Munusamy Naidu vs D. Krishnan

Aruna Jagadeesan, J.—The Respondent herein/Plaintiff has filed the suit in OS. No. 616/1987 for declaration of the title of the Plaintiff to

the suit property and for permanent injunction and in the alternative vacant possession of the suit property to the Plaintiff.

The case of the Plaintiff as set out in the plaint is as follows:

The suit property originally belonged to the joint family of one Dasappa Naidu, Venkatrama Naidu and one Govindappa Naidu. They were in

possession and enjoyment of 84 cents of land in S. No. 21/1 of Kottipalli. After the partition between the brothers, namely, Venkatarama Naidu,

Dasappa Naidu and Govindappa Naidu, each of them were enjoying their share of 28 cents. Dasappa Naidu died leaving behind the Plaintiff,

Kannampalli Naidu and Ammathayappa Naidu as his legal heirs. Venkatrama Naidu died leaving behind Muniyappa Naidu. The Plaintiff and his

two brothers were in possession and enjoyment of their father''s share of 28 cents. Likewise, Muniyappa Naidu was also in possession and

enjoyment of his share through his father Venkatrama Naidu. Ammathayappa Naidu and Kanampalli Naidu sold their shares to the Plaintiff.

Muniyappa Naidu sold 14 cents to the Plaintiff. Therefore, the Plaintiff is in possession and enjoyment of an extent of 42 cents in S. No. 21/2.

Muniyappa Naidu also sold 14 cents to Govindappa Naidu. The Plaintiff and the said Govindappa Naidu are only in possession and enjoyment of

the entire extent of 84 cents in S. No. 21/2. They are the absolute owners of the property. The Plaintiff entrusted the management of the property

to the Govindappa Naidu and visited the property very often. Govindappa Naidu was paying the kist on behalf of the Plaintiff. The Defendant is

the adjacent land owner on the southern side. The Defendant was insisting the Plaintiff and his brothers and Govindappa Naidu to sell the suit

property to him. But, the Plaintiff refused to sell the property. Therefore, there was an enmity between the Plaintiff and the Defendant. Thereafter,

the Defendant started giving trouble and tried to interfere with the peaceful possession and enjoyment of the Plaintiff. The Defendant who has no

right or title in the suit property tried to trespass into the suit property on 15.11.1987 which was prevented by the Plaintiff. The Defendant has

proclaimed that he will dispossess the Plaintiff. In such circumstances, the suit has been filed for declaration and permanent injunction.

In the Written Statement filed by the Defendant, it is averred as follows:

It is false to allege that the suit property originally belonged to the joint family of Dasappa Naidu, Venkatrama Naidu and Govindappa Naidu. It is

also false to allege that in the partition, each of them were allotted 28 cents. It is denied that after the death of Dasappa Naidu and Venkatrama

Naidu, the Plaintiff and his brothers and one Muniyappa Naidu became entitled to 28 cents each. It is denied that the Plaintiff purchased his

brothers'' share and 14 cents from Muniyappa Naidu, thus he became entitled to 42 cents and Govindappa Naidu entitled to 42 cents. The suit

land and the rest of the land in S. No. 21/2 belonged to Venkatrama Naidu as his separate property. He was allotted the same after partition

between him and his brothers Dasappa Naidu and Govindappa Naidu. He was in possession and enjoyment of the same till his death and

subsequently his only son Muniyappa Naidu became entitled to the entire 84 cents in S. No. 21/2. He had also perfected title by adverse

possession. The said Muniyappa Naidu sold 14 cents to the said Govindappa Naidu under the sale deed dated 17.7.1972. Therefore,

Govindappa Naidu was entitled to only 14 cents. Muniyappa Naidu did not sell 14 cents to the Plaintiff. Ammathayappa Naidu and one

Kanampalli Naidu never owned any share. So, the Plaintiff is not entitled to 42 cents in S. No. 21/2. Except the said 14 cents sold to Govindappa

Naidu, the rest of the land of 70 cents in S. No. 21/2 was in possession and enjoyment of Muniyappa Naidu. Muniyappa Naidu sold 70 cents to

the Defendant for a valid consideration of Rs. 1,050/-under a registered sale deed dated 2.11.1976. The Defendant took possession of the 70

cents and the patta stands in the name of the Defendant. The Defendant is paying the kists and he is in open and actual possession and enjoyment

of 70 cents including the suit land of 42 cents. The Defendant had also perfected title by adverse possession.S. No. 21/3 lies on the South of the

suit which belongs to the Defendant. There is a well with a pump set and the Defendant is enjoying S. No. 21/2 by irrigating the the land. It is also

false to state that the Defendant insisted the Plaintiff to sell the property to him. The Plaintiff or Govindappa Naidu is not in possession and

enjoyment of the suit property. In such circumstances, the suit is liable to be dismissed.

