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2001 DIGILAW 1403 (MAD)

Pushpavathi Ammal v. T. Munuswamy and others

2001-11-26

M.CHOCKALINGAM

body2001
JUDGMENT: This second appeal has arisen from the judgment and decree of the learned Subordinate Judge, Poonamallee made in A.S. No.6 of 1989 preferring from the judgment and decree of the learned District Munsif, Poonamallee made in O.S. No.1255 of 1975, dated 21.7.1987. 2. The appellant herein filed a suit for declaration of title and consequential permanent injunction along with mandatory injunction with the following averments. The appellant/ plaintiff was the wife of late Manavala Naidu and she was adopted and foster daughter of late Chengalvaraya Naidu. Chengalvaraya Naidu died issueless and his wife Kannammal predeceased him. Chengalvaraya Naidu left all his properties to be succeeded by the plaintiff. He executed a registered settlement deed in favour of the plaintiff and his wife late Kannammal on 25.10.1938 in respect of the properties with life interest to Kannammal and after her death to be taken and enjoyed by the plaintiff absolutely with all rights of disposition. The settlees accepted the settlement deed and had taken possession of the settled properties. After the death of Kannammal, the plaintiff alone is the only settlee to get the entire settled properties and she has been in possession and enjoyment of the entire settled properties absolutely and peacefully without any interruption by anybody The said Chengalvaraya Naidu had purchased the house site measuring 29 ft. north to south and 59 ft. east to west in S.No.91/B present S.No.91/2 in village No.20. Nimmalacheri village described in the schedule by a registered sale deed, dated 26.2.1912 and has been in possession and enjoyment till his life time. Late Chengalvaraya Naidu and the plaintiff have been in possession and enjoyment of a Nona tree in the scheduled land and they have been using the schedule land by taking their cattle, straw and cart through it and they have also been using the scheduled land as passage for reaching the backyard of the residential house of the plaintiff adjoining to and on the southern side of the scheduled land. Without the scheduled land, the backyard of the plaintiff’s house in S.No.91/2, situated on the southern side of the scheduled land cannot be enjoyed at all. Without the scheduled land, the backyard of the plaintiff’s house in S.No.91/2, situated on the southern side of the scheduled land cannot be enjoyed at all. The scheduled land was essential for the convenient enjoyment of the backyard of the plaintiff’s house and the plaintiff has also stored bricks and other materials on the scheduled land about 14 years ago and had constructed residential house on the adjacent southern land about 14 years ago. The plaintiff has acquired title by adverse possession and prescription also over the scheduled land for over the statutory period. The defendants had no manner of title or possession over the scheduled land. While so, recently about a month ago, the third defendant had illegally and forcibly in collusion with the other defendants put up a small thatched hut on the western side of the scheduled land facing the street despite the objections of the plaintiff. The respondents/ defendants were never in possession and enjoyment of the scheduled land at any point of time. Nobody was residing in the hut put up by the third defendant in a portion of the scheduled land. The defendants have obstructed the plaintiff’s usage on and from 15.8.1975 wrongfully and illegally. The plaintiffs also sent a notice to the defendants 2 and 3 on 23.8.1975. Under such circumstances, there arose a necessity for filing a suit for declaration of title along with consequential permanent injunction and mandatory injunction for removal of hut put up by the respondents herein. 3. The said suit was resisted by the second defendant by filing a written statement with the following averments. The suit claim was neither true nor sustainable. The defendants did not admit that the plaintiff as the foster daughter of Chengalvaraya Naidu. She was the daughter’s daughter of Nathamuni Naidu, brother of Vinukanda Chengalvaraya Naidu’s wife Kannammal. The father of the defendants, Thambayya Naidu died in August, 1972. Vinukanda Munusami Naidu, father of Bakthavathsalu Naidu, the father of Thambayya Naidu and Chengalvaraya Naidu’s father’s father were brothers. The defendant did not admit the settlement deed, dated 25.10.1938 in favour of the plaintiff or that Kannammal and the plaintiff accepted any settlement deed and the former took possession of the properties and after her death the plaintiff took possession of the same. It is false to state that Chengalvaraya Naidu purchased the suit site. The defendant did not admit the settlement deed, dated 25.10.1938 in favour of the plaintiff or that Kannammal and the plaintiff accepted any settlement deed and the former took possession of the properties and after her death the plaintiff took possession of the same. It is false to state that Chengalvaraya Naidu