Madras High Court
Perumal vs Boyot Selvacarassou, Power Agent Boyot ... on 3 April, 2002
Equivalent citations: (2002)2MLJ150
Author: Prabha Sridevan
Bench: Prabha Sridevan
JUDGMENT Prabha Sridevan, J.
1. The preliminary issue regarding jurisdiction is raised in this appeal and that issue as well as other issues that arise will be dealt with.
2. According to the respondent / plaintiff, the suit property belonged to one Ponnurangam Pillai who died in the year 1952 leaving behind three sons and the wife of a predeceased son. He executed a will on 29.8.1940, bequeathing his properties to his wife and the four persons above named. The beneficiaries effected a partition amongst themselves on 17.5.1979. The suit property is located in Cadastre Nos.159 and 159 Bis. This share was allotted to Pandurangam, Ponnurangam's son. On 19.2.1981, the respondent purchased the property from Pandurangam. The suit property in which there are coconut groves, was orally leased out to one Dhanusu Pillai and his sons. These lessees subleased the property to a number of tenants, one of whom was the appellant's father Muruga Gramany alias Murugesa Gramany. The arrangement commenced in the year 1959 and after the original tenant's death, his son the appellant continued in possession. The respondent called upon the appellant to vacate the premises, but the appellant proceeded to put up construction without seeking permission of the respondent. Therefore, a police complaint was given. Earlier there were Referee proceedings between the respondent/his predecessors-in-interest and Dhanusu Pillai and the appellant. The matter came up to this Court too. Notice was issued terminating the tenancy. The suit O.S.105/83 was filed for declaration and recovery of possession.
3. The appellant resisted the suit stating that Pandurangam Pillai had also sought recovery of possession and he did not succeed. The appellant denied that he was a tenant. The appellant also denied the respondent's title. According to the appellant, he and his family were living in the suit property for more than 100 years. In all the prior proceedings, the appellant's case that there was no landlord / tenant relationship was accepted. In 1973, in Special Appeal, two Judges of this Court held in favour of the appellant. The appellant also claimed that he had perfected title by adverse possession. The appellant refused to approve of the partition deed dated 17.5.1979. He along with 200 others were poor people in huts residing in the vast place comprising Cadastre Nos.159 and 159 Bis. For all the above grounds, the appellant prayed that the suit should be dismissed. This in brief was the case of the two parties before the trial Court.
4. The trial Court decreed the suit as prayed for. The respondent was also directed to deposit a sum of Rs.25,100/- towards super-structure and improvements. Delivery of possession was ordered within two months after such payment or deposit. According to the learned trial Judge, this amount was just and reasonable compensation for the huge expenditure incurred by the appellant to maintain the building in a habitable condition. The respondent was directed to pay additional court fee on the aforesaid sum of Rs.25,100. Therefore, though originally the value of the suit was only Rs.10,800/-, the decree enhanced it. The following paragraph in the decree is relevant: " ... Pondicherry Court Fees and Suit Valuation Act 1972 and further valued at Rs.35,900/- (Rs.10,800 + 25,100) and additional Court Fee payable Rs.1883/-.)"
This is the crux of the preliminary issue.
5. Mr.K.Surendranath, learned counsel appearing for the respondent raised the preliminary issue of jurisdiction. The appeal ought to have been filed before the District Court. The value of the appeal is the same as the value of the suit. It was submitted that the amendment to the Pondicherry Court Fees and Suits Valuation Act came into force on 1.9.1986. Section 9(2) of the Pondicherry Civil Courts Act, as amended by Act 9/1986 from 1.9.1986 provides that appeals the value of which exceeds Rs.30,000/- can alone be filed before the High Court. The suit was decreed on 24.12.1986 after the Act came into force. Since the value of the appeal is Rs.10,800/- it should have been filed before the District Court. It was also submitted that the additional Court fees paid by the respondent was pursuant to the direction of the trial Court and without prejudice to the respondent's legal rights. This enhanced value cannot be treated as value of the suit. The respondent has also filed a cross appeal against this suo motu enhancement. The learned counsel submitted that in 1987, soon after the appeal was taken on file, and the respondent had notice of the same, the appellant filed C.M.P 2856/87 for return of the appeal papers for presentation before the proper Court in accordance with law. By order dated 22.9.1987, this Court after considering several judgments, directed the appellant to present the papers before the District Court. Against this, a Letters Patent Appeal was filed by the appellant stating that the respondent cannot ask for direction to return the appeal papers for presentation before the proper forum. This objection was accepted by the Division Bench. What was also accepted by the learned Judges, was the contention of the respondent herein that at a later stage, the appellant shall not be permitted to seek return of the papers for presentation before proper forum. Therefore, now, the appellant has to stand or fall by the decision of this Court with regard to jurisdiction. If this Court holds that the appeal was not presented before the proper forum, the appellant shall not be granted the indulgence of presenting it before the District Court.
