Madras High Court
K.Narayanaswamy Pillai vs Smt.Kannammal on 3 June, 2014
Author: R.Karuppiah
Bench: R.Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 03.06.2014 Coram THE HONOURABLE MR.JUSTICE R.KARUPPIAH S.A.No.872 of 2005 and C.M.P.No.12287 of 2005 K.Narayanaswamy Pillai .. Appellant Vs. Smt.Kannammal .. Respondent Prayer:- Second Appeal filed under Section 100 of Civil Procedure Code against the Judgment and decree dated 12.10.2004 made in A.S.No.57 of 1998, on the file of Subordinate Court, Arni, confirming the judgment and decree dated 31.08.1988 made in O.S.No.569 of 1993, on the file of Principal District Munsif Court, Arni. For Appellant : Mr.K.V.Sundararajan For Respondent : Mr.P.Seshadri JUDGMENT
The appellant, who is the defendant in the original suit filed this second appeal against the Judgment and decree dated 12.10.2004 made in A.S.No.57 of 1998, on the file of Subordinate Court, Arni, confirming the judgment and decree dated 31.08.1988 made in O.S.No.569 of 1993, on the file of Principal District Munsif Court, Arni.
2. For the sake of convenience, the defendant in the original suit is referred as appellant and the plaintiff in the original suit is referred as respondent hereafter.
3. The respondent/plaintiff filed a suit for declaration of title and recovery of possession. Briefly the case of the respondent is that the suit A-schedule property originally ancestral property of one Rajagopal Pillai and on his death, his son namely Ramasamy Pillai, became the owner of the property and he died two years prior to the filing of the suit leaving behind his wife i.e., respondent as only legal heir. Thus, the respondent is the owner of the A-schedule property. It is also the case of the respondent is that the above said Rajagopal Pillai purchased B-schedule property as per registered sale deed dated 24.08.1943 and now, the respondent is the owner of the property. By taking advantage of the old age, the appellant trespassed over both A and B schedule properties on 25.12.1992. Therefore, the respondent filed the suit for declaration and recovery of possession of the suit A and B schedule properties.
4. The appellant, who is the defendant in the suit filed a writen statement and denied the contentions of the respondent and it is also stated that the appellant's husband Munusamy Pillai and his brother Rajagopal Pillai were jointly enjoyed the properties. In the year 1947, both of them divided the properties in which, the suit properties were allotted to the share of Munusamy Pillai. After the death of Munusamy Pillai, the suit properties were enjoyed by the appellant's mother. After the death of appellant's mother, the suit properties are in the possession and enjoyment of the appellant. According to the appellant, after the above said partition, the respondent or her husband or father-in-law were never enjoyed the suit properties. The respondent residing only in the house allotted to the share of Rajagopal. It is also denied that the alleged trespass by the appellant on 25.12.1992. Therefore, the appellant prayed for dismissal of the above said suit. The appellant also filed an additional written statement in which, it is stated that after the above said alleged partition in the year 1976, both Rajagopal Pillai and his brother Munusamy Pillai orally exchanged their properties. In the year 1981, for obtaining loan for the respondent's husband, under an unregistered document/agreement confirmed the above said exchange. Therefore, from 1976 onwards, the suit properties are in possession of the appellant and not entered into the suit property in the year 1992 as contended by the respondent. The appellant has paid electricity charges, house tax and also obtained patta, on the basis of possession. Therefore, the respondent is not entitled to any relief.
5. The respondent herein filed a reply statement, in which, it is denied the alleged exchange between appellant and the respondent's husband held in the year 1976 and also denied the validity of the exchange document / agreement executed in the year 1981. Further, it is stated that the suit properties are only vacant site and therefore, no need to pay tax as pleaded by the appellant.
6. The trial court by considering the above said pleadings, framed four issues including additional issues. On the side of the respondent/plaintiff examined one witness as PW1 and marked two documents as Exs.A1 and A2. On the side of the respondents five witnesses were examined as DW1 to DW5 and marked six documents as Exs.B1 to B6. Exs.C1 and C2 i.e., Commissioner report and plan marked as Court documents.
7. The trial court discussed the above said oral and documentary evidence adduced on either side and finally decreed the suit as prayed for by the respondent/plaintiff. Aggrieved over the above said findings of the trial court, the appellant preferred the first appeal in A.S.No.57 of 1998. The first appellate court confirmed the decree and judgment passed by the trial court and dismissed the first appeal. Aggrieved the above said concurrent findings of both the courts below, the appellant preferred this second appeal.
