Madras High Court
The Chairman And Managing Trustee vs Tmt.C.V.Rajeswari Ammal on 22 June, 2012
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.06.2012 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR C.S.No.22 of 2004 The Chairman and Managing Trustee, Krishnaswamy Educational Trust, Repd. By M.A.K.Balakrishnan, No.8, IV Cross Street, Sterling Road, Nungambakkam, Chennai-600 034. ...Plaintiff Vs. 1.Tmt.C.V.Rajeswari Ammal 2.C.V.Sivaraman 3.C.V.Murugesan 4.C.V.Jagadeesan 5.C.V.Madanagopal ...Defendants Plaint filed under Order IV Rule 1 of High Court O.S.Rules and Order VII Rule 1 of CPC for a judgment and decree against the defendants a) for a declaration of title of the property mentioned in the Schedule hereunder that the plaintiff has perfected title by adverse possession as per Section 34(F) of the Specific Relief Act; b) for cost and c) for other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case. For Plaintiffs : Mr.M.Balasubramanian For Defendant : Mr.S.A.Rajan ------- JUDGMENT
1. The averments found in the plaint, in brief, are as follows:
i) Plaintiff Trust is represented by its Managing Trustee Mr.M.A.K.Balakrishnan. First defendant is the wife of late C.M.K.Viswanatha Mudaliar. Defendants 2 to 5 are sons of the said Viswanatha Mudaliar. By a deed of absolute gift dated 6.1.1985, the first defendant C.V.Rajeswari Ammal donated the land and building known as "Wood-Well" bearing old door Nos.16-A and 13, new door No.8, 4th Cross Street, Sterling Road, Nungambakkam, Chennai-600 034 comprised in Survey No.547/4 (Part) in Block No.32 of Nungambakkam Village bearing Plot No.11B and 11-C measuring an extent of 5 grounds and 2165 sq.ft. and 3 grounds and 1635 sq.ft. respectively providing a total extent of 9 grounds and 1400 sq.ft. together with a building thereon morefully described in the schedule annexed to the plaint. Pursuant to the said gift, possession of the suit property was delivered by the first defendant to the plaintiff and the same has been put to use for the purpose of running the school established and administered by the plaintiff Trust. Right from the day of gift i.e. 6.1.1985, plaintiff Trust is in physical possession and enjoyment of the suit property and the plaintiff has been assessed by the Corporation of Chennai for property tax. Urban land tax was also levied on the plaintiff by the Assistant Commissioner of Urban Land Tax, Egmore Area in his assessment order No.9/BK, 32/Nungambakkam/91 dated 16.5.1995. In the proceedings of the Assistant Commissioner of Urban Land Tax in R.C.1701/95 (B) dated 08.11.1995, the Assistant Commissioner has exempted the suit land from the levy of tax under section 29(h) of the Tamil Nadu Urban Land Tax Act, 1996, since the same has been put to use for school purpose. The first defendant along with her sons also entered into an agreement with the plaintiff on 6.1.1985 confirming the gift and the fact of possession of the suit property having been given to the plaintiff.
ii) Prior to 6.1.1985, a total extent of 29 grounds 486 sq.ft. was under the possession and enjoyment of the plaintiff Trust as per the registered Lease Deed dated 19.12.1969, registered as document No.1876/69 on the file of S.R.O., T.Nagar and the said Lease Deed will prove that the plaintiff was in continuous possession and enjoyment of the said property extending 29 grounds 486 sq.ft. from 1964 onwards. By mutual understanding, the suit property measuring 9 grounds 1400 sq.ft. was gifted to the plaintiff Trust and by the said agreement dated 6.1.1985, the defendants had permitted the plaintiff Trust to apply for exemption from stamp duty for the purpose of registration of the gift deed. Accordingly the plaintiff Trust applied for exemption from stamp duty and the Government in G.O.Ms.No.161, Commercial Taxes and Religious Endowments dated 22.03.1990 granted exemption from stamp duty under section 9(1)(a) of the Indian Stamp Act, 1899 (Central Act II of 1989) in respect of an extent of 2 grounds and 1467 sq.ft. alone out of the total extent of 9 grounds and 1400 sq.ft. The said order was also published in the Tamil Nadu Government Gazette as Notification No.11(2)/CTRE/1824/90 dated 11.04.1990.
iii) Since the plaintiff Trust was in continuous possession of the suit property from 1964 with the necessary animus, the plaintiff Trust has acquired prescriptive title to the suit property by adverse possession. However, when the Tahsildar was approached for getting patta, the grant of patta was declined on the ground that registered deed of conveyance was necessary. As such it has become necessary for the plaintiff to approach the court for a declaration that the plaintiff has perfected title to the suit property by adverse possession. Hence the plaintiff Trust prays for a declaration that the plaintiff has perfected title to the suit property by adverse possession as per section 34(F) of the Specific Relief Act and for cost and such further or other reliefs as the court may deem fit.
