Madras High Court
Thangaraj vs Amuthavalli on 12 March, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
In the High Court of Judicature at Madras Dated: 12.03.2012 Coram: The Honourable Mr.Justice V.PERIYA KARUPPIAH Second Appeal No.310 of 2004 Thangaraj ... Appellant Versus 1. Amuthavalli 2. Krishnaveni 3. Chitra 4. Minor.Sudha 5. Minor.Rajeswari alias Eswari ... Respondents Second Appeal filed under Section 100 of C.P.C. against the Judgment and Decree dated 23.07.2003 made in A.S.No.96 of 2002 by the learned I Additional District Judge, Erode, in reversing the Judgment and Decree dated 28.02.2001 made in O.S.No.73 of 2000 by the learned Principal District Munsif, Erode. For Appellant .. Mr.A.S.Vijayaraghavan For Respondents .. Mr.N.Manokaran JUDGMENT
This appeal is directed against the judgment and decree passed by the first appellate Court made in A.S.No.96 of 2002 dated 23.07.2003 in reversing the judgment and decree passed by the trial Court in dismissing the suit filed in O.S.No.73 of 2000 dated 28.02.2001.
2. The appellant is the defendant and the respondents are the plaintiffs before the trial court.
3. The case of the plaintiff in brief before the trial court would be as follows:
The first plaintiff is the mother of the plaintiffs 2 to 5. The husband of the first plaintiff and the father of the plaintiffs 2 to 5, namely, Krishnan died intestate in an accident on 11.07.1992 leaving the plaintiffs as his legal heirs. The suit property is the absolute property of the plaintiffs. The Government assigned 2 cents of land in favour of Krishnan. Immediately, the said Krishnan constructed a house and resided therein. Till his death, he enjoyed the suit property as his absolute property. After his demise, the plaintiffs are enjoying the same. The mother of the defendant and the mother of the said Krishnan were sisters. The defendant and his mother were working in the Nilgiris. Twenty years back, the defendant came to Erode. He has no residential house. The defendant approached the husband of the first plaintiff and sought permission to provide a small place in two cents. On permission granted by the said Krishnan, the defendant is in permissive possession of a portion of the property. The portion occupied by the defendant is the subject matter of the suit. The defendant was under permissive possession of the suit property. Krishnan also granted permission to get electricity service connection. The said Krishnan also granted permissive possession with a condition that the defendant should vacate and surrender possession whenever he needs for his own use. After the death of Krishnan, the defendant continued the possession. But the defendant stealthily obtained service connection in his own name. As the plaintiffs 2 to 4 were grown up, on 01.08.1999, the plaintiffs revoked the permission granted to the defendant and demanded vacant possession. But the defendant did not prepare to surrender possession. On 14.09.1999, the plaintiffs caused a notice to the defendant, and to which the defendant sent a reply dated 25.09.1999, with false allegations. The defendant and his family members attempted to assault the plaintiffs and a complaint was also lodged. The suit property will fetch Rs.300/- per month. Hence, the suit.
4. The contentions of the defendant raised before the trial court in the written statement would be as follows:-
It is not correct that the plaintiffs are the absolute owners of the suit property, that the said Krishnan constructed house therein 20 years back, that this defendant sought permission for accommodation in the suit property, that this defendant stealthily obtained service connection. It is also false that this defendant is bound to surrender possession. Podusayammal is the grand mother of the defendant and Krishnan. The suit property was under the possession of Podusayammal. The mother of the defendant Thulasiammal and mother of the said Krishnan Sadachiammal are sisters and daughters of Podusayammal. After the death of Podusayammal, the said Krishnan and defendant were living in the suit property jointly. Being the elder member of the family, patta was issued in the name of Krishnan. In 1980, the defendant and Krishnan divided the properties into two halves. The defendant constructed house in one portion and obtained electricity and water connection. The other portion was retained by Krishnan. The house of Krishnan bears Door No.308 and the house of the defendant bears Door No.309. Any how, the defendant perfected his title by way of adverse possession. There is no cause of action for the suit. Hence, the suit is liable to be dismissed.
5. On pleadings, the trial Court had framed necessary issues and entered trial. After appraising the evidence adduced on either side, the trial Court had dismissed the suit filed by the plaintiff.
