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2018 DIGILAW 711 (MAD)

Suseela Ammal v. M. A. Kanniah Reddiar

2018-02-22

T.RAVINDRAN

body2018
JUDGMENT : Challenge in this second appeal is directed against the judgment and decree dated 19.11.2002, passed in A.S.No.39/2001, on the file of the Principal Subordinate Court, Chengalpattu, reversing the judgment and decree dated 31.01.1996, passed in O.S.No.970 of 1993, on the file of District Munsif Court, Tambaram. 2. Parties are referred to as per their rankings in the trial Court. 3. Suit for declaration, possession and damages. 4. The case of the plaintiffs, in brief, is that the suit property is the ancestral property of the plaintiffs and the defendant in the year 1982 trespassed into a portion of the suit property, despite the purchase of the plaintiffs and thereafter, the defendant accepted the plaintiffs' title and agreed to purchase the suit property from them and subsequent thereto, despite several demands, the defendant neither vacated the suit property nor purchased the same and the defendant has never been ready and willing to perform her part of the contract at any point of time and hence, the plaintiffs issued the notice dated 10.11.86, to the defendant and despite the receipt of the same, the defendant has not sent any reply and left with no other alternative, the plaintiffs had been necessitated to lay the suit for appropriate reliefs. 5. The case of the defendant in brief is that the suit is not maintainable either in law or on facts. 5. The case of the defendant in brief is that the suit is not maintainable either in law or on facts. The defendant is in possession and enjoyment since 1961 and hence, the claim of the plaintiffs that the suit property belongs to them ancestrally is false and the plaintiffs claimed that the defendant has trespassed into the suit property by their letter dated 11.09.1981 and after the same, at the mediation of the panchayatdars, in order to purchase peace, the defendant agreed to purchase an extent of 35feet X 24 feet on the south eastern corner of the suit property and accordingly, an agreement was entered into by the defendant with the first plaintiff and the sale consideration was fixed at Rs.8,500/- and a sum of Rs.4,500/- was paid as advance and the defendant, being an illiterate lady, did not know that a regular sale deed has to be executed pursuant to the sale agreement and the plaintiffs with the help of their henchmen prevailed upon the defendant and persuaded her to pay a sum of Rs.18,000/- as the sale price for the entire suit property on the pretext the same belongs to them and believing the same, the defendant paid the entire amount of Rs.18000/- as well as the other expenses and despite the same, the plaintiffs did not convey a regular sale deed in favour of the defendant and subsequently, the defendant came to know that the plaintiffs have no title or interest in the suit property and accordingly, evading the completion of the sale transaction and hence, the suit laid by the plaintiff for recovery of possession is not maintainable, as the said claim is barred and the suit is therefore liable to be dismissed. 6. In support of the plaintiffs' case PW 1 was examined, Exs.A1 to A8 were marked. On the side of the defendant DWs 1 to 3 were examined, Exs.B1 to B8 were marked. 7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial Court was pleased to dismiss the suit. On appeal, the first appellate Court was pleased to set-aside the judgment and decree of the trial Court and by way of allowing the appeal preferred by the plaintiffs, decreed the suit as prayed for. Impugning the same, the present second appeal has been laid. 8. On appeal, the first appellate Court was pleased to set-aside the judgment and decree of the trial Court and by way of allowing the appeal preferred by the plaintiffs, decreed the suit as prayed for. Impugning the same, the present second appeal has been laid. 8. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration: 1. Whether the plaintiffs would be entitled to declaration as well as possession with reference to the suit property? 2. Whether the first appellate Court was correct in granting decree of possession in respect of the entire suit property? 9. The materials placed in this matter disclose that the defendant in the written statement has admitted the title of the plaintiffs to the suit property and accordingly, also admitted that she had entered into a sale agreement with the plaintiffs for the purchase of the suit property. Accordingly, it is found by the first appellate Court that the title of the plaintiffs pertaining to the suit property has been accepted and further, the documents projected by the plaintiffs marked as Exs.A1 to A8 also throw light that it is only the plaintiffs who have title to the suit property. That apart, the defendant during the course of his evidence examined as DW1 has admitted that it is only the plaintiffs who have title to the suit property and accordingly, entered into an agreement with them in respect of the suit property. Contra to the claim of title by the plaintiffs to the suit property, there is no material as such placed by the defendant to show that she and her husband had any title to the suit property as such. 10. Now, according to the plaintiffs, the defendant has trespassed into the suit property and put up some structure on the same and accordingly, called upon her to deliver the possession. It is their case that following the same, the defendant agreed to purchase the suit property from the plaintiffs and the despite the agreement, the defendant had not come forward to complete the sale transaction and left with no other alternative, had come forward with the suit for appropriate reliefs. 