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2006 DIGILAW 1776 (MAD)

Pattammal v. K. V. Radhakrishnan

2006-07-13

S.K.KRISHNAN

body2006
JUDGEMENT :- Aggrieved by the judgement and decree passed by learned Principal Subordinate Judge, Poonammallee in A.S. No. 71 of 1990, dated 20-3-1991, reversing the judgement and decree passed by the learned District Munsif, Poonammallee, in O.S. No. 217 of 1989, dated 31-1-1990, the second plaintiff has filed the above second appeal. 2. The facts leading to the filing of this appeal are as follows : The suit property was purchased by the first plaintiff from Vembuli Naicker and others by executing a sale deed dated 12-9-1940. After the purchase, at the request of Palaya Naicker and Kanniappa Naicker, who are the sons of Vembuli Naicker, the first plaintiff leased out the suit property to them for a period of two years and for the rent of 5 annas per month by executing a lease deed dated 14-9-1940. However, as the said Palaya Naicker and Kanniappa Naicker surrendered the suit property before the completion of the lease period, at the request of the first defendant Kannammal, who is the wife of Gengappa Naicker, leased out the suit property to her for a monthly rent of 8 annas per month and the first defendant did not pay the rent for about four years. While so, the first plaintiff was shocked to receive summons in O.S. No. 742 of 1976 on the file of the District Munsif Court, Poonammallee, which was filed by the first and second defendants for the relief of permanent injunction. The first plaintiff did not express any objection for granting injunction. In the reply sent by the advocate for the defendants, the tenancy of the first defendant was repudiated and title was set up by the defendants and therefore, the first plaintiff issued a notice under Section 111(g) of the Transfer of Property Act forfeiting the tenancy. Having regard to the denial of the title of the first plaintiff to the suit property, he filed the above suit for declaration of his title to the suit property and for recovery of possession of the suit property. 3. Denying the averments made in the plaint, the defendants have filed their written statement. 4. During the course of trial before the learned District Munsif totally four witnesses were examined including the plaintiff and on her behalf Exs. A.1 to A.10 were marked. On the side of the respondents/defendants, the second defendant was examined as D.W. 1 and Exs. 3. Denying the averments made in the plaint, the defendants have filed their written statement. 4. During the course of trial before the learned District Munsif totally four witnesses were examined including the plaintiff and on her behalf Exs. A.1 to A.10 were marked. On the side of the respondents/defendants, the second defendant was examined as D.W. 1 and Exs. B.1 to B.11 were marked. 5. The appellant before this Court is the second plaintiff. The suit seeking the relief of declaration and injunction was filed by the one Munisamy Mudaliar against the defendants Kannammal and Radhakrishnan. Radhakrishnan is the son-in-law of the defendant Kannammal. Pending trial of the suit, Munisamy Mudaliar as well as the first defendant Kannammal passed away. Hence, the present appellant was impleaded as second plaintiff. Similarly, the legal representatives of the said Kannammal were impleaded as defendants 3 to 7. Accepting the case stated by the plaintiffs, the learned District Munsif passed the decree in favour of the plaintiffs. The defendants preferred the appeal, which was allowed reversing the judgement and decree of the learned District Munsif. 6. When the matter came up before the learned District Munsif for fresh trial, the said matter was decided in favour of the plaintiffs. Thereafter, aggrieved against the judgement and decree passed by the learned District Munsif, the defendants preferred the appeal. The appeal was allowed in favour of the defendants. As against the judgement and decree passed by the learned Subordinate Judge, Poonamallee in A.S. No. 71 of 1990, the unsuccessful second plaintiff preferred the second appeal. 7. The second appeal was admitted on the following substantial questions of law : a. Whether the question of adverse possession arises in case of a tenant by non-payment of rent under Section 65 of the Limitation Act ? b. Whether the judgement of the learned lower appellate Court in having held that the respondents are tenants under Point Nos. 1 to 4 is opposed to Order 41, CPC in having held that the respondents have acquired adverse possession by mere non-payment of rent for a period of 8 years and without any assertion of adverse possession ? c. Whether the judgement in O.S. No. 271 of 1979, a suit for Permanent Injunction which has specifically stated that no claim of title is involved will be res judicata for this suit ? 