Madras High Court
Kamalam Thangathai vs Velammal on 15 April, 2021
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
S.A.No.1632 of 2001
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.1632 of 2001
and
C.M.P.No.17715 of 2003
and
M.P.(MD)No.1 of 2009
1.Kamalam Thangathai
2.T.Krishnan
3.K.Ramu
4.Rani
5.K.Suresh ... Appellants
(Appellants 2 to 5 are brought on record
as LRS of the deceased sole appellant
vide order dated 19.07.2002 made in
C.M.P.Nos.9161 and 9162 of 2002 by
PSMJ)
Vs.
1.Velammal
2.Ulagammal
3.Esakki
4.Subbiah
5.Muthulakshmi
6.Saraswathi ... Respondents
(R5 & R6 are brought on record as LRS of
deceased first respondent vide order dated
09.07.2009 made in M.P.(MD)Nos.2 to 5 of
2009 in S.A.No.1632 of 2001 by PMJ)
https://www.mhc.tn.gov.in/judis/
1/14
S.A.No.1632 of 2001
Prayer : Second Appeal filed under Section 100 of Civil Procedure
Code, against the judgment and decree of the Principal Subordinate
Court, Tirunelveli, dated 20.09.2000 in A.S.No.78 of 1998, reversing
the judgment and decree of the I Additional District Munsif Court,
Tirunelveli, in O.S.No.588 of 1996, dated 08.08.1998.
For Appellants : Mr.H.Thayamanaswamy
For Respondents : Mr.C.Selvakumar for R2 to R4
Mr.S.Yasar Arafat for R5
No appearance for R6
JUDGEMENT
Kamalam Thangathai, the plaintiff in O.S.No.588 of 1996 is the appellant in this second appeal. During the pendency of this appeal, she passed away and her legal heirs have come on record. O.S.No. 588 of 1996 was filed before the I Additional District Munsif Court, Tiruenlveli, seeking the relief of declaration, recovery of possession and mesne profits. The Trial Court vide judgment and decree dated 08.08.1998 decreed the suit insofar as the first two reliefs are concerned, mesne profits were however denied. Aggrieved by the same, the defendants filed A.S.No.78 of 1998 before the Principal Sub Curt, Tirunelveli. By judgment and decree dated 20.09.2000, the appeal was allowed and the judgment of the Trial Court was reversed. Questioning the same, this second appeal has been filed. https://www.mhc.tn.gov.in/judis/ 2/14 S.A.No.1632 of 2001
2.The second appeal was admitted on the following substantial questions of law:-
“(1) Whether the lower Appellate Court is right in holding that the appellant failed to prove Ex.A.9 overlooking the fact that Ex.A.9 is a registered Deed of Settlement and came within the purview of proviso to Section 68 of the Evidence Act?
(2) Whether the lower Appellate Court is right in holding that the respondents perfected title by adverse possession in the absence of any positive and acceptable evidence on the side of the respondent especially when the burden is upon the respondent to prove the plea of adverse possession?”
3.Heard the learned counsel on either side.
4.The case of the plaintiff is that the property in question originally belonged to one Sornathammal. The said Sornathammal executed settlement deed dated 30.12.1976 (Ex.A.9) in favour of her son namely., Natarajan Asari. Natarajan Asari sold the suit property in favour of the plaintiff vide sale deed dated 07.12.1984 (Ex.A.2). The first defendant/Velammal was none other than the sister of Natarajan Asari. She was in possession of the suit property. After purchase of the suit property, the plaintiff issued Ex.A.4/notice dated 14.06.1985, https://www.mhc.tn.gov.in/judis/ 3/14 S.A.No.1632 of 2001 calling upon the defendants to vacate and hand over the possession of the suit property. The defendants vide Ex.A.5 dated 08.07.1985 gave a reply controverting the plaintiff's claim. Thereafter, the plaintiff filed R.C.O.P. Nos.108 and 110 of 1985 before the Rent Controller for securing the eviction of the defendants. The Rent Controller dismissed the R.C.O.Ps on the ground that the relationship of landlord and tenant was not established. Thereafter, the present suit was instituted. The Trial Court held that the plaintiff had established her title by virtue of Ex.A.2/sale deed r/w. Ex.A. 9/settlement deed.
