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2004 DIGILAW 1000 (MAD)

Vaithilinga Thevar v. Vadivel Asari and others

2004-08-05

S.K.KRISHNAN

body2004
JUDGMENT: The unsuccessful plaintiff in both the Courts below is the appellant herein. 2. The brief facts of the case are as follows: The schedule mentioned property originally belonged to one Vairava Thevar and his minor brother Vaithilingam. The uncle of the plaintiff Govinda Thevar purchased the property from the original owners by way of sale deed dated 17.10.1946. The plaintiff got the suit schedule mentioned property bearing Survey No.18/8 of Paingal Village by way of partition between himself and his uncle Govinda Thevar. Ever since the date of partition, the plaintiff is in possession and enjoyment of the suit property and the plaintiff obtained patta to the said land. The definite case of the plaintiff is that though the sale deed mentioned 35 cents, the real extent comprised in the said deed was 49 cents and situate in Survey Nos.18/8, 18/7 and 17/3. The defendants are residing in the month of the suit property and the defendants are in no manner of right in the suit Survey Number 18/8 of Paingal Village. It is stated that already live Kiluvai fence was in existence between the plaintiff’s land and the defendant’s property. When the plaintiff attempted to plough the land on 17.11.1982, the defendants and others obstructed the plaintiff from ploughing the said thoppu. The defendants have no manner of rights and they are not entitled to interfere with the possession and enjoyment of the plaintiff in respect of the suit property. The plaintiff also lodged a police complaint at Peravurani Police Station. Since the defendants were disputing the title of the plaintiff, the plaintiff filed the present suit for the relief of declaration of title and for permanent injunction. 3. The first defendant filed a written statement and the defendants 2 to 5 adopted the same. The defendants have denied the allegations stated by the plaintiff. They have further stated that as per Ex.B-1 sale deed dated 23.1.1943 they are entitled for the land measuring to an extent of 39 cents and they also got separate patta to the said land in their names. 4. During the course of trial, the learned District Munsif framed the following issues: (1) Whether the plaintiff is entitled to the relief of declaration and permanent injunction as prayed for? (2) Whether the plaintiff was in possession and enjoyment of the suit land on the date of filing of the suit? 4. During the course of trial, the learned District Munsif framed the following issues: (1) Whether the plaintiff is entitled to the relief of declaration and permanent injunction as prayed for? (2) Whether the plaintiff was in possession and enjoyment of the suit land on the date of filing of the suit? (3) To what relief, the plaintiff is entitled? 5. On the side of the plaintiff, the plaintiff examined himself as P.W.1 and examined one Ramachandran as P.W.12 and marked Exs.P-1 to P-6. On the side of the defendants, the first defendant examined himself as D.W.1 and Exs.D-1 to D-5 were marked and the Court has marked Commissioner’s report and plans as Exs.C-1 to C-4, respectively. However, the learned District Munsif was not satisfied with the case put forth by the plaintiff and dismissed the suit. 6. It has to be noted that when the plaintiff approached the Court of Subordinate Judge, Pattukottai by way of appeal by filing A.S.No.5 of 1991, the lower appellate Court framed the following issues for consideration of the first appeal. (1) Whether the plaintiff/appellant is entitled to the relief of declaration and permanent injunction in respect of 0.49 cents of land? (2) Whether the judgment and decree in respect of 14 cents is liable to be modified? (3) To what relief, the plaintiff/appellant is entitled? In the appeal also, the plaintiff has not succeeded. As against the judgment and decree of the lower appellate Court, the plaintiff has come forward before this Court by way of second appeal. 7. At the time of admission, this Court has framed the following substantial questions of law for considering the second appeal. (1) Whether the lower appellate Court is correct in not considering the question of adverse possession simply on the ground that it was not specifically pleaded even though the essential ingredients constituting adverse possession are given in the plaint? Vasudeva Padha Khedanga Garu v. Mugani Dewon Bakshi Matha Pantulu Garu, I.L.R. 214 Mad. 387 (PC). (2) Whether the lower appellate Court is right in not holding that possession in excess of the land covered under Ex.A-1 is possession by honest mistake and hence the appellant/plaintiff has prescribed title by adverse possession? Pavadai (alias) Selvaraj Chettiar v. Chinnasami Padayachi,93 L.W. 278. 8. 