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R. Savarimuthu - died v. G. Subramanian - S.A. No.1543 of 1994 [2007] RD-TN 1713 (16 May 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated : 16/05/2007

Coram:

The Honourable Mr. Justice V. DHANAPALAN

S.A. No.1543 of 1994

1.R. Savarimuthu - died

2.T.M. Rajasekaran .. Appellants vs.

1. G. Subramanian

2. Ramaiah .. Respondents Second Appeal preferred under Section 100 of Civil Procedure Code against the judgment and decree dated 28.01.1994 made in A.S. No.447 of 1992 on the file of the Principal District Court, Trichy reversing the judgment and decree dated 29.09.1992 made in O.S. No.1187 of 1979 on the file of the Principal Sub-Court, Trichy.

For appellants .. Mrs. N. Krishnaveni For respondents .. Mr. S. Parthasarathy, Senior Counsel for M/s. Sarvabhauman Associates :JUDGMENT



This appeal is directed against the judgment passed by the Principal District Judge, Trichy reversing the judgment of the Principal Sub-Judge, Trichy.

2. The second plaintiff who is the husband of the first plaintiff in the suit is the appellant herein. Subsequent to the death of the first plaintiff, the second plaintiff was impleaded in the suit. The case of the first plaintiff, in nutshell, is as under:

3. The suit property originally belonged to one Muthukrishnan Pillai who had executed a will favouring his wife Sivakami Ammal according to which the said Sivakami Ammal has to enjoy the property for her lifetime after which the property should devolve on their daughters Rajalakshmi and Ponnammal. Accordingly, Rajalakshmi got her share of partition vide partition deed dated 27.12.1961 and from her, the first plaintiff purchased the suit properties. The first item of the suit property is located in S.No.1286 and the second item of the suit property is located in S.No.1287. After purchasing the suit properties by way of Sale Deed dated 24.01.1978 from Rajalakshmi for a sum of Rs.7,000/-, the first plaintiff has let out a portion of the property to third parties for rent, keeping the rest of the portion in a locked condition. Since a portion of the suit property was kept vacant, the first defendant, taking advantage of the same, encroached upon the properties with the aid of the second defendant. He further claimed right under a will executed by one Balasundaram Pillai which is not a valid will and also claimed adverse possession. The second defendant too encroached upon the suit property on the ground that the first defendant has let out the property to him and he is occupying the premises as a tenant. Hence, the suit for declaration of title, recovery of possession of the red marked portion in the plaint and for past income of Rs.1,125/- and also for mesne profits from the date of the suit till the date of recovery of possession.

4. The first respondent/defendant filed his written statement contenting that his property in S.Nos.1289, 1288 and 1382 and 1292 originally belonged to one Balasundaram Pillai and the first defendant is the daughter's son of Balasundaram Pillai; the said Balasundaram Pillai has bequeathed his property to the first defendant by way of will; the first defendant has also acquired the title to the property by adverse possession; his property is situated in S.No.1288 and the pathway to the said property is in S.No.1289; the said pathway leads to S.Nos.1288, 1282 and 1292 and he is not interested in S.No.1286 and 1287; the property let out to the second defendant belongs to the first defendant.

5. The first defendant filed his first additional written statement stating that he has not described the property properly and he has prescribed title to the property by adverse possession. In the second additional written statement filed by the first defendant, it was contended that by mistake he had stated in the earlier written statements that he was not interested in S. Nos.1286 and 1287 and actually, he is in absolute possession and enjoyment of part of S.Nos.1286 and 1287 and he came to know of this fact only after the Commissioner's report and survey plan were filed. The first defendant filed his third additional written statement once again contending as above.

6. The Trial Court, after framing of issues and consideration of the case of the parties, holding that the property belongs to Rajalakshmi absolutely and the first plaintiff has acquired the suit property from Rajalakshmi and after the death of the first plaintiff, the second plaintiff has the absolute right over the property, decreed the suit.

7. On appeal by the first defendant, the lower appellate differed with the stand of the Trial Judge and held that the suit property was in absolute possession and enjoyment of the first defendant and prior to the first defendant, it was Balasundaram who was the owner of the property and the first defendant has perfected title to the property.

8. On 10.01.1995, this Court, while admitting this appeal, formulated the following substantial question of law:

"When it is a settled proposition of law that the person who claims title by adverse possession should assert title in himself openly and in derogation of the title of the true owner for a continuous period of 12 years, is not the finding of the learned Principal District Judge regarding adverse possession contrary to law?"

9. Mrs. N. Krishnaveni, learned counsel for the appellants, in sum and substance, has contended that the lower appellate court, without relying upon any document, has concluded that the defendants have perfected title by adverse possession and that the second item of the suit property was not handed over to the plaintiff and the defendants were in possession of the property, thereby dismissing the suit.

