Subramania Bathar v. Srinivasa Bathar — 1998 DIGILAW 1319 (MAD)

Judgment :- 1. The plaintiff who succeeded before the trial Court and lost before the Lower Appellate Court is the appellant. The suit O.S. No. 191 of 1980 was filed by him before the Subordinate Judges Court, Chidambaram for declaration, recovery of possession, past profits in a sum of Rs. 200/- and future profits against one Ramu Bathar, Srinivasa Bathar, Abdul Rahim Abdul Karim and Sheik Hussain. Ramu Bathar died pending suit, his legal heirs were impleaded as defendants 6 to 13 and they are respondents 3 to 10 in the Second Appeal. 2. The description of the property as set out in the plaint is “in Chidambaram Registration District. Chidambaram Sub-registry. Chidambaram Town, in Bazaar Street South of the street, North of Lalkhan Mosque land. West of Ghouse Hameed Maracairs property sold to Shanmugam Chettiar, East of Bakshikhan Sahibs shop, within this the shop bearing door No. 191 and 191-A, Ward No. 6, Block No. 6, T.S. No. 628 Sq. ft. 90.” 3. The case of the Appellant/Plaintiff was as follows: The property belonged to one Mr. Mohammed Sultan S/o Naguda Maracair who sold it under Ex. A1 dated 2.6.1952 to Mohammed Hussain. Mohammed Hussain in his turn sold the property under Ex. A2 dated 26.4.1976 to one Mohammed Hazan S/o Mohammed Sultan under Ex. A3 dated 29.4.1980. Mohammed Hazan sold the property to the plaintiff. The second defendant was a tenant under Mohammed Hussain and was doing business. He was also paying tax out of the monthly rent. The third defendant was also tenant but under Mohammed Hazan and east West measurement of 7 feet was leased out by the third defendant to the first defendant Rama Bathar and East West 3 feet was leased out to the fourth defendant Abdul Karim. The third defendant was paying Rs. 200/-monthly rent to Mohammed Hazan. The sub-lease by the third defendant to the first and the fourth defendant was not valid. The first defendant and the second defendant were claiming absolute title from predecessors in title and the other defendants were claiming sub-tenancy from D1 and D2. There was a notice issued under the original of Ex. A4 on 6.6.1980 setting out true and correct rights to defendants 1, 3 and 4. The monthly rent was demanded at Rs. 200/- and the demand for payment of rent was not complied with. There was a notice issued under the original of Ex. A4 on 6.6.1980 setting out true and correct rights to defendants 1, 3 and 4. The monthly rent was demanded at Rs. 200/- and the demand for payment of rent was not complied with. They were trespassers having no right and the suit was filed. 4. The first defendant filed a written statement to the following effect; The plaintiff/vendor had himself no title to the suit property, consequently plaintiff also did not derive any right. One Ellappa Bathar the first defendants father who died about 20 years prior to the filing of the suit exercised rights as owner in respect of Door No. 191 and was enjoying the same. After his death the first and the second defendants were in enjoyment and in a family arrangement the first defendant got it as an absolute property. He did not become a tenant under anybody. The title particulars in the plaint were not correct. The first and the second defendants were in possession and enjoyment for several 12 years and prescribed for title by adverse possession. The monthly rent claim was more than the market rate Rs. 25/- would be the proper rent. Property Tax was always paid by the first defendant. The bill was also given in the name of the first defendant. The second defendant was an unnecessary party to the suit. Door No. 191-A was in the exclusive possession and enjoyment of the third defendant. His rights did not flow through first defendants source of title. The combining of 191 and 191-A from the claimant by the first and second defendants were through different sources amounted to misjoinder of causes of action, misjoinder of parties and the suit was liable to be dismissed. 5. The second defendant adopted the written statement of the first defendant. The third defendant resisted the suit as follows: The plaintiff and his predecessors in title have no right, title or interest. Mohammed Hussain did not get possession. The plaintiffs sale deed is sham and invalid. The third defendant did not get lease hold right from Mohammed Hussain. The third defendant did not sublet to the first defendant or to the fourth defendant or to anybody else. The third defendant is in possession and enjoyment of Door No. 191-A paying property tax for over 30 years and was doing jewellery polishing work in the property. The third defendant did not get lease hold right from Mohammed Hussain. The third defendant did not sublet to the first defendant or to the fourth defendant or to anybody else. The third defendant is in possession and enjoyment of Door No. 191-A paying property tax for over 30 years and was doing jewellery polishing work in the property. The site in respect of 191-A belong to the Mosque on the south and he was paying monthly rent to the Lal Khan Mosque, the rent at the time of the filing of the suit being Rs. 10/- per month. A sum of Rs. 25,000/- was offered by the plaintiff to the third defendant through one Logannathan, the third defendant refused to accept. The super structure in 191-A belong to the third defendant and the rent claimed was exaggerated. 6. The sixth defendant filed a written statement for herself and on behalf of defendants 7 to 12 contending that the second defendant was never in possession as tenant, that she was doing polishing and jewel plating work, and that first defendant did not own any property other than the suit property. 