2. The first defendant C.V.Rajeswari Ammal is no more and the defendants 2 to 5, who were already on record, have been recorded as legal representatives of the deceased first defendant. Defendants 4 and 5 have not filed any written statement. Defendants 2 and 3 alone have jointly filed a written statement, the contents of which are as follows:
i) All the plaint allegations except those that are specifically admitted by the defendants 2 and 3 in their written statement, are denied. C.V.Rajeswari Ammal shown as the first defendant in the suit, died in the year 1989 itself. She cannot be a party to the suit. It is not true that C.V.Rajeswari Ammal donated the suit property, namely land and building comprised in Survey No.547/4 (Part) in Block No.32 of Nungambakkam Village bearing Plot No.11B and 11-C measuring about 9 grounds and 1400 sq.ft. to the plaintiff by a Deed of Absolute Gift dated 6.1.1985. As C.V.Rajeswari Ammal became a widow in the year 1979 and was under the care of her sons, no document could have been executed by her in 1985, when she was aged about 70 years, without the knowledge of her sons. Even if such a gift deed could have been executed by her, under the provisions of the Transfer of Properties Act, no valid gift of the immovable property worth more than Rs.100/- could have been made otherwise than by a registered deed. It is also incorrect to state that possession of the suit property was delivered to the plaintiff by the first defendant pursuant to the said gift deed.
ii) The plaintiff Trust became a lessee under an unregistered Lease Deed from August 1964 in respect of an area of 29 grounds. In or about the year 1982, defendants requested the plaintiff Trust to vacate the leasehold property so that the defendants would sell it or divide it among themselves. After a prolonged negotiation, an agreement was reached between the plaintiff Trust and the defendants to the effect that the plaintiff Trust would release about 20 grounds and retain the rest of the leasehold property measuring 9 grounds and 1400 sq.ft. The defendants 2 and 3 do not have any knowledge as to whether the plaintiff had updated the records relating to payment of property tax and urban land tax or obtained exemption from payment of urban land tax, since the property was used for school purpose. Those transfer of records was caused without any reference to the defendants and without the knowledge of the defendants. The defendants have not consented for the mutation of the plaintiff's name in the records. Defendants do not admit having entered into any agreement with the plaintiff on 6.1.1985. However, even such an agreement shall not make them lose their rights and title to the suit property, since the plaintiff was a lessee in respect of a larger property including the suit property from the year 1964 and after the surrender of a larger portion, the plaintiff continued to be a lessee in respect of the suit property. As the plaintiff continues as a lessee in respect of the suit property, its possession can never amount to a possession adverse to the owner of the property, since the plaintiff is not a trespasser, who occupy the property with intent to own the property adverse to the interest of the real owners. The registered Lease Deed dated 19.12.1969 also would confirm the fact that the plaintiff Trust is only a lessee. Any concession in the property tax and urban land tax could have been offered by the government, since the property was used for school purpose. The defendants 2 and 3 do not know whether the plaintiff applied for exemption of stamp duty for registering the alleged gift deed and whether the government exempted the plaintiff from payment of stamp duty in respect of two grounds and 1467 sq.ft. out of an extent of 9 grounds and 1400 sq.ft. If it is true the plaintiff ought to have obtained a gift deed from the defendants. The exemption granted by the government has now expired and hence the plaintiff is not entitled to claim that the property has been gifted to it or that the plaintiff has perfected title by adverse possession.
iii) The suit as framed, is not maintainable. Adverse possession cannot be set up for obtaining a decree of declaration and the same can be set up as a plea of defence only. A larger property measuring about 90 grounds was purchased by Murugesa Mudaliar, paternal grandfather of defendants 2 to 5 from out of the income derived from the business jointly done by him and his sons as ship chandlier and supplier of materials in the harbour and to the vessels. The said property purchased by Murugesa Mudaliar was a joint family property. It is also evidenced by a registered deed of partition dated 13.04.1966 between the defendants 2 to 5 and their father late C.N.Viswanatha Mudaliar. Even in 1982-1985, defendants 2 to 5 were married and they had got children of whom some were major and some were minors. As the other coparcenors were not made parties to the documents relied on by the plaintiff, they would not bind them. The other co-parcenors are necessary parties. The suit is bad for non-joinder of necessary parties. No encumbrance could have been created by any promise made by the defendants in respect of the shares of the other coparcenors. The defendants 2 and 3 reserve their right to vacate the plaintiff at any time, as the plaintiff is merely a lessee in respect of the suit property and the defendants can exercise their option after terminating the tenancy. For all the above said reasons, the defendants 2 and 3 pray for the dismissal of the suit with cost.
3. Based on the above said pleadings, the following issues were framed.
1.Whether the plaintiff herein is entitled to get the relief of declaration of title to the suit property by way of adverse possession as prayed for in the plaint?
2.To what other relief are the parties entitled?
4. In order to substantiate the case of the plaintiff two witnesses were examined as PWs.1 and 2 and 19 documents were marked as Exs.P1 to P19 on the side of the plaintiff. No witness was examined and no document was marked on the side of the defendants.
5. This court heard the arguments advanced by Mr.M.Balasubramanian, learned counsel for the plaintiff and by Mr.S.A.Rajan, learned counsel for the contesting defendants and considered the pleadings and evidence in the light of the arguments advanced on both sides.
