Madras High Court
Mr. Thanisias (Deceased) And Nine ... vs Ms.Selvam Ammal (Died) And Four Others on 5 October, 1999
Equivalent citations: 2000(1)CTC245, 2000 A I H C 904
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER
1. The appellants 1 and 2 are the defendants in the suit filed by the respondents for a declaration of title and for recovery of possession of the suit property from the defendants with mesne profits and the arrears of rent.
2. Though the trial Court dismissed the suit filed by the respondents, the first appellate Court allowed the appeal and set aside the judgment and decree of the trial Court and decreed the suit. Hence, this second appeal.
3. According to the plaintiffs, the suit property was handed over by the plaintiffs to the defendants for lease on a monthly rent of Rs.3 in January, 1977 and the defendants did not pay the rent from January, 1978 and despite the notice terminating the tenancy, they did not vacate nor paid the arrears of rent. Therefore, they filed the suit.
4. According to the defendants, they purchased the suit property from the original owner Maduthin Nadar, the husband of the first plaintiff in the year 1958 and they constructed a pucca building in the suit land and they have been in possession for about 25 years and therefore, the plaintiffs would not be entitled to seek for any relief.
5. During the course of trial, on the side of the plaintiffs, P.Ws. 1 to 4 were examined and Exs.A1 to A13 were marked. On the other side, the second defendant examined herself as D.W.1 and marked Exs.B1 to B5.
6. During the pendency of trial, an advocate-Commissioner was appointed to inspect the suit property and accordingly he inspected in the presence of both parties and filed a report before the Court. The same was marked as Ex.C1.
7. The trial Court, on consideration of the evidence, oral and documentary, rejected the case of both and held that the case of the plaintiffs that the suit property was leased out to the defendants and the case of the defendants that they purchased the property on oral sale from Maduthin Nadar have not been proved. However, on the basis of the materials available, the trial Court would hold that the defendants have been in adverse and uninterrupted possession of the suit property for about 19 years and that therefore, the suit is liable to be dismissed.
8. However, the lower appellate Court, in the appeal filed by the plaintiffs, allowed the appeal and set aside the judgment and decree of the trial Court and decreed the suit mainly on the ground that the finding had been given by the trial court in favour of the defendants on the basis of the adverse possession for about 19 years even without the relevant issue framed.
9. The said judgment and decree are challenged before this Court in the second appeal.
10. During the pendency of the second appeal, the first appellant died and his legal representatives were brought on record as appellants 3 to 10 and since the first respondent also died, the respondents 2 to 5 were recorded as her legal representatives.
11. At the time of admission, the following substantial question of law was formulated:
"Whether the lower appellate Court committed error apparent on the face of the record in reversing the judgment and decree of the trial Court, by holding that the appellants alternative plea of adverse possession could not be favourably considered for the reason that the trial court did not frame any issue on that aspect, despite the point that was framed as an additional issue No.3 and findings rendered thereon?"
12. On the basis of this question, the learned counsel appearing for the appellants would make elaborate submission, which is as follows:-
"The well considered judgment of the trial Court, which has exhaustively considered and properly decided all the issues on the basis of the available records, has been reversed by the lower appellate Court without applying judicial mind and law. The defendants established that they had only constructed the house by employing their own funds in the suit land and they had been continuously paying the property taxes and other ceases, thereby they have proved the title to the said property by way of adverse possession and enjoyment for more than 24 years. The lower appellate Court, in the absence of any acceptable evidence and especially when the evidence of the witnesses examined on the side of the plaintiffs was contradictory to each other in respect of the aspect of the tenancy, has committed a serious illegality in observing that the defendants were put into possession of the suit house in the year 1977 for a monthly rent of Rs.3 and that there is material to show that there was a landlord and tenant relationship between the plaintiffs and the defendants. Moreover, when there is a comprehensive issue framed as an additional issue No.3 by the trial Court with reference to the title to the property on the basis of the alternative plea of adverse possession, the first appellate Court committed a serious error apparent on the face of the record in holding that the trial Court ought not to have passed a decree on the basis of the adverse possession in favour of the defendants which is quite wrong. Even assuming that there is no specific issue framed in regard to adverse possession, the plea about the same was raised by the defendants in the written statement and the oral and documentary evidence as well was let in by the defendants during the course of trial. Therefore, the judgment and decree of the lower appellate Court are liable to be set aside and the judgment and decree of the trial Court are to be restored.