6. Aggrieved plaintiffs have preferred an appeal before the first appellate Court in A.S.No.96 of 2002. The first appellate Court, after hearing the arguments of both sides had come to the conclusion of reversing the judgment of the trial Court and thus, decreed the suit. Aggrieved upon the reversal judgment passed by the first appellate Court in A.S.No.96 of 2002, the defendant preferred the present appeal.
7. On admission of the second appeal, this Court had formulated the following substantial questions of law for being considered in this second appeal.
(i)Whether the lower appellate court was right in holding that the plea of title and adverse possession cannot be pleaded ?
(iii)Whether the lower appellate court was right in granting a decree in favour of the plaintiffs in the absence of proof of the alleged permissive possession ?
(v)Whether the lower appellate court was right in holding that the defendant has not proved adverse possession ?
(vii)Whether the lower appellate court was right in reversing the findings of the trial court without assigning reasons for doing so ?"
8. Mr.A.S.Vijayaraghavan, the learned counsel for the appellant/defendant would submit in his argument that without any reason, the first appellate Court had reversed the well balanced judgment of the trial Court. He would further submit that the plaintiffs have to prove their case without relying upon the weakness of the defendant, regarding the permissive possession had by the defendant from the said Krishnan. He would also submit in his argument that the contradictory evidence produced by the plaintiffs in respect of permitting the defendant in occupation in a built up house and also in a space measuring = cent to put up construction, would be very much detrimental to the case of the plaintiffs. He would further submit that the electricity connection stood in the name of the appellant and it was not considered by the first appellate Court for the proof of rightful possession of the property. He would further submit that the defendant was admittedly in a long and continuous possession of the suit property from the date of grant of the alleged permissible possession which commenced in the year 1980 onwards and therefore, the defendant would be entitled to prescriptive title through adverse possession since he was admittedly in possession against the alleged right of the plaintiffs for more than the statutory period since the permission was not proved. He would also submit that the first appellate Court was wrong in coming to the conclusion that defendant cannot plead absolute right in the suit property as well as the right through adverse possession. He would also submit that the appellant being the defendant, can raise inconsistent pleas and it has been ratified by various judgments of the Honourable Apex Court. He would also submit that the defendant who had pleaded absolute right by virtue of the partition had in between the defendant and the said Krishnan in the year 1980, was also entitled to the suit property through prescriptive title by adverse possession in the event, the defendant was not found to be as owner of the suit property. He would further submit that the right of the defendant over the suit property should have been considered by the first appellate Court, since the plaintiffs have not proved the case of permissive occupation in the suit property. In the said circumstances, he would submit that the question of law framed by this Court may be considered in favour of the appellant/defendant and the appeal be allowed.
9. Mr.N.Manokaran, the learned counsel for the respondents/plaintiffs would submit in his argument that the trial Court even though discussed about the evidence adduced on either side had erroneously come to a conclusion of dismissing the suit on the assumption that the plaintiffs have not proved the permissive possession. He would further submit in his argument that the plaintiffs proved the title to the suit property measuring two cents by virtue of Ex.A1 , Tarkasthu patta granted by the Government and the said patta would be amounting to a title deed, even though in other cases of revenue patta, the patta cannot be treated as a title deed. He would further submit in his argument that the very fact that the title has been proved through the said document and the construction was put by the said Krishnan and permission has been given by him to the defendant to reside there, would go to show that the defendant was put in possession on implied permission. He would further submit that even otherwise if the defendant had been permitted to put up construction in the suit property, such construction put up by the defendant would also amount to an implied permission to occupy the suit property and therefore, it cannot be said that the plea of permission was not proved by the plaintiffs. He would further submit that the property comprised in Tarkasthu patta which is not transferable, cannot be claimed in any other mode from the grantee namely Krishnan . He would further submit that the concept of joint owners of the property by the said Krishnan and the defendant in respect of the suit property could not be true since the Tarkasthu patta in Ex.A1 and other similar pattas were given to those persons who were found to be in possession. He would further submit that the case of the defendant that he was also a joint owner because his mother and the mother of Krishnan were sisters and the said property was originally in occupation of Podusaiammal, the grand mother of both parties, cannot be considered since the said property was not assigned in the name of Podusaiammal nor in the names of mothers of the defendant the said Krishnan. He would further submit that the evidence of the defendant that the patta was granted in the name of the said Krishnan being the eldest male member cannot also be accepted for the aforesaid simple reason. He would further submit that