Anthony Xavier Fernado v. Dhanaraj Rajamani — 1999 DIGILAW 94 (MAD)

Judgment 1. The plaintiff is the appellant. The plaintiff filed the suit for declaration and possession. 2. The case of the plaintiff is as follows: The suit property originally stood in the name of Rathina Sironmani Ammal from whom one Guruvammal had purchased the land under oral sale. The said Guruvammal and her son Rathinam were enjoying the land as owners thereof by paying property tax. Guruvammal during her lifetime relinquished her right is suit property in favour of her son Rathinam, who sold the property to one Subbarayulu under sale deed dated 27.12.1963 from whom the plaintiff purchased. Rathna Sirnamani died in the Year 1950. Guruvammal and her son were in enjoyment of the property from 1949 onwards. Therefore, the plaintiff and his predecessor in title have been in possession and enjoyment of the suit land for more than 30 years and thus, the plaintiff has prescribed title to the property and the plaintiff has got possessory title to the suit property. The defendant has no title to the suit property. Even if he had any title, he had los by not being in possession for 12 years. The defendant trespassed into the suit property in the middle of 1979 without the knowledge of the plaintiff. Therefore, the plaintiff gave complaint against the defendant and thereafter, the defendant stopped interfering and did not disturb the possession of the plaintiff. Now again from 3.5.1980, he threatened to interfere with the possession of the plaintiff. The defendant trespassed into the suit property after the date of the suit and had put up a thatched, hut and therefore, the plaintiff alternatively prays for recovery of the vacant possession. The suit is filed for declaration and injunction and alternatively for recovery of possession. 3. The case of the defendant is as follows: The suit property was a poromboke land and it was assigned in favour of defendants mother Rathina Sironmani Ammal in the year 1937. Patta No.1106 had been issued in favour of his mother and she was in enjoyment of the same as owner. She died on 30.12.1950 and since the date of death, this defendant is in exclusive possession of the property as absolute owner. The patta for the property stands in the name of the defendant and he paid kist for the property. His mother had not sold the property in favour of Guruvammal orally. She died on 30.12.1950 and since the date of death, this defendant is in exclusive possession of the property as absolute owner. The patta for the property stands in the name of the defendant and he paid kist for the property. His mother had not sold the property in favour of Guruvammal orally. Neither Guruvammal nor her legal heir was entitled to deal with the property and they are not entitled to confer title in favour of Subbarayulu. The sale was effected by a person who had no title. Similarly, the sale by Subbarayulu in favour of the plaintiff is not binding upon the defendant and the defendant is entitled to ignore the same. The plaintiff does not derive any title to the suit property. Neither Guruvammal nor Rathinam nor Subbarayalu were in possession and enjoyment of the property. This defendant had put up a thatched house in the suit property and enclosed it with fence of karukkumattai three sides and Bamboo on the eastern side, The foundation walls are visible to the naked eyes. The defendant was residing in the property till 1979 in the Thatched house and thereafter, he let out the same to one Shanmuga Nadar on a Monthly rent of Rs.15. The defendant is presently residing at Port Trust Colony from December, 1979. The claim of the plaintiff that he and his predecessor in title have perfected title by adverse possession is false. The receipts for the payment of land revenue and municipal tax are fraudulently created behind the back of the defendant and the said documents are not binding on him. The defendants title and possession was confirmed by the Tahsildar in his order dated 25.1.1980. The allegation that the defendant is trying to trespass into the property is not true. 4. On the above pleadings, the trial court has framed six issues and on a consideration of oral and documentary evidence, the trial court decreed the suit for declaration and possession with costs. The defendant filed an appeal against the said judgment and decree in A.S.No.54 of 1982. The appellate court i.e., learned Additional Subordinate Judge, Tuticorin allowed the appeal and consequently, the suit was dismissed with costs. The plaintiff who is aggrieved upon the said judgment and decree has come forward with this Second Appeal. 5. The defendant filed an appeal against the said judgment and decree in A.S.No.54 of 1982. The appellate court i.e., learned Additional Subordinate Judge, Tuticorin allowed the appeal and consequently, the suit was dismissed with costs. The plaintiff who is aggrieved upon the said judgment and decree has come forward with this Second Appeal. 