13. In reply to the said submission, the counsel for the respondents would make the following contentions:-
"The lower appellant Court has considered both the aspects and concluded that the suit has to be decreed in favour of the plaintiffs. On placing reliance upon the evidence of the witnesses examined on behalf of the plaintiffs, it concluded that the defendants were put in possession of the suit property as lessees. In regard to adverse possession, it is for the party to make such a plea and to prove the same on the basis of the specific issue framed on that and further to establish as to when exactly the actual adverse possession commenced. In the present case, neither an issue for the same was framed nor materials were produced to establish as to how long the defendants have been in continuous possession and when such an adverse possession commenced. These findings by the lower appellate Court are based upon the factual materials. Therefore, this Court sitting in second appeal, is not competent to go into the soundness of the factual findings. Hence, the submission made by the counsel for the appellants, is liable to be rejected."
14. The counsel for both the parties would cite a number of authorities in support of their respective pleas.
15. Before launching discussion over the merits of the contentions with regard to the findings, it may be relevant, at this juncture, to consider the scope and jurisdiction of the Court under Section 100, C.P.C., in order to decide as to whether this Court could interfere with the findings given by the first appellate Court, which is considered to be the last Court of fact.
16. The principles regarding the scope are given in the decisions in Kondiba Dagadu Kadam v. Savithribai Sopan Gujar, and Thakur Kishan Singh v. Arvind Kumar, .
17. On going through these decisions, it is clear that it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In other words, the High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. When the first appellate court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellants was not adverse, the said finding could not be demolished by relying upon the evidence let in by parties and such an exercise is not permissible in second appeal.
18. In the light of the above principles, this Court is called upon to decide the substantial question of law formulated by this Court.
19. There is no dispute with regard to the fact that the suit property was originally belonged to one Maduthin Nadar. It is the case of the plaintiffs that in the suit land, the superstructure was constructed by Maduthin Nadar and then the same was leased out to the defendants. But, it is the case of the defendants that the suit land was purchased on oral sale from the said Maduthin Nadar in 1958 and they have been in continuous and uninterrupted possession of the suit property after constructing the thatched hut initially and pucca building some years later.
20. The trial court rejected the plaintiffs case observing that the fact that the defendants were put in possession as lessees was not proved. Similarly, the oral sale pleaded by the defendant also was not accepted by the trial Court, as there is no acceptable material. However, on the basis of the documents Exs.B1 to B5, it has been held that the defendants had been in possession of the suit property from the year 1967, for about 19 years. It is the specific finding by the trial Court that there is no proof that the said house was constructed only after the oral sale effected in 1958 from Maduthin Nadar.
21. On going through the judgment of the trial Court, it is seen that the trial Court has elaborately discussed the evidence of P.W.1, the first plaintiff and P.W.2 and pointed out the fallacy on the aspect of the evidence relating to the construction of superstructure in the suit land by the said Maduthin Nadar. The trial Court has also given elaborate reasoning to reject the evidence let in by the plaintiffs side as regards the tenancy.
22. According to the plaint, Maduthin Nadar died 7 years back at Srilanka and the plaintiffs put the defendants in possession on lease in January, 1977 on the agreement that the defendants should pay the rent at the rate of Rs.3 and the defendants defaulted to pay the rent from January, 1998. In the deposition, P.W.1 would state that the hut was put up in the suit land by her husband for the purpose of the second plaintiff to stay therein and after some years, the suit property was leased out to the defendants and they gave only one month's rent and subsequently, they defaulted in making the payment of arrears. P.W.2 would state that the property was leased out by Maduthin Nadar to the defendants even before his death. According to him, the rent was paid for one year and subsequently, they defaulted.