the defendant had set up an absolute right over the suit property by virtue of an oral partition said to have taken place in the year 1980 but it was not established by him so as to disprove the case of the plaintiffs. He would also submit that the defendant who had put forth the plea that he was the absolute owner of the suit property cannot claim adverse possession which is mutually a destructive plea. He would further submit that even though he had pleaded absolute right over the suit property as well as the prescriptive title through adverse possession, he did not elect to take one plea at the time of trial. He would also cite a judgment of Delhi High Court reported in AIR 1999 Delhi 281(Rama Kanta Jain v. M.S.Jain) in support of his argument that the person claiming himself to be the owner in possession of the property, cannot claim adverse possession against the very said vendor. He would also bring it to the notice of this Court a judgment of the Honourable Apex Court reported in 2000(3) SCC 708 (Roop Singh v. Ram Singh) for the principle that a person who is in permissive occupation cannot claim adverse possession against the real owner. He would also submit in his arguments that the claim of adverse possession by any person is against the equity and also against human right since it was a negative right and the Courts should not permit such plea ordinarily. In support of his argument, he would rely upon the judgment of the Honourable Apex court reported in 2011 (10) SCC 404 (State of Haryana v. Mukesh Kumar). He would further submit in his argument that the trial court had erred in dismissing the suit even though the plaintiffs had established their title to the suit property, erroneously, which was set right by the first Appellate Court and therefore, the judgment and decree passed by the first appellate Court may not be interfered. He would also submit that the question of law already formulated by this Court can be decided only in favour of dismissing the appeal since the evidence produced before the trial Court was properly considered and was decided by the first appellate Court. Therefore, he would request the Court to dismiss the second appeal.
10. I have given anxious consideration to the arguments advanced on either side.
11. The plaintiffs have filed a suit before the trial Court against the defendant seeking for a declaration that they are entitled to the suit property and for recovery of possession from the defendant and also for the grant of damages for use and occupation in respect of the said property. The suit property was described in the plaint measuring 15 feet east-west on both sides and 15.6 feet north-south on both sides bearing Door No.309 in Krishnampalayam Colony of Erode Municipal Town. The said property was admittedly put up in T.S.No.161/1. The property in T.S.No.161/1 namely Site No.89 measuring 45 feet east-west on both sides and 21 feet north- south on both sides was assigned to one Krishnan, son of Muthusamy in the year 1969. The said assignment of land was not disputed by the defendant. The said Krishnan was the husband of the first plaintiff and father of the plaintiffs 2 to 5. The said Krishnan's mother Sadachiammal and the defendant's mother Thulasiammal were sisters and their mother was one Podusaiammal. According to the plaintiff, the said land assigned under Ex.A1 was measuring an extent of 2 cents which was found to be in possession of the said Krishnan and therefore, it was assigned to him by the Government. In the said extent of 2 cents , = cent was given to the defendant by the said Krishnan on granting permission to reside in a house already put up by him. The said house and the vacant site are shown as the suit property herein.
12. The construction was said to have been done by the said Krishnan that he had permitted the defendant to reside there since he and his mother Thulasiammal returned from Nilgiris leaving their work there and they had no place to reside. The said case of the plaintiff was denied by the defendant but he set up a case that the entire property assigned in Ex.A1, was belonging to Podusaiammal and later to her daughters Thualaisammal and Sadachiammal and the said Krishnan and the defendant being the sons of both sisters were in possession of the property described in Ex.A1 and the said Krishnan was considered to be the elder and therefore, he was assigned with patta for and on behalf of the defendant also. No doubt, it is true that the assignment of patta (Tarkasthu patta) in Ex.A1 was granted to the said Krishnan alone. Therefore, the presumption would be that he was the owner of the property assigned to him under Ex.A1, but subject to the conditions mentioned therein. Condition Nos. 9 and 10 in Ex.A1 would be that the said property cannot be encumbered with any other person and in such violation, the property is likely to be taken by the Government. When there is such a condition, how the property would have been granted for both Krishnan and the defendant for the said Krishnan as the eldest male member holding the property on behalf of the defendant also. It is an admitted case that Krishnan was also having a brother namely Natarajan, born to Sadachiammal. In such circumstances, how Krishnan and the defendant alone were considered to be the joint owners leaving the said Natarajan who is also one of the sons of Sadachiammal. Therefore, it is very clear that the assignment of the property comprised in Ex.A1 was intended to be given only to the said Krishnan so as to make him as the owner of the said property. The finding reached by the first appellate Court that there was no concept of joint family in between the said Krishnan and the defendant was also yet another point to show that there could not be any right accrued to the defendant merely, because he was the cousin of the said Krishnan. Therefore, the property was only belonging to Krishnan by virtue of Ex.A1 and to none else.
