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2014 DIGILAW 3726 (MAD)

Ayyasamy v. Chelladurai

2014-10-09

V.M.VELUMANI

body2014
JUDGMENT V.M. VELUMANI, J. 1. This Second Appeal has been filed against the judgment and decree dated 24.07.2002 made in A.S. No. 93 of 2000 on the file of Principal District Judge, Pudukkottai, confirming the judgment and Decree dated 25.10.1999 made in O.S. No. 12 of 1997 on the file of the Additional District Munsiff, Pudukkottai. 2. The plaintiff is the appellant herein. The suit in O.S. No. 12 of 1997 filed by the appellant on the file of the Additional District Munsiff, Pudukkottai for declaration and injunction against the respondents herein was dismissed on 25.10.1999. A.S. No. 93 of 2000 filed by the appellant against the said judgment and decree dated 25.10.1999 was dismissed by the first Appellate Court on 24.07.2002. 3. The appellant filed O.S. No. 12 of 1997 for a declaration that he is the owner of the suit property and for permanent injunction restraining the respondents from interfering with his peaceful possession and enjoyment of the suit property and restraining the fourth respondent/Tashildar from transferring patta in the name of respondents 1 to 3. 4. The case of the appellant is as follows:- The suit property originally belonged to one Kuppamuthu Ambalam, who died in Sri Lanka without leaving any legal heirs. Chinniah is the brother of Kuppamuthu and he was power agent of Kuppamuthu. After the death of Kuppamuthu, his brother Chinniah inherited the suit property as legal heir of his brother Kuppamuthu. Patta was issued to Chinniah in the year 1974. 5. When Kuppamuthu died in the year 1974, his brother Chinniah borrowed a sum of Rs. 5000/- from Pudukkottai Co-operative Land Development Bank on the security of suit property and the mortgage was registered as document No. 1815 of 1974 on the file of Sub-Registrars Office, Alangudi. In the year 1991, after paying the dues to the Pudukkottai Co-operative Land Development Bank by Chinniah and his son, he was in possession and enjoyment of land by planting Eucalyptus trees. Chinniah died leaving his son Karuppiah as his legal heir. Karuppiah paid kist to the suit property. The appellant on 21.06.1993 purchased the suit property from Karuppiah for a sum of Rs. 72,600/-. From that date, he is in possession and enjoyment of the suit property. 6. After purchasing the suit property, the appellant applied for issuance of patta. The Tashildar, Alangudi after proper verification issued patta in the name of the appellant. The appellant on 21.06.1993 purchased the suit property from Karuppiah for a sum of Rs. 72,600/-. From that date, he is in possession and enjoyment of the suit property. 6. After purchasing the suit property, the appellant applied for issuance of patta. The Tashildar, Alangudi after proper verification issued patta in the name of the appellant. Respondents 1, 2 and 3 filed appeal. The said appeal was allowed remanding the matter to Tashildar, Alangudi for fresh consideration. Respondents 1 to 3 projected certain third parties as legal heirs of Kuppamuthu and created false sale deeds. The application for grant of patta in the names of alleged legal heirs of Kuppamuthu, was rejected by the Sub-Collector in the year 1980 directing them to establish their right through competent Civil Court. Respondents 1 to 3 did not take any action. 7. Chinnaiah mortgaged the suit property as owner in 1974. Hence, the appellant perfected his title by adverse possession on 16.1.1997. Respondents 1 to 3 with large number of persons tried to trespass into the suit property. They have money power and muscle power. Through political influence, they are trying to get patta in their names. 8. Hence, the appellant filed O.S. No. 12 of 1997 for injunction restraining the respondents and their men. 9. The gist and essence in the written statement filed by the first respondent are as follows:- The suit property originally belonged to one Kandasamy Ambalam, Keezhapatty Rasimangalam Village. Kuppamuthu Servai, son of Karuppan Servai, Keezhapatty Rasimangalam Village purchased the suit property on 19.2.1952 measuring 3 acres and 40 cents in S. Nos. 122/5, Old S. No. 122/16. He left for Sri Lanka leaving the suit property under the management of his brother Chinnaiah. Kuppamuthu Servai had three sons (1) Chinnaiah, (2) Karuppiah (3) Sannasi. Kuppamuthu Servai died in the year 1974 in Sri Lanka. Three sons of Kuppamuthu Servai came to India and took possession of the suit property. The first respondent purchased 1 acre and 70 cents from sons of Kuppamuthu Servai by deed of sale dated 29.10.1993. 10. Patta was issued to Chinniah brother of Kuppamuthu by mistake. Subsequently, it was transferred to Kuppamuthu. Chinniah took advantage of absence of Kuppamuthu and his sons have created mortgage in Pudukkottai Co-operative Land Development Bank. The appellant has purchased the suit property from a person, who has nothing to do with the suit property. 