7. The fourth and the fifth defendants remain ex parte. 8. On the side of the plaintiff Exs. A1 to A18 were marked. P.Ws.1 to 5 were examined and on the side of the defendants Exs. B1 to B54 were marked and DWs. 1 to 4 were examined. 9. The trial Court on appreciation of oral and documentary evidence held that the plaintiff had absolute title in the suit property and that he was entitled to the reliefs prayed for by him. However, on appeal in A.S. No. 150 of 1983 by the defendants 2, 3 and 6 to 13 the learned Additional District Judge, Cuddalore by his Judgment and Decree dated 28.4.1984 reversed the decision of the trial Court, allowed the appeal and dismissed the suit. Aggrieved, the present Second Appeal has been filed. 10. At the time of admission the following substantial questions of law were framed for decision in the Second Appeal. i) Whether the mistake in mentioning the Door Number or the extent in a Document would matter when the identity of the property is established? ii) Whether mere fact of possession would be sufficient to constitute adverse possession, especially when it is not adverse to the real owner? 11. Mr. i) Whether the mistake in mentioning the Door Number or the extent in a Document would matter when the identity of the property is established? ii) Whether mere fact of possession would be sufficient to constitute adverse possession, especially when it is not adverse to the real owner? 11. Mr. K. Kannan, the learned counsel for the appellant submitted that the appellant had proved his title by unimpeachable documents, that the Lower Appellate Court over looked that Exs. A10 and A16 clearly established the title of the suit property in favour of Nagutha Maracair the predecessor in title of the plaintiff, that the Lower Appellate Court made much of the fact that the extent of the property had been mentioned wrongly in the sale deeds though it had accepted that Door No. 191 was the suit property, that the Lower Appellate Court clearly overlooked that even in the registers maintained by the municipality the extent was mentioned only as 90 Sq. ft. 12. The learned counsel for the appellant further submitted that the Lower Appellate Court erred in holding that 191-A belongs to Lakhan Mosque particularly, when the defendants had not produced any evidence to establish the same. On the question of adverse possession the learned counsel submitted that mere possession by itself would not confer any right upon the persons unless the same was adverse to the real owners of the property. The Municipal-registers clearly mentioned the name of Nagutha Maracair as the owner of the property till 1970 and thereafter the entry stood in the name of Mohammed Hassan and followed by the plaintiff. According to the learned counsel, the Lower Appellate Court also overlooked that the application of the first defendant for assessment in his name had been rejected by the Municipal Authority. 13. Per contra Mr. P. Gopalan for the contesting respondents contended as follows: Ex.A1 was only a photocopy and the plaintiff had not traced his title and so far as the schedule was concerned but not been explained by the person who executed the deed. Correction had been effected after 24 years, boundaries had been improved upon. From 1952 till 1970 no document had been produced to show that defendants were, to be in possession as tenants. Exs. A8 and A9 relied on by the appellant were after the date of suit. Correction had been effected after 24 years, boundaries had been improved upon. From 1952 till 1970 no document had been produced to show that defendants were, to be in possession as tenants. Exs. A8 and A9 relied on by the appellant were after the date of suit. Even in 1977 and 1978, long before the plaintiff purchased the property, Exs.A8 and A9 gave the plaintiffs name as the owner of the property and this would clearly show that these exhibits have been concocted. Ex. B 36, assessment was in the name of the third defendant. Ex. A14 notice had been given to the purchaser even before he purchased it. In Ex. A 16 the area is given only as 60 Sq. ft. but under Exs. A2 and A3 the area had been increased. The originals had not been produced. Boundaries alone had been given. No measurements were given. When the original had not been produced the appellant was not entitled to get declaration. Even the oral evidence on the side of the plaintiff was thoroughly unsatisfactory. PW3 and PW4 did not know who the tenants were. The learned counsel submitted that there was no substantial questions of law in favour of the Second Appeal and the same was liable to be dismissed. 14. In reply, Mr. Kannan, learned counsel for the appellant submitted that no relevant documents had been produced on the side of the defendants to displace the ownership of the plaintiff. Exs. B1 to B11 do not cover 12 years. The boundaries had not been disputed and the non-production of the originals were never challenged. The learned counsel relied on the following decisions. i) 1998 1 LW 244 (Roohnisha Beevi v. A.M.M. Mahudu Mohamed) ii) AIR 1976 Madras 124 = 89 L.W. 72 (Bhagavathy v. Savarimuthu) The learned counsel submitted that the finding of the trial Court was not displaced by the Lower Appellate Court and in such an event the plaintiff/Appellant was entitled to succeed. 