Madras High Court
Chinnappa (Died) vs Marudhan on 17 September, 2010
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17/09/2010
CORAM
THE HONOURABLE MS.JUSTICE R.MALA
S.A.No.1740 of 1997
1. Chinnappa (died)
2. C.Pattu
3. C.Kavunraj .. Appellants
(Appellants 2 and 3 are brought on record as L.Rs. of the deceased vide order
dated 8.6.2010 in M.P.Nos.1 to 3 of 2010)
Vs.
1. Marudhan
2. Arumugam
3. Krishnasamy .. Respondents
Second Appeal against the judgment and decree dated 05.08.1997 in A.S.No.23
of 1996 on the file of the Subordinate Court, Pudukottai, reversing the
judgment and decree dated 29.11.1995 in O.S.No.155 of 1995 on the file of the
District Munsif Court, Keeranur.
!For appellants ... M/s.N.Krishnaveni
^For respondents
1 and 2 ... M/s.A.L.Gandhimathi
****
:JUDGMENT
The Second Appeal is filed by the defendants against the judgment and decree dated 05.08.1997 in A.S.No.23 of 1996 on the file of the Subordinate Court, Pudukottai, reversing the judgment and decree dated 29.11.1995 in O.S.No.155 of 1995 on the file of the District Munsif Court, Keeranur.
2. The averments in the plaint are as follows:
The plaintiffs/respondents are the brothers and the suit properties are ancestral properties which are in possession and enjoyment of the plaintiffs/respondents. One Royappa Udyar, S/o Anthony Muthu Udyar filed a suit in S.C.No.902 of 1968 on the file of District Munsif Court, Pudukottai for recovery of a sum of Rs.214/- and obtained ex-parte decree. He also filed an Execution petition and the suit properties were sold through Court auction that has been confirmed on 03.01.1970. In pursuance of the Court auction sale, he taken steps for delivery of properties on 27.01.1970. It is only a paper delivery. He has not taken actual delivery of the suit properties. Now only, the plaintiffs/respondents came to know about the sale of the suit properties through Court auction in S.C.No.902 of 1968 and the decree in respect of the delivery of possession. Even after confirmation of sale on 03.01.1970, the plaintiffs/respondents are in possession and enjoyment of the suit properties till today for more than 22 years continuously. Therefore, the plaintiffs/respondents claim prescriptive title by adverse possession. Now, the appellants/defendants attempted to interfere with the possession and enjoyment of the suit properties by the plaintiffs/respondents by stating that they are the absolute owners of the suit properties. Hence, the plaintiffs/ respondents constrained to file the suit for declaration that the plaintiffs/respondents are having prescriptive title by adverse possession and also for injunction and prayed for decree.
3. The gist and essence of the written statement filed by the first defendant adopted by the second defendant are as follows:
The suit property excluding Well had been duly sold in accordance with law in execution of the decree in E.P.No.1030 of 1968 in S.C.No.902 of 1968 on the file of the District Munsif Court, Pudukottai which was purchased by Royappa Udyar. The sale has been confirmed and sale certificate has also been issued and he took physical and actual possession on 18.02.1970 through Officer of the Court. Since then, the appellants/defendants are enjoying the suit properties as absolute owners. The plaintiffs'/ respondents' claim that they are having prescriptive title by adverse possession is unsustainable in law. Royappa Udyar entered into an agreement with the second defendant to sell the suit properties and on the basis of the agreement in part performance of the said agreement, Royappa Udyar received the entire sale consideration of Rs.1200/- and delivered possession of the suit properties to the second defendant/third respondent herein. The defendants are in possession and enjoyment of the suit properties for the past 13 years. While so, Royappa Udyar died. Since there is no sale deed, the defendants have not applied for transfer of patta in their favour in respect of the suit properties. On 17.03.1991, the first defendant/appellant herein (deceased) obtained sale deed from the heirs of Royappa Udyar. From that date onwards, he continued to be in possession and enjoyment of the suit properties. The plaintiffs/ respondents have no manner of right over the suit properties. The defendants raised ginglee in the suit land and harvested the same. There is no cause of action for filing the suit. Hence, he prayed for dismissal of the suit.
