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2014 DIGILAW 776 (MAD)

Thilagavathi Alias Thilagam v. V. Samiappan

2014-03-26

G.CHOCKALINGAM

body2014
JUDGMENT Challenge in this second appeal is to the judgment and decree, dated 05.10.2005 passed in A.S.No.15 of 2005 by the Subordinate Judge, Palani, confirming the judgment and decree passed in O.S.No.114 of 2000 on the file of the District Munsif, Palani, dated 15.02.2005. 2. The respondent herein as plaintiff has instituted Original Suit No.114 of 2000 on the file of the trial Court seeking the relief of declaration and recovery of possession, wherein the present appellant has been shown as defendant. 3. It is averred in the plaint that the suit property originally belonged to one Ramasamy Pillai and Muthuveera Pillai and they conveyed the same to the plaintiff's father Vairana Pillai under the sale deed dated 19.08.1908. The said Vairana Pillai died 40 years age leaving his two sons namely, the plaintiff and Maruthanayagam and two sisters. There was a family arrangement among them, in which the suit property was given to the plaintiff 25 years ago and he was in possession and enjoyment of the same. The defendant is the daughter of one Karuppai Ammal. The Karuppai Ammal's mother is Parvathi Ammal. When the plaintiff moved out of his village on account of his employment, the said Karuppai Ammal encroached the suit property and put up a thatched shed in the year 1978. When the plaintiff came to know about the same, he initiated action to vacate her through Executive Magistrate. At that time, one Savadammal filed suit in O.S.No.547 of 1981 against the Karuppai Ammal and Parvathi Ammal claiming title over the suit property and for recovery of possession. The plaintiff, after knowing the same, impleaded himself as a 3rd defendant in the said suit and filed written statement claiming title to the property and for recovery of possession from the 1st defendant. The counter claim case against the 1st defendant was decreed. As against the same, the plaintiff filed an appeal before the District Court, Dindigul, in A.S.No.64 of 1985 and the defendants 1 and 2 filed Cross Objection in the same. The appeal and Cross Objection were dismissed. Against the same, the defendants 1 and 2 filed S.A.No.996 of 1986 before the High Court, Chennai. Pending second appeal, the defendants 1 and 2, who are the appellants in S.A.No.996 of 1986 died. However, this fact was not brought to the notice of the Court. The appeal and Cross Objection were dismissed. Against the same, the defendants 1 and 2 filed S.A.No.996 of 1986 before the High Court, Chennai. Pending second appeal, the defendants 1 and 2, who are the appellants in S.A.No.996 of 1986 died. However, this fact was not brought to the notice of the Court. The High court allowed the appeal only on the substantial question of law that there cannot be a counter claim between the defendants. However, the the court had observed that if the 3rd defendant filed fresh suit against the appellants, it is open for him to plead and substantiate before the trial court as to whether he was entitled to the benefit of exclusion of time spent in the proceedings in the suit and appeals, as provided under section 14(1) of the Limitation Act. The appellants Karuppai Ammal and the Parvathi Ammal left the defendant as their only heir. The defendant is in possession of the suit property, after the death of Karuppai Ammal and Parvathiammal and Karuppai Ammal was only a trespasser, the defendant herein, who is the daughter of the said Karuppai Ammal had in the suit property, she had not also claimed title to the suit property by adverse possession. Since the plaintiff herein was prosecuting the proceedings pertaining to the suit property, the time spent in the earlier proceedings may be excluded in computing the period of limitation of 12 years, provided in the law for recovery of suit property. Hence, the suit for the reliefs as stated above. 4. In the written statement filed on the side of the defendant, it is averred as follows: The plaintiff ought to have filed separate suit with regard to the suit property in the year 1981 itself to substantiate his right and title with regard to the suit property. It is false to state that the plaintiff was enjoying the suit property as kitchen garden 25 years ago. The suit property was given by Idayakottai Jamin in favour of grand-mother of the defendant, by name Parvathi as she was working in Idayakottai Jamin and she was residing there by putting up hut and the Government also issued B memos in her name. After the demise of Parvathi, the mother of the defendant had been in enjoyment of the suit property over the period of 30 years and paying penalty to the Government. After the demise of Parvathi, the mother of the defendant had been in enjoyment of the suit property over the period of 30 years and paying penalty to the Government. It is true that the plaintiff has filed petition to implead him as party in O.S.No.547 of 1981. The plaintiff is the Headmaster and if he has actually any right over the suit property, there is no bar for him to file an independent suit claiming possession and right over the suit property. The period of limitation was not condoned in the judgment of the High Court made in S.A.No.966 of 1986. As the Idyakottai Jamin gave the suit property as a gift long back to the defendant's grand-mother, the documents are not available with the defendant. Hence, the defendant prayed for the dismissal of the suit. 5. The trial court, after considering the rival evidence adduced on either side, has decreed the suit as prayed for. Against the judgment and decree passed by the trial court, the defendant as appellant has preferred A.S.No.15 of 2005 on the file of the first appellate court. The first appellate court, after hearing both sides and upon reappraising the evidence available on record, has dismissed the appeal and thereby confirmed the judgment and decree passed by the trial court in O.S.No.114 of 2000. Against the concurrent judgment and decree of the courts below, this second appeal has been preferred at the instance of the plaintiff (sic) as appellant. 