Madras High Court
R.Rani … vs K.Subramaniyan … on 2 December, 2021
S.A.No.556 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :02.12.2021
CORAM
THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN
S.A.No.556 of 2021
R.Rani …Appellant
Vs.
K.Subramaniyan …Respondent
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 11.12.2019 made in
A.S.No.48 of 2019 passed by the learned I Additional Subordinate Judge,
Salem, confirming the judgment and decree dated 27.11.2018 made in
O.S.No.921 of 2014 on the file of the learned Principal District Munsif
Court, Salem.
For Appellant : Mr.P.K.Ganesh
JUDGMENT
This Second Appeal is directed against the judgment of the
learned I Additional Subordinate Judge, Salem, in A.S.No.48 of 2019
confirming the judgment of the learned Principal District Munsif, Salem, in
O.S.No.921 of 2014.
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S.A.No.556 of 2021
2. The respondent as a plaintiff filed the suit for declaration of title,
recovery of possession and permanent injunction. The case of the
plaintiff/respondent is that the appellant/defendant is a tenant under the
plaintiff. The suit property and another property measuring 0.04cents
originally belongs to Arayee, by way of purchase in 1959. Respondent
purchased this property from Arayee through a registered sale deed dated
07.04.1980. After purchasing the property as a vacant site, he constructed one
tiled house and one terraced house in 1992 and he is in possession and
enjoyment of the suit property. The terraced building bears Door No.3/61 and
the tiled house bears Door No.3/67-A. He constructed the building by
obtaining loan from Seshanchavadi Village Co-operative Housing Society
and discharged the loan. He is residing in the house bearing door No.3/61 and
leased out the house bearing door No.3/67-A to the appellant. The lease
commenced in the year 1995 and it was a oral lease. The monthly rent was
Rs.300/-. Appellant paid an advance of Rs.5000/-. Appellant was paying the
rent till 2010 regularly and thereafter he had shown supine indifference in
paying the rent and there was an arrears of rent from January 2011. Inspite of
repeated demands, to pay the rent or vacate the suit property, the appellant
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has not chosen to do either paying rent or vacate the premises. However, he
got electric service connection in her name. On 10.11.2014, respondent
demanded the appellant to pay arrears of rent and surrender the vacant
possession. Respondent denied the title of the appellant and created a cloud
over respondent's title. Therefore, the suit is filed for the reliefs aforesaid.
3. Appellant filed written statement. It is seen from the written
statement filed by the appellant that appellant admitted the fact that
respondent purchased the suit property through a registered sale deed dated
07.04.1980. The suit property measures 1740sqft of land. It is the specific
case of the appellant that in or about 1992, appellant encroached upon the suit
property and put up a tiled house. It is denied that respondent constructed the
tiled house. The door number of the tiled house is No.3/67A. House tax
receipts stand in the name of the appellant and not in the name of the
respondent. She produced house tax receipts that stands in her name from the
year 2006 and electricity receipts from the year 2000. Appellant's name has
been included in the joint patta along with the respondent on 18.01.1995. The
claim that appellant was inducted as a tenant orally and she paid Rs.5000/-
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S.A.No.556 of 2021
advance are all false and denied. Though, it is admitted that respondent is the
owner of the suit property as per registered sale deed dated 07.04.1980, as of
now appellant has been enjoying the suit property from 1992 by putting up
construction in the suit property adverse to the interest of the respondent.
Respondent is aware of the fact that appellant is in possession and enjoyment
of the suit property against the interest of the respondent. She is in
independent, hostile and adverse possession of suit property with the
knowledge of the respondent for more than twenty years and perfected title
to the suit property by adverse possession. Therefore, respondent is not
entitled for the reliefs claimed.
4. On the basis of the above pleadings, the Trial Court framed the
following issues:
i) Whether the plaintiff is entitled to get declaration as owner of
the suit property?
ii) Whether the plaintiff is entitled to get direction against the
defendant as prayed?
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S.A.No.556 of 2021
iii) Whether the plaintiff is entitled to get permanent injunction
against the defendant in respect of the suit property?
iv) What are the other reliefs, the plaintiff is entitled for?
5. During the trial PW1 and PW2 were examined and Exhibits A1
to A5 were marked on the side of the plaintiff. DW1 and DW2 were
examined and Exhibits B1 to B26 were marked on the side of the defendant.
On considering the oral and documentary evidence, the learned Trial Judge
found that the appellant has not established the case that she constructed the
tiled house in the suit property in the year 1992 and has been enjoying the
suit property and acquired title by adverse possession. It is found that patta
relied by the appellant is doubtful for the reason that husband's name of the
appellant is wrongly given. Most of the documents relied by the appellant to
establish her possession do not relate to suit property. Some of the documents
have come into existence subsequent to the filing of the suit. It was also
found that there is no specific and proper pleading with regard to the time
from when the possession of the appellant became adverse to the interest of
the respondent. Thus, the learned Trial Judge found that the claim of
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S.A.No.556 of 2021
appellant that she acquired title to the suit property by adverse possession is
not established and therefore, dismissed the suit.
