Madras High Court
Raju Naicker And Ors. vs Ekanathan And J. Thiruvengadam (Person ... on 30 April, 2004
Equivalent citations: AIR2004MAD465, AIR 2004 MADRAS 465
JUDGMENT N.V. Balasubramanian,J.
1. This Letters Patent Appeal is preferred against the judgment of learned Single Judge rendered in A.S.No.44 of 1983 dated 17.3.1998. Learned Single Judge by the judgment allowed the appeal preferred against the judgment and decree in O.S.No.5154 of 1974 on the file of City Civil Court, Chennai dated 15.7.1982. Against the judgment of the learned Single Judge, the plaintiffs in the suit have preferred this appeal. For the sake of convenience, the parties are hereinafter referred to as shown in the plaint.
2. It would be convenient to refer to an earlier judicial proceeding in which the suit property [Door No.31, Sami Chetty Street, Komlaswarpet bearing O.S.No.148, R.S.No.1168, C.C.No.440 within the sub-registration district of West Madras and registration district of Madras, measuring an extent of about 1 ground 946 sq.ft.) was the subject matter of the suit. We also refer to the genealogy of one Chidambara Naicker as parties in the present suit as well as in the earlier suit are the descendants of Chidambara Naicker and Chinnammal. The family tree is as under:
Chidambara Naicker =Chinnammal
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Alamelu ammal Rukmani ammal Molagammal Varadammal =Kolandavelu
=Kolandavelu
(died on Naicker Naicker Jayalakshmi 13.11.1959). =Janakiraman
Kuppammal D1 (Died) =Sabapathy
Naicker -------------------
Tiruvengadam Egaanathan
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D2 D-3
Raju Baby Ranga- Krishnan Subramanian
Naicker ammal nathan
(Plaintiffs)
The property originally belonged to Chidambara Naicker. Chidambara Naicker seems to have died prior to the year 1920 itself, and there is no evidence regarding the exact date of his death. However, it is seen from the document of sale dated 17.3.1920 (Ex.B-28), Chinnammal wife of Chidambara Naicker sold the property in favour of one Sabapathy Naicker. Sabapathy Naicker, purchaser of the suit property filed a suit in O.S.No.415 of 1920 on the file of City Civil Court, Chennai for delivery of possession and for arrears of rent and that suit was also decreed on 23.11.1921 (Ex.B-30). However, it is not clear that Sabapathy Naicker had executed the decree obtained by him in O.S.No.415 of 1920.
3. Kuppammal, the plaintiff in O.S.No.293 of 1960 on the file of City Civil Court, Chennai (hereinafter referred to as '1960 suit') filed a suit for declaration claiming her right in the suit property on the basis that Chidambara Naicker and Chinnammal had four daughters, namely, Alamelu ammal, Rukmani ammal, Molagammal and Varadammal and Kuppammal, the plaintiff in the 1960 suit is the daughter of Alamelu ammal. She has stated that her mother pre-deceased Chidambara Naicker, who is her maternal grandfather and her father Kolandavelu Naicker married her maternal aunt, Rukmani ammal and she was brought up by her grandmother, Chinnammal and Rukmani ammal, her maternal aunt and Varadammal had no issues and the other daughter of Chidambara Naicker and Chinnammal, namely, Molagammal had a daughter, Jayalakshmi and she was married to one Janakiraman and the defendants 2 and 3 in the present suit are the sons of Jayalakshmi and Janakiraman. Kuppammal, plaintiff in the 1960 suit claimed that Rukmani ammal and Varadammal had no issues and Varadammal died on 13.11.1959 and she was the sister's daughter of Varadammal and she was the surviving heir of the deceased Chidambara Naicker and the defendants 2 and 3 who are also defendants 9 and 10 in the 1960 suit were removed by one degree from her as they are sons of granddaughter of Chidambara Naicker. Kuppammal, plaintiff in the 1960 suit instituted the suit for declaration against one Krishnan on the ground that he was claiming title to the property and she had also impleaded the tenants in various portions of the suit property as they had stated that they would not pay rent to Kuppammal unless she established her title in the court of law. In the plaint filed in the 1960 suit, Kuppammal has stated that she was in possession of the suit property and Krishnan, first defendant in that suit, claiming right to the property was collecting rent. During the pendency of the 1960 suit, the defendants 2 and 3 herein who were the minors, were impleaded as parties to the suit in I.A.No.883 of 1960 by order dated 25.4.1961 and they were represented by their father, Janakiraman. The defence raised by the defendants 2 and 3 herein who are the defendants 9 and 10 in the 1960 suit was that Chidambara Naicker had no daughter by name, Alamelu ammal at all. Their case was that Chidambara Naicker had only three daughters and not four daughters as alleged in the plaint. They disputed the relationship of the plaintiff Kuppammal in the family of Chidambara Naicker on the ground that she was a stranger to the family.