6. Several decisions were relied on by the learned counsel:
(1) I.L.R (1893) 16 Madras 326 (VASUDEVA vs. MADHAVA) (2) I.L.R (1916) 39 Madras 447 (M.JALLALDEEN MARAKAYAR & OTHERS vs. VIJAYASWAMI alias MUTHUVIJAYA RAGHUNATHA ANNASWAMITHEVAR ) (3) 1917 (32) M.L.J 221 (PUTTA KANNAYYA CHETTI vs. REDRABHATLA VENKATA NARASAYYA) (4) A.I.R (32) 1945 Madras 194 (IN RE SRIRAMULU CHETTY) (5) (RAMANNA vs. SUBBARAYUDU) (6) A.I.R 1977 NOC 194 (Allahabad) (PARMAL SINGH vs. D.D.C, MEERUT & OTHERS) (7) (ANNAPURNA vs. SABITA) (8) 88 L.W 547 (A.VADIVELU vs. A.MUNUSWAMI)
7. According to the learned counsel, the view of the learned Judges in all these decisions appear to be uniform, that the value of the suit for the purpose of jurisdiction must be taken as the value which regulates the appeal. An erroneous order of the lower Court to pay higher court fee than that paid by the plaintiff will not deprive the District Court of the jurisdiction to hear the appeal and unless the value of the suit is amended to affect the jurisdiction of the trial Court, the value of the appeal will follow the value of the suit.
8. Mr.T.R.Mani, learned Senior Counsel appearing for the appellant would however reiterate that the appeal could only have been filed here. The decree itself clearly states that the value of the suit has been subsequently altered. He would also submit that the decree itself was subject to the payment and therefore, the inflated value is the prevalent value and it has become part of the decree. While the correctness of the inflation can be attacked, what cannot be attacked is that the value for the purpose of determining the appellate forum can only be the enhanced value. According to the learned Senior Counsel, if the appellant had made a wrong choice of forum, nothing prevented the respondent from filing his cross appeal in the proper Court. The very fact that the cross objections have been filed before the High Court would only show that the respondent also was fully aware that the High Court alone had the jurisdiction to hear the appeal. According to the learned Senior counsel, the decisions are all actually in his favour and therefore, there was no need to dismiss the appeal on the ground of jurisdiction.
9. The learned Senior Counsel would thereafter proceed to make his submissions on merits as well. It was submitted that the respondent who seeks a declaration of title is bound to produce all the title deeds which are necessary to trace his title. Declaration cannot be granted unless each link in the chain is complete. In this case, the 1940 Will was not filed, the 1970 partition deed was not filed and yet the respondent wants his title to be declared merely on the basis of a sale deed procured two years before the suit, apparently with an oblique motive. The case set up by the alleged predecessor in title of the respondent in the previous litigation did not find favour with these Courts. The case that Dhanusu Pillai was tenant and the appellant a sub-tenant was not believed. In the present case, the pleadings refer to an oral lease. The documentary evidence shows a patently concocted letter where the place where the left thumb impression of the appellant's father is supposed to have been fixed is conveniently damaged by "wear and tear". The learned Senior Counsel also submitted that notice may be taken of the fact that this Dhanusu Pillai is related by marriage to the respondent's predecessor in title. There were huts in the suit property which is apparent from the judgment of the Referee Court and the appeals filed thereagainst before this Court. Therefore, the presence of persons in possession in their own right was brought to the knowledge of the respondent's vendors atleast in 1966. The suit filed in 1983 for recovery of possession must therefore necessarily fail. The previous proceedings were really sham and they had been brought about only to create an impression that Dhanusu Pillai was the tenant when actually Dhanusu Pillai had nothing to do with the suit property. It is only the appellant who had been in possession for over 100 years. It was also submitted that in 1973, when in the earlier proceedings the respondent's vendor was directed to establish his title, but he merely bided his time and sold the property so that the respondent can embark upon a fresh litigation. The evidence in this regard would clearly show that the respondent has no case. He pointed out to the evidence of P.Ws 1, 2 and 3 and raised the question, why when there are references to the Will and the partition deed, no effort was taken to produce the same as evidence. The respondent had made no effort to ascertain the validity of the title. Such conduct is not natural. It was further submitted that when the earlier proceedings