Madras High Court
Chinnappa Pandithar (Died) vs Masilamani Udayar (Died) on 15 October, 2009
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15-10-2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Second Appeal No.204 of 1995 Chinnappa Pandithar (died) 2.Janaki 3.C.Devarajan 4.C.Murugesan 5.C.Ekambaram (Appellants 2 to 5 are brought on record as legal representatives of the deceased sole appellant vide order of Court, dated 26.12.2002, made in C.M.P.No.17039 to 17041 of 2006 .. Appellants. Versus 1.Masilamani Udayar (died) 2.Jagannatha Udayar 3.Rathinam 4.Sarangapani 5.Tamilselvi 6.Meera (RR3 to R6 are brought on record as Legal representatives of the deceased 1st respondent vide Order of Court, dated 19.2.2007, made in C.M.P.No.1052 of 2006. .. Respondents. PRAYER: Appeal against the judgment and decree, dated 12.7.1994 passed in A.S.No.72 of 1992, on the file of the Subordinate Judge, Arni, confirming the judgment and decree, dated 2.9.1992, passed in O.S.No.321 of 1985, on the file of the Principal District Munsif, Arni. For Appellants : Mr.M.Venkatachalapathy, Senior Counsel for Mr.P.Srinivas For Respondents : Ms.Mythili Suresh for M/s.Sarvabhauman Associates. J U D G E M E N T
This second appeal has been filed against the judgment and decree, dated 12.7.1994, made in A.S.No.72 of 1992, on the file of the Sub Court, Arni, confirming the judgment and decree, dated 2.9.1992, made in O.S.No.321 of 1985, on the file of the Principal District Munsif Court, Arni.
2. The plaintiff in the suit in O.S.No.321 of 1985, is the appellant in the present second appeal. The suit, in O.S.No.321 of 1985, had been filed by the plaintiff for a declaration and for possession, in respect of the suit property. The plaintiff had stated that one Narayanasamy had filed a suit, in O.S.No.143 of 1971, against the first defendant, on the file of the District Munsif Court, Arni, for declaration of his title and for recovery of possession, in respect of the suit property. A decree had been passed in the said suit, on 9.6.1971, based on the compromise entered into between the parties. The decree passed by the District Munsif Court, Arni, was in favour of the said Narayanasamy, in respect of the suit property. Thereafter, Narayanasamy has been in possession of the said property. However, with regard to the other properties the suit had been dismissed. The suit property, with an extent of 0.50 cents, is the property found in the second item of the `A' schedule of the suit. Since 0.05 cents of the property consisted of a Well and its adjoining mound, only an extent of 0.45 cents had been declared in favour of Narayanasamy. Further, 1/3rd of the Well and the mound had also been declared in his favour. Thus, Narayanasamy had been in possession and enjoyment of the suit property, since then.
3. It has been further stated that the said Narayansamy had sold the suit property to the plaintiff, by way of a sale deed, dated 13.2.1985. The plaintiff has been in possession of the suit property since the date of the said sale. He has also been paying the property tax, in respect of the suit property. The first defendant, namely, Masilamani Udayar, had refuted the claims of the plaintiff, in his written statement. The second defendant, namely, Jaganatha Udayar, had been made a party to the suit, as a defendant, as he is the co-owner. The first defendant, who is in the adjacent property has been interfering with the plaintiff's possession and enjoyment of the suit property, without having any right to do so. In view of the fact that the plaintiff is an aged person, the first defendant has been compelling the plaintiff to sell the suit property to him. Further, the first defendant had started cultivating crops in the suit property, after having encroached upon the said property. In such circumstances, the plaintiff had preferred the suit, in O.S.No.321 of 1985, before the Principal District Munsif Court, Arni,
4. In the written statement filed on behalf of the first defendant it has been stated that the suit is not maintainable, both in law and on facts. The suit property, originally, belonged to one Subbaraya Udayar, the grand father of the first defendant. Thereafter, it was in the enjoyment of his sons Rathina Udayar, Kothanda Udayar and Jeyarama Udayar and later, it had belonged to the first defendant and his younger brother Jaganathan. The suit is not maintainable in view of the fact that the brother of the first defendant, who is a co-owner of the property, had not been made a party to the suit. The first defendant had obtained the shares of Kothandaraman and Jayaraman, after having settled their loans. The settlement said to have been made, on 12.6.1969, in favour of Minor Narayanasamy, by Dhanabakiam, cannot be said to be valid. Ethiraj the father of Narayanasamy, had instituted a suit, in M.C.No.119 of 1970 and he had lost the same. After a lapse of 16 years the plaintiff cannot claim any right in respect of the suit property, based on the alleged sale of the said property, in favour of the plaintiff by the said Narayanasamy.
