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2019 DIGILAW 735 (MAD)

Ramaiyan Chinnadurai v. Ramamirtham

2019-03-18

R.PONGIAPPAN

body2019
JUDGMENT : R. Pongiappan, J. 1. The Second Appeal has been filed by the defendants 1, 3 to 6/appellants against the Judgment and Decree dated 29.06.2009 in A.S. No. 130 of 2008, on the file of the learned Additional Sub Judge, Kumbakonam. 2. The respondent herein has filed a suit in O.S. No. 91 of 2001 on the file of the learned District Munsif-cum-Judicial Magistrate, Papanasam, seeking for the relief of injunction restraining the defendants and their men from in anyway interfering with her peaceful possession and enjoyment of the suit property. The learned Principal District Munsif cum Judicial Magistrate, Papanasam by Judgment and Decree dated 29.02.2008, partly allowed the suit and granted the relief of injunction in respect to suit A-schedule property. The suit has been dismissed in respect to B-schedule property. 3. Aggrieved by the same, the plaintiff filed an appeal in A.S. No. 130 of 2008, on the file of the learned Additional Subordinate Judge, Kumbakonam. By Judgment and Decree, dated 29.06.2009, the learned Additional Subordinate Judge, Kumbakonam, allowed the appeal and decreed the suit as prayed for. Feeling aggrieved by the same, the defendants have filed the present Second Appeal. 4. For the sake of convenience the parties are referred to as, as described, before the trial Court. 5. The averments made in the plaint, in brief, are as follows: By way of getting the patta from the Government, the plaintiff becomes the absolute owner of the A-schedule property. In respect to B-schedule property shown in the rough sketch, a joint patta was issued in the name of three persons, viz., Alamelu Ammal, Saradambal and Rajagopala Iyer. Since the plaintiff and her father are in possession and enjoyment of the suit property for the long period, i.e., nearly about 30 years, the plaintiff perfected title to the suit property by means of adverse possession. Though in the revenue records, patta stands in the name of three persons as joint patta, the said pattathars have not opposed the plaintiff's possession and enjoyment in the B-schedule property till date. The possession of the B-schedule property is with the plaintiff as a absolute owner of the same. The plaintiff enjoyed A and B schedule properties as one square. The plaintiff had constructed a house in a portion of A-schedule property and in a portion of B-schedule property and thereby, she is in possession and enjoyment of the same. The possession of the B-schedule property is with the plaintiff as a absolute owner of the same. The plaintiff enjoyed A and B schedule properties as one square. The plaintiff had constructed a house in a portion of A-schedule property and in a portion of B-schedule property and thereby, she is in possession and enjoyment of the same. On the backside of the said house, the plaintiff installed a hand pump and enjoying the B-schedule property by keeping manure pit and planted various trees, viz., Palmyra, Poovarasu and Coconut trees. The 1st defendant started to put up a construction in a portion of the suit property and the same was prevented by the plaintiff. The second defendant died during the pendency of the suit, hence the legal representatives of the second defendant, viz., D3 to D6 are impleaded as defendant Nos. 3 to 6. 6. The averments made in the written statement filed by the second defendant and adopted by the first defendant, in brief, are as follows: The second defendant is not aware about the granting of patta in respect of A-Schedule property. The description with regard to the A-schedule property is not correct. The extent stated, boundaries furnished and the survey number stated in respect to the A-Schedule property is not admitted. The plaintiff is bound to prove that the joint patta was issued to the B-schedule property. It is incorrect to state that the plaintiff and her father having the possession of A and B schedule properties for more than 30 years. The plaintiffs father never enjoyed the suit B-schedule property. The plaintiff has come forward with this suit just to claim some right in respect to B-schedule property. The plaintiff was previously residing in Udumalpet Village. Thereafter, the plaintiff residing at Papanasam and in Kabisthalam Village. There was a clear demarcation line in between A-schedule property and B-schedule property. The 1st and 2nd defendants alone raised various trees in the B-Schedule property. The plaintiff herself filed a caveat in which she admitted the possession and enjoyment of the first defendant in respect to B-schedule property. Now, suppressing the above said facts, the plaintiff filed the suit and trying to prevent the 1st defendant from using the B-schedule property by way of construction. The plaintiff herself filed a caveat in which she admitted the possession and enjoyment of the first