10. In support of her contentions, the learned counsel for the appellants has relied on:

a. the judgment reported in (2001) 3 SCC 179 in the matter of Santhosh Hazari vs. Purushottam Tiwari (deceased) by LRs (para 15) "A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. . . . Expression of general agreement with the findings recorded in the judgment under appeal should not be device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal, the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law, if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. . . We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final courts of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now, the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one." b. the judgment of this Court reported in 1996 (1) CTC 699 in the matter of Natesan vs. Chinnachi Kandar & four others: (para 19) "As stated by me, the production of kist receipts, patta and documents relating to the agreements with the Mohanur Sugar Factory are not sufficient to accept the plea of adverse possession. Further, as pointed out by me, his plea for the benefit of Act 17 of 1978 leads to a conclusion with his case that he is in possession and enjoyment of the property as a lessee, namely, permissive possession. Moreover, in the written statement, he has not stated specifically that he has been in possession and enjoyment of the property adverse to the real owner. In the absence of specific pleading, any length of possession by the first defendant will not become adverse to that of the plaintiff. . ."

11. In addition to the above, further reliance has been placed by the counsel for the appellants on the following judgments: a. 2002 (5) CTC 147 - Chinnaponnu (died) and another vs Lakshmana Naidu & others

b. 2003 (1) CTC 271 - Rathinam Pillai vs. Chellammal and 9 others c. 2006-3-L.W.6 - Saroop Singh vs,. Banto & others d. 2006-2-L.W.829 - Ranganatha Padayachi vs. Seethalakshmi & 3 others

e. 2006-2-L.W.742 - Tmt. A. Vedanayagam & others vs. Annakili & 5 others

f. (2004) 1 SCC 551 - V. Rajeshwari (Smt.) vs. T.C. Saravanabava g. (2004) 10 SCC 779 - Karnataka Board of Wakf vs. Government of India & others

12. Per contra, Mr. S. Parthasarathy, learned Senior Counsel appearing for the respondents has contended that:

a. nowhere it has been stated as to which portion was rented out and which portion was locked;

b. no objection has been filed to the report of the Commissioner c. even in the plan, no mention is made regarding the portion of alleged trespass;

d. description of the property in Ex.A.2, Sale Deed, is not given either in the original plaint or in the amended plaint after remand; e. the filing of additional written statements has not evoked any reply statement by the plaintiff;

f. the plaintiff has miserably failed to prove the identity of item no.2 nor her entitle of the same

and on these grounds, the appeal has to be dismissed.

13. The learned Senior Counsel appearing on the side of the respondents, to add strength to his arguments, has relied on

a. Privy Council Judgment reported in AIR (34) 1947 Privy Council 15 (from Nagpur) (para 11)

"The essential fact is that Jankibai and her successors remained in possession of the property for some 40 years prior to the institution of the suit; and that they took possession under a claim of right adverse to the title of the appellant. In their Lordships' opinion, in these circumstances, the claim in the second suit is barred under Art. 144, Limitation Act. Their Lordships have not forgotten that at the trial, the plaintiff called two witnesses who asserted that Balwant, on grounds of compassion, had authorised Jankibai to remain in possession. This evidence, which seems inconsistent with the plaintiff's case that Jankibai was entitled to succeed as heir of her father, was accepted by the learned Subordinate Judge but rejected by the High Court in their judgment in the first appeal. Their Lordships are not prepared to accept the testimony of the grant of a verbal licence to explain 40 years' possession. For these reasons, their Lordships will humbly advise His Majesty that both appeals be dismissed. The only respondents who have appeared are Babu Rajaram and Gyanchand, respondents 3 and 4 in the first appeal, and the appellants must pay their costs."

b. the judgment reported in AIR 1998 SC 2549 in the matter of Chandrabhagabai & others vs. Ramakrishna & others: (para 10)

