Madras High Court
Palani Murugan vs Rengarajan on 23 December, 2021
S.A(MD)No.287 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.287 of 2021
and
C.M.P(MD)No.3973 of 2021
Palani Murugan ... Appellant/Appellant/Plaintiff
Vs.
1.Rengarajan
2.Muthupen
3.Jeyalakshmi
4.Bama
5.Rajappan
6.Vaideki
7.Sowmi Narayanan ... Respondents/ Respondents/Defendants
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 26.11.2019 passed in
A.S.No.34 of 2014, on the file of the Principal Subordinate Court,
Srivilliputhur, Virudhunagar District, confirming the judgment and
1/20
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decree dated 09.06.2014 passed in O.S.No.185 of 2010 on the file of the
Additional District Munsif Court, Srivilliputhur.
For Appellant : Mr.G.Gomathi Sankar
For Respondents : Mr.G.Karnan
JUDGMENT
The appeal is directed against the Judgment and Decree
passed in A.S.No.34 of 2014, by the learned Principal Subordinate Court,
Srivilliputhur, confirming the Judgment and Decree in O.S.No.185 of
2010, passed by the learned Additional District Munsif Court,
Srivilliputhur.
2. For the sake of convenience, the parties are referred to
herein, as per their own ranking, as before the Trial Court.
3.The case of the plaintiff, as per the averments made in the
plaint, in short, is as follows :
Originally the suit property belongs to the father of the
defendants namely, Srinivasa Iyyangar and he intended to sell the suit
property to the plaintiff's father namely, Muthaiah Thevar, for which, a
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sale agreement, dated 09.08.1979 was executed, wherein, sale
consideration was fixed at Rs.21,480/- (Rupees Twenty One Thousand
Four Hundred and Eighty only and paid a sum of Rs.15,000/- (Rupees
Fifteen Thousand only) as advance and balance of Rs.8,480/- (Rupees
Eight Thousand Four Hundred and Eighty only) have to be paid to the
Srinivasa Iyyangar and six months time was fixed for executing the sale
deed and the possession of the suit property was handed over to the
plaintiff's father. Since then, the plaintiff's father was in possession and
enjoyment of the same without any hindrance and the plaintiff was ready
to pay the balance amount and get the sale deed, but the defendant's
father Srinivasa Iyyangar did not come to Registration Office and
execute the sale deed in his father's name and his father was in
possession and enjoyment of the suit property till his life time.
4. It is further submitted that during the life time of his
father, the defendants' father and the defendants did not take any steps to
cancel the sale agreement and for recovery the possession of the suit
property. After the demise of Muthaiah Thevar, on 20.06.1999, the
plaintiff and his sisters were orally partitioned the suit property and other
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properties and enjoying the same. Further, in the month of April 2010,
the defendants tried to trespass into the property of the plaintiff with the
help of henchmen and hence, the plaintiff has filed a suit for permanent
injunction.
5.Resisting the claim made by the plaintiff, the fifth
defendant had filed a written statement along with counter claim for
recovery of possession, which was adopted by the 7th respondent. The
defendants 1 and 7 have entered into a registered partition deed on
29.01.1987. As per the said partition deed, 'C' schedule property was
allotted to the fifth defendant and out of 49 cents, half share of the same
ie., 24 1/2 cents in survey No.1474 and out of 1 acre 30 cents half share
of the same, ie., 65 cents in Survey No.1475 were allotted to him. Rest
of the property was allotted to the seventh defendant and they are in
possession and enjoyment of the same. Defendants father Srinivasa
Iyyangar died on 05.11.2003 and mother Renganayaki Ammal died on
12.06.2009. Since father and mother were alive, they did not mutate the
revenue records. The properties stands in the name of their father, till
date. The plaintiff's father was working as a Labourer in the defendants'
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land and the defendants' father used to send the plaintiff's father for
making payment of kist for their lands and other works and accordingly,
he used to pay them but the plaintiff's father has not hand over the said
kist receipts with an intention to cheat the defendants. The defendants
further had tested the plaintiff's father.
