on the question whether Muthu, the vendor of Sadulla Basha had any right, title in respect of the suit property or from whom the said Muthu got right, title in respect of the suit property to convey the same in favour of Sadulla Basha. Nodoubt, after getting Ex A2 sale deed, the plaintiff Saraswathi under Ex A3 had obtained building permission for constructing the ground floor in the plaint schedule property and also under Ex A18 had obtained building permission for constructing the first floor in the suit property. Even though, the said permissions have subsequently been cancelled under Ex A20 by the second defendant -The District Collector,the order of the District Collector under Ex A20 was challenged by the plaintiff before this Court in W.P.No.2369 of 2001 wherein this Court has directed the parties to approach the Civil Court. As per the directions of this Court in W.P.No.2369 of 2001, the plaintiff Saraswathi had filed O.S.No.2844 of 2004 for declaration of her title in respect of the plaint schedule property on the basis of Exs A1 and A2 sale deeds dated 9.11.1983 and 6.9.1984 respectively.
15. Per contra, defendants 3 and 4 in O.S.No.2844 of 2004 have filed O.S.No.8866 of 2005 for a relief of recovery of possession of the plaint schedule property basing their claim under Exs B4 and B5 sale deeds dated 14.2.1996. According to the defendants , D3 and D4 in O.S.No.2844 of 2004 who are the plaintiffs in O.S.No.8866 of 2005, the suit property originally belonged to Denduluri Vaidyanatha Krishnamurthy from whom the defendants 3 and 4 have taken Exs B4 and B5 sale deeds. The defendants 3 and 4 in O.S.No.2844 of 2004 would claim that they are having right title in respect of the suit property and hence they have filed O.S.No.8866 of 2005 against Saraswathi, the plaintiff in O.S.No.2844 of 2004 for recovery of possession, after demolishing of the small superstructure put up by her therein. In support of his contention that the suit property originally belonged to Denduluri Vaidyanatha Krishnamurthy, the defendants 3 and 4 have produced Ex B1 sale deed dated 27.1.1945. Ex B1 is predecessor in title of Denduluri Vaidyanatha Krishnamurthy. The property scheduled to Ex B1 is " Registration District of Madras, Chengleput in the Sub Registration District of Sembiam bounded on the north by Survey No.170 and Erukanjeri boundary south by Survey Nos 7.4 and 5 , east by Erukanjeri boundary and on the west by Survey Nos.18 and 19 measuring survey Nos 1,2 and 3 with 7 acres and 25 cents , 5 acres and 59 cents and 4 acres and 99 cents in all measuring 17 acres and 83 cents and houses bearing Nos.32 and 33 and 31 and the present door Nos.32 and 33 Madhavaram Road, Sembiam. Under Ex B2, the vendee under Ex B1 viz., J.Chandrasekara Reddy had sold the property purchased under Ex B1 to Denduluri Vaidyanatha Krishnamurthy. The property sold under Ex B2 is of the piece of land marked "A" in the plan attached including the house bearing door No.32 , well and coconut trees and other trees lying therein and situate and being at Sembiam, Saidapet Taluk, Chingleput District in the Registration District of Madras-Chingleput and in the Sub Registration District Sembiam being part of the field bearing Survey No.2 and more particularly shown in the plan attached hereto measuring in all six and a half grounds ie., 130 feet east to west, abutting the private road, on the northern side and 130 feet on the southern side, and 120 feet north to south on the eastern side and 120 feet on the western side situate within the Madras Corporation Limits. Ex B2 is dated 5.4.1948. Under Ex B4 sale deed dated 14.2. 