Madras High Court
S. Chandran vs Thittai Thanneerpandal Trust on 1 February, 2021
S.A (MD) No.249 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.02.2021
CORAM :
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A (MD) No.249 of 2015 and
M.P(MD).No.1 of 2015 and CMP(MD).No. 349 of 2017
1.S. Chandran
2.C.Manohari
3.C. Thaiyan .. Appellants / defendants
Vs.
Thittai Thanneerpandal Trust
rep. by its Managing Trustee,
T.N. Seshadri,
rep. by tis Power Agent Vijaya and Vasantha ... Respondent / plaintiff
Prayer: Second Appeal filed under Section 100 CPC against the
Judgment and Decree of the Principal District Judge, Thanjavur, dated
21.12.2012 in A.S.No.15 of 2011, reversing the Judgment and Decree
passed by the Principal Subordinate Judge, Thanjavur, dated 30.04.2010 in
O.S.No.81 of 2008.
1/11
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S.A (MD) No.249 of 2015
For Appellants : Mr.S. Anand Chandrasekar
For respondent : Mr. G. Karnan
JUDGMENT
The defendants in O.S.No.81 of 2008, who had suffered a
decree for delivery of possession after removal of the construction put up
at the hands of both the Courts below, have come out with this Second
Appeal.
2. According to the respondent / plaintiff, the defendants
trespassed into the property some time in the year 2000 and put up the
construction. Since the defendants did not need to the request of the
plaintiff Trust to vacate and hand over the possession despite having
agreed to do so, the plaintiff was forced to file a suit for recovery of
possession after removal of the construction. The suit was resisted by the
defendants questioning the title of the plaintiff's Trust and setting up
adverse possession.
3. According to the appellants / defendants, the first defendant
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S.A (MD) No.249 of 2015
had entered upon the property even in the year 1975 and had put up
construction with the knowledge of the Trustees of the plaintiff Trust.
They would also contend that the possession of the defendants is adverse
to the knowledge of the plaintiff Trust continuously from the year 1975
and that the suit is hopelessly barred by limitation.
4. At trial, on the the side of the plaintiff, one of the Trustees
examined as PW.1 and two other Witnesses were examined as PW.2 and
PW.3. The first defendant was examined as DW.1 and two other witnesses
were examined as DW.2 and DW.3. Exs.A1 to A23 were marked on the
side of the plaintiff and Exs.B1 to B26 were marked on the side of the
defendants.
5. The learned Principal Subordinate Judge, Thanjavur, who
tried the suit, concluded that the defendants have not proved adverse
possession. The learned trial Judge also referred to certain documents and
the evidence of DW.1 wherein the claim was made that he is in possession
pursuant to the permission granted by the Trust. The Trial Court also found
that the defendants have not established the actual date of the
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S.A (MD) No.249 of 2015
commencement of adverse possession. The property tax receipts which
were projected as evidence to demonstrate the continuous possession of the
defendants, were disbelieved on the basis of the discrepancies in those
documents. The other Tax receipts were also not believed. On the above
findings, the learned trial Judge decreed the suit. Aggrieved, the
defendants preferred appeal in A.S.No.15 of 2011. The learned Principal
District Judge, Thanjavur, who heard the appeal, dismissed the appeal
agreeing with the view of the trial Court. Hence, this Second Appeal.
6. The following substantial questions of law were framed by
this Court at the time of admitting the Second Appeal.
1. Whether the suit by the respondent for recovery
of possession of the Trust property from a tresspassor is
barred by limitation?
2. Whether the tresspassor of a Trust property can
set up a plea of having perfected title by adverse possession?
7. I have heard Mr.S. Anand Chandrasekar, learned counsel
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S.A (MD) No.249 of 2015
appearing for the appellants and Mr.G. Karnan, learned counsel appearing
for the respondent.
8. Mr. S. Anand Chandrasekar, learned counsel appearing for
the appellants elaborating on the substantial questions of law framed
would contend that once there is enough evidence to establish that the
defendants were in possession for 12 years prior to the filing of the suit,
the suit filed by the plaintiff is hopelessly barred by limitation. According
to him, Exs. B1 to B26 - Property tax receipts, which are between
02.04.1983 to 02.09.2009 would demonstrate the continuous possession of
the defendants to the knowledge of the plaintiff Trust. According to the
learned counsel for the defendants, they have established their continuous
possession for a period over 12 years prior to the suit and therefore, the suit
is barred by limitation.
