Madras High Court
Narayanan vs Sampath Kumar ... 1St
Author: N.Seshasayee
Bench: N.Seshasayee
S.A.(MD) Nos.953 of 2010 and 865 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 11.07. 2024
Pronounced on: 06.01.2025
CORAM : JUSTICE N.SESHASAYEE
S.A.(MD) Nos.953 of 2010 & 865 of 2011
and
M.P.(MD) No.1 of 2014
S.A.(MD) No.953 of 2010 :
Narayanan ... Appellant / Appellant / 2nd Defendant
Vs
1.Sampath Kumar ... 1st Respondent / 1st Respondent / Plaintiff
2.P.Ayyakannuu ... 2nd Respondent / 2nd Respondent /
1st Defendant
S.A.(MD) No.865 of 2011 :
P.Ayyakannu ... Appellant / Appellant / 1st Defendant
Vs
1.Sampath Kumar ... 1st Respondent / 1st Respondent / Plaintiff
2.Narayanan ... 2nd Respondent / 2nd Respondent /
2nd Defendant
Prayer in S.A.(MD) No.953 of 2010 :- Second Appeal filed under Section
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Page 1 of 41
https://www.mhc.tn.gov.in/judis
S.A.(MD) Nos.953 of 2010 and 865 of 2011
100 of Civil Procedure Code to set aside the judgment and decree dated
31.12.2009 made in A.S.No.197 of 2005 on the file of Principal District
Court, Trichy confirming the decree and judgment made in O.S.No.247 of
1996 dated 01.03.2004 on the file of the District Munsif Court, Musiri.
Prayer in S.A.(MD) No.865 of 2011.:- Second Appeal filed under Section
100 of Civil Procedure Code to set aside the judgment and decree dated
31.12.2009 made in A.S.No.257 of 2004 on the file of Principal District
Court, Trichy confirming the decree and judgment made in O.S.No.247 of
1996 dated 01.03.2004 on the file of the District Munsif Court, Musiri.
In S.A.(MD) No.953 of 2010 :
For Appellant : Mr.S.Kadarkarai
For Respondents : Mr.A.Arumugam of M/s.Ajmal Associates
for R1
Mr.Raguvaran Gopalan for R2
In S.A.(MD) No.865 of 2011:
For Appellant : Mr.Raguvaran Gopalan
For Respondents : Mr.A.Arumugam of M/s.Ajmal Associates
for R1
Mr.S.Kadarkarai for R2
COMMON JUDGMENT
___________ Page 2 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 A suit in O.S.No.247 of 1996 was filed for declaration of title and for an ancillary relief of prohibitory injunction was laid before the District Munsif Court, Musiri. The suit came to be decreed.
1.2 There are two defendants to the suit of whom, the first defendant preferred A.S.No.257 of 2004 and the second defendant filed A.S.No.197 of 2005. Both these appeals came to be disposed of by a common judgment of the first appellate Court and they came to be dismissed. Both the defendants have now respectively preferred S.A.(MD) Nos.865 of 2011 and 953 of 2010.
1.3 For narrative convenience, the parties are referred to as per their rank before the trial Court.
The Pleadings:
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2. The case of the plaintiff runs as below:
a) The plaintiff claims himself to be a descendant of a certain Chokkalingam Chettiar. The property in dispute is said to measure an extent of 2.75 acres in Sy.Nos.361/3 and 361/4. They are classified as dry agricultural land.
b) According to the plaintiff, the property was originally possessed by five persons. They were (i) Rajarajan @ Venkataramana Iyer; (ii) R.S.Venkataramana Iyer (RSV Iyer); (iii) R.C.Srinivasa Iyer (RCS Iyer); (v) Saraswathi Ammal; and (iv) Ramachandra Rao (RC Rao).
c) While so, vide Ext.A.1, dated 08.07.1923, the above referred Chokkalingam Chettiar had purchased the undivided 1/5th share of Rajarajan @ Venkataramana Iyer.
d) Subsequently, in 1943, there was a partition among the co-owners of this property in which Chokkalingam Chettiar represented the share that his vendor Rajarajan alias Venkatarmana Iyer. In this partition, the entire property was divided into 5 plots. Chokkalingam Chettiar was allotted the western most 62 cents representing his 1/5th share.
The other plots were allotted as below:
___________ Page 4 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 62 cents Allottd to Allotted to Allotted to Allotted to allotted to R.S.V. Iyer R.C.S.Iyer Saraswathi R.C.Rao Chockalingam (Plot No 1) (Plot No 2) (Plot No 3) (Plot No 4) (Plot No 5) Note: Plot numbers are given for the sake of narrative convenience
e) Subsequently, on 27.01.1944, there was an oral exchange of the next adjacent eastern 62 cents allotted to the share of R.S.V. Iyer and Chokkalingam whereby R.S.V Iyer had parted with his interest in his 62 cents in lieu of certain other properties belonging to Chokkalingam which are comprised in S.Nos.40/2 and 65/2. Thus, Chokkalingam Chettiar became entitled to plots 1 and 2 in the above tabulation, and thus became entitled to the western 1.24 acres.
