Madras High Court
Rajendran vs Jeyapackiyam on 11 November, 2011
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/11/2011 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.(MD)No.331 of 2009 and M.P.(MD) No.1 of 2009 Rajendran ... Appellant/Plaintiff Vs. Jeyapackiyam ... Respondent/1st Defendant Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree of the learned Subordinate Judge, Thoothukudi dated 11.09.2008 in A.S.No.63 of 2006 reversing the judgment and decree of the learned Additional District Munsif, Thoothukudi dated 30.12.2005 in O.S.No.629 of 2004. !For Appellant ... Mr.M.P.Senthil ^For Respondent... Mr.G.Prabhu Rajadurai for Mr.R.Maheswaran * * * * * :JUDGMENT
This Second Appeal is focussed by the original plaintiffs animadverting upon the judgment and decree dated 11.09.2008, passed in A.S.No.63 of 2006 by the learned Subordinate Judge, Thoothukudi in confirming the judgment and decree dated 30.12.2005, passed in O.S.No.629 of 2004 by the learned Additional District Munsif, Thoothukudi.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. The whole hit and caboodle of facts giving rising to the filing of the Second Appeal as stood exposited from the records would run thus:
The plaintiff filed the suit for declaration of his title and for recovery of possession in respect of the suit property as against the defendant No.1. During the pendency of the suit, D2 was wrongly impleaded.
4. D1 filed the written statement as well as additional written statement resisting the suit contending that the plaintiff had no title to the suit property whereas he acquired title over it by adverse possession.
5. During trial, the plaintiff examined himself as P.W.1 and marked Exs.A.1 to A.16 on his side. On the side of the defendants D.Ws.1 to 3 were examined and Exs.B.1 to 19 were marked. Exs.C.1 to C.4 were also marked.
6. Ultimately, the suit was decreed by the trial Court. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, an appeal was filed by D1, whereupon the first appellate Court set aside the judgment and decree of the trial Court and dismissed the original suit.
7. Impugning and challenging the judgment and decree of the first appellate Court, the plaintiff preferred this Second Appeal on various grounds and also suggesting the following substantial questions of law:
"(a) Whether the findings of the Lower Appellate Court are vitiated in law by the non consideration and perverse appreciation of evidence without considering the Commissioner Report mark tender under Ex.C.1 to C.4 and the admission of D.W.1 regarding the Lawyer notice under Ex.A.13 and the petition filed by him for change of patta under Ex.A.16 which would categorically establish the case of this Appellant?
(b) It is correct in law in relying upon an unregistered document under Ex.B.1 by stating the non registration have been satisfactorily explained without adverting to Section 17 and 35 of the Indian Stamp Act and Indian Registration Act respectively especially when he entertains doubt about the ancient and registered documents of the Appellant covered under Section 90 of Indian Evidence Act?
(c) Has not the Lower Appellate Court Committed a grave error in law in not considering that the Appellant have proved his title especially when he has not reversed the findings of the Trial Court regarding Ex.C.1 to C.4 and Ex.A.2, A.3 title document of the Appellant and Ex.A.13 Lawyers Notice and Ex.A.16 petition given by the Respondent which is held to the mandatory under order 41 Rule 31(a) and (d) of CPC which vitiates the entire Judgment of Lower Appellate Court?
(d) Whether the Lower Appellate Court's Judgment have to be held as perverse for the following non consideration admission of the DW.1 in his evidence as follows:
A) He has no other property except the suit property except the suit property in Bryant Nagar 6th street.
B) He does not know the name of the Patta holder at the time of purchase. C) He has submitted the petition before Tahsildar under Ex.A.16 to change the Patta from name of the Appellant and the signature found in the said document is his signature.
D) The election Roll clearly reveals that the residents of DW.1 and his wife/the Respondent herein and the mother of D.W1 are residing at Door No.13 in Bryant Nagar 6th Street.
E) The Lawyer Notice under Ex.A.13 containing the Door No.13 as the address of DW.1 was received by him and he has not replied.
F) The construction in the suit property was put-up him pending the suit.
