Madras High Court
Periasamy vs Joseph Nadar on 26 October, 1998
Equivalent citations: (1999)1MLJ769
JUDGMENT A. Ramamurthi, J.
1. The aggrieved defendant has filed the appeal against the judgment and decree in A.S.No. 36 of 1980 on the file of Additional Sub Court, Tuticorin, dated 22.7.1981 reversing the judgment and decree in O.S.No. 228 of 1977, dated 31.10.1979.
2. The case in brief is as follows: The plaintiff filed suit, seeking the relief of declaration and permanent injunction against the defendant. The properties are a house bearing door No. 5-A at Palayamkottai Road, Tuticorin with a vacant site with 2 small huts. The plaintiff is in exclusive possession and enjoyment of the properties for more than 19 years and he has been directly paying the house tax and land tax. The properties were measured and survey stones have also been planted on the boundaries by the authorities. He has prescribed his title to the properties by adverse possession. The defendant is interfering with his possession and enjoyment. The defendant filed a suit against the plaintiff in the Panchayat Board, Tuticorin for recovery of arrears of rent and the case is also pending.
3. The defendant resisted the suit, denying the title of the plaintiff. It is false to state that the plaintiff is in possession and enjoyment of the properties for more than 19 years and paying the municipality tax. The defendant has purchased the land in the property along with other properties on 23.8.1961 from one Arumugasamy Nadar, trustee of Subbiah Nadar Dharmanidhi and president of Subbiah Vidyalayam Sangam to whom it belonged by means of registered sale deed for valid consideration. He is in exclusive possession of the property and paying the land tax. The plot was leased to the plaintiff by the defendant for a ground rent of Rs. 10 per month with a condition that he should vacate the land as and when required by the defendant. The tenancy is oral. The payment of rent has been duly entered in the note book maintained by the plaintiff and it was also signed by the collecting agent of the defendant. The plaintiff constructed the house in the suit plot and huts without the consent of the defendant and without any permission. The plaintiff was irregular in payment of rent. The defendant filed O.S.No. 324 of 1976 in the Village Panchayat Court, Tuticorin for recovery of arrears of rent and the Panchayat Court upheld the defendants claim by an order dated 7.3.1977. The plaintiff never perfected the title by adverse possession.
4. The trial court framed 7 issues and one additional issue and on behalf of the plaintiff, P. W. 1 was examined and Exs.A-1 to A-5 were marked. On the side of the defendant, D. Ws. 1 and 2 were examined and Exs.B-1 to B-6 were marked. The trial court dismissed the suit and aggrieved against this, the plaintiff preferred A.S.No. 36 of 1980 on the file of Sub Court, Tuticorin and the appeal was allowed and the judgment and decree of the trial court were set aside and the suit was decreed with costs throughout. Aggrieved against this, the defendant has come forward with the present appeal.
5. The plaintiff has raised the following substantial question in law:
Is the suit instituted by the respondent for declaration of title to the suit property maintainable in as much as the respondent has failed to plead and prove his case of ownership before the rent court, nor alternatively sought a reference to the civil court for proper adjudication of his title to the suit property?
The learned Counsel for the appellant contended that the respondent having failed to establish title by purchase or otherwise, is not entitled to plead and prove title by adverse possession. Before the rent court, the respondent stated that the suit property is a Government poromboke. The respondent already suffered a decree before the panchayat court for arrears of rent and he is now estopped from making a fresh claim to the properties in the civil court. The suit is also barred on the principles of res judicata. The tax receipts produced by the plaintiff do not relate to the suit properties.
6. The points that arise for consideration are:
(1) Whether the plaintiff is entitled to the relief of declaration and permanent injunction?
(2) Whether the plaintiff is in occupation on the suit site only as a tenant under the defendant?
(3) Whether the suit is barred by res judicata?
7. Points: The properties are a house hearing door No. 5-A Palayamkottai Road, Tuticorin with a vacant site with 2 small huts. The plaintiff claims that he is in exclusive possession and enjoyment of the properties for more than 19 years and paying the house tax as well as land tax under Exs.A-1 and A-3 to A-5 series. He has also prescribed his title to the properties by adverse possession. On the other hand, the defendant contended that he purchased the land in the property along with other properties on 23.8.1961 under the original of Ex.B-2 and the suit was leased to the plaintiff on a ground rent of Rs. 10 per month with a condition that he should vacate the land as and when required. The tenancy is oral. The plaintiff constructed the house in the suit plot and also the huts without his consent and permission. He was also irregular in payment of rent. The defendant was constrained to file C.S.No. 324 of 1976 in the village panchayat court, Tuticorin for recovery of arrears of rent and obtained an order on 7.3.1977 under Ex.B-3.
