Madras High Court
K.S. Chidambaram vs Gomathi Ammal And Ors. on 6 February, 1996
Equivalent citations: (1996)2MLJ59
JUDGMENT Raju, J.
1. The above second appeal has been filed against the judgment and decree of the learned Subordinate Judge, Thenkasi, dated 30.11.1982 in A.S. No.26 of 1982, confirming the judgment and decree of the learned District Munsif, Ambasamudram, dated 30.12.1981 in O.S. No.307 of 1986. The wife of late Arumugham by name Muppidathi Ammal, first plaintiff, filed O.S. No. 307 of 1976 and when she died during the pendency of the suit, plaintiffs 2 to 5, her legal representatives came to be impleaded to prosecute the proceedings instituted for declaration that the second schedule property shown as ABHG in the plaint plan belonged to the first plaintiff and other heirs of the deceased Arumugham and for recovery of possession of III Schedule ABFE ground site after removing the construction made by the defendant.
2. The case of the plaintiffs was that the I schedule property shown as AXYZFB, belonged to the defendant and the II schedule shown as ABCD belonged to the plaintiffs as heirs of late Arumugham, that ABHG in the said second schedule is the III schedule, that there is a lane situated on the eastern side of the plaintiffs' house to reach the III schedule property which is shown as KHML and that the defendant has no right or title over the II schedule property. The defendant had constructed a house in ABFE and inspite of objections, constructed a wall near EF and put up two windows. The defendant also sent a notice to the husband of the first plaintiff on 19.6.1976 marked as Ex.A-5 claiming rights and objecting to the claims of the first plaintiff's husband. After notice, first plaintiffs husband was murdered and reply was sent by the heirs of Arumugham on 5.7.1976 to the notice dated 19.6.1976.
3. The defendant claims that the first plaintiff has no title or interest over the suit property, that the second schedule property never belonged to the first plaintiff s husband, that the plaintiffs have no right in ABHG, that the defendant constructed his house three years before, that there was no objection by the first plaintiff or her husband at the time of construction, that EFGH lane belonged to the defendant and that it is the first plaintiff's husband who attempted to interfere with the possession and enjoyment of the defendant necessitating the issue of notice and the plaint III schedule property belonged to the defendant. On that view, the defendant claims that the plaintiffs have no right to be declared or to recover possession of the property in question.
4. Apart from the oral and documentary evidence adduced, there were two reports of the Commissioner and plans marked as materials on record. After considering the materials placed, the learned trial Judge by his judgment and decree dated 30.12.1981 decreed the suit as prayed for. The plea of estoppel urged by the defendant did not find acceptance with the trial court which held that as the owners of the property and having regard to the declaration of title granted, the plaintiffs are titled to recover possession. Aggrieved, the defendant-appellant herein pursued the matter before Sub Court, Thenkasi, in A.S. No.26 of 1982. The learned first appellate Judge also agreed with the reasons and findings recorded by the trial court and dismissed the appeal. Hence, the above second appeal.
5. Mrs. Pushpa Sathyanarayan, learned Counsel appearing for the appellant contended that the courts below committed a grave error in not, appreciating the claims put forward by the appellant in their proper perspective and in accordance with law and that the declaration granted in favour of the plaintiffs of their title to the disputed property cannot be sustained. The learned Counsel further contended that de hors the findings relating to title, the plaintiffs ought to have been non-suited on the ground of estoppel or acquiescence for not raising any objection when the objectionable construction has been put up and it is not given to the plaintiffs later to seek for recovery of possession and at the most, the defendant could be asked to pay damages or compensations and not be directed to remove the objectionable construction. The learned Counsel relied upon in this regard the decision in Muthuswami Gounder v. Annamalai (1981) 1 M.L.J. 258, wherein a learned single Judge of this Court held that the plaintiff who resides a mile away from the suit property could be assumed to have come to know of the construction put up on a major portion of the property if he had cared to find out and since he has not done so and kept quiet until the first defendant had completed his constructions, the principle of acquiescence has to be made applicable to the facts of such a case and the plaintiff has to be given only a decree for compensation in respect of the property in lieu of the relief of recovery of vacant possession of the property. The learned Counsel also placed reliance on an earlier Division Bench decision of this Court in A.C.C. Limited v. Ramakrishna , wherein the learned Chief Justice S. Ramachandra Iyer, after analysing the case law on the subject held that although an owner of a property will have the undoubted right to recover possession of it from a trespasser albeit that the later had put up a construction upon it, an exception does exist to such a rule where the owner is precluded by any conduct on his part from claiming possession, and it would not amount to denying of right to recover possession from the trespasser, but it would amount to applying the rule of estoppel which prevents the owner from claiming the property to be his so far as the other side is concerned. Per contra, learned Counsel for the respondents, Mr. Narayanan, contended that having regard to the facts and circumstances of the case, the objection, exchange of notices between the parties, the incident resulting in the murder of Arumugham and the subsequent filing of the suit, there is no scope for applying the principle of estoppel or acquiescence and consequently, no exception could be taken to the judgments and decrees of both the courts below.