Issues 1 and 2:
6. Plaintiff is an Educational Trust represented by its Managing Trustee. The Trust is Krishnaswamy Educational Trust. Initially a larger property measuring 29 grounds and 1467 sq.ft. which included the suit property measuring 9 grounds and 1400 sq.ft. had been taken on lease by the plaintiff Trust in 1964 itself for running a school. However a lease deed came to be registered only in the year 1969. The said registered lease deed dated 19.12.1969 registered as document No.1876/1969 on the file of S.R.O., T.Nagar is Ex.P1. The defendants 2 to 5 and their father C.M.K.Viswanatha Mudaliar were the lessors under Ex.P1-lease deed and the founder trustee of the plaintiff Trust was the lessee under the said lease deed. It is seen from the said Lease Deed that under a previous lease deed dated 20.08.1964, the said property had been leased out to the said Krishnaswamy Educational Trust for a period of five years commencing from 01.09.1964 with an option to have the said lease renewed for a further period of five years from 01.09.1969. Ex.P1 came to be executed for extending the lease for a further period of three years from 01.09.1969 with an option for the lessee for the renewal of the lease for a further period of two years. It is also seen from the said document that the earlier lease deed dated 20.08.1964 had been executed when the family of the lessors was joint and in 1966, by a registered partition deed, a partition was effected in the family of the lessors, which necessitated the execution of Ex.P1-Lease Deed. It is also obvious from Ex.P1 that only the defendants 3 to 5 and their father C.M.K.Viswanatha Mudaliar were parties to the said lease deed and the second defendant C.V.Murugesa Mudaliar was not a signatory to the lease deed. However, it is an admitted fact that a larger extent of land measuring 90 grounds was shown as 'A' schedule property, out of which 29 grounds and 486 sq.ft. area with specified boundary was shown as schedule 'B' in Ex.P1 document and the property described in schedule 'B' alone was the subject matter of lease. It is a fact not in dispute that the said property measuring 29 grounds and 486 sq.ft. described in Schedule 'B' to Ex.P1 had been leased out to the plaintiff and the plaintiff was lessee in respect of the said extent. The case projected by the plaintiff is that in 1985, the lessors and lessee had negotiations when the lessors wanted to get back the land leased out to the lessee and an understanding was reached to the effect that the lessee, namely the plaintiff, would surrender its leasehold right in respect of about 20 grounds out of the total extent of 29 grounds and 486 sq.ft. and retain the balance extent and that such balance extent of 9 grounds 1400 sq.ft. which was agreed to be retained by the lessee/plaintiff Trust is the present suit property.
7. It is also the case of the plaintiff that the understanding between the parties was that the suit property measuring 9 grounds 1400 sq.ft. would be given to the plaintiff Trust as absolute gift and pursuant to the understanding, the first defendant, the mother of defendants 2 to 5, executed a gift deed dated 6.1.1985. The said gift deed allegedly executed by the first defendant is an unregistered one. The said deed authenticated by a Notary Public has been produced as Ex.P2. Though the plaintiff has made a passing reference to the alleged adverse possession starting from 1964, the case of the plaintiff, in essence, happens to be that from the moment Ex.P2-unregistered gift deed was executed, the plaintiff started possessing the suit property asserting title adverse to that of the defendants and since the plaintiff was in continuous and uninterrupted possession and enjoyment of the suit property from 6.1.1985 for more than 12 years, the plaintiff had perfected title to the suit property by adverse possession. Based on the said contention alone, the plaintiff has prayed for a declaration to that effect.
8. There are five persons shown as defendants. C.V.Rajeswari Ammal, the mother of defendants 2 to 5, who is said to have executed Ex.P2-unregistered gift deed was shown as the first defendant. The suit was filed in the month of August 2003. The contesting defendants have stated that C.V.Rajeswari Ammal died in the year 1989 itself. Admitting the fact that Rajeswari Ammal died long prior to the filing of the suit, a Memo dated 08.08.2011 was filed by the plaintiff and based on the same the defendants 2 to 5, who were already on record were recorded as legal representatives of Rajeswari Ammal also. However the fact remains that the suit came to be filed against a dead person. As such, the suit as against Rajewari Ammal could even be termed non-est. However, the defendants 2 to 5 are the sons of Rajeswari Ammal and the suit filed as against them based on the alleged gift made by Rajeswari Ammal cannot be held to be non-est. As against the claim of the plaintiff that the suit property was donated by Rajeswari Ammal as an absolute gift to the plaintiff Trust, defendants 2 and 3 have taken a stand that such a gift, could not have been made by Rajeswari Ammal and that even if such a gift was admitted to be made, the same was not legally valid, as the property sought to be donated was immovable property worth more than 100 rupees, in which case the gift could be made only by way of a registered gift deed. Besides contending that there was no gift, the contesting defendants have also contended that since the gift was not complete, the status of the plaintiff as lessee and the nature of possession of the suit property by the plaintiff as lessee did not get changed and the plaintiff continued to be a lessee. It is the further contention of the contesting defendants that the plaintiff having been inducted in possession as a lessee, could not claim his possession to be one adverse to that of the land-lords and that the plea made by the plaintiff of having perfected title by adverse possession is liable to be rejected. In the context of the above said pleadings, we have to consider whether the plaintiff has perfected title by adverse possession as claimed in the plaint.
