Malaisamy vs Packiam and Others

R. Mala, J.—This Second Appeal has been preferred against the judgment and decree made in A.S. No. 7 of 2003, dated 11.08.2003, on the file of the Principal District Judge, Ramanathapuram, confirming the judgment and decree made in O.S. No. 88 of 2000, dated 05.12.2002, on the file of the District Munsif Court, Rameswaram.

The gist and essence of the averments in the plaint is as follows:

The suit property and the properties on the north and east of the suit property comprising into a single unit belongs to one Sathi Singaravel. He purchased the same by way of registered sale deed, dated 18.02.1973. He is in possession and enjoyment of the same. He died in the year 1998. He died intestate, leaving behind the plaintiffs as his legal heirs. They succeeded the property. They are in possession and enjoyment of the same. During the lifetime of Sathi Singaravel, he purchased the property as a vacant site. He built three thatched houses. He paid house tax. Then he wants to remove the thatched houses and kept the property as a vacant site and therefore, he wants to deploy a watchman. At that time, the defendant offered to watch over the said property and in consideration of it, the said Sathi Singaravel built a thatched hut and allowed the defendant to dwell in it. In the year 1997, the defendant pulled down the hut and tried to build a pucca house and that has been obstructed by the plaintiffs. Now, it is only upto foundation level. Then the said Sathi Singaravel died. Since the defendant attempted to made further construction, the plaintiffs lodged a complaint. The defendant has no right over the suit property. But he is in possession on permission. Hence, the plaintiff is constrained to file a suit for declaration of title and for recovery of possession and removal of the construction in the suit property for mandatory injunction and pray for a decree.

The gist and essence of the averments written statement filed by the defendant is as follows:

The first plaintiff''s brother is the defendant. The defendant purchased the suit property for a sale consideration of Rs. 15,000/-. He purchased the property in an oral sale, out of his own earnings, the defendant has put up a thatched house in the suit property. The house has been assessed with house tax and he is paying the same. Since the Said Sathi Singaravel is affected by Paralytic attack and went to coma stage and hence he is unable to obtain the sale deed to be executed. So the plaintiffs are estopped from questioning the same. The defendant is in possession from 1986 onwards. So, he has prescribed title by adverse possession. Moreover, the suit is barred by limitation. Hence, he prayed for the dismissal of the suit.

The learned District Munsif, Rameswaram after considering the averments both in the plaint and written statement framed six issues and considering the oral evidence of P.W.1, D.W.1 and D.W.2 and the documents marked under Ex.A1 to Ex.A9, Ex.B1 to Ex.B11, Ex.C1 and Ex.C2, come to the conclusion that the plaintiffs are entitled for declaration of title to the suit property and for recovery of possession and has given four months time to vacate the same. Against that the defendant has preferred an appeal in A.S. No. 7 of 2003, on the file of the Principal District Court, Ramanathapuram. The learned first appellate Judge, after considering the arguments of both sides, framed three points for consideration and confirmed the decree and Judgment of the trial court stating that the plaintiffs are the owners of the suit property and they are entitled to recovery of possession and mandatory injunction. Against that, the defendant has preferred the present Second appeal.

This Court after considering the entire material records, admitted the Second Appeal, on the following substantial questions of law:

Can the Courts come to the conclusion that the claim of adverse possession cannot be maintained once the claim of prescribed title is made?

Whether the Courts below ought not to have drawn adverse inference against the case of the respondents for non-examination of first respondent? and

Whether the Courts below are justified in rejecting the claim of adverse possession when the documentary proof establishes that the appellant is in possession for more than 12 years?