4. Learned VII Assistant Judge, City Civil Court, Madras framed necessary issues and found, on the basis of evidence, that Chidambara Naicker had four daughters and Alamelu ammal, mother of Kuppammal, plaintiff in the 1960 suit was one of the daughters of Chidambara Naicker. The defendants 2 and 3 herein who are the defendants 9 and 10 in the 1960 suit alleged that their grandmother Molagammal and her sister Varadammal executed a will in respect of the suit property in their favour by a will dated 9.9.1947, but they did not produce the document. The trial Court in the 1960 suit found that there was no dispute that Chidambara Naicker had four daughters, by name, Alamelu ammal, Rukmani ammal, Molagammal and Varadammal and the plaintiff in the 1960 suit Kuppammal was the daughter of Alamelu ammal and on the death of last daughter of Chidambara Naicker, the plaintiff in the 1960 suit was entitled to the property. The trial Court decreed the suit and as against the judgment and decree of the trial court, an appeal was preferred before the learned Principal Sessions Judge, City Civil Court, Chennai in A.S.No.134 of 1963. Learned Principal Sessions Judge, City Civil Court, Chennai, by judgment and decree dated 4.7.1964 upholding the findings of the trial Court held that the plaintiff Kuppammal established that Chidambara Naicker had four daughters and his eldest daughter was Alamelu ammal and her daughter was the plaintiff Kuppammal and as nearest reversioner Kuppammal, the plaintiff in the 1960 suit would be entitled to the suit property.
5. The judgment and decree made in A.S.No.134 of 1963 on the file of City Civil Court, Chennai was the subject matter of appeal before this Court in S.A.No.145 of 1965. Though the appeal was preferred in the year 1965, on 12.10.1970, the defendants 2 and 3 herein who are appellants in that second appeal withdrew the second appeal and accordingly, this Court, by judgment dated 12.10.1970 dismissed the second appeal as withdrawn with the observation that the dismissal of the second appeal would not prejudice the appellants in the said appeal from agitating their rights, if any, in appropriate proceedings, if such proceedings are open to them in law.
6. It would also be pertinent to refer to the finding rendered by the trial Court which was confirmed by the first appellate Court that the plaintiff in the 1960 suit was in possession of the suit property on 18.8.1962. The finding was rendered and was also required to be rendered as the suit instituted by Kuppammal-plaintiff was in the year 1960 when the Limitation Act 1908 was in force and under Article 142 of the said Limitation Act, a suit for possession of immovable property should be filed by the plaintiff within twelve years from the date of dispossession or discontinuance. In so far as Article 144 of the said Act is concerned, it is a residuary Article and the period of limitation was twelve years from the date when the possession of the defendant became adverse to the plaintiff. Hence, it was necessary for the Court to find out whether the plaintiff was in possession of the suit property within a period of twelve years prior to the date of institution of the suit. While considering the question, the trial Court, in the 1960 suit, on appreciation of evidence, found that the plaintiff Kuppammal was in possession of the suit property as she was residing in the suit property. The trial Court also found that Janakiraman, father of the defendants 9 and 10 in the 1960 suit and who are the defendants 2 and 3 herein was not residing in the suit property. In that suit, the defendants 9 and 10 remained ex parte as an ex parte decree was passed against them on 10.4.1962. Janakiraman, father of the defendants 9 and 10 in the 1960 suit filed a petition to set aside the ex parte decree and in that petition, he described the address of the plaintiff Kuppammal as the suit property. The summons was taken to the plaintiff in the 1960 suit showing the address as the suit property which was served on 18.8.1962 on the plaintiff Kuppammal. The said notice was marked as Ex.A-4. The trial Court also noticed the affidavit filed along with the petition to set aside the ex parte decree wherein Janakiraman has stated that he was residing in Surapattu village and by his own admission, the trial Court came to the conclusion that he was not residing in the suit property. The trial Court found that the plaintiff Kuppammal was in possession of the suit property within 12 years prior to the date of suit and the said finding was challenged before the Principal Sessions Judge, City Civil Court in appeal. Learned Principal Sessions Judge found that the father of the defendants 2 and 3 who are defendants 9 and 10 in the 1960 suit, in spite of his admission that he was residing in Surapattu, created documents, namely, Corporation tax receipts from the year 1952. Learned Principal Sessions Judge, on the basis of the evidence of D.W.2 Kannan that the first defendant Krishnan did not reside in the suit property, came to the conclusion that the plaintiff in the 1960 suit occupied a portion of the suit property besides the tenants who were in possession of the property. The said finding of the first appellate Court has also become final. Learned Principal Sessions Judge dismissed the appeal confirming the judgment and decree of the trial Court and the same has also become final.