9. The Managing Trustee of the plaintiff, who figured as PW.1, has admitted that at the time of commencement of the lease, plaintiff was given about 29 grounds of land by way of lease and now the Trust school is functioning in 9 grounds 1400 sq.ft., which is described in plaint schedule as suit property and the remaining extent about 20 grounds lies adjoining the suit property and a road separates both. He did not mention anything about the surrender of the leasehold right in respect of or possession of the remaining extent, namely 20 grounds 486 sq.ft. to the lessors. The same appears to be a conscious omission made in the plaint as well as in the evidence of PW.1. One P.A.S.Roy, Manager of the plaintiff Trust has deposed as PW.2. In his evidence only what transpired between the lessor and how the remaining extent of the leasehold land was handed over to the lessors have been spelt out. PW.2, during his cross-examination, would admit that the total area leased out to the plaintiff Trust was about 29 grounds of land and the plaintiff Trust was a tenant in respect of the entire property; that after negotiation, it was agreed between the plaintiff on one part and Rajeswari Ammal and her sons on the other part, that Rajeswari Ammal would deliver 9 grounds 1400 sq.ft. to the plaintiff and the plaintiff put the defendants in possession of the remaining extent. It is also his version that Rajeswari Ammal and her sons agreed to execute a registered Gift Deet in favour of the plaintiff. From the above said evidence, it is obvious that out of 29 grounds and 486 sq.ft., which had been originally given on lease to the plaintiff Trust, an extent of 20 grounds and 486 sq.ft. was surrendered to the defendants pursuant to the negotiations held when the lessors wanted to get back the property from the lessee. The remaining 9 grounds 1400 sq.ft., which is shown as the suit property was allowed to remain with the plaintiff Trust. The said arrangement, according to the plaintiff, was made in 1983 itself and the plaintiff Trust handed over the remaining land of 20 grounds 486 sq.ft. to the defendants on 06.06.1983 itself. The same is not disputed. After the remaining extent of 20 grounds and 486 sq.ft. was surrendered by the lessee to the lessors, the lessee, namely the plaintiff Trust, continued to be in possession of 9 grounds 1400 sq.ft., namely the suit property. In what capacity the plaintiff Trust continued to be in possession of the suit property thereafter, is the deciding factor. Though the plaintiff would have stated that in 1983 itself Rajeswari Ammal agreed to donate the suit property by way of an absolute gift deed, the assurance was sought to be put into action only on 6.1.1985 when the unregistered gift deed (Ex.P2) came to be executed by her. It is the case of the plaintiff as revealed by the evidence of PW.2 that after the execution of Ex.P1-Lease Deed, there was a partition in the family of the defendants, in which the suit property measuring 9 grounds 1400 sq.ft. was allotted to Rajeswari Ammal as per the will of Viswanatha Mudaliar.
10. The further case of the plaintiff as revealed from the evidence of PW.2 is that, when the defendants wanted to get back the land leased out to the plaintiff Trust, after a prolonged negotiation, the parties agreed that the plaintiff should surrender 20 grounds 486 sq.ft. and retain the balance and that for doing so, Rajeswari Ammal agreed to donate the remaining land and execute a gift deed. Even though it has been contended on behalf of the plaintiff that there was a partition between the defendants and their father Viswanatha Mudaliar and as per Viswanatha Mudaliar's will, his wife Rajeswari Ammal got 9 grounds and 1400 sq.ft., the contesting defendants have not chosen to specifically deny the said averment. On the other hand, there is an admission of the said averment to some extent, as the contesting defendants, in paragraph 16 of their written statement, have stated that there was a partition effected between defendants 2 to 5 and their father Viswanatha Mudaliar under a registered partition deed dated 13.04.1966. The contesting defendants have not chosen to produce either the original or a certified copy of the said registered partition deed. However, the same fact is reflected in the admitted document, namely Ex.P1-registered Lease Deed dated 19.12.1969. Though the family partition dated 13.04.1966 referred to in Ex.P1-Lease Deed, details of the division are not found mentioned therein. However, a xerox copy purporting to be a copy of the probate order granted in favour of Rajeswari Ammal in O.P.No.373/1973 has been produced as Ex.P12. Apart from the same being a xerox copy, the same is not certified to be a true copy. The same is also incomplete. It contains only the cause title and Annexure-A. Copy of the will has not been annexed. The same does not lend any help to the court to find out what was the nature of division. However the fact remains that out of 29 grounds 486 sq.ft., which had been originally leased out to the plaintiff for the purpose of running a school under Ex.P1-Lease Deed, admittedly an extent of 20 grounds 486 sq.ft. was surrendered and the lessors took possession of the same, whereas the remaining extent of 9 grounds 1400 sq.ft. which is shown to be the suit property continued to be in possession of the plaintiff Trust. According to the plaintiff Trust, the plaintiff continued to be in possession of the same based on an understanding that the property would be donated by Rajeswari Ammal to the plaintiff Trust and the defendants 2 to 5 also agreed to relinquish their right in respect of the suit property. It is the further case of the plaintiff that pursuant to the said understanding, Rajeswari Ammal executed a gift deed and the defendants 2 to 5 executed an agreement; that from the date of such Gift Deed and agreement, the possession of the plaintiff Trust became one in assertion of a title, which was adverse to that of Rajeswari Ammal and defendants and that having held such adverse possession over the statutory period, the plaintiff has perfected title by adverse possession. Whether such a stand taken by the plaintiff can be countenanced?
11. The unregistered gift deed allegedly executed by Rajeswari Ammal has been produced and marked as Ex.P2. As per section 123 of the Transfer of Property Act, 1882, a gift of immovable property can be made only by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. For better appreciation section 123 is reproduced.
"123. Transfer how effected.- For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered."