5. The following contentions are raised in the grounds of appeal: The appellate court erred in holding that the oral sale in favour of Guruvammal is void. The appellate court did not properly consider the evidence of P.W.2, whose evidence is corroborated by the documentary evidence. There is no evidence to prove that the respondent was in possession of the property even after the death of his mother. The appellate court did not consider the documentary evidence Exs.A-12 to A-15 which are standing in the name of Guruvammal, The appellate court failed to consider the documents in the name of Subbarayalu and Rathinam. The explanation given by P.W.2 regarding the recitals in Ex.A-2 are not properly considered by the appellate court. The appellant, in any event, has perfected title by adverse possession. 6. The following substantial question of law was formulated while admitting this second appeal: “Whether the findings of the lower appellate court regarding the adverse possession is vitiated by its failure to consider the documentary evidence Ex.A-4 to Ex.A-43 ranging for a period 1948 to 1980 corroborated by the evidence of P.Ws.1 to 3”. 7. There is no dispute that the suit property an extent of 5 cents comprised in R.S.No.494 a/5B-2 Plot No.989 originally belonged to Rathina Sironmani Ammal. Both plaintiff and defendant trace their title only order the above Sironmani Ammal. It is the case of the [plaintiff that Sironmani Ammal orally sold the property to Guruvammal and that her son Rathinam sold the property in favour of one Subbarayalu under sale deed Ex.A-2 dated 23.12.1963 and that from the said Subbarayalu, he purchased the suit property under sale deed Ex.A-1 dated 9.12.1964 and that the plaintiff and his predecessor in title were in possession of the property by paying tax and kist etc. The defendant denies title of the plaintiff to the suit property. It is the case of the defendant that he, being the son of Sironmani Ammal, has got title to the property. The oral sale set up by the plaintiff is denied by the defendant. The defendant denies title of the plaintiff to the suit property. It is the case of the defendant that he, being the son of Sironmani Ammal, has got title to the property. The oral sale set up by the plaintiff is denied by the defendant. The trial court has held that the plaintiff has got title to the suit property and that the mother of the defendant lost title to the property after she sold the same to Guruvammal, The trial court has further held that the plaintiff was not in possession on the date of the suit and that the plaintiff has not acquired title by adverse possession. The trial court has also negatived the claim of the defendant has also negatived the claim of the defendant that he acquired title by adverse possession and that therefore, the plaintiff is entitled to recovery possession, though he is not entitled to injunction, The appellate court did not accept the above findings of the trial court. The appellate court has held that the plaintiff failed to prove that he and his predecessor in title acquired title by adverse possession. 8. Learned counsel for the appellant contended that the documentary evidence produced by the plaintiff will show that Guruvammal was in possession of the property and that the evidence relating to possession of Guruvammal and Rathinam and Subbarayulu would only probabilise the case of the plaintiff-that the mother of defendant orally sold the property to Guruvammal and that the documents produced by the defendant relate to the period subsequent to 1975 and that only after the date of the suit, the defendant trespassed into the suit property. Learned counsel for the respondent relying upon the reasons assigned by the appellate court contended that the oral sale set up by the plaintiff was not established by any evidence and that the plaintiff cannot be said to have acquired title to the suit property. 9. As already stated, there is no dispute that the suit property originally belonged to sironmani Ammal. Therefore, the defendant being the son of Sironmani Ammal has got title to the property and as such, it has to be held that he is the owner of the suit property. Therefore, it is not incumbent upon the defendant to prove title. On the other hand, the burden is upon the plaintiff to prove title to the suit property. Therefore, the defendant being the son of Sironmani Ammal has got title to the property and as such, it has to be held that he is the owner of the suit property. Therefore, it is not incumbent upon the defendant to prove title. On the other hand, the burden is upon the plaintiff to prove title to the suit property. The oral sale set up by the plaintiff is denied in the written statement. Learned counsel for the respondent contended that any sale of property whose value is worth about more than Rs.100 is not valid in law. In support of the same, he also relies upon a decision reported in Mallangowda v. Gavisiddangowda A.I.R. 1959 Mys. 104. It is held in the above decision that oral sale of immovable property of a value of above one hundred rupees is absolutely of no effect and does not give rise to any legal consequence or right in favour of the plaintiff and title to the land cannot pass to the plaintiff by such an oral sale. 10. Learned counsel for the respondent also relies upon a decision of Supreme Court reported in R.Reddy v. Additional