7. Kuppammal, plaintiff in the 1960 suit died on 10.6.1968. The appellants who are the plaintiffs in this suit are the children of late Kuppammal. They instituted the present suit for recovery of possession of the suit property on 23.2.1974 on the ground that the defendants 1 to 3 trespassed into the suit property soon after the death of Kuppammal and they vacated old tenants and inducted new tenants. So far as the decree in the 1960 suit directing the tenants to pay rent into the Court is concerned, it is stated that police complaint was given and notice through lawyer was also issued to the defendants, and in spite of the same, they did not vacate the premises and the defendants 4 to 8 who are tenants refused to pay rent and hence, the plaintiffs filed the suit for a direction to the defendants to vacate and hand over possession of the suit property.
8. The first defendant in this suit is one Janakiraman who is the father of second and third defendants. He died during the pendency of the suit. The second defendant is a person of insane mind and a court guardian was appointed for him. The third defendant is the son of Janakiraman and other defendants are tenants in the property. The first defendant Janakiraman and the defendants 2 and 3 have filed separate written statements wherein they denied the relationship of Kuppammal, the plaintiff in the 1960 suit with the family of Chidambara Naicker. They again raised the plea that Chidambara Naicker had only three daughters and Alamelu ammal was not his daughter. They also raised a plea that they had perfected title over the suit property by adverse possession. They have stated that the decree obtained in the 1960 suit would not bind them and the suit is also barred by limitation.
9. Learned trial Judge found that Kuppammal was the legal heir of Chidamara Naicker and when the decree in the 1960 suit was passed on 16.1.1963, the present suit was filed within 12 years from that date. Learned trial Judge also found that notwithstanding the earlier sale in the year 1920, the 1960 suit was decreed which was confirmed in appeal and hence, the defendants could have produced the sale deed and contested the claim of the plaintiff in the 1960 suit as not sustainable. The trial Court came to the conclusion that the plaintiffs are the legal heirs of Kuppammal and they are entitled to the relief of declaration and the defendants are bound by the judgment and decree passed in the 1960 suit since Kuppammal was entitled to the property. The trial Court found that the defendants have proved that they have been in possession from the year 1965 and also held that the plaintiffs would be entitled to the relief as prayed for.
10. As against the judgment and decree of the trial Court, an appeal has been preferred before this Court and the learned Single Judge has considered the matter in detail and upheld the finding regarding the legal relationship of Kuppammal with Chidambara Naicker. Learned Single Judge found that the title to the suit property was claimed by the defendants 2 and 3 herein in the 1960 suit not only on the strength of will said to have been executed by Molagammal and Varadammal, but also as the nearest heirs of late Varadammal, one of the daughters of Chidambara Naicker. Learned Single Judge found that in the 1960 suit the said claim was negatived and it was found that Kuppammal was the granddaughter of Chidambara Naicker through his daughter Alamelu ammal. Learned Single Judge also found that the defendants 2 and 3 have failed to produce the will said to have been executed by Molagammal and Varadammal and the defendants 2 and 3 have no right over the suit property. Learned Single Judge also held that the proceedings initiated by Kuppammal in the year 1960 ended in her favour and in the said proceedings it was found that Kuppammal was entitled to the suit property and the first defendant had no right whatsoever to the suit property. The case of the defendants 2 and 3 denying the parentage of Alamelu ammal was also denied. Learned Single Judge found that no evidence was produced before the Court to take a different view from the view taken by the court earlier that Kuppammal was found to be in possession of the suit property as nearest heir of Chidambara Naicker through her mother on the date of filing of the suit and Kuppammal would be entitled to the relief for declaration of title to the suit property. The finding of the learned Single Judge on the question of title to the suit property in favour of Kuppammal as well as in favour of the plaintiffs is not challenged.
11. Learned Single Judge also held that the suit is not barred by res judicata and held that in the 1960 suit the relief sought for was only against the first defendant in the said suit and no relief was granted against the defendants 2 and 3 herein. Learned Single Judge referred to the decision of the Supreme Court Court in Mohd. S. Labbai v. Mohd. Hanifa and held that there was no executable decree in the 1960 suit as against the defendants 2 and 3 in the present suit and hence, the finding rendered cannot be held to be res judicata. Though the view of the learned Single Judge that there was no executable decree against the defendants 2 and 3 may not be correct as there was not only a decree for declaration of title in the 1960 suit, but the decree was also passed against all the defendants for costs and the decree in such circumstances would be executable against the defendants 2 and 3. However, we do not go into the question whether the present suit is barred by res judicata or hit by Order 2 Rule 2 C.P.C.
