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2012 DIGILAW 198 (MAD)

Nalla Thambi Padayachi v. T. Subramaniam

2012-01-10

T.RAJA

body2012
Judgment :- 1. The present second appeal has been directed against the Judgment and Decree dated 06.04.2006 passed by the learned Subordinate Judge, Ariyalur, in A.S.No.28 of 1999 reversing the Judgment and Decree dated 13.4.1999 passed in O.S.No.96 of 1997 on the file of the Additional District Munsif, Ariyalur. 2. The brief facts which lead to file the present second appeal are as follows: The Plaintiff/Appellant herein filed the suit for declaration and injunction on the file of the learned Additional District Munsif, Ariyalur in O.S.No.96 of 1997. The said suit was decreed as prayed for by the Plaintiff/ Appellant herein. Aggrieved by the said judgment and decree passed by the trial Court, the Defendant/Respondent herein challenged the correctness of the judgment and decree before the learned first appellate Court. After hearing the arguments advanced by both sides and also after considering the materials made available on record by both sides, the first appellate Court held that the right claimed by the Plaintiff/Appellant in respect of the property in question which is covered in Survey No.280/6 equivalent to Survey No.199/4 given through Ex.A.3 settlement deed dated 18.6.1952 in favour of the mother of the plaintiff by Alagammal, wife of Ramasamy is without any basis since the property in question was originally allotted in favour of Anjalai, the sister of Valliammai, W/o Karupanna Padayachi. The first Appellate Court has also rendered its finding that Ex.A.3 settlement deed dated 18.6.1952, has been wrongly misconceived by the Plaintiff/Appellant set aside the judgment and decree passed by the trial Court. Aggrieved by the judgment passed by the first appellate Court, the second appeal has been filed. 3. Heard Mr.N.Rajavadivelu learned Counsel appearing for the appellant and Mr.S.V.Jayaraman, learned senior counsel for Mr.R.Balasubramaniam learned counsel appearing for the respondent. 4. The learned counsel for the Plaintiff/Appellant would contend that the first appellate Court was not correct in reversing the judgment of trial Court when the plaintiff is being a lawful owner of the property by considering Ex.A.3, settlement deed dated 18.6.1952. 5. 4. The learned counsel for the Plaintiff/Appellant would contend that the first appellate Court was not correct in reversing the judgment of trial Court when the plaintiff is being a lawful owner of the property by considering Ex.A.3, settlement deed dated 18.6.1952. 5. By heavily relying upon the reasoning given by the trial Court, he further argued that while disposing of the suit, the trial Court has, on proper application of mind and after hearing the arguments of the learned counsel on either side, rightly came to the conclusion that the Plaintiff/Appellant has properly established the case before the trial Court stating that the part of the property covered by Ex.A.3, the settlement deed dated 18.6.1952, has been given to the Plaintiff/Appellant and the same was accepted by Valliammal, since then the Plaintiff/Appellant has been in possession and enjoyment of 9.5 cents of the property in question covered in Survey No.280/6 equivalent to Survey No.199/4 6. The learned counsel for the appellant has further submitted that the trial Court after accepting the execution of Ex.A.3, settlement deed dated 18.6.1952, rendered the proper findings. But, the first appellate Court, while considering the correctness of the reasoning given by the trial Court, erroneously held that the trial Court has wrongly rendered its finding without giving any valid reason. Hence, the judgment and decree passed by the first appellate Court is totally unsustainable and this Court while exercising the jurisdiction under Section 100 C.P.C shall reverse the same. 7. In reply to the said contention, the learned Senior Counsel for the Defendant/Respondent has submitted that the Will Ex.B.1 dated 12.3.1906 executed by Narayana Padayachi was found duly executed and attested as it was a registered document. This shows that through Ex.B.1 the Will dated 12.3.1906, Anjalai, the grandmother of the defendant has become the absolute owner of the suit property. It was also administered before this Court that on the basis of the finding given by the trial Court, the land having 19 cents, which was covered in Survey No.280/6 equivalent to Survey No.199/4 which is mentioned in 'B' schedule property, has been given to Anjalai through the Will, Ex.B.1, dated 12.3.1906, hence the plaintiff ought not to have claimed the title by adverse possession by approaching the trial Court unless and otherwise the Plaintiff/Appellant proved the ownership before the trial Court through Ex.A.3 settlement deed dated 18.6.1952. Hence, the trial Court ought not to have decreed the suit. 8. It was further contended that according to the categorical finding of the trial Court, the 19 cents of land which was covered in Survey No.280/6 equivalent to Survey No.199/4 has been given in favour of Anjalai only by way of Ex.B.1, the Will, dated 12.3.1906. While so, he added, the trial Court ought to have considered more carefully the prayer made by the Plaintiff/Appellant as to whether the Plaintiff/Appellant is entitled to claim any property through Ex.A.3, settlement deed dated 18.6.1952, when Ex.A.3, the settlement deed dated 18.6.1952 has not given any right to the Plaintiff/Appellant. 9. In support of his submission, the learned counsel for the respondent has placed reliance on the decisions of this Court as well as the Apex Court. 10. However, in respect of the plea of adverse possession, the learned Senior Counsel for the respondent has submitted that the person who is claiming right and title under document of title cannot claim title by adverse possession or prescriptive title. To support his submission, he relied on the decision in NEELAVATHY V. SHANMUGAM AND ANOTHER ( 2005 (2) CTC 58 ) in which, it has been held that 'when a person had relied upon a particular document of title, in order to claim right and title of the suit property, the said person cannot claim it by adverse possession, because once such person claims title upon a particular document, then whatever right such person claims would be flowing if at all under that document, in which case there is no element of adverse nature of possession in order to make out a case of prescription by title' 11. Mr. S. V. Jeyaraman relied on another decision in CHATTI KONATI RAO AND OTHERS V. APLLE VENKATA SUBBA RAO (2011 (1) LW 783) in which, the Hon'ble Apex Court has held that 'mere possession however long does not necessarily mean that it is adverse to the true owner and the person who claims adverse possession is required to establish the date on which he became in possession, nature of possession, the factum of possession, the knowledge to the true owner, duration of possession and the possession was open, hostile and undisturbed'. 