1996 , the third defendant A.P.Rangarao would claim that he had purchased the suit property from the legal representatives of Denduluri Vaidyanatha Krishnamurthy. One of the sons of Denduluri Vaidyanatha Krishnamurthy viz., T.Durgaprasad in the capacity of power of attorney agent of the other legal representatives of Denduluri Vaidyanatha Krishnamurthy had executed Ex B4 in favour of the third defendant. The properties scheduled to Ex B4 is all the piece of land marked "B" in the plan attached hereto bearing old door No.32, Old Survey No.2, New T.S.No.15 Block No.3, Situate and being at Sembiam, Saidapet Taluk, Chengleput District in the Sub Registration District of Sembiam being part of field bearing ol No.2, Nerw T.A.No.15, Block No.3, Sembium old division 28, new division No.52, Purasawalkam , Perambur Taluk, Madras more particularly shown in the plan attached hereto measuring in all 4 = grounds(9600 sq.ft) out of 6 = grounds in T.S.No.15 ie., north by another portion of the land in T.S.No.15 measuring north to south 73'9" south by:houses inT.S.No.12/1 and block No.2, East to west measuring 130 feet; east by :T.N.Government MES/Sub Station, Kodungaiyur and Sembiam) measuring north to south 73'9" West by:Jamuna Bai Street; measuring in all 4 = grounds out of 6 = grounds and B schedule is comprised of a dilapidated house bearing old door No.32 new Door No.1 Jamunabai Street, in T.S.No.15, Block No.3. Under Ex B5 sale deed, 4th defendant, A.Mukundaiah had purchased the same from the legal representatives of Denduluri Vaidyanatha Krishnamurthy all the piece of land marked"B" in the plan attached including a well bearing old door No.32, old S.No.2 New T.S.No.15,Block NO.3 situate and being at Sembiam-Saidapet, Chengleput District, Sub Registration District of Sembiam being part of the field bearing Old S. No.2, New T.S.No. 15, Block No.3, Sembiam old Division No.28, New Division No.52, Purasawalkam Perambur Taluk, Madras more particularly shown in the plan attached hereto measuring in all 2 grounds(4,800 sq.ft) out of 6 1/2grounds in T.S.No.15 ie., north by another portion of the land T.S.No.15 measuring north to south 73'9" south by house in T.S.No.12 and Block No.2 east to west measuring 100 feet east by T.N.Government/MES Sub Station, Kodungaiyur and Sembium) measuring north to south 73'9" and west by Jamunabai Street measuring in all 2 grounds in and out of 6 = grounds . So under Exs B4 and B5, defendants 3 and 4 would claim right title in respect of the plaint schedule properties. Defendants 3 and 4 in O.S.No.2844 of 2004 have filed O.S.No.8866 of 2005 for declaration of their title in respect of the plaint schedule property on the basis of Exs B4 and B5 sale deeds.
16. D.W.1 who is the third defendant in O.S.No.2844 of 2004(A.P.Rangarao) in his cross examination would admit that even in the year 1988, the plaintiff Saraswathi in O.S.No.2844 of 2004 had constructed her house in the plaint schedule property. Even though the plaintiffs in O.S.No.8866 of 2005 /defendants 3 and 4 in O.S.No.2844 of 2004 would claim their right title under Exs B4 and B5,those documents are relating to a larger area of 6 = grounds whereas the plaint schedule property in both suits are relating to 2419 sq.ft only in T.S.No.15. But D.W.1(D3 in O.S.No.2844 of 2004) would admit that the plaintiff in O.S.No.2844 of 2004 viz., Saraswathi had constructed her house in the suit property in the year 1988 itself. So it is the bounden duty of the plaintiffs in O.S.No.8866 of 2005 to identify the property purchased by them under Exs B4 and B5 as that of the plaint schedule property. That has not been done before the trial Court. Ex B2 is of the year 1948 and Ex B1 is of the year 1945. It is in evidence that the original owner Denduluri Vaidyanatha Krishnamurthy had left Madras and settled in Andhra Pradesh. Even as per the recital in Exs B4 and B5, Denduluri Vaidyanatha Krishnamurthy died on 28.8.1975 and that his legal representatives were also at Andhra Pradesh and that they were unable to maintain the properties have decided to execute Exs B4 and B5 sale deeds for a lesser price of Rs.75,000/- and Rs.50,000/-respectively even though the property would worth more than Rs.2.25 lakhs as seen from annexure 1A to Ex B3 and Rs.1.10 lakhs as seen from annexure 1A to Ex B4. So the plaintiff in O.S.No.2844 of 2004 viz., Saraswathi claims right title in respect of the plaint schedule property under Exs A1 and A2 of the year 1983 and 1984 respectively.