12. Learned Single Judge allowed the appeal and dismissed the suit only on the ground that the defendants 2 and 3 were residing in the suit property continuously from 1958 till the date of filing of the suit, namely, 23.2.1974. To record the finding that the suit is barred by limitation, learned Judge referred to the settlement deed dated 1.9.1941 (Ex.B-43). Learned Single Judge held that the mother of defendants 2 and 3 was living in the suit property permanently till her death when she died in the year 1946. He relied upon the notice issued by the Corporation of Madras demanding Corporation tax for the year 1958-59 and the acknowledgment received from the Corporation of Madras by Janakiraman and the receipt issued by the Corporation of Madras, Ex.B-21 for the period from 1.10.1960 to 31.3.1961. Learned Single Judge referred to the property tax demand notice dated 29.12.1963 (Ex.B-16) and also the certified copy of the notice issued to Kuppammal in the appeal, A.S.No.134 of 1963 on the file of City Civil Court, Madras (Ex.B-7) which was returned with an endorsement, 'no such person' and also Ex.B-8 notice which was served on Kuppammal on 27.8.1963. Learned Single Judge came to the conclusion that Kuppammal was not residing in the property on 27.8.1963. Learned Single Judge referred to various documents which are subsequent to 1963. He recorded a finding that the documentary evidence shows that the mother of defendants 2 and 3, by name, Jayalakshmi ammal resided in the property from 1941 to 1946. He also found that there is no documentary evidence to show that the defendants 1 to 3 resided in the suit property from 1946 to 1958. He also found that from 1958-59 till the date of filing the suit on 23.2.1974, the defendants 2 and 3 were residing in the suit property.
13. We have already noticed that in so far as property tax demand notices/receipts are concerned, they were subject matter of issue before the Civil Court in the 1960 suit and learned Principal Sessions Judge, City Civil Court who had an opportunity to examine the documents has recorded a finding that it was due to fraudulent design carried on by the father of defendants 2 and 3 that those documents were created to defeat the rights of Kuppammal and it is contradictory to the story of will set up by them. It is very well to remember that the receipts were produced as additional documents in the first appellate Court and the first appellate Court had the better opportunity to go into the question of genuineness of the documents as they were produced soon after these documents were issued by the Corporation. We are of the view that the finding of learned Principal Sessions Judge regarding the genuineness of the documents should be given due weight and cannot be slightly brushed aside. However, learned Single Judge has chosen to rely upon the receipts issued by the Corporation of Chennai to come to the conclusion that from 1958-59 the defendants 2 and 3 were residing in the suit property.
14. Mr. S.V. Jayaraman, learned senior counsel submitted that in the 1960 suit it was found that Kuppammal was residing in the suit property as on 18.8.1962 and the present suit was filed on 23.2.1974 and the defendants 2 and 3 could not have acquired title to the suit property by adverse possession. His submission was that the learned Judge has not adverted to the finding rendered by the trial Court in the 1960 suit as well as by the Principal Sessions Judge, City Civil Court, Madras in appeal that Kuppammal was residing in the suit property as on 18.8.1962 and overlooking the said finding, learned Judge came to the conclusion that the defendants 2 and 3 have perfected title by adverse possession. Learned senior counsel also submitted that the learned Judge relied upon the counter affidavit of Kuppammal dated 2.3.1964 (Ex.B-9) to come to the conclusion that she was residing in Mylapore, Chennai, but omitted to refer to the contents of the counter affidavit wherein Kuppammal has stated on oath that after the decree was passed, taking advantage of her loneliness in the house, Janakiraman, father of defendants 2 and 3 gave considerable trouble and forcibly threw her out of the house. She has in her affidavit referred to the complaint given by her against Janakiraman as well as Krishnan, first defendant in the 1960 suit before the police. She stated that the Sub Inspector of Police enquired and warned them and since she apprehended danger to her life, she started to live with her daughter at Mylapore, Chennai. Learned senior counsel submitted that the learned Judge has relied upon the address portion of the counter affidavit, but has not chosen to refer to the contents of the affidavit which explain the reason for Kuppammal to leave the suit house. Learned senior counsel submitted that in the 1960 suit the defendants would have raised a plea of adverse possession, had they been in possession of the suit property from 1942 onwards, but, on the other hand, the trial Court as well as the first appellate Court in the 1960 suit found that Kuppammal was in possession of the suit property on the date of filing of that suit itself. Learned senior counsel therefore submitted that the view of the learned Single Judge that the defendants 2 and 3 have perfected title to the suit property by adverse possession is not sustainable.
15. Mr. T.R. Rajagopalan, learned senior counsel for the respondents submitted that right from the inception of tenancy the defendants 2 and 3 were collecting the rent. He referred to the notice dated 2.11.1970(Ex.B-4) issued on behalf of the plaintiffs herein to various tenants directing them to pay rent wherein it was admitted that the tenants had not paid the rent to the plaintiffs. He submitted that in the notice it is clearly stated that the tenants should pay arrears of rent up to the date of notice. Learned senior counsel also referred to the reply sent by Janakiraman through his counsel to the said notice in Ex.B-5 dated 25.11.1970 wherein Janakiraman denied that he was a tenant. There is no evidence to show whether other tenants have sent any reply. But, in the reply dated 25.11.1970 the stand taken by Janakiraman was that Kannan referred to in the notice Ex.B-4 was a tenant under the defendants 2 and 3.