387 (PC). (2) Whether the lower appellate Court is right in not holding that possession in excess of the land covered under Ex.A-1 is possession by honest mistake and hence the appellant/plaintiff has prescribed title by adverse possession? Pavadai (alias) Selvaraj Chettiar v. Chinnasami Padayachi,93 L.W. 278. 8. On a perusal of the plaint it is clear that no reference is made therein as to from which year the plaintiff is in possession and enjoyment of the suit property, on the basis of the partition deed entered into between the plaintiff and his uncle Govinda Thevar. It is an admitted fact that in Survey No.18/8 the measurement is given only as 35 cents. However, the plaintiff would contend that even though 35 cents of extent is mentioned in Ex.A-1, the plaintiff is actually enjoying in extent of 49 cents of lands which comprise in Survey Numbers 18/8, 18/7 and 17/3. 9. It is further contended by the plaintiff that the defendants have no manner of right over the suit property and without any basis they interfered with the possession and enjoyment of the same by way of obstructing the plaintiff from ploughing the land on 17.11.1982. Since the possession of plaintiff was being obstructed by the defendants, the plaintiff approached the Court for the relief of declaration and permanent injunction in respect of the suit property. 10. Further no averments or ingredients of adverse possession are preferred to in the plaint. However, the plaintiff while adducing evidence before the trial Court has stated that on the north side (in Survey No.18/7) he is in possession and enjoyment of 8 cents and on the eastern side (in Survey No.17/3), he is in possession and enjoyment of 6 cents. Since he is said to be in possession of 49 cents in toto, on their basis he sought for the relief of declaration and permanent injunction against the defendants in respect of 49 cents. 11. It is in admitted fact that the defendants who are in possession of the northern side of the suit property claim that they are in possession of 39 cents under Ex.B-1 Sale deed dated 23.1.1943. The case of the plaintiff that even before the inspection by Advocate-Commissioner, the defendants destroyed the live kiluvai fence and they illegally put up a new fence covering further extent of 8 cents on the southern side of the suit property. The case of the plaintiff that even before the inspection by Advocate-Commissioner, the defendants destroyed the live kiluvai fence and they illegally put up a new fence covering further extent of 8 cents on the southern side of the suit property. Apart from this allegation the plaintiff has not stated anything about the other 6 cents concerned with Survey No.17/3. Even though the plaintiff claims possession over 0.498 cents of land he has not stated the satisfactory reasons for possessing the same. The plaintiff contended that not only he is in enjoyment and possessing of 0.49 cents of land but his vendor who sold the property under Ex.A-1 also enjoyed the same extent of 49 cents. Since the plaintiff vehemently contended the possession and enjoyment of the land to an extent of 0.49 cents it is just and necessary to refer the evidence of P.W.1. P.W.1 in his evidence has stated as follows: 12. Even though the plaintiff has stated that he is in possession and enjoyment of 0.49 cents for a long period he has not produced any materials for establishing his case. It is not the case of the plaintiff that he is in actual possession of 0.49 cents. It is a fact that as per Ex.A-1 sale deed, the extent of land is referred only as 35 cents. As already, discussed above since the plaintiff claims the excess extent of 14 cents of lands covering Survey No.18/7, 17/3, the burden lies only on the part of the plaintiff to prove the same. As already discussed above, the plaintiff has not at all stated that he is in possession of excess extent of 14 cents of land. With regard to encroachment of land by the defendants on the southern side, P.W.1 has stated as follows: 13. Apart from this P.W.1 has not stated anything with regard to possession and enjoyment of the plaintiff to the extent of 0.49 cents. It is to be noted that with regard to the encroachment made by the defendants towards the plaintiff’s property he adduced contradictory evidence. Since the plaintiff disputed with regard to the encroachment by the defendants, it is just and necessary to refer the Commissioner’s report Ex.C-1. 14. It is to be noted that with regard to the encroachment made by the defendants towards the plaintiff’s property he adduced contradictory evidence. Since the plaintiff disputed with regard to the encroachment by the defendants, it is just and necessary to refer the Commissioner’s report Ex.C-1. 