(e) Whether the Lower Appellate Court is correct in law in not considering that the claim of the Respondent is beyond the prudence that Door No.6 & 6A situates in between Door No.12A & 14B where as the case of the Appellant is that the Door No is 13 is to be accepted at once which does not require any proof and whether the Judgment of Lower Appellate Court has to be reversed for perverse appreciation of facts and law as well as evidence of parties to the suit?
(f) Whether the findings of the Lower Appellate Court in vitiated in law for not framing points for determination as provided under Order 41 Rule 31 of CPC which is held to be mandatory especially when he reverses the Judgment of the Trial Court?"
(Extracted as such)
8. I would like to fumigate my mind with the principles as found enunciated and enshrined in the following decisions of the Honourable Apex Court:
(i) Hero Vinoth (Minor) v. Seshammal reported in (2006) 5 Supreme Court Cases 545.
(ii) Kashmir Singh v. Harnam Singh and another reported in 2008 (4) SCALE
300.
(iii) State Bank of India and others v. S.N.Goya reported in 2009-1-L.W.1.
9. It is palpably and pellucidly clear as per the dictum of the Hon'ble Apex Court that unless any substantial question of law is involved in a matter, a Second Appeal cannot be entertained.
10. Keeping that in mind, I heard both sides, whereupon I decided to frame the following substantial questions of law:
"(i) Whether the first appellate Court was justified in upsetting the judgment and decree of the trial Court by giving a finding that Ex.B.1 - the unregistered sale deed, was admissible in evidence and that the exhibits marked on the side of D1 proved and established D1's right over the suit property and in the meanwhile not believing the ancient documents Exs.A.2 and A.3 and the other oral and documentary evidence adduced on the side of the plaintiff?
(ii) Whether there is any perversity or illegality in the findings of the first appellate Court?"
11. Both the substantial questions of law are taken together for discussion as they are interlinked and interwoven with each other.
12. Pithily and precisely, tersely and briefly the arguments as put forth and set forth on the side of the plaintiff would run thus:
(a) The first appellate Court throwing to winds the mandatory provisions under Order XLI Rule 31 of the Code of Civil Procedure and simply decided the appeal by placing reliance on Ex.B.1, the alleged unregistered sale deed dated 02.04.1980 and also the untenable documents filed on the side of D1.
(b) Absolutely, there is no iota or shred, shard or jot, miniscule or molecular extent of evidence to prove the adverse possession of D1 over the suit property. The very fact that she pleaded adverse possession connotes and denotes that she admitted the plaintiff's title to the suit property, which fact has not been taken into consideration by the first appellate Court.
(c) Rent control proceedings were initiated against D1 in the year 1989. She claimed adverse possession ever since 1980, but, she had hardly completed 9 years of possession as on the date of filing of the rent control proceedings against her. Her alleged predecessor Leelabai was also not proved to have been in possession of the suit property for a long time so as to cover the statutory period requiring to constitute adverse possession. Without applying the proper provisions of law and the probabilities, simply the first appellate Court upset the reasoned findings of the trial Court.
(d) The documentary evidence coupled with oral evidence unambiguously and unequivocally highlights and spotlights the fact that the plaintiff's title to the suit property is beyond doubt, but the first appellate Court failed to consider the same.
(e) D1's own documents falsify her claim, but that was not taken note of by the first appellate Court. The Commissioner's Report also probabilizes the case of the plaintiff.
Accordingly, he prays for setting aside the judgment and decree of the first appellate Court and for restoring the judgment and decree of the trial Court.
13. In a bid to shoot down and mince meat, and in addition to torpedo and pulverize the contentions on the side of the plaintiff, the learned counsel for the defendant argued inviting the attention of this Court to various portions of pleadings and evidence, which could tersely and briefly be set out thusly:
(a) No issue has been framed by the trial Court relating to adverse possession and thereby, due opportunity was not given to D1 before the trial Court to adduce evidence.
