Madras High Court
Mr.R.Riyaz Ahmed vs J.G.Glass Industries Pvt. Ltd on 4 April, 2014
Author: M. Duraiswamy
Bench: M.Duraiswamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 04.04.2014 CORAM: THE HON'BLE MR. JUSTICE M.DURAISWAMY S.A.No.655 of 2011 1.Mr.R.Riyaz Ahmed 2.R.Rafi Ahmed 3.R.Mustaq Ahmed 4.R.Shafeeq Ahmed ... Appellants Vs. 1.J.G.Glass Industries Pvt. Ltd., No.105/A, Old GST Road, Pallavaram, Chennai 600 043. 2.D.Nandakumar 3.Tmt.Sujatha Nandha Kumar ... Respondents Second Appeal has been filed under Section 100 of the Civil Procedure Code against the judgment and decree in A.S.No.11 of 2008 dated 25.10.2010 on the file of the Principle District Judge, Chengalpet, confirming the judgment and decree in I.A.No.696 of 2006 in O.S.No.73 of 2006 on the file of the Principle Sub Judge, Chengalpet, dated 12.10.2007. For Appellants : Mr.V.Raghavachari For Respondents : Mr.V.Ramesh J U D G M E N T
The above appeal arises against the judgment and decree passed in A.S.No.11 of 2008 on the file of the Principle District Court, Chengalpet, confirming the judgment and decree passed in I.A.No.696 of 2006 in O.S.No.73 of 2006 on the file of the Principal Sub Court, Chengalpet. The plaintiffs are the appellants and the respondents were the defendants in the suit.
2.The plaintiffs filed the suit in O.S.No.73 of 2006 for the following reliefs:
(i)for a declaration that these plaintiffs have perfected their title to the plaint schedule property lands by adverse possession and prescription and for a consequential relief of injunction restraining the defendants from in any manner interfering with these plaintiffs' peaceful possession and enjoyment of the plaint schedule land and the leather industry upon the plaint schedule or in the alternative for a declaration that these plaintiffs are the absolute owners of the plaint schedule properties under a possessory title and for a consequential injunction restraining the defendants from in any manner interfering with these plaintiffs' peaceful possession and enjoyment of the plaint schedule land and leather industry upon the plaint schedule lands;
(ii)for a declaration that the first defendant Company had no legal and physical existence and hence a fictitious Company;
(iii)for costs of the suit; and
(iv)for such other suitable relief.
3.The brief facts necessary for the disposal of the Second Appeal are as follows:
The plaintiffs are the brothers and partners of M/s.Sagayi Leather Trading Company. Their father, Late K.Abdul Rasheed, administered the said partnership business till his death. The plaintiffs' father, as a partner of the said Company, is a tenant under the first defendant Company. The first defendant Company initiated rent control proceedings against the partnership firm for eviction. Eviction was ordered by consent, granting six months time on 30.01.1990. Therefore, the ownership of the first defendant to the suit was admitted by the plaintiffs' father. The plaintiffs' father entered into a Sale Agreement on 27.01.1990, agreeing to purchase a portion of the suit property under his occupation. The said Abdul Rasheed died on 03.01.2002 and after the demise of Abdul Rasheed, his sons viz., the plaintiffs succeeded to the administration of the partnership business and paid rents to the first defendant Company. Thereafter, the plaintiffs filed a suit for specific performance in O.S.No.171 of 2003, in which they admitted the ownership of the first defendant Company in respect of the suit property. The plaintiffs presented the present suit on 30.01.2006 and was subsequently re-presented and taken on file on 31.03.2006. The plaintiffs filed the present suit while the earlier suit in O.A.No.171 of 2003 was pending. Subsequently, on 04.04.2006, the plaintiffs not pressed the suit in O.S.No.171 of 2003, without disclosing the initiation of the present suit. The plaintiffs all along contended that the first defendant Company is the owner of the property and the partnership firm viz., M/s.Sagayi Leather Trading Company was in possession of the suit property, as a tenant and by filing the present suit, they took a different stand stating that they prescribed title by adverse possession. In the suit in O.S.No.171 of 2003, the plaintiffs' obtained interim injunction not to disturb their possession and enjoyed the order of injunction till 04.04.2006. In the present suit also, they obtained an