Madras High Court
Shanmugavelu Thevar vs Madasamy Thevar on 4 March, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04/03/2008
CORAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA
S.A.No.1248 of 2000
Shanmugavelu Thevar .. Appellant/Appellant/ Defendant No.4
Vs
1.Madasamy Thevar
2.Krishnasamy Thevar
3.Gopal Thevar
4.R.Kalimuthu
5.Pandara Thevar
6.Sankara Pandia Thevar
7.Arunagiri Thevar
8.Muthammal
9.Pudhiaval
10.Gomathy
11.Minor Rasu @ Madasami
12.Minor Subramanian
(Minor R11 and R12 rep.
by their mother R10)
13.Subbammal
14.Madaswamy
15.Rajendran .. Respondents/Respondents/
Plaintiffs, Defendants
1,2,5 to 7 and legal
heirs of the defendants
3 and 8
Prayer
Appeal filed under Section 100 of Civil Procedure Code, against the
judgment and decree dated 13.10.1997 passed in A.S.No.81 of 1992 on the file of
the learned Principal Subordinate Judge, Tenkasi in confirming the judgment and
decree dated 23.06.1992 passed in O.S.No.163 of 1985 on the file of the learned
District Munsif, Tenkasi.
!For Appellant ... Mr.K.Srinivasan
^For RR1 to R4 ... Mr.V.Shanmugam
:JUDGMENT
This second appeal is focussed as against the judgment and decree dated 13.10.1997 passed in A.S.No.81 of 1992 on the file of the learned Principal Subordinate Judge, Tenkasi in confirming the judgment and decree dated 23.06.1992 passed in O.S.No.163 of 1985 on the file of the learned District Munsif, Tenkasi.
2. Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the respondent Nos.1 to 4 and notice to respondent Nos.5 to 15 is dispensed with as they remained ex-parte before the first appellate Court.
3. The parties are referred to hereunder in the same order as they were arrayed before the trial Court.
4. Pithily and precisely, succinctly and briefly the case of the plaintiff as stood exposited from the plaint could be portrayed thus:
The suit property belonged to the plaintiffs' ancestors. As per Ex.A2 dated 15.11.1954, a partition was effected among the co-sharers and the suit property was declared as an undivided one for the common enjoyment of all the co-sharers. while so, the defendants without any manner of right have chosen to disturb the common enjoyment of the plaintiffs. and put up a 'thatti' so as to prevent the plaintiffs from enjoying the suit property. Hence, the suit for declaration and for prohibitory injunction including mandatory injunction.
5. Per contra denying and disputing, refuting and challenging the allegations/averments in the plaint, the fourth defendant filed the written statement before the trial Court, which was adopted by the defendant Nos.2,3,5 and 6; the gist and kernel of it would run thus:
Under Ex.A2, the suit property was not under the common enjoyment of the co-sharers. Despite the fact that the suit property was shown as a common property under Ex.A2, subsequently in the oral partition, among the descendants of Madasamy, the suit property was allotted to the share of the fourth defendant, who raised a room, where the fourth respondent and his family members are living. He also raised one other room on the southern side of the suit property and he is also enjoying it. The fourth defendant has been in possession and enjoyment of the suit property for over the statutory period and thereby acquired prescriptive title over it. Accordingly, he prayed for the dismissal of the suit.
6. The seventh defendant filed refutatory written statement disputing and challenging the averments/allegations in the plaint. According to the seventh defendant the suit property is not a common property of the plaintiffs and the defendants. Accordingly, he prayed for the dismissal of the suit.
7. The trial Court framed the relevant issues and during trial, the third plaintiff examined himself as P.W.1 and Exs.A.1 to A.4 were marked. On the side of the defendants, the fourth defendant examined himself as D.W.1 along with D.W.2 and Exs.B.1 to B.7 were marked.
8. The trial Court ultimately decreed the suit as prayed for.
9. Challenging the Judgment and decree of the trial Court, earlier one appeal suit was filed, whereupon the first appellate Court remanded the matter to the trial Court to appoint an Advocate/Commissioner to visit the suit property and note the physical features and report, and thereafter to decide the matter afresh on considering such report.
10. The trial Court also adhering to the directions of the first appellate Court, dealt with the matter by appointing an Advocate/Commissioner for the aforesaid purpose and on receipt of such report, the trial Court dealt with the matter further and delivered the Judgment once again in decreeing the suit on 23.06.1992. As against the said Judgment and decree of the trial Court dated 23.06.1992, A.S.No.81 of 1992 was filed before the Principal Sub Court, Tenkasi, which Court confirmed the Judgment and decree of the trial Court.