(b) The survey number 494A/5B2 is not referring to the suit property. The plot No.1198 as found set out in the documents Exs.A.1 to A.3 is not the suit property under the occupation of D1. The revenue records bespeak against the case of the plaintiff.
(c) Suppressing the material facts, the plaintiff filed R.C.O.P. No.68 of 1989 before the Rent controller as though there was landlord and tenant relationship between the plaintiff and D1 and that the later committed default in paying the rent etc.; however, the learned Rent Controller correctly held that the landlord and tenant relationship, was not proved. Whereupon only the plaintiff did choose to file the suit on false and frivolous grounds. The trial Court failed to understand the legal principle that the plaintiff should prove his case.
(d) There is nothing to indicate and exemplify that D1 entered into the suit property as a tenant under the plaintiff. On seeing that the plaintiff did not prove his case, the trial Court should have non-suited him, on the contrary, the suit was decreed, which was appropriately and correctly set aside by the first appellate Court, warranting no interference in the Second Appeal.
(e) The Commissioner's Report in no way enures to the benefit of the plaintiff. The recitals as found in Exs.A2 and A3 were relied on for gospel truth by the trial Court, in the absence of the alleged assignment deed in favour of the vendor contemplated under Ex.A.2. The plaintiff cannot trace his title to the suit property.
(f) D1 entered into the suit property in the year 1980 and started enjoying it in her own capacity as owner and her predecessor in title Leelabai executed Ex.B.1 dated 02.04.1980, the unregistered sale deed in favour of D1 and Leela Bai herself perfected her title by her long possession as owner. Her enjoyment, coupled with D1's enjoyment as owner constitutes adverse possession and that fact was not taken note of by the trial Court.
Accordingly, the learned counsel for D1 would pray for the dismissal of the Second Appeal on the ground that no question of law, much less substantial question of law is involved in this matter.
14. At the outset I would like to indicate and spotlight the fact that the plaintiff's legal action is not in possessorium but in petitorium. This is not a simple suit filed by the plaintiff for recovery of possession based on his previous possession of the suit property. If that be so, there might be some substance in the contention of D1 that in the absence of clinching evidence to prove the landlord and tenant relationship the suit should be dismissed. But on the other hand, the plaintiff after meeting with his waterloo before the rent controller as evidenced by Ex.A.11 - the copy of the judgment in R.C.O.P.No.68 of 1989 dated 28.08.1990, did choose to file the present regular title suit seeking declaration of his title over the suit property and recovery of possession of it; as such, in this case great care should be shown and the reality should be probed into instead of throwing the baby along with bath water.
15. Had the plaintiff succeeded in proving the landlord and tenant relationship before Rent Controller, then R.C.O.P. would not have been dismissed on the ground of no jurisdiction. The plaintiff, on such Rent Controller's finding and dismissal of R.C.O.P. did choose to file the title suit. I am at a loss to understand in what way the plaintiff is precluded from filing this suit because he could not prove the tenancy of D1 under the plaintiff.
16. I recollect the maxim 'Ubi jus, ibi remedium' [Where there is a right, there is a remedy].
17. The argument on the side of D1 that unless the plaintiff could prove the Land Lord and tenant relationship between the plaintiff and D1, the former will not be able to get a decree for declaration and title and for recovery of possession, tantamount to begging the problem. Not even a moment such an argument could be countenanced. If D1's contention is upheld, no owner of a house who earlier alleged the land lord and tenant relationship between himself and his opponent would be able to prove his title and seek recovery of possession of his house and that is not in law and for that matter law is not that much draconian and harsh.
18. The first appellate Court committed serious error in placing reliance on Ex.B.1. I would like to refer to the following decision of the Hon'ble Apex Court:
(i) (2010) 8 SCC 423 (Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries and others)). Certain excerpt from it would run thus:
"10. ..... An objection to the admissibility of the document can be raised before such endorsement is made and the court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend, the document being endorsed, admitted or not admitted in evidence. In support of the submission he relied upon a decision of this Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple where it was observed as follows: (SCC p. 764, para 20) '20. ? The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.' (emphasis in original).
15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have "marked" as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded."