6.Further, the plaintiff threatened the defendants to sell the
property and from January 2009 onwards, the plaintiff encroached upon
the property and did not give the possession to these defendants. The
plaintiff is very well aware of the fact that the suit property does not
belong to him, but he has filed a suit for permanent injunction and failed
to claim any relief regarding declaration. This would show that all the
claim made by the plaintiff are false and further the alleged sale
agreement is a forged document and all the witnesses are known to the
plaintiff and when there was no original document available. The
revenue records are still standing in the name of the defendants' father
and appropriate Court Fees has been paid by the defendants for the
counter claim prayer and also they prayed for granting the relief of
recovery of possession and hence, suit has to be dismissed with costs.
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7.The reply statement filed by the plaintiff to the counter
claim filed by the defendants is as follows:
The counter claim made by the defendants is not
maintainable either in law or on facts. The defendants' father used to get
money from the plaintiff as well as various other persons and he has
executed a pronote in favour of the plaintiff and accordingly, all the
members of the defendants' family have also signed in the pronote. The
defendants have also executed another sale deed in favour of the
plaintiff, which is an agreement of sale and the plaintiff’s father used to
pay money after the defendant’s executing the pronote. He also placed
the said land as security in Spl.34 Primary Agricultural Co-operative
Bank and also obtained agricultural loan. This was known to the
defendants and hence, prayed for dismissal of the counter claim.
8. Before the trial Court, on the side of the plaintiff, the
plaintiff examined himself as P.W.1, one Ramakrishnan and Murugesan,
the Secretary of Keelarajakularaman Primary Agricultural Co-operative
Bank, were examined as P.W.2 and P.W.3 and Exs.A1 to A22 were
marked. On the side of the defendants, the fifth defendant examined
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himself as D.W.1 and Exs.B.1 to B.8 were marked. Ex.X.1 was marked
through P.W.3.
9. On the basis of the rival pleadings made on either side,
the trial Court, after framing necessary issues and after evaluating both
the oral and documentary evidence, had dismissed the suit.
10. Aggrieved by the Judgment and decree passed by the
trial Court, the plaintiff, as appellant, had filed an Appeal Suit in A.S.
No.34 of 2014, on the file of the learned Principal Subordinate Court,
Srivilliputhur. The first appellate Court, after hearing both sides and
upon reappraising the evidence available on record, had dismissed the
appeal and confirmed the Judgment and Decree passed by the trial Court.
Challenging the said concurrent Judgments and Decrees passed by the
Courts below, the present Second Appeal has been preferred at the
instance of the plaintiff, as appellant.
11. Heard the learned counsel on either side and also
perused the materials available on record.
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S.A(MD)No.287 of 2021
12.The learned counsel appearing for the appellant/plaintiff
would submit that the Courts below have failed to see that the suit
property were handed over by the defendant's father in the year 1979 to
the plaintiff's father by way of sale agreement, after receiving a sum of
Rs.15,000/- (Rupees Fifteen Thousand only) towards advance. Since
then, the plaintiff's father was in possession and enjoyment of the same
till his life time and after that, the plaintiff is in possession for more than
30 years and the defendants does not prove their title and they cannot
claim the recovery of possession from the plaintiff and the partition deed
could not prove the title of the defendants and they ought to have
produced the parental document, but without having the original
documents, the plaintiff's father mortgaged the suit property with the
Primary Agricultural Co-operative Bank and borrowed loan and
subsequently, it was waived by the Government. Therefore, the
possession and enjoyment of the suit property by the plaintiff's father and
plaintiff is for more than 30 years and it was also known to the
defendants. Therefore, the plaintiff perfected the title by adverse
possession. Hence, prayed to allow the second appeal.
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13. The learned counsel appearing for the respondents/
defendants would vehemently oppose the Second Appeal by contending
that the well considered Judgments of the Courts below need not be
interfered with, as there is no question of law involved in this Second
Appeal and prayed for dismissal of the Second Appeal.
14. This Court paid its anxious consideration to the rival
submissions made and also carefully perused the materials placed on
record.