5.The First Appellate Court went through Ex.A.9 and came to the conclusion that its very execution appears to be doubtful. Sornathammal had affixed her signature in peacock blue ink in several pages. However, in the last page, Sornathammal had affixed her signature only in black ink. The description regarding the attesting witnesses is in one ink, while their names namely., Subbiah Pillai and Arunachalam Asarai are in peacock blue ink. In view of the same, the First Appellate Court came to the conclusion that the very genuineness of Ex.A.9 is doubtful. The First Appellate Court came to the conclusion that the moment the defendants denied the existence of landlord and tenant relationship, their possession over the suit https://www.mhc.tn.gov.in/judis/ 4/14 S.A.No.1632 of 2001 property became adverse to that of the plaintiff. On a over all consideration of the evidence on record, the Court below inferred that defendants have perfected their title by adverse possession. In this view of the matter, the judgment of the Trial Court was reversed and the first appeal was allowed.
6.The learned counsel for the respondents strongly reiterated the reasoning found in the impugned judgment and decree of the First Appellate Court. He pointedly contend that Sornathammal was never the original owner of the property. According to him, the original owner of the property was one Bakkiyathammal. Bakkiyathammal died leaving behind Parvathiammal and Sornathammal. Therefore, the very competence of Sornathammal to execute Ex.A.9/settlement deed in favour of Natarajan Asarai is open to grave doubt. He would further contend that Ex.A.9 has not at all been proved by the plaintiff. He took me through the relevant portion of the First Appellate Court's judgment. He would further contend that no substantial question of law has arisen for consideration and that therefore, the second appeal deserves a dismissal. He would also add that Velammal was none other than the blood sister of Natarajan Asari. She was always in possession of the suit property. Therefore, by virtue of long possession and user, the defendants had perfected their title by https://www.mhc.tn.gov.in/judis/ 5/14 S.A.No.1632 of 2001 adverse possession and therefore, he wanted this Court to sustain the aforesaid finding of the First Appellate Court.
7.I carefully considered the rival contentions and perused the evidence on record. The sheet anchor of the first Appellate Court's judgment rests on its finding that the possession held by the defendants was adverse to that of the plaintiff and that the defendants have perfected title to the suit property by adverse possession. This finding is given in the penultimate paragraph of the First Appellate Court's judgment. As rightly pointed out by the learned counsel appearing for the appellants, to render a finding of adverse possession in favour of the defendants, the defendants must have accepted the title of the plaintiff. Only if there is acceptance of title, the question of adverse possession will arise at all. In the case on hand, in the written statement, the defendants would deny even the title of Sornathammal. In paragraph 2 of the written statement, it has been pleaded by the defendants that the allegation is that the suit property originally belonged to Sornathammal is false. Even before me, the learned counsel for the respondents would seriously impugn the settlement deed dated 30.12.1976 (Ex.A.9) executed by Sornathammal in favour of Natarajan Asari. Having challenged the title of the plaintiff, I fail to understand as to how, the respondents https://www.mhc.tn.gov.in/judis/ 6/14 S.A.No.1632 of 2001 can parallelly maintain the plea of having perfected title by adverse possession. In the decision reported in 2013 (2) MWN (Civil) 52 (D.Balaraman vs. Sadagopan and Others), it was held as follows:-
“15.It is a settled proposition of law that for seeking the relief of adverse possession, one should admit the title of other person and from which, he could have stated the date on which, he claims adverse possession to prescribe title and the claim should be certain. Similarly, the burden of proving adverse possession is upon the person, who claims title by way of adverse possession. ................. Without specific pleadings for claiming title by way of adverse possession and adducing sufficient supporting evidence, it could not be legally possible to establish title by way of adverse possession.
31.In the light of various decisions, it is crystal clear that for seeking title by way of adverse possession (1) there must be specific pleading, admitting the title of the other party (2) unless there is 'animus possidendi', claim of adverse possession will not arise. (3) such adverse possession required is for the statutory period or more (4) the burden lies on the person, who claims title by adverse possession, that burden cannot be shifted on the person, who actually owned the property.”
8.The relationship between parties will have to be noted. Velammal is none other than the daughter of Sornathammal. There is https://www.mhc.tn.gov.in/judis/ 7/14 S.A.No.1632 of 2001 no dispute that Velammal has been residing in the suit property with her family. The execution of settlement deed is by way of a registered document. The fact that the document is registered lends the presumption of validity to its execution. The Hon'ble Supreme Court in the decision reported in 2009 (6) SCC 160 (Abdul Rahim and Ors. vs. SK. Abdul Zabar and Ors.) held as follows:-
“Indisputably, the deed of gift is a registered one. It contains a clear and unambiguous declaration of total divestment of property. A registered document carries with it a presumption that it was validly executed. It is for the party questioning the genuineness of the transaction to show that in law the transaction was not valid.”