defendant in respect to B-schedule property. Now, suppressing the above said facts, the plaintiff filed the suit and trying to prevent the 1st defendant from using the B-schedule property by way of construction. In fact, for the purpose of doing construction, the 1st defendant has removed the trees found in the B-schedule property and nobody including the plaintiff has objected the same. 7. Since the name of the third parties are found in the revenue records, by using the same, the plaintiff illegally annexed the B-schedule property with the A-schedule property: The description of the B-schedule property is not admitted. There was a pozhi in between A and B schedule properties. Prior to the filing of the suit, the surveyor measured the property and found that the first defendant is in the possession of B-schedule property. 8. Based on the above pleadings, the learned District Munsif cum Judicial Magistrate, Papanasam, had framed necessary issues and tried the suit. 9. Before the trial Court, during the trial, the plaintiff examined herself as P.W. 1 and marked 8 documents as Ex. A1 to A8. On the side of the defendants, the first and fourth defendants examined themselves as DW 1 and DW 2. One Rajasekar, who is the Village Administrative Officer was examined as DW. 3. On the side of the defendants, the certificate issued by VAO was marked as Ex. B1. 10. The learned District Munsif cum Judicial Magistrate, Papanasam having considered all the materials placed before him, found that the plaintiff is in possession and enjoyment of the A-schedule property and not in the B-schedule property. Thereby, he decreed the suit in favour of the plaintiff only in respect to A-schedule property. 11. In the appeal filed by the plaintiff, the learned Additional Subordinate Judge, Kumbakonam, has observed that the report and' plan submitted by the Advocate Commissioner proved that the house belongs to the plaintiff was situated both in A and B schedule properties and thereby came to the conclusion that the plaintiff is in the possession of B-schedule property and accordingly, allowed the appeal and decreed the suit, as prayed for by the plaintiff. 12. This Court at the time of admitting the Second Appeal has formulated the following Substantial Questions of Law: "1. 12. This Court at the time of admitting the Second Appeal has formulated the following Substantial Questions of Law: "1. Whether the Judgment and Decree of the learned Appellate Judge granting the injunction on the basis of the report of the Advocate Commissioner is sustainable? 2. Whether the Judgment and Decree of the learned Appellate Court in granting the relief of injunction by relying the alleged weakness of the defendants' case is legally sustainable?" Substantial Question of Law No. 1:- 13. It is true, on entire reading of the Judgment rendered by the first Appellate Court, the learned Additional Subordinate Judge only by placing reliance on the report filed by the Advocate Commissioner hold that the plaintiff is in the possession and enjoyment of A and B schedule properties. Further he observed, in order to prove the title and possession on the side of the defendants, no documents were exhibited and further hold that the certificate issued by the VAO is not a substantial document to accept the case of the defendants. 14. It appears that during the pendency of trial, the learned trial Judge appointed the Advocate Commissioner. The report and plan filed by Advocate Commissioner were marked as Exs. C1 and C2. As per the plan submitted by the Advocate Commissioner, the suit A-schedule property is found in triangular shape and the B-schedule property is situated adjacent to the A-schedule property. It is the case of the plaintiff that in respect of B-schedule property, patta has been given in favour of one Alamelu Ammal, Saradambal and Rajagopal Iyer. But for the reasons best known to her, the plaintiff has not added those persons, as party to the proceedings. 15. It is a definite case of the plaintiff that she perfected the title to the suit property, by means of adverse possession. In fact, the adverse possession is not defined in any statute. However, it is acknowledged that adverse possession refers to actual and exclusive physical possession coupled with intention to hold the property as owner and hostile to the original owner. When a person openly and continuously enjoying a property under a claim of right adverse to the title, as true owner for more than the statutory period the person prescribes title by adverse possession in view of Section 27 of the Limitation Act, 1963. When a person openly and continuously enjoying a property under a claim of right adverse to the title, as true owner for more than the statutory period the person prescribes title by adverse possession in view of Section 27 of the Limitation Act, 1963. Adverse possession means a hostile possession, which is expressly or impliedly in denial of the title of the true owner. Furthermore, the possession must be actual, exclusive, open and under a claim of right and adequate in continuity to the extent so as to show that his possession is adverse to the true owner. Mere possession without a claim of right is not sufficient to create adverse possession. Permissive possession does not become hostile till there is assertion of an adverse title to the knowledge of the owner. So, in order to identify whether the possession of the plaintiff is hostile and adverse to the original owner, it is necessary for the trial Court in examining the owners of the B-schedule property. 