Madras High Court
Habiba Ammal vs Sarkunam on 4 June, 2012
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:-04.06.2012 Coram:- The Hon'ble Mr. Justice T.RAJA Second Appeal No.176 of 2005 1.Habiba Ammal 2.Mohammed Dawood 3.Abdul Rahman 4.Halilur Rahman ... Appellants vs. 1.Sarkunam 2.Suseela 3.Manikantan ... Respondents Second Appeal filed under Section 100 CPC against the judgment and decree in A.S.No.78 of 2001 dated 12.1.2004 on the file of Sub-Court, Thiruvarur confirming the judgment and decree in O.S.No.98 of 1996 dated 30.7.2001 on the file of District Munsif Court, Thiruthuraipoondi. For Appellants : Mr.S.Parthasarathy senior counsel for Mr.P.B.Ramanujam For Respondents 1 to 3 : No appearance J U D G M E N T
The appellants in the Second Appeal are plaintiffs before the trial court who filed a suit against the defendants/respondents herein for declaration of title and possession with mesne profits and the same having been non-suited by both the Courts below, they have brought this Second Appeal under section 100 C.P.C.
2. Brief facts leading to the filing of the present Second Appeal are as under:
(i) The plaintiffs claimed to have purchased the suit property from one Valliappa Chettiar. It is also admitted by both sides that the suit property originally belong to Valliappa Chettiar. Whileso, the plaintiffs/appellants have purchased by sale deed dated 24.12.1980 the land lying adjacent to the suit land which is occuppied by the defendants/respondents herein. The land in S.No.137/1 is situated at Muthupettai in Thiruthuraipoondi Taluk having an extent of 3 acres 10 cents, East to West-106 feet, South to North-32 feet which is put together, having total extent of 3,392 sq.ft. A house bearing Door No.135 situated on the eastern side in S.No.138/1 was also claimed to be belonging to the plaintiffs/appellants by virtue of the sale deed dated 24.12.1980. However, the defendants who are doing agricultural work in the field, all of a sudden encroached the land by putting up a superstructure in an area to the extent of 900 sq.ft. Therefore, when a notice was sent on 03.9.1986 to the first defendant/first respondent herein asking the defendants to vacate and hand over vacant possession, the first defendant/first respondent by reply notice dated 16.9.1986 denying the title and ownership of the land, refused to part with the encroached portion. However, it was further stated that after some time the first defendant approached the plaintiffs with the request to ignore his reply with further agreement to vacate the place some time later, since they have put up the superstructure to keep the agricultural implements. However, as against the said undertaking when the defendants refused to vacate, the plaintiffs filed a suit for declaration and consequential possession with the award of mesne profits.
(ii)Opposing the said prayer the defendants/respondents filed a detailed written statement stating that at no point of time the defendants/respondents have encroached upon the land belonging to the plaintiffs since they were already working as agricultural labourers in the field belonging to the plaintiffs' vendor-Valliappa Chettiar. The said Valliappa Chettiar, being a landlord, knowing pretty well that the defendants/respondents herein are indispensable for cultivating his lands, allowed them to put up a superstructure in the present suit land. Only with the permission granted by the plaintiffs' vendor-Valliappa Chettiar, the defendants/respondents herein had occupied the suit land having 900 sq.ft.in Survey No.138/1 33 years ago which is a road poromboke. However, when the plaintiffs had purchased the other properties in S.No.137/1 belonging to Valliappa Chettiar, the plaintiffs/appellants also issued on an earlier occasion, one legal notice dated 03.9.1986 calling upon the defendants to vacate and hand over as though the defendants had encroached upon the plaintiffs' land ignoring the fact that the defendants were staying in the suit land as permissive occupants for the past 33 years with the permission of Valliappa Chettiar. As the defendants/respondents had worked in the Valliappa Chettiar's land as agricultural labourers and knowing the importance of their continuous presence and necessity to help the cultivation of Valliappa Chettiar allowed them to reside. In view of the permission granted the defendants by putting up their superstructure started living for about 3 decades and thereby, they have perfected adverse possession over the suit property as permissive occupants. However, when a reply notice was issued, the plaintiffs failed to file a suit and take appropriate action against the defendants. After 10 years, once again the plaintiffs issued another notice as though the defendants were admitted as tenants under them in the suit. When these are the stands taken by the plaintiffs/appellants in the notices dated 03.9.1986 and 19.10.1995, taking a different stand in the suit for declaration of title and recovery of possession with mesne profits is legally untenable and the suit is not maintainable in the eye of law. It was also the case of the defendants that after putting up the superstructure in the suit property as permissive occupants on the basis of the permission granted by Valliappa Chettiar-plaintiffs' vendor, the defendants/respondents also with the permission sanctioned by Muthupettai Panchayat Union have raised pucca construction. Therefore, the suit property is legally belonging to the defendants/respondents and when the suit property legally belongs to the defendants, the suit is not maintainable.