8. The second appeal is admitted on the following substantial questions of law :-
1.Whether the courts below have given proper interpretation to Ex.B6 ?
2.Whether the suit is barred by limitation ?
3.Whether the courts below erred in coming to the conclusion that Ex.B6 requires registration ? "
9. Heard the learned counsel appearing on either side and perused the materials available on records.
10. The respondent filed a suit for declaration and recovery of possession in respect of two items of properties i.e., A-schedule is 16" x 27" tiled house and B-schedule is 33" x 27" vacant site with compound wall. With regard to A-schedule property, the case of the respondent is that the above said property was purchased by the respondent's father-in-law, namely Rajagopal Pillai from Chellamuthammal on 24.08.1943 for herself and her minor children and after his death, his only son, namely Munusamy Pillai enjoyed the suit property and the above said Munusamy Pillai died prior to filing of the suit and therefore, the respondent, as only legal heir of the deceased Munusamy Pillai, entitled to A-schedule property. With regard to B-schedule, the case of the respondent is that the respondent's father-in-law, namely Rajagopal and the appellant's father namely Munusamy Pillai are brothers, each entitled to half share. The respondent's husband purchased the above said half share on 25.02.1981 from Munusamy Pillai under Ex.A2 sale deed and therefore, the respondent is entitled to the entire A and B schedule properties. Since the appellant encroached the above said suit properties, filed the suit for declaration and recovery of possession.
11. On the side of the appellant admitted that the respondent's father-in-law namely Rajagopal and the appellant's father Munusamy Pillai are brothers. The appellant has also admitted that the respondent's father-in-law Rajagopal purchased A-schedule property under Ex.A1 sale deed and the respondent's husband Munusamy Pillai purchased B-schedule property under Ex.A2 as pleaded by the respondent. The main contention of the appellant is that in the year 1976, the above said Rajagopal Pillai and his brother Munusamy Pillai orally exchanged their properties and in the above said exchange, the suit properties were allotted to the appellant's father Munusamy Pillai and the Rajagopal Pillai's share lies on the west of the suit properties allotted to Munusamy Pillai. To confirm the above said oral exchange, an agreement of exchange was executed under unregistered document Ex.B6 dated 25.02.1981 and therefore, the suit properties are belongs to the appellant, as per the above said exchange.
12. Both courts below have discussed the above said alleged exchange and held that the appellant miserably failed to prove the alleged oral exchange held in the year 1976 and the alleged Ex.B6 agreement of exchange is not valid in law, since it is not registered and therefore, granted the reliefs as prayed for by the respondent.
13. The learned counsel appearing for the appellant would submit that the appellant is in continuous possession of the suit property from 1976 onwards and the burden of proof lies only on the respondent to prove her case, but, the respondent failed to prove her possession within the statutory period. The learned counsel also submitted that the appellant has examined DW2 to DW5 to prove his possession from 1976 onwards, but, both courts below have not correctly considered the above said facts and therefore, prayed for to set aside the concurrent findings of both courts below and to dismiss the suit.
14. The relationship between the parties are not in dispute. The appellant has clearly admitted that the documents Exs.A1 and A2 filed by the respondent are genuine documents and also admitted that the respondent's husband entitled to both A and B schedule properties as per documents Exs.A1 and A2. But, the main contention of the appellant is that as per oral exchange between the appellant's father and the respondent's husband held in the year 1976, the suit properties were given to the appellant's father and the respondent's father-in-law namely Rajagopal Pillai's properties lies in on the western side of the suit properties and therefore, the respondent is not entitled to the suit property.
15. As rightly held by both the courts below, the appellant has not produced any materials to prove the alleged 1976 oral exchange. The oral evidence of DW2 and DW5 who were examined to prove the possession as per oral exchange also not a reliable evidence since the above said evidence are contrary and unbelievable as rightly discussed by both courts below. The learned counsel appearing for the appellant mainly contended that the respondent has not proved the possession for 12 years prior to the suit and hence the respondent is not entitled the reliefs of declaration and recovery of possession. Both courts below clearly held that the appellant has produced the documents only from 25.02.1981 onwards and the suit is filed on 16.02.1993, even prior to the period of 12 years. Further, both the courts below have discussed the provisions under Section 91 of Indian Evidence Act, and Section 17 of Transfer of Property Act, and concluded that the above said document Ex.B6 alleged agreement of exchange is not valid in law and therefore, the appellant is not entitled to any right under the above said invalid document.