4. The trial Court, after considering the averments both in the plaint and in the written statement and considering the pleadings and arguments advanced by the learned counsel on either side, framed necessary issues and considering the oral and documentary evidence, dismissed the suit. Against that, the plaintiffs/respondents preferred an appeal. The learned First Appellate Judge after considering the arguments advanced by the learned counsel on either side framed necessary points for consideration and set aside the judgment passed by the trial court and allowed the appeal and decreed the suit as prayed for in the plaint. Against that, the first defendant/appellant(deceased) has come forward with this Second Appeal. Since the first defendant/appellant died during pendency of the Second Appeal, the legal heirs have been impleaded as parties/ appellants.
5. At the time of admission of the Second Appeal, the following substantial questions of law were framed for consideration:
"(i) Is the learned Subordinate Judge correct in decreeing the suit for declaration based on adverse possession when the plaintiff has not pleaded and proved animus to hold the property against the defendant from a particular date ?"
(ii) When the Court auction purchaser has taken delivery of the suit property under Ex.B4, the learned Subordinate Judge was wrong in not considering the same and decreeing the suit ?
6. Heard both sides.
7. The learned counsel appearing for the appellants/defendants would submit that the plaintiffs/ respondents herein have filed a suit for declaration for prescriptive title by adverse possession. But they have not filed any document to show that from which date they were in possession and enjoyment adverse to the interest of the true owner. However, evidence adduced by P.W.1 clearly proves that they never had prescriptive title by adverse possession. The documents namely patta and kist receipts filed by the plaintiffs/respondents will not confer any title to the plaintiffs/respondents. It is the duty of the plaintiffs/respondents to prove that they are having prescriptive title by adverse possession. They have not filed any document to prove the same. Hence, he prayed for setting aside the judgment and decree granted by the First Appellate court. To substantiate their case, the learned counsel for the appellants/defendants relied upon the various judgments of Apex court and this Court.
8 The learned counsel appearing for the plaintiffs/respondents herein would contend that though the trial Court dismissed the suit, the First Appellate court considered all the aspects in proper perspective and came to the correct conclusion. He relied upon the decision reported in 2006(2) C.T.C. 397 (Manickam Vs Sakunthala @ Rajeswari and others) stating that First Appellate court is the final Fact Finding Court which considered both oral and documentary evidence and decreed the suit and there is no necessity to interfere with the findings of the First Appellate Court. He further relied upon the decision reported in (2010)5 M.L.J. 491 (Rajamanickam @ Kamal Basha Vs Mohammed Yassin) rendered by me, submits that the plaintiffs/respondents are in possession and enjoyment of the suit property even in the year 1970 itself and they have prescribed title by adverse possession. Hence, he prayed for dismissal of the Second Appeal.
9 The case of the plaintiffs/respondents is that they are the absolute owner of the suit properties. One Royappa Udyar has filed a suit before the District Munsif Court, Pudukottai and obtained a decree and in pursuance of that he purchased the property through Court auction held. Learned counsel appearing for the plaintiffs/respondents herein has stated that Royappa Udyar has not taken delivery of the suit properties and it is only a paper delivery. So, the plaintiffs/respondents are in possession from that date onwards. They have prescriptive title by adverse possession. It is well settled principle of law that a person who pleaded adverse possession must prove the same.
10 Per contra, the learned counsel appearing for the appellants/defendants would submit that the sale has been confirmed as per Ex.B5 and the delivery of possession has also been given as per Ex.B4 in favour of Royappa Udyar. Since then, they are in possession and enjoyment of the suit properties. Since Royappa Udyar died, the suit properties were sold to the second defendant/third respondent herein under Ex.B1 by the legal heirs of Royappa Udyar. To that effect, one Pilominsamy, S/o Royappa Udyar was examined as D.W.4. To prove delivery, D.W.3 was examined. Hence, there is no evidence to show that the plaintiffs/respondents are in peaceful possession and enjoyment of the property adverse to the interest of the true owner openly, continuously and uninterruptedly for more than statutory period. In such circumstances, it is the duty of this Court to decide whether the plaintiffs/ respondents herein have proved that they are having prescriptive title by adverse possession. At this juncture, it is appropriate to consider the decision relied upon by the learned counsel appearing for the appellants/defendants reported in 2007(2) C.T.C. 838 (Des Raj and others Vs Bhagat Ram (dead) by Lrs and others) wherein the Hon'ble Supreme Court held that Moffusil pleadings are to be construed liberally and pleading must be construed as a whole.