clearly show the presence of the appellant in the suit property, the evidence of P.W.1 that "My vendor told that defendant's father was occupying on rent for about 4 or 5 years before my purchase" is patently false. P.W.2 is the son of Dhanusu Pillai. According to the learned Senior Counsel, this person's evidence should also not be believed. On the other hand, the evidence on the side of the defendant clearly establish his case. D.W.1, the appellant has clearly stated that the property belongs to him absolutely by long continuous exclusive possession. D.W.2 aged about 70 has deposed that defendant's father lived in the same property for about 100 years. D.W.3 also speaks of the residence of appellant and his father in the suit property. So does D.W.4 who is the Huissier. According to the learned Senior Counsel, their oral evidence is entirely supportive of the appellant's case. It was also submitted that there was no necessity for the appellant to prove continuous exclusive and hostile possession to the knowledge of the real owner. It was sufficient that he demonstrated possession publicly, openly and continuously so that the true owner, if vigilant, would have taken steps to get back possession. It was also submitted that the misapprehension in the minds of the appellant regarding the extent of the property in their possession is explained by the fact that the suit property is 159 and 159 bis. 'Bis' means a little over. The learned Senior Counsel would submit that the Court below had fixed the burden of proof on the appellant whereas it is for the respondent to show that not only did he had title, but that he had filed the suit in time before the appellant had prescribed title to the same.
10. Mr.Surendranath, learned counsel for the respondent replied thus: Ex.A2 sale deed proved the respondent's title. There was neither pleading nor proof to show adverse possession and in fact, no issue was framed in this regard. There is no positive proof of adverse possession. In any event, as far as Pondicherry is concerned, Article 2262 of the French Civil Code applies and the limitation is not 12 years, but 30 years. This law was amended by Act 15 of 1994 which came into effect only from 1.3.1995. So as far as this case is concerned, 30 years is the limitation. 1973 is the day when the previous proceedings concluded and the present suit was filed in 1983. Even if the initiation of proceedings is taken into account, the suit has been filed within 17 years and therefore in time. The following judgments were cited: (1) 1976 (2) M.L.J 221 (GOODMAN & CO. vs. THIRUNAVUKARASU), (2) 1978 (2) M.L.J 544 (CHOCKALINGA MUDALIAR vs. MANIVANNA PILLAI), (3) (SENDAMARAI AMMAL vs. VIJAYA RAJAGOPAL CHETTIAR) to show that only the French Civil Code applies and not Indian Limitation Act. For adverse possession, the following decisions were cited: (1) A.I.R 1935 PC 35 (EJAS ALI vs. SPL. MANAGER, COURT OF WARDS), (2) A.I.R 1943 Allahabad 362 (LALIT KISHORE vs. RAM PRASAD), (3) 2001 (3) CTC 142 (PAZHAMARUTHAI vs. M.SUBRAMANIAM). As far as cross objections were concerned, learned counsel would submit that there was absolutely no basis for directing the deposit of Rs.25,100/- or for payment of additional Court fee.
11. (a) PRELIMINARY ISSUE :
The plaintiff / respondent valued the suit at Rs.10,800/- and paid the Court fee of Rs.810.50. The appellant as the defendant did not raise the issue of valuation, nor was it urged that the Court fee paid was incorrect. It was not pleaded that the respondent is not entitled to removal of super-structure without paying compensation. It is the Court's own decision to give a decree in this regard. Since this issue was never in contention, no evidence was let in with regard to value of super-structure or the entitlement of the appellant to any compensation or whether the super-structure was constructed pending litigation or whether it existed long prior to the suit. This was never in the mind of either parties, neither when they went to trial, nor when they argued the matter. But however, the decree does refer to a further valuation and additional court fee. The above decisions can now be referred to for guidance.
(2) In ILR (1893) 16 Madras 326 (cited supra), the Division Bench of this Court had occasion to consider the question of valuation of a mortgage suit. It was argued that the entire mortgage debt which was taken by the Subordinate Judge to be the value of the suit must be taken as the value which regulates the appeal. The Division Bench held that one has to determine what was the real value of the subject matter in the Subordinate Court and that was 1/4th of the mortgage debt and not the whole debt and therefore, the appeal was returned for proper presentation to the District Court.