f) As shown in the table above, the middle 62 cents (Plot No:3) was allotted to R.C.S. Iyer. After his demise, the property devolved on his branch, and Vide Ext.A.2-sale deed, dated 26.09.1959, R.C.S. Iyer's grand-son sold the same to Chokkalingam Chettiar. Thus Chockalingam Chettiar became the title holder of plots 1 to 3 and ___________ Page 5 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 became entitled to 1.86 acres. During revenue sub-division, plots Nos; 1 and 2 came under Sy.No.361/3-A, while Plot No:3 was assgined Sy.No.361/3-B. (The two remaining plots, Plots 4 and 5 were allotted to the share of Saraswathi Ammal and Ramachandra Rao and they do not concern this Court for the present).
g) Chokkalingam Chettiar had a brother named Manickam Chettiar.
And these brothers litigated for partitioning their properties in O.S.No.245 of 1967 on the file of Sub Court, Tiruchirapalli. The subject matter of that litigation included not only the properties covered under S.Nos.361/3-A and 361/3-B, but also other adjacent properties measuring a total extent of 5.49 acres. This suit is stated to have ended in a compromise vide Ext.A3 compromise decree dated 11.02.1970.
h) Chockalingam Chettiar had one son named Mayilvagana Murugesan, and is stated to have pre-deceased his father Chokkalingam While so, in October, 1983, Chokkalingam Chettiar passed away leaving Ext.A36 Will, dated 14.02.1982 bequeathing his properties in favour of the plaintiff and his younger brother Geetha Kannan (in the plaint, ___________ Page 6 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 this Will is stated to have been executed by Mayilvagana Murugesan whereas, Ext.A.36 is found to have been executed by Chokkalingam Chettiar).
S.Nos.361/3-A and 361/3-B lie adjacent to the properties in S.No.361/2 in which, the first defendant has some right. When the plaintiff required that a partition of S.No.361/2 be made, differences arose between the parties, when the first defendant attempted to destroy the ridge between Sy.No:
361/3 and Sy.No:361/2, in an attempt to assert some interest in the suit properties. The second defendant is the brother-in-law of the first defendant. Since the plaintiff's title came under threat, the suit was laid. 3.1 The first defendant was the main contesting defendant and the second defendant (brother in law of the first defendant) claimed right only under the first defendant. Both the defendants have filed their separate written statement.
3.2. Refuting the allegations in the plaint, the first defendant in his written statement has pleaded:
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a) That the plaintiff's alleged predecessor in title Chokkalingam Chettiar did not have any title to the property, and at any rate, his vendor under Ext.A.1 never had title.
b) The alleged partition between Chokkalingam Chettiar and four others as concerning the property in S.No.361/3 was also denied and so was the exchange of property between Chokkalingam Chettiar and R.S.V. Iyer. Indeed even R.S.V Iyer did not have any title to the property in S.No.361/3.
c) S.No.361/3 has an extent of 3.10 acres and it originally belonged to certain Sivasubramaniya Iyer and others.
d) So far as the property in S.No.361/2 is concerned, it is considered as 'Samudhayam' land. Chokkalingam Chettiar never had purchased any property in S.No.361/2. On the other hand, the first defendant had purchased 2.59 acres on the western portion of S.No.361/2 vide Ext.B.3-sale deed dated 12.10.1978. Indeed the first defendant is entitled to the aforesaid 2.59 acres in S.No.361/2 (not the subject matter of the present suit) and 1.89 acres in S.No.361/3A and S.No. 361/3B. This apart, he is also entitled to 2.56 acres in S.No.361/4.
___________ Page 8 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 These lands lie contiguously and the first defendant had consolidated the various parcels of land hereinabove narrated and he had also fenced it and is carrying on his agricultural activities there. Besides, there is also a well and electric motor facility for irrigation and pipes too have been laid all across the property in the possession of the first defendant.
e) The immediate fact as constituting the cause of action that the first defendant attempted to destroy the ridge separating the suit properties from S.No.361/2 is also denied.
f) The description of the property as given in the plaint is incorrect.
There is no property matching the description is available on lie.
g) The plaintiff has no right to institute the suit for all the co-sharers, since he is not the Kartha of the joint family.
3.3 The second defendant (who is the brother-in-law of the first defendant) in his written statement claims that he is the cultivating tenant under the first defendant vide Ext.B.19, Proceedings of the Tahsildar/Recording Officer, Musiri, dated 02.04.1979.
___________ Page 9 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 4.1 The dispute went to trial and during trial, the plaintiff examined himself as P.W.1 and also examined three other witnesses as P.W.2 to P.W.4 of whom, P.W.2 is the plaintiff's brother and P.W.4 is the Taluk Surveyor. For the defendants, the first defendant examined himself as D.W.1 and the second defendant examined himself as D.W.12. This apart, they have examined 12 other witnesses and in all, 14 witnesses were examined on the side of the defendants.