"20. It may be true that in his plaint, the plaintiff did not specifically plead ouster but mofussil pleadings, as is well known, must be construed liberally, Pleadings must be construed as a whole."
There is no quarrel over the above proposition because both the parties are at Moffusil.
11 The learned counsel appearing for the plaintiffs/respondents would submit that the first Appellate Court is the final Fact Finding Court to decide whether the plaintiffs/respondents herein have prescribed title by adverse possession. It is not necessary to interfere with since there is no perversity in the findings of the first Appellate Court. Hence, he submits that this Court is not entitled to interfere with the findings in respect of the facts as per Sec.100 C.P.C.
12 It is also appropriate to consider the judgment reported in 2006(2) C.T.C. 397 (cited supra) wherein this Court has held as follows:
"23. I have gone through the judgment of the trial Court as well as the judgment of the lower Appellate Court and oral evidence adduced in the case. As pointed out above, the lower Appellate Court has independently considered the evidence of D.Ws.1 to 3 and the evidence of P.Ws.1 and 2. The lower Appellate Court has rightly pointed out that the burden of proving the due execution of the Will, squarely lies upon defendants 1 to 5 and has also pointed out that the onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding he execution of the Will, proof of testamentary capacity and then signature of the testator as required by law is sufficient to discharge the onus. Thus, the lower Appellate Court has applied the correct principles of law as laid down by the Supreme Court while considering the genuineness of Ex.B-1, Will."
13 Considering the above judgment, it is true that the first Appellate Court is the final Court of Facts. This Court cannot re-appreciate the evidence and interfere with the findings of the first Appellate Court unless its findings are perverse or misread any material evidence or not considering the material evidence. But here, the main plea raised by the plaintiffs/respondents is that they have prescribed title by adverse possession. If that be so, it is their duty to prove the same. The plea of adverse possession is mixed question of law and facts. In such circumstances, since it is a reversal finding, I am of the opinion that this Court has every right to re-appreciate the oral and documentary evidence and decide the facts afresh.
14 At this juncture, it is appropriate to consider the judgments relied upon by both sides in respect of adverse possession. 15 In 2007(2) C.T.C. 838 (cited supra) wherein this Court has held as follows:
"23. A plea of adverse possession or a plea of ouster would indisputably be governed by Articles 64 and 65 of the Limitation Act.
24. In a case of this nature, where long and continuous possession of the plaintiff-respondent stands admitted, the only question which arose for consideration by the Courts below was to whether the plaintiff had been in possession of the properties in hostile declaration of his title vis-a-vis his co-owners and they were in know thereof.
25. Mere assertion of title by itself may not be sufficient unless the plaintiff proves animus possidendi. But the intention on the part of the plaintiff to possess the properties in Suit exclusively and not for and on behalf of other co-owner also is evident from the fact that the defendants- appellants themselves had earlier filed two suits. Such suits were filed for partition. In those suits the defendants-appellants claimed themselves to be co-owners of the plaintiff. A bare perusal of the judgments of the Courts below clearly demonstrates that the plaintiff had even therein asserted hostile title claiming ownership in himself. The claim of hostile title by the plaintiff over the suit land, therefore, was, thus, known to the appellants. They allowed the first Suit to be dismissed in the year 1977. Another Suit was filed in the year 1978 which again was dismissed in the year 1984. It may be true, as has been contended on behalf of the appellants before the Courts below, that a co-owner can bring about successive suits for partition as the cause of action therefor would be continuous one. But, it is equally well-settled that pendency of a suit does not stop running of 'limitation'. The very fact that the defendants despite the purported entry made in the revenue settlement record of rights in the year 1953 allowed the plaintiff to possess the same exclusively and had not succeeded in their attempt to possess the properties in Village Samleu and/or otherwise enjoy the usufruct thereof, clearly go to show that even prior to institution of the said suit the plaintiff-respondent had been in hostile possession thereof.
26. Express denial of title was made by the plaintiff/respondent in the said suit in his written statements. The Courts, therefore, in the suits filed by the defendants/appellants, were required to determine the issue as to whether the plaintiff/respondent had successfully ousted the defendants/ appellants so as to claim title himself by ouster of his co-owners.
27. In any event the plaintiff made his hostile declaration claiming title for the property at least in his written statement in the suit filed in the year 1968. Thus, atleast from 1968 onwards, the plaintiff continued to exclusively possess the suit land with knowledge of the defendants/ appellants."