(3) In ILR (1916) 39 Madras 447 (cited supra), which also arose out of a suit from redemption of mortgage, the amount with the principal of the debt was Rs.3,899/- and court fees was paid on that amount, but the trial Court ordered the plaintiffs to pay court fees on the total amount payable on redemption. In appeal it was held that merely because the Subordinate Judge had erroneously levied court fees on the total amount payable on redemption, the District Court cannot be deprived of the jurisdiction to hear the appeal and the High Court conferred with the same.
(4) In (1917) 32 M.L.J 221, a Full Bench of this Court dealt with a suit for accounts which was valued at Rs.2,000 and filed before the District Munisif. A decree was passed in favour of the plaintiff who was found to be entitled to a sum of Rs.5,577 and odd. The appeal was filed to the High Court on the ground that since the decree was over Rs.5,000, only this Court could hear the appeal. It was held thus: " The value of the suit in cases where such value is or is assumed to be capable of precise determination, though fixed by the plaintiff in the first instance, . . . if disputed, is determined by the court, and that determination which is preliminary to the adjudication of the suit determines the court which has jurisdiction to try the suit."
It was specifically held thus: "On principle then the value of the subject-matter of the suit for the purposes of jurisdiction must be its value when the plaint is filed whether such value is determined by rules made for that purpose which in case of dispute may be settled by the court as in the first two classes, or is fixed by the plaintiff without any one having a right to dispute that valuation as in the last class; and that value cannot change or be changed except by amendment as aforesaid so as to affect the jurisdiction of the trial court. "
- - - "The remaining point is as to the forum of appeal. We think that the same simple rule should be applied, viz., that the amount or value of the subject-matter as fixed in the plaint should determine the court to which the appeal lies."
A reference was made in that cases to (1904) ILR 31 Calcutta 395 (GULAB KHAN vs. ABDUL WAHAB KHAN) " In GULAB KHAN v. ABDUL WAHAB KHAN the reason stated is where the plaintiff fixes definitively a sum, that is the valuation, but if he fixes tentatively, then the first Court's adjudication: and this decision was followed by the majority of the judges in IJJATULA BHUYAN vs. CHANDRA MOHAN BANERJEE ((1907) 1 I.L.R. 34 C.958) "
In fact, the Full Bench discussed the issue threadbare by taking a concrete case of a suit for account where the plaintiff values the claim at Rs.3,000/-, the Court gives Rs.4,000/- and neither party is satisfied and the various hypothetical possibilities are raised and finally, the question that is asked is this: " Is it the principle that till there is an ascertainment of the amount due by the first Court accepted by the plaintiff, his original valuation is the test as was apparently held in NILMONY SINGH vs. JAGABANDHU ROY. "
The Full Bench held that even then, the difficulty does not cease. The confusion that would result, in the value of the subject matter of a suit being a shifting quantity varying not just from the trial Court to the Court of appeal, but even from party to party depending upon who is the appellant, was pointed out. It was held thus: " Reading both Ss.12 and 13 together there can be no doubt that appeals from decrees of District Munsifs lie only to the District Court. We think this affords almost conclusive proof that our interpretation of the words "The amount or value of the subject-matter of the suit" is the correct one. "
(5) Next, in A.I.R (32) 1945 Madras 194 (cited supra) it was held that the valuation of the suit in plaint and not valuation fixed by Court governs the forum of appeal and the following paragraph is relevant: " And it has been long settled that the money value of the suit fixes the jurisdiction for appeal and not the amount or value of the subject-matter in dispute in the appeal."
In fact, a reference is made in this to 7 Madras High Court reports 356 (MUTHUSWAMI PILLAI vs. CHIDAMBARAM CHETTY) which was referred to as the lexus classicus by the learned Senior counsel for the petitioner. In this decision, it was held that the money value of the suit fixes the jurisdiction for appeal and not the amount or value of the subject matter in dispute in the appeal.
(6) In it was held that where the plaintiff wants to amend the calculation of his suit by restoring the original valuation at the stage of appeal, which would result in shifting the jurisdiction, such amendment cannot be allowed.
(7) In A.I.R 1977 NOC 194 (All.) (cited supra), the core of the judgment is to the effect that the value of the suit determines the forum of the appeal and so too in .
(8) 88 L.W 547 (cited supra), which deals with counter claim does not strictly apply to this case. However, the crux of the matter is resolved by the following paragraph in the judgment by HAPPEL,J in the 1945 judgment (AIR(32)1945-Madras-194) referred to above: " And it has been long settled that the money value of the suit fixes the jurisdiction for appeal and not the amount or value of the subject-matter in dispute in the appeal."