4.2 While the plaintiff has produced Ext.A.1 to Ext.A.66, the defendants have produced Ext.B.1 to Ext.B.20. This evidence apart, the Court has appointed an Advocate Commissioner for local inspection and his report and plan were taken on record as Ext.C.1 and Ext.C.2. It may also have to be mentioned that during the cross examination of D.W.14, the plaintiff confronted him with Ext.X.1 to Ext.X.86.
4.3. On appreciating the evidence before it, the trial Court decreed the suit ___________ Page 10 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 in toto. It's line of reasoning is:
(a) That the plaintiff had obtained title to the western most 62 cents covered under Ext.A.1 and the middle 62 cents under Ext.A.2, the second plot of 62 cents which the plaintiff contends was originally allotted to R.S.Venkataramana Iyer is concerned, inasmuch as the revenue record stands in the name of Chokkalingam Chettiar, there ought to have been an exchange between R.S.Venkataramana Iyer and Chokkalingam. As regards the properties in S.No.361/4 is concerned, the trial Court believed Ext.A.3, the compromise petition (not a compromise decree) filed by Chokkalingam Chettiar and his brother Manickam Chettiar in O.S.No.245 of 1967, and has held that this petition shows that both these brothers were enjoying the property in S.No.361/4.
(b) There was yet another aspect that passed the consideration of the trial Court and this relates to limitation. The suit was originally laid in 1988 for bare injunction and the defendants raised a dispute over the plaintiff's title to the property. Accordingly, the plaint came to be amended vide order in I.A.No.343 of 1999, dated 13.09.2001 by ___________ Page 11 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 which, the plaintiff now would seek declaration of his title over the property. This was allowed by the trial Court, and it was hotly contested between the parties, and it was finally resolved by the Hon'ble Supreme Court which held that the amendment would take effect only from the date of application for amendment and will not commence from the date of the suit. This gave the defendants an opportunity to raise a plea of limitation. The issue then was whether Article 64 or 65 of the Limitation Act would apply. The trial Court held, it is Article 64 which will apply.
(c) Ext.B.5 Vs. Ext.A.59, Ext.A.62 to Ext.A.66 and D.W.14.
5.1 Challenging the decree of the trial Court, both the defendants came out with separate appeals, as outlined earlier, and they have lost them. Before the first appellate Court, both the plaintiff and the defendants had taken out I.A.314 of 2009 and I.A.244 of 2009 respectively under Order 41 Rule 27 CPC.
5.2 So far as I.A.144 of 2009 goes, he required the leave of the Court to ___________ Page 12 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 receive (a) adangal exract (b) fertilizer card, apparently to prove the second defendant's cultivation, and also (c) a certain sale deed dated 12.10.1978. The first appellate court however, chose to dismiss it on the ground that the defendants have not shown any cause as to why these documents were not produced before the trial court. Turning I.A.314/2009 which the plainiff has filed for an identical purpose he has produced a (a) a mortgage deed dated 04.10.1943 executed by the predecessor-in-title of the property in Sy.No:
361/4; (b) a receipt, dated 08.07.1948, obtained by plaintiff's grandfather Chockalingam Chettiar for discharging the said mortgage , and this petition too came to be dismissed for an identical reason that the plaintiff has not shown any reason why he could not produce these documents during trial. On merits, the first appellate court has substantially followed the line of reasoning of the trial court and confirmed its decree.
6. The appeals were admitted for considering the following substantial questions of law:
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1. Whether the suit for declaration Whether the courts below have and injunction is maintainable committed an error in holding that without impleading Geetha Kannan the prayers for declaration of title who along with the plaintiffs are and recovery of possession are not alleged to be the legatees under barred by limitation in the light of their Will dated 14.02.1982 marked the observation of the Supreme as Ex.A36? Court that the prayer for declaration and recovery of possession shall be deemed to have been made on the date on which the application for amendment was filed?
2 Whether any proprietary right will Whether the courts below have flow under a compromise petition failed to frame necessary issue as in O.S.No.245 of 1997 marked as to whether the suit is barred under Ex.A3 in the absence of any decree Section 16-A of the Tamil Nadu passed on the basis of the Cultivating Tenants Protection Act compromise petition? and decide the same? 3 Whether the suit for declaration Whether the lower appellate court and possession in an allegation has committed an error in that the defendant had trespassed dismissing the petition for into the property is barred under reception of additional evidence Article 64 of Limitation Act, since when the additional evidence the suit is on the basis of previous sought to be produced were the possession and subsequent documents, the non-production of dispossession? which had been found fault with by the trial Court?
4 Whether the right of the plaintiff is .....
extinguished under Section 27 of the Limitation Act as the plaintiff had not proved his possession of the property within 12 years prior to filing of the suit?
___________ Page 14 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 Sl. S.A.(MD) No.865 of 2011 S.A.(MD) No.953 of 2010 No 5 Whether the first defendant had .....
prescribed title by adverse possession over the suit properties?
6 Whether the Courts below are right .....
in ignoring direction of the Honourable Apex Court that the amendment with the declaration and possession will relate only to date of amendment of petition that is 01.07.1999 and not on 15.12.1988 the date of the suit?