23. On the basis of the above evidence, the trial Court found that the evidence adduced by the plaintiffs side cannot be accepted, as there is no material to show that the superstructure was constructed by Maduthin Nadar and after his death, the suit property was leased out to the defendants. As a matter of fact, the trial Court would give a specific finding that in the absence of any documentary evidence, both the pleas, namely, tenancy and the oral sale cannot be accepted.
24. However, the lower appellate Court without adverting to any of the reasons and discussion made by the trial Court, in one paragraph would merely refer about the evidence of P.Ws.1 to 4 and observe that the fact of tenancy has been proved. The relevant paragraph is given as under:-
25. As indicated above, the trial Court made a threadbare discussion about the evidence of P.Ws.1 to 4 and rejected their evidence on the basis of various inconsistencies with reference to the aspect of tenancy. But, the lower appellate Court without considering those reasonings and without adverting to the real meaning of evidence given by P.Ws.1 to 4, would simply state that P.Ws.1 to 4 have given clear evidence regarding the tenancy. This, in my view, is not a proper approach.
26. According to P.W.2 the suit property was leased out by Maduthin Nadar. But, according to the plaint and the evidence of P.W.1, the suit property was leased out by the plaintiffs only after the death of Maduthin Nadar. Moreover, there is no documentary evidence to prove that there was a lease agreement between the parties and there is nothing to indicate that at any point of time, either the plaintiffs or any other predecessor or any agent on their behalf collected any rent whatsoever from the defendants in respect of the suit property.
27. Under those circumstances, the lower appellate Court has come to a hasty conclusion that the tenancy was proved on misreading of the evidence let in on behalf of the plaintiffs.
28. At this juncture, I am conscious of the ruling of the Supreme Court that though the finding of the lower appellate Court is erroneous, that would not be a ground for interference in second appeal. However, it shall be borne in mind that when the first appellate Court has given reasonings for accepting the evidence of P.Ws.1 to 4 which reflect perversity and when it has found that the conclusion drawn by the lower appellate Court is erroneous being contrary to the settled position of law, this Court would certainly consider the same and would interfere in order to render justice to the parties. In my view, this is not merely a finding on the factual aspects, but the conclusion arrived at by the lower appellate Court without at all considering the evidence actually available.
29. Let us now deal with the main and substantial question of law formulated in this case.
30. According to the counsel for the appellants, the lower appellate Court set aside the trial Court's judgment giving a finding on adverse possession on the ground that no such issue was framed, but as a matter of fact, such an issue was framed by the trial Court and finding has been given and in such circumstances, the lower appellate Court's judgment is wrong. He would also point out that even assuming that such an issue has not been separately framed, it is well-settled that where parties go to trial with knowledge that a particular question is in issue, the absence of the framing of a specific issue would not vitiate the right of the parties and at the most, it could be said a mere irregularity, which would not result in any prejudice to them.
31. On the other hand, it is vehemently contended by the counsel for the respondents that there is no issue framed by the trial Court in regard to adverse possession and also there is no pleading regarding the adverse possession as well as the commencement of the said adverse possession. He would further submit that a person, who claims title to the property by adverse possession must definitely allege and prove how and when adverse possession commenced and what was the nature of his possession and in the absence of the issue or proof, the defendants cannot succeed.
32. With regard to this proposition of law, the counsel for both would cite several authorities.
33. Let us first refer to the authorities cited by the counsel for the appellants.
34. In Kameswaramma v. Subba Rao, , it is held thus:-
"Where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer,"
35. In Kunju Kesavan v. M.M.Philip, , it is observed as follows:-
"We do not think that the plaintiff in the case was taken by surprise, .... The parties went to trial, fully understanding the Central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a mis-trial sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff made the following plea in the replication.