10. Patta was issued to Chinniah brother of Kuppamuthu by mistake. Subsequently, it was transferred to Kuppamuthu. Chinniah took advantage of absence of Kuppamuthu and his sons have created mortgage in Pudukkottai Co-operative Land Development Bank. The appellant has purchased the suit property from a person, who has nothing to do with the suit property. The said purchase is not valid. The appellant was never in possession of the suit property. The first respondent is in possession and enjoyment of suit property. The appellant did not plant any Eukalyptus trees. Patta has been issued to appellant by mistake without proper verification. All the allegations in the plaint were denied. 11. The claim of adverse possession by the appellant is not maintainable as the appellant was never in possession of the suit property. The first respondent has purchased the suit property from the rightful owners whereas the appellant purchased the property from the person, who was not the owner. Just because, the Sub-Collector had directed the parties to approach the competent civil court, the title of first respondent will not be wiped out. 12. According to the fourth respondent, the fourth respondent is a not proper and necessary party to the suit. The joint patta issued including the appellant was cancelled and the matter was remanded to Tashildar. Instead of approaching the Tashildar, the appellant had filed the suit. The fourth respondent did not conduct any enquiry or issue patta pending suit and hence, prayed for dismissal of the suit against fourth and fifth respondents. 13. Based on the pleadings, the Additional District Munsiff, Pudukottai framed necessary issues. 14. The appellant examined himself as P.W.1. P.W.2 was the person, who signed the sale deed in favour of the appellant. He spoke about the appellant being in possession of suit property and planting Eucalyptus trees and maintaining them. P.W.3 is the document writer, who wrote the sale deed in favour of the appellant and stated that he does not remember as to whether any documents of title were shown to him. P.W.4 is Junior Assistant in Alangudi Tashildar's office and he spoke about transfer of patta. P.W.3 is the document writer, who wrote the sale deed in favour of the appellant and stated that he does not remember as to whether any documents of title were shown to him. P.W.4 is Junior Assistant in Alangudi Tashildar's office and he spoke about transfer of patta. P.W.5, Chinniah is one of the sons of Kuppamuthu and supported the case of appellant and stated that sons of Kuppamuthu were never in possession of suit property and they did not sell the suit property to first respondent and first respondent did not pay any money to them. Ex.A.1 to A.10 were marked on behalf of the appellant. 15. The first respondent examined himself as D.W.1 and reiterated the averments made in his written statement. D.W.2, Karuppiah one of the sons of Kuppamuthu, gave evidence in support of the first respondent in the same line as that of D.W.1 16. D.W.3 is the dealing assistant in the District Collector's office with respect to transfer of patta. He spoke about the grant of joint patta to appellant and others and cancellation and remand of the matter to Tashildar. Exs.B.1 to B.26 were marked on behalf of the first respondent. Commissioner's plan and report were marked as Exs.C.1 and C.2. Witness documents were marked as Ex.1 to Ex.4. 17. The learned Additional District Munsiff, Pudukkottai considering the pleadings, evidence and arguments dismissed the suit holding that – (i) Chinniah, brother of Kuppamuthu was only a permissive occupant and cannot claim any adverse possession. (ii) Chinniah and his son Karuppiah had no title to the suit property. (iii) The appellant did not purchase the property from rightful owner. (iv) Failed to prove adverse possession. 18. Against, the said judgment dated 25.10.1999, the appellant filed A.S. No. 93 of 2000 on the file of Principal District Judge, Pudukkottai. 19. The learned First Appellate Judge framed necessary points for consideration and heard the learned counsel for the appellant and the respondents. On consideration of materials on record and the admission of learned counsel for appellant that Kuppamuthu had three sons, who sold the property to first respondent, dismissed the appeal holding that the appellant failed to prove his contention that his vendor was lawful owner of suit property and failed to prove his contention that he had perfected his title by adverse possession. The learned first Appellate Judge also held that the first respondent proved possession of Kuppamuthu's son by producing and marking Exs.B.10 series and Ex.B. 17/patta passbook. 