Mr. T.R. Rajagopalan, learned senior counsel referred to another notice dated 16.2.1972 (Ex.B-6) issued on behalf of the plaintiffs wherein the stand taken was that the tenants were persisting to pay rent to the defendants 2 and 3. Learned senior counsel also referred to the counter affidavit filed by Kuppammal in I.A.No.2594 of 1962 in O.S.No.293 of 1960 on the file of VII Asst. City Civil Judge, Madras (Ex.B-4) wherein she has stated that in spite of the order passed in I.A.No.663 of 1960 directing the tenants/defendants 2 to 8 to pay the rent into the Court, the defendants 2 and 3 were collecting the rent. Learned senior counsel submitted that the defendants 2 and 3 were exercising their right of possession by receiving the rent and the 1960 suit was only for the relief of declaration and not for possession. He therefore submitted that the defendants 2 and 3 have established that they have been in possession of the property from 1958 onwards and there is no proof at all to show that Kuppammal was residing in the property. He also submitted that though Kuppammal took a stand that there was an order of civil Court to deposit the rent into the Court in the 1960 suit, she did not take any further steps in pursuance of the said order and even after the decree in the 1960 suit the defendants 2 and 3 were receiving the rent. He therefore submitted that the defendants 2 and 3 have established that they were in possession of the suit property right from 1958. As far as the finding rendered in the 1960 suit is concerned, learned senior counsel submitted that what was required to be seen by the trial Court was whether the plaintiff Kuppammal was in possession on the date of institution of the suit, but the finding rendered by the trial Court as well as the first appellate Court that Kuppammal was in possession in the year 1962 is not a relevant and incidental finding and that finding cannot be taken advantage of by the plaintiffs for the purpose of computing the period of limitation. Learned counsel relied upon the decision of the Privy Council in SUBBAIYA PANDARAM v. MAHAMMAD MUSTAPHA MARCAYAR (ILR 46 Madras 751) and submitted that the relief of declaration would not arrest the claim for adverse possession. He also relied upon the decisions of the Supreme Court in Rajendar Singh and Others v. Santa Singh and Others and Balkrishnan v. Satyaprakash and Others (2001 AIR SCW 344) and submitted that obtaining a decree for declaration is not sufficient and unless the decree is executed and the defendant has been dispossessed, the possession of the defendant would become adverse to the plaintiff. Learned senior counsel relied upon the decision of this Court in D.V. JAGANNATHAN AND 5 OTHERS v. P.R. SRINIVASAN AND 5 OTHERS and submitted that constructive possession, that is, collection of rent, would be sufficient to establish that the defendants 2 and 3 are in possession and it is not necessary there must be physical possession of the property to claim adverse possession. Learned senior counsel submitted that the plaintiffs themselves admitted that the defendants 2 and 3 have been collecting the rent even after the 1960 suit and learned Single Judge was perfectly correct in holding that the suit is barred by limitation. He also submitted that there is no evidence to show that after the death of Kuppammal, the defendants 1 to 3 trespassed into the suit property and vacated the old tenants and inducted new tenants. Learned senior counsel therefore submitted that the judgment of learned Single Judge does not warrant any interference.
16. We have carefully considered the submissions of learned senior counsel for the appellants as well as learned senior counsel for the respondents. The only point that arises for consideration is whether the appellants are entitled to recovery of possession of the suit property as prayed for. As observed by learned Single Judge, there is no dispute and there are also documentary evidences to show that Jayalakshmi ammal, mother of defendants 2 and 3 was residing in the suit property from 1941 to 1946 when she died. There is also no proof to show that the defendants 1 to 3 resided in the suit property till 1958. The 1960 suit was filed on 27.1.1960 and the trial Court as well as the first appellate Court in the 1960 suit clearly found that Kuppammal, the plaintiff in that suit was in possession of the suit property within 12 years prior to that suit. Learned Principal Judge, City Civil Court, Chennai has also recorded a finding that Kuppammal and her sons occupied a portion of the suit property besides the defendants 2 to 8 in that suit who are the tenants. Learned Principal Judge also found that the appropriate remedy for Kuppammal was to file a suit for declaration of title as the tenants had admitted that they would pay rent to Kuppammal if she established her title in the court of law.