12. 12. It is further argued by the learned Senior Counsel for the respondent that 'a person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The Courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law'. 13. At the time of admission of the above second appeal, the following substantial questions of law were framed. i) Whether the first appellate Court was correct in reversing the judgment of the trial Court, which granted decree on the sufficiency of evidence? ii) Whether the first appellate Court was correct in reversing the judgment of the trial Court, while the plaintiff had been in lawful possession and enjoyment of the property pursuant to the execution of settlement deed relied upon by him for more than a decade? iii) Whether the first appellate Court was correct in holding, based upon Ex.A.22 that the appellant has lost his title in respect of the suit property once it has been proved otherwise?" 14. On a perusal of the finding rendered by the trial Court, it is found that the trial Court has accepted Ex.B.1, the Will dated 12.3.1906 executed by Narayana Padayachi as true and the land having 19 cents squarely covered in Survey No.280/6 equivalent to Survey No.199/4 comes under 'B' schedule property and the Patta Number of that property is 296 and it is also found from Ex.B.1 dated 12.3.1906 that the total extent of land found in Survey No.199/4 belongs to Anjalai. Having given a finding that the Will Ex.B.1 is true and valid, the trial Court giving contra findings that the Plaintiff/Appellant is also entitled to the suit property on the basis of Ex.A.3, settlement deed dated 18.6.1952 is totally unsustainable and therefore, the first appellate Court has rightly reversed the judgment and decree passed by the trial Court. 15. In so far as the first substantial question of law is concerned, the trial Court in its finding held that there are two schedules of properties namely 'A' and 'B' schedules. 15. In so far as the first substantial question of law is concerned, the trial Court in its finding held that there are two schedules of properties namely 'A' and 'B' schedules. Admittedly, by virtue of Ex.B.1 Will, dated 12.3.1906, 'A' schedule property was given to Valliammai, the sister of Anjalai and the entire property covered in 'B' schedule coming under Survey No.280/6 equivalent to Survey No.199/4, admeasuring 19 cents has been given to Anjalai. When the entire extent of the land covered in Survey No.280/6 equivalent to Survey No.199/4 having 19 cents of land shown in 'B' schedule property has been given to Anjalai by way of Ex.B.1 the Will, dated 12.3.1906, the subsequent unregistered settlement deed Ex.A.3, dated 18.6.1952 allegedly executed by Karuppanna Padyachi, the grand father of the plaintiff in favour of Alagammal, the mother of the plaintiff has to be ignored, because Alagammal, who is the daughter of Valliammai and Karupanna Padayachi cannot be given 9.5 cents by executing the settlement deed dated 18.6.1952, Ex.A.3. The above said fact has been rightly considered by the first appellate Court and accordingly reversed the judgment of the trial Court. Hence, the first substantial question of law is answered against the appellant. 16. In so far as the second substantial question of law is concerned, the learned counsel for the appellant has submitted that from 1952, the father, the mother and then the plaintiff have been in possession of the suit property and knowing pretty well that the plaintiff and his forefathers have been in possession and enjoyment of the said property, the defendant/respondent has not filed any suit for recovery of the property. But, the claim of the adverse possession of the plaintiff/appellant cannot be pressed into service as it has been held by the Apex Court in the case of T.Anjanappav. Somalingappa (2006) 7 SCC 570 ) that 'mere possession however long does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owner's title'. Relevant passage of the aforesaid judgment reads as follows: "20.) It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Relevant passage of the aforesaid judgment reads as follows: "20.) It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action." 17. It is also to be mentioned that when the plaintiff unsuccessfully claimed title to the suit property through the settlement deed Ex.A.3 dated 18.6.1952, on failure to prove his title from the said settlement deed, he cannot claim adverse possession to the suit property stating that he has been in continuous possession from 1952. The legal position is well settled on adverse possession in the decision in K. GOPALAN (DIED) AND OTHERS V. MUTHULAKSHMI ( 2011 (3) L.W 789 ), wherein it has been held as follows: "A person, who claims adverse possession should show: (a) on what date he came into possession, (b)what was the nature of his possession (c)whether the factum of possession was known to the other party (d)how long his possession has continued, and (e)his possession was open and undisturbed. A person pleading advisee possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animous to possess the property hostile to the title of the true owner, the period for prescription will not commence". Therefore, though the Plaintiff/Appellant pleaded that he was in long and continuous possession of the suit property as held by the learned appellate Court, no evidence of any credible in nature was produced to establish the same, hence, the second substantial question of law framed by this Court is also answered against the appellant. Hence, the second appeal is liable to be dismissed. 18. Accordingly, the second appeal is dismissed and the judgment and decree passed by the learned first appellate Court is confirmed. There is no order as to costs.