15. Let us take the first substantial question of law. Whether the mistake in mentioning the door number or the extent in a document would matter, when the identity of the property is established? Even the Lower Appellate Court finds that the property is identified but with regard to the extent there is discrepancy. The earlier documents show the total extent as 53 Sq. ft, but in 1976 under Ex. Whether the mistake in mentioning the door number or the extent in a document would matter, when the identity of the property is established? Even the Lower Appellate Court finds that the property is identified but with regard to the extent there is discrepancy. The earlier documents show the total extent as 53 Sq. ft, but in 1976 under Ex. A2 it had shot up to 90 Sq.ft. According to the learned Additional District Judge this variation has not been explained and consequently, it cannot be held that the appellant had established his title to the entirety of the suit property. 16. It is established legal position that boundaries would prevail over measurements in case there is conflict. In Dina Malar Publications v. The Tiruchirappalli Municipality (1984 II MLJ 306) = (1984) 97 L.W. 365 ) R. Sengottuvelan, J. after referring to a number of decisions set out the principles underlying the concept. (1) in case of doubtful or varying extents in the documents of title relating to the property, boundaries should be preferred to the extent; (2) Only in the absence of definite material to show the actual extent intended to be sold the boundaries should outweigh the doubtful extent mentioned in the document; (3) If the recitals in the documents and the circumstance of the case show that a lesser extent only was conveyed then the area covered by boundaries, and there is clear evidence as to the intention of the parties with reference to the extent conveyed, then the extent should prevail over the boundaries. 17. When there is an element of doubt with reference to the extent, the statement as to area is to be rejected as falsa demonstration In a recent judgment in Roohnisha Beevi and 15 others v. A.M.M. Mahudu Mohamed and 29 others (1998 I L.W. 244) S.S. Subramani, J. on this question held as follows: “The evidence supplied by boundaries, extent survey numbers and pymash numbers are the determining factors when the identity of the property is put in issues. In case of conflict boundaries predominate and the rest is regarded as erroneous or inaccurate descriptions. Erroneous survey numbers or omission to state them should be rejected as false demostratis.” 18. No doubt in the present case the earlier documents show the total extent as 53 Sq. ft. In case of conflict boundaries predominate and the rest is regarded as erroneous or inaccurate descriptions. Erroneous survey numbers or omission to state them should be rejected as false demostratis.” 18. No doubt in the present case the earlier documents show the total extent as 53 Sq. ft. but when the appellants vendor purchased the property in 1976, the area rose to 90 sq. ft. Ex. A13/release deed refers to Ex. A2 Sale Deed in favour of the appellants vendor and also earlier Sale Deed Ex. A1 dated 2.6.1952, but gives the extent as 90 sq. ft. Ex.A15 the Municipal map gives the extent for T.S. No. 628 as 90 sq. ft. Ex. A15 coupled with the legal position that boundaries should prevail over measurements should set at rest the controversy. This can be looked at from another angle also. The defendants claim that 191-A was the property of the Mosque and that the Mosque was being paid rent every month. Let us see, whether this has been established apart from the fact that nobody connected with the Mosque was examined. The title deeds relating to the adjacent properties clearly identified the suit property, within the stated boundaries. Ex. A6 relating to door No. 192 shows the suit property as the western boundary. Ex. A10 suit register extract in respect of door No. 192, though there is a mistake with regard to the description as Naguda Maracairs land instead of his building gives the western boundary as the suit property. It is also the oral evidence by PW1 Kaliamoorthy and PW2 Hazan on this aspect. Between door Nos. 191 and 192 there cannot suddenly appear a new property belonging to a third party. The receipts purported to have been issued on behalf of the Mosque cannot in any way disprove the case of the appellant that the suit property comprising door Nos. 191 and 191-A belonged to him. I have no hesitation in holding, differing from the finding of the Lower Appellate Court that the plaintiff/appellant had established his title to the suit property bearing door Nos. 191 and 191-A. The Lower Appellate Court has failed to draw proper inference from established facts and apply law in the proper perspective, this Court is therefore entitled to interfere. 19. One other aspect argued by the learned counsel for the respondents relates to non-production of the original documents. 191 and 191-A. The Lower Appellate Court has failed to draw proper inference from established facts and apply law in the proper perspective, this Court is therefore entitled to interfere. 19. One other aspect argued by the learned counsel for the respondents relates to non-production of the original documents. Under Sec. 57 (5) of the Registration Act, all certified copies given duly signed and sealed by the registering officer are admissible for the purpose of proving the contents of the original documents vide Karuppana Gounder and others v. Kolandasami Gounder and others ( 1953 (2) MLJ 717 = (1953) 66 L.W. 1055 . 20. The documents had been received without demur and had also been relied on by the courts below. Even before the Lower Appellate Court, where the respondents succeeded this point had not been raised or urged. Even otherwise, I do not think there is any substance in the contention put forward on behalf of the respondents. 