purchased the suit site. On the other hand, it was purchased by Janaki Ammal, the father’s mother of the father of the defendants with the joint family funds of the defendant’s branch. As there was enmity between her and Narayanasami Chetti, Chengalvaraya Naidu purchased the site benami for Janaki Ammal, who then managed the family affairs. The defendant denied that Chengalvaraya Naidu was ever in possession of the suit site. It was in the possession of the defendant’s branch from the date of purchase in 1912. Chengalvaraya Naidu never asserted title because the sale deed stood in his name only benami. The Nona tree was never enjoyed by Chengalvaraya Naidu or the plaintiff, but only by the defendant’s branch. It is not correct to state that the suit site was used as passage by the plaintiff or Chengalvaraya Naidu. This was also not correct to state that the plaintiff’s back-yard cannot be reached except through the suit site. The defendants denied that the plaintiffs stored bricks and other materials in the suit site at any point of time. The defendants and Rangayya Naidu were the owners of the suit site. It was also not correct to state that about a month before the date of the plaint, they put up a hut in the suit site. On the other hand, it was put up in 1960 and from then the defendants were using it. The hut was not in the street but in the suit site. The plaintiffs never objected to the putting up of the hut or its existence. The defendants denied that the defendants were not residing in the hut. The sketch filed with the plaint was not correct either in locations or in the measurements. A reply notice was sent to the plaintiffs. The notice sent by the plaintiffs did not contain any Schedule or description of the property sufficient to identify it. The plaintiffs were not the legal representatives of Chengalvaraya Naidu. The plaintiffs were never in the possession of the suit property. A reply notice was sent to the plaintiffs. The notice sent by the plaintiffs did not contain any Schedule or description of the property sufficient to identify it. The plaintiffs were not the legal representatives of Chengalvaraya Naidu. The plaintiffs were never in the possession of the suit property. The suit was bad for non joinder of Rangayya Naidu and hence the suit was to be dismissed. 4. On the above pleadings, the trial Court framed necessary issues, tried the suit and granted decree in favour of the plaintiffs. Aggrieved over the same, an appeal was filed by the defendants, wherein the lower appellate Court confirmed the decree of the trial Court. The said judgment of the lower appellate Court was appealed against by the defendants before this Court in S.A. No.1626 of 1982. After hearing both sides, this Court allowed the appeal and passed a remittal order, which is as follows: “The second appeal is allowed, the judgment and decree of the Courts below are set aside and the suit is remitted to the trial Court for trial afresh only on the question as to whether the plaintiff has perfected title to the suit property by adverse possession. The parties will be at liberty to adduce both oral and documentary evidence only in this regard. There will be no order as to costs in this second appeal. The Court fee paid on the memorandum of grounds of second appeal will be refunded to the appellant.” After the remand, the trial Court framed necessary issues, tried the suit by giving opportunity to both sides and dismissed the suit. On appeal, by the plaintiffs, the learned Subordinate Judge has also confirmed the judgment of the trial Court. Against which, the plaintiffs has preferred this second appeal. 5. At the time of admission, the following substantial question of law was formulated for consideration of this second appeal. “Whether the plaintiff is not entitled to permanent injunction on the basis of concurrent findings regarding possession before remand not set aside in S.A. No.1626 of 1982?” 6. As seen above, the appellant herein filed a suit for declaration of title with consequential permanent injunction and mandatory injunction. When the judgment of both the Courts were in favour of the appellant/ plaintiff, the respondent herein preferred an appeal in S.A. No.1626 of 1982. As seen above, the appellant herein filed a suit for declaration of title with consequential permanent injunction and mandatory injunction. When the judgment of both the Courts were in favour of the appellant/ plaintiff, the respondent herein preferred an appeal in S.A. No.1626 of 1982. This Court, after hearing both sides, has remitted the matter back for limited purpose of deciding the question afresh as to whether the appellant/ plaintiff has perfected title to the suit property by adverse possession. After remand, both the Courts below have found against the plaintiff, who has preferred this second appeal. 