Ex.P2 does not answer the requirements of the above said section. It is an unregistered document. In addition, the same has been attested only by one witness. One M.Gomathy, Advocate and Notary Public seems to have signed and affixed her seal to authenticate the same. Even if it can be construed that the said Gomathy is an attestor of the said document, since the property sought to be donated is an immovable property, which is worth more than 100 rupees, the said document will not effect a transfer of title and the plaintiff cannot claim acquisition of title under Ex.P2. In fact that is the reason why the plaintiff has not taken a stand that a valid transfer of title by way of gift had taken place in favour of the plaintiff and on the other hand has taken the plea that the plaintiff has perfected title to the suit property by adverse possession. It is also evident from Ex.P3 dated 6.1.1985 produced as an agreement between the plaintiff on one hand and the defendants and their lessee on the other hand to show that the suit property was agreed to be donated by Rajeswari Ammal to the plaintiff Trust and the plaintiff Trust agreed to surrender the leasehold right in respect of the remaining portion and hand over possession of the same to the defendants 2 to 5. But the nature of a document cannot be decided by the title of the document alone. The said document contains the following recital:
"The parties of the first part hereby transfer and convey by way of gift all that piece and parcel of land measuring 9 grounds and 1400 square feet with a building thereon known as "Wood-Well" bearing Door No.16-A, Sterling Road, Nungambakkam, Madras-34, more particularly described in the schedule hereunder and marked as Plot Nos.11B and 11C and coloured RED in the plan annexed hereto with all rights of easement, privileges and appurtenant thereto TO AND IN FAVOUR OF: KRISHNASWAMY EDUCATIONAL TRUST the party of the Second Part herein absolutely to make use of the same for educational purpose viz., to carry on educational institutions for which purpose the said Trust has been created and the Donee the party of the Second Part hereby acknowledges the receipt of the said property."
The above said recital will show that the property was sought to be transferred by way of gift under the said document. Though it has been titled as an agreement, since the property was sought to be transferred by way of gift, the document is not admissible for the proof of acquisition of title by the plaintiff Trust. Though Exs.P2-gift deed and P3-agreement are not admissible as documents for the proof of derivation of title by the plaintiff Trust to the suit property for want of registration, as rightly contended by the learned counsel for the plaintiff, they can be looked into for the collateral purpose viz. For showing the nature of possession of the plaintiff. According to the submissions made by the learned counsel for the plaintiff, from the moment the said documents were executed, the possession of the suit property by the plaintiff became one in assertion of title to the suit property and hence adverse to the real owners, namely the defendants 2 to 5 and their mother.
12. Per contra, it is the contention of the learned counsel for the contesting defendants that the possession of the suit property by the plaintiff Trust was only by virtue of lease granted in its favour and that the possession of the lessee shall never amount to a possession adverse to the owners of the land. It is the contention of the learned counsel for the plaintiff that though Exs.P2 and P3 are not admissible in evidence to prove the derivation of title, there is no bar for using the said documents in order to prove the nature of possession and thereby substantiate the plea of the plaintiff that the plaintiff has acquired title by long uninterrupted adverse possession. In support of his contention that the above said documents can be looked into for the collateral purpose of proving the nature of possession, the learned counsel for the plaintiff relied on the judgment of the Hon'ble Supreme Court in Bondar Singh and others Vs. Nihal Singh and others reported in 2003(2) CTC 635. In the said case, the Hon'ble Supreme Court made the following observations:
" Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land."
There can be no quarrel over the proposition that an unstamped and unregistered document, which is inadmissible in evidence to prove the derivation of title, can be looked into for a collateral purpose, namely to show the nature of possession of the plaintiff. In this case, there is no dispute that the plaintiff is in possession of the suit property. Whether such possession of the plaintiff amounts to adverse possession? - is the point that arises for consideration.
13. The learned counsel for the plaintiff has advanced an argument that though the plaintiff was a lessee in respect of a larger extent of land from 1964, by virtue of the understanding between the parties and by virtue of the unregistered gift deed dated 6.1.1985, the possession of the plaintiff in respect of the suit property came to be in assertion of its title to it, which shall definitely be adverse to the defendants. According to the submissions made by the learned counsel for the plaintiff, from 6.1.1985, after surrendering the rest of the area held by the plaintiff as a lessee, the plaintiff's possession of the suit property became one in assertion of title and that hence the possession of the suit property by the plaintiff from 6.1.1985 became adverse possession. Per contra, the learned counsel for the contesting defendants argued that possession of the suit land after the surrender of the leasehold right in respect of the rest of the land continued to be one of the possession of the lessee and the nature of possession of the plaintiff in respect of the suit property never changed. Learned counsel for the contesting defendants also pointed out the fact that in the judgment cited by the learned counsel for the plaintiff, the Apex court decided the issue in favour of the plaintiff therein based on the factual matrix, which went to show that the claim of the defendants therein that the plaintiff was not in possession and on the other hand, the defendants retrieved possession before the filing of the suit was not substantiated. Hence the said judgment can be distinguished from the case on hand. In the said case before