Madras High Court
Ramakrishnan vs Vaithiyalingam
Author: M.Dhandapani
Bench: M.Dhandapani
IN THE HIGH COURT OF JUDICATURE AT MADRAS Delivered On: 08.02.2018 Reserved On: 01.02.2018 CORAM THE HONOURABLE MR.JUSTICE M.DHANDAPANI S.A.No.1915 of 2002 Ramakrishnan ...Appellant Vs. 1.Vaithiyalingam 2.Aranganathan 3.Arumugham ...Respondents Prayer: Second Appeal filed under Section 100 of Code of Civil Procedure, against the judgment and decree in A.S.No.5 of 2001 dated 26.06.2002 on the file of the court of Additional District Court, Villupuram in confirming the judgment and decree in O.S.No.182 of 1997 dated 31.08.2000 on the file of the Court II Additional District Munsif, Ulundurpet. Appellant : Mr.V.Raghavachari Respondents : Mr.R.Sunilkumar J U D G M E N T
The un-successful defendant who lost his case before the Courts below is the appellant herein. The respondents/ plaintiffs filed a suit in O.S.No.182 of 1997 for declaration of the title to the suit property and for permanent injunction restraining the defendant, his men, agents from trespassing into the suit property.
2.The case of the respondents/ plaintiffs is as follows: According to the respondents/ plaintiffs, the suit schedule property originally belonged to one Sethuraman and one Jaya alias Jayalakshmi and it was purchased by the plaintiffs on 30.05.1996 for a sale consideration of Rs.52,000/-. After purchase, the revenue records were also mutated and patta bearing patta no.1183 also stands in the name of the plaintiffs. The plaintiffs are in peaceful possession and enjoyment of the suit property for the past 12 years. Accordingly, the plaintiffs perfected their title by way of adverse possession. Whileso, without any title or right, the defendant tried to trespass into the suit property and it was prevented by the plaintiffs. Hence, the plaintiffs filed suit for declaration of title and for permanent injunction.
3.The case of the appellant/ defendant is as follows: The defendant deny the allegations made in the plaint. According to the defendant, the suit property originally belonged to one Venkatachalam and Narayanan and they were commonly enjoying an extent of 2.62 acres of property. Thereafter, their legal heirs divided the same equally i.e., 1.31 acres each and they were enjoying the suit property. The said Venkatachalam had two sons and Narayanan had five sons. The defendant purchased the 1/5th share of the property enjoyed by one Jayaraman son of Sundaram who is the legal heir of the said Narayanan under sale deed dated 19.07.1996, Ex.B1. The defendant also purchased 65-1/2 cents of the suit schedule property from one Ramalingam, Mangayanayagi and Gangammal under sale deed dated 15.07.1996, Ex.B2. The said Gangammal is the second wife of Kesava Pillai and Mangayanayagi is the daughter of one Rukmani Ammal who is the sister of Kesava Pillai and the said Kesava Pillai and Rukmani Ammal are the legal heirs of one Varadharajan who is the son of the said Venkatachalam. The defendant also purchased the 1/5th share enjoyed by one Sundaramurthi son of Narayanasamy which the said Narayanasamy acquired from his father Manickam/ legal heir of Narayanan under under sale deed dated 19.07.1996, Ex.B3. Accordingly, the defendant enjoyed nearly 1.40 acres of the property and the suit schedule property comes under this 1.40 acres. The plaintiffs had filed a vexatious suit against the defendant.
4.The lower Court decreed the suit in favour of the plaintiffs. As against the same, the defendant filed appeal before the lower Appellate Court and the lower Appellate Court dismissed the appeal and confirmed the order of the lower Court. As against the same, the present second appeal is filed.
5.At the time of admission, the following substantial questions of law were framed for consideration:
1)Whether the Courts below are right in decreeing the suit when the vendors of the respondents are incapable of alienating the suit property to the extent of 1.31 acres including the shares of Ganga Ammal and Mangayarkarasi?
2)Whether the Courts below are right in decreeing the suit of the respondents on the basis of Ex.A2, when it was registered on 9.8.96, after the execution of sale deed in favour of appellant under Ex.B2 dated 15.7.2002?
3)Whether the Courts below have not erred in applying the principles laid down in Sec.39 of the Transfer of Property Act and should it not to have held that Gangammal and Mangayarkarasi as legal heirs of Kesavapillai, are entitled to be maintained out of the joint family properties?