36. In Gavigowda v. Kalegowda, , it is held as under:-
" Anyway, it is the fact that no specific issues has been made though it may be said to be included in issue No.1. But, issue No.1 can be said to be vague. It would have been a case for interference on this ground in the second appeal, provided the plea or point in dispute would not have been clear to the parties and party did not understand the case at the time of the trial and would not have led any evidence. It is well settled that mere failure to frame an issue will not entitle the reversal of decree unless and until it is shown that party did not know the point in dispute and so it was materially prejudiced in course of trial."
37. In MD.Umarsaheb v. Kadalaskar, , it is observed thus:-
"There is certainly some substance in the grievance raised on behalf of the appellant that the first issue was rather confusing and misleading. Instead of framing a separate issue with regard to each charge of corrupt practice raised in the petition, the learned Judge framed the issue in a manner which leaves much to be desired. ..... We cannot, however, come to the conclusion that because of the unsatisfactory nature of the issues framed, the whole trial is vitiated. The appellant knew exactly what points he had to meet.
38. In Nagubai v. B.Shama Rao, , it is held as follows:-
"The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto,"
39. The ratio of these decisions decided by the Courts is that even though there is no specific issue framed, if there are materials to show that the parties knew exactly what point they have to meet and they went to trial with knowledge relating to the particular issue, then it would not entitle the reversal of the decree, unless it is shown that the parties were materially prejudiced in course of time.
40. The learned counsel for the respondents would cite the following decisions in support of his contention.
41. In Ponnaiyan v. Munian (died), 1995 (II) M.L.J. 294, it is observed as follows:-
"It is well established that a person, who claims title to the property by adverse possession must definitely allege and prove how and when adverse possession commences and what was the nature of his possession.
42. In Premendu Bhusan v. Sripati Ranjan, , it is held thus:-
"A sqautter or trespasser, who does not set up a claim of right cannot plead adverse possession and no length of mere squatting possession is a good defence in a suit for possession by the true owner."
43. Parwatabai v. Sonabai, , it is observed as follows:-
"Therefore, when the plaintiffs asserted their title on the basis of succession to the estate of their father, it is for the appellant to prove as to on which date the appellant's possession has become adverse to the respondents title."
44. In Kaniz Fatima v. Naim Ashraf, AIR 1983, All. 450, it is held as under:-
"Where no issue has been framed on a question, which arises out of the pleadings of the parties, the cowl cannot proceed to record a finding on that point and no decree can be based upon that finding."
45. In Thakur Sah v. Sheo Pujan Prasad, , it is observed thus:-
"There was nothing either in the plaint or in the evidence, to show as to when the possession of the plaintiff became adverse, if at all. A mere statement in the plaint that the plaintiffs had acquired title by adverse possession is not enough to raise such a plea. Long possession cannot necessarily be adverse possession. There was no evidence which could indicate that the plaintiffs had acquired title by adverse possession."
46. In Baruna v. Rajakishore, , it is held as follows:-
"In the first place it was for the defendants to plead and prove how and from what time their possession which was initially permissive changed its character and became adverse. Unless the plea is specifically raised in the pleading, it cannot be allowed to be flung as surprise on the plaintiffs for the first time in appeal."
47. The gist of the above decisions would make it abundantly clear that a person, who claims title to the property by adverse possession shall plead and prove how and when adverse possession commenced on the basis of the issue framed.
48. As noted above, it is the contention of the counsel for the appellants that the plea of adverse possession had been pleaded and proved after framing of the relevant issue.
49. Before going into this aspect, it would be appropriate to refer to the decision of the Supreme Court in Thakur Kishan Singh v. Arvind Kumar, , wherein it is held that the finding of the appellate court that possession was not adverse, cannot normally be interfered with in second appeal.
50. In that case, the appellant, admittedly, entered into possession over the land in dispute under a licence from the respondent and the said possession initially permissive. Such being the situation, the Supreme Court would hold that the burden was heavy on the appellant to establish that it became adverse to the knowledge of the real owner. When the materials were lacking as to when it was converted into adverse possession into the permissive possession, the appellate Court went into detail and found it as a fact that the possession of the appellant was not adverse. According to the Supreme Court, such a finding cannot be demolished in the second appeal.