6. I have carefully considered the submissions of the learned Counsel appearing on either side. Both the learned Counsel have invited my attention to the findings by taking me through the decisions of the courts below. On going through the same I am of the view that the concurrent findings of facts recorded by the courts below that the plaintiffs are entitled to the third schedule property described in the schedule as forming part of the II schedule and shown as ABHG in the plaint plan belonged to the plaintiffs and that the defendant should deliver vacant possession of the same within the time stipulated after removing the wall shown as ABFE, are well merited on the oral and documentary evidence relied upon and referred to in support thereof. The factual findings concurrently so recorded by both courts below on appreciation of oral and documentary evidence, in my view, do not suffer from any paten t error of law or perversity of approach warranting interference by this Court in the second appeal.
7. Apparently on realising the limitation in this appeal for the challenge to be made to such concurrent findings of fact, learned Counsel appearing for the appellant concentrated very much on the plea of estoppel and acquiescence as disentitling the plaintiffs to get the relief of recovery of possession by relying upon the two decisions referred to above and inviting my attention to the relevant materials to support her claim. So far as the principle of law in general governing the plea of estoppel or acquiescence and the declaration of law made in the above two decisions referred to are concerned, there could be no controversy whatsoever. But, the question, which looms large for consideration in this appeal is as to whether the defendant has made out a case for denying the relief of recovery of possession to the plaintiffs on account of the conduct of the plaintiffs and their predecessor-in-interest as constituting estoppel or acquiescence against them, for the courts to deny such relief of recovery of possession. The learned Counsel for the appellant very much relied upon the observations in the judgment of the lower appellate court as also the judgment of the trial court about the construction of the house in the year 1972 and contended that the suit having been filed only in the year 1976, it must be considered that the plaintiffs and their predecessor-in-interest were guilty of keeping quiet and allowed the defendant to put up construction without any objection at that point of time, and it is not given to them now to turn around and seek for the relief of recovery of possession. The courts below, though rejected the plea of estoppel, yet in my view, failed to properly consider the plea of estoppel or acquiescence pleaded and the observations about the point of time of construction of the house were not made on any objective consideration and assessment of the evidence to record a finding vis-a-vis the plea of estoppel or acquiescence. On the other hand, having found title to the property in the plaintiffs, both the courts below rejected the claim of the defendant on the ground of estoppel and observed that in the teeth of declaration of title and even on the case pleaded by the plaintiffs that they put up the superstructure only in the year 1972 after the purchase of the property, there is no scope for claiming perfection of title by adverse possession and therefore, as a consequence of declaration of title, the relief of recovery of possession also has to be granted. In view of the above, learned Counsel appearing on either side invited my attention to the very materials in the shape of exhibits available on record to drive home their view point. As against the plea on behalf of the appellant-defendant that the objectionable construction in question was put up even in the year 1972, that the plaintiffs and their predecessor-in-interest did not raise any protest or objection at that relevant point of time, that the plaintiff's predecessor-in-interest started giving trouble and interfered with the use and enjoyment of the property by the defendant only in the year 1976 and that, therefore, the plea of estoppel ought to have been sustained, learned Counsel for the respondents-plaintiffs would contend that the house and the objectionable dividing wall were not constructed at the same time, that there are no materials to substantiate the claim of the defendant that the said constructions were really put up in the year 1972 and that the plaintiffs and their predecessor-in-interest were mere on lookers without making any objection. It is also the submission of the learned Counsel for the respondents that the oral evidence on record would go to show that the objectionable construction was somewhere during the period preceding the issue or notice in the year 1976 by the defendant and the death of the husband of the first palintiff on account of murder and that immediately thereafter the plaintiffs having filed the suit in the court, the plea of estoppel or acquiescence cannot be countenanced.