6. Appellant preferred appeal in A.S.No.48 of 2018. The learned
Appellate Judge on going through the oral and documentary evidence,
submissions of the counsel appearing for the parties and the judgment of the
Trial Court found that appellant's claim of adverse possession was not
proved. It observed that mere possession, however long does not mean that it
is adverse to the true owner. Adverse possession means the possession hostile
to the real owner. It concurred with the finding of the Trial Court that
appellant has failed to prove that she perfected title by adverse possession. In
this view of the matter, the learned Appellate Judge confirmed the judgment
of the Trial Court and dismissed the appeal. Challenging the said judgment,
appellant has filed this Second Appeal.
7. The learned counsel for the appellant submitted appellant
has produced Exhibits B1 to B26 documents to show that she is in possession
and enjoyment of the suit property. Exhibit A3 natham patta produced by the
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respondent shows that it is a joint patta in the name of appellant and
respondent. When respondent claims that he inducted the appellant as a
tenant, it is for the respondent to prove tenancy between the appellant and
respondent and payment of rent. Respondent has not produced any material to
show the existence of tenancy agreement or that the appellant was in
possession of the suit property as a tenant. All the documents produced by the
appellant would establish that she is in occupation of the suit property.
However, without considering these aspects, both the Courts below have
wrongly decreed the suit. Therefore, learned counsel for appellant prays for
setting aside the judgment of the Courts below and for dismissal of the suit.
8. Considered the submissions of the learned counsel for the
appellant and perused the records.
9. Respondent has produced Exhibits A1 to A5 documents. Exhibit
A1 is the sale deed in favour of Arayeeammal. Exhibit A2 is the sale deed
executed in favour of the respondent. Exhibit A3 is the natham patta stands in
the name of the respondent. He also produced Exhibit A4 pass book of
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Seshanchavadi Village Co-operative Housing Society Ltd., in support of his
case that he borrowed money from the society for the construction of the
building in the suit property. Exhibit A5 is the encumbrance certificate.
Appellant produced Exhibits B1 to B8 electricity receipts stand in the name
of the appellant, Exhibits B9 to B16 house tax receipts stand in her name,
Exhibit B17 electricity receipt, Exhibits B18 and B19 family and, Exhibit
B20 domestic gas customer card, Exhibit B21 postal office pass book,
Exhibit B22 online petition in the name of the appellant, Exhibit B23
returned postal cover, Exhibit B24 confirmation letter issued to the District
Collector, Salem, Exhibit B25 letter of the defendant and Exhibit B26 status
of the petition.
10. Some of the facts which are admitted by the appellant/defendant
are relevant for the purpose of considering the issues involved in this case. It
is claimed by the respondent that he purchased the suit property from
Arayeemmal and her daughter through Exhibit A2 on 07.04.1980. The
purchase of the suit property as vacant site by the respondent on 07.04.1980
was clearly and categorically admitted by the appellant in her written
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S.A.No.556 of 2021
statement atleast at two places. It is claimed by the respondent that after
purchasing the suit property as vacant site, he constructed two buildings on
the site, one a terraced building bearing door No.3/61 and another a tiled
building bearing door No.3/67-A. Whereas the case of the appellant is that
she constructed the tiled house in the year 1992. She admitted that door
number of the tiled house is No.3/67-A.
11. Respondent produced Exhibit A4 pass book to show that he
obtained loan from Seshanchavadi Village Co-operative Housing Society for
the construction of the building in the suit property. When the appellant
claims that she constructed the tiled house that is, the suit property in the year
1992, there is absolutely no material filed by the appellant to show that she
constructed the building in the suit property in the year 1992. It is seen from
the house tax receipts, these house tax receipts came into existence only from
2006 and house tax receipts for the years prior to 2006 are not produced.
House tax receipts for the year 2006, 2009, 2012 to 2018 alone produced.
House tax receipts for the period from 1992 to 2006 are not produced.
12. The judgment of the Court below shows that the Trial Court has
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extensively gone through the documents and discussed each and every
exhibit. Appellant heavily relied on Exhibit A3 natham patta to show that a
joint patta was issued in the name of the appellant along with the respondent.
