Madras High Court
D.Balaraman vs Sadagopan on 6 August, 2012
Author: S. Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.08.2012 CORAM THE HONOURABLE MR.JUSTICE S.TAMILVANAN S.A. No.1615 of 2011 and M.P.Nos.3 and 4 of 2011 D.Balaraman ... Appellant vs 1. Sadagopan 2. S.Srinivasan 3. S.Mohanakrishnan 4. S.Muralitharan 5. S.Badrinath 6. D.Venkatesan ... Respondents Second Appeal is filed under Section 100 of the Civil Procedure Code against the Judgment and Decree dated 29.11.2010 passed in A.S.No.89 of 2006 on the file of the Principal District Judge, Chengalpet, confirming the Judgment and Decree, dated 07.03.2006 made in O.S.No.639 of 2001 on the file of the Principal Subordinate Judge, Chengalpet. For Appellant : Mr.R.Krishnamurthy, Senior Counsel for Mr.B.Vijay For Respondents : Mr.M.S.Krishnan for Mr.K.V.Babu for R1, R2 and R5 JUDGMENT
The second appeal has been preferred against the Judgment and Decree dated 29.11.2010 passed in A.S.No.89 of 2006 on the file of the Principal District Judge, Chengalpet, confirming the Judgment and Decree, dated 07.03.2006 made in O.S.No.639 of 2001 on the file of the Principal Subordinate Judge, Chengalpet.
2. The suit in O.S.No.639 of 2001 was filed by the respondents 1 to 5 and one deceased Meenakshi Ammal, seeking declaration of title and consequential injunction, with regard to the suit schedule of property, against the appellant and the sixth respondent herein. After the trial, the suit was decreed as prayed for, aggrieved by which, appeal was preferred by the appellant herein in A.S.No.89 of 2006, however, confirming the Judgment and Decree passed by the trial court, the same was dismissed by the first appellate court. Aggrieved by the said Judgment, this Second Appeal has been preferred by the appellant herein.
3. This Second Appeal is admitted based on the following substantial questions of law raised by the appellant :
1. When the Courts below had held that the respondents / plaintiffs have approached the Tahsildar concerned to measure the suit property through Taluk or Firkha Surveyor, in order to fix the boundaries of the suit property and when the plaintiffs have not given any linear measurements of the suit property in the plaint whether the courts below are correct in granting the relief of recovery of possession?
2. Whether the findings of the Courts below that the appellant / first defendant is in possession of suit property only from the year 1990 on the basis of Ex.B.4, B.5, Adangal extract and Ex.B.6 patta of the year 1990 is perverse, since the courts below had failed to draw inference from the state of things is shown to exist of its continuity retrospectively (i.e) backward also, while deciding the question of adverse possession and hence, warrant interference under Section 100 of Code of Civil Procedure ?
3. Whether the Courts below are correct in relying upon the Exs.A.2, A.3, A.5 to A.18 in which this appellant / first defendant is not a party at all, while deciding the question of title regarding the suit property against the appellant / first defendant ?
4. Since the Courts below had not evaluated the documentary evidence produced on the side of the appellant / defendant in a proper prospective and arrived a perverse finding that this appellant has not perfected his title by adverse possession and hence warranted interference of this Honourable Court under Section 100 of CPC ?
5. Whether the Courts below are justified in granting the decree for recovery of possession, when admittedly respondent / plaintiff's sought the relief of mandatory injunction to measure the suit property and restore the benchmark boundaries of the suit property ?
6. Whether the Courts below is right in granting decree of declaration of title and recovery of possession when defendants had perfected his title over the suit property by adverse possession more than the statutory period ?
7. Whether the Courts below had failed to draw adverse inference against the respondent / plaintiff that the suit filed by them is hit by Article 64 and 65 of Limitation Act, having found that the respondents admittedly had not preferred any complaint about alleged encroachment and sub-division of property till 1993, even after the alleged purchase made by their predecessors in title ?