16 In 2006(7) SCC 570 (T.Anjanappa and others Vs Somalingappa and others) the Hon'ble Supreme Court has held as follows:
"12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.
14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title.
15. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it.
18. It is the basic principle of law of adverse possession that (a) it is the temporary and abnormal separation of the property from the title of it when a man holds property innocently against all the world but wrongfully against the true owner; (b) it is possession inconsistent with the title of the true owner.
20. ........In order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
17 In 2007(14) SCC 308 (Annakili Vs A.Vedanayagam and others) the Hon'ble Supreme Court has held as follows:
"24. Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into a title."
18 In 2007(3) SCC 569 (Krishnamurthy S.Setlur (dead) by Lrs) Vs O.V.Narasimha Setty and others) the Hon'ble Supreme Court has held as follows:
"12. Section 27 of the Limitation Act, 1963 operates to extinguish the right to property of a person who does not sue for its possession within the time allowed by law. The right extinguished is the right which the lawful owner has and against whom a claim for adverse possession is made, therefore, the plaintiff who makes a claim for adverse possession has to plead and prove the date on and from which he claims to be in exclusive, continuous and undisturbed possession. The question whether possession is adverse or not is often one of simple fact but it may also be a conclusion of law or a mixed question of law and fact. The facts found must be accepted, but the conclusion drawn from them, namely, ouster or adverse possession is a question of law and has to be considered by the court."
19 In 1995(1) M.L.J. 294 (Ponnaiyan Vs Munian (died) and others) this Court has held as follows:
"8. There is no statutory definition of adverse possession. Adverse possession refers to actual and exclusive possession coupled with intention to hold as owner. Adverse possession becomes hostile to the rightful owner when a person openly and continuously, possesses a land under a claim of right adverse to the title of the true owner for the statutory period. Adverse possession means a hostile possession which is express or implied in denial of the title of the true owner. Such possession must be actual and exclusive, under a claim of right, adequate in continuity in publicity and in extent so as to show that it is adverse to the true owner. Such possession, in denial of title of the true owner must be peaceful open and continuous . Mere possession without a claim of right for over a long time is not sufficient to create adverse possession. A mere user of property cannot be taken as a definite assertion of proprietory right; there must be some definite quality in the possession, before it can be called adverse and there must be some fact of unequivocal character which may put the owner on guard. There can be no adverse possession if the person claiming does not know that he is enjoying somebody else's land. He must have the intention of using the property adversely against another having an interest in it. To summarise it, a person by holding possession of the property for the statutory period can acquire title only when his possession is: (1) under a claim of title, (2) hostile to the true owner, and (3) actual, open, uninterrupted, exclusive and continuous.
9. It is well established that a person, who claims title to the property by adverse possession must definitely allege and prove how and when adverse possession commences and what was the nature of his possession."
20 In 2010(5) M.L.J. 491 (Rajamanickam @ Kamal Basha Vs Mohammed Yassin), I have held as follows:
"Admittedly, there are so many legal battles between the occupants of the suit property and other adjacent properties even from the year 1981 onwards. Admittedly, the appellant is not a party to the proceedings. He has proved that from the year 1972 onwards, he is in possession of the suit property with the knowledge of this respondent adverse to the interest of the owner openly, peacefully and uninterruptedly for more than 12 years. Hence, he prescribed title by adverse possession. But, both the Courts below have failed to consider that he is in continuous possession and his possession is adverse to the interest of the real owner. In the above stated circumstances, the appellant herein has proved that he has prescribed title by adverse possession."
21 Considering the above judgments, adverse possession means a hostile possession which is express or implied in denial of the title of the true owner. Such possession must be actual and exclusive under a claim of right, adverse in continuity, in publicity and in extent so as to show that it is adverse to the true owner. Such possession, in denial of title of the true owner must be peaceful, open and continuous. Mere possession without claim of right over a long time is not sufficient to create adverse possession. A mere user of the property cannot be taken as a definite assertion of proprietary right. He must have the intention of using the property adversely against another having an interest in it. A person by holding possession of the property for the statutory period can acquire title only when his possession is:
(1) under a claim of title, (2) hostile to the true owner and (3) actual, open, uninterrupted, exclusive and continuous. The animus of the person doing those acts is the most crucial factor. In such circumstances, it is appropriate to consider the oral evidence of the plaintiffs/respondents. On the side of the plaintiffs/respondents, the second plaintiff was examined as P.W.1 and one Murugaiah was examined as P.W.2. P.W.1 in his chief examination has stated that property was and is in possession and enjoyment of the plaintiffs/respondents.