7. The learned counsel appearing for the appellant inter alia would submit that it is pertinent to note that the trial Court as well as the lower appellate Court have held that the plaintiff was in possession and the defendants dispossessed just before the suit and that the plaintiff acquired title by prescription and in S.A. No.1626 of 1982, this Hon’ble Court set aside the finding regarding prescriptive title alone; that the claim of the respondents was negatived by the trial Court as well as by the lower appellate Court and confirmed by this Honourable Court and this finding has become final; that the other findings rendered before remand were not set aside and the only purpose for which the suit was remanded is to reconsider the plea of adverse possession; that even though the appellant has not acquired title by prescription, she was entitled to maintain her possession against the defendants/ respondents, who had no title vide: A.I.R. 1968 S.C. 1126; that the appellant was entitled to a decree for permanent injunction on the basis of findings rendered before remand and which was not set aside by this Hon’ble Court, even though she had not title but was in possession; that the appellant was a legal representative of the deceased Chengalvaraya Naidu within the meaning of Sec.2(11), C.P.C. and hence was entitled to maintain the suit because it was admitted by D.W.2. the second defendant that the appellant was in possession of all the properties of Chengalvaraya Naidu and the suit property was accepted as the property of Chengalvaraya Naidu by all the Courts and hence the lower Courts were in error in holding that the plaintiff did not acquire title by prescription and hence, the judgment of the lower Courts have got to be set aside and the suit has got to be decreed. 8. Vehemently opposing the contentions put forth by the appellant’s side, the learned senior counsel appearing for the respondents would urge that when an appeal was preferred by the respondent before this Court in S.A. No.1626 of 1982, the matter was remitted back to the trial Court with a specific direction to decide the question of adverse possession contended by the appellant’s side. But the appellant has miserably failed to prove the same before both the Courts. Under such circumstances, both the Courts have given concurrent finding that the appellant/ plaintiff has not proved the same and in view of the concurrent finding on facts that the plaintiff has not proved the adverse possession, there is nothing to interfere in the judgment of the lower Courts. Added further, the learned counsel that there was no substantial question of law in this appeal and hence the appeal is devoid of merits and has got to be dismissed. 9. The appellant herein filed a suit for declaration of her right over the suit property with consequential permanent injunction. On contest by the respondents herein, the suit was decreed and the lower appellate Court also confirmed the decree of the trial Court. When the same was challenged before this Court by the respondents in S.A. No.1626 of 1982, this Court after discussion of the rival submissions and on merits of the case, set aside the judgment of the Courts below and remitted the matter back to the trial Court for trial afresh only on the question as to whether the appellant/ plaintiff has perfected title to the suit property by adverse possession. After remand, the appellant adduced additional evidence by examining two witnesses. Both the Courts have recorded concurrent finding that the appellant has not proved the adverse possession as contended by her. Hence, at this stage, what could be challenged in the second appeal would be only regarding the finding of the Courts below in that regard. After remand, the appellant adduced additional evidence by examining two witnesses. Both the Courts have recorded concurrent finding that the appellant has not proved the adverse possession as contended by her. Hence, at this stage, what could be challenged in the second appeal would be only regarding the finding of the Courts below in that regard. This Court is of the considered view that no substantial question of law would arise for consideration. The Honourable Apex Court in a case in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, (1999)3 S.C.C. 722 , has held as follows: "Civil Procedure Code, 1908, Sec.100 (as amended in 1976) - Second appeal - Scope of Sec.100 after 1976 amendment - Held: (1) High Court must adhere to the procedure and conditions prescribed in the section and no Court has the power to add to or enlarge the conditions of appeal; (2) High Court must satisfy itself that a substantial question of law is involved and must then formulate the question on which the appeal would then be heard; (3) the respondent has the right to argue that no substantial question of law is involved; (4) a second appeal cannot be decided on merely equitable grounds; (5) the Court must distinguish between a question of law and a substantial question of law; (6) a substantial question of law must be distinguished from a substantial question of fact and (7) concurrent findings of fact however erroneous, cannot be disturbed under the section - Proviso to Sec.100 however, in the interest of justice permits the High Court to hear an appeal on a substantial point of law even though not formulated