11. Being aggrieved by and dissatisfied with the Judgments and decrees of both the Courts below, the fourth respondent preferred this second appeal on the following main grounds among others:
The Judgments and decrees of both the Courts below are against law and weight of evidnece. They wrongly decreed the suit without referring to Ex.B7 patta. The Courts below failed to take note of the fact that there was oral partition among the family members during the year 1970 and also failed to uphold the prescriptive title acquired by the fourth defendant over the suit property. Accordingly he prayed for setting aside the Judgments and decrees of both the Courts below and for dismissing the original suit.
12. The following substantial question of law was framed by my learned Predecessor at the time of admitting this second appeal:
"Whether the Courts below erred in law and misdirected themselves in failing to advert to the appellant's claim of perfection of title by adverse possession and when the appellant had produced documents to sustain the said plea and more so when there is no contra evidence?"
13. Heard the learned counsel appearing for the appellant/fourth defendant as well as the learned counsel appearing for the respondent Nos.1 to 4/ plaintiffs.
14. The learned counsel for the appellant/ fourth defendant would draw the attention of this Court to the various documents filed on the side of the fourth defendant and advance his arguments to the effect that there was oral partition among the family members and in that the fourth defendant was allotted with the suit property, who even as early as in the year 1970, raised pacca superstructure, which was confirmed by the Commissioner as revealed by Ex.B5, the Commissioner Report dated 28.08.1989; over and above that Exs.B1 and B2, the house tax receipts relating to the houses constructed in the suit property, Ex.B3 series, the electricity bills, Ex.B6, the tax demand and Ex.B7, the proposed patta issued in the name of the fourth respondent relating to the suit property would all demonstrate that it was the fourth respondent, who raised construction and enjoying it as owner for a pretty long time; but both the Courts below failed to hold that the fourth respondent acquired prescriptive title over the suit property.
15. Whereas the learned counsel for the respondent Nos.1 to 4/plaintiffs by way of torpedoing the arguments of the learned counsel for the appellant/fourth respondent would draw the attention of this Court to the fact that all the exhibits marked on the side of the fourth defendant emerged only from the year 1989 onwards, whereas the suit itself was filed earlier i.e., in the year 1985; those documents, which emerged during the pendency of the suit are having no probative force of their own; the plea of oral partition is a farfetched one, which is quite antithetical to Ex.A4, the partition deed dated 14.11.1969, which emerged among the defendants and their relatives.
16. Indubitably and indisputably, incontrovertibly and unassailably the fact remains that the suit property as per Ex.A2, the partition deed dated 15.11.1954 was intended to be the common property of all co-sharers set out therein who were the ancestors of both the plaintiffs and the defendants. Virtually the co-sharers intended that they should enjoy the suit property jointly for ever. As such the onus of proof is on the defendants to prove that quite antithetical to the averments as found set out in Ex.A2, the co-sharers concerned decided otherwise at a later date. Ex.A4 is one other partition deed, which was effected among the descendants of Madasamy including fourth defendant. Madasamy was a party to Ex.A2 incontrovertibly.
17. The learned counsel for the respondent Nos.1 to 4/plaintiffs correctly highlighted that had really the co-sharers intended that the fourth defendant should be allotted with the suit property as his exclusive property, then even while effecting partition among the descendents of Madasamy under Ex.A4 itself, they would have chosen to specify those facts. But it was not done so. The plea of the fourth defendant that soon after the emergence of Ex.A4, there was a oral partition and in that the suit property was allotted in his favour appears to be really a farfetched plea, having no legs to stand and it is not buttressed or fortified by any evidence on record. The fourth defendant furnished his own self serving deposition in support of his case, which could be only taken as his ipse dixit and nothing more. In the absence of any evidence that the suit property was allotted to the share of the fourth defendant at the instance of the plaintiffs, there is no question of the fourth defendant claiming as though there was an oral partition and under that he started enjoying the suit property.
18. The plaintiffs also would specifically deny the alleged fact of the fourth respondent having been in possession ever since the year 1970. To the risk of repetition without being tautologous, I would refer to Exs.B1 to B7 including the Commissioner's Report, which all emerged during the pendency of the suit. There is nothing to indicate that in the year 1970 itself, the fourth defendant raised any such construction. Hence, in such a case, the plea of the fourth defendant that he has been in continuous possession ever since the year 1970 remains unproved. My mind is redolent with the decision of the Hon'ble Apex Court in P.T.Munichikkanna Reddy v. Revamma reported in (2007) 6 Supreme Court Cases 59 relating to adverse possession. Certain excerpts from it, would run thus:
"34. The law in this behalf has undergone a change. In terms of Articles 142 ans 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Bibi Sakina in the following terms: (AIR p. 1256, para 5) "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." (See also M. Durai v. Muthu (2007) 3 SCC 114 : (2007) 2 Scale 309.)