7. The learned counsel for the defendants/appellants presented his arguments in few specific heads:
A) On the issue of non-joinder of necessary parties; B) The identity of the suit property;
C) Title of the plaintiff to A schedule to the suit property; and D) On Limitation.
A. On Non-joinder of the necessary party :
8. The learned counsel for the defendants would submit that the locus standi of the plaintiff to institute the suit is the devolution of his grand- ___________ Page 15 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 father Chokkalingam Chettiar's title to the suit property based on his Ext.A36 Will, dated 14.02.1982. He also pleads that his father Mayilvagana Murugesan (who is the son of the testator) had pre-deceased his father, and that Mayilvagana Murugesan had executed a Will, but does not attempt to prove the same, but instead he relied on Ex.A.36, a Will executed by his grand-father Chokkalingam Chettiar to prove the derivation of his title. If this Will is reckoned, the bequeath had been jointly made to the plaintiff and his brother Geetha Kannan, and there is no pleading that the plaintiff and his brother had either partitioned the property or how the former had become the absolute owner of the suit property. In a suit for declaration of title, all the co-sharers must join as plaintiffs, and if there is a difference between them, at least the non-joining cosharer must be arrayed as a defendant. The defendants have raised a plea of non-joinder of necessary party specifically in the written statement, and despite that Geetha Kannan was not impleaded. The plaintiff instead of taking his brother Geetha Kannan along with him as a plaintiff in the suit, has only chosen to examine him as P.W.2. The suit shall necessarily fail. Reliance was placed on the ratio in Kanakarathanammal Vs V.S.Loganatha Mudaliar & ___________ Page 16 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 another [AIR 1965 SC 271].
B. On the description of the suit-property :
9. Shifting his focus to his contention that the suit property has not been described to identify it in terms of Order VII Rule 3 CPC, the learned counsel submitted that:
a) The plaintiff described the suit property as a block of 2.75 acres, comprised in Sy.Nos.361/3 and 361/4. He also has provided specific boundaries to the property. If his source of title is kept aside for a while and if the allegation in the plaint is considered, then it discloses that the property in S.No.361/3 is said to have a total extent of 3.10 acres.
b) His further claim is that under Ext.A.1, sale deed, Chokkalingam Chettiar had purchased the western most 62 cents, and that he proceeded to obtain the next 62 cents to its immediate east (the second plot) under an oral exchange from R.S.V.Iyer and then, proceeds to buy the next 62 cents on further east (the 3rd plot) under Ext.A.2. This implies Chockalingam could have title only to 1.86 ___________ Page 17 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 acres, and plaintiff claims that out of the total extent so purchased, 1.24 acres (Plots 1 + 2) fall within Sy.No:361/3A and the property covered under Ext.A2 as falling within Sy.No:361/3-B. But, for no purpose, he brings in S.No.361/4 as well.
c) The body of the plaint does not specify the total extent available in S.No.361/4 nor it spells out anything as to how Chokkalingam Chettiar became entitled to any portion of the property which fall within Sy.No.361/4. However, to support his title, the plaintiff relies on Ext.A.3, which is a compromise petition filed by Chokkalingam Chettiar and his brother Manickam Chettiar in O.S.No.245 of 1967. While the defendants do not admit that Ext.A.3 could have any relevance since it is only described as a compromise petition and not a decree, yet if it is considered for its merit since the plaintiff places reliance on it, then it discloses that the properties in List-I thereof are required to be allotted to the share of Chokkalingam Chettiar. Item 6 in List-I pertains to the properties comprised in S.Nos.361/5, 361/4, 361/3A and 361/3D. It gives the total extent at 4.49 acres. It also gives an indication that there is a well in the middle of this block of ___________ Page 18 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 4.49 acres and the properties are divided to the east and west of the well, and each of this eastern and western plots are further divided into northern plot and the southern plot. This will approximately appear like this Chockalingam Chettiar Well Chockalingam Chettiar In other words, Chokkalingam Chettiar was to take the diagonal plots. In this back-drop, if the description of property as available in the plaint is considered, it gives consolidated extent of 2.75 acres in S.No.361/3 and 361/4 and they lie to the north of Manickam Chettiar's property. In terms of Ext.A.3, Manickam Chettiar cannot be the southern owner of the entire property, which Chokkalingam Chettiar was said to have possessed. There is no pleadings for the plaintiff that there was some kind of subsequent arrangement between ___________ Page 19 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 Chokkalingam Chettiar and his brother Manickam Chettiar subsequent to Ext.A.3.
d) Indeed, the plaintiff had taken out an application for amending the plaint in I.A.No.349 of 1999, for amending the schedule of property. This was not pressed by him later. It finds a reference in the judgment of the Hon'ble Supreme Court reported in Sampath Kumar Vs Ayyakannu & another [(2002) 7 SCC 559], which indeed arose from the very order passed in I.A.349 of 1999. When the plaintiff is not sure of the property which he is litigating or when the plaint has not established his title to match the description of the property he has given, he necessarily may have to fail. C. On title:
a) The plaintiff relies on Ext.A.1 for acquiring title to 62 cents (shown as Plot No:1), an oral exchange for 62 cents (relating to Plot No:2) and Ext.A.2 for the middle 62 cents (Plot No:3). Then, he also claims some right in S.No.361/4. Now, as regards the oral exchange, the plaintiff has not produced any semblance of evidence to substantiate ___________ Page 20 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 that there indeed was an oral exchange between him and R.S.V. Iyer.