13. It is also an admitted case that there are two houses in the suit property bearing Door Nos.308 and 309. Admittedly, the defendant is residing at Door No.309. The defendant had also obtained electricity connection in his name and was continuously in possession of the said property. According to the defendant, he was having right in the said property and therefore, he continued to be in possession of the said property. Per contra, the specific case of the plaintiff was that permission was granted by Krishnan to the defendant for residing in the suit property. There is no dispute that the defendant was continuously residing in the said property bearing Door No.309. The said Krishnan died after some time leaving behind the plaintiffs as his legal heirs to inherit the property given under Ex.A1. Even after the death of Krishnan, the defendant continued his possession in the suit property. It is also clear that the suit property is forming part of the property comprised in Ex.A1 patta. A notice was issued by the plaintiffs in the year 1999 revoking the permission granted by the said Krishnan in favour of the defendant produced in Ex.A3. The said notice was replied by the defendant which is produced as Ex.A5. In Ex.A5, the defendant categorically denied the grant of permission and he had raised the plea of absolute right over the said property. He did not raise the plea of adverse possession by entering into the property without any legal right. If really, the defendant took possession of the suit property, adverse to the interest of the said Krishnan, he would not have been permitted in the suit property either after the construction of the property by Krishnan, or the defendant was permitted to construct a house in the vacant site. It could be only through permission granted by the said Krishnan, the defendant would obtain possession. Even otherwise, such permission could not have been spoken to since the said Krishnan was dead already and it can be inferred from the circumstances. The defendant was permitted to continue his residence by getting electricity connection and the said electricity connection was obtained in his name, despite the same was objected by Krishnan and the defendant had promised to surrender the electricity connection also at the time of the request to vacate the premises, likely to be demanded by Krishnan . Unless there is an implied permission granted by Krishnan to the defendant, he would not have continued to reside there in the house put up at the property of the said Krishnan assigned in Ex.A1. Even it is construed that the defendant alone had put up construction in the property assigned to Krishnan, it ought to have been through an implied permission given to the defendant since it was not a case of transfer of the said property from the said Krishnan. If such transfer has been pleaded, it would have been against clauses 9 and 10 of the assignment. Therefore, the finding of the trial court that there was no proof for permissive occupation by the defendant was rightly reversed by the first appellate Court.
14. Nextly, when we approach the case on the basis of the pleadings raised by the defendant claiming absolute right in the suit property as well as adverse possession towards long continuous possession, it has been argued by the learned counsel for the respondents/plaintiffs that it is clear from the judgment of the Honourable Apex Court reported in 2011 (10) SCC 404 (State of Haryana v. Mukesh Kumar) that the plea of adverse possession is a negative right which is also against the human right. The relevant passage in the said judgment would run thus :
"31. A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession. Though we got this law of adverse possession from the British, it is important to note that these days the English courts are taking a very negative view towards the law of adverse possession. The English law was amended and changed substantially to reflect these changes, particularly in light of the view that property is a human right adopted by the European Commission.
"32. This Court in Revamma observed that to understand the true nature of adverse possession, Fairweather v. St.Marylebone Property Co. Ltd. Can be considered where the House of Lords referring to Taylor v. Twinberrow termed adverse possession as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation of law. As against the rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property.
33. The right to property is now considered to be not only a constitutional or statutory right but also a human right. Human rights have already been considered in the realm of individual rights such as the right to health, right to livelihood, right to shelter and employment, etc. But now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefor,e even the claim of adverse possession has to be read in that context."