6.The learned counsel appearing for the appellant/ defendant submitted that originally the properties measuring an extent of 2.62 acres belonged to one Narasingham. The said Narasingham's legal heirs are Venkatachalam and Narayanan and they were commonly enjoying the said 2.62 acres of property. Thereafter, the legal heirs of the said Venkatachalam enjoyed 1.31 acres of property and the legal heirs of the said Narayanan enjoyed 1.31 acres of property. Subsequently, the defendant purchased the properties from their legal heirs through sale deeds marked under Ex.B1, Ex.B2 and Ex.B3. In order to prove his title, the appellant/ defendant examined himself as D.W.1 and marked five exhibits.
7.The learned counsel appearing for the appellant/ defendant further submitted that the issue before this Court is whether Gangammal and Rukmani Ammal have share in the suit schedule property. Admittedly, Rukmani Ammal is the daughter of Varadharajan and sister of Kesava Pillai. Hence, Rukmani Ammal is entitled to a share of her father's property on par with Kesava Pillai. Accordingly, Mangayanayagi daughter of Rukmani Ammal and Gangammal along with Ramalingam executed sale deed in favour of the defendant. Hence, the defendant perfected his title through the above said sale deed and the same was marked as Ex.B2. When that being the position, filing the suit for declaration without filing a suit for partition against the other co-owners is not sustainable.
8.In support of his contention, the learned counsel appearing for the appellant relied upon the following decisions:
(i) A decision of this Court made in S.A.No.648 of 2006 dated 24.01.2014 in the case of Singaravel Vs. 1.Murugesa Udayar (Died) and two others, the relevant portion of which reads as follows:
13.......However, in the case on hand, the plaintiff has asked for relief of declaration of title based on an oral partition which has not been proved. When the plaintiff failed to establish the oral partition, based on which he has claimed title to the suit items, the relief of declaration cannot be granted and the Courts below also rightly pointed out that it is open to the plaintiff to sue only for partition. No doubt, it is a settled principle that when plaintiff claims a larger interest and is able to establish a lesser extent, to that extent, a decree can be granted. The plaintiff has established his title only regarding item No.7 and regarding the other items, his entitlement itself has to be proved. Therefore, the Court cannot grant a relief not specifically claimed in the plaint as granting a relief of partition would be a relief inconsistent with what has been pleaded.
(ii) A decision of this Court made in S.A.No.455 of 2011 dated 25.11.2016 in the case of Raju Pandaram Vs. 1.T.K.Kandasamy and another, the relevant portion of which reads as follows:
5......... However, the plaintiffs have claimed title to the suit properties by adverse possession. It has not been established as to how the plaintiffs would be legally entitled to lay the suit for claiming title to the suit properties on the basis of the plea of adverse possession. The plea of adverse possession can be used only as a shield and as a sword.
(iii) MANU/SC/7325/2007 (P.T.Munichikkanna Reddy and others Vs. Revamma and others), the case note of which reads as follows:
(1) Adverse possession Title suit filed on ground of adverse possession-- Trial Judge decreed suit holding that plaintiffs/ appellants have acquired title by adverse possession as they had been in possession of lands in question for period of more than 50 yearsHigh Court reversed decree of trial courtWhether justified?--Held, yes--High Court held that two important averments of adverse possession basically absent both in pleadings and in evidenceOne is to recognise title of person against whom adverse possession claimedOther is to enjoy property adverse to title holder's interest after making him known that such enjoyment was against his own interestNo merit in appeal.
(2) Adverse possessionPrinciples stated. Adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and wilful neglect but also on account of possessor's positive intent to dispossess. Therefore, it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper-owner of the property. Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus, the period for prescription does not commence. S.M.Karim v. Mst.Bibi Sakina, AIR 1964 SC 1254 and Saroop Sing v. Banto, (2005) 8 SCC 330 : 2005 (3) SCCD 1643, relied on.
(3) Adverse possession Right to property now considered to be not only constitutional or statutory right but also human right Hence, even claim of adverse possession has to be considered in that context.
(iv) MANU/SC/0939/2013 (Gurudwara Sahib Vs. Gram Panchayat Village Sirthala and another), the relevant portion of which reads as follows:
7. In the Second Appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.
9.The learned counsel appearing for the appellant/ defendant further contended that though the plaintiffs filed the suit for declaration of title over the property which was purchased in the year 1996, they claim that they are in peaceful possession and enjoyment of the same for the past 12 years, which is an imaginable one. He further contended that the requirement for adverse possession is not proved by any materials. Accordingly, he prayed for allowing the second appeal.