6. At the time of admitting the present second appeal, the following substantial question of law has been formulated for consideration: 1. Whether misconceived and wrongly framed counter-claim, by the respondent in the previous proceedings which was dismissed as not maintainable by this Honourable Court in S.A.No.996 of 1986 would come within the expression 'defect of jurisdiction or other cause of like nature' to enable the respondent to claim benefit of section 14(1) of the Limitation Act in the present suit? 2. Whether the finding of the Courts below that the respondent was prosecuting the previous proceedings in good faith and diligence is sustainable in view of the fact that the respondent could have filed a separate suit against the appellant's predecessors for declaration and recovery of possession and nothing prevented him from doing so? 3. 2. Whether the finding of the Courts below that the respondent was prosecuting the previous proceedings in good faith and diligence is sustainable in view of the fact that the respondent could have filed a separate suit against the appellant's predecessors for declaration and recovery of possession and nothing prevented him from doing so? 3. Whether the respondent/3rd defendant in the previous suit could be considered to be prosecuting a civil proceeding against the defendant's predecessors i.e., his co-defendants by filing the counter-claim in the previous suit in O.S.No.547 of 1981? 4. Whether the judgment of the courts below that the appellant is not entitled to raise the plea of adverse possession in the present suit against the respondent in view of the previous proceedings is sustainable? 5. Is not the defendant's claim of adverse possession proved in view of the admitted fact that from the year 1979 till 2000 they were trespassers in continuous possession of the property without any proper action by the plaintiff to recover possession? 6. Whether the conclusion of the courts below that the present suit is a continuation of the previous suit in O.S.No.547 of 1981 is correct and if so whether the defendant is entitled to raise the plea of adverse possession in the present suit for the first time? 7. Whether the period of limitation for claiming adverse possession would stop from running during the entire period of the previous proceedings in O.S.No.547 of 1981? 7. Before going into the merits of the case, it is very useful to narrate the admitted facts of the case. 8. It is admitted by both parties that one Savadammal along with S.Ramalingam Pillai and A.Janaki Ammal filed a suit for recovery of possession against Karuppayammal and Parvathiammal before the District Munsif Court, Palani, in O.S.No.547 of 1981 and when the suit was pending, V. Samiappan the plaintiff herein filed a petition to implead him as one of the parties and after contest, he was added as the third defendant in that suit. Further, the said V.Samiappan filed a counter claim against the defendants 1 and 2 therein and prayed for declaration against the defendants 1 and 2 therein and after elaborate discussion, the trial court has allowed the counter claim filed by the 3rd defendant therein, dismissing the relief prayed for by the plaintiff therein and directed the defendants 1 and 2 therein to hand over the possession to the third defendant therein. Against the said judgment and decree of the District Munsif, Dindigul, the plaintiffs therein preferred appeal in A.S.No.64 of 1985 and Cross Objection was filed by the defendants 1 and 2 before the District Court, Dindigul and the District Judge, after hearing the arguments on behalf of both sides, dismissed the appeal and the Cross Objection and against the dismissal of the Cross Objection, the defendants 1 and 2 filed S.A.No.996 of 1986 before the High Court and the second appeal was allowed mainly on the ground that the counter claim filed by the third defendant against the defendants 1 and 2 has not legally maintainable and thereby set aside the judgment and decree of both the courts below on 18.08.1999. Subsequently, after pronouncement of the judgment, the High court has passed the following order: 2. Mr.Raghavaachri, learned counsel for the appellant objects to the liberty sought for at the instance of the third respondent. It is made clear that as and when the third respondent files a fresh suit, it is open to him to plead and substantiate before the trial court as to whether he is entitled to the benefit of exclusion of time as provided under section 14(1) of the Act. It is also open to the contesting party to resist such a plea and it is for the trial court to decide the legality of such claim on merits. Therefore, after the disposal of the second appeal on 18.8.1999, the present suit was filed by the third defendant therein before the District Munsif Court, Palani, on 20.03.2000 and the same is pending before this court in the stage of second appeal. 