51. The above decision would not apply to this case. The lower appellate Court did not discuss the materials relating to the adverse possession in order to find out whether such adverse possession was established, but merely held that the finding by the trial Court as regards the adverse possession in favour of the defendants was even without the issue framed and therefore, the said finding was liable to be set aside.
52. The decision of the Apex Court referred to above also has to be distinguished in yet another aspect.
53. In that case, the appellant was put in possession as a licensee and his possession in the land in dispute was permissive. But, in the present case, it is not the case of the appellants/defendants that they were given the permissive possession. On the other hand, the defendants have been in possession from 1958 on oral sale after the purchase of the said property from Maduthin Nadar. Under those circumstances, the above decision in either of the ways would not be useful for the respondents.
54. Let us now go into the contention urged by the counsel for the appellants, as indicated above.
55. The plaintiffs/respondents issued a notice dated 4.1.1982 to the defendants terminating the tenancy on the ground of non-payment of rent from January 1978 calling upon them to vacate the suit property and to pay the arrears of rent. In reply to the said notice, the defendants sent a notice dated 30.1.1982 stating that they purchased the suit property by means of an oral sale from Maduthin Nadar in 1958 and they have constructed a pucca house in 1962 after demolishing the thatched hut and continued to live in it and from the year 1965, the property came to be assessed to property tax and as such, there was no tenancy and there is no question of terminating the tenancy agreement, as they have been in possession of the suit property ever since the date of the purchase.
56. In the Written statement filed by the defendants, they specifically adverted to their adverse possession also in paragraph 4. The para 4 is as follows:-
"The defendants are in possession and occupation of the 2nd schedule house treating it as their absolute property paying the house tax to the Kommadikottal Panchayat since 1965 in assertion of their own right to the knowledge of the plaintiffs for over 12 years and have thus prescribed title to it by adverse possession also."
57. On the basis of the pleadings in the plaint and the written statement, the trial Court initially framed four issues, which are as follows: -
58. In addition to these issues, three additional issues were framed by the trial court on 4.2.1986. They are as follows:-
59. The second additional issue framed would show that a specific question was raised as to whether the oral sale as pleaded by the defendants is valid? the third additional issue framed would reveal the question, whether the defendant would be entitled the suit property on the basis of adverse possession. Therefore, in my view additional issue NO.3 would relate to the pleadings of the defendants contained in para 4.
is not mentioned in that issue. But, when the other issue, namely, second additional issue would relate to the entitlement of the property on the basis of the oral sale, it goes without saying that the third additional issue only would related to the pleadings in para 4 as regards the adverse possession. In other words, though the word adverse possession, is not mentioned in additional issue No. 3, the reading of the other issues and written statement would clearly indicate that the third additional issue is only in regard to the adverse possession.
61. Under these circumstances, in my considered opinion that the adverse possession was pleaded by the defendants and relevant issue was framed by the trial court.
62. Now, the next question is, whether it has been proved how and when such an adverse possession commenced?
63. In this context, it has to be borne in mind that this is a suit for declaration and recovery of possession filed by the plaintiffs/respondents. The claim for recovery of possession was made by the plaintiffs on the basis that the defendants were put in possession as tenants in the year 1977.
64. As indicated above, though the first plaintiff as P.W.1 would state that after the death of Maduthin Nadar, the suit property was leased to the defendants by the plaintiffs. P.W.2 would specifically state that the properties were leased out by Maduthin Nadar even when he was alive.
65. Under those circumstances, as pointed out by the trial Court, there is no clear details as to when the properties were entrusted to the defendants on lease and by whom.
