Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 381 (MAD)

Antony v. Muniammal

2005-03-01

PRABHA SRIDEVAN

body2005
Judgment :- (Prayer: Appeal against the judgment and decree of the Court of the Subordinate Judge, Ambasamudram passed in A.S.No.15 of 2000 dated 29.01.2003.) The defendant is the appellant. The appellant filed CMP.No.922 of 2004 for restitution, pending the second appeal. Notice was ordered to the respondent and it was returned unserved. The notice sent by Certificate of Posting and Registered Post were also returned. Then paper publication was effected and even then there was no appearance. Thereafter, the second appeal is taken up. 2. The suit was filed by the respondent for declaration and recovery of possession. The suit was dismissed. The trial Court found that the plaintiff's claim that there was a landlord tenant relationship was not proved; that the release deed said to have been executed by the plaintiff's father in favour of the defendant is not proved; that the plaintiff has not proved that the suit property belongs to her. 3. The lower appellate Court reversed the said findings partially. It found that there was no landlord tenant relationship between the plaintiff's father and the defendants father; and that there was no release deed executed by the plaintiff's father in favour of the defendants father/defendant. The plaintiff/respondent claimed to be the daughter of one Chinnathambi in whose favour the suit property was said to have been assigned by the Government. The defendant/appellant denied that the plaintiff was Chinnathambi's daughter. The lower appellate Court found that in his evidence the defendant had admitted that the plaintiff is Chinnathambi's daughter and therefore, Ex.A-4 legal heirship certificate was accepted by the lower appellate Court. Ex.A-3 is the patta given to Chinnathambi. In fact, the defendant produced Ex.B-1, which is the assignment in favour of Chinnathambi by special Tahsildar (ADW). The lower appellate Court was not inclined to accept the defendant's case that either there was a release in favour of the defendant by the plaintiff's father or that the defendant has prescribed title by adverse possession and therefore, allowed the appeal. Against which, the present second appeal has been filed. 4. The following substantial questions of law were raised by the appellant: i) When the plaint allegations describing the defendant as tenant and if the Tamilnadu Lease and Rent Control Act applies to the area in question, is the Civil suit for recovery of possession is maintainable? Against which, the present second appeal has been filed. 4. The following substantial questions of law were raised by the appellant: i) When the plaint allegations describing the defendant as tenant and if the Tamilnadu Lease and Rent Control Act applies to the area in question, is the Civil suit for recovery of possession is maintainable? ii) Assuming the suit is maintainable, whether judgment of the lower appellate Court is not vitiated in law since it has rejected the claim of adverse possession by the defendant when there is legal evidence to that effect? 5. The learned counsel for the appellant submitted that Vikramasingapuram is a deemed Municipality, governed by the provisions of the Tamilnadu Buildings (Lease and Rent Control) Act 1960 (hereinafter referred to as `the Act') and therefore, a suit for recovery of possession alleging that the defendant is a tenant, is not maintainable. The learned counsel submitted that the plaintiff having filed the suit on the basis of landlord tenancy relationship must have paid the Court fees under Section 43 of the Tamilnadu Court Fees and Suits Valuation Act (for Short `the Court Fees Act') and not under Section 25 (a) of the Act. The court fee shall be paid only on the basis of the pleadings in the plaint. The learned counsel submitted that the court below erred in rejecting the plea of adverse possession, since documents had been filed right from the year 1966 to show that it is only the appellant who has been paying the tax and other statutory dues. The learned counsel pointed out to the evidence of P.W.1, which shows that she has never come anywhere near the property for over 30 years. The learned counsel further submitted that in the event of this Court accepting the case of the appellant, restitution must be ordered immediately. 6. The learned counsel relied on the decision reported in Garuda Singh Majhi Vs. Dhana Bai and others (AIR 1989 Orissa 103) to show that the Court may exercise its inherent power of restitution, where a party has been injured by an act of the Court. 7. Reliance was placed upon the decision reported in Sayyed Usman Saheb and others Vs. The learned counsel relied on the decision reported in Garuda Singh Majhi Vs. Dhana Bai and others (AIR 1989 Orissa 103) to show that the Court may exercise its inherent power of restitution, where a party has been injured by an act of the Court. 7. Reliance was placed upon the decision reported in Sayyed Usman Saheb and others Vs. Vegisena Sivarama Raju and others (AIR 1950 Madras 283), where a Full Bench had held that the Courts have a primary duty to take care that their Acts, though not injury to any of the suitors and therefore has inherent power to order restitution. 8. The learned counsel further relied on the decision reported in S.V.M.Nagavairavasundaram Vs. 1.S.Bageerathan and 2 others ( 1993 1 LW 331 ) where it was held as follows: "A reasonable time to enable the party to move against the decree in appeal or revision will enhance the interest of justice and cause no serious injury to the decree-holder. If, however, no such time is granted and the decree is hurriedly executed as has been done in the instant case, a serious question shall always arise whether to restore the status quo ante as it obtained before the execution of the decree and that will involve the consequence that a restitution proceeding creates, namely, to find out what was the status quo ante obtaining before the decree was passed and how far it is practical to restore status quo ante. These observations are made in the hope that the Courts below shall avoid such embarrassment. The instant case is a glaring example how for the reason of the hurry shown by the court below, the judgment-debtor-petitioner has been thrown out a propety and in spite of order of stay granted by this Court he is out of possession of the property. In the revision petition he has succeeded in showing that the impugned decree has not been passed in accordance with law. Yet it seems he is put out of possession unless restitution is ordered". Kamaraj Nagar Residents Assocaition rep. By its Secretary, Krishnamurthy Vs. K.Muthu ( 2000(II) MLJ 306 ) was relied upon for the proposition that it is well-settled that Court fee shall be calculated only on the basis of the allegations in the plaint. 