9. It is further admitted that the defendant by name Thilagavathi alias Thilagam is the only daughter of Karuppayammal and the Karuppayammal mother's name is Parvathi Ammal. 10. 9. It is further admitted that the defendant by name Thilagavathi alias Thilagam is the only daughter of Karuppayammal and the Karuppayammal mother's name is Parvathi Ammal. 10. The learned counsel for the appellant/defendant argued that the suit property has been in possession and enjoyment of the appellant/defendant and her predecessor in title for more than the statutory period and therefore, the appellant/defendant is entitled for adverse possession in the suit property and the first appellate court ought to have held that the property in question is belonged to the appellant/defendant through adverse possession and no relief can be granted to the respondent/plaintiff therein. 11. The further argument of the learned counsel for the appellant/defendant is that the respondent/plaintiff is not entitled for exclusion period of limitation under section 14 of the Limitation Act and for the period of pendency of old suit in O.S.No.547 of 1981 and connected appeal. Therefore, it is argued on the side of the appellant/ defendant that the suit has to be dismissed as time barred and the appellant/defendant had preferred title by adverse possession. 12. In support of his contention, the learned counsel for the appellant/defendant relied upon the following judgments:- 1. 1922 Madras 417, in the case of Chirakkal vs. Mullamittath. 2. (1997)SCC 688 in the case of Hanamanthappa and another vs. Chandrashekharappa and others. 3. 2000(I)CTC 39, in the case of Karuppayammal and another vs. S.Ramaalingam Pillai and others. 13. The learned counsel for the respondent/ plaintiff argued that the property in question belonged to the respondent/plaintiff and when he was in the previous suit O.S.No.547 of 1981 as the third defendant, he filed a counter claim against the defendants 1 and 2 therein on that suit and that suit, was dismissed and the counter claim filed by the third defendant was allowed and the defendants 1 and 2 therein were directed to hand over the possession to the third defendant therein and the appeal filed by both the first and second defendants and the plaintiff therein were dismissed and subsequently, in the second appeal, on technical ground held that the counter claim filed by the 3rd defendant is not maintainable. So, in the old suit, the defendants 1 and 2 were not contested as the third defendant had come without any bona fide claim or etc. 14. So, in the old suit, the defendants 1 and 2 were not contested as the third defendant had come without any bona fide claim or etc. 14. According to section 14 of the Limitation Act, third defendant has bona-fidely contested and the period of pendency in old suit has to be excluded and prays that the suit is filed within time and due to pendency of the old suit, the defendants could not prefect title by adverse possession and both the courts below have correctly held that the plaintiff is entitled to benefit under section 14(1) of the Limitation and therefore, the second appeal has to be dismissed with costs. 15. In support of contention, on the side of the respondent/plaintiff, the following decisions were relied on:- 1. 2004)2 SCC 747, in the case of Union of India and others vs. West Coast Paper Mills Limited and another. 2. (2009)1 SCC 786 in the case of Shakti Tubes Limited vs. State of Bihar and others. 3. 2009(5)CTC 558, in the case of S.Ganesan vs. Bharathirajan. 16. Section 14(1)of the Limitation Act and Article 65 of the Limitation Act, read as follows: 14. Exclusion of time of proceeding bona fide in court without jurisdiction. (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceedings relates to the same matter in issue and in prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. "Article 65. For possession of immovable property or any interest therein based on title period of limitation is twelve years and the time from which the period begins to run is when the possession of defendant becomes adverse to the plaintiff." 17. "Article 65. For possession of immovable property or any interest therein based on title period of limitation is twelve years and the time from which the period begins to run is when the possession of defendant becomes adverse to the plaintiff." 17. In the old suit O.S.No.547 of 1981, the defendant's grand-mother and the mother contested the suit and the third defendant, who was the present plaintiff and in that suit, counter claim filed by the third defendant therein was allowed against the defendants 1 and 2 for recovery of possession on the basis of his bona fide claim and therefore, it can not be treated as without bona fide, the third defendant filed the counter claim during that point of time. Since, the plaintiff claimed himself that he is the owner of the property and filed the counter claim for recovery of possession during the pendency of the suit and the plaintiff in that suit as well as the defendants 1 and 2 were not contested stating that the counter claim was not bona fide and the counter claim was allowed and the appeal filed by the plaintiff and cross appeal by defendant Nos.1 and 2 were dismissed as against the 3rd defendant/the present plaintiff and therefore, the argument of the learned counsel for the appellant/defendant that without any bona fide, the counter claim was filed by the plaintiff is not at all correct and cannot be accepted. 