Madras High Court
M.Radheshyamlal vs Vasantha Kumar (Deceased) on 25 April, 2014
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.04.2014
CORAM :
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
A.S.Nos.566 & 567 of 2011 and S.A.No.54 of 2008
and
M.P.Nos.1 of 2011 and 1 & 2 of 2012
M.Radheshyamlal : Appellant/Defendant
Vs.
Vasantha Kumar (Deceased)
1.Mrs.V.Sandhya
2.V.Anand Kumar
[Amended as per order,
dated 08.12.2008 in Appln.
No.5486/2008] : Respondents/Plaintiffs
Prayer in A.S.No.566 of 2011: Appeal Suit filed under Section 96 of CPC against the Judgment and decree, dated 26.09.2011 made in O.S.No.12092 of 2010, on the file of the Additional District Court, Chennai/Fast Track Court No.1, Chennai.
M.Radheshyamlal : Appellant/Plaintiff
Vs.
1.R.K.Joshi
2.Shailesh
Vasantha Kumar (Deceased)
3.Mrs.V.Sandhya
[Defendants 3 and 4 have
been impleaded as per
order in Appln.No.7129/07
dated 10.03.2008 (Amended as
per order, dated 21.04.2009]
4.V.Anand Kumar
[5th Defendant impleaded as
per order dated 13.07.2009
in Appln.No.2992/2009]
[Amended as per orders
dated 06.10.09 and 23.10.09]
: Respondents/D1, D2 & D4,D5]
Prayer in A.S.No.567 of 2011: Appeal Suit filed under Section 96 of CPC against the Judgment and decree, dated 26.09.2011 made in O.S.No.12091 of 2010, on the file of the Additional District Court/Fast Track Court No.1, Chennai.
S.A.No.54 of 2008:
Radheshyamlal : Appellant/Plaintiff
vs.
1.Shailesh
2.R.Kannabiran : Respondents/Defendants
Second Appeal filed under section 100 of CPC against the judgment and decree of the learned VI Additional City Civil Judge, Chennai, dated 21.01.2003 in A.S.No.257 of 2000, confirming the judgment and decree of the learned VIII Assistant City Civil Judge, Chennai, dated 05.01.1998 in O.S.No.973 of 1996.
For Appellant in
all cases : Mr.R.Subramaniam
For R1 and R2 in
A.S.No.566/2011 &
For R3 and R4
in A.S.567/2011 : Mr.A.Chidambaram
For R2 in
A.S.No.567/2011
&
For R2 in
S.A.No.54/2008 : No Appearance
COMMON JUDGMENT
The plaintiff in O.S.No.12091 of 2010 and the defendant in O.S.No.12092 of 2010 is the appellant in A.S.Nos.566 and 567 of 2011. The plaintiff in O.S.No.973 of 1996 is the appellant in S.A.No.54 of 2008.
2.The appellant/plaintiff in O.S.No.12091 of 2010 filed a suit for declaration that he became the owner of the suit property by perfecting title by adverse possession and for injunction. The plaintiffs in O.S.No.12092 of 2010 filed a suit for declaration against the defendant, who is the appellant, in these appeals, for recovery of possession of the suit property and for damages of Rs.1,08,000/- and for future damages of Rs.3,000/- per month from the date of the plaint.
3.The appellant originally filed a suit in C.S.No.331 of 1996 on 17.11.1995 on the file of the Original Side of this court for declaration that he perfected title by adverse possession to the suit property and later, due to the enhancement of pecuniary jurisdiction of the City Civil Court as well as the High Court, C.S.No.331 of 1996 was transfered to the City Civil Court and renumbered as O.S.No.12091 of 2010.
4.The case of the plaintiff in O.S.No.12091 of 2010 is as follows:-
His father J.Mangilal Radhakishen Joshi came into possession of the suit property even prior to 1951 and perfected title by adverse possession by establishing hostile title against the true owner. The suit property was originally owned by Sukri Bai, who died in the year 1947 without leaving any issue. The father of the plaintiff and after him, the plaintiff was paying taxes in his name and so far, mutation has not been effected in the Corporation. The Ration Card, Voter's list, Bank account, Gas receipt and other records would demonstrate that the plaintiff is in possession and enjoyment of the suit property from 1951 and the plaintiff's brother was also living in the suit property and he applied for telephone connection in 1976 and all the correspondences would prove that the plaintiff and his father have been in open, uninterrupted and continuous possession as ostensible owners of the suit property with no interference or interruption or claim either from the defendants or anybody else. The Corporation of Madras also issued a notice to repair the rear portion of the suit premises, accepting the plaintiff as the owner of the suit property and the plaintiff was also making necessary repairs. Thus, the plaintiff's father and the plaintiff have perfected title over the suit property by their long, continuous, open and uninterrupted possession of the suit property. The defendants have no manner of right or title to the suit property. But they claimed title to the suit property and attempted to interfere with the possession and enjoyment of the suit property and they also attempted to trespass into the suit property and demolished the first floor, which compelled the plaintiff/appellant to file O.S.No.6783 of 1995 on the file of the City Civil Court, Chennai, for permanent injunction and also obtained an order of interim injunction in I.A.No.13281 of 1995 against the first defendant in that suit. In that suit O.S.No.6783 of 1995, the plaintiff reserved his right to establish his title by adverse possession in a separate proceedings and therefore, the present suit was filed for declaration that he perfected title by adverse possession. The defendant without any title, filed eviction petition against Biharilal Bhaia, Kunjilal Bhaia, Radhakrishna Bhaia, Gangakrishna Bhaia and Narayan Prakash Bhaia, by describing them as tenants in the suit property and posing themselves as landlords. The aforesaid persons were not tenants, but only henchmen of the defendants and none of them were occupying the suit property or any portion thereof. The eviction proceeding was initiated only for the purpose of claiming title to the suit property. Therefore, the present suit was filed for declaration of title and for injunction.
5.The defendants 4 and 5 filed a statement stating that the suit filed by the plaintiff against one of the joint owners, claiming title over the suit property by adverse possession is highly unsustainable and the suit is bad for non-joinder of necessary parties. The suit for declaration that the plaintiff perfected title by adverse possession is also not maintainable. The present suit filed is barred under Order 2 Rule 2 CPC. They also denied the allegation that the plaintiff was in open, uninterrupted and continuous possession and enjoyment of the suit property since 1951 and had perfected title by adverse possession along with his father. The suit property originally belonged to one Sungani Bai, who was wrongly described as 'Sukri Bai' in the plant and she died in the year 1947 without any issue and Sungani Bai had executed a settlement deed in the year 1945 in favour of Gopu Bai, Abbey Karan (father of Sailesh Joshi, the second defendant) and Vijay Kishan Bohra, giving each 1/3rd undivided share in the suit property. The settlement deed, dated 01.12.1945 was registered as document No.3300/1945 on the file of the Sub Registrar, Madras-Chengalpattu District. As per the settlement, 1/3rd undivided was settled in favour of Gobu Bai and to her two daughters and thereafter to the male children born to the two daughters of Gobu Bai and another 1/3rd share was settled to Abheyakaran, son of Udayakaran Joshi for his life time and thereafter to his male children and the remaining 1/3rd share was settled in favour of Vijey Kishan Bohra for his life time and thereafter to his male children and Radhe Shyam, Rajendra Purohit and Omprakash Purohit and Sailesh Joshi and Chandrasekar Bohra became the absolute owners of the suit property as per the settlement deed and they sold the suit property to the 4th defendant and her husband, namely the deceased 3rd defendant viz., Vasantha Kumar. Therefore, the defendants 4 and 5 after the purchase effected mutation in their names in the revenue records and in the Corporation records and the objection of the plaintiff was overruled by the authorities. The ex-parte decree obtained by the plaintiff in C.S.No.331 of 1996, later transferred to the City Civil Court and renumbered as O.S.No.12091 of 2010 was also set aside. The deceased 3rd defendant and the 4th defendant filed C.S.No.1119 of 2007 on the file of the Original Side of this court against the plaintiff for recovery of possession and for damages, which was also transferred to the City Civil Court in O.S.No.12092 of 2010 in respect of a portion of the property viz., 250 sq.ft occupied by the plaintiff herein. The plaintiff is in unlawful possession of the suit property of an extent of 250 sq.ft. and he has also illegally prevented the tenants from paying the rent to the defendants 4 and 5 and one tenant, by name A.M.Abdulla filed C.S.No.1731 of 2008 before the VII Assistant City Civil Court, Chennai for injunction and the same is also pending adjudication. The defendants 4 and 5 also denied the allegation in para 4 of the plaint that the plaintiff was in possession as evidence various documents, such as Voter's list and Ration card and submitted that those documents will not prove the claim of adverse possession and for claiming adverse possession, one must admit the ownership of the another person, but according to the plaint, the plaintiff was not at all aware of the owner of the suit property and had also given wrong name of the owner and therefore, the plaintiff cannot claim adverse possession. As the defendants 4 and 5 purchased the suit property from the original owners and they became the owners and having title to the suit property and the plaintiff never denied the title of the real owners and the plaintiff also did not perfect title by adverse possession, the suit was liable to be dismissed.