No one has taken possession of the property. He further stated that he does not know whether Royappa Udyar has taken possession. In chief examination, it was stated as follows:
"21.1.70-y; ePjpkd;wk; K:yk; uhag;g cilahh; $hhp mile;jJ gw;wp vdf;F vJt[k; bjhpahJ/"
P.W.1 in his chief examination has stated that he does not know whether the defendants in the suit purchased the property. In his cross examination, he stated that he does not know Court auction. He denied the fact that Royappa Udyar has taken delivery of the property on 18.02.1970. P.W.2 is one Murugaiah in his evidence has stated that neither Royappa Udyar nor his legal heirs was in possession and enjoyment of the suit properties. In chief examination, he has stated that he did not know whether the defendants in the suit purchased the suit properties from Royappa Udyar and they were in possession. But he stated that "fpuak; th';fp mth;fs; mDgtpf;ftpy;iy" He denied that he was giving false evidence since he is a relative to the plaintiffs/respondents. On the side of the defendants, the second defendant/third respondent herein was examined as D.W.1. One Mr.Idayathullah, adjacent owner of the suit property was examined as D.W.2 to prove that the defendants/ appellants are in possession and enjoyment of the suit property. One Mr.Rangasamy was examined as D.W.3 to prove delivery of the property. One Mr.Philominsamy S/o Royappa Udyar was examined as D.W.4 to prove that the sale of property to the defendants/appellants and they are in possession and enjoyment of the same. Even though plaintiffs/respondents herein have stated that they are in possession from the year 1970 onwards but the documents filed under Ex.A2 to A13 namely, adangal shows fasaly 1384 to 1395 only. But in that it was stated that they are enjoying the property as their own. In Ex.A3 it was stated that "brhe;jk;" which shows that they are not in possession and enjoyment of the properties belonging to Royappa Udyar adverse to the interest of Royappa Udyar. The plaintiffs/ respondents herein were and are not in possession and enjoyment of the properties openly, continuously, uninterruptedly for more than statutory period adverse to the interest of true owner. It is well settled principle of law that revenue records i.e. patta will not confer or extinguish any title to the holder of the documents.
22 The main ingredients for the plea of adverse possession is that the plaintiffs/respondents herein must prove Animus Possidendi. Mere possession is not sufficient for the plaintiffs/ respondents herein to claim prescriptive title by adverse possession. While perusing the entire evidence of the plaintiffs/respondents herein, there is no evidence to show that they are in possession and enjoyment of the suit properties with the knowledge of Royappa Udyar and his successors in title adverse to the interest of the true owner openly, continuously, uninterruptedly for more than statutory period. In such circumstances, as per the dictum of Apex Court reported in 2007(2) C.T.C. 838 (cited supra) and 2006(7) S.C.C. 570 (cited supra), the plaintiffs/respondents have failed to prove that they are having prescriptive title by adverse possession. So the first Appellate Court has not considered the facts in proper perspective and hence the findings of the First Appellate Court is erroneous and the same is liable to be set aside.
23 In respect of the second substantial question of law, Court sale has been confirmed as per Ex.B5. In pursuance of that he took possession of the property on 18.2.1970 which was evidenced by Ex.B4 dated 18.02.1970 marked by D.W.3. In pursuance of that he also paid kist as per Ex.B2 and B3. Thus, the appellants/defendants were and are in possession and they are the owners of the suit properties. The appellants/defendants never accept the title of the Royappa Udyar or his successors and enjoyed the properties since there is absence of Animus Possidendi that the plaintiffs/respondents have not prescribed title by adverse possession. Furthermore, P.W.3 has proved delivery of possession of the suit properties. In such circumstances, I am of the view that the first Appellate Court has committed an error granting decree that the plaintiffs/respondents herein have prescribed title by adverse possession. Hence the judgment passed by the first Appellate Court is liable to be set aside.
24. Accordingly, the Judgment and decree granted by the First Appellate Court is set aside and that of the trial court are restored. The Second Appeal is allowed. No cost.
vaan To
1. The Subordinate Court, Pudukottai,
2. The District Munsif Court, Keeranur
3. The Record Keeper, V.R. Section, High Court, Madras.