15. According to the plaintiff, the suit property belongs to
the father of the defendants viz., Srinivasa Iyyangar and he intended to
sell the suit property to the plaintiff's father namely, Muthaiah Thevar,
for which, a sale agreement was executed, wherein, sale consideration
was fixed at Rs.21,480/- and paid Rs.15,000/-, as advance and balance
have to be paid to Srinivasa Iyyangar and six months time was fixed for
executing the sale deed and the possession of the suit property was
handed over to the plaintiff's father. Though the plaintiff's father was
ready to pay the balance amount, the defendant's father Srinivasa
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Iyyangar did not come forward to execute the sale deed in favour of
plaintiff's father's name, till his life time.
16. According to the defendants, the defendants 1 and 7 had
entered into a registered partition deed on 29.01.1987 and as per the said
partition deed, 'C' schedule property was allotted to the fifth defendant
and out of 49 cents, half share ie., 24-1/2 cents in Survey No.1474 and
out of 1 acre 30 cents half share of the same, ie., 65 cents in Survey No.
1475 were allotted to him. Rest of the property was allotted to the
seventh defendant and they were in possession and enjoyment of the
same. Defendants father Srinivasa Iyyangar died on 05.11.2003 and
mother Renganayaki Ammal died on 12.06.2009. Till their father and
mother alive, they do not mutate the revenue records. The plaintiff's
father working as a Labour in the defendants' land and the defendants'
father used to send the plaintiff's father for payment of kist and other
works and accordingly, the plaintiff's father has not handed over the said
kist receipts with an intention to cheat the defendants. Further, the
plaintiff threatened the defendants to sell the property and from January
2009 onwards, the plaintiff encroached upon the property and do not
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give possession to these defendants. The revenue records are still
standing in the name of the defendants' father.
17. It is the contention of the plaintiff that the defendants'
father executed a pronote in favour of the plaintiff in which, the
members of the defendants' family signed. The defendants have also
executed another sale deed in favour of the plaintiff, which is an
agreement of sale and the plaintiff’s father used to pay money after the
defendant’s executing the pronote. The plaintiff has also pledged the
said land, as security in Spl.34 Primary Agricultural Co-operative Bank
and also obtained agricultural loan. Though the plaintiff has stated that
from 1980 onwards, the defendants had given right over the property,
which was not proved by the plaintiff by letting any evidence. P.W.1 in
his cross-examination stated as follows:-
@1979k; tUlj;jpypUe;J 4 tUlk; fHpj;J jhd;
tha;bkhHp xg;ge;jk; Vw;gl;lJ/ 1979f;F Kd;g[ vdJ
jfg;gdhh; jgrpy; brhj;ij g[nuhnehl;od;
mog;gilapy; mDgtk; bra;J te;jhh;/ g[nuhnehl;oy;
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fz;l bjhiff;fhft[k;. mjpy; fz;l tl;of;fhft[k; vdJ
jfg;gdhh; ,Wjp fhyk; tiu mDgtk; bra;J te;jhh;/
gpd;dh; jhd; jfg;gdhh; thhpR vd;w Kiwapy;
jgrpy; brhj;ij mDgtk; bra;J tUfpnwd;/@
From the evidence of the plaintiff/P.W.1, it is seen that only for the
payment of money, based on the pronote, the plaintiff’s family is in
enjoyment of the property, has been accepted and admitted.
18. When that being the case, the contention of the plaintiff
that he is in possession of the property from January 1980 itself, cannot
be countenanced. Further, based on the admission in the cross-
examination that only after 1979, there was an oral agreement and based
on that the pronote, the plaintiff was in possession. It was also found
from his admission in cross examination that from 1979 onwards what
was the steps taken by the plaintiff’s family seeking for specific
performance by filing any suit or any other legal notice being issued
against the defendants was also not produced. When they have not taken
not any steps, when an admission was made by the plaintiff that his
father had not taken any steps for payment of that amount and seeking
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for execution of the sale deed would prove that there was no such oral
agreement and he was not in a position to take any such action against
him legally, is also proved beyond doubts.
19. Further, when the plaintiff claimed that the possession
was handed over to the father of the plaintiff by the defendants’ father,
he cannot claim that he is in possession with the knowledge of the
defendants adversely and without interference, cannot be accepted.