20. Against the said concurrent findings by courts below, the appellant has filed the present second appeal. 21. The substantial question of law is re-framed as follows:- Whether Chinnaiah, brother of Kuppamuthu, was in possession of the suit property as Owner after the death of Kuppamuthu to the knowledge of the sons of Kuppamuthu and whether his possession from the year 1994 is open and hostile to that of title of real owners. 22. Heard Mr. K.P. Narayana Kumar, learned counsel for the appellant, Mrs. A.L. Ganthimathi, learned counsel for the first respondent and Mr. P. Gunaseelan Muthaiah, learned Government Advocate for the respondents 4 and 5. Though notice was served on the third respondent and his name is printed in the cause list, he has not chosen to appear either in person or through counsel. 23. Learned counsel for the appellant argued that the courts below erred in holding that possession of vendor of appellant was only permissive possession. The courts below ought to have seen that after the death of Kuppamuthu in 1974, the vendors of appellant were in possession as owners. The claim of sons of Kuppamuthu for issuance of patta was rejected in the year 1980 itself and they have not taken any steps to establish their title in any court of law. They did not assert their right and they are not in possession of suit property at any time. The Courts below failed to appreciate the evidence of P.W.5, one of the sons of Kuppamuthu. The Court below erred in holding that the appellant was not in possession and their vendors were in possession of the suit property as permissive occupants. 24. Per contra, the learned counsel for the first respondent argued that the vendor of the appellant was not the owner of the suit property and his vendor's father was permitted to be in possession and manage the suit property as Kuppamuthu was in Sri Lanka. Taking advantage of absence of real owner vendor's father and vendor of appellant had created a mortgage. By borrowing money and creating the charge over the property will not make them as owners. After the death of Kuppamuthu, his sons took possession of the suit property. Taking advantage of absence of real owner vendor's father and vendor of appellant had created a mortgage. By borrowing money and creating the charge over the property will not make them as owners. After the death of Kuppamuthu, his sons took possession of the suit property. Ex.B.10 series and Ex.B.17 proved that the sons of Kuppamuthu were in possession and paying necessary taxes. 25. The learned counsel also argued that the appellant admitted that Kuppamuthu had three sons. As the appellant had admitted that Kuppamuthu had three sons, father of vendor and vendor of appellant could not inherit the suit property as legal heirs of Kuppamuthu. 26. The learned counsel further argued that the appellant did not allege from the date vendor and his father were in possession of suit property in adverse to the interest of the original owner. The appellant failed to prove his possession. The report of the Advocate Commissioner with regard to the possession of appellant is not conclusive and appellant failed to prove his possession hostile and adverse to the interest of the owners by reliable evidence. 27. The learned counsel for the first respondent relied on the following judgments:- (i) 2012-3-L.W.111 (Maria Margadia Sequeria Fernandes & other) wherein in paragraph Nos. 95 and 101, the Hon'ble Apex Court has observed as follows: (95)................Therefore, on the request of her brother she gave possession of the premises to him as a caretaker. The caretaker holds the property of the principal only on behalf of the principal? ..................... (101) Principles of law which emerge in this case are crystallized as under:- 1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. 2. Care taker, watchman or servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. 3. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour. 4. The caretaker or agent holds property of the cost principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession? 4. The caretaker or agent holds property of the cost principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession? (ii) In Paragraph No. 9 of Meenakshi vs. Vennila and another, 2008 (5) CTC 181, this Court has observed as follows: 9. It is true that Order 26, Rule 9 of C.P.C. empowers the Court to appoint Commissioner to make local investigation as it finds fit and proper based on the facts and circumstances of the case. At this stage, it is pertinent to point out that it is not the aim of Order 26, Rule 9 of C.P.C. to assist a litigant to collect evidence, where the litigant can get evidence himself. In the instant case, the Suit has been filed only for permanent injunction and as such in regard to the factum of possession, this Court opines that the lower Court alone can gather evidence through the parties to the litigation and therefore, the same cannot be entrusted to the Advocate Commissioner to gather evidence and in that view of the matter, the Civil Revision Petition fails and the same is hereby dismissed in the interest of Justice? 