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2014 DIGILAW 2219 (MAD)

N. Kaliamoorthy v. Vairavan Chettiar

2014-07-23

T.MATHIVANAN

body2014
Judgment 1. This memorandum of second appeal has been directed against the judgment and decree, dated 14.9.1998 and made in A.S.No.69 of 1999 on the file of the learned Subordinate Judge, Mayiladuthurai reversing the judgment and decree, dated 27.2.1998 and made in O.S.No.57 of 1985 on the file of the learned District Munsif, Sirkali. 2. The appellant herein is the defendant in the suit, whereas the respondent is the plaintiff. 3. During the pendency of the second appeal, the appellant had passed away. Therefore, the appellants 2 to 4 have been brought on record as the legal representatives of the deceased appellant in view of the order of this Court, dated 29.11.2011 and made in C.M.P.Nos.732 to 735 of 2011. 4. For easy reference and also for the sake of convenience, the respondent may hereinafter be referred to as the plaintiff, whereas the appellant be referred to as the defendant, wherever the context so require. 5. The facts which are absolutely necessary for the disposal of the second appeal are as under:- a. The suit property is situated in Erukkur Village, Sirkali Taluk. b. According to the plaintiff, he had got the suit property through his grandfather under a registered settlement deed, dated 14.12.1949. c. The above said settlement deed was accepted by the plaintiff and was also acted upon. In pursuant to the settlement deed, he has been in possession and enjoyment as absolute owner thereof. d. The suit property is a grow consisting of 58 yielding coconut trees and two mango trees and as such they have been in possession and enjoyment of the plaintiff. e. The defendant was working under the plaintiff as a watchman for about one year from March 1982 and thereafter, he was not serving under him from March 1983. Therefore, he has got nothing with the suit property. f. The plaintiff had put up a thatched shed in the suit property for the purpose of gathering usufructs of the said trees. Since the defendant was trying to occupy the thatched shed from 1.3.1985 forcibly and also causing disturbances to the possession and enjoyment of the plaintiff, he was constrained to file a suit originally for permanent injunction. f. The plaintiff had put up a thatched shed in the suit property for the purpose of gathering usufructs of the said trees. Since the defendant was trying to occupy the thatched shed from 1.3.1985 forcibly and also causing disturbances to the possession and enjoyment of the plaintiff, he was constrained to file a suit originally for permanent injunction. g. As the defendant had denied the title of the plaintiff in his written statement, the plaint happened to be amended and paragraph 8(a) was inserted and in consequence thereof, the plaint prayer was also amended by the inclusion of paragraph (a)(i). i. As it is seen from the plaint, the plaintiff has sought the following reliefs:- aa. Restraining the defendant, his men and agents from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit property by way of permanent injunction. a(i) If for any reason the court comes to the conclusion that the plaintiff is not in possession of the suit property, the plaintiff prays alternatively for recovery of possession of the suit property with future profits from the defendant from the date of plaint till date of delivery of possession and also for costs. 6. The defendant has contested the suit by filing his written statement, wherein, he has vehemently denied the title of the plaintiff. 7. He has also contended that he had been in possession and enjoyment of the suit property for the past 15 years and he had been residing therein along with his family members by putting up a thatched shed. 8. As the defendant had been in possession and enjoyment of the suit property for more than the statutory period, he has prescribed title over the suit property by way of adverse possession. 9. The suit property has not been properly described in the plaint. In his additional written statement, he has contended that since he has been in possession and enjoyment of the suit property, he is entitled to the benefits of Section 3 of the Tamilnadu occupants of Kidiyiruppu (Confirment of ownership) Act 1971 as the defendant is an agricultural cooly. 10. As the defendant becomes the owner of the suit property, the plaintiff is not entitled to recovery of possession. 11. 10. As the defendant becomes the owner of the suit property, the plaintiff is not entitled to recovery of possession. 11. Having been filed the suit for injunction contending that he has been in possession and enjoyment of the suit property, the plaintiff cannot claim the relief of recovery of possession. 12. Based on the material proposition of facts arising from the pleadings of the parties to the suit, the trial Court has formulated as nearly as five issues and two additional issues for the better adjudication of the suit. 13. In order to substantiate their respective cases, both the plaintiff and the defendant were directed to face the trial. Accordingly, the plaintiff was examined as P.W.1 and one Rasu was examined as P.W.2. During the course of their examination Exs.A1 to A9 were marked. On the other hand, the defendant Kaliamoorthy (since deceased) was examined as D.W.1 and two more witnesses were examined as D.Ws.2 and 3 respectively. During the course of their examination, Exs.B1 to B.12 were marked. 