order of injunction on 31.03.2006 not to disturb their possession, therefore, the plaintiffs obtained and enjoyed two orders of interim injunction from 31.03.2006 to 04.04.2006 on the basis of two inconsistent pleas taken against the defendants (i.e.) in O.S.No.171 of 2003, the plaintiffs enjoyed an order of injunction as Agreement Holder as the owner and in O.S.No.73 of 2006, obtained an order of injunction as if the plaintiffs are the owners. It is settled law that a person claiming adverse possession, should accept the ownership of the person against whom the relief of adverse possession is claimed and he should prove his possession is adverse to that of the interest of the true owner. In the present suit, the plaintiffs denied the ownership of the defendants. The defendants filed a petition under Order 7 Rule 11 of the Code of Civil Procedure to reject the plaint, raising the plea of maintainability of the suit claiming title by adverse possession, however, denying the title of the defendants. After the filing of the written statement on 27.06.2006, the plaintiffs filed an application in I.A.No.824 of 2006 under Order 1 Rule 10 of the Code of Civil Procedure to implead six other persons as defendants in the suit on 27.09.2006. The plaintiffs, in the impleading petition, have stated that the proposed defendants 5 to 10 are the real owners of the suit property. Further according to the plaintiffs, the suit property was originally owned by Ayyasamy and Ponniammal. The proposed parties are their legal heirs. However, in order to substantiate the said contention, the plaintiffs have not produced any evidence. That apart, in the petition, it was stated that the proposed parties attempted to disturb the possession of the plaintiffs on 01.08.2006, which is after the filing of the suit.
4.The trial Court, after taking into consideration the case of both parties and the documents filed by them, rejected the plaint and allowed the application. Aggrieved over the judgment and decree passed in I.A.No.696 of 2006 in O.S.No.73 of 2006, the plaintiffs preferred an appeal in A.S.No.11 of 2008 and the lower Appellate Court also confirmed the judgment and decree of the trial Court and dismissed the appeal. Aggrieved over the same, the plaintiffs have filed the above Second Appeal.
5.Heard Mr.V.Raghavachari, learned counsel appearing for the appellants and Mr.V.Ramesh, learned counsel appearing for the respondents.
6.The appellants have raised the following substantial questions of law in the Second Appeal:
(i)Whether both the Courts below while rejecting the plaint in O.S.No.73 of 2006 committed error as none of the provisions of the Order 7 Rule 11 C.P.C. were attracted?
(ii)Whether both the Courts below while rejecting the plaint in O.S.No.73 of 2006 on the file of Sub Court, Chengalpet on the ground that as the earlier suit in O.S.No.171 of 2003 on the file of Sub Court, Chengalpet had not been withdrawn by the time of the filing of the second suit in O.S.No.73 of 2006 and hence hit by Order 2 Rule 2 C.P.C. is correct?
(iii)Whether the judgment and decree passed by both the Courts below rejecting the plaint in O.S.No.73 of 2006 on the file of Sub Court, Chengalpet, as to adverse possession and prescription as this appellants have denied the 1st respondent's title, are not passed as per the terms of Order 7 Rule 11 C.P.C. and hence liable to be set aside?
(iv)Whether the cause of action in the two suits are totally different and the cause of action to file the subsequent suit was not available to the appellants/plaintiffs at the time of filing the previous suit, whether the subsequent suit would be hit by the provisions of Order 2 Rule 2 of C.P.C.?
(v)Whether in the circumstances two relief were prayed one for relief of adverse possession and prescription and another for a declaration that the first defendant Company had no physical existence and hence fictitious, whether the rejection of plaint with reference to first relief without conducting trial for the second relief would amount to improper exercise of jurisdiction by the Courts below?
(vi)While partial striking out of pleadings when permissible under Order 6 Rule 16 C.P.C., but not permissible for partial rejection of the plaint under Order 7 Rule 11 C.P.C and hence the rejection of the plaint by Courts below is in defiance of the law laid down in AIR 2000 P & H 44 and AIR 1982 SC 1223?