3. The learned trial court after considering the evidence of P.Ws.1 and 2 along with the documentary evidence marked as Exs.A1 to A13 produced from the plaintiffs' side and also considering the evidence of D.W.1 and the documentary evidence produced on the side of the defendants marked as Exs.B1 to B19, and also Exs.C1 to C3, came to the conclusion that though the plaintiffs/appellants had purchased 3 acres and 10 cents in S.No.137/1 from their vendor-Valliappa Chettiar, also appreciated the evidence produced on the side of defendants/respondents that the defendants 1,2 and 3 were employed as agricultural labourers by the plaintiffs' vendor-Valliappa Chettiar to take care of the agricultural work and finding the importance of their continuous presence to cultivate the land occupied by Valliappa Chettiar, the defendants were permitted to occupy the land i.e., situated on the eastern side of the road poromboke having an extent of 900 sq.ft., and only on the basis of the permission granted by Vallippa Chettiar, the defendants raised their superstructure and started living for the past 33 years. Hence, the learned trial court also came to the conclusion that the defendants/respondents have fairly admitted that the suit property originally belonged to Valliappa Chettiar, came to be purchased by the plaintiffs/appellants by sale deed dated 24.12.1980 and thereafter, patta was issued in their favour. But, for the reason that the defendants were living as permissive occupants, the plaintiffs have also not taken any steps to recover possession from the defendants. On that basis, the case pleaded by the plaintiffs/appellants that the defendants/respondents were allowed to continue in the suit property as tenants was disbelieved since the defendants/respondents were able to produce both the oral and documentary evidence to the satisfaction of the Court that they were permitted to occupy the suit property by Valliappa Chettiar to take care of the agricultural work in the field belonging to the said Valliappa Chettiar. On that basis, the trial Court dismissed the suit.
4. Aggrieved by the said judgment, when appeal was filed by the plaintiffs, the learned first appellate court finding no discrepancy or infirmity in the judgment passed by the trial Court, disagreed with the plea made by the plaintiffs/appellants to pass a decree for declaration of possession with title and mesne profits and dismissed the first appeal by confirming the judgment and decree passed by the trial court.
5. As against that, the present Second Appeal is filed. This Court while entertaining the Second Appeal framed the following substantial questions of law.
"(i)Whether under Section 9 of C.P.C., the Civil Court is having jurisidction to decide the suit for declaration of title, possession and mesne profits, especially when the respondents deny the very tenancy and title of the appellants ?
(ii)Whether the respondents/defendants are entitled to claim adverse possession when the appellants/plaintiffs have issued lawyer's notice and filed suit immediately after denial of title of the appellants by the respondents/defendants?
6. The learned senior counsel appearing for the plaintiffs/appellants submitted that when the courts below have admitted the case of the plaintiffs/appellants that the plaintiffs/appellants have purchased the suit property from their vendor-Valliappa Chettiar by sale deed-Ex.A2 dated 24.12.1980 erroneously decided that the suit filed by the plaintiffs/appellants for declaration of title and recovery of possession, with mesne profits against the defendants is not maintainable in civil courts as the plaintiffs/appellants should approach the Rent Controller only for eviction of the tenants/defendants/respondents herein. Such a finding is unwarranted for the reason that before filing the suit for declaration and recovery of possession and mesne profits, the plaintiffs/appellants have issued pre-suit notice dated 03.9.1986 terminating the tenancy of the defendants/respondents and also asking them to vacate and handover vacant possession. But the defendants/respondents sent a reply notice dated 16.9.1986 denying not only the title but also the tenancy. Under these circumstances, the plaintiffs/appellants have rightly filed the suit for declaration of title and possession with mesne profits. Instead of deciding the suit on the basis of the sale deed dated 24.12.1980-Ex.A.2, both the courts below ought not to have relegated the plaintiffs again to have one more round of litigation to approach the Rent Controller.
