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2012 DIGILAW 3258 (MAD)

Dhanabakiyammal v. Samikkanu

2012-07-25

T.RAJA

body2012
Judgment :- 1. The present second appeal has been filed by the defendants as against the judgment and decree passed by the learned Additional Subordinate Judge Court, Thindivanam, in A.S. No.107 of 2003, dated 11.04.2005, confirming the judgment and decree passed by the by the learned Additional District Munsif Court, Thindivanam, in O.S.No.735 of 1993, dated 21.07.2003. 2. Brief facts leading to the filing of the second appeal are given as under:- The plaintiff/respondents herein have approached one Kuppusamy, son of Thulasiammal for purchase of suit property. Accepting the offer from the plaintiff, the said Kuppusamy, on receiving the sale consideration of Rs.3,300/-, issued a receipt for sale dated 13.05.1968, and thereby handed over the physical possession of the suit property, with a promise that after the completion of marriage of his daughter, a sale deed would be properly registered in favour of the plaintiff. Subsequently, after the completion of marriage of his daughter, unfortunately, he died. Before the death of said Kuppusamy, his mother Thulasiammal also issued a receipt acknowledging the payment of sale consideration of suit property, in which the said Kuppusamy also appended his signature. In view of these two receipts, he continued to be in possession by paying kist receipts from the year 1968. In the year 1977, the plaintiff also had moved an application before the Revenue Authorities for issuance of patta. Entertaining the said application, the plaintiff was also issued with patta on 30.11.1977 and thereafter, he has been in continuous possession. Whileso, when the matter stood thus, in the year 1993, the children of the deceased Kuppusamy, obstructed the plaintiff from using the said suit property, which necessitated the plaintiff to file a suit for the said relief. 3. The defendants also filed a written statement taking a plea that they are also in continuous possession, therefore, they are prescribed with the title by virtue of continuous and peaceful adverse possession. 4. Under these circumstances, the trial Court took up the matter and finally accepting the case of the plaintiff that from the date of sale receipt dated 13.05.1968 issued by one Kuppusamy and his mother Thulasiammal, he has been in possession and to that effect he has also produced the kist receipts from the years 1971 to 1993, concluded that the plaintiff has established his case that he has been in continuous and peaceful possession for more than 20 year. On that basis, when the suit was decreed, the same was challenged before the learned first appellate Court and the learned first appellate Court, finding no infirmity in the judgment and decree passed by the learned trial Court, dismissed the appeal. As against the same, the present second appeal has been filed by the unsuccessful defendants. 5. This Court, at the time of entertaining the second appeal, framed for the following substantial questions of law for consideration:- i. Whether the Courts below are correct in holding that the first respondent/plaintiff was entitled for claim of adverse possession when the alleged purchase of the suit property under Ex.A1 was found invalid and rejected by the Courts below? ii. Whether the Courts below are correct in holding that the appellants failed to prove that the suit property stands in the name of Thulasiammal was not the joint family property of the Thulasiammal on the claim of the third party purchaser? iii. Whether the Courts below are correct in granting the relief of adverse possession without proving the necessary animus to the suit property while rejecting Ex.A1 as invalid? iv. Whether the plaintiff could take both claim of title and adverse possession in one suit? v. Whether the Courts below are correct in granting the relief of adverse possession without proving the continuous possession of the suit property as alleged? 6. Learned counsel appearing for the appellants submitted that when the suit property was originally belonging to Thulasiammal, mother of Kuppusamy, the said Kuppusamy has no right to enter into any agreement of sale. Secondly, it was contended that when the plaintiff all along failed to produce any sale deed, as it has been well settled that a plea of adverse possession cannot go together with title and failing to establish that he has purchased the suit property on the basis of any registered sale deed, it is not open to the plaintiff to set up a plea of adverse possession from the date of the sale receipt dated 13.05.1968 till the date of filing of suit. It was further argued that when the plaintiff was required to prove the continuous possession beyond the statutory period, he should have proved that he has been in posession and enjoyment of the suit property for more than 12 years till the filing of the suit in the year 1993. It was further argued that when the plaintiff was required to prove the continuous possession beyond the statutory period, he should have proved that he has been in posession and enjoyment of the suit property for more than 12 years till the filing of the suit in the year 1993. As it was found by the trial Court that from 1981 to 1983, they have not proved their possession by producing any acceptable evidence, granting decree by the Courts below liable to be interfered with. 7. Per contra, learned counsel appearing for the respondents submitted that when the defendants/appellants herein have not set up the case what was argued before the trial Court, it is not open to them to challenge the concurrent findings of the Courts below. Further, it was submitted that when there has been a sale receipt dated 13.05.1968, issued by the owners of the suit property, namely, Kuppusamy and his mother Thulasiammal, in favour of the plaintiff, they have not even filed any suit with regard to the suit property. Therefore, after the death of Kuppusamy and her mother Thulasiammal, the children of the said persons cannot challenge the posession and enjoyment of the suit property. It was further contended that when the defendants have not even pleaded in their written statement that the suit property originally belonged to one Thulasiammal, it is not open to the children of Kuppusamy to set up a new case that too at this stage. On that basis, he pleaded for dismissal of the second appeal. 8. Heard the learned counsel appearing on either side and perused the materials available on record. 9. Admittedly, the suit property originally belonged to one Thulasiammla, whose son-Kuppusamy, by receiving the sale consideration of Rs.3,300/-on 13.05.1968 from the plaintiff to meet the marriage expenses, promised to execute the registered sale deed after the completion of his daughter's marriage. But, subsequently, even after the completion of the marriage, both Kuppusamy and his mother Thulasiammal also issued a joint receipt acknowledging the payment of sale consideration of Rs.3,300/-. Though this was pleaded, the said receipt was not produced before the Courts below. However, on receipt of the sale consideration, while giving sale receipt dated 13.05.1968 to the plaintiff, the suit property was also physically handed over to the plaintiff. Though this was pleaded, the said receipt was not produced before the Courts below. However, on receipt of the sale consideration, while giving sale receipt dated 13.05.1968 to the plaintiff, the suit property was also physically handed over to the plaintiff. In the meanwhile, the plaintiff also moved an application before the Revenue Authorities with a prayer to issue patta. Accepting the application submitted by the plaintiff, a patta dated 30.11.1977 was also issued in the name of the plaintiff, therefore, it shows that the plaintiff was in possession of the suit property from 1968 till the date of issuance of patta. Even after issuance of patta, the plaintiff also has been paying the kist receipts, which were marked as Exs.A3 to A17. Though the trial Court found that the plaintiff was unable to produce any document for three years i.e., from 1981 to 1983, it has also given a finding in favour of the plaintiff that when the plaintiff was able to produce all acceptable evidence, namely, receipt of sale dated 13.05.1968, followed by kist receipts for about 20 years from 1971 to 1993, except for the years from 1981 to 1983, it should be held that the said documents could have been misplaced somewhere, therefore, that could not matter to consider the claim of the plaintiff. On this basis, considering this aspect that the owners of the suit property, namely, Thulasiammal and her son Kuppusamy, had issued a sale receipt dated 13.05.1968, and the same having not been challenged by the plaintiff at no point of time, it must be concluded that the trial Court has rightly decreed the suit and the same was also rightly confirmed by the learned first appellate Court. In that view of the matter, this Court, finding no infirmity in the judgment and decree rendered by the Courts below, is inclined to dismiss the second appeal and accordingly, it is dismissed by answering the substantial questions of law against the appellants. No Costs. Consequently, the judgments and decrees passed by the Courts below are hereby confirmed. Connected CMPs are closed.