18. It is argued on the side of the appellant/ defendant that the plaintiff can file a separate suit for declaration and recovery of possession during the point of time. So, the counter claim filed by the 3rd defendant in that suit is not bona fide one. The third defendant/the present plaintiff has got every right to file a separate suit claiming recovery of possession against the 1st and 2nd defendants in that suit. But at that time, the plaintiff in O.S.No.547 of 1981 filed suit claiming title and for recovery of possession against the defendants 1 and 2 and it is also open to the present plaintiff to file a separate suit or counter claim at that time. But the plaintiff has chosen to file a counter claim and that was accepted by trial court as well as the first appellate court. But the plaintiff has chosen to file a counter claim and that was accepted by trial court as well as the first appellate court. Since, the plaintiff has not filed a separate suit for recovery of possession, it cannot be presumed that he is not bona fide in filing the counter claim in that suit. So the argument of the appellant/defendant that since, the respondent/plaintiff has not filed a separate suit for recovery of possession and he has no bona fide in filing counter claim is not at all acceptable. 19. Since, the respondent/plaintiff filed a counter claim in O.S.No.547 of 1981 and it was allowed, and in first appeal the same was contested by the plaintiff and D.1 and D.2 it was confirmed. Therefore, the period of pendency of the old suit O.S.No.547 of 1981 and first appeal has to be excluded in calculating the period limitation. Further, respondent/plaintiff is entitled to benefit under section 14(1) of the Limitation Act, the rulings cited on the side of the appellant/defendant are not applicable to the facts of the present case. 20. In the judgment reported in the case of N.S.Spance vs. D.S.Kanagarajan, the suit was filed for partition and preliminary decree was passed and no final decree has been passed and the possession of the suit property has not taken by the first defendant. In the said judgment, it has been held as follows: "Therefore, the only question remains for consideration is, whether such possession would confer title upon the plaintiff, extinguishing the title of the first defendant, which was recognised by the Court in O.S.No.69/68, which remains only as a preliminary decree, not disturbing the possession. If possession had been taken in pursuance of the preliminary decree and final decree if any, the matter would be different and this is not available in this case. In this view, it should beheld, irrespective of the preliminary decree passed by the Court, with regard to the suit property also, the possession continues to be with the plaintiff. Thus, settling the uninterrupted possession, as recorded by the courts below, well over for 12 years, we have to see what is the effect, which must be the substantial question of law. Thus, settling the uninterrupted possession, as recorded by the courts below, well over for 12 years, we have to see what is the effect, which must be the substantial question of law. If the possession in favour of the plaintiff is not proved or the courts below have not recorded more than 12 years possession in favour of the plaintiff, then it could be said there is no question of law, much less substantial question of law, since adverse possession should be based on the finding of the continuous possession. Here continuous possession is established and that is why, I said that substantial question arisen in this case, though it was not so formulated, while admitting the appeal. 27. Reliance has been placed in Ammena Ammal vs. Jahabar Nachiar and others Nagarajan vs. Rajamani Aiyar(1999(I)CTC 928) and number of previous decisions to constitute adverse possession as per the legal maxim i.e., the possession has to be open, hostile and as a matter of right. In this case, the essential ingredients viz., there should be corpus and animus ie., Physical possession and intention to possess are all well established. Though the conditions necessary to constitute adverse possession in this case are positively and negatively established, unfortunately, both the courts below have not properly assessed the same. Though the trial court has stated, what are all the ingredients required for adverse possession, it failed to follow the same, when it was established, merely saying that the plaintiff has failed to prove the hostile possession with animus to enjoy the same etc. Here, whether it is on the basis of the title deed or otherwise, asserting that the plaintiff should enjoy the property in his own right, he had leased out the property, collected the rent, paid property tax etc., and these are all the assertions with animus to enjoy the property and ignoring the same, as if no case is made out; is not possible. Since both the courts below have failed to appreciate these legal aspects, which is based on the proved position, I am constrained to interfere with the findings of the trial court, though it is concurrent, concluding that the plaintiff has proved his title to the suit property by adverse possession, which is to be declared, granting injunction also." 21. Since both the courts below have failed to appreciate these legal aspects, which is based on the proved position, I am constrained to interfere with