6.The 2nd defendant filed a statement stating that the suit property originally belonged to Sungani Bai, who purchased the same under a registered sale deed, dated 30.09.1928 under document No.1227/1928 on the file of the Sub Registrar Office, Sowcarpet and was in possession and enjoyment of the same and she executed a Deed of Settlement, dated 01.12.1945 settling the property in favour of three persons as stated in detail in the written statement filed by the defendants 4 and 5 and the 2nd defendant's father A.K.Joshi was managing the suit property and he leased it out to Manaklal Bhaiyya in the year 1954 on a monthly rent of Rs.200/- keeping one room for himself and thus, Manakulal Bhaiyya became the legal tenant under Abeykaran Joshi since 1954. However, Manaklal Bhyaiya died on 17.10.1993 and his sons Biharilal Bhaiyya, Kunjilal Bhaiyya, Radhakrishnan Bhaiyya, Gangakishan Bhiyya and Narayan Prakash Bhaiyya became the legal tenants of the suit property and there was no record for payment of rent. Therefore, RCOP No.1410 of 1994 was filed by Abheykaran Joshi on the file of the XIV Small Cause Court, Chennai, for eviction on the ground of wilful default and obtained an order of eviction on 25.11.1994 and in that RCOP, the father of the plaintiff filed an application to implead himself as a party stating that he derived title by adverse possession and that application was dismissed and after the death of Abheykaran Joshi, the 2nd defendant as his son filed E.P.No.28 of 1996 and in that EP also, the plaintiff has filed an application to implead himself and that was rejected and the plaintiff further filed O.S.No.6783 of 1995 on the file of the City Civil Court, Chennai, for permanent injunction against one R.K.Joshi and in that suit, he has not impleaded the 2nd defendant or his father. The 2nd defendant filed I.A.No.1215 of 1996 to implead himself in that suit and the same was allowed and O.S.No.6783 of 1995 was filed to prevent the decree passed in RCOP No.1410 of 1994 from being executed. Thereafter, the plaintiff filed O.S.No.973 of 1996 for declaration that the order of eviction was fraudulently obtained by A.K.Joshi and the subsequent E.P.No.28 of 1996 filed was null and void, unlawful and not binding on the plaintiff and for permanent injunction. He filed W.P.No.11003 of 1996 to quash the order passed in M.P.No.936 of 1995 in E.P.No.28 of 1996 filed by him to implead him as the legal heirs of the landlord and that was also dismissed. O.S.No.973 of 1995 was decreed and a finding was given that the plaintiff herein perfected title by adverse possession and that was challenged in A.S.No.257 of 2000 and the same was pending. In the meantime, O.S.No.6783 of 1995 was not-pressed by the plaintiff and taking advantage of the decree passed in O.S.No.973 of 1995, the plaintiff illegally transferred the patta in respect of the suit property in his name and therefore, the mutation of records was not binding on this defendant. The plaintiff was residing in a small portion of the suit property as a sub-tenant and all other owners are native of Rajesthan and therefore, they sold the suit property to the defendants 3 and 4 and after the death of the 4th defendant, the 5th defendant was impleaded and they are in peaceful possession and enjoyment of the suit property. The plaintiff also filed W.M.P.No.3148 of 2001 for cancellation of sale deed, dated 30.01.2001 and W.M.P.No.4357 of 2001 for interim injunction restraining the Sub Registrar, Sowcarpet, from releasing the sale deed executed in favour of the defendants 3 and 4 and W.P.No.3148 of 2001 was dismissed on 18.10.2001. The plaintiff was not in open and uninterrupted possession of the suit property and he never perfected title against the true owner and therefore, the plaintiff cannot claim adverse possession. There is no person in the name of R.K.Joshi and deliberately, the plaintiff has impleaded one R.K.Joshi as the first defendant and the plaintiff was only a sub-tenant occupying a small portion in the suit property. Therefore, he cannot perfect title by adverse possession and he has no locus standi to file a suit and the documents would not prove the possession of the property adverse to the interest of the original owner and therefore, the suit is liable to be dismissed.
7.The plaintiff filed a reply statement to the suit filed by the defendants 4 and 5 stating that the suit was filed by the plaintiff in C.S.No.331 of 1996 in the year 1995 and the same was decreed ex-parte on 27.03.2000 and the same was set aside in Application No.3765 of 2001 on payment of costs to be paid on or before 07.11.2001 and the same was confirmed in O.S.A.No.181 of 2001 on 22.09.2004. But the cost was not paid and therefore, the ex-parte decree continued to be in force. The ex-parte decree passed in C.S.No.331 of 1996 was also registered before the Sub Registrar, Sowcarpet and the cost was paid on 05.02.2008 and therefore, till 05.2.2008, the ex-parte decree was in force. The defendants 4 and 5 along with the 3rd defendant appears to have purchased the suit property from the 2nd defendants and other on 29.01.2001, after the passing of ex-parte decree and the defendants 3 to 5 were fully aware of the pendency of the suit and the claim made by the plaintiff and they purchased the suit property only with an intention to protract the litigation. Therefore, the defendants 3 to 5 are not the bona fide purchasers without notice to the plaintiff's right. Therefore, their sale is hit by lis pendens under section 52 of the Transfer of Property Act. The defendants 3 to 5 were fully aware of the proceedings before the Rent Controller. They were also aware that since 1994. The plaintiff has claimed hostile title against the true owner in respect of the suit property. The plaintiff and his father's vendor perfected title by adverse possession, since 1951 and they are in continuous and hostile possession of the suit property and from 1994, they also placed on record their hostile title and therefore, even assuming that the plaintiff was not able to prove his hostile title from 1951, having regard to the hostile title claimed from 1994, the plaintiff perfected title by adverse possession by the end of 2006 and therefore, the defendants lost their right. The plaintiff also denied the allegation that the suit property originally belonged to Sungani Bai and she executed a settlement in the year 1945 in favour of the vendors of the defendants 3 to 5 and also denied the various relationships claimed by the defendants 4 and 5 in respect of their vendors, the real owner of Sungani Bai and the alleged settlement deed is a rank forgery and a fraudulent document and the 2nd defendant filed RCOP No.1410 of 1994 claiming right to the suit property only as a legal heir of his father and not under the alleged deed of settlement and the alleged settlement deed, dated 01.12.1945 and not mentioned in the written statement and that would also prove that the settlement deed was not executed by the real owners and the settlement deed she has never seen the light of the day and Sukri Bai had died issue-less and no person claiming to be her legal heir, had even approached the plaintiff asserting the title to the suit property and on the other hand, the plaintiff and his family members asserted open, hostile and exclusive title to the suit property and had been in possession and enjoyment of the suit property from 1951 to the knowledge of every one, including the alleged owners and the plaintiff's possession was attempted to be disturbed by the vendors of the defendants under the guise of the eviction order passed by the Rent Controller and therefore, the plaintiff filed O.S.No.6783 of 1995 on the file of the City Civil Court, Chennai, for injunction and later filed O.S.No.973 of 1996 for declaration that the eviction order obtained by the 2nd defendant's father against the alleged tenant was collusive and fraudulent and that suit was decreed and confirmed in appeal.
8.It is further alleged that the entire suit property was in possession and enjoyment of the plaintiff and an Advocate Commissioner was appointed in I.A.No.13282 of 1995 and the same was evidenced from the Commissioner's report and the defendants 3 to 5 set up one of their henchmen to file a suit for bare injunction in O.S.No.1731 of 2008 against the plaintiff and the others and also obtained an ex-parte injunction and armed with the said order, they attempted to interfere with the possession of the plaintiff and the ex-parte injunction order granted in O.S.No.1731 of 2008 was vacated subsequently and the suit was also transfered to the High Court and renumbered as Tr.C.S.No.158 of 2010 and therefore, the plaintiff proved his title by adverse possession and therefore, the suit is liable to be decreed.