Custodian, Evacuree Property R.Reddy v. Additional Custodian, Evacuree Property R.Reddy v. Additional Custodian, Evacuree Property A.I.R. 1966 S.C. 1438 wherein it is held that the property was worth more than Rs.100 and that a registered sale deed was necessary to pass title and that therefore, title does not pass to transferee unless sale deed is registered. Learned counsel for the appellant contended that there is no evidence that on the the of oral sale the property was worth about more than Rs.100. The above contention of the appellant cannot be accepted in view of the admission of P.W.1 the plaintiff. P.W.1 the plaintiff has admitted in his evidence that on the date when Gana Sironmani Ammal got property from the Government. The value of the land was about Rs.30 to 40 per cent. The above admission of P.W.1 will show that the suit property an extent of 5 cents was worth about Rs.150 or Rs.200. Therefore, on P.W.1 is own showing it is clear that the suit land was worth about more than Rs.100 on the date of oral sale. If that is so, the alleged oral sale cannot be said to be valid in law. Therefore, on P.W.1 is own showing it is clear that the suit land was worth about more than Rs.100 on the date of oral sale. If that is so, the alleged oral sale cannot be said to be valid in law. Hence, the findings of the trial court that Sironmani Ammal orally sold the property to Guruvammal cannot be sustained. 11. There is another clinching evidence which would practically destroy the plea of oral sale set up by the plaintiff. It is alleged in the plaint that Guruvammal relinquished her right in the property in favour of Rathinam and that the said Rathinam sold the property in favour of Subbarayalu. P.W.2 the said Rathinam has stated that his mother orally purchased the property from Sironmani Ammal. In cross-examination, he has stated that in the year 1951, he was asked by his mother to look after the property, But in Ex.A-2 the sale deed executed by P.W.2 in favour of Subbarayalu, it is recited that P.W.2 purchased the property from Rathina Sironmani and that he is absolutely entitled to the property. But now P.W.2 has stated that the above recital in Ex.A-2 are not true. The above explanation given by P.W.2 is vague. If really Guruvammal orally purchased the property from Sironmani, I fail to understand as to why P.W.2 should have stated in Ex.A-2 that he purchased the property from Sironmani. The above recital in Ex.A-2 would only probabilise the case of the defendant that his mother did not orally sell the property to Guruvammal. Though, it is alleged in the plaint that Guruvammal relinquished her right in the land in favour of P.W.2, the said plea has not been substantiated in the evidence of P.W.2. It is further, admitted by P.W.2 that the mother of P.W.2 Guruvammal died about one year ago. If really there is any truth in the case of the plaintiff that Guruvammal became owner of the property by virtue of oral sale, it is Guruvammal who was competent to execute the sale deed in favour of Subbarayalu. It is highly improbable that during the lifetime of Guruvammal her son P.W.2 executed the sale deed. For the above reasons, I hold that the mother of defendant would not have orally sold the property to Guruvammal. 12. It is highly improbable that during the lifetime of Guruvammal her son P.W.2 executed the sale deed. For the above reasons, I hold that the mother of defendant would not have orally sold the property to Guruvammal. 12. The trial court places much reliance upon Ex.A-12 to Ex.A-22, the tax receipts in the name of Guruvammal to prove that Guruvammal orally purchased the property. Though the trial court accepted the genuineness of the above document, the appellate court negatived the same on the ground that those documents are not genuine. It is specifically pleaded in the written statement that the revenue records were fraudulently created by the plaintiff. The receipts Exs.A-12 to A-22 are issued in the printed form and signed by the Village Munsif. The receipts Exs.A-12 to A-19 are issued in printed receipt. But Exs.A-20 and A-21 are written in an ordinary paper. The above receipts stand in the name of Guruvammal and Rathinam. The other Kist receipt were issued in the prescribed form which are normally and usually issued by the Village Munsif. The fact that payment of kist are noted in the receipt book will create certain doubt on the genuineness of the above document especially when other kist receipts are issued in prescribed format. In the prescribed form, the seal of taluk office is printed, which is evident from Exs.A-4 to A-9. But, no such seal is affixed in Exs.A-12 to A-22. Therefore, the appellate court is justified in rejecting the above evidence to show that Guruvammal and Rathinam paid kist from the year 1948. If really Guruvammal was in possession of the land by paying kist, Subbarayalu would have definitely obtained sale deed only from Guruvammal and not from Rathinam. Therefore, the reasons assigned by the trial court on the basis of Exs.A-12 to A-22 for upholding the claim of oral sale cannot be accepted. 