Madras High Court
Antoniammal vs Periannakonar (Died) on 2 April, 2019
Author: R.Hemalatha
Bench: R.Hemalatha
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 02.04.2019
CORAM:
THE HONOURABLE MRS .JUSTICE R.HEMALATHA
S.A.(MD) No.241 of 2008
Antoniammal .. Appellant/Appellant/Plaintiff
Vs.
1.Periannakonar (Died)
2.Ponnammal
3.Govinda Selvi ... Respondent/Respondent/Defendant
[RR2 and 3 are brought on record as LRs of the
deceased R1 vide order dated 26.04.2012 made
in M.P.(MD) Nos.2 and 3 of 2012]
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the decree and judgment, dated 12.11.2007 made
in A.S.No.10 of 2002, on the file of the Principal District Court,
Ramanathapuram, upholding the decree and judgment, dated
21.12.2001 made in O.S.No.73 of 2000, on the file of the District
Munsif Court, Ramanathapuram.
For Appellant : Mr.F.X.Eugene
For R2 & R3 : Mr.P.Vairava Sundaram
JUDGMENT
The appellant is the plaintiff in O.S.No.73 of 2000, on the file of the District Munsif Court, Ramanathapuram. She filed the above suit http://www.judis.nic.in 2 against the first respondent/defendant (since deceased) for the following reliefs :-
(i) declaration that the plaintiff is the absolute owner of the suit property, which is situated in S.No. 130/2 of Rameswaram Agatheeswarar Theerthakarai, measuring 37 cents.
(ii) a permanent injunction restraining the first respondent/defendant from interfering with the peaceful possession and enjoyment of the suit property; or in the alternative
(iii) for recovery of possession of the suit property, if the plaintiff is found to be in possession of the suit property and
(iv) for costs.
2.For the sake of convenience, the parties are referred to as per their ranking in the original suit and at appropriate places their ranks in the second appeal would also be indicated, if necessary.
3.The brief case of the appellant/plaintiff is as follows:-
The suit property and the property on the western and eastern side in S.No.130, Rameswaram Agatheeswarar Theerthakarai, http://www.judis.nic.in 3 measuring 3.14 cents, originally belonged to one Ragunathapillai and his co-sharers and in a family partition, 1 acre 57 cents on the western half was allotted to Ragunathapillai. While the eastern half of 1.57 cents was allotted to his co-sharers, both the properties were fenced separately. The plaintiff purchased 1.57 cents from Ragunathapillai through a sale deed, dated 30.05.1958 (Ex.A1). The plaintiff and her husband are in possession of the suit property continuously and in fact, the defendant filed a suit against the plaintiff in O.S.No.30 of 1990, before the learned District Munsif, Ramanathapuram, which was subsequently, dismissed for default. The plaintiff and her husband are illiterates and they did not know the sub-division made in S.No.130 of Rameswaram Agatheeswarar Theerthakarai by the Revenue Authorities. The plaintiff also used to accompany her husband, whenever her husband went for fishing. According to the plaintiff, the first respondent/defendant is attempting to trespass into the suit property since May 1958 and hence, the suit.
4.The suit was resisted by the first respondent/defendant on the following grounds :-
(i)The Ragunathapillai owned only 1 acre 20 cents and the eastern portion measuring 1.97 cents was purchased by the defendants through a sale deed, dated 10.09.1956 (a copy which is marked as Ex.B6) by the http://www.judis.nic.in 4 defendant from one Ramanathasasthri.
(ii)In the sale deed (Ex.B6), the western boundary is described as a property of Natarajapillai, who is the father of the plaintiff's vendor.
(iii)The plaintiff does not have any title over the suit property.
(iv)Patta (Ex.B8) for S.No.130/2 of Rameswaram Agatheeswarar Theerthakarai, for 1.94 cents was issued in favour of the defendant.
(v)The defendant is also in possession of his property, which is comprised the suit property by paying tax as evidenced by tax receipts (Ex.B11 to Ex.B15) and thus the defendant has perfected his title by adverse possession and prescription.
5.Both the Courts below dismissed the suit filed by the plaintiff and as against the concurrent findings recorded by both the Courts below, the plaintiff has filed the present second appeal under Section 100 of C.P.C.
6.Now the present second appeal is filed on the following substantial questions of law:-
http://www.judis.nic.in 5
(i)Whether the Judgment and decree of the Court below are perverse on account of its failure to consider the fact that there was no factual foundation with regard to the claim of adverse possession in the written statement filed by the respondent herein?
(ii)Whether the Judgment and decree of the Court below are erroneous on account of its misconstruction of documents in Exs.A1 and A3?