9.The defendants 3 to 5 in O.S.No.12091 of 2010 filed O.S.No.12092 of 2010 against the plaintiff in O.S.No.12091 of 2010 for recovery of possession and for damages and reiterated the same allegations made in the written statement filed in O.S.No.12091 of 2010.
10.The defendant in O.S.No.12092 of 2010, who is also plaintiff in O.S.No.12091 of 2010 reiterated the very same allegations made by him in the plaint as well as in the reply statement in O.S.No.12091 of 2010.
11.As the suit property and the parties are common in both the suits, both the suits were tried together and on the basis of the pleadings in O.S.No.12091 of 2010, the following issues were framed.
1.Whether the plaintiff has perfected title to the suit property by adverse possession?
2.Whether the suit is barred by res judicata?
3.Whether the suit is barred under Order II, Rule 2 of CPC?
4.Whether the plaintiff is entitled for declaration regarding the suit property as prayed for in the plant?
5.Whether the plaintiff is entitled for permanent injunction against the defendants as prayed for in the plaint?
6.Whether the suit is bad for non-joinder of necessary parties?
7.To what reliefs is the plaintiff entitled to?
12.Similarly, in O.S.No.12092 of 2010, the following issues were framed:-
1.Whether the plaintiffs are entitled to a decree for possession of the suit property from the defendant?
2.Whether the defendant is liable to pay a sum of Rs.1,08,000/- towards past damages for unlawful use and occupation of the suit property at the rate of Rs.3000/- per month?
3.Whether the suit is barred by res judicata?
4.Whether the suit is hit by the doctrine of lis pendens?
5.Whether the claim of the defendant that he perfected title to the suit property by adverse possession is sustainable?
6.To what reliefs, the plaintiffs are entitled to?
13.One A.M.Abdulla filed O.S.No.12093 of 2010 against the parties in O.S.No.12092 of 2010 for injunction and all the three suits were tried together. Thus, two appeal suits viz., A.S.Nos.566 and 567 of 2011 were filed against the suit O.S.No.12091 of 2010 and therefore, I am referring to the plaint allegation made in O.S.No.12091 of 2010 and the issues framed in that suit.
14.The evidence was recorded in O.S.No.12091 of 2010 and the plaintiff in O.S.No.12091 of 2010 was treated as plaintiff and the defendants in that suit were treated as defendants. The plaintiff himself examined as PW1 and marked Exs.A1 to A174 and the 2nd defendant and the 5th defendant examined themselves as DW1 and DW2 and marked Exs.B1 to B23.
15.The trial court tried the Issue No.2 in O.S.No.12091 of 2010 and Issue No.3 in O.S.No.12092 of 2010 and held that the suits filed in O.S.No.12091 of 2010 and 12092 of 2010 are not barred by res judicata.
16.The Issue No.4 in O.S.No.12092 of 2010 was also answered holding that the purchase of the property by the defendants is hit by lis pendens, but having regarding to the fact that both the suits are tried together, the doctrine of lis pendens has no much impact on the result of the suit and answered the point accordingly.
17.The Issue No.3 in O.S.No.12091 of 2010 was also answered in favour of the plaintiff holding that the suit was not barred under Order 2 Rule 2 CPC and Issue No.6 was also answered in favour of the plaintiff holding that the suit was not barred for non-joinder of necessary parties.
18.Issue Nos.1 and 5 in O.S.No.12092 of 2010 and Issue Nos.1, 4 and 5 in O.S.No.12091 of 2010 were tried together and after elaborately discussing various exhibits filed on behalf of parties, the trial court held that there is no dispute regarding the identity of the suit property and the original owner was Sungani Bai @ Sukri Bai and she purchased the suit property under a registered sale deed, dated 30.09.1928 and the plaintiff also admitted that the suit property originally belonged to Sungani Bai and she executed a settlement deed Ex.B2 and that document cannot be construed as settlement deed and it must be construed as a Will and that would not affect the rights of the defendants and as per section 213 of the Indian Succession Act, only the executor or legatee are precluded from establishing title to the suit property under the Will without getting probate or letters of administration. Therefore, the defendants are not barred or precluded from relying upon the document Ex.B2, dated 01.12.1945 and therefore, the defendants are entitled to claim title to the suit property and the plaintiffs failed to prove their adverse possession and they failed to prove that their possession was adverse to the real owner, over the statutory period and their possession and enjoyment of the suit property for a long period would not entitle the plaintiffs to claim adverse possession and even according to the complaint given by the first plaintiff, he was residing in a portion of the suit property and therefore, he cannot claim title by adverse possession in respect of the entire suit property and the documents filed by the plaintiffs would prove only possession and that would not prove that they perfected title by averse possession and held that the plaintiffs are not entitled to decree and they did not perfect title by adverse possession and therefore, the defendants are entitled to recovery of possession.
19.The trail court tried the Issue No.2 in O.S.No.12092 of 2010 holding that the defendants are entitled to claim Rs.3,000/- per month from the tenants and answered the Issue No.7 in O.S.No.12091 of 2010 holding that the suit is liable to be dismissed and answered Issue No.6 in 12092 of 2010 holding that the defendants are entitled to the decree of recovery of possession. Aggrieved by the same, the present appeals are filed by the appellants.
20.The appellants in A.S.Nos.566 and 567 of 2011 also filed O.S.No.973 of 1996 against one Shailesh the 2nd respondent, for declaration that the order of eviction obtained by A.K.Joshi, was null and void and for permanent injunction and also E.P.No.28 of 1996 filed by the legal heir of A.K.Joshi, namely the first defendant in that suit, through his power Agent Kannabiran, the 2nd defendant is also null and void and for injunction.
21.The allegations made in O.S.No.973 of 1996 is as follows:-
The plaintiff perfected title by averse possession in respect of the suit property from 1951 onwards and except the plaintiff and the tenants under the plaintiff, no one is in occupation of the suit property. One A.K.Joshi, who had no right, title or interest over the suit property, with an intention to grab the suit property, set up his henchmen namely, Biharilal Bhaiya, Kunjilal Bhaiya, Radhakrishna Bhaiya, Gangakrishna Bhaiya and Narayan Prakash Bhaiya and treating them as tenants, filed eviction proceedings against them, as if they were his tenants in the suit property and obtained an order of eviction in RCOP.No.1410 of 1994 and after the death of A.K.Joshi, the legal heirs of the A.K.Joshi, attempted to enforce the eviction order. Therefore, the plaintiff filed O.S.No.6783 of 1995 against A.K.Joshi and his son Radheshyamalal and obtained an order in I.A.No.13281 of 1995. Nevertheless, the first defendant Shailesh through his power agent, the 2nd defendant, filed E.P.No.28 of 1996 to execute the eviction order passed in RCOP No.1410 of 1994 and that was also allowed without notice to the respondents and the plaintiff filed a petition to implead himself in RCOP No.1410 of 1994 and in E.P.No.28 of 1996 and both the applications were rejected and therefore, the present suit was filed for declaration.
22.The defendant filed a statement disputing the claim of the plaintiff and contended that the suit property originally belonged to Sungani Bai and A.K.Joshi was the maternal grandson of Sungani Bai and he retained one share for his occupation and let out the remaining portions to Manakulal Baiya and after the death of of Manakulal Baiya in the year 1993, his children became the tenants and they filed RCOP No.1410 of 1994 and in that petition, the plaintiff's father filed application to implead himself as one of the parties and he claimed perfected title by adverse possession and that was dismissed and after the order of eviction was passed in RCOP No.1410 of 1994, the first defendant as the legal heir filed E.P.No.28 of 1996 to execute the decree and in that E.P. also, the plaintiff attempted to implead himself as a party and that was rejected and the contention of the plaintiff that A.K.Joshi was the person claiming to be the legal heir of Sungani Bai and son R.K.Joshi are not correct and A.K.Joshi was the original owner and the first defendant is his legal heir and O.S.No.6783 of 1995 was filed by the plaintiff against the legal heirs of the Manakulal Baiya and R.K.Joshi and in that suit, R.K.Joshi was described as the son of A.K.Joshi and the plaintiff never perfected title by averse possession and therefore, the suit was liable to be dismissed.
23.In that suit, the following issues were framed:-
1.Whether the order of eviction passed in RCOP No.1410 of 1994 is legally valid?
2.Whether the suit is maintainable?
3.Whether the plaintiff is entitled to the suit property and perfected title by adverse possession?
4.Whether the plaintiff is entitled to relief of injunction?