8. c. Whether the judgement in O.S. No. 271 of 1979, a suit for Permanent Injunction which has specifically stated that no claim of title is involved will be res judicata for this suit ? 8. Even though the appeal was admitted on the above substantial questions of law, the only point to be decided in this appeal is whether the relief sought for by the defendants regarding adverse possession against the appellant/plaintiff is sustainable in law or not. 9. The case of the appellant/plaintiff is that the suit property was purchased by her husband Munisamy Mudaliar under Ex. A.2 sale deed, dated 12-9-1940 from one Vembuli Naicker. Thereafter, the sons of Vembuli Naickar one Palayam and Kanniappan requested the plaintiffs husband to lease out the suit property. Agreeing to the request of the said persons, Munisamy Mudaliar leased out the premises for a monthly rent of 5 annas. Thereafter, within two years they redelivered the property to the Munisamy Mudaliar. During the year 1942, the first defendant Kannammal requested the plaintiff's husband Munisamy Mudaliar let out the vacant place. Accepting the request of the first defendant, the said Munisamy Mudaliar let out the premises to the first defendant on a monthly rent of 8 annas. 10. The definite case of the plaintiff is that the defendants regularly paid the rent till 1972. Thereafter, since they failed to pay the rent to the Munisamy Mudaliar, he issued a notice to the defendants under Section 111(g) of the Transfer of Property Act. The said notice was issued on 14-10-1978. Since they failed to comply with the demand made by the appellant/plaintiff, the plaintiff filed the suit seeking the above stated relief. 11. As far as the case stated by the respondents/defendants, the respondents never been in possession of the suit property under the appellant as a tenant. There was no relationship between the plaintiff and defendants as landlord and tenant. 12. The definite case of the respondents/defendants is that they have been in possession and enjoyment of the suit property in their own right for over 30 years. Thereafter, the respondents/defendants constructed a house thereon and lived in the said premises. To prove their long and uninterrupted possession over the suit property for over many years, they filed the house tax receipts under Ex.B.8 series. Thereafter, the respondents/defendants constructed a house thereon and lived in the said premises. To prove their long and uninterrupted possession over the suit property for over many years, they filed the house tax receipts under Ex.B.8 series. They also produced the letter and receipt given in favour of Kannammal by the Tamil Nadu Electricity Department under Ex. B.6 and B.7. Since their possession and enjoyment over the property was disturbed by the appellant/plaintiff, the respondents/defendants filed the suit in O.S. No. 742 of 1976 and obtained order of injunction against the plaintiff. As against the order of injunction, the appellant/plaintiff did not prefer any appeal. Therefore, the respondents/defendants on the basis of long and uninterrupted possession over the suit property for over many years, they claimed adverse possession against the appellant/plaintiff. 13. The learned counsel appearing for the appellant/plaintiff would submit that with regard to the title and ownership of the suit property even though the respondents/defendants denied such facts, however, when considering the documents produced by the appellant/plaintiff, namely, Exs. A.1 and A.8, which would clinchingly prove the title and ownership of the appellant/plaintiff. 14. With regard to the relationship of the landlord and tenant, this fact has been spoken by P.W. 1 the plaintiff. Even though the said fact was not considered by the appellate Court, when considering the document Ex. A.2, the appellant/plaintiff could have let out the suit property to the respondents/defendants immediately after the redelivery of the property by the sons of Gangappa Naicker, namely, Palayam and Kanniappan. Since the respondents/defendants, thereafter, requested the appellant/plaintiff to lease out the premises for monthly rent and accepting the request of the respondents/defendants, the appellant/plaintiff let out the premises for a monthly rent of 8 annas. Since they failed to pay the said rent after 1972 for over four years, the appellant/plaintiff finding no other alternative issued a legal notice under Ex. A.6 dated 14-10-1978 under Section 111(g) of the T.P. Act asking the respondents/defendants to vacate from the premises. Since they failed to comply with the said request made by the appellant/plaintiff, the plaintiffs filed the suit for the above stated relief. 