7.Mr.V.Raghavachari, the learned counsel appearing on behalf of the appellants submitted that in the facts and circumstances of the present case, the Courts below ought not to have rejected the plaint. Further, the learned counsel submitted that since there are disputed facts between the parties, the same can be established only after full-fledged trial of the suit. According to the learned counsel, the rejection of the plaint by the Courts below is erroneous and the learned counsel prayed that the judgments and decrees of the Courts below may be set aside and the Second Appeal may be allowed.
8.In support of his contention, the learned counsel relied upon the following judgments:
(i)1969 (3) Supreme Court Cases 129 [Somnath Burman Vs. Dr.S.P.Raju and another], which reads as follows:
"8.In addition to the evidence referred to earlier, the High Court has also relied on two other documents namely Exts. D-8 and D-9, but those documents were produced as additional evidence in the High Court. Their connection with the suit property is not satisfactorily established. Therefore we have excluded them from consideration. If we bear in mind the fact that the question for decision is whether the plaintiff or the second defendant was in possession of the suit property between the year 1930 to 1945, there is hardly any doubt that the preponderance of evidence is in favour of the plaintiffs case. As seen earlier, the defendants have not produced any reliable evidence to support their case. Hence we agree with the High Court that the plaintiff has succeeded in establishing that he was in possession of the suit property prior to 1945.
9.It was next contended on behalf of the appellant that in a suit for possession brought on the basis of title, the plaintiff cannot succeed unless he proves his title to the suit property as well as its possession within twelve years. According to the appellant, except in a suit under Section 9 of the Specific Relief Act, the plaintiff for succeeding in the suit, has to prove both existing title to the suit property and its possession within twelve years. We are unable to accept this contention as correct. In our opinion the possession of the plaintiff prior to 1945 is a good title against all but the true owner. The defendants who are mere trespassers cannot defeat the plaintiffs lawful possession by ousting him from the suit property. Possessory title is a good title as against everybody other than the lawful owner. In Ismail Arriff v. Mahomed Ghouse [ILR 20 IA 99] the Judicial Committee came to the conclusion that a person having possessary title can get a declaration that he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession. Therein it was observed that the possession of the plaintiff was a sufficient evidence of title as owner against the defendant."
(ii)(1994) 6 Supreme Court Cases 155 [Basha and others Vs. Khairunnessa Bivi and another] wherein the Apex Court held that the second plaintiff being in uninterrupted possession and enjoyment for 16 years in assertion to his own right as owner, acquired possessory title and as such entitled to declaration of title. The appellants having trespassed in his property his plea of title by adverse possession is not sustainable.
(iii)(2004) 1 Supreme Court Cases 769 [Rame Gowda (Dead) by LRs. Vs. M.Varadappa Naidu (Dead) by LRS. and another] wherein the Hon'ble Supreme Court held as follows:
"The settled possession must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase settled possession does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Court laid down the following tests which may be adopted as a working rule for determining the attributes of settled possession (SCC p. 527, para 12):
(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
(ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and
(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession."
(iv)2011-1-L.W. 193 [Alka Gupta Vs. Narender Kumar Gupta] wherein the Apex Court held as follows:
"IV. A suit cannot be dismissed without trial merely because the Court feels dissatisfied with the conduct of the plaintiff.
16.Code of Civil Procedure is nothing but an exhaustive compilation-cum-enumeration of the principles of natural justice with reference to a proceeding in a Court of law. The entire object of the Code is to ensure that an adjudication is conducted by a Court of law with appropriate opportunities at appropriate stages. A civil proceeding governed by the Code will have to be proceeded with and decided in accordance with law and the provisions of the Code, and not on the whims of the Court. There are no short-cuts in the trial of suits, unless they are provided by law. A civil suit has to be decided after framing issues and trial permitting the parties to lead evidence on the issues, except in cases where the Code or any other law makes an exception or provides any exemption."
(v)(2008) 17 Supreme Court Cases 491 [Bachhaj Nahar Vs. Nilima Mandal and another], which reads as follows:
"The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief."
(vi)(2013) 5 Supreme Court Cases 673 [Neena Vikram Verma Vs. Balmukund Singh Gautam and others]. In this judgment, the Supreme Court held that an application under Order 7 Rule 11 is required to be decided on the face of the plaint or the petition, whether any cause of action is made out or not. Once it is accepted by a party by consent that a particular petition is to be heard by the Court, by giving up the objection under Order 7 Rule 11, the very party cannot be subsequently permitted to seek striking off the pleadings containing the cause of action under the garb that the pleadings containing the cause of action are unnecessary, vexatious or scandalous.