Secondly, he has not specifically pleaded how he became entitled to any extent in S.No.361/4. Even Ext.A.3 is not adequately pleaded. To re-emphasis, this is only a petition for recording compromise and not a compromise decree. Thirdly, even if it were to be treated and given the status of a decree yet none of the defendants are party to the same and it would not bind them.
b) If title to 62 cents (Plot No:2) alleged to have been obtained under the alleged oral exchange and also the title to some property in S.No. 361/4 is kept aside, then it leaves only Ext.A.1 and Ext.A.2, for consideration. The plaintiff's line of his case is that S.No.361/3 originally belonged to 5 persons (See paragraph 2 above) and according to him, Chokkalinga Chettiar had purchased an undivided 1/5 share of Rajarajan @ Venkataramana Iyer under Ext.A.1. If Ext.A.1 is perused, it does not stipulate any specific Survey Number of this property. It merely says 1/5 share in 3.10 acre of Samuthayam land. It does not give any details of any patta of the land either. Ext.B.5 is a Settlement Registrar prepared on 10.04.1929 and it ___________ Page 21 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 shows that the property in S.No.361/3 was registered in the names of 4 other persons, and not one of them share the same name with any one of the 5 names asserted by the plaintiff. Ext.B.5 says this property is held in Patta No.319 by certain Sivasubramania Iyer, Natesa Iyer, Duraisamy Iyer and one Chithambaram Pillai jointly. In the context of Ext.B.5 settlement register, the plaintiff as P.W.1 has testified in his cross examination that prior to 1929 settlement, there were earlier settlements, and in particular he had seen settlement registers prepared in 1915 and also in 1923, and according to him, in both these settlement registers, his vendors were shown as the registered holders of the property in S.No.361/3. However these settlement registers of 1915 and 1923 were not produced.
c) In this backdrop, if Ext.A.2 is considered, it was executed in 1959. If Ext.B.5 is further perused, it discloses that Ramachandra Rao, Venkataramana Iyer, Srinivasa Iyer and few minors represented by their guardian Saraswathi Ammal have held property under patta No. 247 as regards property in S.No.47/2. The next document of title, which the plaintiff relies on is Ext.A.2, sale deed and is said to have ___________ Page 22 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 been executed by the grand-son of Srinivasa Iyer, where under some 62 cents in S.No.361/3B was sold. In the context, it is significant to state that the property covered under Ext.A.2 is stated to be held in patta No.313. Yet another point associated with Ext.A.2 sale deed is that the sale deed itself contains a clause that possession of the property was not handed over and that the predecessor thereof (Chokkalingam Chettiar) was required to take possession as per the tenancy laws. This would indicate that the property covered under Ext.A.2 was in the possession of the tenants. The plaintiff has not explained how and when his grand-father or he himself has obtained the possession, since he has laid a suit inter alia for prohibitory injunction that his possession shall not be disturbed and not for recovery of possession of the property. It is only after the amendment of the plaint, by order in I.A.No.314 of 1999, the prayer of prohibitory injunction was altered to one of recovery of possession.
d) In addition, the plaintiff has also produced Ext.A.5, which are comprised of chitta and certain tax receipts and it discloses that Chokkalingam Chettiar was holding the property under patta No.313 ___________ Page 23 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 and not patta No.319.
e) In this backdrop, the defendants claimed that they had purchased the property under Ext.B.3, sale deed, dated 12.10.1978 from the legal representatives of certain Venkatrama Iyer. This document recites about a certain sale deed of the year 1943, under which, the aforesaid Venkatrama Iyer had purchased the property. This sale deed of the year 1943 is available on record as Ext.B.2. This sale deed discloses that the heirs of Sivasubramania Iyer, who held the property in patta No.319, had sold the western half of 3.10 acre in S.No.361/3. This property was subsequently, sold by the heirs of the purchaser under Ext.B.2 to the first defendant under Ext.B.3. It also states that from fasli 1348 (correlated to 1939), the property is held in patta No.319. It may have to be stated here that even prior to the same, the property had always been registered under patta No.319 as could be seen from Ext.B.5 Settlement Registrar referred to above.
f) In Ext.B.3, the sub-divided field of S.No.361/3 is indicated and more particularly the southern boundary of the property is shown as Chokkalingam Chettiar's property and another Angamuthu property. ___________ Page 24 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 The plaintiff has produced Ext.A.53, dated 21.06.1954 and Ext.A.54, dated 04.06.1958 to establish that Angamuthu had purchased some property in S.No.361/3C and 361/3D.
