Madras High Court
D.Prakash Rathinam vs K.Ramalingam Pillai on 29 January, 2014
Author: R.Karuppiah
Bench: R.Karuppiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29.01.2014 CORAM THE HONOURABLE MR.JUSTICE R.KARUPPIAH S.A(MD)No.744 of 2008 and S.A(MD)No.70 of 2009 and M.P(MD)Nos.2/2008 and 1 of 2009 D.Prakash Rathinam .. Appellant in both appeals Vs K.Ramalingam Pillai ..Respondent in both appeals PRAYER IN S.A(MD)No.744 of 2008 Second Appeal filed under Section 100 of Civil Procedure code against the judgement and decree made in A.S.No.4 of 2005, dated 25.1.2006, on the file of the Second Additional Sub-Court at Nagercoil reversing the judgment and decree made in O.S.No.142 of 2001, dated 15.10.2004 on the file of the First Additional District Munsif's Court at Nagercoil. PRAYER IN S.A(MD)No.70 of 2009 Second Appeal filed under Section 100 of Civil Procedure code against the judgement and decree made in A.S.No.30 of 2005, dated 25.1.2006, on the file of the Second Additional Sub-Court at Nagercoil reversing the judgement and decree made in O.S.No.142 of 2001, dated 15.10.2004 on the file of the First Additional District Munsif's Court, at Nagercoil. !For Appellant ... M/s.G.R.Swaminathan in both appeals ^For Respondent ... M/s.E.V.N.Siva in both appeals :COMMON JUDGMENT
Both the second appeals (i.e,) S.A(MD)No.744 of 2008 and S.A.No.70 of 2008 are filed by the appellant as against the common judgement and decree made in A.S.No.4 of 2005, and A.S.No.30 of 2005 dated 25.01.2006 on the file of the Second Additional Sub-Court, Kanyakumari at Nagercoil reversing the judgment and decree made in O.S.No.142 of 2001, dated 15.10.2004 on the file of the I Additional District Munsif's Court, at Nagercoil.
2. Both the Second Appeals are arising out of the same suit O.S.No.142 of 2001. For the sake of convenience, the defendant in the suit referred as the appellant herein and the plaintiff in the suit referred as the respondent herein.
3. The respondent / plaintiff filed a suit in O.S.No.142 of 2001 seeking the reliefs, namely, directing the appellant / defendant to deliver the vacant portion of the suit property occupied by him, after demolishing the superstructure and for a decree of permanent and prohibitory injunction restraining the appellant and his men not to interfere with the title and possession of the plaintiff over the suit property.
4. Briefly, the case of the respondent / plaintiff is that Old S.No.11920- A of Neendakarai-B Village originally belonged to the respondent's family and it was a coconut grove. In a partition between the respondent's father Late. Kuttralam Pillai and his younger brother Chitrambalam Pillai, the respondent's father was allotted the eastern half share. Later, in the year 1983, the above said half share was further divided into three equal parts and the western-most portion was allotted to the respondent's elder brother namely Sri.Kumaravel Pillai. The middle portion was allotted to the respondent and the eastern portion was allotted to the share of the respondent's younger brother Sri.Balasubramanian Pillai. As per partition, the respondent was in possession and also the respondent effected mutation in revenue records. In the year 1970, the respondent had entered into Government Service. Initially, the respondent's father's younger brother was looking after the property and thereafter, the respondent's uncle Sri Andi Pillai was looking after the property. On 21.08.2000, the respondent has executed a sale deed as regards the southern 18.837 cents, leaving about 9 cents in the north. The above said northern portion is the suit property. In the suit property, there were two tiled roofed houses and both have jointly occupied about 1.5 cents. The appellant was occupying the Western house. Several years ago, the appellant's father Daniel and two others were allowed to occupy small portions in suit survey number under licence and they were looking after the property under permissive possession and protected the coconut grove from theft. After the above said partition, the permissive possession of the property continue and in the above said partition, the portion occupied by the appellant was allotted to the respondent. But it was not altered the character of the possession in the hands of the appellant. The appellant demolished his own small house and he is in the process of constructing a new house. For the above said purpose, the appellant has encroached into the western and southern portion of the suit property. According to the respondent, in the partition deed, the R.S. Number alone wrongly mentioned as R.S.No.584/2 instead of correct R.S.No.584/3 and R.S.No.584/12. But the property allotted to the respondent lies within the boundaries stated in the partition deed and therefore the respondent has got title over the suit property. On 23.01.2001, the respondent came to know that the appellant had constructing a new house and therefore objected for the same. On 25.01.2001, the respondent had personally handed over a letter to the Executive Officer of Panchayat, not to approve any plan and a remainder was also sent on 3.2.2001. The respondent has also given a telegram to the appellant on 8.2.2001 to stop the illegal action. But the appellant acted against the interest of the respondent. Hence the suit.