(vii)2007 (3) CTC 767 [Kandapazha Nadar & Ors. Vs. Chitraganiammal & Ors.]. In this judgment, the Apex Court held that when a Court allows a suit to be withdrawn without liberty to file a fresh suit without any adjudication, such order allowing withdrawal cannot constitute a decree and it cannot debar the plaintiff in such withdrawn suit from taking plea in defence in second round of litigation.
(viii)(2003) 1 M.L.J. 206 [Gengadurai Naicker and another Vs. A.Chockalingam and another] wherein this Court held that if the earlier suit was filed by the plaintiff for bare injunction and the second suit for specific performance, if the earlier suit was withdrawn after the filing of the second suit, if the cause of action in the earlier suit is distinct from that of the second suit, merely because the execution of the Sale Agreement is mentioned in the suit, it cannot be said that the cause of action is identical. Therefore, the second suit is not barred under Order 2 Rule 2 of the Code of Civil Procedure.
9.Countering the submissions made by the learned counsel for the appellants, Mr.V.Ramesh, the learned counsel for the respondents submitted that the Courts below rightly rejected the plaint under Order 7 Rule 11 of the Code of Civil Procedure for the reason that the plaintiffs had not approached the Court with clean hands and also taking inconsistent stand in the present suit and in the earlier proceedings. Further, the filing of the present suit by the plaintiffs is a clear abuse of process of Court by them.
10.In support of his contentions, the learned counsel for the respondents relied upon the following judgments:
(i)AIR 1977 Supreme Court 2421 [T.Arivandandam Vs. T.V.Satyapal and another] wherein the Apex Court held as follows:
"We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsifs Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under O. X. C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi. It is dangerous to be too good. "
(ii)(2013) 1 Supreme Court Cases 625 [Virgo Industries (Eng.) Private Limited Vs. Venturetech Solutions Private Limited] wherein the Apex Court held that the subsequent suit is not permissible when the cause of action for later suit is same as in the first suit, unless leave of the Court is obtained in first suit as to filing of subsequent suit for omitted relief. Under Order 2 Rule 2 to avoid multiplicity of litigations on the same cause of action, bar of filing of subsequent suit on the same cause of action is applicable both during the pendency of the first suit and also where first suit was disposed of.
(iii)(2006) 7 Supreme Court Cases 570 [T.Anjanappa and others Vs. Somalingappa and another]. In this judgment, the Apex Court held that if the possessor was not sure whether the plaintiff was the true owner of the property, the claim of adverse possession is not maintainable.
(iv)2012 (4) CTC 308 [The Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman Vs. Ponniamman Educational Trust, represented by its Chairperson/ Managing Trustee]. In this judgment, the Supreme Court held that in a suit for specific performance of agreement, the plaintiff in order to prove the cause of action on which the suit was based, bound to produce all documents related to cause of action. If the plaint is bereft of required materials as mandated by statutory provisions, liable to be rejected as cause of action pleaded in plaint vitiated.
(v)(2001) 9 Supreme Court Cases 385 [Bhura Mogiya and others Vs. Satish Pagariya and others]. In this judgment, the Apex Court held as follows:
"Learned counsel then argued that in any case the defendants having remained in possession for a considerable period of time, more than 12 years, thereby acquired title by adverse possession. Admittedly, the defendants came into possession on the basis of agreement, which was a permissible possession. Once the defendants' possession was by virtue of an agreement it is not open to them to take a plea that they acquired title by adverse possession. Permissible possession cannot be converted into adverse possession unless it is proved that the person in possession asserted and acquired adverse title to the property to the knowledge of the true owner for a period of 12 years and above. We do not find any merit in the contention of the learned counsel for the appellant."
(vi)(2011) 5 M.L.J. 625 [N.Ravindran Vs. V.Ramachandran] wherein a Division Bench of this Court held that to declare a suit as barred by any law, the Court can decide the same by looking at the averments contained in the plaint itself. The Division Bench further held that the plaintiff has intentionally omitted to claim the relief of specific performance in the earlier suit, he will not be subsequently entitled to sue in respect of the portion of his claim-right of specific performance, which was omitted.