D. On Limitation
10. On to the last point which he argued, the learned counsel for the appellant submitted: the suit was instituted on 05.12.1988 initially for bare injunction. The first defendant had filed his written statement on 11.07.1989. In this, he had first disputed the plaintiff's title to the property in S.Nos.361/3 and 361/4 and also disputed his possession when claims that he has been in possession of the property for well over 40 years. The plaintiff has waited for next eleven years and came up with I.A.No.314 of 1999 on 01.07.1999. As earlier indicated, the plaintiff has sought for three amendments to the plaint. The first is to the body of the plaint seeking the leave of the Court to insert Paragraph 15A, then the prayer portion and last, the schedule of property. So far as the amendment sought to the schedule of property to the plaint is concerned, the plaintiff had given up that. Turning to the other two amendments sought are concerned, the plaintiff pleaded that ___________ Page 25 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 after the institution of the suit, the plaintiff was forcibly dispossessed by the first defendant some time in January, 1989 and on that footing would now seek the relief of declaration of his title and for recovery of possession. This amendment was allowed and the matter ultimately landed up before the Hon'ble Supreme Court which disposed of the matter vide its judgment dated 13.09.2002 in Sampath Kumar Vs Ayyakkannu & Another [[(2002) 7 SCC 559]. The Hon'ble Supreme Court has very categorically declared that the amendment would take effect only from the date on which I.A.No. 314 of 1999 was filed. This would instantly bring to fore an issue of limitation. The Courts below have invoked Article 65 of the Limitation Act, which essentially relates to a suit where adverse possession is claimed. The first defendant however pleads a counter-title to the plaintiff and not a hostile title by prescription. If that is reckoned, only Article 64 of the Limitation Act would apply. The plaintiff's case is now premised on his allegation that he was in possession in January, 1989. If the plaintiff could establish that he was in possession till December, 1988, then the issue on the point of limitation would not be an issue at all. Given the fact that the first defendant is asserting a counter title to the plaintiff's title, and given the ___________ Page 26 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 fact the plaintiff also asserts that he had been in possession of the property till the time he claims to have dispossessed, the burden is on the plaintiff to establish that he actually was in possession. To state it differently it is imperative for the plaintiff to establish that he had continuously in possession for 12 years next before he filed his I.A.No.314 of 1999 on 01.07.1999. In other words, he must prove that he was in possession from 01.07.1987 till 01.07.1999 in order to get over limitation under Article 64 of the Limitation Act. On this aspect the plaintiff makes candid two aspects:
(a) That he did not carry out any agricultural activity in the suit properties directly and that he had engaged certain Thangavel Chettiar to do the same. Indeed he claims that he came into possession when Ext.A.36 Will took effect after the demise of his grand-father, Chokkalingam Chettiar in October, 1983. This Thangavel Chettiar was not examined; and
(b) After 1985, he has barely produced couple of revenue documents to show his possession but, at any rate, he has not produced any document after 1988 to show that he was in possession and this necessarily put the date well beyond if not behind 01.07.1987, the ___________ Page 27 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 cut-off date on which the plaintiff ought to establish that he was in possession.
Reliance was placed on the authority of Ramiah Vs N.Narayana Reddy (Dead) by LRs [(2004) 7 SCC 541] and Nazir Mohamed Vs J.Kamala and Others [(2020) 19 SCC 57].
11. Per contra, the learned counsel for the plaintiff /first respondent argued with an intent to meet the arguments of the first defendant's counsel on each of the aspects synopsized by him.
A. On description of property
12. On this head, the learned counsel submitted:
a) The first defendant's challenge to the misdescription or inadequate description of the suit property rests on a weak plot. If the defendant were to assert that the boundaries to the suit properties were given wrongly, then it is imperative on him to provide the correct boundary ___________ Page 28 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 description. He however has chosen not to provide any. This may imply that (i) the boundaries as provided by the plaintiff is correct; or
(ii) the first defendant himself did not know the correct boundaries.
b) Turning to the amendment sought for vis-a-vis the description of the suit property and which was given up subsequently, the plaintiff had given it up because what was stated in the plaint was adequate.
On title
13. Turning to plaintiff's case, he claims 1.86 acres in S.No.361/3 and another 83.5 cents in 361/4. On the reliability and relevance of Ext.A.3, this document refers that there is some internal inconsistencies in the plots allotted to Chockalingam Chettiar under list No.1 and that which was allotted to Manickam Chettiar under list No.3. While it is true in terms of allotment made Chockalingam Chettiar was allotted diagonal plots with the Well in the center, in the case of Manickam Chettiar, allotment made to him was stated to be the entire southern half of the property. The plaintiff goes by the description of allotment in terms of list No.3. This would imply that the alleged mis-description of southern boundary does not provide a eureka- ___________ Page 29 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 moment for the first defendant. Indeed Ext.A-37 FMB shows that survey No.361/4 lies to the immediate south of the property comprised in Survey No.361/3. It is only Manickam Chettiar or his heirs to dispute it, and the first defendant, inasmuch as a third party to the property does not have locus standi to challenge it.