17. Learned Single Judge relied upon Ex.B-21, the receipt issued by the Corporation of Madras for the payment of tax by the second defendant for the second half year of 1961 and also Ex.B-16 dated 29.12.1963 which is the property tax demand notice for the second half year of 1962-63 to come to the conclusion that from 1958-59 onwards the defendants 2 and 3 have been residing in the suit property. We hold that the said finding is not sustainable as learned Judge has overlooked the finding in the 1960 suit that there was a fraudulent design committed by Janakiraman, father of the defendants 2 and 3 who had created documents for the payment of corporation tax from the 1952-53 to 1956-57 and that finding of learned Principal Sessions Judge, City Civil Court in the 1960 suit has become final and in the absence of any independent proof, we are of the view that it will not be safe to rely upon the property tax receipts for the subsequent years to arrive at a finding that the defendants 2 and 3 have been in possession of the suit property from 1959 onwards as the Court has already held that Janakiraman had committed a fraudulent design to obtain property tax receipts up to 1956-57 which was inconsistent with his own statement earlier made in the 1960 suit. The Corporation of Chennai would have issued the property tax demand notices/receipts for subsequent years following the entries found in the register for earlier years and the payment of property tax alone without any corroborating evidence to show that the defendants 2 and 3 were in possession of the property would not establish that the defendants 2 and 3 were in possession of the property from the year 1958-59. As far as demand for property tax for subsequent years is concerned, that would not help the defendants as we hold that the plaintiffs have established title to the suit property and if the defendants 2 and 3 claim adverse possession against Kuppammal, they must prove that they have been in possession of the suit property either physically or constructively for a period of 12 years prior to the institution of the suit excluding Kuppammal.
18. We also find that the learned Judge overlooked the earlier finding rendered by the trial Court on the basis of evidence in the 1960 suit that Janakiraman, father of defendants 2 and 3 admitted that Kuppammal was residing in the suit property. The original summons produced in the 1960 suit as Ex.A-4 would show that the summons in the petition to set aside the ex parte decree in I.A.No.2594 of 1962 in O.S.No.293 of 1960 was served on Kuppammal in the suit property address on 18.8.1962 and in the affidavit filed by Janakiraman in the said petition he has stated that he was residing in Surapattu village and Janakiraman also admitted that Krishnan, first defendant in the 1960 suit was not residing in the suit property. Only on the basis of those evidences, the trial Court in the 1960 suit recorded a finding that Kuppammal was in possession of the suit property within 12 years prior to the date of suit. Learned Principal Judge also affirmed the said finding and that has become final and operative as far as the parties to the suit are concerned and the plaintiffs in the present suit are claiming right under Kuppammal, the plaintiff in the 1960 suit, and the defendants 2 and 3, who were represented by their father, were parties in the 1960 suit and the said finding would bind the plaintiffs and the defendants 2 and 3 in the present suit. In SUPREME COURT EMPLOYEES WELFARE ASSOCIATION v. UNION OF INDIA the Supreme Court held as under:-
" The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened."
19. Learned Single Judge relied upon Ex.B-7 dated 8.7.1963 to come to the conclusion that since the notice in the appeal was not served on Kuppammal in the suit address, Kuppammal was not residing in the suit property on 8.7.1963. He also relied upon the affidavit filed by Kuppammal in Ex.B-9 wherein in the address portion she has stated that she is a resident of No.6, Power Mill 2nd Lane, Mylapore, Madras. However, learned Judge overlooked the contents of the affidavit as in paragraph-4 of the said affidavit, Kuppammal has stated as to what had happened after the suit instituted by her was decreed. She has stated that Janakiraman, father of defendants 2 and 3 gave troubles to her and she was forcibly thrown out of the house and she gave a police complaint and the police enquired and warned Janakiraman. She has also stated that apprehending danger to her life, she left the suit property and was residing with her daughter at Mylapore. In our view, learned Single Judge while relying upon the address portion in the affidavit, should have considered the entire affidavit including the portion of the affidavit stating reasons for her residing with her daughter and the reliance placed on one portion of the affidavit and ignoring another part of the affidavit is also not correct. Moreover, we are of the view that the documents subsequent to 18.8.1962 are not relevant. The present suit was instituted on 23.2.1974 and the defendants must establish that they have been in continuous possession and enjoyment of the suit property for a period of twelve years prior to the institution of the suit. Even assuming that the defendants 2 and 3 were in possession of the suit property from 1958 onwards, there is a break in their possession as Kuppammal was found to be in possession of the suit property as on 18.8.1962. We find that the documents filed by the defendants 2 and 3 show that their possession was subsequent to 18.8.1962, the date of service of summons on Kuppammal in the suit property and subsequent events are not of much relevance in considering the question whether the defendants 2 and 3 have perfected title by adverse possession. It is well settled under Article 65 of the Limitation Act, 1963, if the defendants 2 and 3 want to defeat the rights of the plaintiffs, it is for them to establish by evidence that they have been in possession adverse to the interest of the plaintiffs for a period of twelve years prior to the filing of the suit and if they fail to establish, the plaintiffs cannot be non-suited merely because the plaintiffs are not able to establish that they were in possession for a period of twelve years, when they have established their title to the suit property.