8. Ex.B-4 series are the house tax receipts and property tax receipt in the name of the defendant. He had also produced Exs.B-5 and B-6 in order to show that in other properties also, he moved the panchayat court and obtained decrees against third parties.
9. The trial court dismissed the suit filed by the plaintiff, whereas the lower appellate court allowed the appeal and granted the decree in favour of the plaintiff. Ex.B-1 is the copy of the statement filed by the plaintiff herein in C.S.No. 324 of 1976 before the Village Panchayat Court, Tuticorin. The plaintiff claims at one point of time that the suit properties are the Government poromboke but now in the suit, he claims that he has got independent title over the properties. He has not chosen to produce any record to show that he has got valid title to the properties. He has also not filed any document to show that the properties are assigned to him by the competent authorities. On the other hand, the defendant has filed Ex.B-2 to show that he has got title to the properties and the truth and validity of the same have not been disputed. Excepting the interested testimony on P.W. 1, no other dependant witness was examined to prove the title. No doubt, the plaintiff is in possession of the properties for a very long time. But the defendants stated that he was let in possession as a lessee of the site. The very fact that the defendant had obtained the decree in the panchayat court against the plaintiff under Ex.B-3 only strengthened the contention of the defendant and falsified the case of the plaintiff. Simply because the house tax was paid by the plaintiff, he cannot claim title to the properties, although it is stated that he had filed suit questioning the decree passed by the panchayat court, no record is also filed in this case. In the absence of any such thing, it is clear that the decree passed by the panchayat court is final and conclusive and it is no longer open to the plaintiff to dispute the title of the defendant.
10. Exs.B-5 and B-6 also will clearly establish that the plaintiff and other parties could have been only tenants under the defendant. P.W.1 stated that rest of his properties was also given to a third party. D.W.2 admitted that they have put up their trade union office only by getting permission from the defendant. Even assuming that the properties are the Government Poromboke land, as contended by the plaintiff, naturally 'B' ought to have been served on him. 'B' memo is filed by him. Under the circumstances, the trial court came to the conclusion that the plaintiff is in possession of the properties only as tenant and not as owner and ultimately, dismissed the suit. On the other hand, the lower appellate court wrongly placed the burden on the defendant to prove the title. When the plaintiff has come forward with a specific case claiming declaration as well as permanent injunction, he has to establish his case and he cannot pick out loopholes in the case of the defendant in order to prove his case. This principle has been reiterated in a Division Bench decision of this Court in P. Thangavelu v. R. Dhanalakshmi Ammal and Ors. 95 L. W. 708. The available materials in the case only disclosed that the plaintiff has miserably failed to establish his title to the properties and the lower appellate court misdirected itself and wrongly placed the burden on the defendant.
11. The learned Counsel for the plaintiff in the alternative contended that even assuming that the title is not proved, considering his possession he has prescribed the title by adverse possession. I am unable to agree with the contention for the simple reason that in view of Ex.B-3, it is positively established that the plaintiff was let in to possession of the properties and it is not hostile with an animus to claim adverse possession. The plaintiff relied upon a decision of this Court in Mohammed Sulaiman v. Mohideen Thambi 84 L. W. 252, wherein it is observed that, "it is well settled that if one the courts come to the conclusion that the plaintiffs are in possession of the suit properties, the declaration prayed for and the injunction prayed for must automatically follow". This decision has no application to the facts on hand.
12. The defendant relied on Tirumala Tirupati Devasthanam v. K.M. Krishnaiah (1998)3 M.L.J. 49, wherein the Apex Court observed that, "when there was no issue on the question of adverse possession in the courts below, the second appellate court, could not, for the first time, have given a finding that the title of the defendant stood extinguished". The defendant also relied on the decision in Annasaheb Bapusha Patil v. Balwant Babusheb Patil , wherein it is observed that, "A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e., possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reasons being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf, of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all". This decision is applicable to the case on hand. The trial court has rightly appreciated the position of law as well as the documents filed by the parties, but, unfortunately, the lower appellate court wrongly placed the burden on the defendant and there is every justification for interference in the finding given by the lower appellate court. The suit is also barred on the principle of res judicata and the plaintiff is only a tenant under the defendant.
13. For the reasons stated above, the second appeal is allowed and the judgment and decree of the lower appellate court are set aside and the finding of the trial court is restored and the suit is dismissed with costs throughout.