A.K. Sivappa vs C.M. Krishnan

K. Gnanaprakasam, J.—The plaintiff is the appellant.

The Plaintiff filed a suit for declaration of his title and for possession and for permanent injunction. It is the case of the plaintiff that he had purchased the suit property from one B.Nagarajamurthy under the sale deed dated 1.9.1984 and his vendor exercised the right of ownership over the suit site along with other sites in different survey numbers. The Demand Register maintained by the local Muncipality shows the name of B.G.Balakrishnamurhy, father of the plaintiff''s vendor as the owner of the suit site and he was also paying tax to the Muncipality. B.G.Balakrishnamurthy , the original owner of the suit property died on 21.2.1978 leaving behind him his only son, the plaintiff''s vendor who sold the property to the plaintiff for valuable consideration and by virtue of the said purchase the plaintiff became the absolute owner of the suit property. The defendant has no right in the suit property. But he had occupied the suit property as a trespasser when the plaintiff''s vendor was away from the suit village. The defendant also obtained certain tax receipts from the Municipality by coercion. The defendant is only a trespasser in the suit property. It is further stated that the town portion where the suit property is situate is almost in ruins and because of that there was no inhabitant in the said area including the suit property. In the said circumstances, Municipality was also not collecting tax for the vacant site and therefore, the plaintiff would not pay the tax for the suit site. The plantiff''s efforts to get the possession of the suit property did not bear fruits and hence, he filed the suit.

The defendant in his written statement has stated that neither Nagarajamurthy nor his father Balakrishnamurthy were the owners of the suit property. At no point of time title was passed as to the plaintiff under sale deed dated 1.9.1984 obtained from Nagarajamurthy. It is the case of the defendant that the suit property originally belonged to Valajapet Municipality and the defendant entered into the suit property and taken possession of the entire property and had constructed a thatched house in a portion in the year 1970 and since then, he had been in possession and enjoyment of the suit property in his own right. He has been paying the house tax to the Municipality under the assessment No.3576. The defendant also obtained electricity service connection to the house in the year 1978 and in the year 1983, he had obtained water connection to the house. The name of the defendant''s name also appears in the electoral roll even in the year 1973. The house was given a door number 103 and subsequently, it was changed to NO.15. The father of the plaintiff''s vendor Balakrishnamurthy issued a notice on 6.8.1973 claiming right and also admitting the possession of the suit property by the defendant and the defendant denied his right orally. But on the other hand, Balakrishnamurthy admitted the possession of the suit property by the defendant and this defendant has been in continuous possession and enjoyment of the suit property from the year 1970 and therefore, he has perfected title by adverse possession. As long as Balakrishnamurthy was alive, he had not taken any action nor his son had taken any action against the defendant and they never asserted their title against this defendant, at least on and from 6.8.1973, the date on which they have issued a notice. The defendant''s possession was accepted as early as 6.8.1973 and the suit was filed on 17.12.1985 and therefore, the suit was filed only after 12 years from the date of notice and by that time, the defendant perfected title by adverse possession and therefore, the suit is not maintainable. The sale deed obtained by the plaintiff is only a sham and nominal document and the plaintiff was not a bona fide purchaser of the suit property for valuable consideration and thereby, prays for the dismissal of the suit.

he trial Court after analysing the evidence both oral and documentary , came to the conclusion that the plaintiff was the absolute owner of the suit property and the defendant has not perfected title by adverse possession and decreed the suit. On appeal filed by the defendant, the lower appellate Court accepted the case of the defendant by holding that the defendant had perfected title to the suit property by adverse possession and allowed the appeal. Aggrieved by the same , the plaintiff has preferred this appeal.

When this appeal was admitted, the following substantial questions of law were raised :

"1. Whether a finding of adverse possession without proper and specific pleading as to open, hostile and uninterrupted possession by the defendant is valid?

Whether a trespasser can perfect title by adverse possession? And

Whether a finding of adverse possession is sustainable without fixing the nature of entry of the defendant into the suit site?