21. Yet another objection raised is with respect to maintainability of suit by one co-owner, when it has not been established that the plaintiffs predecessors in title had exclusive title to the property. Once again it does not appear that in the courts below this was seriously argued. Still conceding that the plaintiff could at best be a co-owner, the respondents had set up title with respect to 191-A in the mistake and with respect to 191 by adverse possession. They had denied the appellants title. They must be deemed to be trespassers. It has been held in D. Akkamma and others v. P. Kannamma and others (89 L.W. 666) that “for recovery of possession of a property from a trespasser, one of several co-owners can certainly maintain a suit”. This is apart from the fact that the other co-sharers had also released their rights under Ex. A13 on 9.8.1973. As rightly contended by the learned counsel for the appellant, the Lower Appellate Court has not displaced the finding of the trial Court with regard to title. Therefore, on the first substantial question of law, I hold that the mistake in mentioning the door number or the extent in a document would not matter when the identity of the property is established. 22. Therefore, on the first substantial question of law, I hold that the mistake in mentioning the door number or the extent in a document would not matter when the identity of the property is established. 22. Now let us deal with the second substantial question of law, whether the mere fact of possession would be sufficient to constitute adverse possession, especially when it is not adverse to the real owner? Exs. A7, A8, A14 and A15 show the appellants possession. According to Mr. P. Gopalan, the learned counsel for the respondents Exs. A8 and A9 concocted documents as also Ex. A14. It is the contention of the learned counsel that in Exs. A8 and A9, even before the appellants purchase of the property his name had been shown as the owner of the suit property. I perused Ex. A8 and A9, they are Municipal property register extracts and in the column relating to owner the appellants name is shown. These had been issued in the year 1981. By 1980 the appellant had purchased the property and when he applied with the municipality for extract, he would have given his name as the owner of the property and on the basis of such a statement the municipal authorities would have issued extracts. This by itself would not falsify the case of the appellant. There are other Exhibits which clearly show that the appellant and before him his vendor owned the property. So far as, Ex. A14 notice is concerned the submission of the learned counsel Mr. P. Gopalan is that even before Hazan Maracair purchased the property the municipality had issued notice to him. Hussain and Hazan were brothers-in-law, one managing for the other and as observed by the trial Court there is no substance in the said contention. As already pointed out, even assuming these documents as concocted, there are other materials showing the appellants title and possession. 23. Now, coming to the defendants possession over the statutory period. It goes without saying that the burden of proof is on the defendants who claim title by adverse possession. As already pointed out, even assuming these documents as concocted, there are other materials showing the appellants title and possession. 23. Now, coming to the defendants possession over the statutory period. It goes without saying that the burden of proof is on the defendants who claim title by adverse possession. It has been held in Roohnisha Beevi and 15 others v. A.M.M. Mahudu Mohamed and 29 others ( 1998 (1) LW 244 ) already referred to that “there could be no equities in favour of a person pleading adverse possession, as he is trying to deny the rights of the true owner and that it is for him to establish the facts necessary to prove adverse possession. It is his duty to state clearly the facts and the nature of the possession as hostile to the real owner”. No document worth the name has been produced to show the respondents possession prior to 1970. The suit was filed in 1980. 24. It has been held in Bhagavathy Pillai and another v. Savarimuthu and another (AIR 1976 Madras 124) = 89 L.W. 72) that “In the case of a suit for possession based on title the plaintiff has no longer to prove that he was in possession of the property for a period of 12 years. It is for the defendant to establish that his possession has been adverse for the requisite period of 12 years.” As already pointed out, the respondents have not produced any material to show their possession prior to 1970. The conclusion reached by the Lower Appellate Court on the question of adverse possession is therefore clearly unsustainable. The finding by the Lower Appellate Court is based on a wrong application of the principle of burden of proof and it is therefore not binding on this Court. 25. It has been held by the Supreme Court and this Court in several decisions that when the Lower Appellate Court has not focussed its attention on the materials in a proper perspective, the High Court is justified in interfering under Sec. 100 of the Code of Civil Procedure. The approach of the Lower Appellate Court is vitiated by non-consideration of the relevant evidence and an erroneous approach to the matter. 26. In view of the above discussion, the second substantial question of law is found in favour of the appellant. The approach of the Lower Appellate Court is vitiated by non-consideration of the relevant evidence and an erroneous approach to the matter. 26. In view of the above discussion, the second substantial question of law is found in favour of the appellant. The judgment and the decree of the Lower Appellate Court are set aside and those of the trial Court restored. However, there will be no order as to costs.