As such a mere poring over and perusal of the said decision would unambiguously and unequivocally highlight and spotlight the fact that if the immovable property worth more than Rs.100/- certainly it should be registered.
19. I recollect and call upon Section 49 of the Registration Act, 1908. Even though the unregistered document can be used for collateral purpose to prove the nature of possession, yet in this case, Ex.B.1 should not have been allowed to be exhibited at all before the Court in view of the decision of the Hon'ble Apex Court cited supra in (2010) 8 SCC 423 (Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries and others)). Even for using the unregistered document for collateral purpose stamp duty and penalty ought to have been paid by D1 and collected by the trial Court then only D1 should have ventured to exhibit the document. As such, Ex.B.1, is not even worth the paper on which it is written.
20. Ex.B.1 is found written on two non-judicial embossed stamp papers worth of Rs.2/- and Paise 50 respectively. I am at a loss to understand as to how that much penalty stamp duty could be taken as sufficient. Once again I would like to rely upon the same decision of the Hon'ble Apex Court in (2010) 8 SCC 423 (Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries and others)) that merely because a document was marked that cannot be taken into consideration as document admissible in evidence. Legally speaking, there are two sets of documents, one set is the ones, which are, without objection marked, but otherwise valid in law and the other set is the ones which are marked with or without objection even then if they are intrinsically invalid, it cannot be looked into at all. The first appellate Court in paragraph No.23, throwing to winds all well settled legal propositions, simply gave undue importance to Ex.B.1 and up set the reasoned findings of the trial Court, which warrants interference in the Second Appeal.
21. The contention on the part of the learned counsel for D1 that there was no proper issue framed, is suicidal in nature. There is nothing to indicate as to what made D1 not to persuade the trial Court to frame the issue in respect of adverse possession. I would like to observe that no counter claim was made by D1, calling upon the Court to give a declaration on the title of D1 based on adverse possession and that fact should not be lost sight of. However, it is the duty of the Court to consider the effect of the plea of adverse possession, while considering the claim of the plaintiff for title over the suit property. As such, here, in this case, even though there is no specific issue framed on that, the trial Court considered the pros and corns of the matter and considering the pro et contra, decided the lis. The plea of adverse possession is nothing but a falsity and the voluminous evidence was produced and extensive cross - examination, was undertaken by D1 concerning his plea of adverse possession and the trial Court considered in extenso those factors and rejected the plea of adverse possession. In such a case, it is not open for D1 to bent over backwards in urging that no issue on adverse possession was framed by trial Court and the plaintiff proved the title based on the ancient documents and the other documents filed on his side.
22. The first appellate Court while upholding the contentions of D1, who claimed title by adverse possession referred to various decisions without considering the factual aspects as borne by evidence involved in this case. The precedents should be applied only in consimili casu and not in matters different kettle of fish is involved.
23. Obvious and axiomatic as it is here, that D1 herself claims to be in possession of the suit property ever since 1980 as revealed by Ex.B.11, dated 28.08.1990, the certified copy of the order of the rent controller, hardly 9 years had elapsed, as on the date of filing of R.C.O.P. by the plaintiff and not more than 12 years. As has been held above, Ex.B.1 is an in-admissible document.
24. No doubt, I recollect and call up the maxim "Jus superveniens auctori acrescit successori". [An additional or enhanced right for the possessor accrues to the successor.] But here, there is no miniscule or molecular extent of evidence to demonstrate and display that Leela Bai, the alleged predecessor in title of D1, enjoyed the suit property for a considerable period so as to buttress and fortify the possession of D1, which commenced only in the year 1980 as per her. It is therefore, pellucidly and glaringly clear that not even 12 years possession has been held by D1 either by herself or through her alleged predecessor. The first appellate Court in a perfunctory manner held as though D1 had better her title over the suit property.
25. I would like to cite the following decisions of the Hon'ble Apex Court in P.T.Munichikkanna Reddy and others v. Revamma and others reported in (2007) 6 SCC 59. Certain excerpts from it, would run thus:
"10. In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom0 wherein the European Court of Human Rights while referring to the Court of Appeal judgment JA Pye (Oxford) Ltd. v. Graham made the following reference:
"Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol."