4. The plaintiffs have stated that one Chellappa Naicker, grand father of the plaintiffs 1 to 5 and father-in-law of the sixth plaintiff had purchased the suit schedule property, by way of a registered sale deed, dated 24.11.1951 from one Devaraja Naicker, the father of the defendants. The said Chellappa Naicker, in order to make use of the vacant land submitted a plan to the District Board, Chengalpet, seeking approval of plan to construct a flour mill on the said land. After getting approval from the District Board for the plan, on 30.11.1951, construction was also completed and subsequently, Chellappa Naicker died, leaving the plaintiffs 1 to 5, one Ruckmani Ammal, widow of Chellappa Naicker and Sundaram, father of the plaintiffs 1 to 5 and also the husband of the sixth plaintiff along with other persons as legal heirs. As per the pleadings in the plaint, on the date of filing of the suit, the plaintiffs alone were entitled to the suit property. The widow of Chellappa Naicker filed a suit in C.S.No.1124 /1960 on the file of the City Civil Court, claiming partition and separate possession of 1/4th share in the estate of Chellappa Naicker.
5. When the suit was pending, an application was taken out by the plaintiff therein, Ruckmani Ammal in I.A.No.7305 / 1965 in the suit in C.S.No.1124 / 1960 for appointment of Receiver. The Advocate-Receiver, who was appointed by the Court, took over the possession of the suit properties and in the said suit, partition decree was also passed on 22.06.1979, declaring 1/4th share in favour of Ruckmani Ammal, w/o Chellappa Naicker. According to the plaintiffs, the defendants, had no right in the suit property, however, they are attempting to interfere with the peaceful possession and enjoyment of the property, hence, the suit was filed by the respondents 1 to 5 herein, who were plaintiffs in the suit.
6. Per contra, the appellant / first defendant had filed written statement before the Court below stating that the alleged sale deed, dated 24.11.1951, executed in favour of Chellappa Naicker, grand father of the respondents / plaintiffs was a fictitious document and that was not acted up on. According to the appellant / first defendant, the possession and enjoyment of the property, ever since from the date of purchase of Chellappa Naicker was only with Devaraj Naicker, father of the appellant. The appellant's father had owned 5.70 acres in S.No.427/1, out of which plaintiffs grand father purchased only 30 cents of land. According to the appellant, as stated in the written statement, the entire property was in the possession and enjoyment of the appellant and his family members and in the year 1963, there was a oral partition between the appellant and his brother, the sixth respondent herein and the suit schedule property fell into the share of the appellant / first defendant and he is cultivating the land continuously till the date of filing of the suit. Patta was also granted for the entire 5.70 acres of land, including the suit property. In the written statement, the appellant and the sixth respondent herein have denied the appointment of Receiver and other details stated by the plaintiffs. According to the appellant, the suit property was not a vacant land at any point of time and the appellant is cultivating and raising crops continuously in the suit property. The appellant, who was the first defendant in the suit has stated that the respondents 1 to 5 / plaintiffs are not entitled to the relief sought for in the suit. After the trial, the suit was decreed in favour of the respondents 1 to 5 / plaintiffs and that was confirmed by the first appellate Court.