66. According to the plaintiff's witnesses, a thatched hut was constructed by Maduthin Nadar. Admittedly, there is a pucca building constructed in the suit land as per the Commissioner's report Ex.C1. It is not the case of P.W.1 that this pucca building was constructed by her. P.W.1 would state:
This shows that the pucca building situated in the suit land was not stated to have been constructed by the plaintiffs. According to her, only thatched hut was leased out.
67. The lower appellate court would observe that P.W.2 state that the second schedule property was constructed by Maduthin Nadar. But, on a perusal of the records, it is clear that P.W.2 would state that he did not know whether maduthin Nadar constructed the said house. The relevant version is as follows:-
68. Under those circumstances, it cannot be held that there is any material to show that the said pucca building had been constructed either by the first plaintiff or by her husband. Therefore, the plaintiffs cannot claim recovery of possession on the basis of those pleadings which have not been proved.
69. Similarly, though the defendants pleaded that by virtue of the oral sale, they have been possession of the suit property from 1958, except their oral statement, there is nothing to indicate that the defendants were in possession of the suit property from 1958 as the owners of the same.
70. In the light of the above fact situation, either of the parties have not proved the title to the house building in the suit land as owners.
71. In the said situation, we have to consider whether the additional issue no.3 has been proved and established by the defendants in regard to adverse possession.
72. As laid down in the decisions referred to above, there is no statutory definition of adverse possession. Adverse possession refers to actual and exclusive possession coupled with intention to hold as owner. Adverse possession becomes hostile to the rightful owner when a person openly and continuously, possesses a land under a claim of right adverse to the title of the true owner for the statutory period. In other words, adverse possession means a hostile possession which is express or implied in denial of the title of the true owner. Such possession must be actual, exclusive, under a claim of right, adequate in continuity in publicity and in extent so as to show that it is adverse to the true owner. Such possession, in denial of title of the true owner must be peaceful, open and continuous. Mere possession without a claim of right for over a long time is not sufficient to create adverse possession. There can be no adverse possession if the person claiming does not know that he is enjoying somebody else's land, he must have the intention of using the property adversely against another in it. To put it briefly, a person by holding possession of the property for the statutory period can acquire title only when his possession is:(1) under a claim of title, (2) hostile to the true owner, and (3) actual, open, uninterrupted, exclusive and continuous.
73. In the light of the above proposition, if we consider the materials available on record, then there is no difficulty in coming to the conclusion that the second schedule property which forms part of the first schedule property belonged to Maduthin Nadar.
74. Under those circumstances, it is clear that the legal representatives of the said Maduthin Nadar would be entitled to the suit land in the absence of clear proof to the claim made by the defendants that they purchased the suit land on oral sale from the said Maduthin Nadar in the year 1958.
75. According to the plaintiffs, two years prior to 1977, Maduthin Nadar died and the properties were leased out to the defendants in the year 1977. As indicated above, there is no material to show that the pucca building in the suit land was constructed by Maduthin Nadar. It is also not the case of the first plaintiff that she constructed the pucca building and the defendants were put in possession of the said building.
76. In the light of the said situation, we have to see as to whether the pucca building was constructed by the defendants and they have been in possession and enjoyment of the said building from the date of its construction.
77. According to the reply notice Ex. A8, the defendants constructed a pucca building in the year 1962 and in 1965, the said building came to be assessed to property tax by the Panchayat Union in the name of the First defendant and his brother. It is also mentioned in the said notice that the house property was bearing No.111 in ward No.5.
78. Ex.C1, the Commissioner' report also would indicate that the Advocate Commissioner, who inspected the suit property found that there is a pucca building bearing Door. No.111 and age of the house was more than 15 years According to the report, the door and its frames look old, but yet strong.
Admittedly, there is no statement of objection filed by the plaintiffs this report.
79. It is true that P.W.4, the neighbour, was examined to speak that his door number was 108. Through his evidence, the lower appellate court wants to infer that the door number of the suit house must be either 107 or 106 and not 111. But, the entire reading of P.W.4's evidence would show that he has given the details of the other houses bearing Door Nos.106 and 107. Moreover, he would also state in cross-examination that there are no door numbers as 109 and 110:
Thus, his evidence is of no use to the plaintiffs, as it is the specific statement by the commissioner in his report that the suit house number is 5/111.