When possession has been claimed by a person based on the agreement
of sale, as per the Transfer of Property Act, cannot blow hot and cold by
taking a different stand that he got into possession of the property by
way of adverse possession. When the plaintiff has stated that there was
an sale agreement and only after the sale agreement, he entered into the
property later on stating that he is in adverse possession, both claim
cannot be accepted and the same is to be rejected in toto.
20. All the kist receipts are not belonging to the said
property and in the absence of any other revenue documents, this Court
has come to the conclusion that based on the admission of P.W.1, in his
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cross examination, that no Adangal has been produced in his name or his
father’s name and the defendants documents i.e. Fasli 1409-1419
adangal stands in the name of the defendants father, has been clearly
admitted. Accordingly, this Court is of the view that when the
documents are in the name of the defendants, the the plaintiff was not in
a position to prove his possession of the said property by adversely. In
the absence of any concrete evidence to show that in what manner the
plaintiff claims title or possession of the property, cannot be granted the
claim made by him to inject the defendants from entering into the
property. Other than the oral statement made by the plaintiff that the
property has been mortgaged to the said Banker and the Bank Manager
was examined and he has clearly stated that for the said loan obtained, no
security was given for issuance of loan or for disbursement of loan.
Hence, the stand made by the plaintiff is also rejected. Patta No.2070 do
not relate to the lis property and that being the case, the said document,
as if not used by the plaintiff as lease-hold right also not proved by him.
21.Further, on going through the averments of the
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defendants, it is clear that they have made a partition on 29.01.1979,
which is a registered document and as per the said partition, the
properties were allotted to the defendants 5 and 7 and accordingly, this
Court is of the view that the properties are in possession and enjoyment
of the defendants.
22. A perusal of the patta, chitta and adangal would show
that from 1980 onwards, the property belongs to the defendants' family,
which has been well established and no document was produced to show
that the plaintiff is in possession and enjoyment of the property. 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
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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 the plaintiff 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." No doubt, the
plaintiff, in this case, not proved his possession.
23. According to P.W.2, before 30 years back the said
Srinivasa Iyyangar requested him to sell his land to the plaintiff's family,
but there was no strong and valid evidence adduced by P.W.2, and he was
not in a position to say what is the nature of transaction between the
parties and it is an oral evidence and the oral evidence cannot be
accepted and the same is also liable to be rejected. The document
produced by the plaintiff to receive additional documents under Order 41
Rule 27 of Civil Procedure Code, is a sale agreement, alleged to have
been written by the defendants father to the plaintiff’s father and in the
suit plaint itself they have stated that it is an oral agreement and
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producing the documents at the appeal stage, it is only an after-thought
and the appellate Court has rightly rejected the same.
24.This Court is of the view that the plaintiff's case has been
rightly rejected by the Courts below. When the plaintiff has failed to let
in appropriate evidence to prove the oral sale agreement or adverse
possession and also the contra stand taken only for obtaining loan,
defendants’ father had executed pronote and based on the execution of
pronote, he is in possession of the property. All these aspects are contrary
to each other and accordingly, the plaintiff has not proved his case and
the same was rightly rejected by the Courts below.
25.The plaintiff's case was rightly rejected by the Courts
below, and this Court finds no reason to interfere with the well reasoned
order of the Courts below and also there is no question of law much less
substantial question of law involved in this Second Appeal for
consideration by this Court. Accordingly, the Second Appeal is liable to
be dismissed.
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26. In fine, the Second Appeal is dismissed. The appellant /
plaintiff is directed to deliver the vacant possession to the respondents 5
and 7 / defendants 5 and 7 within a period of three months from the date
of receipt of a copy of this order. However, there shall be no order as to
costs. Consequently, connected miscellaneous petition is closed.
23.12.2021
Index : Yes/No
Internet : Yes/No
rm
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To
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1.The Principal Subordinate Court,
Srivilliputhur,
Virudhunagar District,
2.The Additional District Munsif Court,
Srivilliputhur,
Virudhunagar District.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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V.BHAVANI SUBBAROYAN, J.
rm
Judgment made in
S.A(MD)No.287 of 2021
23.12.2021
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