24.The plaintiff examined himself as PW1 and marked Exs.A1 to A33. on the side of the defendants, 4 witnesses were examined and the Power of Attorney of the first defendant, namely the 2nd defendant was examined as DW4 and documents Exs.B1 to B33 were marked.
25.The trial court tried the Issue Nos.1 to 3 together and held that the plaintiff perfected title by adverse possession and the decree passed in RCOP No.14010 of 1994 was not legally valid and not binding on the plaintiff, as the plaintiff had title and possession and the suit filed by the plaintiff was also maintainable and answered those issues in favour of the plaintiff and the Issue No.4 was also answered in favour of the plaintiff and decreed the suit for injunction.
26.The defendants filed A.S.No.257 of 2000 on the file of the 6th City Civil Court, Chennai and in that appeal, the following points arose for consideration:-
1.Whether the trial court was right in holding that the plaintiff perfected title by adverse possession?
2.Whether the plaintiff was entitled to file the present suit without praying the same relief in the earlier suit?
3.Whether the decree passed in RCOP No.1410 of 1994 is binding on the plaintiff?
4.Whether the appeal is liable to be allowed and the judgment and decree of the trial court are liable to be set aside?
27.The first appellate court answered the point for consideration No.1 in favour of the appellant holding that the plaintiff failed to prove the adverse possession and he did not perfect title by adverse possession and the finding of the trial court that the plaintiff perfected title by adverse possession was erroneous.
28.The Point for consideration No.2 was answered against the plaintiff holding that the suit filed by the plaintiff was not maintainable and answered the point Nos.3 and 4 in favour of the plaintiff/respondent holding that the decree passed by the trial court holding that the order of eviction passed in RCOP No.1410 of 1994 was not binding on the plaintiff, as he was not a party to the same. In the result, appeal was dismissed, but regarding the adverse possession set aside the finding of the trial court. Aggrieved by the same, the second appeal was filed by the appellants.
29.It is submitted by the learned counsel for the appellant that the trial court without properly appreciating various exhibits that is Exs.A1 to A114 and Ex.A115, A121 and A140 erred in holding that the appellant failed to prove the adverse possession. He also submitted that even assuming that earlier to 1994, no evidence was adduced by the appellant to prove that he perfected title by adverse possession, in the year 1994, he claimed absolute owner-ship and filed M.P.No.848 of 1994 in RCOP No.1410 of 1994 as evidenced by Ex.A115 and also filed a suit O.S.No.6783 of 1995 as evidenced by Ex.A121, dated 21.09.1995. Therefore, from the year 1994, the appellant/plaintiff openly claimed ownership to the knowledge of the real owner and therefore, the appellant/plaintiff has perfected title by adverse possession for the period of 20 years and the suit O.S.No.12092 of 2010 was filed in the year 2010 and therefore, the suit for declaration filed by the plaintiff ought to have decreed in favour of the plaintiff.
30.He also submitted that the trial court having held that Ex.B2 cannot be considered as a settlement and it can only be construed as a Will, ought not have relied upon Ex.B2 to hold that the vendors of the respondents, derived title under Ex.B2 and they sold the suit property to the respondents and therefore, the respondents became the owners of the suit property and entitled to file a suit for recovery of possession.
31.He also submitted that when the vendors of the respondents cannot rely upon Ex.B2, they cannot convey any title under Ex.B1 and the respondents also cannot claim title to the suit property and admittedly, the appellant/plaintiff is in possession and enjoyment of the suit property and he cannot be evicted, except by the true owner and the respondents without having title cannot file a suit for recovery of possession.
32.The learned counsel for the appellant relied upon a judgment reported in AIR 1968 SUPREME COURT 1165 [Nair Service Society Ltd., vs. K.C.Alexander and others] and contended that if any rightful owner does not come forward and assert his title by known process of law within the period prescribed by the provisions of the statue of limitation, his right is forever extinguished and the possessory owner acquires an absolute title and admittedly, the plaintiff is in possession of the suit property and was exercising the rights of ownership against all the world and therefore, the plaintiff has perfected title by adverse possession and he has also proved the same.
33.He also relied upon the following judgments in support of his contention.
1.1999-3-L.W.621 in the case of Arumugha Thevar vs. Melavasaga Thevar and others.
2.1966(2)MLJ 8 SC, in the case of Gurbinder Singh and another vs. Lal Singh and another.
3.1976(I)MLJ 288 in the case of Rajasekaran and others vs. Elumalai Goundan and others.
and contended that a person pleading adverse possession can tack on the possession of his predecessor in title and in this case, the plaintiff's father was in possession of the property, even prior to 1995 and thereafter, the plaintiff is entitled to tack on the possession of the property of his father.
34.He also relied upon the following judgments in support of his contention.
1.(2010)4 MLJ 227 in the case of Maruthayammal ((Deceased) and others vs. Pushpam and others.
2.2013(2-3)C.L.T. 235, in the case of Hardevinder Singh vs. Paramjit Singh.
3.AIR 2003 SUPREME COURT 1989, in the case of Banarsi and others vs. Ram Phal.
4.2002(4)CTC 406, in the case of Rajammal vs. Pappayee Ammal.
5.2005(1)CTC 494, in the case of N.S.Spance vs. D.S.Kanagarajan and another.
35.On the other hand, the learned counsel for the respondents submitted that long and uninterrupted possession will not give any cause of action to claim title by adverse possession and a person claiming title by adverse possession, must have necessary animus possidendi and prove that he was enjoying the property as the owner to the knowledge of the true owner and in this case, it is not alleged that the plaintiff was enjoying the property as a true owner to the knowledge of the real owner and therefore, his long possession will not become adverse and these aspects were properly appreciated by the court below and held that the plaintiff has failed to prove adverse possession.
36.He also submitted that the trial court rightly considered all the exhibits in detail and gave reasons for rejecting the same and the well considered judgment of the trial court need not be interfered with. In support of the said contention, the learned counsel for the respondents, relied upon the following judgments:-
1.A.I.R(37) 1959 Calcutta 179, in the case of Sadananda Pyne vs. Harinam Sha and another.
2.A.I.R.1924 Madras 67, in the case of S.Parthasarathy Aiyar vs. M.Subbaraya Gramany and another.
3.A.I.R.1931 Nagpur 181, in the case of Kalyansa vs. Tulsabai.
37.On the basis of the above pleadings, the following points for consideration arise in these appeals:
1.Whether the appellant proved that he perfected title by adverse possession to the suit property?
2.Whether the respondents are entitled to the relief of recovery of possession, when Ex.B2 has been construed as a Will and no probate was obtained and the respondents claim title under Ex.B2?
38.As stated supra, the main point for consideration in these appeals is whether the appellant perfected title by adverse possession to the suit property?
39.Before going into the pleadings and admission and evidence in this case, let me deal with the law relating to adverse possession. The essential requisitions are given by Justice S.A.Kadar published in the journal section in 2007-4-L.W 2 J.S. as follows:-
The essential requisites to establish acquisition of title to immovable property by adverse possession are nec vi, nec clam and nec precario, Nec vi means neither by force, nec clam neither secretly and nec precario neither by licence or permission.
It must be peaceful, open and continuous, adequate in publicity and in extent and in continuity.
The adverse possessor must have the intention to hold the property as of right, in his own right and on his own behalf as owner, hostile to and in denial of the title of the real owner. The inevitable and inseparable ingredients to perfect title by adverse possession are corpus possessendi and animus possidendi continuously for over the statutory period. Adverse possession commences in wrong and is maintained against right.
40.In the judgment reported in 1999-3-L.W.621 [Arumugha Thevar vs. Melavasaga Thevar & others], it has been held as follows:-
10.Sir.F. Pollook stated as follows:
The reality of the defacto dominion is measured in inverse ratio to the chances of effective possession. The animus part of it involved, the mental element, the intention to control to hold for one's own exclusive use recognizing nobody else's right to possession. In Corpus Juris Secundum , it has been stated as follows:
Adverse possession implied possession (a) commenced in wrong and (b) maintained against right. Adverse possession refers to (a) actual and exclusive possession (b) coupled with the intention to hold as owner and (c) accompanied by such an invasion of the rights of the true owner as gives the latter a cause of action to sue for recovery of possession at once. Ittappan v. Manavikrama (ILR 21 Madras 153) The possession must be in denial of the title of the true owner, peaceable, open, continuous, unbroken, notorious, distinct, unequivocal and hostile under the colour of title or claim of right, to be capable of being known by the parties interested in the property by due diligence. There should be no attempt at misrepresentation or concealment. ......................