20. It is no doubt true that the earlier suit was filed only for declaration of title and the said suit was decreed on 16.1.1963 which was affirmed in appeal on 4.7.1964. The Supreme Court in BALKRISHNAN v. SATYAPRAKASH AND OTHERS (2001 AIR SCW 344) has held that passing of order of ejectment which was not executed and not acted upon, would neither cause dispossession of the defendant, nor discontinuation of his possession. The Supreme Court approved the decision of the Privy Council in A.S.S. Subbaiya Pandaram v. Mohammed Mustafa Maracayar (AIR 1923 PC 175) and held that unless the defendants have been actually dispossessed, a decree of declaration in favour of plaintiff does not prevent the statutory period from running. The Supreme Court in CHANDRAKANTABEN v. VADITAL BAPALAL held that there is no necessity that the party pleading adverse possession should be in actual physical possession. The Supreme Court held that constructive possession through tenants would be sufficient. We are of the view that the facts of the case stand on a different footing as Kuppammal was found to be in physical possession of the suit property as on 18.8.1962 and the said finding was arrived at on the basis of evidence.
21. We are unable to accept the submission of Mr. T.R. Rajagopalan, learned senior counsel that in 1960 suit which was instituted on 27.1.1960 there was no necessity for the trial Court to declare that Kuppammal was residing in the suit property as on 18.8.1962, the date of service of summons which was marked as Ex.A-4 in the 1960 suit as the Court was required to record a finding whether the plaintiff was in possession of the suit property within 12 years prior to the filing of the suit. Mr. T.R. Rajagopalan, learned senior counsel may be correct in his submission that the Court is not required to give a finding regarding possession subsequent to the suit, but when the trial Court recorded a finding based on evidence and admission of the father of the defendants 2 and 3 that Kuppammal was in physical possession of the suit property on 18.8.1962 which is a finding of fact, it can be safely concluded that Kuppammal was in physical possession of the suit property on 18.8.1962 and the said finding has been confirmed by the first appellate Court also. We are of the view that the finding rendered by the Civil Court cannot be ignored or sidetracked by the defendants 2 and 3 only on the ground that it was not necessary for the trial Court to record such a finding. We are of the view, when such a factual finding has been recorded regarding possession of the property by Kuppammal by the trial Court on the basis of evidence, the finding rendered by the civil Court should be taken into account for the purpose of determining the commencement for the claim of adverse possession. In our view, it will be appropriate to refer to the observation of the Calcutta High Court in BABINDRA KUMAR GHOSE v. EMPEROR (1910) ILR 37 Cal. 467) wherein the learned Chief Justice, Sir Lawrence Jenkins says as under:-
"As Jimutavahana with his shrewd common sense observes - 'a fact cannot be altered by 100 texts', and as his commentator quaintly remarks: 'If a Brahmana be slain, the precept "Slay not a Brahmana" does not annul the murder'."
22. Applying the same analogy, a finding of fact is a finding of fact notwithstanding the fact that it was not required to be made. We are of the view that though the Civil Court may not be required to render a finding regarding possession of the suit property subsequent to the institution of the suit, yet, as a matter of fact, if it has recorded a finding that Kuppammal was in possession as on 18.8.1962, that finding would bind the parties and cannot be ignored by the defendants on the ground that it was not necessary for the civil Court to render such a finding. It is pertinent to notice that Kuppammal might have given evidence in the present suit on the question whether she was in possession of the property, but she has passed away and the finding rendered that she was in possession of the suit property as on 18.8.1962 was arrived at on the basis of evidence and the circumstances also indicate that the trial Court was justified in recording the finding that Kuppammal was in possession of the property as on 18.8.1962. We are of the view that the finding rendered by the trial Court as early as on 16.1.1963 regarding possession of the suit property would not lose its importance and justification by mere passage of time as the plaintiffs who have instituted the present suit might not have been well aware of the state of affairs that prevailed in 1962 and the party who could have given the best evidence as to the state of affairs as on that date had passed away. Moreover, it is for the defendants to establish by acceptable evidence that they were in possession of the suit property at least right from February, 1962 onwards and their possession was adverse to the interest of Kuppammal. We are of the view, it is not permissible for the defendants to rely upon the statement made by Kuppammal prior to the decree that the defendants 2 and 3 were collecting the rent. The defendants 2 and 3 have not let in any evidence to show the exact area of the house in occupation of Kuppammal and the area of the house in occupation of the tenants. It is also relevant to notice the case of the plaintiffs that the defendants 2 and 3 have inducted their own tenants after the death of Kuppammal in the year 1968 and it is for the defendants to prove by evidence that the defendants 3 to 8 herein are old tenants and they were also parties in the 1960 suit and they continue to be the tenants and they have been paying the rent to the defendants 2 and 3 from January, 1962 onwards.
23. It is no doubt true that it is not necessary for the defendants to prove that they were in physical possession of the property. As held by this Court in JAGANATHAN, D.V. v. P.R. SRINIVASAN it would be sufficient for the defendants to establish that they were in constructive possession and the constructive possession can be established by collection of rent from the tenants of the suit property.