The learned Judge declared: "The value of the suit must be the plaint valuation and the plaint valuation is the value set on the suit by the plaintiff unless and until his valuation is amended." In the same case, the learned Judge held that if the plaint had been amended to agree with the court fee determined to be payable, a different situation may arise. But since the plaint has not been amended and since the valuation determined by the Subordinate Judge is in dispute, the valuation given in the plaint in the first instance and not the disputed sum which may be varied governs the forum of appeal. This is almost identical to the instant case. The respondent has not accepted the valuation given by the trial Court for what has been perceived as just compensation for the super-structure and though the decree may mention the additional value or what it calls the further value and the additional court fee, what the Court is concerned with is the valuation given in the plaint. This is clear and brooks of no ambiguity.
(9) Then again in, it was held thus: "So for the purpose of deciding the forum of the appeal, we have to take into consideration only the valuation as finally adopted in the plaint and not what was originally mentioned."
Here again, we come to the central fact which is the valuation in the plaint. The learned Judge in this case referred to Justice HAPPEL's judgment. Therefore, the value in the plaint is the lodestar for determining the forum of appeal. Of course, the decisions relating to such suits where a tentative valuation is given cannot apply to this case. Here the value of suit as given in the plaint was not challenged. Only in the decree, the revised valuation finds a place and nowhere else.
(10) Yet another support to the objection of the respondent is found in the Full Bench judgment of this Court in (1917) 32 M.L.J 221, where it was held that in determination of a dispute relating to Court fee the value which is preliminary to the adjudication of the suit determines the court which has jurisdiction to try the suit. In this case, the decision of the Court below came not before the trial, but at the time of delivering the judgment.
(11) For all these reasons, I hold that the value of the appeal is only Rs.10,800/- which is the value given in the plaint and therefore, the appeal had been filed in the wrong Court. The judgment in L.P.A 143/87 having become final, the appeal must be dismissed as not maintainable.
(b) TITLE:
The missing links in the title-chain were pointed out to show why the respondent cannot have a declaration of his title. Though a Will and a partition deed were referred to in the plaint, they were not marked as Exhibits. The respondent has only the sale deed Ex.A2 dated 19.2.1981, and Ex.A7 which is just 10 days prior to the suit where there is a reference to the schedule of property being registered in the name of Pandurangam Pillai, Rangasamy Pillai, Rajathi ammal etc. who are alleged to be the heirs of Ponnurangam Pillai. Two documents have been filed Exs.A18 and A19 which show that Pymash nos. of the properties given to one Manikkammal by the deed dated 3rd May 1883 and subsequently, in 1914, under Ex.A19, a mortgage deed by Ponnurangam Pillai showing himself as the son of Manickammal in which all these Pymash nos. are again referred to. This is of the year 1914. The expert report was filed by the expert who is the head of the survey office and where the old survey numbers are referred to and it is found that they can be correlated with Cadaster nos. 159 and 159 Bis. The appellant's father and others in the prior proceedings claimed that they are in the poramboke old survey no. 679. But the respondent's case was that they had encroached into 159 and 159 Bis. In the Survey Report, a list of old Survey Nos. is given as forming part of the 159 and 159 bis, but it does not include Old Survey No.679. The expert's report identifies the land comprised in no.679 old survey number under three heads: 1) according to the documents, 2) according to plan, and 3) according to survey plan. It shows that Old Survey No.679 lies extremely to the south-west of 159 Bis. The report also identifies 159 and 159 bis according to a) documents and b) original survey report. This also shows that the properties are registered in the folio no. 242 in the name of Ponnurangam Pillai son of late Krishnasamy Pillai. This finds corroboration in Ex.A19 dated 5th March 1914 which shows Ponnurangam Pillai son of late Krishnasamy Pillai and Manickathammal hold the above survey numbers. The expert report refers to the notarial donation deed dated 29th August 1940 which would show that the respondent's predecessors in title are in possession of the lands in question. A chart has been given which shows the details of the premises occupied on plot no. 159 bis and the first name that is found is Murugesan who is the father of the appellant.