5. In the additional written statement filed in the suit in O.S.No.321 of 1985, it has been stated that it is incorrect to claim, as stated in the plaint, that there was a settlement in the suit in O.S.No.143 of 1971. In fact, the said suit had been withdrawn, for settling the matter amicably, by way of mediation. Thereafter, Ethiraj Udayar had given a sum of Rs.300/-, as legal expenses, to the first defendant, in the presence of the mediators and he had stated that he would not claim any right in the property. Since then the first defendant has been in enjoyment of the property for over 40 years and he has been paying the kist for the property. Thus, the first defendant is entitled to his rights in the suit property by way of adverse possession.
6. It has also been stated that the compromise decree, in O.S.No.143 of 1971, filed by Ethiraj Udayar, as a Guardian, does not relate to the issues in the suit. Therefore, the compromise decree is not valid in law. Hence, there is no necessity to set it aside. Further, the settlement decree is hit by the doctrine of laches, in view of the fact that no final decree had been passed, thereafter. The property had not been divided by metes and bounds and the possession of the property had not been taken. The compromise decree said to have been made, in O.S.No.143 of 1971, had not been implemented, till date. There was no handing over of possession in view of the alleged compromise decree obtained by way of settlement. The description of the properties in the compromise decree, in O.S.No.143 of 1971, is found to be different. Since the compromise decree is vague and ambiguous it has to be declared as invalid. The suit properties have not been partitioned, till date and they have been in the possession and enjoyment of the first defendant. The suit properties have been in the possession and enjoyment of the first defendant for the past 50 years and and therefore, he has perfected title over the suit properties, by way of adverse possession. The suit filed by the plaintiff, fraudulently, without having possession of the suit properties, is liable to be dismissed, with costs.
7. In the reply statement filed by the plaintiff it has been stated that the defendant has full knowledge of the proceedings and the judgment and decree, in O.S.No.143 of 1971. The suit property had been handed over to the plaintiff immediately, thereafter. Therefore, the question of passing of a final decree or handing over of the possession of the property, does not arise. It is incorrect to state that the suit is hit by the doctrine of laches. The documents filed by the plaintiff would show that the plaintiff is in possession of the suit property. It is incorrect to state that the defendant is in possession of the suit property. The averments made in the additional written statement are totally false. Therefore, for the reasons stated above, the suit is to be decreed, with costs.
8. In view of the averments made in the plaint, the written statement, the additional written statement and the reply statement filed in the suit, the trial Court had framed the following issues for consideration:
1) Whether the settlement, dated 12.6.1969, made in respect of the suit property is valid?
2) Whether the plaintiff had the right to purchase the said property?
3) Whether the suit is affected by the non-joinder of necessary parties as defendants?
4) Whether the plaintiff would be entitled to the reliefs sought for by him in spite of the 45 years of possession of the suit property by the defendant?
5) What relief the plaintiff is entitled to?
9. The additional issues framed by the trial Court, on 16.7.1991, are as follows:
1) Whether the compromise decree mentioned in the suit is correct? Whether it would bind the defendant?
2) Whether the defendant is entitled to any right in the suit property by way of adverse possession?
3) Whether the defendant is entitled to any right in the suit property in law?
10. The additional issues framed by the trial Court, on 24.2.1992, are as follows:
1) Whether the compromise decree in O.S.No.143 of 1971 is valid?
2) Whether there was any relief of possession granted by way of the compromise decree?
3) Whether the compromise decree is hit by the doctrine of laches?
4) Whether the compromise decree has been given effect to?
5) Whether the entire suit property has been in the possession and enjoyment of the defendant for a long time creating a right by adverse possession?
6) Whether the defendant is entitled to any right in the suit properties in accordance with law?
7) Whether the sale deed in favour of the plaintiff in the suit would bind the defendant?
