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2018 DIGILAW 3026 (MAD)

SATHAPPAN CHETTIAR v. PARVARTHAVARTHINI

2018-09-18

C.V.KARTHIKEYAN

body2018
JUDGMENT C.V. Karthikeyan, J. The first and second defendants in O.S.No.258 of 1999 on the file of District Munsif Court, Palani, are the appellants herein. 2. O.S.No.258 of 1999 had been filed by the first respondent herein, Parvathavarthini, for a decree against the defendants to declare her title by adverse possession or possessory right in the suit property and for permanent injunction against the first and second defendants from causing interference to her peaceful possession and for costs of the suit. 3. The said suit was dismissed by the learned District Munsif, Palani, by judgment and decree dated 26.09.2008. As against the said judgment and decree, the plaintiff had filed A.S.No.4 of 2009, which came up for consideration before the Subordinate Judge, Palani, who by judgment and decree dated 15.09.2010, reversed the judgment and decree of the trial Court, allowed the appeal and decreed the suit. Consequently, the first and second defendants have filed the present second appeal. In the suit, the plaintiff had also impleaded the Sub-Registrar, District Registrar Officer, Palani, as third defendant. However, no relief was sought against the said third defendant. O.S. No. 258 of 1999:- 4. The plaintiff claimed that her ancestor had entered into the suit property more than 50 years before from 1950 on wards with full knowledge and consent of the first defendant, A. Sathappa Chettiar. The plaintiff's ancestor had started a Hotel business in the suit property to the full knowledge and consent of the first defendant, who allowed the plaintiff and her predecessor to remain in actual possession and enjoyment of the suit property. It had been stated that a Coffee Club under the name, "Devi Vilas" was started in the suit property. It was continued, even after the death of successive members of the family of the plaintiff. It had also been stated that the first defendant had disposed a portion of the property to the second defendant. It was claimed that they were challenging the plaintiff's possessory right obtained through adverse possession. In the cause of action paragraph, the plaintiff claimed that the cause for the suit arose in 1950, when possession was taken by her ancestor with full knowledge, consent and concurrence of the first defendant and also subsequently. 5. It was claimed that they were challenging the plaintiff's possessory right obtained through adverse possession. In the cause of action paragraph, the plaintiff claimed that the cause for the suit arose in 1950, when possession was taken by her ancestor with full knowledge, consent and concurrence of the first defendant and also subsequently. 5. In the written statement filed by the first defendant, it had been stated that the plaintiff's father-in-law, Eswar Iyyar was originally a cook who had sought permission to take the suit property on tenancy basis from the first defendant's Manager. The monthly rent was fixed at Rs. 30. Possession was also given. It was stated that the plaintiff, who succeeded to possession obtained by consent and on tenancy basis cannot claim adverse possession. It was stated that the suit should be dismissed. It was also stated that the first defendant had initiated rent control proceedings for eviction of the plaintiff on the ground of wilful default in payment of monthly rent. 6. This suit came up for consideration before the District Munsif Court, Palani. On the basis of the rival pleadings, the learned District Munsif, Palani, had framed the following the issues for trial : "(1) Whether the plaintiff is entitled to the relief of declaration? (2) Whether the plaintiff is entitled to the relief of permanent injunction? (3) To what other relief, the plaintiff is entitled to?" 7. The parties were invited to let in oral and documentary evidence. During trial, the plaintiff examined herself as PW-1 and examined another witness as PW-2. The first defendant examined himself as DW-1. The second defendant was examined as DW-2. Another witness was examined as DW-3. The plaintiff marked Ex-P1 to Ex-P125. The defendants marked Ex-B1 to Ex-B18. The plaintiff marked documents recording payment of electricity charges and water charges. The learned District Munsif, Palani, held that the plaintiff was in possession only by the consent and concurrence of the first defendant and therefore, held that a declaration of adverse possession cannot be granted and dismissed the suit. A.S. No. 4 of 2009:- 8. The plaintiff filed an appeal suit before the Subordinate Court, Palani. The learned Subordinate Judge, re-examined the evidence on record and framed the points for consideration. A.S. No. 4 of 2009:- 8. The plaintiff filed an appeal suit before the Subordinate Court, Palani. The learned Subordinate Judge, re-examined the evidence on record and framed the points for consideration. He found that the plaintiff / her ancestors had been in continuous possession from 1950 and held that there was no evidence to show that the plaintiff was a tenant. He also found that the only document, which related to tenancy was Ex-B6 and observed that the defendant had not been produced any other document either prior or subsequent to Ex-B6. He also found that the defendants had not instituted any suit for recovery of possession. On these grounds, the learned Subordinate Judge, Palani, reversed the findings of the learned District Munsif, Palani, allowed the appeal and consequently, decreed the suit. S.A.(MD) No. 549 of 2011:- 9. The first and second defendants have filed the present second appeal challenging the judgment and decree of the first appellate Court. At the time of admission, the following substantial questions of law were framed : "(1) Whether the findings of the lower appellate Court are vitiated by its failure to consider the documentary evidence Ex-A11 to Ex-A18, Ex-A46 to Ex-A72, Ex-93 to Ex-A108, where under the receipts have been remitted in the name of the 3rd respondent and his ancestors and the evidence of PW-1 admitting the absolute title of the appellant and his predecessors in title? (2) Whether the lower appellate Court is right in holding that the 1st respondent have prescribed titled by adverse possession in the absence of any specific evidence especially when the very allegations in the plaint itself that the 1st respondent's ancestors came to be occupied on permission by the predecessors in title of the appellant? (3) Whether the lower appellate court is right in giving a finding that the 1st respondent is enjoying the property from the year 1950 and the appellant had not taken any steps to dispossesses him without even considering the specific contentions raised by the appellant substantiated by the documentary evidence?" 