11. This brings us to the issue of mental element in adverse possession cases-intention.
* * * * *
14. Importantly, intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialise.
* * * * *
18. On intention, Powell v. McFarlane14 is quite illustrative and categorical, holding in the following terms:
"If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')."
* * * If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.
* * * In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner.
* * * What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow."
(emphasis supplied)
19. Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and the plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (wilful) or omission (negligent or otherwise) of the right to defend or care for the integrity of property on the part of the paper-owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.
20. While dealing with the aspect of intention in the adverse possession law, it is important to understand its nuances from varied angles. * * * * *
22. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Govt. of India in the following terms: (SCC p. 785, para 11) "Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession,
(b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
23. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper- owner.
* * * * *
31. Inquiry into the starting point of adverse possession i.e. dates as to when the paper-owner got dispossessed is an important aspect to be considered. In the instant case the starting point of adverse possession and other facts such as the manner in which the possession operationalised, nature of possession: whether open, continuous, uninterrupted or hostile possession, have not been disclosed. An observation has been made in this regard in S.M. Karim v. Bibi Sakina: (AIR p. 1256, para 5) "Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for 'several 12 years' or that the plaintiff had acquired 'an absolute title' was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."
(emphasis supplied)
32. Also mention as to the real owner of the property must be specifically made in an adverse possession claim.
33. In Karnataka Wakf Board it is stated: (SCC pp. 785-86, para 12) "12. A plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. In P. Periasami v. P. Periathambi this Court ruled that: (SCC p. 527, para 5) 'Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.' The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar that is similar to the case in hand, this Court held: (SCC pp. 640-41, para 4) '4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.' "
(emphasis supplied) A mere poring over and perusal of the those decisions would highlight and spotlight that here D1 has not proved anything to show that she acquired title by adverse possession. By her plea that she acquired title by adverse possession, she also admitted the title of the plaintiff.
26. The learned counsel for D1 would elaborately argue on the point that the alleged assignment deed given in favour of the vendor of the plaintiff by the Government has not been produced. In my opinion, such a contention cannot be successfully pressed into service by D1, because the plaintiff produced Ex.A.2 of the year 1964. The suit itself was filed in the year 1996 and as such it is an ancient document. Ex.A.3, Sale Deed dated 25.04.1964 emerged following Ex.A.2. Ex.A.1, the Sale Deed emerged on 11.06.1969. All these documents are registered ones. But D1's case is nothing but a load and baloney, fraught with inconsistencies and as highlighted supra she claims to have started occupying the suit property during the year 1980 and that too under Ex.B.1 which is a dubious and untenable document as held supra. The trial Court took into consideration all those facts and decided the lis, which should not have been upset by the first appellate Court.
27. Regarding the identity of the property is concerned, the learned counsel for D1, would project the case as though the S.No.494A/5B2 is not referring to the suit property and the plot No.1198 is also not referring to the suit property. In fact in the R.C.O.P. proceedings, the Rent Controller referred to those facts and found that D1 applied for permission for construction specifically in plot No.1198, 6th Street, Bryanant Nagar as revealed by Ex.A.11.
28. Learned counsel for D1 would try to project that the properties referred to in A1 to A3 are not referring to the suit property. Even for argument's sake if it is taken that the survey number is not correctly specified in Ex.A.1 and A.3, yet it is clear in the Commissioner's Report, whereby he refers to T.S.No.53 and also the plot No.1198 in 6th Street, Bryant Nagar and the boundaries referred to in Exs.A1 to A3 do tally with the boundaries as found on ground.
29. I would like to point out that even in the D1's document Ex.B.8 - the notice given by the Municipality to D1, the plot number is mentioned as 1198, 6th Street, Bryant Nagar and in that the R.S. number is shown as 494APT. Once again the learned counsel for D1 would submit that the suit property is relating to S.No.494A/5BT. As such, the learned counsel for the plaintiff would submit that in Ex.B.8, in fact D1 went to the extent of correcting the door number as 6A1 from 13, but the actual number is only 13. D1's documents are referring to the building in the suit property as 6A1, and hence to suit her convenience, she went to the extent of correcting the door number from 13 to Door as 6A1 in Ex.B.8 and it is pellucidly and glaringly clear.
