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2018 DIGILAW 2249 (MAD)

Chinnathambi v. Narasammal

2018-07-25

T.RAVINDRAN

body2018
JUDGMENT : 1. In this second appeal, challenge is made to the Judgment and Decree dated 28.06.2004 passed in A.S.No.3 of 2003 on the file of the Principal District Court, Villupuram, reversing the Judgment and Decree dated 11.10.2000 passed in O.S.No.1240 of 1995 on the file of the II Additional District Munsif Court, Ulundurpet. 2. The second appeal has been admitted on the following substantial question of law: “When the appellant has pleaded and proved adverse possession as required under Article 65 of the Limitation Act, 1963, whether the Lower Appellate Court is correct in law in holding that the appellant had not raised any plea nor adduced any evidence to prove adverse possession?” 3. The defendant is the appellant. 4. The suit has been laid by the respondent / plaintiff against the appellant/defendant for the relief of declaration in respect of the items 1 & 2 of the suit properties and the relief of permanent injunction in respect of the first item of the suit properties and the relief of recovery of possession as regards the second item of the suit properties and also mesne profits. The defendant resisted the plaintiff's case on various grounds and also contended that it is only the defendant, who has title to the second item of the suit properties and is in the possession and enjoyment of the same and also pleaded adverse title in respect of the second item of the suit properties and accordingly, prayed for the dismissal of the plaintiff's suit. 5. Based on the oral and documentary evidence adduced by the respective parties, it is found that the trial Court has granted the relief in favour of the plaintiff as regards the first item of the suit properties, however, dismissed the plaintiff's suit as regards the second item of the suit properties. As against the decreeing of the suit in favour of the plaintiff with reference to the first item of the suit properties, it is found that the defendant has not preferred any appeal nor preferred any cross objection in the first appeal preferred by the plaintiff. It is thus found that the grant of decree in favour of the plaintiff as regards the first item of the suit properties has become final. 6. It is thus found that the grant of decree in favour of the plaintiff as regards the first item of the suit properties has become final. 6. The first appellate Court, on a consideration of the materials placed on record, was pleased to hold that the plaintiff has established her claim of title to the second item of the suit properties and accordingly, granted the reliefs in favour of the plaintiff as prayed for with reference to the same. The first appellate Court has also held that the defendant has failed to establish his claim of adverse title as regards the second item of the suit properties. Impugning the judgment and decree of the first appellate Court granting the relief in favour of the plaintiff as regards the second item of the suit properties, the present second appeal has been laid. 7. Inasmuch as the scope of controversies between the parties as regards the second item of the suit properties lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 8. Materials placed on record go to show that the total extent of 1.02 acres lying in the survey No.122/1 originally belonged to Rathinambal and it is found that Rathinambal had alienated the said property in favour of Maniya Konar by way of a sale deed marked as Ex.B2/A3. As regards the above position, there is no dispute between the parties. It is thus seen that both the parties admit the title of Maniya Konar in respect of the entire extent of 1.02 acres in survey No.122/1. Now, it is the case of the plaintiff that Maniya konar by way of the sale deed dated 05.04.1952 marked as Ex.A4 had alienated the second item of the suit properties i.e. an extent of 51 cents in favour of Kathayee ammal and others and it is the further case of the plaintiff that Kathayee ammal had sold the second item of the suit properties in her favour by way of a sale deed dated 03.11.1986 marked as Ex.A5. Thus according to the plaintiff, she has title to the second item of the suit properties as described in the plaint on the strength of Exs.A4 & A5. 9. As above seen, there is no dispute between the parties that the total extent measuring 1.02 cents in S.No.122/1 originally belonged to Maniya Konar. Thus according to the plaintiff, she has title to the second item of the suit properties as described in the plaint on the strength of Exs.A4 & A5. 9. As above seen, there is no dispute between the parties that the total extent measuring 1.02 cents in S.No.122/1 originally belonged to Maniya Konar. When it is found that Maniya Konar had alienated the second item of the suit properties i.e. an extent of 51 cents in favour of Kathayee ammal and others by way of Ex.A4 sale deed dated 05.04.1952 itself, it is found that thereafter, Maniya Konar or his legal heirs would not be entitled to convey any title in respect of the second item of the suit properties to others. However, it is found that as per the case of the defendant that Maniya Konar's wife Periyanayagi ammal had alienated the entire extent of 1.02 acres lying in Survey No.122/1 in his favour by way of the sale deed dated 26.09.1977 marked as Ex.B3/A6. However, when it is seen that Maniya Konar had already alienated the second item of the suit properties to Kathayee ammal and others way back on 05.04.1952 vide Ex.A4 sale deed and thereafter, the abovesaid item of the suit properties had been further alienated by Kathayee ammal in favour of the plaintiff on 03.11.1986 by way of Ex.A5, it does not stand to reason as to how Maniya Konar's wife Periyanayagi ammal would be entitled to convey the entire extent of 1.02 acres in survey No.122/1 in favour of the defendant on 26.09.1977 by way of Ex.B3/A6. Thus, it is found that as rightly determined by the first appellate Court, Maniya Konar's wife would not be entitled to convey the entire extent of 1.02 acres in Survey No.122/1 in favour of the defendant by way of Ex.B3/A6 and it is thus found that the sale deed marked as Ex.B3/A6 would not be valid as regards the second item of the suit properties. 10. It has not been established by the defendant that despite the execution of Ex.A4 sale deed, Periyanayagi ammal had retained the ownership of the entire extent of 1.02 acres in survey No.122/1 and had the competency to alienate the same to the defendant by way of Ex.B3/A6. 10. It has not been established by the defendant that despite the execution of Ex.A4 sale deed, Periyanayagi ammal had retained the ownership of the entire extent of 1.02 acres in survey No.122/1 and had the competency to alienate the same to the defendant by way of Ex.B3/A6. In such view of the matter, when the original owner Maniya Konar himself had alienated the second item of the suit properties by way of Ex.A4 sale deed, it is seen that his wife Periyanayagi ammal would be incompetent to convey the same in favour of the defendant by way of Ex.B3/A6. As rightly pointed out by the first appellate Court on a cumulative analysis of the description of the properties found in Exs.A4 & A5, it is found that it is only the plaintiff, who has title to the second item of the suit properties and accordingly, the first appellate Court had rightly granted the relief of declaration in respect of the second item of the suit properties. 11. The defendant had further pleaded that he had prescribed adverse title to the second item of suit properties on account of his long and continuous enjoyment of the same. However, as rightly determined by the first appellate Court, as regards the plea of adverse title projected by the defendant, it is found that the materials placed on record by the defendant do not serve the same. At the foremost, the defendant in his written statement has not pleaded as to when from his possession and enjoyment of the second item of the suit properties had become adverse to the plaintiff's title. That apart, there is no material worth acceptance placed by the defendant to show that he and his pre decessor in interest had been in the possession and enjoyment of the second item of the suit properties openly and continuously by exhibiting animus attitude to one and all and been enjoying the second item of the suit properties, in particular, beyond the statutory period. In such view of the matter, when the materials placed on record do not support the plea of adverse title projected by the defendant, it is found that the first appellate Court had rightly held that the defendant has failed to establish his claim of title to the second item of the suit properties on the plea of adverse title and no interference is called for with reference to the abovesaid determination of the first appellate Court. Accordingly, the substantial question of law formulated in the second appeal is answered against the defendant and in favour of the plaintiff. In conclusion, the second appeal fails and is, accordingly, dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.