5. The appellant / defendant filed a Written Statement in which it is admitted that the existence of two tiled roofed houses in the suit property and the house property occupied more than 1.5 cents and also admitted that the appellant is occupying the western house. But the appellant denied that the entire property in Old S.No.11920-A was fully a coconut grove and also denied that several years ago, the appellant's father Daniel and two others were allowed to occupy some portions in the said survey number. According to the appellant, the appellant's grand-father Mr.Joshuva occupied the area and constructed a building about more than 100 years ago. After his death, the appellant's father was in possession of the property as his legal heirs. After the death of the appellant's father Daniel, the appellant is in uninterrupted possession and enjoyment of the property as his legal heir. There is no permissive possession or license as alleged in the plaint. Therefore no licencor licensee relationship between the respondent and appellant or between the respondent's predecessor and the appellant. The possession of the appellant is hostile to the respondent's title, if any and hence, the appellant got title over the suit property by adverse possession also. The appellant and his predecessor were in continuous and uninterrupted possession of the same for the past more than 100 years and the appellant is paying house tax for the building for more than 40 years. Further, the appellant had demolished a portion of his house and constructed a new house in the area less than that of the area demolished. Therefore, the appellant has not encroached any portion as alleged in the plaint since the property belongs to the appellant and the appellant has every right to put up construction and not encroached respondent's property. The appellant's house situates in R.S.No.584/3. The respondent had no right to obstruct the appellant from constructing a building and also never objected. It is true that the respondent gave a telegram on 8.2.2001. But the appellant constructed the building in the year 2000 itself by getting proper approval from Ganapathipuram Town Panchayat. Therefore the respondent had no right to seek recovery of the plaint schedule property by demolishing the building. Therefore prayed for dismissal of the suit with costs.
6. The trial Court considering the above said pleadings framed four issues for consideration, which are as follows:
1.Whether the defendant has got title over the plaint schedule property by adverse possession?
2. Whether the plaintiff is entitled to recovery of possession after demolishing the superstructure?
3.Whether the plaintiff is entitled to the relief of permanent injunction?
4. To what relief the plaintiff is entitled to?
7. On the side of the respondent / plaintiff, the respondent / plaintiff himself deposed as P.W.1 and marked 13 documents as Ex.A1 to Ex.A13. On the side of the appellant / defendant, the appellant himself deposed as D.W.1 and also examined one Rajesh as D.W.2 and marked 7 documents as Exs.B1 to Ex.B7. Further two documents were marked as Court documents Ex.C1 and Ex.C2.
8. The trial Court has discussed about the oral and documentary evidence adduced on either side and finally held that the appellant is not entitled to the suit property by way of adverse possession and answered the first issue accordingly and the trial Court has also held that the respondent is not entitled to the relief of recovery of possession. But, the trial Court has directed the appellant to pay a sum of Rs.80,000/- to the respondent within three months so as to get proper title by the appellant and also directed to pay a court fee of Rs.6000/- within one month and passed a decree and judgement accordingly.
9. Aggrieved over the above said decree and judgement passed by the trial Court, the respondent / plaintiff preferred the first appeal in A.S.No.30 of 2005 and the appellant / defendant also preferred a separate first appeal in A.S.No.4 of 2005 before the Second Additional Sub-Court, at Nagercoil. The first appellate Court has set aside the decree and judgement passed by the trial Court and granted the relief as sought for in the plaint and disposed of both first appeals accordingly. Aggrieved over the above said finding of the first appellate Court in both appeal suits, the appellant / defendant in the above said original suit preferred S.A.No.744 of 2008 as against the decree and judgement passed in A.S.No.4 of 2005 and S.A.No.70 of 2009 was filed as against the finding in the first appeal in A.S.No.30 of 2005.
10. This Court has heard the learned counsel appearing for both sides and admitted both the Second Appeals i.e., S.A(MD)No.744 of 2008 and S.A(MD)No.70 of 2009 on the following same substantial questions of law for consideration in both the appeals separately. They are:
A. Whether the judgement of the courts below are vitiated for having failed to apply the correct principles of law relating to adverse possession?