7.During the pendency of the present appeal, the first respondent/defendant died and his legal heirs were impleaded as the respondents 2 and 3. At the out set, it may be observed that the plaintiff has filed suit for declaration of his title and for a consequential relief of permanent injunction and for recovery of possession. The plaintiff mainly relies on her sale deed, dated 30.05.1958 (Ex.A1). A copy of the sale deed, dated 01.09.1956 executed in favour of the first respondent/defendant is marked as Ex.A3.
8.Mr.F.X.Eugene, learned counsel appearing for the appellant/plaintiff relied on the following decisions:- (i)Guruvammal and another Vs. Subbiah Naicker and Others reported in 1999 (III) http://www.judis.nic.in 6 CTC 650 and (ii)Balwant Singh and Another Vs. Daulat Singh (Dead) by LRs and Others reported in (1997) 7 Supreme Court Cases 137 and contended that mutation of the property in the revenue records (Ex.B8 and Ex.B9) would not create or extinguish the title of the plaintiff and that the sale deed (Ex.A1) would clearly reveal that the plaintiff is entitled to the suit property.
9.Per contra, Mr.P.Vairava Sundaram, learned counsel appearing for the respondents 2 and 3 relied on a decision in Rama Gowda (Dead) by LRs Vs. M.Varadappa Naidu (Dead) by LRs and Another reported in (2004) 1 SCC 769 and in which, it has been held that:
“...the Court laid down the following tests which may be adopted as working rule for determining the attributes of 'settled possession':
(i)that the trespasser must be in actual physical possession of the property over a sufficiently long period;
(ii)that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of http://www.judis.nic.in 7 the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
(iii)the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and
(iv)that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.
In the cases of Munshi Ram and Others. (supra) and Puran Singh and Others. (supra), the Court has approved the statement of law made in Horam Vs. Rex AIR 1949 Allahabad 564, wherein, a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession, wherein, the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter, may be dispossessed by the true owner only by having recourse to the due http://www.judis.nic.in 8 process of law for re-acquiring possession over is property....”
10.He would therefore contend that the documents filed on the side of the first respondent/defendant would prove that the first respondent/defendant has been in possession and enjoyment of the suit property. His another contention is that since the plaintiff did not adduce any document to show his possession over the suit property, the suit filed by her should fail. He also drew the attention of this Court to the evidence of P.W.1 who during the course of cross- examination had deposed that there is no fence around her property.
11.It is pertinent to point out that the plaintiff did not file the patta, which was allegedly issued to him. The plaintiff mainly relies on the description of the property indicated in a sale deed (Ex.A1). The survey number mentioned in Ex.A1 is 130 of Rameswaram Agatheeswarar Theerthakarai. In the plaint schedule, the suit property is shown as the property situated in S.No.130/2, Agatheeswarar Theerthakarai of Rameswaram. According to the plaintiff, S.No.130 has been now sub-divided into S.Nos.130/1 and 130/2. However, she did not adduce any evidence to show that 37 cents of land in S.No.130/2 is her property. As already observed the plaintiff has purchased western half portion in S.No.130 which http://www.judis.nic.in 9 according to her measures 1 acre 57 cents. Her specific contentions is that since the total extent in S.No.130 is 3.14 cents, she is entitled to the suit property also. The plaintiff did not adduce any document to show that 37 cents of her land situate in S.No.130/2. No revenue records were produced by her to substantiate her contention in this regard. Both the Courts below, after analysing the evidence on record had concurrently held that the plaintiff did not adduce sufficient evidence to substantiate her title and possession over the suit property. All the observations made by both the Courts below are based on evidence and facts and they are also well founded. Hence, I do not see any reason to interfere with the findings recorded by both the Courts below.
12.The contention of the learned counsel appearing for the appellant is that the defendant cannot claim adverse possession and prescription over the suit property since the date on which his title became adverse to the plaintiff has not been indicated in the written statement. This is a suit filed by the plaintiff for declaration of her title and consequential relief of permanent injunction and in the alternative for recovery of possession and the plaintiff is unable to establish her title to the suit property. It is settled law that the plaintiff should establish her case to the hilt and should not pick holes in the http://www.judis.nic.in 10 defendant's case and on that score seek for a decree of declaration and injunction. This court does not also find any substantial question of law involved in this case.
13.In the result :-
(i)The second appeal is dismissed. No costs.
(ii)The decree and judgment passed by both the courts below are upheld.
(iii) The suit in O.S.No.73 of 2000 is dismissed with costs.
02.04.2019 Index : yes/No Internet: yes/No sji http://www.judis.nic.in 11 To
1.The Principal District Judge, Ramanathapuram.
2.The District Munsif Judge, Ramanathapuram.
3.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 12 R.HEMALATHA.J., sji/am S.A.(MD) No.241 of 2008 02.04.2019 http://www.judis.nic.in