Learned advocate for the appellant/plaintiff has submitted that the suit property was purchased by the plaintiff under the sale deed dated 1.9.1984 and prior to that, his vendor and his father were in possession of the suit property. In fact, the father of the plaintiff''s vendor, namely, B.G.Balakrishamurthy purchased the suit property under the sale deed dated 8.10.1941 (Ex.A.10) and his vendor Varadharajalu Chetty purchased the suit property from one Rengammal under the sale deed date 5.7.1941. These sale deeds would strengthen the case of the plaintiff that he and his predecessor in title were owners of the suit property and that they have been in possession and enjoyment of the suit property. It is also submitted that the father of the plaintiff''s vendor, namely B.G.Balakrishnamurthy himself had issued a notice to the defendant on 6.8.1973 (Ex.B.1) claiming that he was the absolute owner of the suit property and that the defendant had trespassed into the suit property and called upon the defendant to vacate from the suit property. The sale deed dated 5.7.1941 and 8.10.1941 and also the one in favour of the plaintiff, dated 1.10.1984 are not in dispute and therefore, the plaintiff is the absolute owner of the suit property. The plaintiff further submitted that he had been paying house tax to the suit property and the same is evidenced by Exs.A.2 to A.4 . That in the year 1986, the Municipality gave a notice to the plaintiff calling upon him to pay the tax and these things would go to show that the plaintiff is the owner of the suit property and he is entitled to get possession of the suit property.

On the contrary, learned advocate for the respondent/defendant has submitted that the plaintiff is not a bona fide purchaser of the property for valuable consideration and the sale itself is only a sham and nominal one. Even prior to the purchase of the suit property by the plaintiff, the defendant was in possession of the suit property and in fact, in the notice issued by the plaintiff on 6.8.1973, the father of the plaintiff''s vendor himself had admitted that the defendant had trespassed into the suit property and he has been in illegal possession of the same and only in the said circumstances, he was called upon to vacate and deliver the possession of the suit property.

Placing reliance upon Ex.B.1, which is marked by the defendant it is stated that on the date of notice itself, i.e.6.8.1973, the defendant was in possession of the suit property and the suit was filed only on 17.12.1985 (i.e) after 12 years, after the issuance of the notice and it is a clear case that the defendant had been in possession of the suit property for more than 12 years and that he had been in possession of the suit property in his own right as a owner and therefore, he had perfected title by adverse possession. In this connection, the defendant also relied upon the averments made in para 7 of the written statement, wherein it is stated that "since 1970 onwards, he has been in continuous possession and enjoyment of the suit property." In fact, the defendant had stated that "This defendant continued to be in possession of the said property in assertion of his own right, title and interest and in denial of any title of either Balakrishnamurthy or Nagarajamurthy or Sivappa and to their knowledge and adverse to their interest of the above said persons. " Thus the defendant had perfected title by adverse possession.

Learned advocate for the defendant further submitted that the sale obtained by the plaintiff is sham and nominal for the reason that on the date of purcahse of the suit property by the plaintiff , the defendant was in possession of the suit property and the same was not notified in the sale deed. That apart, admittedly, Balakrishmurthy who was the erstwhile owner died leaving behind him not only his son Nagarajamurthy but also his wife Lakshmi and daughter Gajalakshmi . In fact, a suit was filed by one V.A.Perumal against B.G.Balakrishnamurthy and others in O.S.No.48 of 1974 on the file of Subordinate Judge, Vellore. Balakrishnamurthy died during the pendency of the said suit and his legal representatives , namely, his wife Lakshmi and daughter Gajalakshmi were brought on records as defendants 10 and 11 in the said suit and his son Nagarajamurthy was already there as second defendant in the said suit. While so, the plaintiff had not chosen to have a sale deed from Lakshmi and Gajalakshmi. But, however, in his evidence, P.W.1 had stated that the wife and daughter of Balakrishnamurthy had executed a release deed in favour of the plaintiff and the same was not filed in the Court. Hence, the sale in favour of the plaintiff is sham and nominal and all the owners of the suit property have not joined in the execution and the sale was not for proper consideration. The so called release deed said to have been executed by Lakshmi and Gajalakshmi were also not forthcoming.

But the plaintiff in his evidence would state that after the issuance of the notice in the year 1973, the defendant vacated the suit site in the year 1974 .But there is nothing in writing to prove the same. The same was also not pleaded in the plaint. But on the other hand, the plaintiff also had admitted in his evidence that even after the defendant vacated, there was a hut in the suit property. The plaintiff also would admit that there is an electricity service connection to the hut in the suit property and also water connection and they were all taken by the defendant and the same was not objected to either by Balakrishamurthy or by his son Nagarajamurthy. These things would clearly goes to show that the defendant has been in actual and physical possession of the suit property and the very fact that he has been in possession of the property, atleast from the year 1973 in denial to the rights of the plaintiff''s vendor and the same is evidenced from the notice dated 6.8.1973. In fact, the defendant also clearly pleaded in his written statement that "This defendant has been in possession of the suit property as of right and in denial of plaintiff and his vendor''s title and to the very knowledge for more than the statutory period and thus this defendant had perfected title to the said property by adverse possession."