80. The trial court would consider all the documentary evidence filed by the defendants have been in possession of the property. Ex.B1 would show that water charges have been paid in the name of the first defendant for Door No. 5/111 to the Panchayat. This is signed by the Bill collector on 21.10.1967. Exs.B2 and b3 would show that the first defendant paid house tax for Door No.5/111 for the years 1977-78, 1979-80 and 1981-82. Ex.B4 is the family card relating to the period 1982 to 1986, which would show that the first defendant along with the second defendant Therasammal and his sons and daughters was living in Door No.5/111. Ex.B5 would relate to the house tax arrears collected fro, Thanislas, the first defendant and his brother Devasagayam from the year 1968-69 to 1984-85 in respect of Door No.5/111.
81. D.W.1 the second defendant has given evidence referring all these documents and would state that she has been in possession and enjoyment of the property along with her family members all along to the knowledge if the plaintiffs. The deposition of D.W.1 would clearly show that she was cross-examined at length. On the basis of her evidence corroborated by the documentary evidence, the trial court would hold that the defendants though had not established the possession by virtue of the oral sale from 1958, proved their adverse possession commencing from 1967 through the documentary evidence which was continuous and uninterrupted to the knowledge of the plaintiffs.
82. It is the plaintiffs' case that the defendants took possession of the suit property only in the year 1977 as tenants. As stated above, there is no material to show that the plaintiffs constructed the pucca building and handed over the same to the defendants in the year 1977. There is also no material to show that at any point of time the defendants have paid any rent to the plaintiffs.
83. Moreover, according to P.W.1, she received only one month's rent in 1977. According to P.W.2, the rent was collected for 12 months. Even assuming that the rents were collected for some months and the defendants defaulted in their payment from January, 1978, as stated in the plaint, there is no reason as to why the plaintiffs chose to issue terminating tenancy only in January, 1982. But, on the other hand, it has been established by the defendants that the plea of tenancy in 1977 cannot be true, inasmuch as there are documentary evidence to show that the house was constructed in 1965 and door number was allotted as 5/111 and water charges and house tax have been paid by the defendants from 1967 onwards.
84. Admittedly, Maduthin Nadar expired two years prior to 1977. The plaintiffs were well aware that the first and second schedule of properties were purchased by Maduthin Nadar in his name, under these circumstances, it is manifestly clear that the defendants constructed the building in the suit land and enjoyed the same by adverse possession for a long number of years. At any rate under documentary evidence, the adverse possession commenced in 1967 itself.
85. Much was said about the burden of proof, which lies on the defendants to prove adverse possession. In this context the observation of the Supreme Court made in Narayan v. Gopol, relating to the said aspect is quite relevant, which is as under:-
"The expression 'burden of proof really means two different things. It means sometimes that a party is required to prove an allegation before judgment can be given in its favour; it also means that an a contested issue one of the contending parties has to introduce evidence. The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail. Where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden if proof becomes academic."
86. In the present case, as discussed above, in my considered opinion that the trial court correctly took into consideration all the aspects of the evidence and gave a proper answer to the additional issue No.3 by holding that the defendants have established their title, in pursuance of adverse possession, But the lower appellate court has omitted to apply its judicial mind with reference to the pleading of the defendants in the written statement, issues framed in regard to adverse possession and the evidence let in, by the parties.
87. Therefore, this Court has to necessarily interfere, since the appellants have suffered injustice to be remedied, especially this court finds, that the conclusions drawn by the mandatory provisions of applicable law which are based upon no evidence, as the Apex Court holds, when the first appellate court has not exercised discretion in a judicial manner, this Court would certainly interfere with the said decision, as it suffers from an error of law.
88. In the result, the second appeal is allowed and the judgment and decree of the lower appellate court are set aside. Consequently, the judgment and decree of the trial court are restored. No costs.