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2006 DIGILAW 1332 (MAD)

M. Rathinam & Others v. A. Ramalingam

2006-06-14

S.ASHOK KUMAR

body2006
Judgment :- (Second Appeal preferred against the judgment and decree dated 23.1.1995 made in A.S.No.123 of 1993 on the file of the learned District Judge, Nagapattinam, reversing the judgment and decree dated 31.3.1993 made in O.S.No. 251 of 1989 on the file of the Learned District Munsif, Nagapattinam.) The defendants who could not succeed before the courts below has preferred this second appeal. 2. The plaintiff filed the suit for ejectment of the defendants from the suit property and for mesne profits. According to the plaintiff the suit property has been acquired by him who is adopted by his mother from her father Chokkappa Mudaliar through Will dated 5.7.1975. Even during the life time of Chokkappa Mudaliar, Murugaiyan who is the elder brother of the first defendant was in possession of the suit property and after his life time the defendants 4 and 5 were the leaseholders and the plaintiff by a release deed, dated 10.7.1987 obtained from them got possession of the suit properties, the remaining 30 cents of land has not been taken possession by the plaintiff since the first defendant had been in possession by constructing a house therein, they have been paying tax for the hut also. The plaintiff issued a show cause notice on 19.10.1987 to the first defendant's office calling upon him to deliver possession after removing the top, but the same has been returned as there was no such person in the said office, followed by a lawyer's notice on 8.2.1988. To the said notice a reply has been sent by the defendants on 19.2.1988 denying the title of the plaintiff as well as Murugaiyan besides contending that the release deed will not bind them. Hence the suit. 3. The defendants case in short is that they have been in possession of the suit properties in an extent of 56 cents for more than 40 years, during 1972 the first defendant constructed the house therein and he has been paying the tax for the same, the defendants 1 and 2 planted vegetables in the suit properties and the 4th defendant has only studied minimal standard and the 5th defendant is uneducated and therefore they have not and they could not execute any release deed in favour of the plaintiff. The suit is barred by limitation and it has not been valued properly. The suit is barred by limitation and it has not been valued properly. The defendants 1 and 2 are permanently reside at the suit village. 4. On the above pleadings and on hearing the learned counsel appeared on either side and on a perusal of the evidence both oral and documentary, the trial court though found that the plaintiff was entitled to the relief of recovery of possession of the suit property, but refused the relief of recovery of possession on the ground that the defendant had been in possession of the suit property for several number of years and he has prescribed title to the property. On appeal preferred by the plaintiff, the first appellate court granted the relief of recovery of possession as well holding that the defendant had not proved his possession for more than 12 years prior to the suit. As against the same, the defendants have preferred this Second Appeal and they have not challenged the decree granting the relief of declaration of the appellate court. 5. At the time of admission, this court framed the following substantial questions of law in this Second Appeal:- " (i) Whether a valid claim for adverse possession has been pleaded and established? (ii) Whether the lower appellate court has failed in acting on the basis of Ex.A.11 Will?" 6. Learned senior counsel appearing for the appellants/defendants contended that unless the Will of Chokkappa Mudaliar is proved it cannot be said that the plaintiff's title to the suit property is proved. Admittedly, the original will was not produced along with the Plaint nor has it been produced at the time of trial or till date. Only a certified copy of the same has been produced. According to the learned senior counsel P.W.1 has not stated anything about the Will in his evidence nor about the availability of any one of the persons living at the time of trial of the suit to depose in the capacity of the attesters to the said will or as scribe or as any one who is well acquainted with the signature of the executant as provided in section 68 of the Indian Evidence Act read with section 63 of the Indian Succession Act. Only P.Ws 3 and 4 speak about the will and their evidence is also neither direct evidence nor in any manner construed as primary evidence. Only P.Ws 3 and 4 speak about the will and their evidence is also neither direct evidence nor in any manner construed as primary evidence. According to the learned senior counsel, failure to produce the original Will or to give any satisfactory explanation for non production of the original Will by the plaintiff in his pleadings as well as in his evidence is fatal to his claim. According to him, the courts below failed in relying upon the certified copy of the Will produced by a third party. With mere patta, the plaintiff cannot prove title as has been held by this court in 2000 (4) CTC 725 . With regard to the question of recovery of possession, the failure of the plaintiff to prove that he objected to the construction of the house in the year 1979-80 itself will falsify his case. On the other hand the case of the defendant 1 and 2 is that the entire 56 cents was enjoyed by Murugaian, brother of the first defendant along with third defendant and after his death about 20 years prior to 1989, D1 and D3 have been enjoying the same lands. Thus the trial court is right in holding that the defendants were in lawful possession right from 1972 and that the case of the plaintiff regarding trespass in 1979-80 is false. The release deed is not binding on the defendants 1 and 2. Under Section 110 of the Indian Evidence Act, the person in possession is presumed to be the owner of the same and it is for the person who alleges he is not the owner to prove the same and prove better title. Having failed to prove the title property, the plaintiff cannot seek recovery of possession as has been held in 2003(2) MLJ 57 (SC) relying on AIR 1968 SC 1165 . 