14. According to the plaintiff, even prior to the visit of the Advocate Commissioner, the defendants destroyed the live kiluvai fence and thereafter they put up a new fence thereby they encroached upon the plaintiff’s property to the extent of 0.8 cents. It is seen that one Kuppusamy filed O.S.No.779 of 1982 on the file of District Munsif, Pattukottai against one Veerappa Achari and the plaintiff herein. In the said suit, a Commissioner was appointed and a direction was given to him to inspect the suit property and to file a report and sketch which have been marked as Exs.P-4 and P-5 in the present suit. In Ex.P-4 it is stated as follows: Apart from this, the Commissioner has not stated anything about the other physical features of the suit property. In this case, the Court appointed a Commissioner with a direction to submit a report. After inspection, the Commissioner submitted his report. A careful perusal of the report would show that he stated about the traces of the existing live kiluvai fence. With regard to the destruction of the kiluvai fence, the Commissioner has stated that two months prior to his inspection, the existing kiluvai fence would have been destroyed. Apart from this, the Commissioner has not stated anything with regard to the other physical features. 15. As already discussed above, the plaintiff even though he sought for the relief of declaration and permanent injunction in respect of 0.49 cents of land, to prove his long possession over the said extent, he had not stated such relevant plea in the plaint. Further, he has not stated in the plaint from which year he is in possession and enjoyment of the excess extent of 14 cents of land, other than 35 cents mentioned in Ex.A-1. It is seen that even though the plaintiff has stated in the plaint that on the north, east and south, he put up live kiluvai fence, to prove the same the plaintiff has not adduced satisfactory evidence. It is seen that even though the plaintiff has stated in the plaint that on the north, east and south, he put up live kiluvai fence, to prove the same the plaintiff has not adduced satisfactory evidence. It is a fact that the plaintiff has not come forward with clean hands to prove his possession over the excess of 14 cents of lands. Apart from the oral evidence adduced by P.W.1 and P.W.2, no materials or documentary evidence has been produced by the plaintiff to establish his long, and uninterrupted possession over excess of 14 cents. 16. It is to be noted that event though the substantial question of law was framed with regard to the adverse possession and even though it is stated that certain ingredients with reference to the adverse possession are also mentioned in the plaint, the plaintiff has not raised any such plea in the plaint. With reference to the above, this Court in S.Subba Reddiar and others v. Bhagyalakshmi Ammal alias Guruvachi Ammal and another, (1996)2 M.L.J. 327 : (1996)2 L.W. 31 , has held as follows: “The plea is absolutely necessary. What was the adverse character and when it started are only within the personal knowledge of the person claiming it. He alone can plead his possession from a particular date and claim that it was adverse. Art.65 of the Limitation Act provides that for recovery of possession on the basis of title, 12 years from the date on which adverse possession began. So, a definite date is required to claim adverse possession.” 17. In such circumstances, the Courts below have rightly come to the conclusion that the plaintiff is not entitled to the relief prayed for. Since the plaintiff has not come forward to prove his possession beyond 35 cents of land, the relief sought for by the plaintiff cannot be granted. 18. It is a fact that the plaintiff claims that he is in actual possession and enjoyment of the property covering to the extent of 49 cents. The extent of property covered in Ex.A-1 is only 35 cents. The case of the plaintiff is that he is in possession and enjoyment of 49 cents of land. As already discussed above, no such plea has been stated by the plaintiff as to from which year he is in possession and enjoyment of the excess of 14 cents of land. The case of the plaintiff is that he is in possession and enjoyment of 49 cents of land. As already discussed above, no such plea has been stated by the plaintiff as to from which year he is in possession and enjoyment of the excess of 14 cents of land. Since the plaintiff has not established his possession and enjoyment over the excess of 14 cents by producing the relevant and satisfactory evidence, the lower appellate Court has taken a right decision in holding that the plaintiff has not proved his title over excess of 14 cents. 19. In the light of the discussions held above, this Court does not find any valid reasons put forth by the appellant and hence, the second appeal fails and the same is liable to be dismissed. 20. In the result, the second appeal is dismissed and the judgments and decrees of the both the Courts below are hereby confirmed. Consequently C.M.P.No.7475 of 1993 is also dismissed. No costs.