8) Whether the defendant in the suit is entitled to the costs in the suit?
11. The trial Court had found that the main contention of the plaintiff is that he had purchased the suit property from Narayanasamy, on 13.2.1985. Narayanasamy had got the property by way of Ex.B-1. Thereafter, Narayanasamy had instituted a suit, in O.S.No.143 of 1971, against the first defendant. A compromise decree had been passed in the said suit, whereby, the suit properties had to be given to Narayanasamy. Since then Narayanasamy has been in enjoyment of the said properties and he had sold the same to the plaintiff. Thereafter, the plaintiff has been in enjoyment of the said property. Since the defendant had encroached upon the suit property and as he has been in occupation of the said property, illegally, the plaintiff had preferred the suit, praying for a declaration and for possession.
12. The trial Court had also found that the defendants had claimed that the suit properties were their ancestral properties. The patta for the suit properties had been in the name of their father. After the life time of their father, the defendant and his brother had been in enjoyment of the property. The settlement in favour of Narayanasamy is not valid. The defendant had no knowledge of the compromise decree made in O.S.No.143 of 1971, till the filing of the present suit. The defendant has been in enjoyment of the suit property for more than forty years, without any hindrance. The chitta and adangal, in respect of the suit properties, are with the defendant. Even if the vendor of the plaintiff had got the properties, by way of a compromise decree, he had not taken possession of the same. Since the defendant has been in enjoyment of the properties and has been paying the taxes, he is entitled to the rights in the suit properties, by way of adverse possession. Therefore, the plaintiff has no right in the suit property, as claimed by him.
13. Similarly, three witnesses had been examined on behalf of the defendants. The plaintiff had marked Exs.A-1 to A-3 to substantiate his claim that the suit properties belonged to him. Ex.A-1, dated 13.2.1985, is the original sale deed by which the plaintiff had purchased the suit properties from Narayanasamy. A-2, dated 12.6.1969, is the settlement deed written by Dhanabakiammal in favour of Narayanasamy, according to which 0.50 cents, in Survey No.185/27, has been settled in favour of Narayanasamy. According to the compromise decree, made in O.S.No.143 of 1971, 1/3rd share in 0.42 cents, in an extent of 1.36 acres, in Survey No.185/27 and the Well therein, would belong to Narayanasamy. A joint UDR patta had also been issued in the name of Masilamany, Jeganathan and Chinnapa Pandithar, in respect of Survey No.185/27. The claim of the defendant, in respect of the suit properties, is based on Ex.B-1. Patta No.144 has been issued, in respect of the suit properties and certain other properties. However, with regard to the question as to how the property had been obtained, it has been stated in the patta book that the said property shown therein were ancestral in nature. Eventhough the defendants had filed Ex.B-1 to claim that the suit properties had belonged to them, as they were ancestral in nature, it was found that the defendants had also signed in the compromise decree. Even though the suit properties might have belonged to the defendants it had been assigned to Narayanasamy, in accordance with the compromise decree, as it had been contended on behalf of the plaintiff. Eventhough the defendant had claimed that he did not have knowledge of the compromise decree, from the fact that he had signed in the said decree it could be inferred that the said decree is valid and that the settlement made by the plaintiff's vendor Narayanasamy, is also valid.
14. The trial Court had also found that the defendant had further claimed, in his written statement that the compromise decree is invalid and even otherwise the vendor of the plaintiff had not taken possession of the suit properties, pursuant to the compromise decree. Further, as the compromise decree has not been executed it has become ineffective due to the law of limitation. In such circumstances, the defendant had got the title in the suit properties, by way of adverse possession. On the other hand the plaintiff had claimed that he had taken possession of the properties, pursuant to the compromise decree, as the properties were in the enjoyment of Narayanasamy and thereafter, it had been passed on to the plaintiff, in accordance with Ex.A-1. As such, the defendant cannot have any claim, in respect of the suit properties.