10.Per contra, the learned counsel for the respondents/ plaintiffs would submit that there is no dispute with regard to the relationship between the parties. Admittedly, the plaintiffs purchased the property from the proper legal heirs namely, daughter of Kesava Pillai namely Jayalakshmi and son of Lakshmanan namely, Sethuraman. Though the total extent of 2.62 acres originally belonged to one Narasingham, subsequently, it was divided between his two sons namely, Venkatachalam and Narayanan equally i.e., 1.31 acres each. The said Venkatachalam had two sons, namely, Varadharajan and Lakshmanan. The said Narayanan had five sons, namely, Manickam, Ramakrishnan, Chockalingam, Krishna Pillai and Sundaram. The said Varadharajan had two legal heirs namely, Kesava Pillai/ son and Rukmani Ammal/ daughter. The said Kesava Pillai had two wives namely, Thilagavathi and Ganga Bai. Jayalakshmi is the daughter of the said Kesava Pillai born through his first wife. The plaintiffs purchased the property from the said Jayalakshmi and one Sethuraman who is the sole legal heir of Lakshmanan.
11.The learned counsel for the respondents/ plaintiffs would further submit that the plaintiffs purchased the property from Sethuraman and Jayalakshmi, the only legal heir of Kesava Pillai and perfected their title. After perusal of the entire records, the lower Court granted decree in favour of the plaintiffs/ respondents and the same was confirmed by the lower Appellate Court. Hence, there is no issue available in the present appeal to interfere with the well considered concurrent findings of the Courts below. Accordingly, he prayed for dismissal of the appeal.
12.I have considered the rival submissions made by the learned counsel appearing for the appellant as well as the respondents.
13.The un-disputed facts are that there are totally 2.62 acres of the joint family properties and it stood in the name of one Narasingham. Venkatachalam and Narayanan are the legal heirs of the said Narasingham and they inherited the property and divided among themselves equally i.e., 1.31 acres each. Thereafter, Varadharajan and Lakshmanan who are the legal heirs of Venkatachalam divided the said 1.31 acres among themselves equally i.e., 65-1/2 cents each and Manickam, Ramakrishnan, Chockalingam, Krishna Pillai and Sundaram who are the legal heirs of Narayanan divided the said 1.31 acres among themselves.
14.On perusal of Ex.B1 to Ex.B3 it is known that the defendant purchased the 1/5th share of the property enjoyed by one Jayaraman son of Sundaram who is the legal heir of the Narayanan under sale deed dated 19.07.1996, Ex.B1. The defendant also purchased the 1/5th share enjoyed by one Sundaramurthi son of Narayanasamy which the said Narayanasamy acquired from his father Manickam/ legal heir of Narayanan under under sale deed dated 19.07.1996, Ex.B3. The defendant also purchased 65-1/2 cents from one Ramalingam, Mangayanayagi and Gangammal under sale deed dated 15.07.1996, Ex.B2. The said Gangammal is the second wife of Kesava Pillai and Mangayanayagi is the daughter of one Rukmani Ammal who is the sister of Kesava Pillai and the said Kesava Pillai and Rukmani Ammal are the legal heirs of one Varadharajan who is the son of the said Venkatachalam. However, there is no explanation in the sale deed as to how they acquired the property either from Kesava Pillai or from Rukmani Ammal.
15.The plaintiffs purchased the property from one Jayalakshmi daughter of Kesava Pillai and one Sethuraman, who is the legal heir of Lakshmanan. Admittedly, both are entitled for 65-1/2 cents each. Accordingly, the plaintiffs purchased 1.31 acres from Jayalakshmi and Sethuraman.
16.The defendant states that he purchased 65-1/2 cents of the suit schedule property from one Ramalingam, Mangayanayagi and Gangammal. However, the said Mangayanayagi and Gangammal do not have any share in respect of the suit schedule property. The said Mangayanayagi and Gangammal are the daughters of Rukmani Ammal and unless the said Rukmani Ammal establishes her title, the said Mangayanayagi and Gangammal had no right to alienate the suit property to the said Ganga Bai who is the second wife of Kesava Pillai. Finally, the suit was decreed in favour of the plaintiffs. However, the lower Appellate Court declared that she is not the legally wedded wife. When the first wife is alive, the second marriage is illegal. If at all there is any claim with regard to suit property, it has to be made only by the legal heirs of Gangammal. However, the said Gangammal have no issues at all.