9.After obtaining the settlement deed from his mother, Natarajan Aasari had also effected mutation in the relevant records and Ex.A.1 is the evidence of property tax paid by Natarajan Asari in his name. The fourth defendant/Subbiah of course examined himself as D.W.1 but not a scrap of paper is marked as evidence on the side of the defendants. Except making a bare statement during the course of arguments as regards tracing of title, no evidence is placed before this Court to show that the property originally belonged to Bakkiyathammal, the grandmother of Velammal. On the other hand, a perusal of Ex.A.9 would indicate that the property in question was https://www.mhc.tn.gov.in/judis/ 8/14 S.A.No.1632 of 2001 jointly purchased by Sornathammal and her sister Parvathiammal. Parvathiammal is said to have died issueless. Therefore, Sornathammal being her sole surviving sister had became the absolute owner of the property. It was in that capacity, Sornathammal executed settlement deed in favour her son Natarajan Asari. If Velammal was aggrieved by the aforesaid act, she could have very well filed a suit asserting her title over the property. She had not done so. She has not filed any suit questioning the execution of the settlement deed by Sornathammal in favour of Natarajan Asari or execution of sale deed by Natarajan Asari in favour Kamalam Thangathai.
10.Of course, as rightly pointed out by the First Appellate Court, the moment the defendants denied the existence of landlord and tenant title, their possession become adverse to that of the plaintiff. But this development took place only in the year 1985. The suit was filed in the year 1996. The suit has been filed within 12 years. From the evidence on record, I can only come to the conclusion that only in the year 1985, the defendants' possession became adverse to the plaintiff but the suit for recovery of possession was filed within the limitation period. There is also yet another way of approaching the issue projected for adjudication. In such matters, the Court is not https://www.mhc.tn.gov.in/judis/ 9/14 S.A.No.1632 of 2001 really concerned as to who is the absolute owner of the property. The only question that the Court will have to consider is to see who has better claim of title over the suit property. The defendants have not adduced even a scrap of evidence. On the other hand, the plaintiff has produced quite a few title documents and also municipal records. Therefore, it is obvious that the plaintiff has a far better claim over the suit property compare to that of the defendants. The Court below has failed to give effect to Ex.A.9. P.W.2/Natarajan Asari is a donee and therefore, Ex.A.9 was rightly marked through him.
11.The first appellate court framed the question as to whether the plaintiff has absolute title over the property by virtue of Ex.A2. Since the parent document for Ex.A2 is Ex.A9, the plaintiff was bound to prove the same. The first appellate court noted that the plaintiff did not call one of the attestors for being examined as a witness before the court below to prove the genuineness of Ex.A9. There is also no evidence on the side of the plaintiff to the effect that none of the attestors and the scribe are alive. The first appellate court took the view that the trial court ignored the statutory mandate set out in Section 68 of the Indian Evidence Act. Section 68 of the Indian Evidence Act reads as follows :
https://www.mhc.tn.gov.in/judis/ 10/14 S.A.No.1632 of 2001 “Proof of execution of document required by law to be attested : If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.” It is true that the plaintiff failed to examine the attestors of the document. But, the need to examine the attestor will arise only if the defendant has specifically denied the execution of the document in question. If there is no specific denial and if the document in question is not a Will, then, the requirement of examining at least one of the attestors is dispensed with. That is the effect of the proviso to Section 68 of the Indian Evidence Act. The defence of the defendants was primarily two fold, a) Sornathammal did not have exclusive title over the property, b) they had perfected their title on adverse possession. It has already been noted that the plea of adverse of possession cannot be countenanced, because, the defendants have not specifically https://www.mhc.tn.gov.in/judis/ 11/14 S.A.No.1632 of 2001 admitted the title of the plaintiff. Therefore, the second substantial question of law is answered in favour of the appellants. Since there is no specific denial of the execution of Ex.A9 by Sornathammal, the first substantial question of law is also answered in favour of the appellants.
12.Therefore, the judgement and decree of the first appellate court is set aside and the judgment and decree of the trial Court is restored. The second appeal is allowed. No costs. Consequently, connected miscellaneous petitions are closed.
15.04.2021
Index : Yes / No
Internet : Yes/ No
ias
Note :In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
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To:
1.The Principal Sub Judge, Tirunelveli.
2.The I Additional District Munsif, Tirunelveli.
https://www.mhc.tn.gov.in/judis/ 12/14 S.A.No.1632 of 2001 Copy to :
The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis/ 13/14 S.A.No.1632 of 2001 G.R.SWAMINATHAN, J.
ias S.A.No.1632 of 2001 15.04.2021 https://www.mhc.tn.gov.in/judis/ 14/14