11. It is their case that following the same, the defendant agreed to purchase the suit property from the plaintiffs and the despite the agreement, the defendant had not come forward to complete the sale transaction and left with no other alternative, had come forward with the suit for appropriate reliefs. 11. The defendant having accepted the title of the plaintiffs to the suit property and not having any better title that that of the plaintiffs, it is evident that the defendant seeks or attempts to claim title to the suit property only by way of adverse possession and accordingly, also raised the plea of limitation to resist the plaintiffs suit. Accordingly, the defendant having taken the plea of adverse possession should establish as to from which date onwards her possession had become adverse to the plaintiffs title and further, she has also to prove that she had been in possession and enjoyment of the suit property as the full owner thereof, exhibiting animus character to that of the plaintiffs, to their knowledge openly, continuously beyond the statutory period. However, in so far as this case is concerned, the defendant has not come out clearly as to when from, her possession of the suit property had become adverse to the title of the plaintiffs. For invoking Article 65 of the Limitation Act, to defeat the plaintiffs' claim, at the outset, the defendant has to establish as to from which date onwards her possession of the suit property became adverse to the plaintiffs' interest. Therefore, for invoking Article 65 of the Limitation Act, a definite date should be given by the party who is claiming adverse title against the true owner. The above said essential ingredient not furnished by the defendant in the written statement and also not established and further more, when the defendant has failed to establish her possession of the suit property is adverse to the title of the plaintiffs openly and continuously by exhibiting animus attitude to the knowledge of the plaintiffs as required by law and beyond the statutory period and when the materials placed by the defendant do not advance the above case of the defendant as such, it is found that the first appellate Court has rightly disbelieved the plea set out by the defendant. The documents marked as Exs.B1 to B8 would not in any manner sufficient for upholding the plea of hostile possession projected by the defendant. Accordingly, it is seen that the plea of adverse possession was rightly rejected by the first appellate Court. 12. The defendant cannot also be allowed to seek the benefits of the part performance pursuant to the agreement of sale entered into with the plaintiffs, as the plea of part performance projected is found to be not in consonance with the plea of adverse possession set out by the defendant. Accordingly, it is found by the first appellate Court that the plea of adverse possession and the plea of the benefits sought for by the plaintiffs invoking Section 53A of the Transfer of Property Act being found to be inconsistent with each other and not only that, the defendant having failed to establish that she had at all point of time ready to perform her part of the sale agreement for completing the sale transaction and accordingly put in possession and enjoyment of the suit property, finding that the defendant had incongruously taken the plea of adverse possession as such, the first appellate Court rightly disbelieved the case of the defendant and held that she is not entitled to claim title to the suit property or retain the possession of the same. 13. In the light of the above discussions, it is found that the first appellate Court, on the appreciation of the materials placed on record in the right perspective, giving proper reasonings, both factual as well as legal, upheld the plaintiffs' entitlement of declaration of title to the suit property as well as the possession of the same from the defendant. The first appellate Court accordingly is perfectly in order to grant the decree of possession of the suit property in entirety as prayed for. The substantial questions of law formulated in this second appeal are accordingly answered in favour of the plaintiffs and against the defendant. 14. The counsel for the respondents in support of his contention placed reliance upon the decisions reported in AIR 1957 SC 314 (P.Lakshmi Reddy Vs. L.Lakshmi Reddy), 1990 (1) SCC 345 (Mohd. Zainulabudeen (since deceased) by LRs Vs. Sayed Ahmed Mohideen and others), 1990 (4) SCC 706 (Achal Reddy Vs.Ramakrishna Reddiar and others), 1995 (4) SCC 496 (Vidya Devi Alias Vidya Vati (dead) by LRs Vs. L.Lakshmi Reddy), 1990 (1) SCC 345 (Mohd. Zainulabudeen (since deceased) by LRs Vs. Sayed Ahmed Mohideen and others), 1990 (4) SCC 706 (Achal Reddy Vs.Ramakrishna Reddiar and others), 1995 (4) SCC 496 (Vidya Devi Alias Vidya Vati (dead) by LRs Vs. Prem Prakash and others), 1996 (2) LW 522 (N.Veepathummal & others Vs. Sherif Beevi & others), (1998) 7 SCC 103 (M.Arthur Paul Ratna Raju and others Vs. Gudese Garaline Augusta Bhushanabai and another), (2004) 1 SCC 271 (MD.Mohammad Ali (dead) by Lrs Vs. Jagadish Kalita and others), (2006) 11 SCC 600 (Govindammal Vs. 3R.Perumal Chettiar and others), 2009 (1) CTC 366 (M.Subbiah Vs. T.Subbiah (died) and thirteen others) and (2010) 2 SCC 461 (Mandal Revenue Officer Vs. Goundla Venkaiah and another). The principles of law outlined in the above said decisions are taken into consideration and followed as applicable to the case at hand. 15. In conclusion, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.