the Supreme Court, there was a plea taken by the defendants therein that the plaintiff, who claimed adverse possession had been a sub-tenant and long prior to the filing of the suit for declaration and injunction, possession of the property concerned in the suit was taken by the defendants therein. The Supreme Court found that the possession of the plaintiff therein from the date of unstamped and unregistered sale deed was admitted and not disputed; that thereafter, the plaintiff's predecessor never parted with the possession of the land; that on the other hand, an attempt was made by the defendants therein to evict the plaintiff therein on the premise that he was a trespasser; that the proceedings started by the defendants therein ended in failure before the authorised authority; that the defendants therein preferred an application in 1956 for eviction of the plaintiffs therein under section 58 of the Madhya Bharat Land Revenue and Tenancy Act, 1950 before the revenue authorities and the Tahsildar vide his order dated 3.10.1959 dismissed the said application and the appeal filed therefrom had also been dismissed; that thereafter, failing to obtain possession of the suit lands through lawful means, the defendants therein tried to dispossess the plaintiff therein forcibly; that quite contrary to the earlier plea, the defendants came forward with a new plea in the appellate stage that the plaintiffs therein were sub tenants and that the claim of the defendants therein that they retrieved possession before the filing of the suit was not substantiated by evidence. The following observation made by the Hon'ble Supreme Court is quite relevant:
" The claim of the defendants regarding taking possession of suit land from plaintiffs in 1957-58 having been found to be false, it follows that the defendants never came into possession of the suit land. Another significant conclusion which follows from these facts is that the defendants started asserting their title to the suit land since at least 1956 when they issued the notice Exhibit P.6 while the plaintiffs have been denying their title to the suit land and were setting up their own title to the same. This lends support tot he plea of adverse possession set up by the plaintiffs. It will be seen from this clear and clinching evidence on record that the plaintiffs were in continuous and uninterrupted possession of the suit land since 1931 (the date of unregistered sale deed) and they had been setting up a hostile title thereto as against the defendants. The defendants were asserting their title to the land since 1956. They had however failed to get possession of the suit land. The plea of adverse possession raised by the plaintiff is thus clearly established."
A close scrutiny of the entire judgment of the Hon'ble Surpreme Court will show that though the plaintiffs therein were admittedly in the possession from 1931, the year of execution of the unregistered sale deed only by virtue of the sale deed, the defendants therein started asserting their title from 1956 onwards and the plaintiffs therein were denying the title of the defendants and thus their possession became adverse possession at least from 1956 and that thereafter within the statutory period, the defendants therein did not get possession of the suit land by lawful means.
14. As rightly pointed out by the learned counsel for the contesting defendants, the facts of the said case decided by the Supreme Court can be distinguished from the facts of the case on hand. There in the case before the Supreme Court, the initial possession of the person claiming adverse title was traceable to an unregistered sale deed of the year 1931 and when a notice was issued by the defendants therein asserting title to the suit property, the same was denied and hence from the date of denial the possession of the plaintiff therein became adverse possession against the defendants. In the case on hand, the initial possession of the suit property by the plaintiff is traceable to a lease deed of the year 1964, which was followed by the lease deed of the year 1969, namely Ex.P1. As such it remains an admitted fact that the plaintiff came to possess a larger extent of property, which included the suit property, as a lessee under a lease arrangement and continued to be in possession of the entire property of 20 grounds and 486 sq.ft. in the capacity as lessee till alleged gift was made under Exs.P2 and P3. When possession of the suit property by the plaintiff prior to the alleged gift was admittedly in its capacity as a lessee, it shall not be enough to claim that the plaintiff continued to be in possession. For succeeding in an attempt to show that the possession became adverse to the defendants, the plaintiff must show that there was surrender of leasehold right in respect of that property also and the lease arrangement was discontinued. Ex.P2 contains a recital that the possession of the property was delivered by C.V.Rajeswari Ammal (donor) to the plaintiff (donee), whereas in Ex.P3 it has been recited that Rajeswari Ammal and the defendants 2 to 5 delivered possession of the suit property to the plaintiff. There is admission and evidence to the effect that out of 29 grounds 486 sq.ft., the plaintiff relinquished the leasehold right in respect of 20 grounds and 486 sq.ft. and possession of the same was delivered to the lessors. There is nothing to show that the plaintiff relinquished its leasehold right in respect of the suit property and surrendered possession of the same to Rajeswari Ammal and the defendants and thereafter the possession of the suit property was again delivered to the plaintiff in pursuance of the unregistered gift deed. There is not even a clear recital that the parties agreed to treat the possession of the plaintiff from the date of the unregistered gift deed to be as owner in assertion of title and that no longer the relationship of lessor and lessee would subsists. On the other hand, a consideration of the oral and documentary evidence adduced on the side of the plaintiff would show that there was an agreement/understanding that the suit property should be donated to the plaintiff and the plaintiff should take follow up action for getting the gift transaction completed by applying and getting necessary order of exemption from payment of stamp duty, making payment of gift tax and getting the gift deed properly executed and registered.