B. Whether the Plaintiff is disentailed to the relief sought for on account of the acquisance on his part?
11. The respondent has filed the suit for recovery of possession after demolishing the superstructure and also seeking permanent injunction in respect of the suit property viz., old Survey No.11920 A, Re-survey Nos.584/3 and 12, out of 30 Cents, 9 Cents of the Northern side bounded on the West-Kumaravel Pillai property, on the South viz., Nirmala Kumari property, on the East- Sahayams property, on the North Nagarcoil - Kulachal Road.
12. The appellant has specifically denied the respondent's title over the suit property and not admitted the title of the respondent over the suit property. In the above said circumstances, the respondent has not seeking the relief of declaration in respect of the suit property, only seeking delivery of possession after demolishing the superstructure and also permanent injunction.
13. The learned counsel appearing for the appellant mainly contended that both the Courts below have not considered, that the respondent has not seeking the relief of declaration in spite of denied title of the respondent by the appellant and therefore, the finding of both the Courts below are not valid in law. The learned counsel further contended that the respondent has not produced any document of title to prove the title over the entire property including the suit property and only filed an Ex.A1-partition deed, dated 14.06.1983. The other documents viz., Ex.A2 is Kist receipt paid on 02.06.1998 for Survey Nos.584 and 21 and Ex.A3 is Kist receipt paid on 24.02.2001 for the same Survey number, Exs.A4 and A5 are copy of the sale deed alleged to have executed by the respondent in favour of one Nirmala Kumari and Santhosh Muthu in respect of adjacent property, not relating to suit property. The learned counsel further pointed out that the other documents are notices, photo copies and letters and therefore, the respondent has not at all produced any document of title like sale deed, settlement deed etc., and also not produced any patta issued in the name of the respondent or his predecessor in title to prove that the suit property is belong to the family of the respondent, except the alleged partition deed Ex.A1 (i.e) the partition effected between the respondent and his brothers.
14. At the time of evidence, the respondent has deposed as if the suit property is part of old Survey No.11920 A and the above said property along with the other properties originally belonged to the plaintiff's father viz., Kuttralam Pillai and his brother Chittrambala Pillai and they were enjoyed the same as joint family properties and both of them orally partitioned the above said properties, in which Eastern + share in suit survey number allotted to the plaintiff's father and plaintiff's father was died in the year 1964. After that, both the respondent and his two brothers viz., Kumaravel Pillai and Balasubramaniam enjoying the same without any partition and the elder brother viz., Kumaravel Pillai alone managed the property, only, on 14.06.1983, the properties were partitioned under Ex.A1- partition deed.
15. Except, the oral testimony of PW.1, no other documentary or reliable oral evidence to prove that the properties including the suit property originally belonged to the plaintiff's father Kuttralam Pillai and his brother Chittrambala Pillai and they were orally partitioned the properties, in which Eastern portion in the suit Survey number was allotted to the plaintiff's father and after his death, the properties including the suit property were in joint possession of the respondent and his two brothers and the respondent's brother viz., Kumaravel Pillai was managed the property. On a perusal of the averments made in the written statement revealed that nowhere it is admitted that the respondent has title over the suit property and also revealed that the appellant has specifically denied the respondent's title over the suit property and also denied the alleged permissive possession pleaded by the respondent. In the above said circumstances as rightly pointed out by the learned counsel for the appellant, the respondent ought to have been filed a suit for declaration and then, the respondent ought to have seek other consequential relief of delivery of possession, after demolishing the superstructure or permanent injunction. But, both the courts below have failed to consider the above said legal aspects as rightly pointed out by the learned counsel for the appellant.
16. In the plaint itself it is admitted that after the death of the appellant's father, the appellant is in possession of the suit property. The only contention of the respondent is that the defendant's father Daniel and two others were allowed to occupy the small portion in the suit Survey number purely on the basis of license and therefore, the possession of the appellant's father and the appellant only under permissive possession. Admittedly, in the plaint or at the time of evidence the respondent has not stated, when the above said permission or license was granted to the appellant's father and two others as alleged in the plaint. Except the oral testimony of the respondent has no other oral or documentary evidence to prove the above said permissive possession or license, as alleged in the plaint. Both the Courts below have failed to consider the above said fact also.
17. The appellant has specifically denied the alleged permissive possession or license pleaded by the respondent and specifically stated in the written statement that the appellant's grand father Josuvah occupied the area and constructed the building about more than 100 years ago and after his death the appellant's father was in continuous possession of the property, as the legal heir and after the death of the appellant's father Daniel, the appellant is in continuous and uninterrupted possession and enjoyment over the suit property as legal hire.