The respondents as plaintiffs filed a suit for declaration of title, for recovery of possession and for mandatory injunction stating that the first plaintiff''s husband has purchased the suit property under Ex.A1 on 15.02.1973 in Survey No. 635/3, 19 cents. He put up three thatched houses which has been assessed with house tax. The tax receipt has been marked as Ex.A2. They are in possession and enjoyment of the same. Since the thatched houses has been removed, the suit property becomes a vacant site and hence they want the help of a Watchman to look after it. The defendant/appellant has consented for the same and hence he has been given permission to watch over the suit property and he in possession as a watchman. Now he is claiming title. Hence, he is constrained to file a suit for declaration, recovery of possession and for mandatory injunction.

The defendant/appellant raised the contention that he orally purchased the property for Rs. 15,000/- and he is in open, continuous and uninterrupted possession for more than the statutory period. Hence, he has prescribed title by adverse possession. The trial court after considering the oral evidence of P.W.1, D.W.1 and D.W.2 and the documents marked under Ex.A1 to Ex.A9, Ex.B1 to Ex.B11, Ex.C1 and Ex.C2, come to the conclusion that the plaintiffs are entitled for declaration of title to the suit property and for recovery of possession and has given four months time to deliver the suit property and decreed the suit. Against that an appeal has been preferred by the appellant herein and the first appellate court has confirmed the judgment and decree of the trial court and dismissed the appeal. Aggrieved by the same, the defendant has preferred the present Second Appeal.

The learned Counsel for the appellant would contend that he has purchased the suit property orally from Sathi Singaravel for Rs. 15,000/- and he is in possession and enjoyment of the same and that has not been looked into by the trial court. He further contended that the first plaintiff has not get into the box. So, adverse inference can be drawn and he further contended that if the court is not agreeable for oral sale, since, he is in possession of the suit property openly, continuously and uninterruptedly for more than the statutory period, so, he has prescribed title by adverse possession, and the first appellate court had failed to conider this matter, hence, he prayed for allowing of the appeal. He relied upon a decision reported in Devasahayam (D) by LRs. Vs. P. Savithramma and Others, and 2001 (3) CTC 393 and pray for allowing the appeal.

Per contra, the learned Counsel for the respondent would contend that the defendant cannot take inconsistent plea. Since the suit is filed in the Moffusil, Moffusil pleadings are to be construed liberally, the appellant has pleaded that he is in possession as the owner of the property as per the oral sale and also he raised inconsistent plea that has prescribed title by adverse possession, and the oral sale pleaded by the appellant is not valid u/s 54 of the Transfer of Property Act. So, the trial court has considered all the aspects in a proper manner and come to a correct conclusion. Hence, he pray for the dismissal of the appeal.

Even though the appellant herein disputed title to the suit property to the husband of the first plaintiff/respondent, but, he has fairly conceded in paragraph 4 of the written statement that he has purchased the suit property orally for a sale consideration of Rs. 15,000/- from Sathi Singaravel. But, he has not got the sale deed executed in stamped paper, since, the said Sathi Singaravel fell ill. As per Section 54 of the Transfer of Property Act, a sale consideration for more than Rs. 100/- without registration is not valid. Section 54 of the Transfer of Property Act reads as follows:

"sale" defined.--"sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Sale how made.--Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be ade only by a registered instrument.

In case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

In the case of tangible immovable property of a value less than one hundred rupees, transfer may either by a registered instrument or by delivery of the property. So the oral sale is only permissible if the value of the property is below Rs. 100/-, but, here, the value of the suit property is Rs. 15,000/- and hence the oral sale pleaded by the appellant is unacceptable one.

At this juncture, the learned Counsel for the respondent relied upon a decision in Devasahayam (D) by LRs. Vs. P. Savithramma and Others, and arguing that the defendant may raise inconsistent plea. It is true that he can raise inconsistent plea,but at the time of trial he ought to have select and elect any one of the plea. He cannot claim his title on the oral sale pleaded in paragraph 4 of his written statement and adverse possession as claimed in paragraph 5 of the written statement.