35. The aforementioned principle has been reiterated by this Court in Saroop Singh v. Banto stating: (SCC p. 340, paras 29-30) "29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC 376.)
30. '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. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita (2004) 1 SCC 271, SCC para 21.)"
36. In Mohammadbhai Kasambhai Sheikh v. Abdulla Kasambhai Sheikh this Court held: (SCC p. 386, para 4) "But as has been held in Mahomedally Tyebally v. Safiabai the heirs of Mohammedans (which the parties before us are) succeed to the estate in specific shares as tenants-in-common and a suit by an heir for his/her share was governed, as regards immovable property, by Article 144 of the Limitation Act, 1908. Article 144 of the Limitation Act, 1908 has been materially re-enacted as Article 65 of the Limitation Act, 1963 and provides that the suit for possession of immovable property or any interest therein based on title must be filed within a period of 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. Therefore, unless the defendant raises the defence of adverse possession to a claim for a share by an heir to ancestral property, he cannot also raise an issue relating to the limitation of the plaintiff's claim."
37. The question has been considered at some length recently in T. Anjanappa v. Somalingappa wherein it was opined: (SCC p. 577, para 21) "21. The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable."
(See also Des Raj v. Bhagat Ram (2007) 9 SCC 641 : (2007) 3 Scale 371 ; Govinammal v. R.Perumal Chettiar (2006) 11 SCC 600 : JT (2006) 10 SC 121.)
40. There is another aspect of the matter, which cannot be lost sight of. The right of property is now considered to be not only a constitutional or statutory right but also a human right.
41. Declaration of the Rights of Man and of the Citizen, 1789 enunciates right to property under Article 17:
"since the right to property is inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid".
42. Moreover, the Universal Declaration of Human Rights, 1948 under Sections 17(i) and 17(ii) also recognises right to property:
"17. (i) Everyone has the right to own property alone as well as in association with others.
(ii) No one shall be arbitrarily deprived of his property."
21. In addition to the cited Judgment the learned counsel for the respondent Nos.1 to 4/ plaintiffs cited the decision of the Division Bench of this Court in Goundappa Gounder and 2 others v. Periammal (died) & 6 others reported in 2005-2-L.W.442, which is also on the point that prescriptive title should be proved in the way known to law and one co-owner cannot simply pleaded prescriptive title as against another co-sharer.
22. It is a trite proposition of law that the plea of prescriptive title should be proved by the person, who tries to press into service such a plea. Over and above that if one co-owner pleads prescription, the onus is heavily on his part to prove that there was also ouster of other co-owners from the suit property. Here, the fourth defendant has not proved that he has been in possession and enjoyment of the suit property for over twelve years openly, uninterruptedly as owner hostile to the real owners after ousting them. The maxim "nec vi, nec clam, nec precario" (not by violence, stealth or permission) would also highlight the aforesaid proposition.
23. It is a well settled proposition that the possession by one co-owner tantamounts to possession by another co-owner. In such a case, simply because as per the Commissioner's Report, which emerged during the pendency of the suit, a building is found to be in existence, there is no presumption that the fourth defendant acquired prescriptive title over it. Both the Courts below gave the concurrent finding relating to those factual aspect of the case, after considering the oral evidence and all the documents placed before them.
24. The learned counsel for the appellant/ fourth defendant would try to canvass the point that the plaintiffs have not approached the Court with clear facts about the physical features of the suit property as they tried project as though the fourth defendant had put up only 'thatti' in the suit property, even though he raised a pacca house itself in the suit property, whereas the learned counsel for the respondent Nos.1 to 4/plaintiffs would submit that as on the date of filing of the suit, there was only a 'thatti', but the fourth defendant during the pendency of the suit raised such construction and got it projected before the trial Court with the help of the Commissioner as though he constructed such a building even before the filing of the suit.
25. The Commissioner could only take note of the physical features and he cannot give any finding as to when that building was constructed and for that matter the Commissioner also did not given any such finding. There should have been independent evidence, but here it is very clear that all the exhibits emerged only during the pendency of the suit. Hence, in this view of the matter, I could see no infirmity in the ultimate conclusion arrived at by both the Courts below. Accordingly, the substantial question of law is answered to the effect that both the Courts below have not committed any error in analysing the evidence including the evidence unsuccessfully adduced relating to adverse possession by the fourth defendant.
26. In the result, there is no merit in the second appeal and the same is dismissed, confirming the judgment and decree of both the Courts below. However, in the facts and circumstances of the case, there is no order as to costs.
smn To
1. The Principal Subordinate Judge, Tenkasi.
2. The District Munsif, Tenkasi.