15. It is obvious from the oral and documentary evidence that the plaintiff as well as the defendants were very much aware of the fact that the intended gift transaction was not complete and that something more had to be done to confer title on the plaintiff and the plaintiff was also very much aware of the same. In fact, in order to complete the transaction whereby the transfer of title will be complete, the plaintiff seems to have applied to the government for exemption from payment of stamp duty. On such application, the Government of Tamil Nadu, in its order G.O.Ms.No.161 Commercial Taxes and Religious Endowments dated 22.03.1990 has passed an order granting remission of stamp duty to the tune of Rs.41,701.85P being the stamp duty chargeable under the Indian Stamp Act, 1889 in respect of a portion of the property alone. The same has been admitted by the plaintiff in the plaint and also by the witnesses examined on the side of the plaintiff. The Gazette notification notifying the above said government order has been produced as Ex.P4. Therefore, it is obvious that till 1990, the transaction was not complete and the plaintiff was very much aware of the fact that the transaction was incomplete and that the plaintiff could claim title to the suit property only on the registration of a gift deed. Even after such an order passed by the Government granting exemption from payment of stamp duty to some extent, the plaintiff had not chosen to get the transaction completed by making payment of the balance stamp duty, gift tax and getting the gift deed properly executed and registered. Therefore, we can safely conclude that till the date of the said Government Order, namely 22.03.1990, there was no open assertion of title by the plaintiff, which would have made the possession of the plaintiff, a possession adverse to the defendants. If at all the possession of the plaintiff became a possession adverse to the defendants denying the title of the defendants and asserting title in the plaintiff, the same could have been only after the date of Ex.P4.
16. A party who claims to have perfected title by adverse possession in respect of an immovable property, shall clearly state the date from which his possession became adverse and prove the same. In this case, the nature of pleadings made by the plaintiff will show that the plaintiff was claiming that the possession of the plaintiff during the subsistence of the lease itself became adverse. The ambiguity in the stand taken by the plaintiff in this regard will be seen from the following averment made in the plaint, which is extracted here under:
" The plaintiff submits that the animus of long possession and enjoyment of the property mentioned in the Schedule hereunder since 1964 for a period of more than 39 years has been established, thereby the plaintiff Trust perfected his prescriptive title of adverse possession of the said property."
It is obvious from the said pleadings that the plaintiff wanted to claim that the plaintiff's possession of the suit property right from 1964, namely the date of creation of lease, was with necessary animus to possess it adversely to that of the real owners. The said pleading itself will go to show that no change in the nature of possession was made either on 6.1.1985 or subsequently. There is no clear-cut evidence as to from which date the possession of the plaintiff became adverse possession.
17. In order to show that the plaintiff was enjoying the suit property as if it was the owner, Exs.P5, P6 and P8 to P11 and P14 to P19 have been produced. Ex.P5 is an assessment order passed on 16.05.1995 by the Assistant Commissioner, Urban Land Tax, Egmore, Chennai-29. It is seen from Ex.P5 that a total extent of 19 grounds and odd was taken up for urban land tax assessment from which a deduction of 2 grounds was made and for the balance extent urban land tax was levied. Subsequently on 8.11.1995, the Assistant Commissioner, Urban Land Tax, Egmore, Chennai-29 passed an order granting exemption from urban land tax under section 29-A of the Urban Land Tax Act, 1966 in respect of the suit property, namely 9 grounds 1400 sq.ft. on the premise that the same was used for educational purpose by the plaintiff Trust under the name and style Krishnaswamy Matriculation Higher Secondary School, recognised by the Director of School Education and that hence the said property was exempted from the purview of the urban land tax under section 29-A of Urban Land Tax Act, 1966.
18. However, it has been made clear that though the suit property measuring 9 grounds 1400 sq.ft. was sought to be gifted to Krishnaswamy Educational Trust, the gift deed was not registered. Similarly, the request made by the Managing Trustee of the plaintiff Trust for the grant of patta in respect of the suit property, based on the alleged gift deed dated 6.1.1985, was turned down on the ground that the gift deed was not registered and the plaintiff should get the gift deed registered and then apply for patta. The same is evident from Ex.P7-letter written by Tahsildar to the Managing Trustee of the plaintiff Trust. Exs.P8 and P9 are property tax receipts dated 10.09.1990 and 16.06.1992. There cannot be any wonder in the plaintiff Trust paying property tax to Corporation of Chennai, Madras, since it was in possession as lessee and the plaintiff was the owner of the building therein. Ex.P11 is an order dated 3.7.1997 of Director of School Education granting permission to the plaintiff Trust to start a new matriculation school in the name of Sri Krishnaswamy Matriculation School, Nungambakkam. The same is not going to help the plaintiff in any way to prove its case of adverse possession. Ex.P14 is a property tax receipt dated 28.07.1986. Exs.P15 to P18 are original property tax receipts dated 31.01.1991, 27.08.1991, 14.05.1993 and 29.10.1993 respectively. Ex.P19 is the electricity card. All these documents will go to show that the plaintiff Trust was making payment of property tax and paying electricity consumption charges as it was the occupant of the property and the owner of the building. That alone shall not be enough to show that the plaintiff started asserting title to the property which was adverse to the defendants. In addition, there is a clear admission by PW.2, the Manager of the plaintiff Trust that the plaintiff Trust was very much aware of the fact that the transfer of title was not complete on the execution of Exs.P2 and P3 and that despite the fact that the plaintiff was able to get exemption from stamp duty to some extent, the plaintiff did not take care to get the transaction completed by getting the gift deed properly executed and registered. In fact there is also an admission by PW.2 that there was no resolution passed in the Trust Board meeting accepting the gift. The said answer by PW.2 will show that the plaintiff was very much aware of the fact that no transfer of title took place under the unregistered gift deed and the alleged agreement produced as Exs.P2 and P3 and that unless and until the plaintiff gets the gift deed with proper stamp duty executed and registered, the plaintiff shall not get title to the property. In fact, all along the plaintiff was taking steps to get exemption from payment of stamp duty and gift tax. The same would show that the plaintiff was very much aware of absence of title and incomplete transfer of title. As such the claim of the plaintiff that the plaintiff continued to possess the property after 6.1.1985 with necessary animus to possess the same in assertion of title adverse to the defendants has got to be discountenanced as unsustainable.