On Non-Joinder of Necessary Parties
14. The allegations herein is based on Ext.A.36, Will on Chockalingam Chettiar. It is true that Chockalingam Chettiar had bequeathed the property both to the plaintiff and latter's brother Geetha Kannan and that Geetha Kannan was not arrayed as a plaintiff along with the present plaintiff. However, this may not be fatal to the maintainability of the suit and the reasons are:
(i) there is no specific pleading on this, nor was there a specific issue raised by the trial Court;
(ii) If only an issue was raised, the plaintiff would have had ample opportunity to implead Geetha Kannan and nothing would have prevented him from adding P.W.2 as an additional plaintiff along with ___________ Page 30 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 him.
c) In this regard Order I Rule 9 and Order I Rule 13 CPC, no suit can be dismissed for mis-joinder or non-joinder of necessary parties. If however, the Court comes to the conclusion that the suit for declaration of plaintiff's title over the entire property is not maintainable on grounds of non-joinder of necessary party, then the Court may mould the relief and grant a decree that the plaintiff is a co-sharer of the suit property along with P.W.2.
On Limitation 15.1 Turning to the point of limitation, Article 64 of the Limitation Act will apply only if the suit is laid on possession simpliciter, de hors any title to the property in question. Where the suit is laid on title, then it is not Article 64 but Article 65 of the Limitation Act would be applicable. The plaintiff laid the suit in December, 1988, and he has alleged dispossession early in January, 1989, subsequent to the suit, as could be seen from the averment in the affidavit filed in support of his application for amendment in I.A.No.343 of 1999.
___________ Page 31 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 15.2 In this regard, the report of the Advocate Commissioner (Ext.C.1) is on some significance. The Commissioner has filed his report on 01.03.1989, based on his visit made on 19.01.1989. In this document, the Commissioner makes two important points that:
a) few trees were seen removed and there are trace of pits and soil was also seen loosed in certain places. Fencing made in the property appears new. No objection made to this Commissioner report. Does it not indicate that dispossession had taken place only subsequent to the suit? But unless the suit is laid on title, dispossession per se will lose significance.
b) In this regard the best evidence to prove possession is Adangal and not kist receipts. This is because kist can be paid by anyone, but Adangal relates not to the person formerly relates to the land in question. The second defendant in his cross examination as D.W.2 concedes to the fact that he has not produced Adangal.
Discussion & Decision ___________ Page 32 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011
16. There are two components to the plaintiff's case: His title to the suit property; and (b) his right to obtain recovery of possession of the same.
17. Turning to title, the plaintiff's claim title to 2.75 acres in Sy.No:361/3A, and 3B and 361/4. Of this 2.75 acres, plaintiff claims right to 1.86 acres in Sy.No: 361/3A & 3B which implied his claim in Sy.No.361/4 is the remaining 89 cents which he claims under Ext.A3 a compromise memo, and not a decree in O.S. No.245 of 1967.
18. Now, what does the first defendant plea? He says:
a) he has purchased 2.59 acres in Sy.No:361/2; entire extent of 1.89 acres in Sy.No:361/3A and 3B, and 2.56 acres in S.No:361/4. And how he derives title to them? He claims the property in Sy.No:361/2 vide a decree in O.S.1036 of 1980 pertaining to which no document is produced. However, this is not the subject matter of the suit and hence it may not matter much.
b) Turning to the property in Sy.No:361/3A and 3B, and also in 361/4, the defendant does not state how he became entitled to these ___________ Page 33 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 properties, but it could be gathered that he claims title by adverse possession. The relevant portion of his written statement reads as below:
"9. The 1st defendant is entitled to 2.59 acres on the southern side of S.F. No.361/2. He is entitled to the entire extent of 1.89 acres in S.F. 361/3A and 361/3B. He is entitled to the entire extent of 2.56 Acres in S.F. 361/4. He has clubbed all these survey fields together and he is cultivating the lands through the 2nd defendant. He has put up alive fence encircling the above said survey fields and is keeping the lands under lock and key in the fence. There is an electric motor in the well in S.F. No.361/2 and irrigation is done through underground pipes for all the encircled fields.
10. It is false to state that the 1st defendant is attempting to take forcible possession of S.F. No.361/2. It is also false to state that he is planning to destroy the dividing ridge between S.F. No.361/2 and the other lands. The above said lands have been clubbed together long back. The 1st defendant and before him, his father were in possession and enjoyment of the ___________ Page 34 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 above said lands for the past 40 years. Part of the lands purchased, they have acquired title by adverse possession with regard to other properties."
19. However, during trial, with no pleadings to back him, the first defendant had produced Ext.B3 sale deed dated 12.10.1978 under which he had purchased 1.55 acres in Sy.No:361/3 from one Valambal. And Valambal traces her title to her husband, who had purchased the said property under Ext.B2 dated 29.06.1943, which was executed by one Sivasubramania Iyer and others as regards the northern 1.55 acres out of 3.10 acres in Sy.No:
361/3. Stricto senso, this document of title cannot be considered since the first defendant had committed the fundamental sin in procedure in trying to prove a fact which he has not pleaded. To repeat his pleading was adverse possession, but he tries to prove title in himself, when ordinarily the contra would be attempted: Plead title and plead prescription of title by adverse possession as an alternative plea.