14. On evaluating the evidences both oral and documentary, the trial court had proceeded to dismiss the suit on 27.2.1998 on the ground that the plaintiff had miserably failed to establish his case. 15. Having been aggrieved by the impugned judgment and decree of the trial Court, dated 27.2.1998, the plaintiff had preferred an appeal in A.S.No.69 of 1998 on the file of the learned Principal Subordinate Judge, Mayiladuthurai. 16. That appeal was allowed on 14.9.1998 on the ground that the defendant had failed to substantiate his claim that he had prescribed title over the suit property by way of adverse possession through his continuous and an uninterrupted possession for more than the statutory period. 17. Challenging the correctness of the judgment of the lower appellate court, the present second appeal has been filed by the defendant. 18. The second appeal came to be admitted before this Court on 21.10.1999 on the following two substantial questions of law:- a. Whether the lower appellate court is right in holding that the respondent/plaintiff has right to claim recovery of possession in the absence of any proof that the plaintiff established title to the suit property? b. Whether the lower appellate court is right in holding that the plaintiff is entitled to the alternative relief of recovery of possession? 19. Heard Mr. S.V. Jayaraman, learned Senior Counsel appearing on behalf of Mr. b. Whether the lower appellate court is right in holding that the plaintiff is entitled to the alternative relief of recovery of possession? 19. Heard Mr. S.V. Jayaraman, learned Senior Counsel appearing on behalf of Mr. T. Subramanian, learned counsel, who is on record, for the appellants and Mr. G.R.M. Palaniappan, learned counsel appearing for the respondent. 20. Admittedly, the defendant has denied the title of the plaintiff over the suit property and claimed that he had been residing in the suit property along with his family members in the capacity of absolute owner as he had prescribed title over the suit property by way of adverse possession. 21. It is obvious to note here that the plaintiff had field the suit originally for permanent injunction restraining the defendant from causing disturbances to the possession of the plaintiff. 22. As per the averments of plaint, the plaintiff has been in possession and enjoyment of the property. Once the title is denied by the defendant, the plaintiff ought to have amended the plaint including the prayer portion and sought the relief of declaration to declare the title over the suit property. Unfortunately, he has not done so, instead, he has amended the plaint in respect of the recovery of possession admitting the fact that the defendant has been in possession and enjoyment of the suit property. 23. The prayer portion (a)(i) would go to show that after the filing of the written statement by the defendant denying the title of the plaintiff, the plaintiff had amended the prayer portion by inserting a paragraph (a)(i) which reads as under:- “(a)(i) If for any reason the Hon'ble Court comes to the conclusion that the plaintiff is not in possession of the suit property, the plaintiff prays alternatively for recovery of possession of the suit property with future profits from the defendant from the date of plaint till date of delivery of possession.” 24. The above portion would indicate that the plaintiff is not certain as to whether he is in possession and enjoyment of the suit property. It is more significant to note here that the suit for permanent injunction can be maintained only on the ground that the plaintiff was/is in possession as on date of filing of the suit. 25. The above portion would indicate that the plaintiff is not certain as to whether he is in possession and enjoyment of the suit property. It is more significant to note here that the suit for permanent injunction can be maintained only on the ground that the plaintiff was/is in possession as on date of filing of the suit. 25. The conduct of the plaintiff would demonstrate that as on date of filing of the suit, he was not in possession of the suit property. On the other hand, he has indirectly admitted that the defendant has been in possession of the suit property and therefore, he had opted to include the prayer for recovery of possession. 26. In this connection, Mr. S.V. Jayaraman, learned Senior Counsel has raised a serious question for the consideration of this Court saying that once the plaintiff's title is denied, the plaintiff should have resorted to amend the plaint seeking the relief of declaration. But the plaint was not amended seeking the relief of declaration. 27. Apart from this, he has also argued that when the plaintiff had failed to prove his title, a decree for recovery of possession cannot be granted. But without application of mind and without the appreciation of the evidences available, the lower appellate court had proceeded to grant the relief of recovery of possession, which is absolutely erroneous and liable to be set aside. 