13. When once it is held that Guruvammal had no title to the property, the sale deed executed by P.W.2 in favour of Subbarayalu under Ex.A-2 would not confer any title and consequently, the sale deed Ex.A-1 executed by Subbarayalu in favour of or plaintiff confer any title on the plaintiff. The trial court failed to look into one vital aspect of the case that on the date of A-1, A-2 the suit property was a vacant site comprised in Plot.989. The trial court failed to look into one vital aspect of the case that on the date of A-1, A-2 the suit property was a vacant site comprised in Plot.989. The law is well settled that in the case of vacant site possession follows title. As the defendant is owner of the property and has got title, it has to be held that he has got title to the property. The case of the defendant has to be approached only on the above angle. But the trial court has observed that the defendant failed to prove his possession for 12 years and that he is only a trespasser. The above finding of the trial court cannot be accepted to be correct, since it is for the plaintiff to prove that even though he did not derive valid title, he has acquired title by adverse possession. It is not for the defendant to prove that he has acquired title by adverse possession. 14. The plaintiff has also adduced evidence to prove possession. Exs.A-4 to A-9 are the kist receipts in the name of the plaintiff. Ex.A-10 dated 9.2.1964 is the kist receipt in the name of Subbarayalu and Ex.A-11 is the kist receipt dated 24.12.1963 in the name of Rathinam. Ex.A-3 is the copy of the chitta in the name of the plaintiff issued for Fasli 1387 which corresponds to 1977-78. Ex.A-45 will show that the property tax was assessed in the name of the plaintiff only from the year 1970-71. The suit is filed in the year 1980. The payment of kist by the plaintiff will not show that he has been in possession for about 12 years. It is, however, open to the plaintiff to shoe that his predecessors were in possession of the property. To prove possession of Subbarayalu, the plaintiff has filed Exs.A-42 and A-43. The above receipts which are receipt for property tax were issued to Subbarayalu Naidu for tax due for the Year 1967-68. The above receipts were issued on 30.3.1968. On the date of the above receipt, Subbarayalu was not the owner of the property, since he sold the property to the plaintiff in the year 1964. If that is so, I fail to under and as to how the above tax receipts were issued to Subbarayalu in the Year 1968. The above receipts were issued on 30.3.1968. On the date of the above receipt, Subbarayalu was not the owner of the property, since he sold the property to the plaintiff in the year 1964. If that is so, I fail to under and as to how the above tax receipts were issued to Subbarayalu in the Year 1968. The above facts would only confirm the case of the defendant that the receipts were obtained fraudulently by the plaintiff. 15. The plaintiff filed reception in the name of Rathinam under Exs.A-32 to A-41. The above receipts were issued from the Year 1956 till 1963. P.W.2 has admitted that he did not pay tax to any house and that he paid only land tax. He has admitted that there was a hut in the property and that subsequently, it became dilapidated since it was not properly maintained. The above payment of land tax by P.W.2 will not strengthen the case of the plaintiff to prove possession for more than 12 years. Even though, the plaintiff purchased the property in the Year 1964. there are no documents to show that the plaintiff paid tax from the year 1964 till 1970. Even as per documents produced by the plaintiff. The possession of the plaintiff would commence only from the year 1970. Between 1964 till 1970, it is not shows that the plaintiff paid tax to the land. Exs.A-42 and A-43 would not show that the plaintiffs predecessor in title paid tax since Subbarayalu Naidu had not interest in the property on 30.3.1968. The document produced by the defendant Ex.B-1 will show that patta as transferred in his name on 3.6.1975. Ex.B-3 will show that the brother of defendant paid kist for Fasli 1374. Ex.B-4 will show that kist was paid in the name of Rathinam Sironmani Ammal. Ex.B-5 will show that the defendant paid kist on 9.6.1975. The trial court has held that mother of defendant died in the year 1950 and that therefore, Ex.B-4 in the name of Rathina Sironmani Ammal which relates to Fasli 1375 (6.2.66) is not valid in law. As Sironmani Ammal was the owner of the property, the kist receipts were issued in her name. Exs.B-1 and B-2 will show that patta was transferred in the name of defendant in the Year 1975. As Sironmani Ammal was the owner of the property, the kist receipts were issued in her name. Exs.B-1 and B-2 will show that patta was transferred in the name of defendant in the Year 1975. Therefore, it is quite probable that the kist was collected in the name of Srionamni Ammal, even though she died in the year 1950. The above infirmity in the evidence of defendant will not in any way probabilise the case of plaintiff. As already stated, as the defendant is owner of the property, he need not prove possession and in the case of Vacant site, possession follows title. In the above circumstances, the plaintiff cannot take advantage of infirmities in the evidence produced by the defendant to substantiate his claim. The payment of kist by the defendant and his brother in the year 1964-65 will show that in assertion of their title, they paid tax to the land. Therefore, even assuming that the plaintiffs predecessor in title were in possession, there was break in their possession between 1965 to 1970. The above fact is also strengthened by non production of tax receipts by the plaintiff in his name for the period from 1964 to 1970. 