(2) The previous proceedings are relevant. The earliest is the Referee judgment dated 18.2.1963. The petitioners in this are the four legal representatives of the late Ponnurangam Pillai seeking recovery of possession and the respondents are the sons of Dhanusu Pillai. Delivery of possession was ordered by the Referee Court. Against that, an appeal was filed before this Court in Special Appeal civil no.246/63. It was disposed of on 31.10.1963. This appeal was filed by Dhanusu Pillai's sons. Though the appeal was dismissed, the operation of the order of eviction was stayed till 31.12.1963. On 28.12.1964, there was another Referee proceeding and the legal representatives of Ponnurangam Pillai again sought for eviction of the occupants of the premises, who claimed that they are in possession of plot nos.159 and 159 bis. 31 persons were shown as respondents including the father of the appellant. It was urged now that the proceedings against Dhanusu Pillai and his sons was pure shadow boxing and not real. The counter to this was that both sides were represented by giants of the bar. The attack on those proceedings as being collusive is raised only now and any way neither party is resting his case solely on those findings. There was a dispute regarding the exact extent of the plot occupied by these persons. An expert report was called for which has already been referred to. On 8.11.1965, there was a third Referee proceeding between the heirs of Ponnuranga and the father of the appellant. Here again, title was traced from a deed dated 29.8.1940. The respondent claimed that they have been in possession for more than 100 years of the sites and that no one had ever disturbed them, and that they are not tenants. The Referee Court ordered ejectment. Against this, an appeal was filed to the Superior Court of appeal. This was disposed of on 7.1.1966. The point for determination was whether the Referee Court had jurisdiction to direct eviction. The learned President of the Appellate Tribunal felt obliged to comment upon the changing claims of the appellant's father and others. The following sentence is relevant: "At first they said that the houses were situate not in the respondents' land, but in Government Poramboke. Then, when the Surveyor's report made it clear that their houses were situate on the respondents' land, they said that the respondents do not have title to the survey numbers and also that they have prescribed title to the property where the houses are situate". As regards the issue of adverse possession, it was observed that there was no documentary evidence to prove this and the respondent's predecessor in title had also not proved the lease or sub-lease, and that adverse possession may best be proved by oral evidence. The following sentence is again relevant. " The question for consideration is whether the plea of adverse possession raised by the appellants can be said to be bonafide. If it is not bonafide, it is open to the Refere Court to act upon the prima facie evidence produced by the respondents and direct the eviction of the appellants."
It is clear from this that the title was not in dispute. Otherwise even if plea of adverse possession was not bonafide, eviction cannot be ordered. The only question was whether the claim of adverse possession was bonafide or not. The parties were left to agitate the question in the ordinary Civil Court since "the appellants deny the sub lease and go to the length of claiming title to the disputed huts in hostility to the claim of the respondents". This also shows that the appellant claims adverse possession which alone can defeat the respondent's title. Against this, a special appeal was filed which was disposed of on 19.2.1973. Manoranji ammal and others were the appellants before this Court and the present appellant is the 1st respondent therein. The lower court's direction to file a regular suit was affirmed. Ex.A2 which is the sale deed in favour of the present respondent has been executed by the children of Pandurangam who is the 4th respondent along with Manoranji Ammal and who has been agitating the matter right from 1963. The respondents herein have produced the documents to show that Ponnurangam Pillai got the property from Manickathammal his mother. They have produced documents to show how the old survey number can be correlated to cadastre nos. 159 and 159 Bis in which the present suit property is situated. All the prior proceedings in which the present appellant was also a party show that the father of the vendors under Ex.A2 has been agitating his rights right from 1963. The Will dated 1940, the donation deed have all been referred to in the earlier judgments and the judgment of Justice MAHARAJAN who was then the president of the appellate Tribunal also shows that the title was found in Manoranjiammal and others. What was first in dispute was, where the huts were situate and thereafter once it was located in 159 and 159 Bis, whether the occupants of the huts had been there for over 100 years. No doubt, it is true that the documents referred to in the plaint have not been marked, but the respondent has produced documents sufficient to show that his vendor has title to the suit property. Ex.A7 though dated 24.2.1983 is a certificate given to the respondent's counsel to the query regarding the market value of the property. The certificate shows the persons in whose names these two cadastre numbers have been registered. It is too recent and in isolation, may not prove anything, but in conjunction with other evidence, this supports the respondent's title. Ex.A14 are land tax receipts standing in the name of the respondent's vendors. P.W.2, in cross examination states that it is not correct to say that even at the time of lease by Ponnurangam Pillai, the title and possession of the property had vested with the various occupants. P.W.3 who is one of the vendors, speaks of his father's title, but the focus in cross-examination of these witnesses appears to be more on the genuineness of the lease than the right to title.