17. On the other hand, Defendants 3 and 4 in O.S.No.2844 of 2004 who are the plaintiffs in O.S.No.8866 of 2005 would claim right, title in respect of the suit property under Exs B4 and B5 of the year 1996. It is in evidence that the patta granted in favour of the plaintiff has subsequently been revoked by the District Collector as per the proceedings under Exs B6 to B8 and thereafter the patta has been granted in favour of the vendors under Exs B4 and B5. In the suit filed by the plaintiffs in O.S.No.8866 of 2005(Defendants 3 and 4 in O.S.No.2844 of 2004) , the defendant Saraswathi in O.S.No.8866 of 2005(Plaintiff in O.S.No.2844 of 2004) has taken a stand that she has put up the building in the year 1988 in the suit property after her purchase of the suit property under Ex A2 sale deed dated 6.9.1984. The plaintiffs in O.S.No.8866 of 2005 would admit that they are not in possession of the property and that the defendant Saraswathi in O.S.No.8866 of 2005 is in possession of the suit property but her possession in the suit property is that of a trespasser and hence they would claim that after the demolition of the superstructure put up by her, they are entitled to recover possession. It is pertinent to note here that under O.S.No.8866 of 2005, the plaintiffs(defendants 3 and 4 in O.S.No.2844 of 2004) have not asked for any declaration of title on the basis of Exs B4 and B5 sale deeds.
18. The learned counsel appearing for the respondents in both appeals would contend that the plaintiff Saraswathi's husband as P.W.1 would admit that he has not aware of the sale deed in favoaur of the predecessor-in-title of his vendor and that the vendor of the predecessor-in-title of Sethumadhavan viz., Muthu and he is not aware whether the said Muthu have taken any sale deed from anybody in respect of the suit property. He would further admit that Ex A1 is an unregistered sale deed and that he is not aware whether the original owner of the plaint schedule property is Denduluri Vaidyanatha Krishnamurthy or whether the said Denduluri Vaidyanatha Krishnamurthy had purchased the suit property from one Chandrasekara Reddy. So under such circumstances, the learned Counsel appearing for the respondents in both appeals would contend that the plaintiff Saraswathi has no locus standi to claim that she had prescribed adverse possession to the suit property.
19.In support of his contention, the learned counsel relying on a decision reported in T.Anjanappa -v-Somalingappa(2006)7 Supreme Court Cases, 760)wherein the concept of adverse possession has been dealt with and the ratio decidendi is that the person claiming title under adverse possession must prove that his possession is hostile and in denial either express or implied of title of the real owner. It is further been laid down that it is essential that possessor must clearly know the actual owner of the property only then can be situation of being in hostile possession and question of denying title of true owner would arise and that possession must be peaceful, continuous and open capable of being known by parties interested. The short facts of the said case is that the plaintiff/appellant filed a suit for declaration of title in respect of a house property which he had purchased from 'N' two days after filing of the suit. According to the plaintiff, 'N' had mortgaged the property in plaintiff's favour and the defendants had encroached upon a portion of the property put up a hut about two years prior to the suit and on the strength of the title , the plaintiff sought relief of declaration of title and possession and also sought for injunction against the defendant. The defendants denying the title of the plaintiff in their written statement contending that the defendants were in possession of the premises since 1969 by putting up hut and paying municipal tax. They further contended that the property belonged to the Government and they were in adverse possession thereof and that the suit property was declared as a slum area. The trial Court has dismissed the suit and on appeal, the appellate Court set aside the Judgment and decree of the trial Court. In second appeal, the High Court accepted the claim of adverse possession over the property raised by the defendants. The plaintiff preferred Civil appeal before the Honourable Apex Court. The relevant observation of the Apex Court in the said Judgment runs as follows:
"It is well recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The 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 possession actually informing the real owner of the former's hostile action. 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 and accordingly appeals were disposed of in favour of the plaintiff/appellant.