41.In the judgment reported in AIR 1996 Madras 468 = 1996 -I CTC 699 = 1996 - II LW 344 [Natesan v. Chinnachi Kandar and four others], wherein it is held as follows:-
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. 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. ...............................
42.In the judgment reported in 1996(II)MLJ 194 [Pappammal (died) and others v. Valiammai (died) and others], it is held as follows:-
where a question of acquisition of title by adverse possession falls to be determined, clear and definite evidence relating to the different points of time must be adduced. Possession is a question of fact to be answered by legitimate inferences from the materials exposed in the case. - Charles Hereward Simpson and others v. Government of Tamil Nadu (1989 -1 MLJ 511 = 1989-2-LW.571) Acts which are alleged to create adverse possession must be scrutinized in the light of the relationship that exists between the parties who assert against each other the title by adverse possession. - Thangavelu Chetty v. Mangathaye Ammal (21 Indian Cases 21 (Mad.)) Where the plaintiff and the defendant are close relations, very much more and better and stronger evidence of a positive character is necessary to establish title by prescription and adverse possession in favour of the plaintiff Substantial and clear evidence of neighbours and other villagers and tenants of continued exclusive possession of the land by plaintiff to the deprivation of any enjoyment by defendant is necessary before the plaintiff can rely upon his title by prescription. - Puttuthayamma and another v. Rathnarajiah and another - AIR 1955 Mysore 33.
The person claiming adverse possession must plead and prove that he remained in possession in his own right - Parasinni (dead) by L.Rs. and others v. Sukhi and others (1993) 4 SCC 375 = 1994-1-L.W. 211) The principle of law is firmly established that a person who bases his title by adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. - Ejus Ali Qidwai and others v. Special Manager, Court of Wards, Balrampur Estate and others (68 MLJ 397 = A.I.R. 1935 Privy Council 53 = 41 L.W. 242).
It is for the person claiming title to prove existence of hostile title and the person remained silent even after knowledge thereof. Exception in the recognition by law of acquisition of title only through lawful means is the concept of adverse possession. Mere silence or keeping animus in mind cannot make title lost to the real owner. - S. Subba Reddiar (died) and others v. Bhagyalakshmi Animal @ Guruvachi Animal and another (1996 - II L.W. 31) 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 the facts necessary to establish his adverse possession.?- Dr. Mahesh Chand Sharnia v. Raj Kumari Sharma (1996) 8 SCC 128 = (1996) - I SCJ 73 = AIR 1996 SCW 253) It is not necessary in order to establish adverse possession that the proof of acts of possession should cover every moment of the requisite period. Though the possession be not proved to have continued every quarter, month or year, yet ordinary possession will be sufficient if the distance is not great. The fact of possession may be continuous though the several acts of possession are at considerable intervals. - Kuppuswami Udayar v. Murugayyan (84 L.W. 120), A. Rukmani and another v. Gopalaswamy and another (1993 - II MLJ 598) If a thing or a state of things is shown to exist, an inference of its continuity within a reasonably proximate time both forwards and, in appropriate cases, backwards may be drawn under Section 114 of the Evidence Act. -A.P. Thakur v. Kamal Singh (AIR 1966 SC 605 = (1966) 1 SCR 758).
The concept of adverse possession contemplates a hostile possession, i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights, but denies them. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. - Anantha Pillai v. Rathinasabapathy Mudaliar (1968 2 MLJ 574)
11.It has been held in Madhavan v. Kannammal and 27 others (1990 - 2 L.W. 274) and Rajeswari v. Dhanammal (1994 1 MLJ 401) that, the courts of law have power to grant relief which would be warranted by the facts of the case when such facts have been established by indisputable records even if they were not exactly pleaded by the parties.
43.In the judgment reported in AIR 1968 SUPREME COURT 1165 [Nair Service Society Ltd vs. K.C.Alenxander and another, it has been held as follows:-
It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.
44.In the judgment reported in 2008(1)CTC 329 (SC) in the case of Annakili vs. A.Vedanayagam and others, the Hon'ble Supreme Court relying upon the judgment reported in 2005(8)SCC 330 [Saroop Singh vs. Banto] held as follows:-
29.In terms of Article 65, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse.
30.''Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus.
45.It has also been held in the same judgment in para 22 as follows:-
22. Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title
46.I had an occasion to deal with this aspect in the judgment reported in (2011)3 LW 789 [K.Gopalan (died)and others vs. Muthulakshmi] and I followed the judgment of the Hon'ble Supreme court reported in 2005-1.L.W. 730 = (2004)10 SCC 779, [Karnataka Board of Wakf vs. Government of India and others], 2007-2-L.W.955 = (2006)7 SCC 570 [T.Anjanappa and others vs. Somalingappa and another],(2009)13 SCC 229 [L.N.Aswathama and another vs. P.Prakash], 2007-4-L.W. 269 = (2007)6 SCC 59 [P.T.Munichikkanna Reddy vs. Revamma) and 2006-3-L.W.6 = (2005) 8 S.C.C. 330 [Saroop Singh vs. Banto and others] and held that the conduct and attitude of a person in treating the property would conclusively prove whether the property was enjoyed by that person with such intention and knowledge that he was enjoying the property belonging to others to the knowledge of the true owner.
47.In the judgment reported in in (2006) 7 SCC 570 : 2007 2 L.W. 955 in the case of ( T. Anjanappa v. Somalingappa ) the Hon'ble Supreme Court has held has follows:-
...Adverse possession means a hostile possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively. A person, who bases his title on adverse possession, must show by clear and unequivocal evidence i.e., possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e., possession was hostile to the real owner and amounted to a denial of his title to the property claimed.
Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that, a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession averse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful ti tle, cannot divest another of that title, by pretending that he had no title at all.
48.Further, in the judgment reported in (2004) 10 SCC 779 : 2005 1 L.W. 730 in the case of; ( Karnataka Board of Wakf v. Government of India ) the Hon'ble Supreme Court has held as hereunder:-
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 advisee 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
49.In the judgment reported in (2009) 13 SCC 229 in the case of; ( L.N. Aswathama and antoerh v. P. Prakash ) the Hon'ble Supreme Court has held as hereunder:-
The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possession the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence.
50.In the judgment reported in (2007) 6 SCC 59 : 2007 4 L.W. 269 in the case of; ( P.T. Munichikkanna Reddy v. Revamma ) the Hon'ble Supreme Court has held as follows:-
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 get communicated to the paper-owner of the property. This is where the law gives important to hostility and openess 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
51.In the judgment reported in 2011-1.L.W.783 in the case of Chatti Konati Rao & others vs. Pallee Venkata Subba Rao, after relying upon the judgment reported in (2004)10SCC 779 = 2005-1.L.W.730, the Hon'ble Supreme court held in para 14 as follows:-
14.In view of the several authorities of this Court, few whereof have been referred above, what can safely be said that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove hostile as also possession within 12 years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basis elements i.e., the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The court always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law.'
52.Bearing these principle in mind we shall see the pleading and evidence in these appeals.
53.Before going into this aspect, I want to record my appreciation about the learned trial Judge, who thoroughly analyzed each document and gave a finding in respect of those documents. According to me, the learned trial court meticulously considered each document and expressed his comment on those documents and also come to the conclusion whether such documents can be relied upon to support the case of the plaintiff or the defendant.
54.As started supra, on the side of the plaintiff, he examined himself as PW1 and marked 174 documents as exhibits.
55.Exs.A1 to A13 are the xerox copies of Ex.A14 to A26. Exs.A14 to A26 are the correspondences showing the address of the plaintiff as residing in the suit property. Those documents are from the year 1951 onwards.
56.It is not disputed that the plaintiff is residing in the suit property from the year 1951 and therefore, those documents will only confirm the possession of the suit property by the plaintiff. But that is not sufficient to decree the case of the plaintiff, based on the claim of adverse possession.
57.Similarly, Exs.A26 to A48 are also documents addressed to the plaintiff and his family members to prove that the plaintiff and his family members were residing in the suit property till 1992 and that will not help the plaintiff. Similar are the Exs.A49 to A53 and those documents would prove that the plaintiff was in possession of the suit property.
58.Ex.A49 is the demand notice issued by the Metro Water & Sewerage Board to the original owner of the suit property, demanding the arrears of water tax from the year 1981-1982 to 1992-93 and those documents will not also help the plaintiff, as the demand of water tax receipt was demanded only from the original owner.