16. That apart, there is also evidence to show that the defendant has asserted his title to the suit property. The defendant issued notice on 29.9.1975 under Ex.B-6 to the plaintiff claiming title to the property, for which the plaintiff issued reply under Ex.B-7, Under Ex.B-10, the Tahsildar, has also passed order in favour of the plaintiff. But, subsequently, under Exs.B-11 and B-12, the said order was set aside. D.W.1 the defendant has stated that he was in possession of the hut put up in the suit property till the Year 1979 by enclosing the same with fence. The Commissioner who inspected the property after the date of the suit has filed report and plan under Exs.C-1 and C-2. In Ex.C-2, the Commissioner has noted the existence of the hut. The Commissioner inspected the property on 29.5.1980. The plaint was presented on 7.5.1980. It is, thus, see that within few days from the date of filing the suit, the Commissioner has noted hut in the property. It is thus, seen that the defendant is the owner of the property and he has been in possession of the same. The Commissioner inspected the property on 29.5.1980. The plaint was presented on 7.5.1980. It is, thus, see that within few days from the date of filing the suit, the Commissioner has noted hut in the property. It is thus, seen that the defendant is the owner of the property and he has been in possession of the same. The possession of the plaintiff, if any, would commence only from the year 1970. Therefore, the plaintiff cannot be said to have acquired title by adverse possession. The trial court has held that since the plaintiff was not in possession on the date of the suit, he did not acquire title by adverse possession. The trial court has also negatived the claim of the plaintiff that he was in possession of the property on the date of the suit. As already stated, P.W.2 had no title to convey the property to Subbarayalu under Ex.A-2 The oral sale set up by the plaintiff has not been established. As there is no evidence that either the plaintiff or his predecessor-in-title were in possession from 1965 to 1969-70, it cannot be said that the plaintiff has acquired title by adverse possession. For the above reasons, I hold that the appellate court was justified in negativing the claim of the plaintiff. 17. Learned counsel for the appellant relies upon a decision reported in Nair Service Society v. K.C. Alexander Nair Service Society v. K.C. Alexander Nair Service Society v. K.C. Alexander A.I.R. 1968 S.C. 1165. It is held in the above decision that a person in possession of the land in assumed character of owner has good title against all the world but the rightful owner and that if the rightful owner does not come forward and assert his title within the period prescribed by law of limitation, his right is extinguished. The above decision will not apply to the facts of this case, since the defendant asserted his title even in the year 1975 when he issued notice to the plaintiff. In another decision reported in Somanath Barman v. Raju Somanath Barman v. Raju Somanath Barman v. Raju (1970)2 MLJ. (S.C.) 29the Supreme Court has held that possessory title is a good title as against everybody than the lawful owner and that a trespasser or wrong does cannot defeat the lawful possession of a person who has proved possession for more than 12 years. (S.C.) 29the Supreme Court has held that possessory title is a good title as against everybody than the lawful owner and that a trespasser or wrong does cannot defeat the lawful possession of a person who has proved possession for more than 12 years. As already stated, the trial court has held that the plaintiff did not prove possession for 12 years. The possession of the plaintiffs predecessor in title was not continuous, since no evidence was produced to show that the plaintiff paid tax from 1965 to 1969-70. Therefore, the above decisions will not assist the case of the plaintiff in any way. Since the defendant has asserted his title within five years prior to the date of the suit and as the defendant also paid kist in the year 1965-66, it has to be held that the defendant as in possession of the suit land prior to the date of the suit. Thus, looked at from any angle, the plaintiff cannot claim title and possession to the suit property. For the above reasons. I hold that the reason given by the trial court for decreeing the suit of the plaintiff cannot be sustained. The appellate court has come to the correct conclusion in dismissing the suit filed by the plaintiff. I hold that there are no merits in the appeal. 18. In the result, the Second Appeal is dismissed. No costs. The judgment and decree of the appellate court are confirmed.