9. On the second Substantial question of law, the learned
counsel would submit that the defendants can perfect title by adverse
possession against the Trust also and in support of his contention, he
would rely upon the Division Bench Judgment of this Court reported in
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S.A (MD) No.249 of 2015
AIR 1935 Madras 483.
10. Contending contra, Mr. G. Karnan, learned counsel
appearing for the respondent would submit that once the defendants admit
the title of the plaintiff and plead adverse possession, it is for them to
establish adverse possession and if the Court finds that the defendants are
unable to establish the adverse possession for over the period of 12 years, a
decree for delivery of possession should automatically follow. He would
further submit that the defendants trespassed into the suit property in the
year 2000 and put up thatched shed and when it was questioned, the
defendants repeatedly assured to vacate the property, but they have not
done so and hence, the plaintiff Trust filed the suit in the year 2008 within
time.
11. On the Second Substantial questions of law, Mr.G.Karnan,
learned counsel appearing for the respondent would submit that the
evidence in this case would demonstrate that the defendants have not
proved their adverse possession for a period of 12 years, and therefore,
they cannot set up title by adverse possession.
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S.A (MD) No.249 of 2015
12. I have considered the rival submissions.
13. In support of their possession, the defendants marked
Exs.B1 to B25 which are tax receipts. A perusal of the those documents
would show that none of the above receipts contain the Survey Number,
Door Number and each one of the documents is different. While some of
the documents disclosed that the property Tax has been paid by Chandran
on behalf of the plaintiff Trust, some of the documents show that the
property Tax has been paid in the name of the plaintiff Trust alone. Even
assuming that all the property Tax has been paid by the first defendant,
there is nothing in the evidence to support the conclusion that these
property Tax receipts related to the suit property. Further, these property
tax receipts were not filed along with written statement and they have been
produced for the first time in the evidence of DW.1.
14. The submission of Mr.S. Anand Chandrasekar, learned
counsel appearing for the appellants on the documents produced by the
defendants is that they relate to the suit property and it is for the plaintiff
to show that those documents did not relate to the suit property. I am
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S.A (MD) No.249 of 2015
unable to agree with the contention of the learned counsel. When the
defendants admitted the title of the plaintiff Trust but claimed only adverse
possession, it is for them to prove the essential ingredients of the adverse
possession. In the absence of such proof, the Court cannot presume
adverse possession. The essential requirements of the adverse possession
must be proved and the possession must be shown to be continuous
possession over the period of 12 years. In the absence of evidence
demonstrating such possession, I do not find fault with the conclusion of
the Courts below that the defendants have not proved their defence. As
already pointed out, the receipts filed as the evidence of possession do not
contain the survey number of the property. The door number mentioned is
also different for every year. Therefore, it cannot be said that the
defendants have demonstrated the continuous possession over the period
of twelve years. The proof of adverse possession should be beyond
reasonable doubts. Mere possession cannot be presumed to be adverse
possession to the detriment of the interest of the title holder. Therefore, I
am of the considered opinion that even assuming that the defendants
could claim adverse possession against the Trust, they did not prove such
a claim and the Courts below were right in rejecting the claim set up by the
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S.A (MD) No.249 of 2015
defendants. Hence, the first substantial question of law is answered
against the appellants.
15. In view of the answer to the first substantial question of
law against the appellants, the second substantial question of law is
deemed unnecessary.
16. Accordingly, the Second Appeal is dismissed. No costs.
Consequently, the connected Miscellaneous Petitions are closed.
01.02.2021
Index : yes/no
Internet : yes/no
trp
http://www.judis.nic.in
S.A (MD) No.249 of 2015
To
1. The Principal District Court, Thanjavur.
2. The Principal Subordinate Court, Thanjavur
http://www.judis.nic.in
S.A (MD) No.249 of 2015
R.SUBRAMANIAN,J.,
trp
S.A (MD) No.249 of 2015 and
M.P(MD).No.1 of 2015 and
CMP(MD).No. 349 of 2017
01.02.2021
http://www.judis.nic.in
