S. Sivanu Pandi vs Muthu Malaiammal

P.R. Shivakumar, J.—The Defendants in the Original Suit are the Appellants in the Second Appeal. N. Muthu Malaiammal and U. Velammal, the Respondents herein, filed the Original Suit O.S. No. 243/2004 in the Court of District Munsif, Nanguneri, originally against the First Appellant arraying him as the sole Defendant. Subsequently, the Second Appellant Rajammal was impleaded by Order dated 14.3.2006 made in I.A No.147/2004 and ranked as Defendant No.2. The Suit was filed for:

(1) a declaration that the Respondents/Plaintiffs were entitled to the Plaint Second Schedule property which was part of the Plaint First Schedule property and also for recovery of possession of the same from the first Appellant First Defendant;

(ii) a Decree directing demarcation of Plaint First and Second Schedule properties with reference to the Sale Deeds, Survey records and Revenue records;

(iii) a Permanent Injunction restraining the First Appellant First Defendant from encumbering Plaint Second Schedule property, and

(iv) costs.

The said reliefs were sought for by the Respondents herein based on the averments made by them in the Plaint which are in brief, as follows:

(i) Plaint First Schedule property, namely a total extent of 2.52 acres shown as the Plaint First Schedule property and 40 cents out of which sub-divided with S. No.2/2A is described as Plaint Second Schedule property, is a dry land purchased by Uchimakali Thevar, the father of the Respondents/father of the Plaintiffs, under a Sale Deed dated 25.3.1954 and he was in possession and enjoyment of the same ever since his purchase. After the death of Uchimakali Thevar, the property was enjoyed by the mother of the Respondents/mother of the Plaintiffs. The suit first Schedule property was originally comprised in S. No.2/2A having a total extent of 2.52 Acres. During the life time of the mother of the Respondents/mother of the Plaintiffs, the same was sub-divided into S. No.2 2A having an extent of 40 cents and S. No 2/2B having an extent of 2.12 Acres, the specific boundary stones were implanted. After the death of the mother of the Respondents/mother of the Plaintiffs, they were in peaceful possession and enjoyment of the said property.

(ii) The First Appellant/First Defendant, who was having a land adjoining the Suit properties on its North, removed the boundary stones of the Plaint Second Schedule property. By slow and steady encroachment, he occupied the entire Plaint Second Schedule property and he is in illegal possession of the same. When he was questioned regarding the encroachment of the Plaint Second Schedule property, he gave evasive reply. As he was bargaining with the third parties to convey the Plaint Second Schedule property, the Respondents/Plaintiffs had to approach the Court with the Suit for the above said reliefs. However, since the First Appellant/First Defendant claim that he has executed a Gift Settlement Deed in respect of the portion of the Plaint Second Schedule property, favour of his daughter Rajammal, she came to be subsequently impleaded as a party Defendant and ranked as Second Defendant.

The Suit was resisted by the Appellants/Defendants based on the Written Statement of the first Appellant/First Defendant, which was adopted by the Second Appellant Second Defendant. The contents of the Written Statement, in brief, are as follows:

(1) The Suit is mala fide and it has been filed as a fraudulent Suit to harass and cause hardship to the Defendants. The property described in the Schedule to the Written Statement, having an extent of 42 cents comprised in S. No.2/2A in Poolam village within defined boundaries belonged to the forefathers of the Defendants. Their forefathers and the Defendants were in continuous and uninterrupted possession and enjoyment of the same. The First Defendant had perfected title to the said property by adverse possession and hence he was issued with a Patta in Patta No.246. Out of the 42 cents, the first Appellant/first Defendant gifted 5 cents to his daughter Rajammal, the Second Appellant/Second Defendant. She has put up a structure in a portion of the five cents thus gifted to the Second Appellant/Second Defendant and she is residing there and is running a Tea Stall in a portion.

(ii) The claim of the Respondents/Plaintiffs that their father purchased Plaint First Schedule property, which includes Plaint Second Schedule property, on 25.3.1954 is totally false. On the other hand, there was an oral partition among the brothers of the First Defendant in respect of their property and in the said Partition, the portion immediately lying on the north of the property shown in the Schedule to the Written Statement came to be allotted to one Murugan, the younger brother of the first Appellant/First Defendant. The said Murugan sold 68 cents of land out of the share allotted to him in S. No 2/1A in favour of one Jayasekaran and the said Jayasekaran is in possession of the property comprised in S. No.2/1 A. Similarly, an extent of 24 cents of land in S. No.2/1B allotted to the first Defendant in the oral partition was sold by him to the above said Jayasekaran under a Sale Deed dated 19.4.2004. The remaining portion of the property allotted to the first Defendant in the said Partition continues to be in his exclusive possession and enjoyment. The 24 cents comprised in S. No.2/1A & 42 cents comprised in S. No.2/1B remains with the first Defendant as a single unit. The claim of the Respondents Plaintiffs in respect of the Plaint Second Schedule property cannot be sustained in law and the same is liable to be rejected.

