Periyaswamy vs Pazhaniswamy

Thomas. P. Joseph, J.—The second appeal arises from the judgment and decree of learned Sub Judge, Ottapalam in A.S.No.5 of 2005 reversing dismissal of O.S.No.84 of 2004 of the court of learned Munsiff Magistrate, Mannarkkad. Respondent/ plaintiff, on the strength of Ext.A1, assignment deed dated 28-04-1990 sued for recovery possession of the suit property alleging that appellant trespassed into the said property on 01-09-1991. Respondent claimed that when there was an attempt by the appellant to trespass into the suit property, he filed O.S.No.72 of 1990 seeking decree for prohibitory injunction. During the pendency of that suit appellant trespassed into the property. Hence, respondent withdrew O.S.No.72 of 1990 and filed the present suit for recovery of possession. Appellant denied that respondent has title over the property. He claimed that one Mr.Arumugha Gounder had purchased the suit property from Krishnan Udayar under an oral sale. Appellant purchased the property from the said Arumugha Gounder as per agreement on 15-12-1986 paying Rs.3,000/- by way of advance. Later, Arumugha Gounder executed Ext.B2, assignment deed No.357 of 1990 in favour of appellant. Since there was some mistake in the document, Arumugha Gounder executed Ext.B3, correction deed in favour of appellant. Appellant claimed that title of respondent if any, is lost by adverse possession and limitation.

Trial court held that even before the date of alleged trespass pleaded by the respondent, appellant was in possession of the property. Trial court refused to grant relief to the respondent. The first appellate court held that the claim of appellant for title over the property cannot stand and that the plea that respondent''s title is lost by adverse possession cannot be accepted. Accordingly, respondent was given a decree for recovery for possession. Hence, this second appeal.

Learned counsel has argued that finding of the first appellate court as to the title of respondent is not correct. It is also contended that there is sufficient evidence let in by the appellant and accepted by the trial court to show that appellant was in possession of the property even prior to 1990. In that circumstance, the claim of the appellant for title should have been accepted. Further contention is that at any rate, finding of the first appellate court regarding adverse possession cannot be sustained.

It is not disputed that 30 cents including the suit property (20.5 cents) originally belonged to Krishnan Udayar as per Ext.A2, assignment deed No.3725 of 1972. According to the respondent, after the death of Krishnan Udayar, the suit property devolved on his wife and children who executed Ext.A1, assignment deed on 28-04-1990 in favour of respondent and thus he acquired title over the suit property.

The case of appellant is that Arumugha Gounder purchased suit property under an oral sale for consideration of Rs.50/- and as per an agreement with Arumugha Gounder, he got the suit property on 15-12-1986. Later, Arumugha Gounder executed Ext.B2, assignment deed and Ext.B3, correction deed in favour of the appellant.

So far as title claimed by the appellant is concerned, first appellate court rejected his case of oral sale in favour of Arumugha Gounder. The main reason is that while Ext.A2, assignment deed in favour of Krishnan Udayar in the year 1972 states that he purchased 30 cents for Rs.7,00/-, it is quite unlikely that two years later in the year, 1974 Krishnan Udayar sold 20.5 cents to Arumugha Gounder for Rs.50/-. The first appellate court found improbabilities in the version of appellant regarding oral sale and held that it is only to make it appear that Arumugha Gounder acquired title even without an unregistered document that a plea of oral sale for Rs.50/- was made. That is a finding made on the evidence and involves no substantial question of law.

Respondent acquired title over the property as per Ext.A1, assignment deed. The finding of first appellate court that respondent has acquired title over the suit property is based on evidence involves no substantial question of law.

So far as the claim of adverse possession is concerned, it is true that according to the respondent, appellant trespassed into the suit property in the year, 1991 during the pendency of O.S.No.72 of 1990. But the first appellate court on evidence found that even prior to that date, appellant was in possession of the suit property. First appellate court also agreed with the finding of trial court that respondent did not get possession pursuant to Ext.A1 assignment deed but held that in so far as appellant has not disputed title of Krishnan Udayar, his plea of adverse possession cannot be accepted. The first appellate court has pointed out that in the absence of any hostile animus to the title of Krishnan Udayar, plea of adverse possession cannot stand. That finding is based on the facts and circumstances of the case and in my view, involved no substantial question of law. Learned counsel has alternatively requested that a year''s time may be granted to the appellant to remove the building and other structures and vacate the premises. Having heard the learned counsel, I am inclined to grant three months time for the said purpose. But I make it clear that it will be open to the appellant to request the executing court to grant further time, if that is required and if, such a request is made, the executing court shall consider the request after hearing of the respondent also and pass appropriate orders in that regard.

The second appeal is dismissed. But appellant is granted three month''s time from this day to remove the building and other structures in the suit property and vacate the property subject to the following conditions:

(1) Appellant shall (unless time is extended by executing court as aforesaid) vacate the suit property after removing the structures by the expiry of three months granted hereby.

(2) Appellant shall not create documents, encumber the property or induct third parties into possession of the property.

(3) Without prejudice to the right of appellant to challenge this judgment, he shall file affidavit in the court of learned Munsiff Magistrate, Mannarkkad within two weeks from this day undertaking to comply with the above conditions.

(4) In case any of the above conditions is not complied, it will be open to the respondent to execute the decree not withstanding the time granted hereby.