7. On the other hand, learned counsel appearing for the respondent/plaintiff contended that the defendants have not proved their adverse possession for more than 12 years and there is no proof for such possession in the suit property prior to 1979. According to the learned counsel even the notice issued prior to the suit has been received by the defendant only at Trichirappalli under Ex.A.5 and the tax receipts filed by them are subsequent to 1979. According to the learned counsel even the notice issued prior to the suit has been received by the defendant only at Trichirappalli under Ex.A.5 and the tax receipts filed by them are subsequent to 1979. The defendants have executed Ex.A.4 releasing their right to possession and also stating that the property was originally in the possession of their father as a lessee. They have also affirmed that they would cooperate with the plaintiff to secure the ejectment of the first defendant who holds possession of 30 cents which is the suit property. the possession had commenced with the father of the defendants as a lessee and therefore such a possession cannot be deemed to be adverse. As regards the proving of the Will, learned counsel contended that there was not even an issue before the trial court or the appellate court regarding the truth and validity of the Will. The defendants have not even preferred an appeal against the decree granted by the trial court. The defendants are strangers to the family and they have no caveatable interest to deny the truth and validity of the Will. In any event the registration copy of ex.a.11 has been filed since the original Will is missing. Moreover P.W.3 has spoken about the fact that Murugesan who is one of the attestors has died and the whereabouts of the scribe are not known. Two of the attestros who are respectively the mother of the plaintiff and the testator's wife are no more. Pursuant to the Will, one item of the property has been sold by the plaintiff to P.W.4 and the copy of the document compared with the original has been marked through the purchaser P.W.4 as Ex.A.10, which traces the title of the plaintiff to the Will. The patta also stands in the name of the plaintiff and thus the plaintiff's title to the property is unimpeachable and the decree regarding the title granted by the courts below are justified. Further, in a suit for ejectment, if the plaintiff has established his title, decree shall not be refused unless the defendant establishes adverse possession as has been held by this Court in AIR 1976 Madras 124. 8. Further, in a suit for ejectment, if the plaintiff has established his title, decree shall not be refused unless the defendant establishes adverse possession as has been held by this Court in AIR 1976 Madras 124. 8. As regards the truth and validity of the Will, the trial court on a thorough consideration of Exs.A.1, and 8 to 11 and also the oral evidence of 1,2 and 4 concluded that the plaintiff is having title to the suit property. The defendants 4 and 5 under Ex.A.2, dated 10.7.1987 a registered release deed have relinquished their lessee right. To prove the release deed P.Ws 3 and 4 have been examined by the plaintiff. The defendants 4 and 5 have also admitted the execution of the release deed in their written statement. The defendants 4 and 5 have not been examined as witnesses on the defendants side. Admittedly the 4th defendant has put his signature in English. As seen from the recitals of the release deed, they have executed the release deed after obtaining a sum of Rs.6000/= to meet the family expenses. The first appellate court also referred to Ex.A.7 wherein the execution of Ex.A.2 has been mentioned and held that it is unbelievable that defendants 4 and 5 were not having worldly knowledge. Apart from all these factors, the defendants have not preferred any appeal or cross appeal before the first appellate court challenging the relief of declaration in favour of the plaintiff. 9. As regards the contention of adverse possession, though the defendants in their written statement contended that they have been in possession of the suit property for more than 40 years, they have not contended that by that possession they have prescribed title adverse to the plaintiff. The defendants have only produced tax receipts, Exs.B.1 to 9 of the year 1979. There is no acceptable proof filed by the defendants 1 and 2 like voter's list, ration card to show that they were residing in the suit property. As rightly contended by the learned counsel for the respondent, the burden of proof is on the defendant who claims the right to property by way of adverse possession. The first appellate court after appreciation of evidence rightly held that when the defendants lost their right of lease, they are liable to be evicted. In the above circumstances, both the substantial questions of law are answered against the appellants. The first appellate court after appreciation of evidence rightly held that when the defendants lost their right of lease, they are liable to be evicted. In the above circumstances, both the substantial questions of law are answered against the appellants. 10. In the result, the Second Appeal is dismissed confirming the judgment and decree of the first appellate court. No costs.