In the Additional Written Statement filed by the Defendant, it is averred as follows:

The Defendant has purchased 70 cents including the suit property portion of 42 cents from the said Muniyappa Naidu and he has been in

possession and enjoyment of the same to the knowledge of the Plaintiff. Therefore, the Defendant has perfected title by adverse possession from

1976. The prayer for possession by the Plaintiff is barred and the Plaintiff had lost his title, if any, by adverse possession of the Defendant. The

Plaintiff has failed to state as to when the Defendant had come to possession of the suit property. Therefore, the Plaintiff is not entitled for any

relief.

Before the Trial Court, on the side of the Plaintiff, Ex.A1 to A10 were marked and the Plaintiff examined himself as PW.1. On behalf of the

Defendant, Ex.B1 to B17 were marked and Dws.1 to 3 were examined. The report and the plan filed by the Advocate Commissioner were

marked as Ex.C1 and C2.

On consideration of the oral as well as the documentary evidence, the Trial Court decreed the suit as prayed for and the appeal filed as against

the same by the Defendant was dismissed by the lower appellate court, confirming the judgment and Decree of the Trial Court. As against which,

this Second Appeal has been filed by the Defendant.

This Second Appeal has been entertained on the following substantial question of law:

In the light of the categorical evidence as to the Appellant/ Defendant being in actual and effective possession of the suit properties, whether the

courts below ought to have upheld his plea of adverse possession, particularly, when the Plaintiff/Respondent had amended the suit to incorporate

the relief of possession only in June 1996, by which time the same was barred inasmuch as the Doctrine of Lispendens would not arrest the running

of time under Article 64 of the Limitation Act, 1963?

This Court heard the submissions of the learned Counsel on either side and also perused the Judgments of the court below and the materials on

record.

The suit property is southern 42 cents of land in S. No. 21/2 in Kodipalli Village, Krishnagiri Taluk bounded on the north by Govindappa

Naidu''s land, on the south by the Defendant''s land, on the west by the road and on the east by Bela Goundari''s land. The total extent of 84 cents

in S. No. 21/2 originally belonged to one Dasappa Naidu, Venkatrama Naidu and Govindappa Naidu. As per the case of the Respondent/Plaintiff,

the said extent of 84 cents was partitioned among the said three brothers, each getting 28 cents. The Plaintiff, Kannampalli Naidu and

Ammathayappa Naidu are the legal heirs of Dasappa Naidu. One Muniappa Naidu, the vendor of the Defendant is the legal heir of Venkatrama

Naidu. The Plaintiff has purchased the shares of his brothers, namely, 9 1/2 cents each and also 14 cents from Muniappa Naidu in Ex.A1 dated

17.7.1972. The Plaintiff claimed title to 42 cents and claimed to be in possession over the said extent.

Though the Defendant admitted that the properties were partitioned among the three brothers, namely, Dasappa Naidu, Venkatrama Naidu

and Govindappa Naidu, but claimed that the entire 84 cents was acquired by Venkatarama Naidu in the partition. According to the Defendant,

Venkatarama Naidu was in possession and enjoyment of the total 84 cents and the same devolved upon his only son Muniappa Naidu, who in turn

sold 14 cents to Govindappa Naidu under the sale deed dated 17.7.1972. The rest of the land of 70 cents was in his possession and enjoyment

and patta also stood in his name. He sold the said extent of 70 cents to the Defendant under a registered sale dated 2.11.1976 Ex.B1. According

to the Defendant, the patta stands in his name and he is in actual possession and enjoyment of 70 cents including the suit land 42 cents. He claimed

that he also perfected title by adverse possession.

Under Ex.A1, the original of which is filed as Ex.A3, the brothers of the Plaintiff, namely, Kannampalli Naidu and Ammathayappa Naidu along

with Muniappa Naidu have sold 33 cents to the Plaintiff. The Defendant admitted in his written statement about the sale of 14 cents by Muniappa

Naidu to Govindappa Naidu under the sale deed dated 17.7.1972. Muniappa Naidu has sold 28 cents to the Plaintiff and Govindappa Naidu. It is

the specific case of the Plaintiff that only 28 cents was allotted to the father of Muniappa Naidu, namely, Venkatarama Naidu and the entire 28

cents had been sold by Muniappa Naidu. In the earlier proceedings, it was held taking note of the above facts that Muniappa Naidu had no right in

S. No. 21/2, as he had sold his share to the Plaintiff and Govindappa Naidu in the above said manner.

Ex.A2 is the proceedings of the First Class Magistrate and Sub Collector, Hosur in MC. No. 1/1975 dated 2.7.1975. In the said proceedings,

the Plaintiff and the Govindappa Naidu were shown as ""A"" party and the Defendant and 10 others were shows as ""B"" Party. The Defendant and

his men had obtained patta for the suit S. No. 21/2 which was opposed by the Plaintiff and his uncle Govindappa Naidu and the matter was

referred u/s 145 of Cr.PC. The Plaintiff had filed Ex.A1 sale in proof of his title to the suit property. The Sub Collector has found that the

document produced by the Defendant not related to the suit S. No. 21/2, that is, the present suit property and also found that the ""A"" party,

namely, the Plaintiff and his uncle were in possession.