by it - Held, on facts, no question of law was involved and High Court wrongly disturbed the findings of facts of the first appellate Court without adhering to the principles of and limitations imposed by Sec.100 - Practice and procedure - Second appeal - Interference in." From the above decision of the Apex Court, it would be clear that the appellant has to necessarily show that there was substantial question of law involved and the respondents have also right to urge that no substantial question of law was involved. In the absence of substantial question of law, this Court cannot disturb the finding on the fact of the first appellate Court without adhering to the principles of limitation imposed by Sec.100. In the absence of substantial question of law, this Court cannot disturb the finding on the fact of the first appellate Court without adhering to the principles of limitation imposed by Sec.100. Under such circumstances, both the Courts below were perfectly correct in recording the finding against the appellant as to the question by adverse possession and dismissed the suit. 10. It remains to be stated that the appellant sought for declaration of title alleging that the suit properties were the properties of Chengalvaraya Naidu, who executed a registered settlement deed in favour of his wife Kannammal and the plaintiff on 25.10.1938 with life interest to Kannammal and on her death to be taken by the plaintiff absolutely. It is not disputed by the appellant’s side that the suit property was not included in the settlement deed, Ex.A-1. Having failed in her attempt to prove her title to the suit property under Ex.A-1, the appellant has put forth a plea that she has perfected title of property by adverse possession. A scrutiny of the evidence both oral and documentary would reveal that both the parties have claimed that they have been in possession of the property. It is not in dispute that there was a Nona tree in the suit property and it was contended by both sides that they were enjoying the said tree. Since the appellant has claimed title to the suit property by adverse possession, a duty is cast upon her to specifically plead and prove the necessary requisites, namely, the commencement of the said possession, the exclusive, continuous and hostile possession against the owner of the property. In the instant case, both the Courts have rightly recorded that the appellant has not proved the same. What are all pleaded regarding the adverse possession in the plaint is "the plaintiff has therefore perfected title by adverse possession and prescription also over the scheduled land for over a statutory period". Though it was contended by the appellant’s side that the plaintiff and her predecessor in title were in possession and enjoyment of Nona tree in the scheduled land they were using the land by taking their cattle, straw and cart through the same and tethering cattle and heaping straw and manure in the said land. Both the Courts have pointed out that the appellant has not adduced sufficient evidence to hold so. Both the Courts have pointed out that the appellant has not adduced sufficient evidence to hold so. Both the Courts have pointed out the evidence that the witnesses/ examined before remand and after remand were in no way helpful to the appellant’s side. As rightly pointed out by the learned counsel for the respondents that the sporadic acts of the appellant even assuming to have been done so, would not clothe the appellant with the right to claim adverse possession. Even according to the plaintiff, the respondents were residing in hut situated in the suit property 25 years ago and subsequently, they removed the hut and went away. The lower appellate Court has pointed out that from the evidence of the plaintiff, it would be clear that till 1955 the respondents were occupying the suit property and the case of the appellant that Chengalvaraya Naidu was in possession of the suit property was false. It was specifically contended that the respondents encroached the property and raised a hut just one month before the filing of the suit. Hence, the appellant sought for mandatory injunction against the respondents for removal of the hut. But P.W.5, who was examined after remand, has deposed that there was no hut in the suit property and hence, the lower appellate Court has rejected his evidence. The appellant, who claimed title of the property under Ex.A-1, settlement deed, has miserably failed to prove her title. Hence, both the Courts have correctly recorded the concurrent finding that the appellant has not proved her title. In the absence of requisite pleadings and necessary and sufficient proof as to the open, continuous and exclusive possession of the appellant, it cannot be held that the appellant has perfected title by adverse possession. Under the circumstances, both the Courts were perfectly correct in recording the finding against the appellant. Hence, there is nothing to interfere in the concurrent finding of the Courts below. 11. In the result, the second appeal is dismissed. The parties shall bear their costs.