Madras High Court
M. Velusamy And Ors. vs P. Kandasami And Anr. on 15 April, 1999
Equivalent citations: (1999)3MLJ692
JUDGMENT V. Bakthavatsalu, J.
1. The plaintiff is the appellant. The plaintiff filed the suit for declaration and possession and for mesne profits.
2. The case of the plaintiff is as follows: The property described as A schedule originally belonged to Venkatasubba Chettiar. He died in the year 1972 leaving behind him his son Kandasami, widow and daughter to succeed to his estate. In the partition between the heirs of Venkatasubba Chettiar, the property mentioned as A schedule has been allotted to one of the daughters namely Jayamanohari. On 23.1.1978, the plaintiff purchased the A schedule property for a valid consideration of Rs. 40,000 from Jayamanohari and the plaintiff has been in possession and enjoyment of the same. The first defendant occupied B schedule property which is part of A schedule property during the last days of Venkatasubba Chettiar and he has been running a tea shop. The occupation of B schedule property by the first defendant is illegal. The first defendant is bound to pay profits to the plaintiff. The plaintiff issued notice to the first defendant on 20.6.1978 directing him to surrender possession. The first defendant gave reply stating that the B schedule property belongs to the second defendant the Karur Municipality and that he had encroached on the property in or about in the year 1966. The contention put forward by the first defendant is not true. The B schedule property is not the property of Karur Municipality.
3. The case of the first defendant is as follows: The B schedule property is not situate in T.S. No. 1348/1. It is a separate property and it has nothing to do with the A Schedule property. The B Schedule property never belonged to Venkatasubbaraya Chettiar. The sale of B schedule property in favour of the plaintiff is false and the sale so far as it relates to B schedule property is not valid and binding on this defendant. The allegation that during the last days of Venkatasubbaraya Chettiar this defendant has occupied the B schedule property is false. The B schedule property is a portion of Dindigul road margin which is part of National Highways. In or about May, 1966, this defendant encroached the B schedule property and constructed a shed and put up water tap and electric light and he has been in enjoyment of the same, since then. This defendant has been in possession of B schedule property for more than 12 years to the knowledge of the plaintiff. The plaintiff is not entitled to declaration and possession and profits. The second defendant is colluding with the plaintiff as against the interest of Karur Municipality.
4. The case of the second defendant is as follows:
This defendant is an unnecessary party. The A schedule property is forming Part of T.S. No. 1248/1 as per Municipality Town Survey Records. The B Schedule property is the portion of A schedule property. The B schedule property is not owned by this defendant. The B Schedule property is assessed to tax under two heads. The superstructure tax bearing Assessment No. 8645 bearing D. No. 69-A is assessed in the name of the first defendant. The land over which the superstructure stands is assessed in the name of the plaintiff's predecessor in title. The taxes for the superstructure is paid by the first defendant separately and tax for the land is paid by the owner i.e., plaintiff separately. Therefore, there are two independent assessments for the property standing in B schedule. It is not correct to allege that the property is the property of the Municipality. On the North eastern south of T.S. No. 1248/1 is a triangular site bearing T.S. No. 1248/2 which alone is the Municipal property. The first defendant has not encroached into any portion as alleged by him from 1966. Only recently, just a few days ago, the first defendant has put up Pandal and it is a recent encroachment. The suit is liable to be dismissed for want of valid notice.
5. On the above pleadings, the trial court has framed 9 issues and one additional issue. On a consideration of oral and documentary evidence, the trial court has held that the plaintiff has got title to the property and that the suit B schedule Property does not belong to second defendant and that the first defendant failed to prove adverse possession and consequently, the suit was decreed as prayed for. Against the said judgment and decree, the first defendant preferred appeal in A.S. No. 15 of 1984. The appellate court namely, the I Additional District Judge by judgment dated 27.9.1984 allowed the appeal and consequently, the suit filed by the plaintiff was dismissed. The appellate court however has concurred with the finding of the trial court that the plaintiff is owner of the B Schedule property and that B schedule property did not belong to second defendant. But, on the question of adverse possession, the appellate court has come to the conclusion that the first defendant has perfected title to this property by adverse possession since he was in possession of the property for more than 12 years. Against the said judgment and decree, the plaintiff has come forward with this Second Appeal.
6. The following substantial question of law was formulated while admitting this Second Appeal.
Whether the lower appellate court is right in holding that a tenant in permissive possession can set up hostile title and adverse possession without surrendering permissive possession.