20. Relying on a decision reported in Annakili-v-A.Vedanayagam(2008-1 L.W.69), the learned counsel appearing for the respondents would contend that the mere possession of a person for any length of time will not automatically flow right on him under Article 65 to claim title in respect of the said property under adverse possession. But the possession of the land by the person must ripen into possessory title for the purpose of claiming adverse possession under Article 65 and that the possessory must have animus possidendi and hold the land adverse to the title of the true owner. The learned counsel for the respondents would contend that even though the appellant Saraswathi is admittedly in possession, her possession is not adverse to the plaintiff and the animus possidendi is well known a requisite ingredients of adverse possession for a continuous period of 12 years adverse to the interest of the plaintiff and that the appellant/plaintiff Saraswathi has failed to prove that here possession is adverse to the plaintiff for more than a statutory period. The short facts of the said ratio decidendi is that the plaintiffs/respondents are the owners of the property in question. They claim to purchase the same from the Corporation of Madras by a registered sale deed dated 19.4.1944. The owners of the property viz., Karishnadoss Lala and his brother, partitioned their suit properties on 5.5.1968 whereupon the suit properties were allotted to the share of Krishnadoss Lala. After his demise, his legal representatives became entitled to the suit property. The legal representatives along with one Mohamed Idris and one K.Peer Mohideen entered into an agreement whereby it was agreed that the property should be released from the notification of the year 1973 issued by the Tamil Nadu Slum Clearance Board. The defendants claimed possession of the suit properties since 1957. The Government of Tamil Nadu designated an area including the suit properties as slum area and the portion was transferred to Tamil Nadu Slum Clearance Board. Pursuant to a scheme undertaken by the World Bank in regard to the sale of land situated in Corporation Division o.122, Kamaraja Puram, T.Nagar slum areas to the persons who were in occupation of the portions thereof, the Department of House and Urban Development, Government of Tamil Nadu issued two G.O.Ms bearing No.1117 dated 27.6.1979 and G.O.Ms.No.1100 dated 29.8.1980 in that behalf and the suit property was allotted to the husband of the appellant under the said scheme by the Government. The said action of the Government was challenged by the respondents/plaintiffs before the High Court by way of writ in the year 1989 in the nature of mandamus directing the State Government to denotify the land in question as a slum area and put them back in the possession of the plaintiffs/respondents. The said writ was allowed and a writ appeal was preferred by the defendants/appellants before a Division Bench. The writ appeal was allowed and consequently the Government of Tamil nadu cancelled the earlier notification dated 1.12.1972 notifying the suit properties as slum area. Against which the said Civil Appeal was preferred before the Apex Court. The relevant observation in the said dictum runs as follows:
"As the title of the respondents in the suit property had already been adjudicated upon, a suit for recovery of possession on the basis of the said title attracted Article 65 of the Schedule appended to the Limitation Act 1963. In terms of the said provision, it was for the appellant to show that she and her predecessor had been in possession of the suit property on the basis of the hostile title and as a result whereof the title of the plaintiff-respondent extinguished. Claim by adverse possession has two elements(1) the possession of the defendant should become adverse to the plaintiff ;and(2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without any thing more do not ripen into a title".
Basing his reliance on the above said dictum, the learned counsel appearing for the respondents would contend that the plaintiff in O.S.No.2844 of 2004 viz., Saraswathi is not entitled to any relief in her suit. For the same proposition of law, the learned counsel appearing for the respondents rely on Patel Naranbhai Marghabhai-v- Deceased Dhulabhai Galbabhai (AIR 1992 Supreme Court 2009)wherein it has been held that the application for possession is not barred by limitation and also Mohanlal (deceased )Through Lrs. Kachru-v- Mirza Abdul Gaffer(1996 -1 Supreme Court Cases 639) wherein the dictum reads as follows:
"When the transferee seeks to avail of Section 53-A to retain possession of the property which he had under the contract, it would be incumbent upon the transferee to plead and prove his readiness and willing to perform his part of the contract. Under Section 16(c) of the Specific Relief Act also the plaintiff must plead in the plaint, his readiness and willingness from the date of the contract till the date of the decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the same. In a suit for possession filed by the respondent,successor-in-interest of the transferor as a subsequent purchaser, the earlier transferee must plead and prove that he is ready and willing to perform his part of the contract so as to enable him to retain his possession of the immovable property held under the agreement. In this case except vaguely denying that he was not ready and willing to perform his part, he did not specifically plead it..... . . . . . the only question is whether the appellant is entitled to retain possession of the suit property. Two pleas have been raised by the appellant in defence. One is that having remained in possession from 8.3.1956, he has perfected his title by prescription. Secondly, he pleaded that he is entitled to retain his possession by operation of Section 53-A of the Transfer of Property Act, 1882. 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. ie., 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.