10. Heard arguments advanced by Mr. M.P. Senthil, learned Counsel for the appellants and Mrs. Hema Sampath, learned Senior Counsel for Mr. D. Venkatesh, for the first respondent and Mr. M. Murugan, learned Government Advocate for the second respondent. 11. Heard arguments advanced by Mr. M.P. Senthil, learned Counsel for the appellants and Mrs. Hema Sampath, learned Senior Counsel for Mr. D. Venkatesh, for the first respondent and Mr. M. Murugan, learned Government Advocate for the second respondent. 11. It is the claim of the first respondent that she and her ancestors were in continuous possession of the suit property from 1950 onwards. In the plaint, at paragraph 5, it had been stated as follows : "The plaintiff's predecessors also have entered the suit property for more than 50 years to have a took on the suit property with full knowledge consent and concurrence of the first defendant even in 1950 onwards. Ever since the time immemorial in 1950 the plaintiff's ancestors had started their hotel business in the suit property to the full knowledge and consent of the first defendant, who had allowed the plaintiff and her predecessors to remain in actual possession and enjoyment of the suit property." 12. These averments made in the plaint clearly establish that the ancestors of the plaintiff had been granted permission to take possession of the suit property. Again in the plaint in the cause of action paragraph, it had been stated as follows : "The cause of action for the suit actually arose in 1950, when one Rama Iyer predecessors of plaintiff came into actual possession into the suit property in his capacity as caretaker of the said suit property with full care custody and real actual possession to run a coffee club cum meals hotel in 1950 with full knowledge, consent and concurrence of the first defendant, the real owner of the suit property, since 1944 onwards." 13. It is seen that the basis for seeking possessory title was not adverse possession, but, continuation of permission given by the first defendant. In Chatti Konati Rao & Others vs. Palle Venkata Subba Rao, (2011) 1 LW 783 the Honourable Supreme Court had held as follows : "14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said that mere possession however long does not necessarily mean that it is adverse to the true owner. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, inpublicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within 12 years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law." 14. In the present case, the plea of adverse possession has not been taken as defence, but rather it has been claimed as a matter of right. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law." 14. In the present case, the plea of adverse possession has not been taken as defence, but rather it has been claimed as a matter of right. The first respondent's plea is contrary to the stand taken in the pleadings and this Court need not to go further to examine whether the first respondent has perfected title through adverse possession or whether the first respondent can be considered as being adverse to that of the appellants. 15. In Gurdwara Sahib vs. Gram Panchayat Village Sirthala and another, (2014) 1 SCC 669 the Honourable Supreme Court has held that "declaration of ownership of land on the basis of adverse possession cannot be sought by the plaintiff, but, claim for ownership by adverse possession can be made by way of defence, when arrayed as defendant in proceedings against him." 16. In the same judgment, observing that the appellant in the case was in possession, the Honourable Supreme Court had further held as follows : "9. As the appellant is in possession of the suit property since 13.4.1952 and has been granted the decree of injunction, it obviously means that the possession of the appellant cannot be disturbed except by due process of law...." 17. Mrs. Hema Sampath, learned Senior Counsel for the first respondent relied on in the Rame Gowda vs. M. Varadappa Naidu and another, (2004) 1 SCC 769 and stated that the first respondent was in settled possession and consequently stated that the rightful owner has to take recourse to procedure establish by law to recover possession. In the said judgment, it had been held as follows : "8..... If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, ......" 18. PW1, during her cross examination, had admitted as follows with respect to possession : Image 19. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, ......" 18. PW1, during her cross examination, had admitted as follows with respect to possession : Image 19. In view of the above, the following facts are established : (1) The first respondent and her ancestors came into possession only with the knowledge, concurrence and consent of the appellants; and (2) The possession has never been hostile to the appellants. 20. The first respondent cannot claim declaration of title through adverse possession. Consequently the substantial questions of law are answered as follows : (1) The first substantial question of law is answered that the findings of the lower appellate Court are vitiated by its failure to consider the documentary evidence. It is pertinent to point out that the property tax stand in the name of the first appellant. It is only the electricity charges and water charges, which are in the name of the first respondent and those documents cannot confer title to the first respondent. (2) The second substantial question of law is answered that the lower appellate Court was wrong in holding that the first respondent had prescribed title by adverse possession, since the first respondent had admitted in the plaint that she and her ancestors were in possession only by concurrent and consent of the first appellant. (3) The third substantial question of law is answered that the lower appellate Court had erred in giving a finding that the first respondent had perfected title through adverse possession. 21. It was pointed out by during arguments that the appellants have initiated rent control proceedings to evict the first respondent. Those proceedings must meander through its own course to its logical end. Since the first respondent is in possession and since the appellants have initiated necessary legal proceedings, the possession of the first respondent cannot be disturbed, except by due process of law. 22. As a result, the second appeal is allowed with costs. The judgment and decree in A.S.No.4 of 2009 passed by the Subordinate Judge, Palani, dated 15.09.2010 is reversed and set aside and the judgment and decree passed in O.S.No.258 of 1999 by the District Munsif, Palani, dated 26.09.2008 is confirmed.