"So far as the plea of adverse possession by the defendants is concerned, it has been found by the Trial Court as well as the first appellate court that Suryabhan was not a tenant of the suit house and as he was in continuous possession of the suit premises for a period of 30 years and more prior to the date of the suit. He had occupied the same in his own right and consequently, he had become the owner of this property by adverse possession against the plaintiffs, especially, Narayan. Efforts made by learned counsel for the appellant-plaintiffs to show that Suryabhan had admitted that Narayan was the landlord both in 1942 when Narayan sought to insert his name in the municipal records as owner and also in 1958 when Suryabhan is alleged to have made an endorsement on the application of Narayan to the municipality that he was a tenant of the suit property since 20 years cannot be of any assistance to the appellants for the simple reason that none of these documents stand proved on the record of the present case as Suryabhan since deceased who is said to have given such a statement on endorsement before municipal authorities was not available for being confronted with the same for proving it and that statement was even otherwise not tried to be proved by the plaintiffs under Section 32 of the Indian Evidence Act. . . Consequently, it has to be held that Suryabhan had perfected his title to the suit rooms by staying for more than 30 years prior to the suit as owner thereof and being in adverse possession against Narayan. This finding reached by the Courts below and confirmed by the High Court also remains well sustained on the record of this case. This fact therefore, is answered in the affirmative in favour of the respondents and against the appellants." c. a judgment of the Karnataka High Court reported in 2002 (1) Civil LJ 454 in the matter of Azeez Khan vs. Anwar Pasha alias Khasim Khan and others: (para 15)

"When the plaintiffs have come out with a categorical case of permissive possession and have failed to prove the factum of permissive possession, as a corollary, the adverse possession has to be inferred and the ruling of the Supreme Court in AIR 1998 SC 2549 clearly applies to the facts of the case. The facts involved in the case clearly indicate that the plaintiffs' contention was that the defendant was a tenant. In earlier proceedings between the same parties, it was held that there was no relationship of landlord and tenant and that issue has become conclusive and was operating a res judicata. In the subsequent proceedings for possession, the plaintiffs were not permitted to contend the plea of tenancy. The defendant on the other hand contended adverse possession. As the plea of tenancy failed, it was held that the plea of adverse possession in such context is acceptable. In the present case also, the plaintiffs have failed to prove the plea of permissive possession on the other hand continued possession by the defendant and the attending circumstances corroborates his theory of adverse possession. Therefore, in that view of the matter, I find that the Trial Court has not property appreciated the evidence on record and also the proposition of law applicable."

14.I have given careful consideration to the findings of the Courts below and the submissions made by the counsel on either side and the rulings relied on by them.

15. It is seen that there are two items of properties, one situated in Survey No.1286 and another in Survey No.1287; Ex.A.2, Sale Deed is the document by which the first plaintiff has purchased the suit property from one Rajalakshmi for a sum of Rs.7,000/-; a portion which was purchased by the first plaintiff has been let out for rental purpose and some of the portions were kept under lock and key; thus, the appellants/plaintiffs claim their right on the basis of Ex.A.2, Sale Deed. It is further seen that the first defendant, grandson of Balasundaram Pillai claims right under a will executed by him and he claims adverse possession as well; in this case, the validity of the will dated 08.07.1979 is in dispute. The cause of action is shown to be on 15.05.1979. The second defendant had encroached upon the property stating that the first defendant had let it out to him and that he is a tenant under the first defendant. From the records, it is also seen that the suit property originally belonged to one Muthukrishnan Pillai and on 12.09.1948, he had executed a will in favour of his wife Sivagami and as per the said will, she has to enjoy the property for her life and after that, the property should devolve on their daughters, Rajalakshmi and Ponnammal. On 27.12.1961, Rajalakshmi and Ponnammal have divided their property by way of a partition deed and accordingly, from the said Rajalakshmi, the plaintiff has claimed the suit property. On the other hand, the claim of the first defendant is that he is the daughter's son of Balasundaram Pillai from whom he has acquired the property in S. No.1288 and a pathway in S.No.1289 by way of a will. He has also claimed right as legal heir of Balasundaram Pillai through will and also claiming title by way of adverse possession. His specific case is that he is not concerned with S.Nos.1286 and 1287. It is further seen that on 27.08.1987, an additional written statement was filed contending that the property was not described properly and no measurement was given to the property and the first defendant has prescribed title to the property by adverse possession. On 14.04.1988, another additional written statement was filed contending that the properties were in possession of the first defendant and the predecessors in title and they are in absolute possession and enjoyment of the same and have also prescribed their title; that in the earlier statement, it was wrongly contended that the first defendant is not claiming any right in S. No.1286 and 1287 and actually, he was under the impression that he is in possession of S. Nos. 1282 and 1287 and therefore, now wanted to claim right in S.Nos.1286 and 1287. According to him, the reason for that claim is that he had knowledge of this only after the Commissioner's report and survey plan were filed.