7. In the plaint, the entire property is described as A schedule. The B schedule is part of A schedule and it measures 13 1/2 feet north south on west and 15 feet on east and 18 1/2 feet east west on the southern side. The B schedule property measures 242 sq. feet. The plaintiff purchased the A schedule property from Jayamanohari under sale deed Ex.A-1 dated 23.1.1978 for a sum of Rs. 40,000. It is the case of the plaintiff that the property originally belonged to Venkatasubbaraya Chettiar and that in the partition, the A schedule property fell to the share of Venkata Subbaraya Chettiar and that after his death, Jayamoanhari released her right in respect of joint family property under Ex.A-3 dated 20.10.1972 and she was given the present A schedule in lieu of her release. Both courts have concurrently held that the suit property belongs to plaintiff and his predecessor in title. Though the first defendant contended that B schedule property belongs to Karur Municipality, the said contention was negatived by the Courts below. In fact, the second defendant Municipality does not claim any title to B schedule property. Both courts on the pleadings and oral and documentary evidence have come to the conclusion that the suit property belongs to the plaintiff's predecessor in title and that the second defendant Municipality has notice to the same. The above concurrent finding of the courts below have become final and as such, the finding of the courts below that the plaintiff is owner of the suit property have to be upheld.
8. The appellate court negatived the claim of the plaintiff only on the ground that the first defendant has prescribed title to the suit B schedule property by adverse possession. Learned Counsel for the appellant plaintiff contended that the first defendant has not come forward with a consistent plea on the question of adverse possession and that the first defendant has not established necessary requisite for acquiring title by adverse possession especially "animus" and that there are no materials to show as to when adverse possession had commenced.
9. On the other hand, it is seen from the evidence that the first defendant was in possession of the property belonging to Venkatasubbaraya Chettiar and in respect of the same, he issued notice under Ex.B-1 on 12.1.1971. The above notice is issued in respect of property situate in S. No. 1248 bearing D. No. 69-A. It is stated in the above document that the first defendant is in possession of the property as tenant from 19.8.1965 and that he did not pay rent and that therefore, he should vacate and handover possession on or before 31.1.1971. But the first defendant issued reply under Ex.B-2 stating that he already surrendered possession to Venkatasubbaraya Chettiar and that thereafter he occupied adjacent place which belongs to Municipality and that he has constructed the shed. It is alleged in the above notice Ex.B-1 that the first defendant should vacate the property on or before 30.4.66 and that he is no more a tenant under Venkata Subbaraya Chettiar from 30.4.1966. It is, thus, seen that the first defendant has come forward with the plea that he was in possession of some other property as tenant under Venkatasubbaraya Chettiar and that after vacating the same he occupied B schedule property as an encroacher. Learned Counsel for the respondent contended that the first defendant has set up a plea with regard to B schedule property clearly in Ex.B-2 and that it is not pleaded by the plaintiff in the plaint that the first defendant was a tenant and that the possession of the first defendant commenced from the month of May, 1966 and that therefore, he was in possession for more than 12 years before the date of the suit.
10. The fact that the first defendant was a tenant under Venkatasubbaraya Chettiar with regard to D. No. 69-A and that he issued notice to vacate the same has not been pleaded in the plaint. Similarly, the first defendant also has not pleaded in the written statement that he was in occupation of adjacent property as tenant and that he vacated the same in the year 1966. The trial court has observed that the first defendant has not chosen to examine any other witness to speak to the fact that within the period of six months from the date of lease, he has surrendered possession of the property to the original owner. Even though, there is no evidence to prove as to when the first defendant vacated the property and surrendered possession in respect of the portion leased out to him by Venkatasubbaraya Chettiar the first defendant can show that he is in possession of B schedule property adverse to the knowledge of the plaintiff and his predecessor in title from a particular time. Now the question that has to be considered is whether there is acceptable evidence to show that the first defendant has been in possession of the property for well over the statutory period.