The learned Counsel for the appellant would contend that the first plaintiff/respondent has not get into the box and hence the non-examination of the first plaintiff/respondent is fatal and he relied upon a decision in M. Vaithilingam Pillai (dead) and Anr. v. Minor Maruganandham represented by his adopted mother and guardian ponnurangathammal reported in 1994 1 L.W 296. The first plaintiff/respondent has not get into the box and declined to avail himself an an opportunity to put his essential material case in cross-examination. There is no quarrel over the proposition laid down in the citation. But, here, the second plaintiff/respondent was examined as P.W.1. Hence, the contention raised by the appellant does not merit acceptance. It is well-settled principle of law that the plaintiff must establish his case. He will succeed only on the strength of his own case but not on the weakness of the defendant''s case.

He relied upon a decision in Murugaiyan and two Ors. v. Subbaiyan reported in 2001 (3) CTC 393, which reads as follows:

Lower appellate court committing serious blunder regarding point for consideration--Decree and Judgment of the Lower Appellate Court can be interfered with.

But, here, the trial court has considered all the aspects in a proper prospective manner and come to a correct conclusion. Moreover, it is a concurrent finding and hence, there is no need to interfere with. There is no quarrel over the proposition laid down in the citation.

The learned Counsel for the respondent would rely upon a decision in Narain Prasad Aggarwal(D) by LRs. v. state of M.P. reported in 2007 SAR (Civil) 837 and arguing that Moffusil pleadings are not strictly construed. Pleading must be construed as a whole. He also relied upon a portion of the abovesaid judgment, which reads as follows:

It may be true that in his plaint, the plaintiff did not specifically plead ouster but muffosil pleadings, as is well known, must be construed liberally. Pleadings must be construed as a whole. Only because the parties did not use the terminology which they should have, ipso facto, would not mean that the ingredients for satisfying the requirements of statute are absent. There cannot be any doubt whatsoever that having regard to the changes brought about by Articles 64 and 65 of the Limitation Act, 1963, vis-�-vis Articles 142 and 144 of the Limitation Act 1908, the onus to prove adverse possession would be on the person who raises such a plea. It is also furthermore not in dispute that the possession of a co-sharer is presumed to be possession of the other co-sharers unless contrary is proved.

He also relied upon a decision in Des Raj and Others Vs. Bhagat Ram (Dead) By LRs. and Others, , the relevant portion, which reads as follows:

Moffusil pleadings are to be construed liberally and pleading must be construed as whole.

In view of the above citation, entire pleading is construed liberally.

He also relied upon a decision in Devasahayam (D) by LRs. Vs. P. Savithramma and Others, , which reads as follows:

A party to a is cannot raise pleas which are mutually destructive, but ordinarily inconsistent defences can be raised. The doctrine of approbate and reprobate is a species of estoppel. However, there cannot be any estoppel against a statute.

Admittedly, the suit property is owned by the husband of Packiam and father of other plaintiffs Sathi Singaravel. The appellant herein has pleaded that oral sale for Rs. 15,000/-. But, he has not proved the same. One Nagarajan has been examined as D.W.2 and he deposed that he compromised the matter. But while considering his cross-examination, he deposed that he does not know the door number. He fairly conceded that a panchayat has been convened and that the panchayat minutes was not reduced in writing. He also fairly conceded that no decision has been arrived at in the Panchayat and a suggestion was put to him that no panchayat has been convened and that has been denied by him. So in such circumstances the appellant herein has not proved the purchase of the suit property. Even as per Section 54 of the Transfer of Property Act, oral sale for more than Rs. 100/- is not valid. So, the oral sale pleaded by the appellant is unacceptable one.

The appellant herein has made another plea of adverse possession. He is in possession of the suit property for more than 20 years and his possession is open continuous and uninterrupted for more than the statutory period. Hence, he acquired prescribed title by adverse possession. At this juncture, while considering the decision in Thangamani. v. Santhiagu reported in 2000 (3) LW 848, which reads as follows:

In cases where the occupier and the predecessors in title have been in open and continuous occupation asserting positive title in themselves and against every one, and the real owner does not take any step to assert his right and to interrupt the running of the period, there is no reason as to why the occupier cannot claim adverse possession. The following judgments emphasise that what is necessary is open and unconcealed possession and that is not necessary that his possession should have been brought to the notice of the real owner.