7. The second appeal has been preferred only by the first defendant in the suit, on the aforesaid substantial questions of law and the following decisions were relied on by both the learned Senior counsel in order to enlighten the legal aspect involved in the second appeal :
1. Saroop Singh vs. Banto, (2005) 8 SCC 330
2. Karnataka Board of Wakf vs. Govt. of India, (2004) 10 SCC 779
3. K.Gopalan (died) & others vs. Muthulakshmi, 2011-3-LW 789
4. S.Ganesan vs. Bharathirajan, 2009 (5) CTC 558
5. Pappayammal vs. Palanisamy, 2005 (3) CTC 292
6. Kalidoss Pillai vs. Palani Subban Pillai, (2004) 1 MLJ 329
7. Nagarajan vs. Rajamani Aiyar, 1999 (I) CTC 428
8. Substantial Questions of Law 1 to 3 : It was argued on behalf of the appellant that the respondents / plaintiffs had approached the Tahsildar concerned, to measure the suit property through Taluk or Firkah surveyor, in order to fix the boundaries of the suit property, as the plaintiffs had not given any linear measurements of the suit property in the plaint, in such circumstances, whether the courts below are correct in granting the relief of recovery of possession is the first substantial question of law. The second question of law raised by the appellant is that the appellant / first defendant is in possession and enjoyment of the suit property from the year 1990 on the basis of Exs.B.4, B.5 adangal and Ex.B.6 patta relating to the year 1990, hence, the finding of the Courts below would be perverse, since the Court below had failed to draw inference, while deciding the question of adverse possession and hence, the concurrent findings warrant interference under Section 100 of Code of Civil Procedure. The third substantial question of law, as framed is whether the Courts below are correct in relying on Exs.A.2, A.3, A.5 to A.18, for which the appellant / defendant was not a party, while deciding the question of title regarding the suit property against the appellant / first defendant.
9. In the written statement, the appellant / first defendant has stated that his father was owning a total extent of 5.70 acres in S.No.427/1. It was alleged that the grand father of the respondents 1 to 5/ plaintiffs, purchased 30 cents out of the said 5.70 acres of land, though in the year 1963, there was oral partition between the appellant / first defendant and his brother, the sixth respondent herein and the partition, described as the suit schedule property fell into the share of the appellant and he is in possession and also doing cultivation in the suit property till the date of filing of his written statement, by raising crops. The appellant / first defendant has further stated that even after the alleged sale deed, Ex.A.1, as per the revenue records, the suit property was not changed in the name of the Chellapa Naicker, hence, his sale deed was only fictitious document, which was not acted up on. According to the appellant, even assuming that Chellapa Naicker purchased the suit property, the said Chellapa Naicker did not take possession from the defendant's father and therefore, the said sale is not valid in law. The appellant / first defendant has also pleaded that he is in uninterrupted continuous possession, known to public and his open possession of the suit property was for more than the statutory period and even after the date of the alleged sale deed, dated 24.11.1951, he was in possession and got title by way of adverse possession.
10. Mr.R.Krishnamurthy, learned Senior counsel appearing for the appellant contended that the sale deed, dated 24.11.1951 obtained by late Chellappa Naicker, grandfather of the respondents 1 to 5 was only a sham and nominal document, which was not acted upon and on the said circumstances, it has to be construed that the appellant has got title, even by way of adverse possession.
11. It is not in dispute that Chellappa Naicker, grand father of the respondents 1 to 5 and father-in-law of the sixth plaintiff had purchased the suit schedule property, by way of a registered sale deed, dated 24.11.1951 under Ex.A.1 from Devaraja Naicker, father of the defendants. It is an admitted fact that the vendor, Devaraja Naicker had saleable right in the property and Chellappa Naicker purchased the property for valuable consideration, as per the sale deed, which was executed as per procedure known to law. The appellant / first defendant is claiming right only through his father Devaraja Naicker. It was argued on the side of the respondents 1 to 5 / plaintiffs that the appellant is estopped from disputing the sale deed and the appellant is not entitled to raise a plea that the sale deed is sham and nominal, executed by his father Devaraja Naicker, in favour of Chellappa Naicker. In this regard, having gone through the evidence available on record, I am of the view that the concurrent finding of the Courts below is based on evidence and hence, it cannot be construed as a Judgment based on perverse finding.
12. The brother of the appellant herein, who was the second defendant in the suit has not preferred the second appeal. Even the appellant herein is not entitled to claim title by way of adverse possession in the second appeal, as there was no specific pleading and no evidence was adduced in favour of the appellant to decide that he prescribed title by way of adverse possession. Hence, the appellant cannot raise the substantial question on the ground that the respondents 1 to 5 / plaintiffs have not given any linear measurement of the suit property in the plaint and that the Courts below cannot rely on Exs.A.2, A.3 and A.5 to A.18, documents in deciding the issues by the trial court and points for determination by the first appellate court, by referring Exs.B.4, B.5 and B.6 to establish any right in favour of the appellant.