18. In the above said circumstances, the onus is on the respondent to prove the alleged permissive possession or license by reliable and oral documentary evidence. But, in the instant case, the respondent has not at all produced any documentary evidence or adduced any oral evidence to prove the above said license or permissive possession as alleged in the plaint. A perusal of the Ex.A1-partition deed itself stated as if all the properties mentioned in the partition deed, were in the joint possession of the respondent and his brothers. Therefore, the Ex.A1 - partition deed produced by the respondent itself falsified the contention of the respondent. On a perusal of the Ex.A1 alleged partition deed reveals that already the respondent and his brothers properties were purchased by the predecessor of the respondent by way of registered documents and also partitioned the properties under partition deeds. But, the respondent has suppressed all the above said documents. Further no reason has been given for non production of the above said material documents to prove the fact that the suit property also purchased by the respondent's predecessors and partitioned the properties in which the properties including suit property was allotted and subsequently, as per Ex.A1 partition deed allotted to the respondent. The respondent has not produced any patta for his properties, particularly, relating to the suit property. No reason has been stated for non production of the patta. Therefore, both the Courts below has not considered the above said facts.
19. On a careful reading of judgments of both the Courts below revealed that both Courts have wrongly presumed as if the appellant has admitted the title of the respondent, over the suit property and the appellant claimed title only by way of adverse possession, but, the above said fact has not been proved by the appellant and therefore, accepted the contention of the respondent (i.e) the possession of the appellant and his predecessors only on permissive possession.
20. With regard to alleged license or permissive possession, the respondent has pleaded in the plaint, as if several years back the appellant's father viz., Daniel and two others occupied small portions in the suit Survey number property. At the time of evidence also PW.1 has deposed in the chief Examination, as the suit property was only given to the appellant's father as a permissive possession. But, at the time of cross examination, for the first time, the respondent has deposed, as the respondent's father has given the property "to the appellant's grand father" and permitted to live in the suit property. But, PW.1 has also admitted that the appellant's grand father was in possession and after this death, the appellant's father was in possession and then the appellant is in possession.
21. The respondent deposed as PW.1 and in his evidence, he admitted that the appellant alone paid the Tax and he has not paid any Tax in his name or his father's name. It is also admitted by PW.1 that the appellant's predecessor alone constructed the building in the suit property. The respondent also admitted that the appellant has paid tax for 40 years. The respondent has categorically admitted that the appellant and his predecessors enjoying the suit property for more than 100 years. But, PW.1 had deposed as if the above said possession only a permissive possession or license, but it is not proved by reliable oral or documentary evidence except the interested oral evidence of PW.1.
22. Further, a perusal of Exs.C1 and C2 Commissioner's report and plaint and discretion of the properties in EX.A1 - Partition deed revealed that it is not tallied the Survey number and extent with disputed property. In the plaint itself it is admitted that in Ex.A1 partition deed the area has wrongly given as 29.34 Cents, but, the actual area is lesser than the above said measurements. Further in the plaint itself it is stated that in Ex.A1 partition deed, the Survey number has wrongly given as Resurvey No.584/2 instead of Resurvey Nos.584/3 and 584/12. Therefore, in the plaint itself admitted that in the Survey number and extent of property are all wrongly given in the partition deed Ex.A1. The respondent has not taking any steps to correlate the property allotted in the Ex.A1-partition deed with regard to survey records to prove the measurements, boundaries etc., Both the Courts below have failed to consider the above said facts in their judgments and therefore, the findings of the Court below are perverse as rightly pointed out by the counsel for appellant.
23. The settled principles of law is that it is duty of the respondent as a plaintiff to prove his case by reliable oral and documentary evidence. In the instant case, the respondent has not proved his title by reliable oral and documentary evidence and also not proved the suit property is included in the partition deed. The respondent also miserably failed to prove the alleged permission or license by reliable oral and documentary evidence.
24. The learned counsel for the respondent has relied on the following four decisions namely, (1) 2009(1) CTC 366 (M. Subbiah and The Subbiah (died) and thirteen others), (2) 2011 (1) LW 783, (Chatti Konati Rao and others. Vs. Palle Venkata Subba Rao), (3) 2011(1) MWN (Civil) 658, (Mehboob Jani and another Vs. Vimalchand), (4) 2012(1) MWN (Civil) 180, (Ranganathan Vs. Natarajan and another) and contended that the appellant claimed right over the suit property by adverse possession and therefore, the appellant ought to have been proved the claim of the adverse possession in definite terms as to how and when his possession has become adverse to real owner, but, the appellant in the instant case has failed to prove the above said facts and therefore, both the Courts below have correctly held that the appellant failed to prove the title by adverse possession.