8. Except making some vague assertions, and claims in the notice issued by the defendant marked as Ex. A-5, the pleadings as also evidence let in are found to be of too general a nature in this case. The materials oh record do not clinchingly establish about the actual point of time as to when the offending wall has been constructed and as to whether the plaintiffs or their predecessor-in-interest were indifferent to the on going construction and did not make any protest or objection to the offending construction, which is sought to be got removed by the orders of court. The learned Counsel appearing on either side, as noticed supra, have, at the expense of repetition, invited my attention to the contents of the notice as well as the other evidence record to support their respective claims. On a careful consideration of the same, I am of the view that the facts necessary to infer estoppel or acquiescence have not been properly pleaded or proved to justify an inference of estoppel and the denial of relief of recovery of possession to the plaintiffs, whose title to the property in question has been upheld by both the courts below. "Acquiescence" imports not only full knowledge of facts, which will enable the parties to the factual and actual action, but also wilful shutting of his eyes and the positive inaction tantamounting to an implied consent. It would not be that laches alone, even if proved to exist could be raised to the level of acquiescence, inasmuch as the acquiescence imports active assent in contrast to laches which can be passive or sheer indifference, acquiescence is often construed and held to be an instance of law of estoppel by words or conduct.
9. Considering the entire evidence on record in this case, I am of the view that neither acquiescence nor estoppel could be inferred from the nebulous and too general manner of allegations and claims made by the defendant, merely taking advantage of the observations contained in the judgments about the construction having been made in the year 1972. The very case of the defendant was that after his purchase, he has not only re-built the house, but thereafter put up the offending wall also and in the absence of any specific plea or material to substantiate the point of time at which the offending construction has been put up, the courts below would only be justified, in my view, to come to the conclusions that the construction in this case was contemporaneous with the disputes between the parties emerging with the issue of notice by the defendant marked as Ex.A-5. Though it is merely claimed for the defendant that there was no objection when the construction was made, the facts pleaded and deposed on the plaintiffs' side show that disputes really cropped up between parties with objections followed by the issue of notice by the defendant and the murder of the husband of the first plaintiff as a sequel and the suit immediately following the exchange of notices cannot be completely ignored. If the defendant has to succeed on the ground of estoppel or acquiescence so as to deny the relief of recovery of possession to the plaintiffs, whose title has been sustained by both the courts below, it is for the plaintiffs to not only prove specifically the point of time of construction but also the further claim made by the defendant that there was no objection at all at the relevant point of time, as also the circumstances under which the notice under Ex.A-5 came, to be issued. In my view, except making mere general averments and claims, the necessary factual details do not appear to have been either pleaded with precision or proved with any positive material. While that be the position, it would be inappropriate on them besides available on record in this case to, draw an inference of estoppel by conduct or acquiescence against the plaintiffs so as to deny them the relief of recovery of possession. The principle of estoppel by conduct or acquiescence itself being a matter of inference, the same could be deduced from and only on the basis of properly pleaded and proved facts and the necessary factual basis also cannot be inferred from the conduct to further infer the principle of estoppel to the detriment of the plaintiffs, who succeeded in both the courts below. In view of the above, there is no scope for applying the principles laid down by this Court in the two decisions referred to above to deny the relief of recovery of possession concurrently granted by both the courts below. It is by now well settled that recovery of possession can be granted by courts on declaring title of the plaintiffs and such recovery of possession can be enforced even after removing the superstructure, if any, put up without any separate decree in the form of mandatory injunction in that regard. Consequently, I do not see any infirmity in law in the relief of recovery of possession granted by the courts below, as a consequence of declaration of title in favour of the plaintiffs. The second appeal, therefore, fails and shall stand dismissed. There will be no order as to costs.