15. The trial Court had also found that according to the compromise decree the vendor of the plaintiff, namely, Narayanasamy, should take possession of the suit properties. Even though the plaintiff had claimed that he had taken possession of the suit properties, pursuant to the compromise decree, there is no document filed to substantiate the said claim of the plaintiff. It was further found that no action had been taken to execute the compromise decree to take delivery of the suit properties. However, it has been seen that the defendant had been in possession of the suit properties, prior to the compromise decree, as well as subsequent to the said decree. As proof of the said facts the defendant had marked Exs.B-1 to B-18. Ex.B-2 is the patta book in the name of Masilamani and Jeganathan. Ex.B-4 is the chitta copy given in the name of the defendant. Patta No.144 has been issued in the name of the defendants, for faslis 1386 to 1394, to show that the suit properties had been in the enjoyment of the defendants. Copies of the adangal has been marked as Exs.B-5 to B-17. The adangal accounts for Faslis 1387 to 1399 has been found in the name of the defendants. Exs.B-18 to B-31 are the tax receipts for the taxes paid by the defendants in respect of the suit properties. Even though the plaintiff had claimed that he has been in enjoyment of the suit properties he has not filed copies of adangal accounts, in support of his claims. Ex.A-5, filed by the plaintiff, is a receipt for the tax paid by Chinnapa Pandithar relating to the year, 1985, and thereafter. The plaintiff had also filed the joint patta to show that the suit properties are in his name. D.W.3, the village Karnam, who has been examined on behalf of the defendants, while he was working as the Karnam of the concerned Village, had stated that the patta had been issued in the name of the plaintiff, without the knowledge of the defendants, based on the sale of the suit properties said to have been made in favour of the plaintiff. Even though Narayanasamy had got the suit property, in view of the compromise decree made in the year, 1971, the plaintiff had not taken the necessary steps to transfer the patta in his name, in respect of the suit properties. There is no entry in the adangal accounts, with regard to the cultivation of crops in the said properties. However, it was found that the plaintiff had included the suit properties for the purpose of obtaining a joint patta, only after the purchase of the said properties in the year, 1985. Therefore, Ex.A-4, cannot be taken as sufficient proof to show that the plaintiff is in possession of the suit properties. Even though the plaintiff had filed the tax receipts, marked as Exs.A-5 to A-8, it was noted by the trial Court that they were relating to the period subsequent to the filing of the suit and therefore, they cannot be shown as evidence to prove the claim of the plaintiff that he is in possession of the suit properties. D.W.1 examined on behalf of the defendants had stated that there is no proof to show that the plaintiff is in possession of the suit properties. Further, from the evidence of D.W.3 it was found that the first defendant had taken a loan, in respect of the suit properties and the patta and the chitta are in the name of the first defendant. D.W.3 had further deposed that the adangal relating to the suit properties are in the name of the defendant. D.W.2 had also stated in his evidence that the defendant has been in possession of the suit properties, for a long period and they have been paying the taxes, in respect of the suit properties. He had also stated that the plaintiff had never been in possession of the suit properties.
16. Based on the oral, as well as the documentary evidence available on record, the trial Court had found that even though the plaintiff had claimed that Narayanasamy had sold the suit properties to him pursuant to the compromise decree made in the year, 1971, the defendants have been in possession of the suit properties for more than thirty years. The trial Court had come to the conclusion that the plaintiff had not proved that he had taken possession of the suit properties, in spite of his claim that he had got the suit properties from Narayanasamy, based on the compromise decree, made in O.S.No.143 of 1971. No documentary evidence had been shown by the plaintiff that he had taken possession of the suit properties. Further, there was no proof shown by the plaintiff that the plaintiffs vendor, namely, Narayanasamy, had been in enjoyment of the suit properties, before they had been sold to the plaintiffs. Even if the compromise decree, made in the year, 1971, could be taken to be true, nothing has been shown on behalf of the plaintiff that his vendor, namely, Narayanasamy had taken further steps to implement the said decree by way of execution proceedings. In fact, the said Narayanasamy, who is said to be the vendor of the suit properties ought to have filed the execution proceedings in the year, 1983, within a period of twelve years from the date of the compromise decree. However, the present suit had been filed only in the year, 1985. Thus, it is clear that the compromise decree made in O.S.No.143 of 1971, had become time barred.