16. As for adverse possession, law is well settled that a person claiming adverse possession should have to first admit the title of the real owner and should claim right on the property on the basis of his possession and he should be in possession of the property with an intention to hold by adverse possession to the real owner. In the instant case, the first defendant has not admitted the title of the real owner and has also miserably failed to prove that he had been in possession continuously for more than the statutory period with the intention to hold it adverse to the real owner. As already stated, the first defendant claims the suit property under a will executed by Balasundaram Pillai and that Balasundaram Pillai has perfected his title by adverse possession. But, in the original written statement filed by him, he claims that Balasundaram Pillai acquired the property through the will dated 20.05.1953 executed in his favour by one Sadasivam Pillai and the said Balasundaram Pillai had executed the will dated 08.03.1979 and by virtue of the said will, the first defendant is entitled to the suit property and he claims adverse possession of the property on the strength of his possession. From the pleadings, it could be observed that the first defendant has taken inconsistent pleas and both of his claims will not go together. As the first defendant has claimed both the title to the property by will and also on adverse possession, his claims cannot stand. In other words, if it is his claim for declaration of title on the strength of the will, then, his claim for adverse possession cannot be sustained. The continuous contradictory stand taken by him and his being not sure of what survey nos. he is having a right over and his filing of three additional written statements, all these go to show that the first defendant is not sure of his ownership and possession of properties. Thus, his claim for title to the property both by will and also by adverse possession cannot stand and it is seen that the Trial Court has rightly taken note of the fluctuating stand of the first defendant and has decreed the suit and this aspect of the matter has not been looked into in a proper perspective by the lower appellate court. Based on Ex.A.2, Sale Deed and Partition Deed in Ex.A.7 and also Ex.A.18 for Door No.79, the Trial Court has given a finding that the suit property originally belonged to Muthukrishnan Pillai and from him, it devolved on his wife Sivagami and then on their two daughters namely Rajalakshmi and Ponnammal and Rajalakshmi has perfected title based on the partition deed. Thus, it is clear that the case of the plaintiff is supported by material evidence and as such, there is no legal infirmity with the findings of the Trial Court.

17. According to the lower appellate court, Balasundaram Pillai has paid tax receipts and the same have been proved by the evidence of P.W.3. But, it is to be noted that a mere one line answer in the cross-examination of P.W.3 will not confer Balasundaram Pillai's title to the suit property by adverse possession. A number of documents relied on for this purpose in Exs.B.3 to B.63 relate to Door No.79 and not to the suit property in Door No.78. The conclusion arrived at by the lower appellate Judge that the first defendant is entitled to the suit property by giving credence to the tax receipts pertaining to some other door no. and giving the benefit of adverse possession in favour of the first defendant cannot be sustained. That apart, in Ex.B.2, it is specifically stated that the property belongs to Balasundaram Pillai and therefore, he has treated the property as his own and perfected title to the property. But the lower appellate court has not given any findings as to how this property has been given to the first defendant. Even assuming that Balasundaram Pillai has perfected title, that will not benefit the first defendant in view of the fact that no finding has been given by the lower appellate court as to the validity of the will executed by Balasundaram Pillai. Thus, in the absence of any piece of evidence to arrive at a conclusion as to how the first defendant has become the owner of the property or as to how he has possessed the property, the claim of the first defendant that Balasundaram Pillai was residing in the suit property for more than 30 years cannot have legs to stand because of the settled law that mere possession will not confer title by adverse possession as it must be hostile to the real owner. There is no pleading or proof as to from which date the possession of the first defendant has become adverse to the real owner. In the absence of any such pleading or proof, the claim of the defendant has to fail.

18. Finally, it would be pertinent to answer a query raised by the learned Senior Counsel for the respondents who has relied on a judgment of the Privy Council (supra) to show that if any person is in possession for more than 30 years, he is entitled to the suit property by adverse possession and that the present suit is barred by limitation. It is to be noted that the above referred to judgment of the Privy Council was rendered under Article 144 of the Limitation Act before 1963. Even though the plaintiff is having title to the property, it is the duty of the plaintiff to prove that he had been dispossessed from the property within the stipulated period only within 12 years of filing of the suit. But, after 1963, as per Article 55 of the Limitation Act, if the plaintiff proves his title to the property, the onus is on the defendant to prove that he was in continuous possession for more than statutory period and perfected title by adverse possession. In the case on hand, having failed in his attempt to prove his title by adverse possession, the defendants are liable to handover the possession of the property as the plaintiffs have proved their title to the property.

19. From the aforesaid discussion, it is clear that the finding rendered by the lower appellate court is not supported by any documentary evidence or the legal proposition laid down by the Supreme Court and the Privy Council that adverse possession has to be properly pleaded and proved and it must be hostile to the real owner. In that view of the matter, I hold that the lower appellate court has erred in giving finding that the respondents/defendants are entitled to the relief of declaration and recovery of possession and as such, the substantial question of law is decided in favour of the appellants. In view of the above findings, the judgment of the lower appellate court cannot be sustained. It is accordingly set aside; as such, the appeal stands allowed without any order as to costs.

cad

To

1. The Principal District Judge, Trichy

2. The Principal Sub-Judge, Trichy




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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