59.Ex.A55 is the copy of the complaint given by the plaintiff to the Inspector of Police, Elephant Gate Police Station, Chennai and Ex.A54 is the copy of the receipt issued by the Inspector of Police and Ex.A55 will throw some light on the case of the plaintiff. According to me, the contents in Ex.A55 is contrary to the pleadings in this case. The complaint was given by the plaintiff against one Om Prakjesh Rathi, R.K.Bhaiya and Kunjilal Bhaiya for having interfered with his possession and in Ex.A55, it is stated as follows:-
I and my family members, my wife, my daughter and two sons are in possession and enjoyment of the front portion premises No.18, Periya Naickaran Street, Sowcarpet, Madras 79. I am there residing for the 1ast 35 years with my own right.
60.It is seen from Ex.A55 that the plaintiff claimed that he is in possession of the front portion and he did not claim that he was in possession of the entire suit property and he also claimed that he is residing there for the past 35 years. Considering the date of Ex.A55, namely 25.08.1995, as per Ex.A55, the plaintiff must have come into possession from 1959, whereas in the plaint, it is alleged that even prior to 1951, his father came into possession of the entire suit property and started enjoying the suit property as the owner since 1951. Therefore, there is a dispute regarding the year from which, the plaintiff came into possession of the property and the year from which he claimed hostile title against the true owner.
61.Ex.A57 is the notice issued by the Corporation of Madras to the plaintiff to repair the rear portion of the suit property and that notice was issued under section 258 of the Madras City Municipal Act IV of 1919 to the occupier and therefore, on the basis of Ex.A57, the plaintiff cannot claim any exclusive title to the suit property and cannot contend that he was enjoying the suit property adverse to the knowledge of the real owner.
62.Exs.A58 and A59 are the letters addressed by the District Election Officer to the plaintiff and the residential certificate issued to the plaintiff and that would prove that the plaintiff was residing in the suit property and that would not prove adverse possession claimed by the plaintiff.
63.Exs.A60 to A65 are the Electoral Rolls for various years and it is seen from those exhibits that the plaintiff and his family members were residing in Division No.38 Nathaji Nagar, 4 Perianayagaram Street and from the year 1980 residing at Door No.28, Chinna Naickaran Street and as per Exs.A64 and A65 in the year 1988 to 1995, the plaintiff was found residing in Street No.22 Periya Naickaran Street. Admittedly, the suit property is Door No.18(Old No.14) and as stated supra, Exs.A62 to A65 did not support the case of the plaintiff that he was residing in Door No.18 (Old No.14) Periya Naickaran Street.
64.Exs.A66 to A84 are the various tax receipts paid by the plaintiff towards property tax, water tax and that would also not prove that the plaintiff had perfected title by adverse possession as those exhibits are relating to the year from 1998 to 1999. Admittedly, the suit was filed in the year 1995. Therefore, those documents are after the suit and that cannot be relied upon.
65.Exs.A85 and A86 are the Encumbrance Certificate and Ex.A87 is the Urban Land Tax receipt and Ex.A88 is the patta issued in respect of the suit property of the year 1998 and Ex.A89, is the Residential Certificate issued to the plaintiff and those documents are also after the suit and therefore, those documents will not prove the case of the plaintiff that he was in adverse possession even prior to the filing of the suit.
66.Exs.A90 and A91 are the Ration Card and Voters I.D. issued to the plaintiff showing the suit property as residential address and that would also not prove his adverse possession. Exs.A92 and A93 are the report of the Advocate Commissioner, dated 10.04.1996 filed in O.S.No.6783 of 1995 and Petition & Order in I.A.No.13281 of 1995 in O.S.No.6783 of 1995 filed by the plaintiff against the 2nd respondent & another and that would also not help the case of the plaintiff.
67.Ex.A94 is the Order made in W.P.No.11003 of 1996 and Ex.A95 is the judgment made in O.S.No.973 of 1996 and Ex.A96 is the decree passed in O.S.No.973 of 1996, which is the subject matter of S.A.No.54 of 2008.
68.Ex.A97 is the decree passed in RCOP No.1410 of 1994 and Exs.A98 and A140 are the mortgage deed created by the plaintiff in respect of the suit property and discharge of the mortgage and those documents were rightly rejected by the trial court. Ex.A98 is the Mortgage deed, dated 27.05.1998 for a sum of Rs.10,000/-. Ex.A140 is, dated 22.06.1998 and the trial Judge rightly held that Exs.A98 and A140 were created to claim title to the suit property and even otherwise, those two documents cannot be relied upon by the plaintiff, as those two documents are after the filing of the suit. Similar is the case of Ex.A102, the lease deed, dated 05.02.1981 and in the absence of examining the lessee, the trial Judge rightly rejected the said document. Exs.A100 and A101 are the receipts issued by the Telephones Department and Postal Department and that would only prove the possession. Exs.A103 to A112 are the various demand notices and receipts addressed to Sukri Bai and the demand notice issued by the Water Board and that would only prove that the Sukri Bai was recognized as the owner till 1989. Ex.A113 is the demand notice addressed to the plaintiff's father and only the postal cover was marked and the date of that letter is not known. Ex.A121 is the certified copy of the plaint in O.S.No.6783 of 1995 and Exs.A122 and A123 are the Petition Affidavit in I.A.Nos.13281 and 13282 in O.S.No.6783 of 1995 and Exs.A124 and A125 are the Petition and Counter in I.A.Nos.2170 of 1996 and 1215 of 1996 in O.S.No.6783 of 1995 and Ex.A126 is the written statement filed in O.S.No.973 of 1996 and Ex.A127 is the affidavit filed in I.A.No.1676 of 1996 in O.S.No.973 of 1996 and Ex.A128 is the deposition of PW2.
69.As stated supra, O.S.No.973 of 1996 is the subject matter of S.A.No.54 of 2008 and therefore, Exs.A126 to A129 need not be considered at this stage and I shall deal with the pleadings in O.S.No.953 of 2004 later.
70.Ex.A129 is the ex-parte decree passed in C.S.No.331 of 1996, which was renumbered as O.S.No.12091 of 2010 and it is the subject matter of A.S.No.566 of 2011 and Exs.A130 and A131 are the judgment and decree passed A.S.No.257 of 2000, which is the subject matter of S.A.No.54 of 2008. Ex.A132 is the order in Application No.21 of 2008 in C.S.No.331 of 1996. Ex.A133 is the copy of the legal notice to the defendant and Ex.A134 is the reply notice and Ex.A135 is the written statement filed in O.S.No.331 of 1996. Ex.A136 is the sale deed, dated 10.05.1945 and Ex.A137 is the bank receipt, dated 27.03.1978 and Ex.A138 is the application for opening deposit account by the plaintiff's and Ex.A139 is the lease agreement, dated 28.01.1997 and those documents would not prove the case of the plaintiff.
71.Ex.A141 is the notice issued by the defendant to R.K.Joshi and Ex.A142 and A143 are the photographs and Ex.A144 is the notice by the defendants to the police. Ex.A145 is the encumbrance certificate and Ex.A153 is the letter from the Electricity Board to the defendant from 1998 onwards and all those documents are after the suit.
72.Exs.A154 to A156 are the letters from the revenue authorities and those documents are also after the suit and Ex.A157 is the acknowledgment for filing of the property return and the trial court rightly rejected the same stating that the person, who submitted the return was not mentioned in the receipt.
73.Exs.A158 to A161 are also the receipt issued by the Water Supply and Sewerage Board as well as the Corporation of Chennai, for property tax and the payment of Water and Sewerage taxes and those documents are of the year from 1990 to 2002 and that cannot be relied on, as they are after the suit. Exs.A162 to 167 are also the property tax demand receipt and those receipts are after the filing of the suit and those documents cannot be relied upon. Ex.A168 is the order made in W.P.No.3148 of 2001, dated 18.10.2001. Ex.A169 is the Commissioner's report in I.A.No.13282 of 1995 in O.S.No.6783 of 1995 and Ex.A170 is the affidavit in I.A.No.2170 of 1996 in O.S.No.6783 of 1995 and Ex.A171 is the Order in W.P.No.21699 of 2003. Ex.A172 is the Order passed in W.P.No.26646 of 2007. Ex.A173 is the petition in CMP No.987 of 2001 in A.S.No.257 of 2001, that is the subject matter of S.A.No.54 of 2008. Ex.A174 is the certificated copy of the judgment passed in C.S.No.331 of 1996. The trial court rightly considered those exhibits and gave cogent reasons for rejecting those documents and I concur with the findings of the trial court in that regard. I have also given the reasons for rejecting those documents in the earlier part of the judgment.