24. As far as notice dated 2.11.1970 (Ex.B-4) is concerned, there was no admission that the defendants 2 and 3 were collecting the rent and the stand taken was that the tenants were taking sides with the defendants 2 and 3 and putting off payment of rent to the plaintiffs and hence, the notice was issued calling upon the tenants to pay arrears of rent. A careful reading of the notice dated 2.11.1970 shows that there was no admission by the plaintiffs herein that the persons to whom the notice has been issued have been paying rent right from 1962 to the defendants 2 and 3, nor there was an admission that the defendants 2 and 3 have been collecting the rent. In the reply issued by Janakiraman, first defendant who died during the pendency of the suit, he has stated that he was not a tenant and Kannan to whom also Ex.B-4 notice was issued was not a tenant of Kuppammal, nor that of the plaintiffs. There is a conspicuous omission with reference to other tenants. He has not taken the stand that he has been collecting the rent, nor any reply was sent by the other tenants that they have paid the rent to the defendants 2 and 3 herein. The notice dated 16.2.1972 (Ex.B-6) does not improve the case of the defendants in any manner and the notice has been issued on the basis that they were new tenants calling upon them to attorney the tenancy and there was no admission that the tenants have been paying rent to the defendants 2 and 3 right from 1962. In so far as the statement that the tenants have been persisting in paying rent to the defendants 2 and 3 is concerned, the statement also cannot be taken advantage of by the defendants 2 and 3 as they failed to establish the period during which the tenants have been paying rent to them. As already observed by us, it is for the defendants to establish by acceptable evidence that the defendants 2 and 3 have been exercising their right of ownership over the suit property by collecting the rent from the tenants and there is no evidence from the defendants 2 and 3 to show that they have been collecting the rent from the tenants right from 1962 onwards. As a matter of fact, there is no documentary evidence from the defendants 2 and 3, except the two notices referred to earlier, that they have been collecting the rent from the tenants.
25. Learned senior counsel referred to the counter affidavit filed in I.A.No.2594 of 1962 in O.S.No.293 of 1960 wherein Kuppammal, the plaintiff in that suit has stated that in spite of the order of the civil Court in I.A.No.663 of 1960 dated 19.7.1960 the tenants have not paid the rent into the Court, but the defendants 2 and 3 herein have been collecting the rent. There is no evidence to show that subsequent to the decree the tenants have paid the rent to the defendants 2 and 3 herein and if the defendants claim that they had been receiving the rent from the tenants, it is for the defendants 2 and 3 to establish by evidence that the tenants have paid the rent to them. It is also relevant to notice that the case of the plaintiff that the defendants 2 and 3 have inducted new tenants after the death of Kuppammal on 10.6.1968. The defendants 2 and 3 should have established who were the old tenants and who were the new tenants or whether all of them were the old tenants and they have been paying rent to them. As a matter of fact, D.W.2 in his evidence has deposed that some of the tenants have vacated the portions in their occupation, though he has stated that he did not know who were all in the suit property. The defendants 2 and 3 have failed to establish that they had been collecting the rent from the tenants from the year 1962 or the portion of the property occupied by the tenants to substantiate their claim of adverse possession at least with reference to the portions tenanted by the tenants. We are of the view that the notice (Ex.B-4) does not show that there was an admission by the plaintiffs that the defendants 2 and 3 have received the rent. In our view, the admission must be clear and unequivocal and since it falls short of the necessary proof that the defendants 2 and 3 have collected the rent for the entire period from 1962, the defendants 2 and 3 should have adduced proof to cover the area uncovered by evidence. In our view, the learned Single Judge was not correct in holding that the defendants 2 and 3 have been in continuous possession from the year 1958 till the date of filing the suit, namely, 23.2.1974. Even assuming that the defendants 2 and 3 were in possession from the year 1958, their possession was neither continuous, nor uninterrupted as Kuppammal was found to be in possession of the suit property in the year 1960 as well as on 18.8.1962 and the latter date would be the starting point for limitation to file the suit. We are of the view that even assuming that the defendants 2 and 3 have been in possession of the suit property on and from 16.1.1963, the date of decree, that will be of no avail as they have to establish that they have been in possession and enjoyment of the suit property in adverse to the claim and interest of Kuppammal for a period of 12 years prior to the filing of the suit, which they failed as the suit filed on 23.2.1974 is within a period of twelve years from 18.8.1962, the date on which Kuppammal was found to be in possession of the suit property. Hence, we set aside the finding of learned Single Judge that the defendants 2 and 3 have perfected title to the suit property by adverse possession.
26. In the result, the judgment and decree of the learned Single Judge rendered in A.S.No.44 of 1983 dated 17.3.1998 is set aside and the appeal stands allowed and there will be a decree as prayed for. There will be no order as to costs.