25. Per contra the learned counsel appearing for the appellant submitted that all the above said decisions relied on by the respondent is not applicable to the facts of the present case. Since, in the above said cases title of the respondent has been admitted and also proved by reliable evidence and only the appellant in the above said cases failed to prove the adverse possession by reliable evidence. But, in the instant case the respondent has miserably failed to prove the title over the suit property and in the above said circumstances, the decisions relied on by the respondent are not helpful to the respondent.
26. In the first decision reported in 2009(1) CTC 366 (M. Subbiah and The Subbiah (died) and thirteen others), it has been held in para No.30 as follows:-
30. In the instant case, as noted down earlier, the plaintiffs have failed to aver in the plaint as to when and how the possession of Kalyani Chettiar and after his demise, their possession has become adverse to the owner of the suit property viz., second defendant. Therefore, the basic requirements of theory of adverse possession have not been averred in the plaint and further the paternal grandfather of the plaintiffs viz., kalyani Chettiar has enjoyed the suit property only in pursuance of Ex.A1, the sale agreement alleged to have been entered into between him and second defendant and in view of the decisions referred to earlier, it is very clear that the said Kalyani Chettiar and the plaintiffs are not at all entitled to claim adverse possession and therefore, the plaintiffs are not entitled to get the reliefs sought for in the Plaint."
In the second decision reported in 2011 (1) LW 783, (Chatti Konati Rao and others. Vs. Palle Venkata Subba Rao) it has been held in para No.14 as follows:-
14. ... The plaintiff is bound to prove his title as also possession within 12 years and once the plaintiff proves his tittle, the burden shifts on the defendant to establish that he has perfected his title by adverse possession"
In the third decision of this Court reported in 2011(1) MWN (Civil) 658, (Mehboob Jani and another Vs. Vimalchand), it has been held in para No.10 and 17 as follows:-
10. The Trial Court adverting to the oral and documentary evidence clearly and categorically, unambiguously and unequivocally held that the plaintiff established his title over the suit property by virtue of Ex.A1. The defendants would come forward with the plea that the Defendant's propositus, namely deceased Abdul Rasack acquired prescriptive title over the suit property, as he had been enjoying it as the owner over the statutory period."
17. ...
... Hence, in this view of the matter, the second substantial question of law is decided to the effect that both the Courts below correctly held that the defendants had not proved their alleged prescriptive title over the suit property. Whereas the plaintiff has proved his title to it...."
In the fourth decisions reported in 2012(1) MWN (Civil) 180, (Ranganathan Vs. Natarajan and another), it has been held in para No.14 as follows:-
"14. Once the owner ship of Chellammal under Ex.A6 to Ex. A12 and the right of the plaintiff to succeed to the property under Ex.A1 will are thus well established on the side of the Plaintiff the burden shifts to the contesting 3rd Defendant to prove his claim either on the basis of better title or on the basis of adverse possession."
27. On a careful reading of the decisions revealed that in the above said cases, the title of the plaintiffs had been proved and the other side not proved the adverse possession. But, in this case, the respondent has admitted the possession of the appellant and his predecessors more than 100 years, but only pleaded as permissive possession. The appellant has specifically denied the above said license or permissive possession. Further, the appellant has specifically stated in the written statement that the respondent should prove his title and even if the respondent is having any title, the appellant is entitled to the property by way of adverse possession. As already discussed the respondent has not proved the title over the suit property. Therefore, only on the ground that the appellant has stated in the written statement claiming adverse possession, also will not give any right to the respondent in the suit property. As already stated the plaintiff has not proved the tittle and also the alleged permissive or license by any reliable oral and documentary evidence. Per contra, the appellant has proved the possession of appellant and his predecessors more than 100 years and it is admitted by the respondent. In the above said circumstances, possession of the appellant can be taken as adverse possession as pleaded by the appellant. Therefore, both the courts below failed to consider the question of title and also failed to apply correct principles of law relating to adverse possession and hence, the respondent is not entitled to any relief as sought for in the plaint and also on an account of acquisition and therefore, the suit filed by the respondent is to be dismissed and answered the two substantial questions of law accordingly.
28. In the result both the Second Appeals are allowed and the Judgment and Decree of both the Courts below are set aside and the suit filed by the respondent is dismissed. No order as to costs. Consequently, connected Miscellaneous Petitions are closed.
mpk/trp To
1.I Additional Sub court, Kanyakumari District, Nagercoil
2.II Additional Sub court, Kanyakumari District, Nagercoil