74.As stated supra, when the appellant/plaintiff claims title by adverse possession, he has to plead and prove from which point of time, the adverse possession commences. He also admitted that the suit property belonged to Sukri bai and in the plaint, he alleged that he perfected title by adverse possession even prior to 1951 along with his father J.Mangilal Radhakrishnan Joshi. He also admitted that Sukri bai died in 1947 without living any issue.
75.It has been laid down by the Hon'ble Supreme court in various judgments that in order to perfect title by adverse possession, the person must enjoy the property as his own, denying the title of the true owner and that too to the knowledge of the true owner. Admittedly, Sukri Bai died in the year 1947 and there was no allegation in the plaint that thereafter, the plaintiff and his father were enjoying the suit property as the owner to the knowledge of the true owner. He also did not state the name of the true owner against whom he claims adverse possession. As a matter of fact, he did not recognize the respondent as a true owner. Therefore, his possession will not become adverse against the true owner. Further, the plaintiff claimed adverse possession only on the basis of his open, uninterrupted and continuous possession from the year 1951 and the documents filed by him would prove his possession. But that would not be sufficient to prove that the plaintiff had perfected title by adverse possession.
76.Admittedly, the property tax stands in the name of Sukri Bai and the property tax was paid in her name and Water Taxes were also paid in her name and had the plaintiff/appellant enjoyed the suit property as his own, he would have taken steps to effect changes in the register in the the revenue records and no attempt was made by him.
77.In this connection, it is pertinent to mention about the reasoning given in the judgment by the trial court, which would clearly prove that the appellant/plaintiff could not have enjoyed the suit property as the owner of the property.
78.In para 36 of the judgment, the trial court held that:-
prior to 1995 the plaintiff was not able to produce not even a single document to show that he has paid the house tax in his capacity. Admittedly, the building was in dilapidated condition as evidenced by the Advocate Commissioner's report. If really the plaintiff or his father enjoyed the property as if it belongs to them, they would not have allowed the building to be ruined. Except the portion in the custody of the plaintiff's family, the remaining part of the building is almost dilapidated. Nobody is residing in the other portions. The conduct of allowing the other portions to be ruined itself would go to prove that the plaintiff or his father never enjoyed the property as if it belonged to them. They not even attended the minor repair works of the buildings. It shows their mindset and manner of enjoying the property.
79.As stated supra, to prove animus, the treatment of the property by the plaintiff is important. The fact that the plaintiff had not attempted to repair the suit property, event though the suit property is found in a dilapidated condition, would prove that the plaintiff had never treated of his own and that was the reason for not taking any steps to repair the suit property.
80.Further, the plaintiff has not taken any effort to pay the water tax payable in respect of the suit property and the exhibits Exs.A49, A60, A114 and A116 would prove that the water and sewerage tax was not paid for years together and had the plaintiff treated the suit property as his own, he would not have failed to pay the water tax for all these years. Therefore, the trial court held that a person, who has not taken any care to pay the tax cannot claim adverse possession over the property.
81.Further Ex.A55, the complaint given by the plaintiff would also make it clear that the plaintiff would not have been in possession from the year 1951 by claiming adverse possession and in Ex.A55 the complaint given by the plaintiff to the police, he admitted that he was in possession of the front portion of the suit property and he came to the suit property 35 years prior to the complaint and Ex.A55 is, dated 25.08.1995 and therefore, he must have come into the suit property in the year 1955, which would also falsify the case of the plaintiff/appellant that he and his father came to the suit property and enjoying the suit property even prior to 1951.
82.Further, Ex.A55 would also prove that the plaintiff/appellant was not in possession of the entire suit property and he was occupying a portion of the suit property and therefore, he cannot claim adverse possession in respect of the entire suit property. Further, when a person claims adverse possession, he must clearly state from which date, the adverse possession commences. Therefore, the plaintiff/appellant must state the exact period from which his possession became adverse to the true owner. The plaintiff was not able to state when he came into the possession of the suit property and in the plaint, he has stated that he perfected title by adverse possession from 1951 and no evidence was adduced to establish the same. As a matter of fact, no materials were furnished by the plaintiff/appellant to prove that prior to 1995, he was enjoying the property as a ostensible owner and was claiming hostile title against the true owner.
83.The submission of the learned counsel for the appellant is that even though, the other documents may not prove adverse possession, the appellant/plaintiff filed applications to implead himself in RCOP No.1410 of 1994 in the year 1994 and that was known to the true owner and therefore, from 1994 onwards, the plaintiff established his right over the suit property and the adverse possession can be presumed, commencing from 1994 and the suit for recovery of possession filed 12 years thereafter and therefore, the respondents are not entitled to the relief of recovery of possession.
84.He also submitted that the plaintiff filed a suit O.S.No.6783 of 1995, wherein he also claimed adverse possession and those documents would prove that from 1994 onwards, the plaintiff treated the suit property as his own and that claim was to the knowledge of the true owners, namely the respondents and therefore, the respondents are not entitled to relief of recovery of possession, even though the plaintiff failed to prove the adverse possession earlier to 1994. He, therefore, submitted that having regard to filing of petition in RCOP No.1410 of 1994 claiming title to the suit property, the plaintiff proved his adverse possession from the year 1994 onwards and therefore, he is entitled to the relief of declaration. The trial court has dealt with all these aspects clearly and I concur with the finding of the trial court.
85.Exs.A115 is the petition and affidavit filed by the plaintiff's father in M.P.No.848 of 1994 in RCOP No.1410 of 1994 and in that application, the plaintiff's father claimed that he was the owner of the suit property and perfected title by averse possession from 1951 and that RCOP was filed by A.K.Joshi against the respondents in that petition, as if they were the tenants and as the plaintiff's father claimed to be the owner by perfecting title by adverse possession, he filed application to implead himself in RCOP No.1410 of 1991 and that petition was dismissed on 25.11.1994 on the ground that notice was not given to the respondents in that petition. Therefore, it cannot be contended that the plaintiff's father claimed adverse possession to the knowledge of the true owners, which is one of the essential ingredients of adverse possession.
86.The next document is Ex.A121, the certified copy of the plaint in O.S.No.6783 of 1995. O.S.No.6783 of 1995 was filed by the plaintiff against the 6th defendant, namely R.K.Joshi. The defendants 1 to 5 are Biharilal Bai and his brothers, who are the sons of Manakulal Baiya and 6th defendant is the R.K.Joshi, son of A.K.Joshi residing in Door No.28, Periyanaickan Street, Chennai-7. Admittedly, the respondents did not claim any right, title or both through R.K.Joshi and no materials were furnished whether R.K.Joshi was served in that case. O.S.No.6783 of 1996 was filed for injunction stating that the plaintiff and his father were in occupation and enjoyment of the suit property from and earlier to 1951 and subsequently the suit was withdrawn. In the plaint in O.S.No.6783 of 1996 in para 5, the plaintiff has stated that on or before the 25th August 1995 the defendants having an eye on the said property, have been attempting to trespass into the said property and grab it for their selfish ends and to deprive the plaintiff of his rights and interests in the said property, which he has acquired by adverse possession and except the said sentence, nothing has been pleaded in the above suit, when the possession of the plaintiff became adverse to the knowledge of the true owner.
87.A reading of the plaint would also make it clear that the plaintiff never claimed ownership over the suit property and in para 12, it was stated that he was in possession for 40 years and the suit was filed to protect his possession. Therefore, in the absence of any proof that summons in that suit was served on the respondents or A.K.Joshi, who was the the real owner, it cannot be contended that the appellant/plaintiff had perfected title by adverse possession for more than the statutory period against the true owner.
88.As rightly held by the trial court that the plaintiff/appellant failed to prove that he perfected title by adverse possession and he has also failed to prove from which period, he started to enjoy the possession as a true owner adverse to the real owner and according to the plaintiff, the real owner Sukri Bai died and he never recognized her legal heirs as the owners of the suit property and therefore, it cannot be contended that the plaintiff had perfected title by adverse possession against the true owner. Hence, the trial court rightly held that the possession of the plaintiff did not become adverse to the knowledge of the true owner and therefore, the plaintiff cannot claim title to the suit property and rightly held that the suit for declaration by the plaintiff that he perfected title by adverse possession is not maintainable and dismissed the suit.