The Plaintiff''s uncle Govindappa Naidu had filed the suit in OS. No. 79/83 against the 1st Defendant on the same averments as stated by the

Plaintiff in the present suit claiming title to 42 cents which was resisted by the 1st Defendant and he claimed ownership to 70 cents and claimed to

be in possession. But, the said suit was decreed in favour of Govindappa Naidu. Ex.A6 is the printed judgment made in OS. No. 79/1983. The

present Plaintiff was a party in the said suit. The appeal preferred by the 1st Defendant in AS. No. 65/1988 was dismissed by the learned

Subordinate Judge, Krishnagiri. Ex.A7 is the judgment made in AS. No. 65/1988. In the said proceedings, the Defendant''s claim in Suit S. No.

21/2 in respect of 70 cents was negatived.

Again, the 1st Defendant filed the suit for damages in OS. No. 664/1990 on the file of the District Munsif, Krighnagiri on the ground that

Govindappa Naidu and the Plaintiff entered into the suit property and cut and carried away the paddy crops raised in the suit property on

22.11.1987. Ex.A8 is the certified copy of the plaint in OS. No. 664/1990. The said suit was also dismissed rejecting the claim of the 1st

Defendant. Ex.A10 is the certified copy of the said Judgment. In the aforesaid earlier proceedings, all the claims of the Defendant has been

foreclosed and the possession claimed by the Defendant was also found not established.

When facts are as such, the Appellant now contends that the suit property is in his possession and enjoyment from the year 1976 onwards and

has perfected title by adverse possession. He has relied upon Ex.B2 to Ex.B17 to prove his possession. Ex.B2 settlement register stands in the

name of Venkatarama Naidu and Govindappa Naidu. Ex.B4 is the chitta in the name of Venkatarama Naidu. Ex.B5 to B17 are the kist receipts in

the name of the Defendant. The above said revenue entries have come into existence during the pendency of the earlier proceedings. That apart, in

the earlier proceedings i.e. right from 1975 the title and possession claimed by the Defendant has been negatived.

It is to be pointed out that the Appellant claims adverse possession from the date of Ex.B1 i.e. 2.11.1976. This suit has been filed on

27.11.1987. As already pointed out, the adverse possession, if any of the Appellant herein commenced only on or after 2.11.1976 when he

purported to purchase the suit property from Muniappa Naidu. The suit in OS. No. 79/83 was instituted against the Appellant by Govindappa

Naidu and the decree was passed in favour of Govindappa Naidu on 29.7.1987 as evidenced from Ex.A6 and the appeal filed as against the said

decree was dismissed on 23.12.1989. Ex.A7 is the certified copy of the said Judgment. Consequently, the period from the institution of the suit up

to the date of judgment and decree as confirmed by the court in AS. No. 65/1988 has necessarily to be ignored, as the earlier proceedings has

destroyed the previously existing adverse possession if any. If the time during which the suit was instituted by Govindappa Naidu against the

Appellant in respect of the suit property wherein the Respondent was also a party is excluded, then the question of the Appellant acquiring title by

adverse possession does not arise.

It is needless to reiterate that the Plaintiff and Govindappa Naidu had been litigating incessantly the right of the Defendant to be in possession of

the suit property, in relation to which there has been a decree by the court made in OS. No. 79/1983 and subsequently affirmed by the first

appellate court. No further appeal has been filed. Since the dispute had started as early as in 1975 right from the proceedings before the Sub

Collector, Hosur and thereafter, in OS. No. 79/1983 the claim made by the Appellant/ Defendant having been negatived in the earlier proceedings,

the claim of adverse possession by the Appellant cannot be sustained.

On analysing the records available before this Court, this Court is of the considered view that the courts below have come to the right

conclusion that the Plaintiff is entitled to the suit property and that the Appellant/Defendant cannot claim title by adverse possession and rightly

decreed the suit in favour of the Respondent herein/Plaintiff. I do not find any illegality or infirmity in the said findings of the courts below. The

substantial question of law is answered against the Appellant.

In the result, this Second Appeal is dismissed, confirming the impugned judgment and decree of the courts below. However, in the

circumstances of the case, there will be no order as to costs. Consequently, the connected MP is also dismissed.