16. The learned counsel appearing for the appellant relied on a decision of Hon'ble Supreme Court reported in (1976) 3 SCC 119 (Kale and others v. Deputy Director of Consolidation and others) and submitted that the above said document Ex.B6 dated 25.02.1981 is only a family arrangement, confirmed the oral exchange between parties in the year 1976 and therefore, the above said family arrangement is binding on the parties and it would operate as estoppel and therefore, the respondent is not entitled to challenge the above said exchange.
17. A perusal of the decision revealed that the facts of the above said case are not applicable to the facts of the present case. As already discussed, in the instant case, the appellant has pleaded oral exchange between parties held in the year 1976, but an agreement of exchange was executed in writing on 25.02.1981. Both the courts below concurrently held that the appellant has miserably failed to prove the above said alleged oral exchange between parties held in the year 1976. Further, the averments made in Ex.B6 revealed that it is not a family arrangement as pleaded by the appellant. The appellant has not at all pleaded in the written statement or additional written statement that Ex.B6 is only document to prove family arrangement. Further, the appellant has not pleaded about the exchange or family arrangement and also about Ex.B6 in the original written statement and only pleaded in additional written statement. Considering all the facts revealed that the above said decision relied on by the appellant is not applicable to the facts of the present case.
18. Per contra, the learned counsel appearing for the respondent would submit that Ex.B6 alleged agreement of exchange is unregistered document and therefore, the above said document is not valid as per Section 17(1) of the Registration Act, and also Section 35 of Indian Stamp Act. In this regard, the learned counsel for the respondent relied on a decision reported in CDJ 2013 APHC 986 (Annam Uttarudu (died) by LRs., & others v. Annam Venkateswara), in which, para 15 reads as under:-
''15. Section 118 of TP Act postulates the procedure to be following in case of exchange of immovable property. Section 54 of the TP Act postulates that sale of immovable property worth Rs.100/- or more shall be by way of a registered instrument. A fascicular reading of Sections 54 and 118 of the Transfer of Property Act clearly manifies exchange of immovable property worth more than Rs.100/- is only by way of a registered document. As per Section 17(1) (b) of the Registration Act, exchange of immovable property worth Rs.100/- or upward shall be by way of registered instrument. According to Section 35 of Indian Stamp Act a compulsory registrable document, if not registered, is inadmissible in evidence."
As rightly pointed out by the learned counsel appearing for the respondent, as per provisions and also the decisions cited above, the alleged document Ex.B6 is not valid in law.
19. The learned counsel for the respondent further submitted that the alleged document Ex.B6 dated 25.02.1981 and the suit was filed by the respondent on 16.02.1993 i.e., within 12 years from the above said document and therefore, the appellant cannot claim any title by way of adverse possession. The learned counsel relied on a decision reported in (2009) 13 SCC 229, (L.N.Aswathama and another v. P.Prakash), in which, para 17 reads as under:-
"17. 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 possessing 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, (Vide P.Periasami v. P.Periathambi, Md.Mahammad Ali v. Jagadish Kalita and P.T.Munichikkanna Reddy v. Revamma)."
20. On a careful reading of the above said decision and also the relevant provisions clearly proved that the alleged agreement of exchange Ex.B6 is inadmissible in evidence. Further, the above said document cannot helpful to the appellant to prove the adverse possession also since the above said document is within 12 years as rightly pointed out by the learned counsel appearing for the respondent. As already discussed in the instant case, the appellant has miserably failed to prove the requisite animus to possess the properties hostile to the title of the true owner namely the respondent and therefore, the appellant is not entitled to any right over the suit properties by way of adverse possession.
21. From the above said discussion, this Court is of the view that both courts below have correctly considered the genuineness and validity of the alleged Ex.B6 agreement of exchange deed dated 25.02.1981 and held that the above said document is not valid since it is not registered. Further, both courts below have correctly discussed about the date of Ex.B6 agreement of exchange and date of filing of the suit and correctly held that the suit is not barred by limitation. Therefore, there is no need to interfere with the above said concurrent findings of both courts below and answered all the three substantial questions of law as against the appellant and in favour of the respondent. In view of the same, the second appeal is liable to be dismissed and the findings of both courts below are to be confirmed.
22. In the result, the second appeal is dismissed. No order as to costs. Consequently, connected civil miscellaneous petition is closed.
03.06.2014 Index:Yes / No Internet:Yes /No ssn To
1. The Subordinate Court, Arni.
2. The Principal District Munsif Court, Arni.
R.KARUPPIAH, J., ssn S.A.No.872 of 2005 and C.M.P.No.12287 of 2005 03.06.2014