89.In this connection, it is pertinent to refer to the reason judgment of the Hon'le Supreme court, reported in (2014)1 SCC 669, in the case of Gurdwara Sahib vs. Gram Panchayat Village Sirthala and another, wherein the Hon'ble Supreme Court held that even if the plaintiff is found to be in adverse possession, he cannot seek the relief of declaration to that effect, that such adverse possession has matured into ownership and only when proceedings were filed against the persons, who claim adverse possession, he can use his possession as a shield and he cannot maintain a suit for declaration that he became the owner of the property by averse possession.
90.Therefore, having regard to the reasons stated above, I hold that the plaintiff failed to prove the adverse possession as per the law laid down by the Hon'ble Supreme Court and as referred to above, he cannot also maintain the suit for declaration that he perfected title by adverse possession and the trial Judge considered all these aspects elaborately, I also concur with the said finding. Hence, the point for consideration that whether the plaintiff/appellant had perfected title by adverse possession is answered against the appellant and therefore, A.S.No.566 of 2011 is dismissed and the judgment and decree of the trial court in O.S.No.12091 of 2010 are confirmed.
91.The respondent filed O.S.No.12092 of 2010 for recovery of possession and it is the contention of the learned counsel for the appellant that the respondents have not proved their title to the suit property and without proving the title, they are not entitled to the relief of recovery of possession and therefore, the suit is liable to be dismissed.
92.He also contended that the suit was filed only in the year 2007, whereas even in the year 1994, the appellant claimed adverse possession and for 13 years, no action was taken and therefore, the respondents are not entitled to the relief of recovery of possession and the appellant had made out a case of adverse possession from 1994 onwards.
93.In earlier paras I have held that even from 1994, the appellants cannot claim adverse possession as O.S.No.6783 of 1996 was dismissed as withdrawn and no proof was produced by the appellants that summons were served on the defendants in that suit. Further, the application filed to implead himself as party in RCOP No.1410 of 1994 was dismissed on the ground that notice to the landlords were not given. Therefore, the appellants failed to establish that from 1994 he was claiming title as owner to the knowledge of the real owner. Therefore, it cannot be contended that from 1994 the appellant proved his case of adverse possession and the suit for recovery of possession filed in 2007 is barred by time.
94.He also submitted that the trial court, having held that Ex.B2 should be construed only as a Will and not a Settlement and probating the will, the respondents cannot claim title to the suit property under the Will Ex.B2 and therefore, when the respondents have no title to the suit property, they cannot claim recovery of possession from the plaintiff, who is admittedly in the possession of the suit property.
95.I am unable to accept the said contention of the learned counsel for the appellant. It is true that the trial court has rightly held that though Ex.B2 is stated to be a settlement deed, it must be construed only as a Will. Admittedly, the suit property is in Chennai and as per Section 213 of the Indian Succession Act, without getting probate or letters of administration in respect of the Will executed in the Presidential town, no one can claim any right under the Will. The learned trial court interpreted section 213 of the Indian Succession Act stating that as per the said section, no right as executor or legatee can be established in any court of Justice, unless a Court of competent jurisdiction in Indian has granted probate of the will under which the right is claimed or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed and the suit O.S.No.12091 of 2010 is filed by the purchaser and not by the executor or legatee and therefore, section 213 of the Indian Succession Act cannot be applied to the facts of the case.
96.The learned trial Judge also held that the question of probate arose when there is a dispute between the heirs of testators and relied upon the judgment reported in AIR 1973 Gauhati 90 and held that the 3rd party, who is not connected with the will, cannot challenge the validity of the will or gift even on the ground that the will was not acted upon or accepted.
97.According to me, even assuming that section 213 of the Indian Succession Act, applies to the present case and in the absence of probate or administration, the plaintiff in O.S.No.12091 of 2010 cannot rely upon Ex.B2 to claim title to the suit property, having regard to the fact that the sale deeds were executed in favour of the plaintiff by the legal heirs of Sukri Bai, the plaintiff in O.S.No.12092 of 2010 became the absolute owners of the suit property and therefore, they are entitled to file a suit for recovery of possession.
98.Ex.B1 is the original sale deed, dated 29.01.2001 and that sale deed was executed by Shailesh, Radeshyam Purohit, Rajendra Purohit, Om Prakash Purohit and Chandrasekar Bohar in favour of Vasanth Kumar and his wife Sandhya, the defendants 3 and 4 in O.S.No.12091 of 2010. The said Vasanth Kumar died and his son V.Anand Kumar was impleaded as 5th defendant and they filed a suit O.S.No.12092 of 2010 for recovery of possession. In the said sale deed, they referred to the settlement deed, dated 01.12.1945 executed by Sugani Bai and traced the title to the settles.
99.It is seen from the recitals in Ex.B2 settlement deed that the beneficiaries are none other than the legal heirs of Sungani Bai and as per the settlement deed Ex.B2, 1/3rd share was given to Gopu Bai widow of Daulal Vyas and Daulal Vyas the husband of Gopu Bai was none other than the husband of brother's son of Sungani Bai and it is also mentioned in the said document(Ex.B2) and another 1/3rd was given to Abeyakaren son of Udeykaran Joshi and the remaining 1/3rd was given to Vijay Kishen son of Deo Krishna Bohra and they are mentioned as grand-sons of Daulal Vyas through his daughters Bavari Bai and Sungani Bai. Therefore, the beneficiaries under the settlement deed Ex.B2 were the legal heirs of the Sungani Bai and even in the absence of the settlement deed, they are entitled to inherit all the properties belonged to Sukri Bai as she died without any issue. Therefore, even holding that Ex.B2 is a will and in the absence of any probate or administration, no one can claim title under Ex.B2, having regard to the relationship of the the beneficiaries and they happened to be the legal heirs of Sukri Bai, they are entitled to dispose of all the properties in favour of the plaintiff in O.S.No.12092 of 2010.
100.As admittedly, Sungani Bai died issue-less and so-called beneficiaries became her legal heirs as per law. Therefore, the persons, who executed the sale deed under Ex.B1 to the plaintiffs were competent to give valid document of title in respect of the suit property in O.S.No.12092 of 2010 and therefore, the plaintiffs in O.S.No.12092 of 2010 are the owners of the suit property and they are entitled to file a suit for recovery of possession of the suit property from the appellant, who failed to prove the adverse possession.
101.In the earlier part of the judgment, I have held that the appellant failed to prove the adverse possession from the year 1951 or after 1994 and therefore, the owners are entitled to seek the relief of recovery of possession and that was rightly held by the trial court and the point for consideration is answered against the appellant holding that the respondents proved that they have got valid title to the suit property, they are entitled to seek the relief of recovery of possession. The trial court rightly decreed the suit and there is no need to interfere with the such findings of the trial court and therefore, the judgment and decree of the trial court passed in O.S.No.12092 of 2010 are confirmed.
102.At the time of admitting the second appeal, the following substantial questions of law were framed:-
1.Whether the appellate court has not misdirected itself in entering a finding of prescriptive title by the appellant when the point for determination framed is whether the Trial court was right in framing an issue on the question of adverse possession in the present suit and is not the finding of the appellate court contrary to its own decision on the point set out for determination?
2.When the principal issue addressed by the parties before the appellate court was regarding the correctness of the trial court in framing an issue relating to prescriptive title in the instant suit, has not the appellate court erred in purporting to decide the issue regarding factum of adverse possession against the appellant having found that such an issue ought not to have framed at all in the instant suit?
103.According to me, the substantial questions of law framed in S.A.No.54 of 2008 are answered against the appellant, having regard to the finding given in A.S.Nos.566 and 567 of 2011 that the appellant failed to prove his possession and the respondents have proved title and entitled to the relief of recovery of possession. Therefore, even assuming that the decree in RCOP No.1410 of 2010 is not binding on him, having regard to the decree passed in O.S.No.12092 of 2010, the appellant has to vacate and hand over the vacate possession and therefore, there is no need to go into the merits of the matter, having regard to the finding given in the other two appeal suits. Hence, the second appeal is also dismissed.
104.In the result, all the appeals are dismissed. Consequently connected Miscellaneous Petitions are closed. No costs.
Index:Yes 25 .04.2014
Internet:Yes
er
R.S.RAMANATHAN, J
er
To,
1.The Additional District Court/
Fast Track Court No.I,
Chennai.
2.The VI Additional City Civil Court,
Chennai.
3.The Assistant City Civil Judge,
Chennai.
common judgment made in
A.S.Nos.566 & 567 of 2011
and
S.A.No.54 of 2008
25.04.2014