However, on perusal of this patta, Trial Court found that the name of the
husband of the appellant is not given in the patta. Admittedly, the name of
husband of appellant is Rangaraj. But in Exhibit A3 natham patta, the name
of Rani's husband is shown as Kandasamy. She specifically admitted that her
husband's name is Rangaraj and not Kandasamy. Therefore, the Trial Court
rejected the claim that Exhibit A3 relate to the appellant. The Trial Court also
found that Exhibit B9 to B16 house tax receipts do not bear door number of
the suit property that is, No.3/67-A, but bears the door numbers 3/21 and
3/15. Therefore, it was found that door number found in the house tax
receipts do not relate with the door number of the suit property and therefore
they cannot be related to the suit property. So far as, the electric service
connection bills are concerned. It was found that there was absolutely no
pleadings as to when the appellant obtained electricity service connection and
therefore, it was found that appellant cannot take advantage of Exhibits B1 to
B8, B17 and B18. Even otherwise, tenants are entitled to apply and get
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electric service connection. Assuming that appellant obtained electricity
connection in her name and paid electricity receipts, it will not confer any
title on her in the suit property.
13. Exhibit B18 and B19 family cards, Exhibit B20 domestic gas
customer service connection card, Exhibit B22 online petition though relate
the suit property. These documents came into existence only after 2005.
Exhibit B22 and Exhibit B26 come into existence after filing of the suit.
Admittedly, the appellant is in occupation of the suit property. Respondent
claims that his occupation is in his capacity as a tenant but the appellant
claims that her occupation is in her capacity as a person claiming title by
adverse possession.
14. The legal position with regard to the claim of the adverse
possession is very well settled. The Hon'ble Supreme Court in Civil Appeal
No.7768 of 2011 (Mallikarjunaiah .Vs. Nanjiah and others) held as
follows:-
“19.T.Anjanappa & others Vs. Somalingappa &
another (2006) 7 SCC 570, this Court held that mere
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possession, howsoever long it may be, does not necessarily
mean that it is adverse to the true owner and the classical
requirement of acquisition of title by adverse possession is
that such possessions are in denial of the true owners’ title.
20. Relying upon the aforesaid decision, this Court
again in Chatti Konati Rao and Others Vs. Palle Venkata
Subba Rao, (2010) 14 SCC 316 in para 14 held as under:-
“14. In view of the several authorities of this Court, few
whereof have been referred above, what can safely be
said is 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, in publicity 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 twelve 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
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possession of the defendant should be adverse to the
plaintiff and the defendant must continue to remain in
possession for a period of twelve years thereafter.”
15. There are various judicial pronouncements in this regard. Mere
possession however long will not become adverse possession, unless there is
a clear intention to possess the suit property adverse to the interest of the true
owner. This intention must be conveyed to the real owner. In the written
statement filed by the appellant, she just claimed that her possession is
adverse to the interest of the respondent and she acquired title by adverse
possession. There is no specific mention as to when her possession has
become adverse.
16. It is pertinent to refer to suggestion made to PW1 during the
course of cross examination. It was suggested to PW1 during the course of
the cross examination that respondent was receiving only Rs.300/- for the
past fifteen years. This suggestion leads us to presume and make a conclusion
on that presumption that appellant was paying the rent at the rate of Rs.300/-
per month for the past 15 years. It is claimed in the plaint that monthly rent
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was Rs.300/-. This suggestion confirms the claim of the respondent that the
appellant was paying the monthly rent of Rs.300/- per month. When there is a
suggestion that appellant was paying Rs.300/- per month as a rent for the past
15 years, where is a question of setting up a claim of adverse possession in
the suit property. From this suggestion, it is clearly established that the
occupation of the appellant in the suit property is only in her capacity as a
tenant. Therefore, the claim of acquiring title by adverse possession
hopelessly fails.
17. As already decided there is no material produced to show that
she constructed the building in the suit property in 1992. The house tax
receipts produced by her do not relate to suit property. Therefore, this Court
finds that appellant miserably failed to establish her claim of adverse
possession. Both the Courts have also found against the appellant and in
favour of the respondent. This Court finds no reason to interfere with the
judgment and decree of the Appellate Court confirming the judgment and
decree of the Trial Court. There is no substantial question(s) of law involved
in this Second Appeal. Therefore, the judgment and decree of the learned I
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Additional Subordinate Judge, Salem, in A.S.No.48 of 2019 confirming the
judgment and decree of the learned Principal District Munsif, Salem, in
O.S.No.921 of 2014 is confirmed.
18. Accordingly, this Second Appeal is dismissed. No costs.
Consequently, connected miscellaneous petition stands closed.
19. After conclusion of dictation of judgment, learned counsel
for the appellant submitted that respondent had already initiated execution
proceedings and appellant prays time for vacating and handing over
possession of the suit property to the respondent. In view of the submissions
made by the learned counsel for the appellant, the appellant is granted three
months time from today for vacating and handing over the possession of the
suit property to the respondent.
02.12.2021
ep
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
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S.A.No.556 of 2021
To
1. The I Additional Subordinate Judge, Salem.
2. The Principal District Munsif Court, Salem.
3. The Section Officer, VR Section, High Court of Madras.
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S.A.No.556 of 2021
G.CHANDRASEKHARAN.J,
ep
S.A.No.556 of 2021
02.12.2021
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