With the said contentions, the Appellants/Defendants had prayed for the dismissal of the Suit with cost.

Based on the above said pleadings, the learned Trial Judge framed the following issues:

(i) Whether the Plaintiff is entitled to the reliefs prayed for ?

(ii) Whether the entire Suit property belongs to the Plaintiffs ?

(iii) Whether Suit is barred by limitation ?

(iv) Whether Suit is bad for non-joinder of necessary parties ?

(v) To what other reliefs the Plaintiffs entitled ?

Based on the framing of the above said issues, the parties went for trial. In the trial PWs. 1 & 2 were examined and Exs.A1 to A8 were marked on the side of the Respondents herein Plaintiffs DWs.1 & 2 were examined and Exs.B1 to B5 were marked on the side of the Appellants herein/Defendants Exs.X1 to X22 were marked as Witness documents and Exs.C1 & C2 were marked as Court documents.

The learned Trial Judge, after hearing the arguments advanced on both sides, considered the pleadings and evidence in the light of the points urged in the arguments advanced on both sides and upon such consideration, came to the conclusion that the Plaintiffs were able to establish their title in respect of the Plaint first Schedule property, which includes the Plaint Second Schedule property; that they were also able to substantiate their case that the First Appellant/First Defendant being the owner of the land immediately King on the north of the Plaint Second Schedule property removed the boundary stones and encroached upon the Plaint Second Schedule property; that the Appellants/Defendants, who pleaded perfection of title by adverse possession miserably failed to substantiate their case and that hence, the Respondents/Plaintiffs were entitled to the reliefs as claimed by them in the Plaint, which have been indicated supra. Accordingly, the learned Trial Judge granted a Decree dated 28.11.2006 in favour of the Respondents/Plaintiffs.

Aggrieved by and challenging the said Decree of the Trial Court, the Appellants/Defendants unsuccessfully prosecuted an Appeal before the Lower Appellate Court in A.S. No. 91 of 2007 and after the dismissal of the said Appeal by the Lower Appellate Court (Subordinate Judge, Valliyoor) by its Judgment and Decree dated 16.11.2007, they have knocked at the doors of this court with the present Second Appeal challenging the said Decree of the Lower Appellate Court on various grounds set out in the Memorandum of Grounds of Second Appeal.

The Second Appeal came to be admitted on the following Substantial Questions of Law:

(i) Whether the Judgment and Decree of the Courts below is vitiated in non-consideration of the prescription of the title over Suit Scheduled property by way of adverse possession by the Appellants ?

(ii) Whether the Lower Appellate Court and the Trial Court, was right in holding that cause of action for the Suit is not barred by limitation ?

Since there is some kind of lack of clarity and some mistakes, they are recast as follows:

(i) Whether the Judgment and Decree of the Courts below are vitiated for non-consideration of Appellants plea of perfection of title to the Suit Schedule property by adverse possession ?

(ii) Whether the Courts below were right in holding that the Suit was not barred by limitation ?

The arguments advanced by Mr. N. Sankar Ganesh, learned Counsel appearing for Mr. S. Alagar Raja, Counsel on record for the Appellants and by Mr. G. Prabhu Rajadurai, learned Counsel appearing for Mr. D. Rajkumar, Counsel on record for the Respondents 1 & 2 were heard. The materials available on record were also perused.

For the sake of convenience, the parties are referred to in accordance with then ranks in the Original Suit and in appropriate places then ranks in the Second Appeal shall also be mentioned.

The case of the Plaintiffs (Respondents) is clear that they are the owners of the Suit First Schedule property, which includes the Suit Second Schedule property, as the same was purchased by then father on 25.3.1954. The Original Sale Deed has been produced as Ex.A1. The Encumbrance Certificates, Kist Receipts, Patta, Chitta, Fertiliser Distribution Card and Adangal extracts produced as Exs.A2 to A5 were considered by the Courts below in conjunction with the oral testimonies of PWs.1 & 2 and based on such consideration, the Trial Court rendered a finding that the Plaintiffs were able to prove their title by tracing then title to the Suit First Schedule property which includes the Suit Second Schedule property, as they traced then to the Sale Deed dated 25.3.1954 marked as Ex.A1.