(vii)(2008) 3 M.L.J. 821 [M.Somasundaram and Another Vs. District Collector-cum-Accommodation Controller, Chennai and Others] wherein this Court held that one of the most abuse of process of Courts is re-litigation. It is contrary to justice and public policy. Further this Court held that permission to relinquish the relief and reserving right to file another suit should be obtained in the earlier and not in the subsequent suit. When a suit is withdrawn without leave to file a fresh suit, filing of second suit on the same allegations and the same relief is barred.
11.Before the trial Court, on the side of the defendants, 13 documents Exs.P1 to P13 were marked and on the side of the plaintiffs, 25 documents, Exs.R1 to R25 were marked, however, no oral evidence was let in by the parties.
12.On a careful consideration of the materials available on record, the submissions made by the learned counsel on either side and taking into consideration the judgments relied upon by the learned counsel on either side, it could seen that it is not in dispute that earlier, the plaintiffs filed a suit in O.S.No.171 of 2003 on the file of the Principal Sub Court, Chengalpet, for specific performance of the Sale Agreement dated 27.10.1990, on the basis of agreement between their father viz., Abdul Rasheed and Sadagopan in respect of 7 = grounds of lands. The plaintiffs also obtained an order of injunction not to disturb their possession and the order of injunction was in force till 04.04.2006. During the pendency of the said suit, the plaintiffs filed the present suit, which was filed on 31.03.2006 and in the present suit, they have claimed title over the suit property by adverse possession. In the present suit also, on 31.03.2006, they obtained an order of injunction not to disturb their possession. On 04.04.2006, the plaintiffs withdrew the earlier suit. Therefore, it is clear that the plaintiffs obtained and enjoyed two interim orders from 31.03.2006 to 04.04.2006 on the basis of two inconsistent pleas against the same defendants. It is also pertinent to note that without obtaining leave under Order 2 Rule 2 of the Code of Civil Procedure, the plaintiffs have filed the present suit, which is barred under Order 2 Rule 2 of the Code of Civil Procedure. The judgment reported in (2013) 1 Supreme Court Cases 625 [Virgo Industries (Eng.) Private Limited Vs. Venturetech Solutions Private Limited] relied upon by the learned counsel for the respondents squarely applies to the facts and circumstances of the present case. Therefore, the act of the plaintiffs in obtaining two interim orders against the defendants in two different suits on the basis of two inconsistent pleas is clearly abuse of process of law and the Courts below rightly rejected the plaint on this ground.
13.That apart, in the earlier proceedings, the plaintiffs did not dispute the title of the first defendant Company. The first defendant initiated rent control proceedings for eviction against M/s.Sagayi Leather Trading Company, in which the plaintiffs' father was a partner. Eviction was ordered by consent, granting six months time to the partnership firm for delivering vacant possession. Even in the rent control proceedings, the title of the first defendant was not disputed by the tenant. But contrary to the stand taken in the earlier proceedings, in the present suit, the plaintiffs have disputed the title of the first defendant Company. The present suit has been filed by the plaintiffs for declaration to declare that the plaintiffs have perfected their title to the suit property by adverse possession and prescription and for consequential injunction and for other reliefs.
14.When it was not the case of the plaintiffs' father that the first defendant Company is a fictitious Company in R.C.O.P.No.179 of 1982, after the demise of their father in the year 2001, his sons viz., the plaintiffs cannot contend that the first defendant Company is a fictitious Company. Such an averment taken by the plaintiffs cannot stand and the same was rightly rejected by the Courts below holding that the first defendant is not a fictitious Company as alleged by them. In the plaint in O.S.No.171 of 2003, which was marked as Ex.P12, in paragraph no.3, the plaintiffs have admitted that the property belongs to the first defendant. In paragraph no.4, they have admitted that the first defendant purchased the property in and around the year 1970. Having admitted the title of the first defendant, the plaintiffs had taken a different stand in the present suit. In the earlier suit, there is no reference that the plaintiffs' father's possession was adverse to that of the defendants.