But, here, the appellant/defendant is in possession of the suit property on the basis of the oral sale pleaded by him. So,his possession is not adverse to the interest of the true owner of the suit property.

He also relied upon a decision in Thangammal (died), Ramachandran and Tulasimani Vs. V. Ramasamy, which reads as follows:

Actual and exclusive possession coupled with intention to hold as owner, animus, open and continuous possession are necessary ingredients to prove adverse possession.

and arguing that he is in possession from the year 1988 with the knowledge of the true owner for more than the statutory period without any interruption. So his possession is open, continuous and without any interruption for more than the statutory period. So he has prescribed title by adverse possession. To corroborate the same, D.W.2 Nagarajan has been examined.

It is pertinent to note here that the appellant herein has pleaded oral sale stating that he paid a sum of Rs. 15,000/- to his brother-in-law Sathi Singaravel for sale consideration for the purchase of the suit property. He is in possession as a purchaser of the suit property and he pleaded only oral sale. So his possession from the date of oral sale onwards on the basis of oral sale. So, his possession is not adverse to the interest of the true owner Sathi Singaravel for more than 12 years.

Per contra, the respondent herein has put up him in permissive possession. So, in the above said circumstances, the appellant himself failed to prove that he has prescribed title by adverse possession. As already stated, as per the decision in Devasahayam (D) by LRs. Vs. P. Savithramma and Others, the defendant can raise inconsistent pleas but not mutually destructive plea. But the appellant herein has raised the plea of oral sale. In view of the oral sale, he is in possession and enjoyment. He failed to prove the same. But, in turn, he rasied another inconsistent plea of adverse possession. But he must accept the title of the third party and with the knowledge of the true owner, he is enjoying the suit property adverse to the interest of this true owner openly, continuously and without any interruption for more than the statutory period. As stated in his pleadings, the appellant is in possession on the basis of oral sale and in such circumstances, his possession of the suit property is not adverse to the interest of the true owner. So the appellant herein has miserably failed to prove that he has prescribed title by adverse possession.

As narrated above, the trial court and the first appellate court has considered all the aspects in a proper manner and come to a correct conclusion that oral sale for a sale consideration of Rs. 15,000/- is not valid under law and also the adverse possession has not been proved by the appellant herein.

Per contra, the respondents has proved that they are the owners of the property. The first respondent''s husband and father of respondents 2 to 5 Sathi Singaravel has purchased the property under Ex.A1 on 15.02.1973. He is in possession and enjoyment of the same from the date of Ex.A1. But the defendant/appellant has not proved his adverse possession and hence they are entitled for recovery of possession. For that he relied upon a decision in Indira. v. Arumugam and Anr. reported in 1988 2 MLJ 49, which reads as follows:

Under old Article 142 Limitation Act, 1908, the plaintiff who based his case on title had to prove not only title but also possession with 12 years of the date of the suit. Under Article 65 of 1963 Act 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.

In pursuance of it, once the defendant/appellant has raised the plea of adverse possession, he must prove the same. But he failed to prove adverse possession. So,substaintial questions of law 1 to 3 are answered accordingly.

For the foregoing reasons, I am of the opinion that the trial court and the first appellate court after considering all the aspects in a proper manner, comes to a correct conclusion that the respondents are entitled to a decree as prayed for by them.

Upon a perusal of the entire material records and Judgment and decree of the courts below, I am of the opinion that there is no infirmity in the Judgment and decree passed by the courts below and hence it does not warrant any interference by this Court.

In the result, the Second Appeal is dismissed. Consequently, connected Miscellaneous Petition is also dismissed. No costs.