15. In yet another judgment of the Honourable Apex Court reported in 2000 (3) SCC 708 (Roop Singh Vs. Ram Singh), it is held as follows:
"7. ...... If the defendant got the possession of suit land as a lessee or under a batai agreement then from the permissive possession it is for him to establish by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner. Mere possession for a long time does not result in converting permissive possession into adverse possession.
8......
9. ....... Once it is admitted by implication that the plaintiff came into possession of land lawfully under the agreement and continued to remain in possession till the date of the suit, the plea of adverse possession would not be available to the defendant unless it has been asserted and pointed out hostile animus of retaining possession as an owner after getting in possession of the land."
16. In view of the judgments of the Honourable Apex Court referred to above, the plea of the defendant that he was in adverse possession against the true owners of the property would be a negative right claimed by the defendant against the true owner. It has been categorically found that there was a permissive occupation by the defendant in the suit property. Unless such permissive occupation was shown to have been terminated by a distinctive hostile attitude, the adverse possession pleaded by the defendant, cannot be considered. It is curious to note that the defendant himself has sought to have claimed a right over the suit property of his own by getting it in a oral partition in the year 1980. In such circumstances, there could not be any hostile attitude for the defendant to claim adverse possession. Admittedly, the permission granted to the defendant was revoked through Ex.A3 notice in the year 1999 and if at all the possession of the defendant would be adverse to the plaintiff only from said date of Ex.A3. However, the suit has been filed by the plaintiffs on 20.1.2000 within one year from the date of revocation of the permission. Therefore, the defendant cannot claim adverse possession against the true owner in respect of the suit property. It is also brought to the notice of the Court in respect of the judgment of the Delhi High Court reported in AIR 1999 Delhi 281 (Rama Kanta Jain v. M.S.Jain) for the principle that a person cannot claim to be in possession as owners as well as on adverse possession. The relevant passage in the said judgment would be as follows:
"17. The defendants claim themselves to be the owners in possession over the disputed property on the ground of their having purchased the same from the plaintiff for a consideration of Rs.15,500/- (vide their reply notice dated Oct. 12,1984, Ex.P22 to the notice from the plaintiff). How the defendants can now be allowed to lead to the contrary that they have become owners of the disputed property by adverse possession. It has already been observed above that a person who traces his possession to a lawful title can never become an owner by adverse possession. How a person, who claims himself to be the true owner of a particular property, can claim to be the owner of the same by adverse possession. Admittedly, "adverse possession" means a hostile assertion which is expressly and impliedly in denial of the title of the true owner. Thus the defendants cannot be permitted to blow hot and cold in the same breath.
18. There is another aspect of the matter. The mere fact that te defendants have come forward with a plea of adverse possession, means that they admit the plaintiff to be the true owner. For a plea of ownership on the basis of adverse possession, the first and foremost condition, is that the property must belong to someone else other than the person pleading his title on the basis of adverse possession. In the instant case, the defendants have put forward defences which are irreconcilable and mutually destructive and inconsistent with one another."
17. Therefore, it is clear that the long possession had by the defendant from the date of his occupation as a permissive occupier in the suit property with electricity connection in his name, cannot be deemed as a hostile possession against the true owners namely, Krishnan and after him, the plaintiffs. Therefore, the question of law formulated at the time of admitting the second appeal cannot be decided in favour of the appellant but they are decided in favour of the respondents/plaintiffs.
18. The lower appellate Court had candidly come to a correct conclusion and thereby corrected the judgment of the trial Court, which judgment of the trial Court was based on wrong perception of evidence and regarding the facts of the case. Therefore, I have no hesitation to confirm the judgment and decree passed by the first appellate Court in reversing the judgment of the trial Court.
19. In fine, the judgment and decree passed by the first appellate Court are not liable to be interfered and therefore, the second appeal deserves dismissal. Accordingly, the second appeal is dismissed, confirming the judgment and decree passed by the first appellate Court. No order as to costs. Consequently, C.M.P.No.1934 of 2004 is closed. Time for vacating the premises is six months.
12.03.2012 Index:Yes/No Internet:Yes/No vsi To
1. I Additional District Judge, Erode
2. The Principal District Munsif, Erode.
V.PERIYA KARUPPIAH,J.
vsi Pre-delivery judgment made in Second Appeal No.310 of 2004 12.03.2012