7. (i) This contention does not carry any merits for the reason that when the plaintiffs/appellants had purchased the suit property from their Vendor-Valliappa Chettiar by sale deed dated 24.12.1980-Ex.A.2, as rightly found by the learned trial court, no steps, whatsoever, were taken by the plaintiffs/appellants herein to eject or take recovery of possession from the defendants/respondents on the ground that they were encroachers or tenants either under Valliappa Chettiar or under them.
(ii) Further, it is also to be borne in mind, when the first notice dated 03.9.1986 was issued to the defendants, the defendants in their reply notice dated 16.9.1986 suitably replied denying the plaintiffs' claim that the defendants were in occupation of the suit property as trespassers. Since they were permitted by the plaintiffs' vendor-Valliappa Chettiar to occupy the Government poromboke in the eastern side of the road having an extent of 900 sq.ft. and only on the basis of the permission granted by the plaintiffs' vendor-Valliappa Chettiar to occupy the abovesaid land, the defendnts by raising the superstructure started living in the suit property, as agricultural labourers to work in the field of Valliappa Chettiar and subsequently, with the permission of the Panchayat Union, they have also put up pucca superstructure, it is clear that even after accepting this position, the plaintiffs/appellants have not comeforward for taking any further legal action against the defendants/respondents. However, after 10 years when the plaintiffs have issued another notice taking a different stand that the defendants were admitted by them as tenants, it will go against the case of the plaintiffs that the defendants/respondents were admitted as their lawful tenants. Under these background the learned trial court, after considering the case of both sides, on the basis of the material evidence produced on record, came to the concludion that the suit for declaration of title, recovery of possession and mesne profits is wholly unsustainable in law. After such finding having been affirmed by the learned first appellate Court, this Court while sitting under Section 100 C.P.C., finding no other infirmity, declines to interfere.
(iii) Admittedly, the plaintiffs/appellants-purchasers purchased the suit property from their vendor-Valliappa Chettiar under sale deed dated 24.12.1980. It is also further admitted by both sides that even prior to the date of purchase and after the purchase, the defendants/respondents have been in possession of the suit property on the basis of permissive possession granted by the plaintiffs' vendor-Valliappa Chettiar. Even after the purchase of the suit property, no agreement of tenancy was entered into between the plaintiffs and the defendants. That apart, both notices dated 03/9/1986 and 19/10/1995 do not bring home the case of the plaintiffs as both these notices have taken a different stand, namely, when the first notice dated 03/9/1986 issued to the defendants informed that the defendants are occupying as trespassers in the suit property, the second notice dated 19.10.1995 took a different stand that the defendants became tenants under the plaintiffs from the date of purchase of the suit property. But, the plaintiffs/appellants miserably failed to produce any accetable evidence to prove their case that the defendants have paid rent at any point of time accepting the tenancy under the plaintiffs/appellants. Besides, when the plaintiffs/appellants specifically made an attempt in the pleadings that the defendants in the year 1996 broke open the lock and Door No.135 and thereafter, started living as trespassers, the same also does not carry any force for the reason that the plaintiffs have not filed a police complaint to that effect to bring home their case that the defendants trespassed into the suit property.
(iv) However, with this background instead of deciding that the defendants/respondents have proved their adverse possession in the suit property, the trial court declined to give a finding on the plea of permissive possession as claimed against the plaintiffs and held that the plaintiffs should approach the Rent Controller to obtain the order of eviction if so desired on the ground of denial of title since the plaintiffs have treated the defendants as their tenants. This aspect was well considered by the learned first appellate Court holding that the defendants/respondents have proved the plea of permissive possession as they have continued in possession of the suit property by staying in the suit property more than the statutory period of 12 years. In that view of the matter, the submission made by the learned senior counsel for the appellants to give an opportunity to the appellants to approach the learned Rent Controller to file a petition seeking an order of eviction against the defendants/respondents is also bereft of any merits.
8. Accordingly, by answering the substantial questions of law against the plaintiffs/appellants, the Second Appeal is bound to fail. Consequently, by confirming the concurrent findings of both the courts below, the Second Appeal is dismissed. However, there will be no order as to costs.
sal To
1. The Sub-Court, Thiruvarur
2. The District Munsif, Thiruthuraipoondi