Learned counsel for the respondent/defendant further submitted that Balakrishnamurthy who is the father of the plaintiff''s vendor, who had issued the notice to the defendant on 6.8.1973, had not chosen to take any action against the defendant to vacate the suit property during his life time. Learned advocate has further submitted that the defendant''s name has been entered in the voters list in the year 1973 itself. The defendant has also been paying the house tax to the house in the suit property and also paying electricity charges.

Reverting back to the case of the plaintiff, learned advocate for the plaintiff relied upon the decision in the case of IRDIRA (Appellant) VS ARUMUGAM AND ANOTHER (Respondents) reported in 98 M.L.J (S.C.) 49. In the said case, the plaintiff has filed the suit for possession based on title and it was held that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence, unless, the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited.

The next case relied on by the counsel for the plaintiff is the decision reported in 1999 II M.L.J. 367 in the case of N.BALASUBFRAMANIA PATTAR AND ANOTHER (Appellant) VS S.KANDASAMY PATHAR (died) AND OTHERS (Respondents). In this case, the plaintiff had a settlement deed in his favour and there was no clause in the settlement deed for revocation by the settlor . But however, the settlor revoked the settlement deed and in the said circumstance, it was held that since there is no power reserved by the settlor to revoke the settlement deed, the revocation of the settlement deed is not valid and the suit was also filed within 12 years from the date of forcible occupation and therefore, the defendant has not perfected title by adverse possession.

The next case relied on by the learned advocate for the plaintiff is the decision reported in 1999 (III) M.L.J.692 in the case of M.VELUSAMY AND OTHERS (Appellants) VS P.KANDASAMI AND ANOTHER ( Respondents). In this case, it was held that the defendant who sets up adverse possession must aver as to when his possession commenced. In the absence of any plea in the written statement, the defendant cannot assert adverse title.

The next case relied on by the advocate for the plaintiff is the decision reported in 2000 (3) M.L.J. 773 in the case of MR.GOVINDARAJULU, REPRESENTED BY HIS POWER OF ATTORNEY AGENT, G. RADHAMMA (Appellant) VS K.SUBRAMANIAM (Respondents). This case is entirely different as the suit was filed by the landlord for declaration and for recovery of possession and the defendant denied the title and claimed adverse possession and it was held as the Article 65 of the Limitation Act alone is applicable and not Article 67The facts in this case are entirely different from the facts of the case on hand.

Learned advocate for the defendant relied upon the decision in the case of Parsinni (Dead) by Lrs. and Others Vs. Sukhi and Others, :wherein the Apex Court has observed that the burden of prooving adverse possession, undoubtedly, lies on the party to plead and prove that they remain in possession in their own right adverse to the other party. On party claiming adverse possession must prove his possession must be "nec vi, nec clam, nec precaria" i.e. Peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner.

In the case on hand, the defendant has pleaded that he is in possession of the suit property adverse to the interest of the plaintiff and also filed necessary documents to prove his continued possession of the suit property.

The lower appellate Court after having taken into consideration the various documents filed by the defendant more particularly, the notice issued by the father of the plaintiff''s vendor Ex.B.1 dated 6.8.1973 and also the specific averments made by the defendant in para 7 of the written statement that he has been in possession of the suit property as of right and in denial of the plaintiff and his vendor''s title and to the very knowledge for more than a statutory period and also undisputed fact that the defendant continues to be in possession of the suit property from the year 1973 and that the evidence of the plaintiff that the defendant vacated the suit property in the year 1974 and once again trespassed into the suit property, had no basis and came to the conclusion that the defendant has been in possession of the suit property openly in his own right continuously and also adverse to the interest of the plaintiff and thereby perfected title by adverse possession. The reliance was made to the house tax receipts Exs.B.8 to B.19, and receipts for payment of electricity consumption charges,Exs.B.21 to B.30. The lower appellate Court came to the conclusion that possession of the suit property by the defendant is adverse to the interest of the plaintiff and I do not find any perverse or infirmity in the said finding and therefore, I am of the considered view that the judgment and decree passed by the lower appellate Court does not warrant any interference by this Court.

In view of the discussions made above, I come to the conclusion that the defendant has been in possession and enjoyment of the suit property which is adverse to the interest of, not only, the plaintiff but also his predecessors in title and therefore, such possession is adverse to the interest of all the concerned and therefore, the questions raised in this second appeal are answered in favour of the respondent/defendant and against the plaintiff.

In the result, the Second Appeal is dismissed confirming the judgment and decree of the lower appellate Court. No costs. Consequently, C.M.P.7309 of 1990 is also dismissed.