13. It has been established that Devaraja Naicker, father of the appellant and the sixth respondent had saleable right in the property and executed sale deed, Ex.A.1 in favour of Chellappa Naicker. Ex.A.2, original approved plan, dated 30.11.1951, application of Chellappa Naicker for the supply of iron and steel materials for the construction, as per Ex.A.3 and other documents filed on the side of the respondents 1 to 5 / plaintiffs would clearly show that it cannot be said that the father of appellant had executed any sham and nominal sale deed, as stated by the appellant. Similarly, Exs.B.4, B.5 and B.6, adangal and patta would show no relevancy, since the vendor Devaraja Naicker had sold only a portion of the property in the survey number and the remaining land was in the possession and enjoyment of Devaraja Naicker and his legal heirs, including the appellant herein. In the aforesaid circumstances, the Court is of the view to answer the alleged substantial questions of law 1, 2 and 3 in favour of the respondents 1 to 5 and against appellant and sixth respondent, in fact, the alleged substantial questions of law could not be construed as substantial questions of law, as contemplated under Section 100 of the Code.
14. Substantial Questions of Law 4 to 6 : The appellant has stated that the concurrent findings of the Court below are perverse and that the appellant had perfected title by adverse possession, hence, the impugned Judgment and Decree warrant interference under Section 100 of the Code of Civil Procedure and further submitted that the Court below could not have granted decree for recovery of possession, as the relief should be of mandatory injunction to measure the property and restore the boundaries of the suit property and also pleaded that the appellant has perfected title by adverse possession.
15. It is a settled proposition of law that for seeking the relief of adverse possession, one should admit the title of other person and from which, he could have stated the date on which, he claims adverse possession to prescribe title and the claim should be certain. Similarly, the burden of proving adverse possession is upon the person, who claims title by way of adverse possession. In the instant case, neither the appellant nor the sixth respondent had admitted the title of Chellappa Naicker or the respondents 1 to 5 and the appellant has not specifically claimed title by way of adverse possession. Without specific pleadings for claiming title by way of adverse possession and adducing sufficient supporting evidence, it could not be legally possible to establish title by way of adverse possession.
16. In the instant case, the appellant and the sixth respondent are not entitled to dispute the saleable right of Devaraja Naicker, as they have claimed right only through their father, the said Devaraja Naicker. In fact, the appellant and the sixth respondent have admitted that their father, Devaraja Naicker had owned 5.70 acres of land in S.No.427/1. It has been established by the respondents 1 to 5, who were plaintiffs in the suit that the sale deed, Ex.B.1 was executed by Devaraja Naicker in favour of Chellappa Naicker, grand father of the respondents 1 to 5 / plaintiffs. The defence raised by the appellant and his brother, the sixth respondent herein is that the sale deed was sham and nominal and not acted upon and that the appellant / first defendant was in exclusive possession and enjoyment of the entire 5.70 acres of land, including the portion of the land, an extent of 35 cents, described as plaint schedule property. The appellant would say that he got patta, even after the date of the sale deed.
17. Per contra, the learned Senior counsel appearing for the respondents 1 to 5 submitted that patta is not a document of title and according to him, by virtue of the sale deed, Ex.A.1, Chellappa Naicker, became the owner of the suit schedule property and the sale deed was acted upon, as per the findings of the Court below, based on evidence available on record. On the date of filing of the suit, as legal heirs of Chellappa Naicker, the respondents 1 to 5 as plaintiffs owned the suit property. It is argued on behalf of the respondents 1 to 5 that the claim of the appellant / first defendant is unsustainable in law.
18. In Kalidoss Pilai vs. Palani Subban Pillai, reported in (2004) 1 MLJ 329, a Division Bench of this Court (N.V.Balasubramanian & AR.Ramalingam, JJ), referring various decisions, has categorically held that patta is not a document of title.