15.It is settled position that the plea of adverse possession can be raised only as a defence. In other words, the plea of adverse possession can be used only as a shield and not as a sword. In the judgment reported in (2014) 1 Supreme Court Cases 669 [Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and another], the Hon'ble Supreme Court held as follows:
"5.Insofar as Issue 4 pertaining to relief of injunction is concerned, the learned Civil Judge held that as long as uninterrupted possession of the appellant was established, the appellant was entitled to the decree of injunction and the respondents were restrained from dispossessing the appellant forcibly and illegally from the suit land and also restrained from damaging the building of Gurdwara Sahib. Issue 5 was decided against the respondent on the ground that no evidence was led to show how the suit was not maintainable in the present form. While granting relief, the learned Civil Judge partly decreed the suit holding as under:
It is held that the plaintiff is in adverse possession over the suit property since 13-4-1952 and the defendants are restrained from dispossessing the plaintiff forcibly and illegally from the suit property and further restrained from damaging the building of Gurdwara Sahib except according to due process of law. As discussed above, the remaining relief as sought by the plaintiff is dismissed. Decree-sheet be prepared. File be consigned to the record room.
6.It is pertinent to note that the respondents accepted the judgment and decree pertaining to prohibiting injunction. It is the appellant who filed the first appeal. Obviously, the confines of the said appeals related to the issue pertaining to declaration of ownership of adverse possession. The first appellate court while dismissing the appeal observed as under:
The respondents have not challenged the judgment and decree dated 6-1-2009 passed by the learned Civil Judge (Junior Division), Khanna, which means that they have accepted that the appellant was in adverse possession of the suit land since 13-4-1952. The issue whether adverse possession of the appellant-plaintiff had matured into his ownership is purely a question of law and it is a settled position that no declaration of title can be sought on the basis of adverse possession. The learned trial court has rightly relied upon the case titled Gurdwara Sahib Sannauli v. State of Punjab [(2009) 154 PLR 756] wherein it is held that no declaration can be sought by the plaintiff with regard to adverse possession because such a plea is available only to the defendant. Since the appellant was not the lawful owner of the property in dispute, therefore, Respondent 1 was within its rights to auction a part of the same on 19-12-2003 in favour of Respondent 2. Respondent 1 has proved that land measuring 13B-12B was auctioned on 19-12-2003 in the presence of BDPO, Doraha and Ranjit Singh was declared as the last bidder and the auction was struck in his name for a consideration of Rs 1,11,000 and the land measuring 6B on which the building of Gurdwara Sahib had been constructed, was not auctioned.
In view of my above discussion, I find no material illegality or irregularity in the judgment and decree dated 6-11-2009 passed by learned trial court and therefore the appeal is dismissed and the findings of the learned trial court are affirmed. Decree-sheet be prepared. File of the lower court be returned forthwith. File be consigned to the record room.
7.In the second appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable.
8.There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."
From the judgment of the Apex Court, it is clear that the issue whether adverse possession of the plaintiff had matured into his ownership is purely a question of law and it is a settled position that no declaration can be sought on the basis of adverse possession. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession had matured into ownership. Only if proceedings are filed against the plaintiff and the plaintiff is arrayed as defendant that it can use the adverse possession as a shield/defence.
16.In paragraph no.27 of the affidavit filed in support of the application in I.A.No.696 of 2006, the defendants have disputed the maintainability of the suit. As such, the present suit seeking for the relief of declaration on the ground of adverse possession is not maintainable and in view of the judgment of the Apex Court reported in (2014) 1 Supreme Court Cases 669 [Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and another], the said prayer is not maintainable. Therefore, on this ground also the plaint is liable to be rejected under Order 7 Rule 11 of the Code of Civil Procedure. The Courts below, taking into consideration the case of both parties, rightly rejected the plaint.
17.There is no dispute with regard to the ratios laid down in the judgments relied upon by the learned counsel for the appellants. However, since the facts and circumstances are different, the principles laid down in those judgments are not applicable to the present case.
18.In these circumstances, I find no ground much less any substantial question of law to interfere with the concurrent findings of the Courts below. The Second Appeal is liable to be dismissed. Accordingly, the same is dismissed. No costs.
Index : Yes 04.04.2014
Internet : Yes
va
To
1.The Principle District Judge, Chengalpet.
2.The Principle Sub Judge, Chengalpet.
M. DURAISWAMY,J.
va
Judgment in
S.A.No.655 of 2011
04.04.2014