28. While advancing his arguments, Mr. S.V. Jayaraman, learned Senior Counsel has drawn the attention of this Court to the paragraph No.8 of the plaint, wherein, the plaintiff has stated that as if he is in possession of the suit property and that the defendant had been giving out on and from 1.3.1985 that he would forcibly occupy the thatched shed and also cause interference with the plaintiff in the matter of possession. 29. In paragraph 8(a) (amended portion), the plaintiff has admitted that since the defendant now denies the title of the plaintiff in his written statement, he was constrained to amend the plaint. He has also stated that it is false to state that the defendant has been in continuous possession of the suit property for the past 15 years and that he has prescribed title. He has also stated that it is false to state that the defendant has been in continuous possession of the suit property for the past 15 years and that he has prescribed title. Besides this, he has also stated that by way of abundant caution he is advised to seek the relief of recovery of possession of the suit property to avoid unnecessary contentions in future. 30. While amending the plaint, by way of abundant caution, the plaint should have also been amended with reference to the prayer of declaration. But as indicated by Mr. S.V. Jayaraman, he has not done so. 31. In paragraph 9 of his judgment, the learned Principal Subordinate Judge, Mayiladuthurai, being the first appellate Judge has observed that though the defendant had denied the title of the plaintiff, on perusal of his evidence, it appears that he had indirectly admitted his title over the suit property. 32. Subsequently, he has also observed that since the defendant had claimed the benefit of Section 3 of the Tamil Nadu occupants of Kudiyiruppu (Confirment of ownership) Act 1971, the defendant had indirectly admitted the title of the plaintiff over the suit property. However, he has ultimately observed that despite the defendant had claimed that he had been in possession and enjoyment of the suit property open to the universe for the past 27 years, he had failed to produce the necessary documents to show that he had prescribed title over the suit property by way of adverse possession. 34. On the other hand, Mr. G.R.M. Palaniappan, learned counsel appearing for the plaintiff, after drawing the attention of this Court to the last three lines of the judgment of the lower appellate court at page 9, would submit that the lower appellate Judge had observed considering the facts set forth above that it was inferred that the defendant had encroached the suit property and came to be in possession thereof. 35. With regard to the claim of adverse possession he has placed reliance upon the decision reported in A. Shanmugam vs. Ariya K.R.K.M.N.P. Sangam through President Etc., (2012-3-L.W.130). 36. In this case, the appellant's father was engaged as a Watchman on a monthly salary and in that capacity he was allowed to stay in the suit premises. 35. With regard to the claim of adverse possession he has placed reliance upon the decision reported in A. Shanmugam vs. Ariya K.R.K.M.N.P. Sangam through President Etc., (2012-3-L.W.130). 36. In this case, the appellant's father was engaged as a Watchman on a monthly salary and in that capacity he was allowed to stay in the suit premises. After his death his son (the appellant) continued to serve the respondent society as a Watchman and was allowed to live in the premises. Thereafter, by obtaining the ration card and house tax receipts, the appellant cannot strengthen his claim of adverse possession. 37. In this connection, the Apex Court has observed that Watchman, caretaker or a servant employed to look after the property can never acquire interest in the property irrespective of his long possession. The watchman, caretaker or a servant is under an obligation to hand over the possession forthwith on demand. 38. On coming to the instant case on hand, the construction of the plaint itself is wrong and as admitted by the plaintiff when his title is denied by the defendant he ought to have amended the plaint seeking the relief of declaration of title and apart from this, as rightly observed by the learned trial Judge, since the plaintiff himself has admitted in his evidence that as on date of filing of the suit, the defendant was in possession and enjoyment of the suit property, the question of granting of permanent injunction would not arise. 39. Without seeking the relief of declaration in respect of his title over the suit property, the plaintiff cannot maintain the prayer of recovery of possession. On this ground the second appeal is deserved to be allowed. 40. Accordingly, the second appeal is allowed and the judgment and decree of the lower appellate court, dated 14.9.98 and made in A.S.69 of 1998 are set aside and the judgment of the trial court, dated 27.2.1998 and made in O.S.No.57 of 1985 are confirmed. However, there will be no order as to costs.