19. In the instant case, it is an admitted fact by both the parties that Devaraja Naicker, father of the appellant and the sixth respondent, had owned 5.70 acres of land in S.No.427/1, only a portion of the property was sold by him under Ex.A.1, sale deed to Chellappa Naicker, grand father of the respondents 1 to 5, hence, merely producing patta relating to the appellant or his predecessor in title, he cannot claim title to the entire property, including the portion that was sold by his father. It is well settled that patta cannot be construed as document of title, hence, the alleged patta produced by the appellant does not confer any title in favour of the appellant.
20. In Nagarajan vs. Rajamani Aiyar, reported in 1999 (I) CTC 428, this Court (K.Sampath, J), referring the legal maxim, Nec vi Nec clam Nec Precario, held that to claim title by way of adverse possession, such possession must be open, hostile and as a matter of right, no person is entitled for claiming adverse possession, unless it is pleaded. It is well settled that for claiming title by way of adverse possession, there must be pleading in respect of the hostile possession for the statutory period.
21. In D.Mahesh Chand Sharma vs. Rajakumari Sharma, reported in AIR 1996 SC 869, the Hon'ble Apex Court has held as follows :
"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."
22. Similarly in S.Subba Reddiar (died) and others vs. Bhagyalakshmi Ammal and another, reported in 1996 (2) LW 31, it has been held as follows :
"it is for the person claiming title to prove existence of hostile title and that the person remained silent even after knowledge there of mere a silence or keeping animus in mind cannot make the title lost to the real owner. Definite date is required to claim adverse possessions and pleading is a absolutely necessary."
It has been made crystal clear that person claiming title by way of adverse possession has to prove the animus of hostile possession.
23. In S.Ganesan vs. Bharathirajan, reported in 2009 (5) CTC 558, this Court (M.M.Sundresh, J), relying on various decisions and also the decision M.Ganesa Reddiar vs. C.Krishnasamy Raju, reported in 2008 (5) MLJ 144, held that the plaintiff therein having taken a plea of ownership, based upon title cannot claim adverse possession, since under the doctrine of adverse possession, one has to accept the title of other possession.
24. In K.Balakrishnan vs. K.Kamalam, reported in 2004 (1) CTC 146, the Hon'ble Apex Court has held that mere possession for any length of time would not lead to adverse possession. The mere duration or length of possession is not a factor for deciding adverse possession.
25. In Saroop Singh vs. Banto, reported in (2005) 8 SCC 330, the Hon'ble Supreme Court has held as follows :
"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..."
26. In Karnataka Board of Wakf vs. Govt. of India, reported in (2004) 10 SCC 779, the Hon'ble Supreme Court has held as follows :
"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."
27. Mr.R.Krishnamurthy, learned Senior counsel appearing for the appellant drew the attention of this Court to the decision of this Court (M.Karpagavinayagam, J) in Pappayammal vs. Palanisamy, reported in 2005 (3) CTC 292 and argued that being a defendant, the appellant though not entitled to raise inconsistent plea, can take alternative plea of adverse possession. In the aforesaid decision, relying on the earlier decisions, N.S.Spance vs. D.S.Kanagarajan and another (2005 (1) CTC 494) and Rame Gowda vs. M.Varadappa Naidu (2004 (1) SCC 769), it was held as follows :
"29. The above decisions would indicate that though inconsistent pleas cannot be allowed to be entertained, there is no bar for making alternative plea. Suppose in a case where a person sets up title in himself and fails to substantiate the same, alternatively, such a person can claim adverse possession. Thus, it is clear, that the pleas of title and adverse possession cannot be said to be inconsistent pleas."
26. In K.Gopalan (died) & others vs. Muthulakshmi, reported in 2011-3-LW 789, this Court (R.S.Ramanathan,J), held that the defendant cannot claim title to the suit property, by way of adverse possession, in the absence of any evidence, on the ground that the plaintiff was aware of the hostile possession of the defendant.