17. The trial Court had further noted that a perusal of Exs.B-1 to B-31 would show that the defendants have been in possession of the suit properties for a long time. The chitta, the adangal and the tax receipts would also show that the defendants have been in possession and enjoyment of the suit properties for over 30 years. Since the defendants have been in continuous possession and enjoyment of the suit properties for over a period of twelve years, they have perfected their title over the suit properties, by way of adverse possession. Further, the plaintiff had filed the suit, in O.S.No.321 of 1985, belatedly. The Trial Court had found that he is not entitled to the reliefs sought for in the suit. For the said reasons the trial Court had dismissed the suit, by its judgment and decree, dated 2.9.1992.
18. Aggrieved by the judgment and decree of the trial Court, dated 2.9.1992, the plaintiff in the suit in O.S.No.321 of 1985, had filed a first appeal before the Subordinate Court, Arni, in A.S.No.72 of 1992. The first Appellate Court had framed the following points for consideration:
"1) Whether the claim of the defendants is to be accepted?
2) What is the relief the appellant is entitled to?"
19. The first Appellate Court had found that the claim of the appellant that the suit properties belonged to him is primarily based on his claim that the said properties had been sold to him by the said Narayanasamy, as the vendor of the properties, having obtained the said properties, pursuant to the compromise decree, made in the year, 1971, in O.S.No.143 of 1971. However, the plaintiff had not been in a position to show that his vendor, namely, Narayanasamy, had taken the necessary steps to implement the compromise decree, made in O.S.No.143 of 1971, either by requesting for the appointment of an Advocate Commissioner, for dividing the properties by metes and bounds, or to take possession of the said properties after the passing of a final decree. The first Appellate Court had also found that the suit filed by the plaintiff is hit by the law of limitation, since the compromise decree made in the year, 1971, had not been implemented, by way of execution proceedings, within a period of twelve years, thereafter. As such, necessary steps ought to have been taken for the implementation of the compromise decree, on or before the year, 1983. However, the suit, in O.S.No.321 of 1985, had been filed only in the year, 1985, belatedly.
20. The first Appellate Court had also come to the conclusion that the appellant had not shown sufficient proof to substantiate his claim that he has been in possession of the suit properties, from the date of its purchase. On the other hand it was found that the respondents were in continuous possession of the suit properties, for a long period of time. The possession of the defendants had been proved, both by the documentary evidence adduced by the respondent witnesses and the documents filed on behalf of the respondents. Therefore, the first Appellate court had concluded that the respondents had obtained rights in the suit properties, by way of adverse possession, as they had been in occupation and enjoyment of the suit properties, for over twelve years, which is the prescribed period for claiming rights by adverse possession. Accordingly, the first Appellate Court had confirmed the judgment and decree of the trial Court, by its judgment and decree, dated 12.7.1994, made in A.S.No.72 of 1992.
21. Aggrieved by the concurrent findings of the Courts below, the plaintiff in the suit, who was the appellant in the first appeal, had filed the present second appeal, before this Court. This court had admitted the second appeal on the following substantial questions of law:
"1. Whether in law the defendant, who is a co-owner could claim adverse possession in respect of the suit property against the plaintiff's vendor during his minority under Article 65 of the Limitation Act and that too without any adverse act or notice in writing?
2. Whether the Courts below erred in law and misdirected themselves in casting the burden on the plaintiff to prove his and his vendor's possession of the suit property within twelve years against the a co-owner and when in law it is for the defendant to establish his plea of adverse possession and plea of ouster?
3. Whether the courts below erred in law in holding that the defendant is entitled to the suit property by adverse possession when admittedly the defendant is co-owner along with the plaintiff's vendor and when he failed to establish his open, continuous and uninterrupted hostile possession of the suit property for more than the statutory period after ouster?
4. Whether the present suit claim is barred by limitation?"
22. The learned counsel appearing on behalf of the plaintiff/appellant had submitted that the Courts below had erred in refusing to grant the reliefs, as prayed for by the plaintiff/appellant, based on the evidence adduced on his behalf and having found that the plaintiff's/appellant's vendor had acquired title to the suit properties, under Ex.A-1 sale deed and Ex.A-2 settlement deed. The learned counsel had also submitted that the Courts below had failed to properly appreciate the evidence available on record, in favour of the plaintiff/appellant. Even though the appellant had filed a patta, marked as A-4 and the kist receipts, marked as Ex.A-5 to A-6, to show that the plaintiff had been in possession of the suit properties, such evidence adduced on behalf of the plaintiffs had not been considered by the Courts below. Once it was found that Ex.A-2 settlement deed was valid and the compromise decree, made in O.S.No.143 of 1971, was true, the Courts below ought to have granted the reliefs, as prayed for by the plaintiff/appellant. The Courts below ought to have considered the U.D.R patta granted to the plaintiff/appellant, on the basis of his possession of the suit properties.
