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2004 DIGILAW 706 (MAD)

Rajagopal Reddiar v. Ramasami Reddiar and another

2004-04-27

M.CHOCKALINGAM

body2004
JUDGMENT: The defendant in a suit for declaration in respect of immoveable property, recovery of possession and mesne profits, on rejection of his defence by the First Appellate Court though accepted by the trial Court has brought this Second Appeal. 2. The short facts leading to the case are as follows: A small piece of land measuring to an extent of 7 cents in S.No.18 in Siddhandurai Village originally belonged to one Munusami Reddiar and the same was purchased by another Munisami Reddiar by a sale deed dated 5.6.1931 and from him Durasami Reddiar, father of the plaintiff purchased for a sale consideration of Rs.1000, Ex.A-1 dated 16.3.1939. Out of 7 cents, two cents were acquired by the Government for the purpose of laying road and the remaining 5 cents were sub divided as S.No.18/2; that the said Duraisami Reddiar died intestate in 1967; that he had two sons by name Veeraraghava Reddiar and Krishnamurthy Reddiar; that the property came to their hands; that Krishnamurthy Reddiar died in 1980 leaving behind his wife Dhamaianthi and two sons Balaji and Murali, aged 9 years and 7 years respectively; that Veeraraghava Reddiar and the heirs of Krishnamurthy Reddiar executed the release deed dated 13.9.1986 in respect of the property in question, thus, the plaintiff became entitled to the property in full and he has been enjoying the same. While so on 1.9.1986 the defendants trespassed into the property and got into possession. Under such circumstances, there arose a necessity for filing a suit for declaration and possession and for other reliefs. 3. While so on 1.9.1986 the defendants trespassed into the property and got into possession. Under such circumstances, there arose a necessity for filing a suit for declaration and possession and for other reliefs. 3. The suit was contested by the defendant stating that the property never belonged to Munusami Reddiar nor it was purchased by another Munusami Reddiar and hence Ex.A-1 could not convey title to the father of the plaintiff and the property originally belonged to the defendants ancestorally and they have been enjoying the same all along and there was a family partition among the brothers in the year 1965 and leaving two cents which were taken by the Government, the remaining 5 cents was enjoyed by the defendants, each having 2-1/2 cents; that the 2nd defendant made a oral sale of his 2-1/2 cents to the first defendant, thus the first defendant became entitled to 5 cents totally and thus, patta was also granted in his favour and he was in possession and enjoyment of the same all along and thus, it was a false claim made by the plaintiff which has got to be rejected. 4. On the above pleadings, the trial Court framed necessary issues, tried the suit and dismissed the same, agreeing with the plea of adverse possession put forth by the defendants. An appeal was preferred by the plaintiff. The Appellate Court granted a decree in favour of the plaintiff by reversing the judgment of the trial Court. Hence, this second appeal has been brought forth by the defendants. 5. At the time of admission, the following substantial questions of law were formulated by this Court for consideration. (1) Whether the lower appellate Court misconstrued or omitted to construe the material evidence on record when it chose to reverse the well considered judgment of the trial Court? (2) Whether the lower appellate Court has properly appreciated and applied the principles governing the prescription of title by adverse possession to the facts of the present case? 6. This Court heard the learned counsel for the appellants and also the respondents/plaintiffs and paid its full attention on the rival submissions made and also on a thorough scrutiny of the available materials found that there is no merit in this appeal. 6. This Court heard the learned counsel for the appellants and also the respondents/plaintiffs and paid its full attention on the rival submissions made and also on a thorough scrutiny of the available materials found that there is no merit in this appeal. The controversy between the parties in the suit was only with respect to 5 cents of land situate originally in S.No.18 which was subsequently sub-divided into S.No.18/2 in Siddhandurai Village. The plaintiff in order to substantiate his claim has filed Ex.A-1 sale deed dated 16.3.1939 executed by one Munusami Reddiar in favour of his father Duraisami Reddiar. It is not in dispute that the property covered under Ex.A-1 dated 16.3.1939 is the property in question. In order to prove the ownership of the property with the original owner, one Munusami Reddiar was questioned during the pendency of the first appeal and the parent document was also produced. The plaintiff in order to prove the origin of title had relied upon the said document of sale. There was a family partition which took place among the members of the family of the plaintiff in the year 1971. It is well admitted by the plaintiff that in that partition among the members of the family, the property in question was not included. Learned counsel for the defendant has raised this contention before both the Courts below. Had it been true that the property belonged to the family of the plaintiff, it should have been added as the property in that partition but it was not added. This would indicate the fact that the property did not belong to the said family. This contention was rightly rejected by both the Courts in view of Ex.A-6 Deed of Release which was executed in the year 1986 by other members of the family relinquishing their rights of the property in question in favour of the plaintiff and thus, the plaintiff in order to prove the title to the property has relied on the original title deed through which his father came to own the property and under Ex.A-6 he became fulfledged owner of the property. The first appellate Court has clearly pointed out that he has relied on the adangal, chitta and all these documents in order to prove possession prior to the alleged trespass made by the defendants. 7. The first appellate Court has clearly pointed out that he has relied on the adangal, chitta and all these documents in order to prove possession prior to the alleged trespass made by the defendants. 7. At this juncture, it has to be pointed out that both the Courts had concurrently found the title of the plaintiff in respect of the property which was also not questioned by the appellant in this appeal. But the contention of the defendant is that he came into possession of the property by way of trespass and he has been in possession for more than the statutory period and thus, has acquired title to the property by adverse possession. The defendant plea was accepted by the trial Court which was rejected by the First Appellate Court and rightly to. Originally the case of the defendant was that the property belonged to them ancestorally but there was no proof in that regard and according to the defendants there was a division among the members of the family in respect of the property of the family and this property in question namely 5 cents was also divided and both the brothers had 2-1/2 cents by way of partition chit. Though the defendant has well admitted that the said chit was very well available, it was not produced before this Court for the reasons best known to them. Apart from that the further the case of the first defendant is that the 2nd defendant made a oral sale of his 2-1/2 cents to him. In order to prove the same, the first defendant had not examined the 2nd defendant, though the 2nd defendant was very well alive and available. Hence, that contention was rightly rejected. The last contention that was put forth was one of adverse possession. The appellate Court has clearly found that though the defendant has stated in his written statement that he was in possession of the property from 1966, not even one material was placed to hold so. It is pertinent to point out that the 2nd defendant was a Village Munsif and he has not even placed one receipt for any payment during the relevant period. The document produced did not show that they are in possession of the property for more than 12 years or they were in possession of the property with the hostile attitude against the real owner. The document produced did not show that they are in possession of the property for more than 12 years or they were in possession of the property with the hostile attitude against the real owner. The claim of the title to the property through adverse possession against the real owner is not proved. Therefore, the question of adverse possession pleaded by the defendant has to be rejected. The first appellate Court has rightly rejected the plea of the defendant. 8. This Court is unable to see any merit in the appeal. Therefore without hesitation, the finding recorded by the first appellate Court has got to be accepted. Accordingly, the appeal fails and the same is dismissed leaving the parties to bear their costs.