the findings of the trial court, though it is concurrent, concluding that the plaintiff has proved his title to the suit property by adverse possession, which is to be declared, granting injunction also." 21. But in the instant case on hand, the defendants 1 and 2 were in possession of the property and the plaintiff therein filed a suit for recovery of possession and the same was pending and thereafter, counter claim filed by the third defendant therein against defendants 1 and 2 was allowed. Subsequently, appeal had been preferred by the affected party, but the first appellate court has confirmed the trial court judgment. The third defendant therein filed a counter claim for recovery of possession. The defendant herein contested the suit that she is the owner of the property by claiming independent title to the property stating that the property was donated by Ilayakottai Jaminthar to her ancestors and she is in enjoyment of the property continuously. Further, she admitted that the documents are available for the same but she has not produced any document to that effect. The defendant never admitted that the plaintiff is the owner of the property and he is in enjoyment of the property in the previous suit and in this suit. Hence, necessary ingredients for claiming adverse possession is not proved by the defendant. 22. In support of his contention, the learned counsel for the respondent has relied on a decision of this Court reported in 2009 (5) CTC 558 [S.Ganesan Vs. Bharathirajan], wherein at paragraph Nos.8 and 9 it has been held by this Court as follows: "8. In so far the plea of adverse possession is concerned, it is well settled principle of law that the plea based upon title and adverse possession cannot come together. The party who pleads on both grounds will have to stick on to either one of them. Therefore, the Trial Court has rightly gone into the plea of title and has held against the appellant. Moreover no specific averments has been made about the date and manner in which the plaintiff is enjoying the suit property adverse to the true owner. Therefore, the Trial Court has rightly gone into the plea of title and has held against the appellant. Moreover no specific averments has been made about the date and manner in which the plaintiff is enjoying the suit property adverse to the true owner. It is well settled principle o law that the party who pleads adverse possession will have to establish the said fact. Moreover it is seen that the defendant has purchased the suit property under Ex.B5 only on 02.09.1992. Therefore, the absence of making the vendors of the defendant as parties to the Suit would non-suit the plaintiff in claiming adverse possession. In any case the plaintiff has not even taken steps to examine them in support of his case. 9. The plaintiff having taken the plea of ownership based upon title cannot claim adverse possession since under the doctrine of adverse possession one has to accept the title of the owner. It has been held in M.Ganesa Reddiar and others V. C.Krishnasamy Raju, 2008 (5) MLJ 144 , that in such a case the plea of adverse possession cannot allowed to be raised. Hence this Court finds that contention of the plaintiff regarding adverse possession cannot be accepted." 23. The above stated judgment of this Court relied on by the learned counsel for the respondent is squarely applicable to this case. In this case also, the defendant claims that she is the owner of the property and claiming title to the property. So, the argument of the learned counsel for the appellant/defendant that the plaintiff perfected title by adverse possession is not acceptable one. 24. The learned counsel for the appellant argued that the appellant/defendant is enjoyed the property from 1979 onwards. This Court had already come to a conclusion that the plaintiff is entitled to the benefit under Section 14(1) of the Limitation Act. The counter claim filed by the plaintiff in O.S.No.547 of 1981 and disposal of the suit pending first appeal and second appeal has to be excluded till the disposal of second appeal and after the dismissal of the second appeal, the plaintiff herein has filed the suit for recovery of possession and hence, the argument of the learned counsel for the respondent/ plaintiff that the suit is filed within time is acceptable one. 25. 25. Further, it is contended on the side of the appellant that the first defendant's mother and grand-mother are the owner of the property but she has not produced any document to prove the same and all the documents filed by the first defendant are only after the filing of the suit O.S.No.547 of 1981, therefore, no credential value can be given to those documents. But the plaintiff has filed a document of title and that was admitted by the courts below from the above it is made clear that the plaintiff is the owner of the property as per Ex.A1. Hence, this court is of the view that both the courts below have correctly come to the conclusion that the plaintiff is entitled to the relief as prayed for and this court does not find any infirmity or illegality in the concurrent findings of the courts below and therefore, the second appeal is liable to be dismissed. 26. Accordingly all the substantial question of laws are answered. 27. In fine, the second appeal is dismissed and the judgment and decree of the courts below are confirmed. Considering the facts and circumstances of the case, both the parties are directed to bear their respective costs.