23. It was also submitted that the Courts below had erred in coming to the conclusion, without sufficient evidence having been shown on behalf of the defendants that they have perfected the title, in respect of the suit properties, by way of adverse possession. Further, the Courts below had erred in coming to the conclusion that the compromise decree, made in O.S.No.143 of 1971, was barred by limitation, as no execution petition was filed to execute the compromise decree. Since the suit property had been handed over to the plaintiff's vendor, immediately, after the compromise decree had been made, there was no necessity for the filing of an execution petition. Further, the Courts below had erred in coming to the conclusion that necessary steps, to recover the suit property, ought to have been taken, within three years after Narayanasamy had attained majority. Such a view is erroneous, in view of Section 6 of the Limitation Act, as the period of limitation prescribed, under Article 65 of the said Act, starts only after attaining of the majority and cessation of the disability, in respect of the person concerned.
24. The learned counsel appearing on behalf of the respondents had submitted that the Courts below had come to the right conclusion, based on the evidence adduced on behalf of the respondents. The suit filed by the plaintiff/appellant is barred by limitation, as held by the Courts below. The plaintiff's vendor, namely, Narayansamy, ought to have taken the necessary steps to implement the compromise decree, made in O.S.No.143 of 1971, within a period of twelve years from the date of the decree or within a period of 30 years after he had attained majority, since no such action had been initiated by Narayansamy, the vendor of the plaintiff, the suit filed by the plaintiff, praying for declaration and for recovery of possession, is barred by limitation and therefore, it cannot be sustained in the eye of law. The period prescribed, under Article 65 of the Limitation Act, 1963, would apply only in respect of the person suffering a disability. However, it would not come to the rescue of the plaintiff, who claims to have purchased the suit properties, from Narayanasamy, the vendor of the suit properties who was a minor at the time when the compromise decree was made, in O.S.No.143 of 1971. Since sufficient evidence have been shown on behalf of the respondents to prove their long and continuous possession and enjoyment of the suit properties, they have perfected title, in respect of the suit properties, by way of adverse possession. In such circumstances, the Courts below had rightly come to their conclusions, to dismiss the suit filed by the plaintiff/appellant, in O.S.No.321 of 1985.
25. In view of the submissions made by the learned counsels appearing for appellants, as well as the respondents and on a perusal of the records available, this Court is of the considered view that the appellants have not shown sufficient cause or reason to interfere with the findings of the Courts below. Both the trial Court, as well as the Appellate Court had come to the right conclusions based on the evidence adduced on behalf of the respondents. The plaintiff in the suit in O.S.No.321 of 1985, who is the appellant in the present second appeal, had not been in a position to prove that he had been in possession of the suit properties from the date of purchase of the suit properties from Narayanasamy. Even though the plaintiff/appellant had claimed that Narayanasamy had got the suit properties, pursuant to the compromise decree, made in the year, 1971, in O.S.No.143 of 1971, there is nothing to show that Narayanasamy had taken possession of the suit properties, before he had sold the same to the plaintiff. Further, it has not been shown by the plaintiff/appellant that Narayanasamy had taken necessary steps to implement the decree, made in O.S.No.143 of 1971. Even though Narayanasamy was a minor at the time of passing of the decree, in O.S.No.143 of 1971, he had not taken necessary steps to perfect his title in the suit properties, within the period of limitation prescribed by the provisions of the Limitation Act, 1963. It is only the plaintiff/appellant, who is said to be the purchaser of the suit properties from his vendor, Narayanasamy had filed the suit in O.S.No.321 of 1985 in the year, 1985, belatedly. Further, the Courts below had found that the respondents had perfected their title in the suit properties, by way of adverse possession, as it has been seen from the evidence produced on their behalf to show that they have been in long and continuous possession and enjoyment of the suit properties, beyond the prescribed period. In such circumstances, the second appeal is liable to be dismissed and accordingly, it is dismissed, confirming the judgment and decree of the Courts below. No costs.
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