17.Apart from the above, there was a partition inbetween the legal heirs of Varadharajan and Lakshmanan and the partition deed was also marked as Ex.A11. In the partition deed, the parties to the partition has categorically stated that the properties were divided as 'A' to 'E' schedule properties. The 'A' schedule property was allotted to Kesava Pillai and 'E' schedule property was exclusively allotted to Kesava Pillai and Sethuraman. That 'E' schedule property include the suit schedule property and 1.31 acres was exclusively allotted to Kesava Pillai and Sethuraman. However, there is one protection in the partition deed. The sisters of Kesava Pillai did not raise any claim against the Kesava Pillai. However, the fact remains that 'E' schedule property which includes the suit schedule property was exclusively allotted to Kesava Pillai and Sethuraman.
18.It is relevant to extract hereunder the relevant portions of the cross examination of D.W.1, who admitted certain facts:
tujuh$g;gps;isf;F nfrtd; xnu kfd;/ nfrt gps;isapd; Kjy; kidtp jpyftjp/ mth;fspd; kfs;jhd; b$ah vd;w b$ayl;Rkp/ jw;nghJ jpyftjp capUld; cs;shuh vd;W bjhpahJ/ nfrt gps;isf;Fk; f';fhk;khSf;Fk; vg;nghJ jpUkzk; MdJ vd;W bjhpahJ/ nrJuhkDf;Fk; kzpaf;fhuh; eurp';fDf;Fk; tHf;F ele;jJ vdf;F bjhpahJ/ nfrt gps;isf;Fk; f';fhk;khSf;Fk; FHe;ijfs; ,y;iy/ eurp';fk; gps;isf;Fk; nrJuhkDf;Fk; ele;j tHf;fpy; nfrtgps;isapd; rl;lg;goahd kidtp my;y vd;W f';fh mk;khisg; bghWj;J xU ePjpkd;wj;jpYk;. kw;bwhU ePjpkd;wj;jpy; rl;lg;goahd kidtp vd;Wk; jPh;g;gspf;fg;gl;L mjd;nghpy; jw;nghJ tHf;F epYitapy; cs;sJ vd;W ehd; nfs;tpg;gl;oUf;fpnwd;/ nfrt gps;isapd; kfs; b$ah vd;w b$ayl;RkpaplkpUe;J ehd; fpiuak;bgwtpy;iy/ thjpfsplk;jhd; fpiuak; bgw;Ws;nsd;/ nfrt gps;isa[k;. tujuh$g;gps;isapd; 2k; kidtpfdfuh$; mk;khSk; yl;Rkzg; gps;isapd; kfd; nrJuhkDk;. yl;Rkzg; gps;isapd; 2k; kidtp k';ifah;f;furp mk;khSk;. Thf;F brhj;ijg;bghWj;Jk; ,ju brhj;Jf;fisg;bghWj;Jk; 14/3/1973 njjpapy; xU gjpt[ ghf ml;ltiz K:yk; ghfk; gphpj;Jf; bfhz;lhh;fs; vd;why; mijg; gw;wp vdf;F bjhpahJ/ nfrt gps;isapd; mf;fhs; kfs; k';ifah;f;furp/ ghf ml;ltizg; gj;jpuj;jpy; nfrt gps;isf;Fk; nrJuhkDf;Fk; 1/31 brz;il ghfkhf xJf;fpa[s;shh;fs; vd;why; mJ rhpjhd;////////// nfrt gps;is ,e;j 65 brz;il f';fh mk;khtpw;nfh. k';ifehafpf;nfh vGjpf; bfhLf;ftpy;iy/ nfrt gps;isapd; Kjy; kidtp jpyftjpf;Fk; mtUila kfs; b$ah vd;w b$ay;lRkpf;Fk; ghfk; cz;lh vd;W vdf;F bjhpahJ/ f';fhmk;khSk; k';if ehafpa[k; nkw;go 65 brz;il mDgtpj;J te;jhh;fs; vd;gjw;F ve;jtpjkhd MtzKk; ,y;iy/ thjp fpiuak; th';fpapUg;gJ nkw;g[wk;
1Vf;fh; 31 brz;lhFk;/ thjp fpiuak; bgw;Ws;s 1/31 brz;Lf;F rf;Fge;jp tptuk; bjhpahJ/ nrJuhkdhYk; b$ah vd;w b$ayl;RkpahYk;////////// tujuh$g;gps;is. yl;Rkzg;gps;is Mfpnahh;fSf;F jyh 65 1-2 brz;L ghj;jpak; cz;L/ mjpy; yl;Rkzg;gps;is ghfj;ij mth; kfd; nrJuhkdhy;. thjpfs; fpiuak; bgw;Ws;shh;fs;/ me;j tp!;jPuzj;jpy; v';fSf;Fs; gpur;rid ,y;iy/ nfrt gps;isapd; 2k; kidtpahYk;. MtUila mf;fh kfshYk; ehd; 65 1-2 brz;il fpiuak; bgw;Ws;nsd;/ thjpfs; nfrt gps;isapd; Kjy; kidtp K:yk; gpwe;j b$ah vd;w b$ayl;Rkpaplk; 65 1-2 brz;il fpiuak; bgw;Ws;shh;/ mjpy;jhd; v';fSf;Fs; gpur;rid elf;fpwJ///////////// thjpfs; fpiuak; bgw;Wtpl;l gpwF thjpfs; bgaUk; me;j gl;lhtpy; Tl;lhf nrh;f;fg;gl;L gl;lh tH';fg;gl;Ls;sJ vd;why; mJ rhpjhd;/ 1183 gl;lhtpy; k';ifehafp bganuh f';fhmk;khs; bganuh Fwpg;gplg;gltpy;iy vd;W brhd;dhy; mJ rhpjhd;/ vd; fpiuag;go. Vd; bgaUf;F gl;lh khwtpy;iy//////// ehd; me;j 1/40I mDgtpg;gjw;F ml';fy; vd; bgahpy; ,y;iy/ ehd; fpiuak; bgw;Ws;s 1/40I jd[pahfg; gphpj;J fhl;Ltjw;F g{kpapy; mikg;g[ vJt[k; ,y;;iy/ vd; fpiuag;go xU Vf;fh; 40 brz;il gphpj;J jdpahf mDgtpf;ftpy;iy/