9. The respondent though served has not chosen to enter appearance. 10. Kamaraj Nagar Residents Assocaition rep. By its Secretary, Krishnamurthy Vs. K.Muthu ( 2000(II) MLJ 306 ) was relied upon for the proposition that it is well-settled that Court fee shall be calculated only on the basis of the allegations in the plaint. 9. The respondent though served has not chosen to enter appearance. 10. The main grounds urged by the learned counsel for the appellant are with regard to adverse possession, Court fees and Jurisidiction. 11. As regards adverse possession, the appellant claimed that the respondent's parents had executed a release deed. According to him this document is in his possession, but he has not marked it. The appellant has admitted that the suit property was assigned to the respondent's parents by the Tamilnadu Government. The appellant has also admitted that the respondent is the daughter of the assignee. In these circumstances, the title claimed by the respondent cannot be denied, unless, the appellant proves that his title has been prescribed by adverse possession. 12. A party claiming adverse possession must prove that his possession has been nec vi ne clam nec precario (peaceful, open and continuous). The burden of establishing adverse possession is on the party who raises the said plea in defence. The true implication of the concept is hostile possession, possession in denial of the title of the true owner. Adverse possession has to be pleaded and proved. The written statement filed by the appellant has to be looked into to see as to how he has pleaded adverse possession. In paragraphs-3, 4 and 9 of the written statement, it is stated thus: 13. Though the appellant claims that he had obtained a document in his favour, the said document dated 20.03.1984 was not produced by him. If his case is that he had become the owner of the property and had thereafter paid the tax since his purchase, then he should have proved the same by producing the said document. Otherwise, it is clear from the pleadings above that he has acknowledged the title of the respondent. He claims to have got a release deed from them. In these circumstances, it is for him to show when he asserted his possession hostile to the true owner. There is nothing in his pleadings to this effect. 14. Otherwise, it is clear from the pleadings above that he has acknowledged the title of the respondent. He claims to have got a release deed from them. In these circumstances, it is for him to show when he asserted his possession hostile to the true owner. There is nothing in his pleadings to this effect. 14. The lower appellate Court has considered in detail the materials on record in this regard and has observed that though in the pleadings there is reference to a release deed dated 20.03.1984 that was not marked by the appellant. In evidence, the appellant had stated that on 16.03.1984, the respondent's father and mother executed a sale deed in his favour and he is ready to file it into the Court. It is also the appellant's case that in 1967 he applied for sanction from the panchayat and had built the house even as early as 1967, but those documents were also not produced by the appellant into Court. It is also his admission that in 1996 patta was given to the houses in this area and that the respondent has received the said patta and it would be given only to the owner. The following extracts from the judgment are relevant. It has been rightly held by the lower appellate Court that possession for however long a period cannot ripen into to adverse possession, unless, there is clear evidence regarding the date from which the party who pleads adverse possession had declared his intention to hold the property hostile to the true owner. This animus is the crucial factor. The court below has relied on the decision reported in Ponnaiyan Vs. Munia (died) and others (1995-1-LW 680), The State of Taml Nadu represented by the District Collector, Thiruchirapalli ( 1998(2) LW 171 ), Roop Singh (dead) through Lrs. Vs. Ram Singh (dead) through Lrs. 2001(1) LW 733. 15. The cross examination of P.W.1 also does not show that the appellant had to the knowledge of the respondent and hostile to her title been in possession of the suit property. The suit was filed on 04.09.1997. The question asked of this witness is whether she sent any notice after the appellant refused to pay the rent in the year 1995. This notice is dated 02.09.1996. The suit was filed on 04.09.1997. The question asked of this witness is whether she sent any notice after the appellant refused to pay the rent in the year 1995. This notice is dated 02.09.1996. Further, it has been suggested to her that even during her father's life time she had allowed the appellant's father to be in possession of the suit property. The relevant portion is as follows: If it is the appellant's case that his father had permitted/allowed to be in possession of the suit property by the respondent's father then that totally nullifies his case of adverse possession. One important factor is that respondent's father and the appellant's father were brothers. Therefore, the possibility of one brother allowing the other brother to be in possession is not unbelievable. Though it is true that neither of the parties have pleaded to that effect. In these circumstances, the question of adverse possession must be answered against the appellant. 16. As regards the Court fees, the respondent had issued a notice Ex.A-1 demanding rent. The appellant has refused to pay the rent and according to the plaint, untenable averments have been made in the reply notice. The respondent has therefore had filed the suit for declaration of title and injunction. The lower appellate Court rightly found that since the case of the tenancy has also been rejected and the relief of possession is granted consequent to the relief of declaration of title, the payment of Court fees under Section 25 (a) of the Court Fees Act cannot be said to be incorrect. Therefore, this question is also answered against the appellants. 17. As regards the third question of the ouster of the civil Court jurisdiction on account of the applicability of the Rent Control Act to lands at Vikaramasingapuram Municipality. This question was not raised before the Trial Court or Appellate Court. Without affording an opportunity to the other side to meet the objection, on law and facts it would not be correct to allow the party to raise this question now. Further since the plea regarding tenancy has also been rejected by both the Courts and decree for possession is granted consequent to the relief granting declaration of title, this ground is also rejected. 18. For the foregoing reasons, the second appeal fails and the same is dismissed. Consequently, connected CMP is closed.