15. During the course of argument, the learned counsel appearing for the appellant/plaintiff would emphasise that for claiming the relief of adverse possession against the appellant/plaintiff, the defendants have not specifically pleaded adverse possession. In their written statement. 15. During the course of argument, the learned counsel appearing for the appellant/plaintiff would emphasise that for claiming the relief of adverse possession against the appellant/plaintiff, the defendants have not specifically pleaded adverse possession. In their written statement. Moreover, they never asserted such right against the appellant/plaintiff. 16. In support of his contention, the learned counsel relied on the following decisions. a. Parsinni (Dead) by L.Rs. v. Sukhi (1994 I LW 211 : (1993 AIR SCW 3606). b. The Executive Officer, Kadathur Town Panchayat, Harur Taluk, Dharmapuri District v. V. Swaminathan ( 2004 (3) CTC 270 : (2004 AIHC 4001). c. Vithur Hira Mahar (More) v. State of Maharashtra (1999 AIHC 4295) (Bom). 17. It is pointed out that unless otherwise, the claim of adverse possession by the respondents/defendants is specifically pleaded and the same is asserted by them against the real owner, whatever the contention raised by the respondents/defendants in respect of adverse possession could not be considered. 18. Further, it is pointed out by the learned counsel that even in the prior suit filed by the respondents/defendants in O.S. No. 742/1976, they have not raised the question of title. Such being the position of the respondents/defendants and in the event of not denying the ownership of the appellant/plaintiff by asserting the right against the real owner, the plea of adverse possession raised by the respondents/defendants could be rejected. The respondents/defendants have not established the factum of adverse possession before the Court of law. In such circumstances, the judgement and decree passed by the learned Subordinate Judge, is liable to be set aside. 19. It is emphasised by the learned counsel that the learned Subordinate Judge without analysing the legal dictum of adverse possession as well as other facts erroneously concluded the case in favour of the respondents/defendants and therefore, such finding is liable to be set aside. 20. However, the learned counsel appearing for the respondents/defendants would submit that when the appellant/plaintiff approached the Court for seeking the relief of declaration and recovery of possession in her favour, it is the bounden duty of the appellant to establish her case on the basis that the property was leased out to the respondents/defendants on monthly rent of 8 annas from 1942 itself. Such being the case, she has to establish this fact that the respondents/defendants are continuously in possession over the suit property as a tenant under her and when the tenant failed to pay the rent, she could have taken effective steps to vacate the tenant from the premises. 21. As far as the case on hand is concerned, even though the appellant/plaintiff claims that she handed over possession to the respondents/defendants for a monthly rent from 1942 and received the rent till 1972, the appellant/plaintiff has not come forward to establish this fact before the Court by adducing satisfactory evidence with relevant materials. 22. It is pointed out that none of the witnesses examined on the side of the plaintiff has not come forward to speak about this fact. No documentary evidence has been produced. 23. It is the definite case of the appellant/plaintiff that the respondents/defendants were committed default from 1972 for a period of nearly four or five years. That being the case, it is not clarified by the appellant/plaintiff as to why the plaintiff was keeping silence for over four or five years without taking any steps to evict the respondents/ defendants from the premises. 24. Moreover, the appellant/plaintiff has come forward to issue a legal notice against the respondents/defendants under Ex. A.6 only after the institution of the suit by the respondents/defendants for seeking the relief of permanent injunction. 25. It is emphasised that the suit filed by the respondents/defendants was decreed granting permanent injunction. As against the said order the appellant/plaintiff has not preferred any appeal. 26. With regard to long and uninterrupted possession over the suit property, the learned counsel would point out that the respondents/defendants occupied the suit property for over a period of 30 years and more and claimed absolute right over the property on the basis of adverse possession. They asserted the possessory right over the suit property by way of filing the suit for injunction. 