28. I have carefully perused the materials on record, judgments of the courts below and the arguments of the learned counsel for the appellant and the respondents. 29. The contention of the appellant that brother of Kuppamuthu inherited the property after the death of his brother is unsustainable and untenable, as the appellant had admitted that Kuppamuthu had three sons. In view of this admitted fact, the purchase of appellant from Karuppiah, son of Chinniah, brother of Kuppamuthu, is invalid. The appellant had not acquired any title or interest in the suit property. The evidence of P.W.5 is not reliable. He is one of the three sons of Kuppamuthu. He sought for patta on the ground that after the death of his father, he and his two brothers took possession from their father's brother Chinnaiah. He and his two brothers sold the property. In his evidence, he had stated that he and his brothers were never in possession of suit property and only his father's brother and subsequently Karuppiah, son of his father's brother were in possession. He did not state as to whether he sold the property to first respondent or not. He and his two brothers sold the property. In his evidence, he had stated that he and his brothers were never in possession of suit property and only his father's brother and subsequently Karuppiah, son of his father's brother were in possession. He did not state as to whether he sold the property to first respondent or not. His evidence is that he signed in blank stamp paper and first respondent promised to give any money but, did not give any money. In view of these contradictory statements, the evidence of P.W.5 was rightly rejected by the Courts below. 30. The next contention of the appellant is that he had perfected his title by adverse possession. According to the appellant, his vendor and his vendor's father were in possession of suit property as owner from the year 1974 when Kuppamuthu died. The appellant relied on patta issued in his favour and report of Advocate's commissioner. He also contended that request of sons of Kuppamuthu for issuance of patta was rejected in the year 1980 directing them to approach competent civil court. They did not take any steps to establish their right. Therefore, his vendor's father and vendor were in possession from 1974 as absolute owner and subsequent to his purchase, he was in possession as owner. Therefore, he had perfected his title by adverse possession. 31. This contention is unsustainable. The appellant failed to prove that his vendor and the Vendor's father were in possession of suit property as owner to the knowledge of son's of Kuppamuthu. The appellant failed to prove his possession by evidence. On the other hand, patta issued in his favour had been cancelled. The respondents by documentary and oral evidence proved the possession of sons of Kuppamuthu and subsequently by first respondent. The Courts below had appreciated the facts and law in the proper perspective. 32. The contention of the learned counsel for the first respondent is that the report of the Advocate Commissioner with regard to possession is not conclusive proof, has considerable force. The Judgments relied on by the learned counsel for the first respondent squarely applies to the facts of the present case. The appellant failed to prove the hostile possession to the knowledge of the real owners. Hence, the findings of the Courts below that the appellant has not perfected title by adverse possession is confirmed. The Judgments relied on by the learned counsel for the first respondent squarely applies to the facts of the present case. The appellant failed to prove the hostile possession to the knowledge of the real owners. Hence, the findings of the Courts below that the appellant has not perfected title by adverse possession is confirmed. The substantial question of law is answered accordingly. 33. The appellant filed M.P. No. 1 of 2012 under Order 41 Rule 21 CPC to receive additional documents. The first document sought to be marked is certified copy of sale deed in favour of his son Ayyadurai. This document does not advance the case of the appellant. The second document sought to be marked is unregistered release deed executed before Panchayat. As this document has to be compulsorily registered, the same cannot be marked. For the above reasons, M.P. (MD) No. 1 of 2012, is dismissed. 34. In the result, the second appeal is dismissed. No costs.