On the other hand, the Defendants have not produced any document of title to show that they derive title either by purchase by themselves or by their ancestors. In fact, the Defendants have not produced any Title Deed anterior to the Title Deed produced by the Plaintiffs as Ex.A1. The documents produced by them under Exs. B1 to B4 are only revenue records. Ex B1 is the Patta issued in the name of the first Defendant Sivanu Pandi Thevar to an extent of 9.5 Ares comprised in S. No. 2/1B and an extent of 17.0 Ares comprised in S. No.2/2A. The 17.0 Ares comprised in S. No.2/2A seems to have been included in Patta No. 246 and the said Patta came to be issued by the Headquarters Deputy Tahsildar, Nanguneri only on 19.4.2004. It should be noticed that the Suit came to be filed on 12.4.2004 itself. Only after the presentation of the Suit, the said Patta came to be obtained. The Adangal extract for the Fasli 1412 is Ex.B2 Kist Receipt dated 26.4.2004 is Ex.B3. The Patta issued to the First Defendant on 11.9.2006 during the pendency of the Suit in respect of S. No.2/2A is Ex.B4. The said documents came to be obtained only after a Telegraphic Notice sent on behalf of the Plaintiffs was received by the first Defendant. The said Telegraphic Notice was produced on the side of the Defendants themselves and the same has been marked as Ex.B5. The Adangal extracts from Fasli 1394 to Fasli 1415 have been produced by DW2 and the same have been marked as Exs. X1 to X22. Though Patta came to be issued in favour of the First Defendant in respect of S. No.2/2A, the Plaint Second Schedule property, a single Kist Receipt of the year 2004 alone came to be produced by the Defendants. They have caused the production of Exs.X1 to X22 as copies of the Adangal extracts to show that the First Defendant was in enjoyment of the Plaint Second Schedule property comprised in S. No.2/2A from Fasli 1394 i.e. from the year 1983-1984.

In addition to the production of the Sale Deed dated 25.3.1954 marked as Ex.A1 to show that the Plaintiffs'' father Uchimakali Thevar purchased the property comprised in S. No.2/2 (not sub-divided) having an extent of 2.52 Acres, they have examined PW1, the retired Village menial (btl;oahd;) in support of their case that after the death of Uchimakali Thevar, in a partition among the Plaintiffs, the same was divided into 40 cents and 2.12 Acres respectively and that the 40 cents was assigned S. No. 2/2A No. 2A whereas 2.12 Acres was assigned Survey No.2/2B, that on the north of the 40 cents of land comprised in S. No.2/2A, the First Defendant had a property and that he obliterated the bund between his property and the Suit Second Schedule property, namely 40 cents comprised in S. No 2/2A. PW1''s testimony remains a corroborating piece of evidence to the testimony of PW2 the Second Plaintiff. The same is also supported by the Original Sale Deed marked as Ex.A1.

The Encumbrance Certificate marked as Ex. A2 shows that the entire extent of 2.52 acres comprised in S. No.2/2, before its further sub-division, was purchased by the father of the Plaintiffs under a Sale Deed dated 25.3.1954, which has been marked as Ex.A1. The Encumbrance Certificate was issued in respect of both S. Nos.2/2 & 2/3. Under a Document dated 20.5.1964 bearing Document No.918/1964, a part of S. No. 2/2 seems to have been given on Otthi to one Rajamani Nadar and the same came to be redeemed on 26.8.1970 as seen from Ex.A2 - Encumbrance Certificate. Ex.A6 is the Patta pass-book issued to Uchimakali Thevar, the father of the Plaintiffs. S. No.2/2 having an extent of 2.52 acres has been included as item No.2 in his Patta. The Plaintiffs have also produced Ex.A8 - Chitta to show that Patta had been issued in the names of the Plaintiffs after the death of their father for the entire extent of 2.52 acres. Chitta for Fasli 1410 marked as an Exhibit shows that the same stood in the name of Muthammal in respect of S. No. 2/2B. However, the same was signed by the Village Administrative Officer and not the Officer authorised to sign it, namely the Tahsildar or the Deputy Tahsildar, as the case may be Even then it is not the case of the Defendants that they derived title to the Plaint Second Schedule property comprised in S. No. 2/2A by virtue of purchase from any one.