(3) The defendant's witnesses, on the other hand have also spoken only of the genuineness of lease and that Ex.A9 has been created to defeat the case of adverse possession. None of the witnesses on the appellant's side have said clearly that the respondent did not have title. On the contrary, the evidence of D.W.2 is that the property is called Deivanayagam Pillai Thottam. Deivanayagam Pillai is P.W.3 one of the vendors in Ex.A2. D.W.2 explains that it was so called because it was managed by Deivanayagam. But that does not seem likely, it is more probable it was called Deivanayagam Thottam only because it belonged to Deivanayagam and others. The Huissier examined as D.W.4 also has nothing relevant to say about the title. I am therefore satisfied that the oral and documentary evidence prove the title of the respondent. The question is whether the appellant has prescribed title by adverse possession, since the respondent has not been able to prove sublease and the alleged rent receipt cannot be accepted.
(c) ADVERSE POSSESSION:
It is interesting to note that though in the order dated 7.1.1966 there is reference to the appellant's denial of the sublease and claim of hostile title, giving liberty or leave to the parties interested to agitate this question, the appellant has really not focussed his attention on adverse possession. In the written statement filed, in paragraph 2, they extract the judgment which has already been referred to above. In paragraph 4, there is reference to possession for more than 100 years. Paragraph 8 reads: "He is claiming the suit property by adverse possession." and in paragraph 11, that no one has possession or knowledge of the antecedent title of the suit property and that this defendant is rightful owner through his ancestors and in paragraph 12, a reference is made to a public notice declaring that all the occupants have perfected their title by adverse possession. The trial Court did not frame any issue regarding adverse possession. But while discussing issue no. 4, "To what reliefs are the parties entitled to" the Court below refers to adverse possession. The following paragraph is relevant: " The defendant has to prove not only long and continuous possession of the suit property but also he must prove that this possession was peaceful, continuous, exclusive and hostile to the knowledge of the real owner as required by law. But the defendant has no evidence to substantiate all the essential requirements for his claim of title by refere proceedings from 1963 onwards between the defendant's father and plaintiff's vendor which ended about in 1969 or 1970. Therefore, the litigation for over 7 years interrupt the claim of adverse possession and there is no peaceful enjoyment during that period. Even after 1970 there was litigation between the plaintiff's vendor and other occupant if adjoining property during all this years which indicate that the plaintiff's vendor has always asserted his title over the suit property from 1963 upto the date of suit not only against the defendant but several other occupants who resist the claim. In view of this fact, the defendant's possession after 1963 upto the date is undoubtedly not peaceful and exclusive right as owner for himself. "
As far as the Pondicherry Law is concerned, limitation is 30 years. Therefore, the appellant should prove that he has been in possession for over 30 years prior to the suit to succeed on the issue of adverse possession.
(2) The appellant appears to be uncertain of the Survey No. of what he claims to be his property. First, they said that their huts were in Poramboke in Old Survey No.679 and that they were never in occupation of the property that belonged to the respondent. After it was found that their huts were in Cadastre nos.159 and 159 Bis, they changed their stand to one of continued possession in this property what ever that might be, in hostility to the title of the respondent. From 1963 his possession, even if proved has not been peaceful. He should prove possession for 30 years prior to 1963 or 1983 when the suit was filed. According to the respondent, the appellant openly denied the title of the real owner only in 1965, and so possession prior to that is not hostile to the real owner and since date of commencement of possession is not specifically mentioned and since assertion of possession to the knowledge of real owner has not been proved, there is no adverse possession. But according to the appellant there is ample evidence to show his possession not just for 30 years, but for over 100 years. The case of the respondent that there was an oral lease in 1959 has not been proved. Eviction was ordered in 1963 and it is against the alleged three tenants. It is only thereafter, that the appellant and others came into the picture. They claimed that they were occupying pymash no.679 and not cadastre nos. 159 and 159 Bis. The tribunal Superior de appeal held that the character and duration of their possession has not been proved by documentary evidence and that it may be proved by oral evidence, and therefore the importance of evidence of D.Ws 1, 2, 3 and 4. Pymash no.679 is situate to the south west corner of 159 bis. This is seen from the Surveyor's report. As per the survey plan drawn in the year 1965, no.679 of old survey corresponds to the portion of the north Boulevard comprised between the road with Idayanchavadi and Madras road and one portion of the Madras road comprised between the centre and to the extreme southwest of the plot no.159 bis. Stress was laid on the word 'bis' which means 'extra' to show