11. For proper appreciation of the rival claims, it would be useful to refer to the Commissioner's plan and report. In the plan Ex.C-5, the portion shown as ADCE is the suit property. On the west of the said property, is the property comprised in T.S. No. 1248/1 on the east of the suit property is the National Highways. The Commissioner has observed that the defendant's petty shop and tea stall are well within the suit property. The plaintiff has filed Ex.A-7, the extract of Karur Town Register No. 1248. The first defendant has also filed Exs.B-3 to B-42 the tax receipts and Exs.B-44 to B-81, the bills issued by the municipality from the year 1974. Exs.B-85 to B-128 are the Electricity bills and Exs.B-129 to B-135 are the bills for water charges. Exs.B-136 to B-144 are the receipts issued to first defendant by Karur Municipality. The suit for possession is based on title. The plaintiff is entitled to possession, unless it is shown that the first defendant has perfected title by adverse possession. Under Article 65 of the Limitation Act, the plaintiff is entitled to recover possession within the period of 12 years from the date when possession of the defendant became adverse. The appellate court has held that the earliest receipt Ex.B-3 is dated 27.6.1967 and that it is proper to conclude that the first defendant should have been in possession of the B schedule sometimes earlier to it. Relying upon the decision reported in Ambika Prasad Thakur v. Ram Ekbel Rai A.I.R. 1966 S.C. 605, the appellate court has observed that Illustration of 114(d) of Evidence Act can be invoked in this case. It has to be stated at this stage that the first defendant has not given particulars as to when exactly adverse possession commenced. In the written statement, in paragraph 10, the first defendant has stated in or about May, 1966, the defendant has encroached into the B schedule property and constructed as shed. In paragraph 11, it is stated that the defendant has been in possession for more than 12 years to the knowledge of plaintiff and others. The trial court has held that the suit is filed on 7.8.1978 and that even assuming that the first defendant has been in possession of the property from 27.6.1967 as per Ex.B-3, it cannot be said that the first defendant has perfected title by adverse possession since the period of 12 years had not elapsed. The finding rendered by the trial court in my view is based on proper appreciation of evidence. The appellate court has committed error in calculating the period of adverse possession. In paragraph 9, the appellate court has observed that a perusal of Ex.B-1 dated 12.1.1971 would show that the first defendant has been in occupation of the suit property even from 1965. On a careful reading of Ex.B-1, it is clear that Venkatasubbaraya Chettiar did not admit that the first defendant has been in possession of the B schedule property from the year 1965. On the other hand, in Ex.B-1, it is only stated that the first defendant is a tenant from 19.8.1965 in respect of shed in D. No. 69-A, It is not the case of the defendant that he entered into the B schedule property even in the year 1965. Therefore, the finding of the appellate court that in Ex.B-1, it is admitted that the first defendant has been in occupation of the suit property even from the year 1965 is patently erroneous. In the same paragraph, the appellate court has given another erroneous finding. It is held by the appellate court that Venkatasubbaraya Chettiar has admitted in Ex.B-1 that the first defendant has been in possession even earlier to that date. Regarding Ex.B-3, the appellate court has held that the property is assessed in the year 1967 and that it is proper to conclude that the first defendant should have been in possession of the B Schedule property sometime earlier to it. It is no doubt true that in appropriate cases inference of continuity of thing or state of things backwards may be drawn under Section 114(d) of the Indian Evidence Act. But the above presumption is only returnable. Ex.B-3 will show that the property tax was assessed for D. No. 69-A on 27.6.1967 for the half year period ending with September, 1967. Therefore it is clear that above notice relates to 1967 half year. It would not show that the property tax was assessed for the period prior to April, 1967. Absolutely, there are no materials to show that the first defendant was assessed to property tax in respect of B schedule property prior to Ex.B-3. In the above circumstances the findings of the appellate court that the first defendant could have been in possession of B schedule property much earlier to Ex.B-3 cannot be sustained.
12. It is well settled that the defendant who set up by adverse possession must aver as to when his possession commenced. On this aspect, learned Counsel for the appellant relies upon a decision reported in S. Subba Reddiar v. Bhagayalakshmi Ammal and Anr. (1996) 2 L. W. 31. In the above decision, it is held that what was the adverse character and when it is started are only within the personal knowledge of the person claiming it and that he alone can plead his possession from the particular date. The fact that in Ex.B-2 the first defendant has stated that his possession commenced from the month of May, 1966 alone will not establish that the adverse possession commenced from May, 1966. The above reply notice B-2 was issued only on 22.1.1971 for the first time in the year 1971, it was brought to the knowledge of the plaintiff that the first defendant was claiming adverse title to B schedule property. The averments in the notice issued by parties alone will not establish the crucial fact since the averments in the notice are similar to pleadings. As already stated, there is no documentary evidence to prove that the first defendant was in possession of the B schedule property prior to the assessment notice Ex.B-3.
13. It is well settled that mere possession of the property is not sufficient to establish adverse possession. Learned Counsel for the appellant on this aspect relies upon a decision reported in Thakur Kishan Singh v. Arvind Kumar . In the above decision it is held thus:
Mere possession irrespective of length of time does not result in converting permissive possession into adverse possession.