30. Ex.A.15 is voter's list of the year 1988 and in Sl.No.551, it is clearly found stated that the property in which the D1 is residing is door No.13 and that refers to the suit property and her name is found stated therein. The plaintiff paid taxes, as evidenced by Ex.A.12, a bunch of tax receipts and also Ex.A.11 - the Property tax demand register for the period from 1975 to 1989, would reveal that he has been paying tax for the suit property every since 1975. Ex.A.4, the patta pass book would reveal and demonstrate that even in the year 1989, patta stood in the name of the plaintiff for S.No.494A/5B2 and plot No.1198. As such, it is apparently and plainly clear that the plaintiff established his title to the suit property and that has been correctly upheld by the trial Court, but the first appellate Court, which is the last Court of facts failed to consider it and upset the well considered and reasoned finding of the trial Court. It is the duty of the first appellate Court to refer to all the aspects in the judgment of the trial Court and give its finding wherever it feels to reverse it. But that was done. However, the I appellate Court holus bolus dismissed the original suit and that too based on a totally inadmissible piece of evidence and wrongly arrived at its ultimate conclusion in allowing the first appeal.
31. Indisputably and unarguably, the suit property situated in 6th Street, Bryant Nagar and there is no controversy over it. In such a case, the defendant No.1 cannot try to achieve success in the litigation.
32. On the side of the plaintiff, there is no prevarication or self contradiction in describing the suit property in Exs.A.1 to A.3. The plot number is mentioned as 1198 sandwiched by 1197 and 1199 situated at 6th Street, Bryant Nagar and the door number of the suit house is mentioned as 13 and in Ex.A.15, voters list of the year 1988, D1 is proved to be in door No.13 only. In as much as the door number is mentioned as 6A1, in the inadmissible piece of document Ex.B.1, the door No.6A1 is found mentioned by her in Ex.B.8 in order to suit her convenience. D1 went to extent of correcting Ex.B.8 by replacing door No.13 by door No.6A1. As such there is prevarication and self contradiction only on the D1's side so as to buttress and fortify her false case.
33. Absolutely, there is no doubt about the identity of the suit property. It is also to be noted that in Ex.B.1, which alleged emerged in the year 1980, it is found specified as on date of emergence of Ex.B.1, D1 was residing some where else and not in the suit property. Because of the confusion raised by D1, the Commissioner referred to T.S.No.43, bearing plot No.1188, wherein house bearing door No.6A1 situates. In fact, the attempt of D1 is to size the head according to the cap, which cannot be countenanced and upheld as correct. Not to put too fine a point on it, the suit plot number and the boundaries were specifically located by the Commissioner also with the help of a qualified Surveyor, a public servant with regards to public records also. In such a case, D1's contention is totally untenable.
34. Hence, the substantial questions of law are answered to the effect that the first appellate Court was not justified in upsetting the judgment and decree of the trial Court, by giving a perverse and illegal finding that that Ex.B.1 - unregistered deed is admissible in evidence and that the exhibits marked on the side of D1 prove and establish D1's right over the suit property and in not believing the ancient documents Exs.A.2 and A.3 relied on the side of the plaintiff and the other oral and documentary evidence adduced on the side of the plaintiff.
35. On balance, the Second Appeal is allowed and the judgment and decree of the first appellate court is set aside and the judgment and decree of the trial Court is restored. While restoring the judgment and decree of the trial Court I would like to point out that the measne profits should be assessed only during pendente lite period under Order XX Rule 12 of the Code of Civil Procedure Code. However, there is no order as to the costs. Consequently, connected M.P.(MD) No.1 of 2011 is closed.
sj To
1.The Subordinate Judge, Thoothukudi.
2.The Additional District Munsif, Thoothukudi.