27. It cannot be disputed that the appellant / first defendant was entitled to take alternative plea of adverse possession, though no party has right to take inconsistent or self contradictory plea. When there is alternative plea, there should be doctrine of election. In other words, when the alternative plea is contra to the other plea, there could be doctrine of election. In other words, if the alternative plea is inconsistent to the other plea, the party taking such a plea as defence shall select one of the pleas.
28. In the instant case, the appellant, who claim title through his father Devaraja Naicker, has no right to dispute the sale deed executed by his father. In other words, the appellant is estopped from raising a plea that his father had no saleable right in the property. Similarly, his plea that the sale deed executed in favour of Chellappa Naicker has not been established. The Courts below has held that the said plea of the appellant is not sustainable.
29. In the light of various decisions, it is crystal clear that for seeking title by way of adverse possession (1) there must be specific pleading, admitting the title of the other party (2) unless there is 'animus possidendi', claim of adverse possession will not arise. (3) such adverse possession required is for the statutory period or more (4) the burden lies on the person, who claims title by adverse possession, that burden cannot be shifted on the person, who actually owned the property.
30. On the aforesaid facts and circumstances, in the light of the decisions referred to above, I am of the view that the appellant / first defendant has not made specific pleading for seeking title by way of adverse possession and there is no evidence to hold that the appellant has prescribed title by way of adverse possession. In the aforesaid circumstances, there is no need to interfere with the Judgment of the Courts below. Accordingly, substantial questions of law 4,5 and 6 are answered against the appellant and sixth respondent and in favour of the respondents 1 to 5
31. Substantial Question of Law No.7 : The appellant has raised substantial question that the suit filed by the respondents 1 to 5, who are plaintiffs in the suit was hit by Article 64 and 65 of Limitation Act, on the ground that they have not preferred complaint about encroachment till 1993, after the purchase made by their predecessors in title. The aforesaid substantial question has not been raised either based on any evidence or on the admission made by the other side.
32. In Saroop Singh vs. Banto, reported in (2005) 8 SCC 330, the Hon'ble Supreme Court has 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."
33. It is well settled proposition of law that "animus possidendi" is one of the ingredients of adverse possession. Unless the person, who is in possession of the land has the required animus for prescription of title, the period of seeking adverse possession cannot commence. In other words, animus possidendi is an important element for seeking adverse possession, which is otherwise hostile possession against the owner of an immovable property.
34. In the instant case, the appellant has not even raised 'animus possidendi' and pleaded adverse possession by prescription and there is no evidence to show that the appellant has got title, by way of adverse possession. It is well settled that pleadings without evidence or evidence without pleading would never confer title by way of adverse possession. The appellant has not specifically pleaded adverse possession and there is no evidence to establish adverse possession. As the appellant has not admitted the title of the respondents 1 to 5 and their predecessors in title, there could be no animus possidendi, to claim adverse possess ion. The appellant, being one of the defendants in the suit could make alternative plea, but has not entitled to raise inconsistent plea. Claiming title independently and seeking title to the property by adverse possession are contra to each other, hence, there is no scope to draw adverse inference in favour of the appellant and accordingly, I hold that the relief sought for by the respondents 1 to 5 as plaintiffs was not hit by Article 64 and 65 of Limitation Act, in the light of the decision reported in (2005) 8 SCC 330 (cited supra). Accordingly, the alleged substantial question of Law 7 is also answered against the appellant and the sixth defendant and in favour of the respondents 1 to 5. On the facts and circumstance of the second appeal, there is no substantial question of law to be decided in favour of the appellant, in the light of the decisions referred to above, this Court is of the view that the impugned Judgment cannot be interfered with by this Court in this second appeal and accordingly, the same is liable to be dismissed.
35. In the result, this Second Appeal is dismissed. Consequently, connected miscellaneous petitions are also dismissed. However, there is no order as to costs.
06-08-2012 Index : Yes Internet : Yes tsvn To
1. The Principal District Judge Chengalpet.
2. The Principal Subordinate Judge Chengalpet.
S. TAMILVANAN,J.
tsvn Judgment in S.A. No.1615 of 2011 06-08-2012