14. It is, further seen that the first defendant did not admit title of the plaintiff and his predecessor in title. On the other hand, the first defendant has set up title in second defendant municipality. It is the specific case of the first defendant that the property belongs to second defendant and that he encroached into the B schedule property. It is contended by the learned Counsel for the appellant that the first defendant has not established "animus" to possess the property adversely to the knowledge of the plaintiff. There is no plea as to when the first defendant denied the title of the true owner and asserted adverse title. As already stated the pleadings in the written statement are bereft of particulars. Learned Counsel relies upon a decision reported in D.N. Venkatarayappa v. State of Karnataka , wherein it is held thus:
If the purchaser remained to be in possession in his own right de hors the title, necessarily he has to plead and prove the date from which he disclaimed the title and asserted possessory title as against the state and perfected his possession to the knowledge of the real owner viz., the state, such a plea not having been taken or argued nor any evidence adduced in that regard, the plea of adverse possession against the State cannot be accepted at all at this stage.
In Natesan v. Chinnachi Kandar , it is held thus:
Adverse possession means hostile possession while is expressed or implied in denial of title of the owner - such possession must be actual, exclusively, as a matter of right peaceful open uninterrupted and continuous.
Learned Counsel for the respondent relies upon a decision reported in Pavadai v. Chinnadurai Padayachi 1978 T.L.N J. 563, wherein it is held thus:
It is true, the main criterion for treating possession as adverse is the presence of the requisite animus. But, where the possession was open and exclusive and in assertion of one's own title, the fact that the possessor did not know as to who the true owner was and had no intention to claim adversely to him, it will not make the possession nonetheless adverse.
The above decisions will not apply to the facts of this case, since the first defendant has set up title in second defendant and denied the title of the plaintiff. Therefore, it is for the first defendant to aver as to when adverse possession commenced against the plaintiff and his predecessor in title. As already stated, mere possession of the property is not sufficient to constitute adverse possession.
15. The question whether or not defendant has perfected title by adverse possession would depend upon the facts and circumstances of each case. In this case, only in the year 1971 when the first defendant issued reply notice under Ex.B-2, it is brought to the knowledge of the plaintiff that the first defendant is claiming hostile title to B schedule property. Therefore, it can be reasonably inferred that the plaintiff came to know only in the year 1971 that the first defendant has set up adverse title. Under Article 65 of the Limitation Act, the suit cannot be said to be barred by limitation, since it is filed within 12 years from the date of Ex.B-3. Even assuming that the first defendant paid property tax to the B Schedule property from the date of Ex.B-3, the possession of the first defendant became adverse only from the year 1967. But the suit is filed in the year 1978 within 12 years from the date of Ex.B-3. Thus looked at from any angle, it cannot be said that the first defendant has established title by adverse possession.
16. Learned Counsel for the respondent contended that the finding of the appellate court on facts cannot be interfered with in the second appeal, unless it is shown that the findings are vitiated by any infirmity. In this context, he also relies upon a decision reported in Navaneethammal v. Arjuna Chetty . The Apex Court in the above decision has held that the appellate court has appreciated the evidence and has reached a conclusion and that even assuming that another view is possible on reappreciation of evidence that should not have been done by the High Court. The above decision will not apply to the facts of this case, since the appellate court has given erroneous finding with regard to averments contained in Ex.B-1 and the date of commencement of adverse possession. For the reasons stated above, I hold that the view taken by the trial court that the first defendant failed to prove adverse possession has to be upheld. I hold that the finding of the appellate court on this aspect of the case is not based on proper appreciation of facts and law. It is not the case of the plaintiff that the first defendant is in permissive possession of the suit property and that he has set up hostile. The substantial question of law as formulation by this Court has not been framed in accordance, with the pleadings in the grounds of appeal. It is seen from the ground of appeal that the appellant has challenged the finding of the appellate court that the first defendant has perfected title by adverse possession and that there is no animus for adverse possession. The appellate court has negatived the claim of the plaintiff only on the ground that the first defendant is in possession of B schedule property in his own right. As already stated, the finding of the appellate court on the question of adverse possession is not based on proper appreciation of evidence. Hence, I hold that the plaintiff is entitled to relief as prayed for.
17. In the result, the Second Appeal is allowed. The judgment and decree of the appellate court are set aside and the judgment and decree of the trial court are restored. No costs.