Madras High Court
P. Chelliah vs Mottayandi Thevar (Died), Sellammal, ... on 7 June, 2002
Equivalent citations: AIR2002MAD495, (2002)3MLJ64, AIR 2002 MADRAS 495, (2003) 2 LANDLR 249, (2002) 3 MAD LJ 64, (2002) 4 MAD LW 780, (2002) 4 RECCIVR 477, (2002) 4 CIVLJ 831
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
1. P. Chellaiah, the appellant herein, having lost before both the Courts below, has filed these two appeals.
2. The appellant/plaintiff filed a suit in O.S.No.748 of 1981 before the trial Court against the respondents/defendants for declaration of his title and also for permanent injunction and recovery of possession of 2nd and 3rd schedule properties. The first defendant filed a suit in O.S. No.82 of 1982 for declaration of his title and also for permanent injunction and recovery of possession in respect of 13 cents.
3. The suit filed by the plaintiff was dismissed and the suit filed by the first defendant was decreed in his favour. Against the judgement and decree of the trial Court, the appellant filed two appeals in A.S. Nos.36 of 1984 and 21 of 1985. The appellate Court dismissed both the appeals by confirming the judgement and decree passed by the trial Court. Hence these two second appeals by the appellant.
4. According to the appellant/plaintiff, the plaint 1st schedule property measuring about 3 acres and 18 cents belong to him. Originally, the said property belonged to the plaintiff's mother, Rakkammal. She settled the entire property in favour of the plaintiff under a registered settlement deed. Since then, the plaintiff has been in possession and enjoyment of the said property by paying land tax. Patta also has been transferred in the name of the plaintiff. At that time, both the first and second defendants trespassed into the said property and also occupied 2nd and 3rd schedule properties on 31-10-1981. Hence the suits.
5. According to the first defendant, the plaint 1st schedule property originally belonged to the first defendant and his paternal uncle, by name, Ganapathy Thevar alias Mottaya Thevar. The said Ganapathy Thevar executed a registered sale deed in the year 1933 in favour of one Ganapathy Thevar, son of Ponnu Thevar, conveying an extent of 3 acres and 5 cents in the plaint 1st schedule property. The vendee, Ganapathy Thevar is the maternal grandfather of the plaintiff. The wife of the aforesaid Vendee, Ganapathy Thevar executed a registered sale deed on 23-5-1949 in favour of Rakkammal, the mother of the plaintiff. Thereafter, the plaintiff's mother-Rakkammal settled the abovesaid property in favour of the appellant/plaintiff. Therefore, the appellant/plaintiff is entitled to 3 acres and 5 cents only and not 3 acres and 18 cents in the property as alleged by the appellant/plaintiff.
6. After necessary issues were framed, P.Ws.1 and 2 were examined. The appellant/plaintiff examined himself as P.W.1 and examined Rakkammal as P.W.2. On behalf of the defendants, D.Ws.1 and 2 were examined. On the plaintiff's side, Exs.A-1 to A-34 were marked. On the defendants' side, Exs.B-1 to B-3 were marked. Exs.C-1 to C-4 were marked as Court exhibits.
7. Both the trial Court as well as the appellate Court considered the materials available on record and the evidence adduced by both the plaintiff and the defendants and concluded that the appellant/plaintiff would not be entitled to the relief sought for. But however, a finding was rendered that the appellant/plaintiff would be entitled to an extent of 3 acres and 5 cents in the plaint 1st schedule property on the basis of Exs.B-1 to B-3. This is the subject matter of challenge before this Court in the second appeals.
8. While admitting the second appeals, the following substantial question of law was framed for consideration:-
"Whether the Courts below have not properly appreciated the evidence, oral and documentary, and overlooked the material evidence in holding that the plaintiff is entitled to 2.91 acres when the patta in his favour is only in respect of 2.78 acres and that the ridge of the defendant is in the plaintiff's land?"
9. While elaborating the facts in the above second appeals, learned counsel for the appellant would submit that both the Courts below have not considered Exs.A-1 to A-34 in the proper perspective, even though the documents like patta, adangal, survey register, all would show that the plaintiff has been in possession of 3 acres and 18 cents. He would also submit that in any event, the decree should have been passed by the Courts below in respect of the entire extent of land, as the plaintiff has established adverse possession.
10. I have also heard learned counsel appearing for the respondents.
11. There is no dispute in the fact that the declaration was sought for in respect of the entire 3 acres and 18 cents only on the basis of the documents like patta, adangal, survey register, etc. Both the Courts below have correctly concluded that these documents will not confer title. A perusal of Exs.B-1 to B-3, which have been marked by the defendants relating to the property, would clearly show that the plaintiff would be entitled to only 3 acres and 5 cents. So, mainly on the basis of these documents, the Courts below held that the plaintiff will not be entitled to get any decree in respect of the balance 13 cents in the property.
12. While referring to adverse possession, both the Courts below would hold that the dispute between parties started in the year 1981 only, and therefore, there was no animus on the part of the appellant to claim adverse possession prior to 1981. The trial Court, in its detailed judgement, would refer to P.W.1's admission in his evidence that he came to know about the difference between the patta and Exs.B-1 to B-3 only in the year 1981. This submission would support the evidence of D.W.1 who stated that only in October 1981, the plaintiff made an attempt to trespass and encroach into 13 cents of the property on the strength of patta by destroying the bund. This finding, in my view, with reference to the failure to establish adverse possession, cannot be said to be improper.
13. As held by the Supreme Court in KONDA LAKSHMANA BAPUJI VS. GOVT. OF A.P. , the question of a person perfecting title by adverse possession is a mixed question of law and fact. It must be shown by the person claiming title by prescription that he has been in possession of the land for the statutory period, which is adequate in continuity, in publicity and in extent with the animus of holding the land adverse to the true owner. Mere possession of the land, however long it may be, would not ripen into possessory title unless the possessor has "animus possidendi" to hold the land adverse to the title of the true owner. For reckoning the statutory period to perfect title by prescription, both the possession as well as the "animus possidendi' must be shown to exist. Where, however, at the commencement of the possession, there is no "animus possidendi", the period for the purpose of reckoning adverse possession will commence from the date when both the actual possession and assertion of title by the possessor are shown to exist.
14. The abovesaid essential ingredients for adverse possession, admittedly, have not been established by the plaintiff. On the other hand, it is the admission of P.W.1 in his evidence that the dispute arose only in the year 1981. As noted above, D.W.1 has also given clear evidence to show that there is an attempt to encroach upon 13 cents only in the year 1981. Under those circumstances, it cannot be said that there are materials to show adverse possession.
15. In the above circumstances, I do not find any merit in the second appeals. Consequently, the judgement and decree passed by the Courts below are perfectly justified. There is no ground for interference in the second appeals. Hence, both the second appeals are dismissed. No costs. It is made clear that as correctly found by both the Courts below, the appellant/plaintiff is entitled to a decree in respect of only 3 acres and 5 cents in the property and not more than that.