16. In fact, as per the case of the plaintiff, the pattathars were not added as party to the proceedings, nor they were examined as witnesses. Even though, the defendants may be the third party in connection with the suit property, since the suit has been filed by the plaintiff, she has to prove her case. In this aspect it is necessary to recollect the following aspects: 1. Affirmantis est probare (He who affirms must prove) 2. Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies. 17. In the case on hand, as rightly pointed out by the learned counsel appearing for the appellants, without adding the owners, as party to the proceedings, believing with the Advocate Commissioner's report, the first Appellate Court came to the conclusion that the plaintiff is in possession of B-schedule property also, is not within the legal frame work. In fact, under Order 26, Rule 9 of C.P.C., the Advocate Commissioner cannot be appointed for assessing the possession. The report and plan filed by the Advocate Commissioner does not prove the possession. The first Appellate Court, without seeing the above said principles hold that the report filed by the Advocate Commissioner proved the possession and title of the plaintiff. The said findings is nothing but perverse one. The report and plan filed by the Advocate Commissioner does not prove the possession. The first Appellate Court, without seeing the above said principles hold that the report filed by the Advocate Commissioner proved the possession and title of the plaintiff. The said findings is nothing but perverse one. Accordingly, I am of the considered view that granting injunction in respect to B-schedule property, by placing reliance on the report filed by the Advocate Commissioner, is not sustainable. Thus, Substantial Question of Law No. 1 is answered in favour of the appellants. Substantial Question of Law No. 2: 18. It is true on the side of the defendants, except the certificate issued by the Village Administrative Officer, no document has produced to prove the title and possession. On the other hand, in order to prove the case, the plaintiff has produced the patta stands in her name as Ex. A1. The said patta was issued on 30.06.1997 in respect to A- schedule property. The house tax receipt marked as Exs. A2 to A6 reveals that the plaintiff paid house tax from the year of 1994 onwards.' So, based on the possession alone, the patta was issued in favour of the plaintiff. In the said circumstances, since the title of the plaintiff itself is questioned by the defendants, it is the duty of the plaintiff to file a suit for the relief of declaration. Further, DW. 3 had clearly stated that the patta in respect of B-schedule property is not in the name of the plaintiff. Therefore, since the cloud was appeared at the title of the B-schedule property, as already discussed, it is the duty of the plaintiff to file a suit for the relief of declaration and then injunction. It is true the injunction was granted based on the possession only. However, following the principle that title follows possession, the case of the plaintiff fails. 19. The First Appellate Court, without seeing the said aspect, decreed the suit as entirety in respect to A and B schedule properties. It is a settled principle that picking, holes from the case of the defendants for accepting the case of the plaintiff is against the legal principles. But the First Appellate Court, without considering the said aspects, allowed the appeal. Hence, interference is necessary. 20. In the result, the Second Appeal stands allowed. It is a settled principle that picking, holes from the case of the defendants for accepting the case of the plaintiff is against the legal principles. But the First Appellate Court, without considering the said aspects, allowed the appeal. Hence, interference is necessary. 20. In the result, the Second Appeal stands allowed. The Judgment and Decree, dated 29.06.2009, passed in A.S. No. 130 of 2008, by the learned Additional Subordinate Judge, Kumbakonam, reversing the Judgment and Decree passed by the learned District Munsif cum Judicial Magistrate, Papanasam, dated 29.02.2008, in O.S. No. 91 of 2001 is hereby set aside. The relief of injunction granted by the trial Court in respect to A-schedule property is confirmed. However, there shall be no order as to costs.