21.Per contra, the learned Senior Counsel Thiru T.R.Mani,appearing for the appellant would contend that in spite of her definite plea in the written statement in O.S.No.8866 of 2005/plaintiff in O.S.No.2844 of 2004 as to the effect that the defendant has prescribed title by way of adverse possession,the learned trial Judge has not framed an issue to that effect, has failed to give a finding to the fact that whether the defendant in O.S.No.8866 of 2005 /plaintiff in O.S.No.2844 of 2004 has prescribed title by way of adverse possession.The learned Senior counsel would further contend that in pursuance of the sanction given by the authorities to construct the building in the suit property, after her purchase under Ex A2, sale deed, she was in possession of the suit property and patta under Ex A4 was also granted in her favour and after getting necessary permission for putting up construction, she had put up ground floor in the year 1988 itself and had submitted plan to put up first floor in the year 1989. But only in the year 2000, the second defendant in O.S.No.2844 of 2004 had cancelled the planning permission and the first defendant in O.S.No.2844 of 2004 under Ex A2 proceeding had cancelled her patta (as reflected under Exs B6 to B8). Relying on a decision reported in Kuppuswami Nainar-v- The District Revenue Officer, Thiruvannamalai (1995(1) M.L.J.426), the learned Senior Counsel would contend that the revenue authorities are not competent to express their opinion in respect of the right of a person to the property concerned and that the said opinion is not conclusive and the Civil Courts cannot adjudicate upon the question of title on the basis of opinion rendered by the revenue authorities in a patta proceedings. The relevant observation in the said dictum runs as follows:
" No provision is brought to our notice in the Standing Orders of the Board of Revenue taking away the jurisdiction of the civil Court to adjudicate upon the question of title relating to immovable property. Revenue Officers in a patta proceedings may express their views on the question of title, but such expression of opinion or decision is not conclusive and it is only intended to support their decision for granting patta. Ultimately, it is the Civil Court which has to adjudicate the question as to whether the person claiming patta is the title-holder of the land. Even if the revenue authorities decide the question of title, that will not in any way affect the jurisdiction of the civil Court, which has to decide the question without reference to the decision of the revenue authorities."
22. But unfortunately in this case, there is no proper issues framed by the learned trial Judge as to the fact whether the defendant in O.S.No.8866 of 2005/plaintiff in O.S.No.2844 of 2004 has prescribed title by way of adverse possession in respect of the suit property. Once the trial Court has come to a conclusion that the plaintiff in O.S.No.2844 of 2004(defendant in O.S.No.8866 of 2005) had prescribed title to the suit property by way of adverse possession then the suit filed by the respondents/D3 and D4 in O.S.No.2844 of 2004 as plaintiffs in O.S.No. 8866 of 2005 will fail. Without a definite finding on the issue whether the plaintiff in O.S.NO.2844 of 2004/defendant in O.S.No.8866 of 2005 had prescribed title by way of adverse possession in respect of the suit property,the conclusion arrived at by the learned trial Judge that the plaintiffs in O.S.No.8866 of 2005 are entitled to a relief of recovery of possession, in my view is not sustainable, more particularly the plaintiff in O.S.No.2844 of 2004 /defendant in O.S.No.8866 of 2005 had put up a pacca construction in the suit property even in the year 1988. Point Nos 1 and 2 are answered accordingly.
23.Point No.3:
In fine, A.S.Nos.1061 and 1062 of 2007 are allowed and the Decree and Judgment in O.S.No.2844 of 2004 and O.S.No.8866 of 2005 respectively on the file of VII Additional Judge, City Civill Court, Chennai is set side and both the appeals are remanded to the trial Court for framing a proper issue as to whether the plaintiff in O.S.No.2844 of 2004/defendant in O.S.No.8866 of 2005 has prescribed title to the suit property by way of adverse possession and after giving an opportunity to both parties ,to let in further evidence on the said issue, shall decide the suitis on merits within a period of two months from the date of receipt of a copy of this order. The trial Court shall not be carried away by any of the observation made in this Judgment. No costs. Consequently, connected M.P.No.1 of 2007 is closed.
01.07.2008 Index:Yes Internet:Yes sg Note:1. Registry is directed to despatch the entire records immediately to the trial Court.
2.Issue order copy on 2.7.2008 A.C.ARUMUGAPERUMAL ADITYAN,J sg To
1. The Registrar, City Civil Court, Chennai
2. The VII Additional Judge, City Civil Court, Chennai
3. The Section Officer, V.R.Section, High Court, Madras A.S.NOs.1061 & 1062/2007 01.07.2008