At the cost of repetition, it is pointed that the Plaintiffs were able to produce their Title Deeds dating back to 25.3.1954 in the form of Ex.A1 - Sale Deed. Per contra, the Defendants have not produced any such Title Deed and they simply relied on the Patta issued after the filing of the Suit and the Adangal extracts produced through the Witness-DW2 and marked as Exs.X1 to X22. At the best, the said documents can be taken as the documents evidencing the cultivation of the Suit Second Schedule property by the first Defendant from 1984. Of course, the possession can be taken to have prolonged for nearly 20 years as on the date of filing of the Suit. But possession by a person who is not the owner of the property to any length of time alone will not clothe him with a title on the basis of Adverse Possession. To constitute Adverse Possession, apart from the factum of possession, it must be proved to be coupled with the animus to possess the other mail''s property defying his right and setting up a hostile right in him with the knowledge that the property belongs to the other man against whom, he wants to set up Adverse Possession.

In the case on hand, admittedly, the First Defendant was the Owner of the property lying immediately on the north of the Plaint Second Schedule property bearing S. No. 2/2A. The case of the Plaintiffs is that the First Plaintiff obliterated the dividing bund, removed the boundary stones and slowly encroached upon the Plaint Second Schedule property. That is the reason why the Plaintiffs have sought for recovery of possession of the Plaint Second Schedule property besides a declaration of the title to the said property. The First Defendant, who faced the Suit, seems to have chosen to contend that he settled part of the Second Schedule property to his own daughter. The same was the reason why she was subsequently made a party Defendant and ranked as Second Defendant. Though the Defendants were able to produce documents to show that the first Defendant has been in possession of the Plaint Second Schedule property from the year 1984, on the basis of which they claim perfection of title by adverse possession, they have not made necessary pleadings and adduced sufficient evidence to prove that such possession was coupled with the necessary animus to make such possession adverse to that of the Plaintiffs. In fact, the absence of knowledge that the property belongs to the Plaintiffs will negative the presence of the animus to possess it adverse to that of the real owner, namely the Plaintiffs.

A consideration of the evidence adduced on the side of the Defendants will show that the Defendants do not admit that the Plaintiffs had title to the property and it was defeated by their Adverse Possession. On the other hand, the Defendants have taken a plea that the Suit Second Schedule property belongs to them as part of the property owned by them on the north of the disputed property. If the nature of the plea made by the Defendants and the evidence adduced on their behalf are considered in proper perspective, this Court has to come to a necessary conclusion that the Defendants have not substantiated their stand that they perfected title by adverse possession to the Suit Second Schedule property. A person claiming prescription of title by Adverse Possession, should state the date from which his possession became adverse to that of the real owner. The Defendants have not made it clear as to from which date their possession became adverse to that of the real Owners, namely the Plaintiffs. In fact, the evidence adduced on the side of the Defendants would show that they did not even acknowledge that the property belonged to the Plaintiffs and that their encroachment and possession of the disputed portion of the property had been in assumption of their supposed title, which militates against the claim of their perfection of title by Adverse Possession.

In a Suit for recovery of possession of immovable property based on title, Article 64 of the Limitation Act, 1963 will apply. The said Article prescribes a period of 12 years to be counted from the date on which the possession of the Defendant became adverse to the Plaintiff. In the case on hand, we have seen supra that there is no clear cut evidence to prove the starting point of Adverse Possession of the Defendants. As such, it cannot be contended that the Suit filed by the Plaintiffs for declaration and recovery of possession of the Plaint Second Schedule property is barred by limitation. Similarly, the Defendants have also failed to substantiate their contention that they either derived title from the former Owner or by perfection of title by adverse possession defeating the right of the Plaintiffs There is no substance in the contention raised on behalf of the Defendants/Appellants its in this Second Appeal that the Courts below, committed error in not considering the plea of Adverse Possession made by the Defendants and that the Courts below, committed an error in holding that the Suit was not barred by limitation. The Courts below, on proper appreciation and on proper re-appreciation of evidence respectively, have arrived at a correct and concurrent finding that the Plaintiffs proved their tide to the Suit Second Schedule property, that the defendants on the other hand failed to prove their contention that they perfected title by Adverse Possession and that the Suit was not barred by limitation. The said findings of the Courts below cannot be termed either defective or infirm, much less perverse, in which event alone the Second Appellate Court can interfere with the said finding. As the said finding of the Courts below have not been proved to be perverse, there is no question of the same being reversed by this Court in the Second Appeal. Accordingly both the Substantial Questions of Law are answered in favour of the Respondents and against the Appellants holding that the findings of the Courts below regarding the plea of Adverse Possession and limitation are not erroneous or defective, much less perverse. The Decree of the Trial Court, which stands confirmed by the Decree of the Lower Appellate Court, does not warrant any interference and the same deserves to be confirmed.

In the result, the Second Appeal fails and the same is hereby dismissed with cost. Consequently, the connected Miscellaneous Petitions are closed.