19.On a perusal of the above cross examination, it is known that the defendant admitted that Kesavan is the only son of Varadharaja Pillai and Jayalakshmi is the only daughter of Kesava Pillai and the defendant also admitted that there was a matrimonial dispute inbetween Gangammal with Kesava Pillai. D.W.1 further admitted that Kesava Pillai and Sethuraman are entitled for 1.31 acres. He further admitted that he had purchased the property from the second wife of Kesava Pillai and from Kesava Pillai's sister's daughter. D.W.1 further admitted that after the purchase, the plaintiffs mutated the revenue records in their favour. However, there is no explanation with regard to the purchase made under Ex.B2.
20.The plaintiffs proved their title by way of documents i.e., Ex.A1 which relates to sale agreement inbetween the plaintiffs and Jayalakshmi. Thereafter, they purchased the property on 30.05.1996 from Jayalakshmi and Sethuraman who are the legal heirs of Varadharajan and Lakshmanan who are entitled for 1.31 acres. After the purchase, the plaintiffs applied before the Revenue Authorities for mutation of revenue records. Accordingly, through Ex.A3, the Tahsildar mutated the revenue records and transferred the patta in favour of the plaintiffs and other revenue receipts inorder to prove the enjoyment of the plaintiffs.
21.Though the plaintiffs did not establish the adverse possession, however, they filed suit for declaration and permanent injunction. It is only a consequential prayer. Since the plaintiffs established their title by purchasing the property from the proper legal heirs, there is no need to a file partition suit against the other co-owners unless the other co-owners establish their title or interest over the property. Hence, the lower Court as well as the lower Appellate Court concurrently held in favour of the plaintiff. On perusal of the entire records as well as the findings of the lower Court and the lower Appellate Court, I do not find any error or infirmity to interfere with the orders passed by the Courts below.
22.In view of the above, the substantial questions of law are answered against the appellant. In the result, the second appeal is dismissed. The judgment and decree in A.S.No.5 of 2001 dated 26.06.2002 on the file of the Additional District Court, Villupuram confirming the judgment and decree in O.S.No.182 of 1997 dated 31.08.2000 on the file of the Court II Additional District Munsif, Ulundurpet, is confirmed. No costs.
08.02.2018 pri Speaking Order/ Non Speaking Order Index: Yes/ No Internet: Yes/ No To
1.The Additional District Court, Villupuram.
2.The Court II Additional District Munsif, Ulundurpet.
M.DHANDAPANI,J.
pri Pre-delivery judgment in S.A.No.1915 of 2002 08.02.2018