27. It is a fact that the respondents/defendants purchased the eastern side of the property during the year September 1960. 28. As stated by the learned counsel appearing for the respondents/defendants even prior to the purchase of the piece of land by the respondents/defendants, they were in continuous occupation of the suit property for over many years and put up a building thereon and thereafter, they also got electricity service connection from the electricity Board. 28. As stated by the learned counsel appearing for the respondents/defendants even prior to the purchase of the piece of land by the respondents/defendants, they were in continuous occupation of the suit property for over many years and put up a building thereon and thereafter, they also got electricity service connection from the electricity Board. To show their uninterrupted possession over the property, they produced Ex. B. 8 series. Ex. B.8 series are house tax receipts for the period of 16-8-1959 onwards. That means, as already claimed by the respondents/defendants that even prior to the purchase of piece of land by them, they occupied and constructed building over the disputed property. 29. A perusal of one of the documents referred to in Ex. B.8 series would reveal that one tax receipt relating to the suit property prior to the purchase of the piece of land by the respondents/defendants. Therefore, the case stated by the respondents/defendants is more probable than that of the case stated by the appellant/plaintiff. 30. In this regard, the learned counsel appearing for the appellant/plaintiff would contend that those house tax receipts under Ex. B. 8 series filed by the respondents/defendants are not relating to the suit property. They relate only to their own property. If it is so, the house tax receipts would not come into existence prior to the purchase of piece of land under Ex. A2, sale deed, dated 12-9-1940. Therefore, by way of ascertaining the right over the property based on their long and uninterrupted possession, the respondents/defendants claimed title by adverse possession. 31. It is also a fact that for claiming such status over the suit property, the respondents/defendants have categorically pleaded and raised such grounds in the written statement. In addition to that they have also referred to about such facts in the reply notice sent by them to the appellant/plaintiff. Therefore, the contention of the learned counsel appearing for the appellant/plaintiff with regard to the non-raising of plea of adverse possession in the written statement could be rejected. Even though the plaintiff examined three witnesses other than herself, none has come forward to speak about the relationship of landlord and tenant between the appellant and respondents. 32. Therefore, the contention of the learned counsel appearing for the appellant/plaintiff with regard to the non-raising of plea of adverse possession in the written statement could be rejected. Even though the plaintiff examined three witnesses other than herself, none has come forward to speak about the relationship of landlord and tenant between the appellant and respondents. 32. Further, during the pending disposal of the appeal, the appellant has filed a Miscellaneous Petition in C.M.P. No. 8423 of 2006 under Order 41, Rule 27, CPC to permit the appellant to file following additional documents. Document No. 1 : Certified copy of the sale deed in favour of defendant, dated 15-9-1960. Document No. 2 : Affidavit and orders in O.S. No. 695 of 1989, dated 21-4-1989. 33. On a perusal of the above documents, it is revealed that those documents in no way would lend any support to the claim of the appellant/plaintiff. 34. As already discussed above, no documents have been produced by the appellant/plaintiff to strengthen her case. In such circumstances, whatever the findings given by the learned Subordinate Judge while disposing of the appeal in A.S. No. 71 of 1990 is quite satisfactory and a reasonable one. 35. In such circumstances, as already discussed above, when considering the case stated by the appellant/plaintiff with that of the respondents/defendants' case, more probable case is made out for claiming adverse possession only in favour of the respondents/defendants by ascertaining that they have been in continuous and uninterrupted possession for over many years. Therefore, in such circumstances, the appeal is liable to be dismissed. There is no merit in the appeal. The substantial questions of law are answered against the appellant/plaintiff. In the result, the second appeal is dismissed confirming the judgement and decree of the first appellate Court. No costs. Connected C.M.P. is also dismissed.