that the respondent is himself not sure of the exact extent of S.159. According to the appellant, he was under the impression that they were in occupation of Old Survey No.679, only after the Report he claims to occupy 159 bis. The provisional patta and the application for patta and electricity receipts are all too recent to be of any use to the appellant. There is reference to a tea stall run by a third person during the last 25 years. D.W.1, the appellant does not know if his grandfather died in the suit property. He claims that his father was born in the suit property and that he has birth registration, but that document is not filed. He denies that he has filed a statement that they are living in poramboke land, but Ex.B5 which contains the affidavit filed in CMP 2290/63 shows that this is what he has claimed. He claims to have paid tax from 1979, but he does not know who paid tax before 1979. Exs.B2 and B3 do not refer to 100 North Boulevard which is the door number of the suit property. The witness himelf admits that in Ex.B1, which is the photo copy of a patta in favour of Perumal does not refer to the suit property nor is there a mention of 159 bis. He admits that to the north of his property is the property in the name of Deivanayagam Pillai who is one of the vendors of the respondents. He admits that he did not obtain any permission for putting up the construction in the suit property. He admits that "The owner Ponnurangam Pillai, Deivanayagam, Dhanusu and Pandurangam used to come to the shop in our place." They are the predecessors in title of the respondent. D.W.2 is a neighbour. According to him, the defendant's father was in possession of the suit property for over 100 years. D.W.2 also refers to defendant's father running a toddy shop. This finds corroboration in evidence of P.W.1 who also refers to his father doing toddy tapping having a shop near Vanniya street. But then D.W.2 also says that the defendant is residing in the municipal poramboke land. "I know that defendant was residing in the municipal poramboke land." So, his statement that the defendant's father lived in the property for about 100 years cannot really help the appellant. Obviously the witness does not know that the suit property is not poramboke, so his evidence regarding possession of government poramboke cannot be the basis for the case of adverse possession. D.W.3 is a tenant under the appellant who has been living in a hut about 25 years ago. In cross examination, he has stated that he came to the defendant's place about 25 years ago and that "I do not know what happened with respect to the suit property and Perumal prior to 25 years." So, his evidence also does not help the appellant. D.W.4 is the Huissier who was asked to take possession of Deivanayagam garden in 1963. He states that there were huts in the coconut grove in 159 bis and that the three persons stated to be tenants who are Danusu Pillai's sons were residing in the interior part of the coconut grove. According to the appellant, the tenancy of Dhanusu Pillai and others is itself concocted only to defeat the rights of the appellant since Dhanusu Pillai is related to the respondent's predecessors in title. But the evidence of D.W.4 clearly shows that Dhanusu Pillai's sons were indeed residing in 159 and 159 bis. And D.W.4 is the appellant's witness and an officer of Court. He also admits that he has not arranged for removing an occupant by name Perumal. There is nothing in his evidence to prove adverse possession. Considered individually or as a whole, the evidence of the defendant's witnesses does not establish adverse possession. No one speaks of appellant's possession of Cadastre nos.159 and 159 bis over 100 years. The situation of poramboke land and cadastre nos. 159 and 159 bis so close to each other, the assertion originally of the appellant that they were occupying the poramboke land alone, the identification that the property in dispute is not poramboke but cadastre nos. 159 and 159 bis, and the subsequent change in stand are all factors which should be taken into consideration. So the responsibility of the appellant to establish exactly when he came into possession of the suit property is greater. While granting that he may not be able to give the exact date, he should indicate with a reasonable degree of certainty, the time when 159 and 159 bis were occupied with an intention to hold it in hostility. Otherwise, the rights of the real owner cannot be defeated. Therefore, on the question of adverse possession also, it must be held that the appellant has not proved his case.
(d) MAINTAINABILITY OF CROSS OBJECTION: The appeal has been found to be maintainable on the issue of jurisdiction, for the same reasons, the cross objection must fail. If the respondent was aggrieved by any part of the decree, he ought to have filed the appeal before the District Judge. The fact that the appellant herein had chosen this forum cannot be summoned to his aid. Therefore, the cross objection fails.
(e) MERITS OF THE CROSS OBJECTION: On merits, the objection must be sustained because the value of super structure was never in dispute before the Court below. Without pleadings or evidence, the Court below has arbitrarily assessed the value of the super-structure. The reasoning given by the trial Court in this regard cannot be accepted.
12. In the result, the appeal fails both on the preliminary issue as well as on the other two issues. The cross objection fails on the ground of jurisdiction alone. The appeal and cross objection are dismissed. No costs. CMP 10035/87 is closed.