19. In Thakur Kishan Singh (dead) v. Arvind Kumar reported in AIR 1995 SUPREME COURT 73, the Hon'ble Supreme Court has held as follows:
"As regards adverse possession, it was not disputed even by the trial Court that the appellant entered into possession over the land in dispute under a license from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession."
If the above said ratio is applied to the case on hand, we have to come to the conclusion that the burden of proving that the permissive possession as a lessee became an adverse possession lies heavily on the plaintiff and the plaintiff has not discharged the burden of proving the same. At the cost of repetition, it is pointed out that it is not the clear and unambiguous case of the plaintiff that from the moment the unregistered gift deed came to be executed, the possession became adverse and on the other hand, the plaintiff's pleadings seem to be that from the inception of the lease plaintiff started possessing the property with the necessary animus to hold it as its own amounting to an adverse possession. It is not the case of the plaintiff that when the plaintiff surrendered 20 grounds 486 sq.ft., the plaintiff also surrendered its leasehold right in respect of the suit property and thereafter it was allowed to possess the property as full owner. On the other hand, the plaintiff, who was very much aware of the fact that something more had to be done to complete the transaction and vest title in the plaintiff did not take steps within the necessary time to get the contract specifically enforced. In order to tide over the difficulty of doing so, due to lapse of time, the plaintiff seems to have come forward with the novel plea of having perfected title by adverse possession, without even coming forward with a clear plea as to from which date the possession of the plaintiff became adverse. It is also pertinent to note that the plaintiff, having obtained an order of exemption of stamp duty to some extent, has evaded its responsibility towards the State and avoided getting a gift deed executed on proper stamp papers and getting it registered paying registration charges and has come forward with the present suit. It can also be viewed as a device to escape the liability of the plaintiff towards the payment of gift tax. If all these aspects are taken into consideration, the only conclusion that can be arrived at is that though the plaintiff who was a lessee for larger extent, namely 29 grounds 486 sq.ft. chose to surrender 20 grounds 486 sq.ft. out of the said extent to its landlords and retained 9 grounds 1400 sq.ft., which is the suit schedule property, the plaintiff Trust continued to be in possession of the suit property only as a lessee and its possession is traceable only to the contract of lease; that the plaintiff who was aware of the fact that no transfer has been effected under the unregistered gift deed, has failed to adduce reliable and sufficient evidence to discharge the burden of proving that the possession of the suit property by the plaintiff at least from the date of the said unregistered gift deed, namely 6.1.1985, was with the necessary animus to possess it adverse to that of the defendants and that hence the plaintiff has miserably failed to prove its case that it has possessed property with necessary animus to possess it adverse to that of the real owners over and above the statutory period and thereby perfected title by adverse possession.
20. For all the reasons stated above, this court comes to the conclusion that the plaintiff is not entitled to a declaration as prayed for and the suit is liable to be dismissed. However, considering the nature of the case and facts and circumstances of the case, this court deems it appropriate not to pass any order regarding cost and leave the parties to bear their respective cost of litigation.
21. In the result, the civil suit is dismissed. The parties shall bear their respective cost of litigation.
22.06.2012 Index: Yes/No Internet: Yes/No asr List of witnesses examined on the side of the plaintiff:
1. Mr.M.A.K.Balakrishnan (PW.1)
2. Mr.P.A.S.Roy (PW.2) List of documents marked on the side of the plaintiff:
Ex.P1 - Original registered lease deed dated 19.12.1969 executed by defendant in favour of the plaintiff Ex.P2 Original unregistered gift deed dated 06.01.1985 Ex.P3 Original unregistered agreement dated 6.1.1985 between the plaintiff and the defendants Ex.P4 Tamil Nadu Government Gazette dated 11.04.1990 Ex.P5 Original Assessment order issued by the Assistant Commissioner, Urban Land Tax dated 16.05.1995 Ex.P6 Exemption order issued by the Assistant Commissioner, Urban Land Tax (ULT) dated 08.11.1995 Ex.P7 Intimation letter dated 13.06.2003 given by the Tahsildar, Egmore, Nungambakkam Taluk Ex.P8 Property tax receipt dated 16.09.1990 Ex.P9 Property tax receipt dated 16.06.1992 Ex.P10 Original electricity meter card Ex.P11 Original proceedings of the Director of School Education dated 03.07.1979 Ex.P12 Photocopy of the probate order dated 12.07.1984 made in O.P.373/1983 Ex.P13 Original Acknowledgment dated 6.6.1983 Ex.P14 Property Tax Receipt dated 28.07.1986 Ex.P15 Original Property Tax receipt dated 31.01.1991 Ex.P16 Original Property Tax receipt dated 27.08.1991 Ex.P17 Original Property Tax receipt dated 14.05.1993 Ex.P18 Original Property Tax receipt dated 29.10.1993 Ex.P19 series (3 Nos) Original Meter cards issued by Tamil Nadu Electricity Board.
List of witnesses examined on the side of the defendant:
Nil List of documents marked on the side of the defendant:
Nil P.R.SHIVAKUMAR.J., asr C.S.No.22 of 2004 22.06.2012