20. Then he tries to prove the property originally belonged to the vendors ___________ Page 35 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 under Ext.B2 and tries to establish it through Ext.B1 patta and entries in Ext.A57 and A59 Settlement Land Registers. This again begs the question, since he has not pleaded what he should have.
21. Having pleaded adverse possession he has abandoned the plea and tries to prove his title. And alongside he also attempts to prove adverse possession. Both cannot co-exist. In other words, the strategy of the first defendant is caught in confusion. His best bet was on title and not adverse possession, but he took up the wrong plea and adopted a wrong strategy to prove what he did not plea. If a defendant has taken up alternative and inconsistent pleas, at least he can then elect. But not here. As earlier stated by attempting to prove his title he had impliedly given up his case of prescribing title in himself through adverse possession vis-a-vis the property in Sy.No:361/3. However, procedural obstacle that he faces halting his attempt to prove title through Exs.B1 to B3, does not mean that he can keep alive his original plea of adverse possession. This implies that he cannot ___________ Page 36 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 even prove adverse possession of property in Sy.No. 361/3A and 3B either.
22. Now, even if his plea of adverse possession is considered, it is again wobbling. He has pleaded that he and his father have been in possession of the property for over 40 years in 1989, but bangs heavily on the timing of amendment of plaint seeking recovery of suit property for proving adverse possession as the prime line of his proof, and has chosen to debate whether Article 64 or Article 65 of the Limitation Act will apply. Does it therefore mean that the terminus quo for his plea of adverse possession commenced with the institution of the suit and ended with the date on which amendment of plaint is attempted? Here again there is no clarity. This Court finds that by his self-destructing ways the first defendant finds himself in a whirlpool of misery.
23. Now, coming to the total extent in Sy.No:361/3, it appears from Ext.A57 and A59 SLRs that its total extent is 3.10 acres. And out of this the plaintiff claims only 1.86 acres. While the plaintiff claims that the remaining 1.24 acres is blocked in Sy.No:361/4 and 5, there is no further details about the ___________ Page 37 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 same. And, both Exts. B2 and B3 refers only to the property in Sy.No:361/3 without any sub-divisions which apparently is a later development. And even if Ext.B3 is considered, it only deals with 1.55 acres which is about 31 cents more than the combined extent available in Sy.Nos:361/4 and 5. Does the first defendant tries to identify his property wrongly? May be, but this court consciously refrains from making any opinion on it, since it is not the subject matter of this suit.
24. This leaves the property in Sy.Nos:361/4 for consideration. The plaintiff has pleaded his title to it, but believed that Ext.A3 will be adequate for him to prove it. It is only a petition for compromise in O.S.245 of 1967, on the file of Sub Court, Thiruchirapalli. It is not known why the plaintiff has not filed any certified copy of the decree during trial. That would have settled the issue. In this regard, this Court considers that the plaintiff tried to produce a certain mortgage deed pertaining to Sy.No:361/4 and its redemption by Chockalingam Chettiar vide I.A.314/2009. In fitness of things the first appellate court should have allowed it and taken it on record. Order 41 Rule 27 CPC has two parts. It enables the Court to admit ___________ Page 38 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 additional evidence during the appellate stage, (a) if the party can show reason why the additional evidence could not be produced during trial; and
(b) where the court itself requires additional evidence for adjudicating the lis. The documents which the plaintiff has filed definitely will fall under the second category. It should have been entertained.
25. On this aspect, this court considers both the plaintiff and the first defendant should be given opportunities. This court now requires the mortgage deed and the receipt pertaining to Sy.No:361/4, for ascertaining the title of the plaintiff to the property in Sy.No:361/4 and to that extent even the plea of adverse possession of the first defendant deserves to be reconsidered. For this limited purpose this Court chooses to remand the matter back to the first appellate court.
26. In conclusion these appeals are partly allowed and the suit is remanded back to the first appellate court only for the limited purpose of ascertaining the plaintiff's title to Sy.No:361/4 and the plaintiff is directed to produce those documents pertaining to Sy.No:361/4 which he had attempted to ___________ Page 39 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 produce vide I.A.314 of 2009. And, the defendant's plea of adverse possession is also directed to be reconsidered in the context of the finding on plaintiff's title to the property in Sy.No:361/4. As to the rest this Court confirms the decree of the first appellate court. No costs.
06.01.2025 Internet : Yes/No Index: Yes/No abr/rmk/ta To
1.The Principal District Court, Trichy.
2.The District Munsif Court, Musiri.
___________ Page 40 of 41 https://www.mhc.tn.gov.in/judis S.A.(MD) Nos.953 of 2010 and 865 of 2011 N.SESHASAYEE, J.
abr S.A.(MD) Nos.953 of 2010 & 865 of 2011 06.01.2025 ___________ Page 41 of 41 https://www.mhc.tn.gov.in/judis