Madras High Court
Ramakrishnan vs M.Suseela on 19 February, 2021
S.A.(MD)No.153 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)No.153 of 2015
and C.M.P.(MD)No.1253 of 2018
Chellammal (Died)
1. Ramakrishnan
2. Seetha
3. Paul Raj
4. Chandran
5. Lilly
6. Sutha
7. Vijeesh
8. Sujin ... Appellants
versus
M.Suseela ... Respondent
Second Appeal filed under Section 100 of the Civil Proceedure
Code, against the Judgment and Decree dated 25.07.2014, made in A.S.No.21
of 2011 on the file of the Sub Court, Kuzhithurai, confirming the Judgment
and Decree dated 16.12.2012, made in O.S.No.409 of 2004 on the file of the II
Additional District Munsif Court, Kuzhithurai.
For Appellants : Mr.V.M.Balamohan Thambi
For Respondent : Mr.K.Sreekumaran Nair
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S.A.(MD)No.153 of 2015
JUDGMENT
The defendants 2, 4 to 6 and legal heirs of the deceased 3rd defendant
in O.S.No.409 of 2004 are the appellants. The suit was filed by the plaintiff
seeking a decree for injunction restraining the defendants from interfering with
her possession of the suit property.
2. According to the plaintiff, the suit property originally belonged to
one Vellaiyan, who sold the same under Ex.A14 to the plaintiff's father on
08.08.1949. The plaintiff's father had put up a house in the suit property,
which measured about 4 cents and was in possession and enjoyment of the
same. It is also claimed that the plaintiff's father executed a Settlement Deed
in favour of the plaintiff on 24.05.1979. Pursuant to the said settlement, the
plaintiff continued in possession of the property. Claiming that the defendants,
who are adjacent owners, are attempting to interfere with her possession, the
plaintiff came up with the suit for injunction.
3. The defendants filed a written statement claiming that the vendor
of the plaintiff's father, Vellaiyan purchased only an extent of 0.900 square
links from one Bhoothathan under a sale deed dated 08.12.1094 M.E. and he
could not convey larger extent of the property to the plaintiff's father.
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4. Since the title itself was denied by the defendants, the plaintiff
amended the plaint, claiming a declaration of title and consequential
injunction. The plaintiff also introduced a paragraph claiming title to the
larger extent by adverse possession.
5. At trial, the plaintiff was examined as P.W.1 and one Thomas was
examined as P.W.2. Exs.A1 to A18 were marked. One Paulraj, 5 th defendant,
was examined as D.W.1 and one Yanos was examined as D.W.2. Exs.B1 to
B17 were marked. A Commissioner was appointed by the trial Court and the
report of the Commissioner and the plan were marked as Exs.C1 and C2.
6. Upon consideration of the evidence on record, the Trial Court
concluded that the plaintiff has established her continuous possession of the
property right from the date of execution of the Settlement Deed in her favour
and she has also proved that her father was in possession of the property, right
from the date of purchase on 08.08.1949 under Ex.A14. The question of
validity of Ex.A1-Settlement Deed on the ground that it was registered at
Parasala in Kerala was also raised, but the same was not answered by the trial
Court, since the trial Court held that de hors the said instrument, the plaintiff
has made out title by adverse possession to the entire extent of the property.
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S.A.(MD)No.153 of 2015
The learned trial Judge also took note of the fact that the suit property or any
portion of it was not included in the suit for partition in O.S.No.49 of 1987
among the defendants. On the above conclusions, the learned trial Judge
decreed the suit. Aggrieved, the defendants preferred an appeal in A.S.No.21
of 2011. The Appellate Judge, upon a reconsideration of the evidence on
record, concurred with the findings of the trial Court and dismissed the appeal.
Hence, the defendants have come up with this second appeal.
7. The following questions of law were framed at the time of
admission:
(i) Whether the Judgment of the Courts below upholding
the validity of Exs.A1 and A2 settlement is sustainable in law having
regard to the fact that it amounts to fraud on registration on the fact
and in the circumstances under which the settlement deed happened
to be executed and registered in the office of the Sub Registrar,
Parasalai in the State of Kerala, while the property conveyed under
document is situated in Kanyakumari District which is in Tamil
Nadu?
(ii) Whether the Courts below were right in holding that
the respondent/plaintiff entitled the suit property by way of adverse
possession is correct, without framing issues and without specific
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S.A.(MD)No.153 of 2015
pleading regarding the adverse possession?
(iii) Whether the respondents/plaintiffs are entitled to
claim right and title under document of title of adverse possession,
which is essential for both pleas and mutually inconsistent pleas?
(iv) Whether the Courts below granted decree of
declaration of title and possession based on the adverse possession
in favour of respondents/plaintiffs is correct, especially plea of
adverse possession is only defence plea in view of Judgment
reported in 2014 SAR 33 SC?
8. I have heard Mr.Balamohan Thambi, learned counsel for the
appellants and Mr.Sree Kumaran Nair, learned counsel for the respondent.
9. Elaborating on the questions of law, Mr.Balamohan Thambi
would fairly concede that the question of validity of Exs.A1 and A2 on the
ground of the registration at Parasala may not survive, in view of my
Judgment in D.Vijayalakshmi vs. V.Hariselvan and others reported in 2020
(3) CTC 438, wherein, I had examined the question of validity of document
registered outside the State prior to the introduction of Section 28(b) of the
Registration Act by the Tamil Nadu Registration (Amendment) Act 19 of 1997.
I have held that unless it is shown that the property was not in existence or the
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S.A.(MD)No.153 of 2015
vendor or the mortgagor, as the case may be, do not have title to the property
so included in the sale deed, it cannot be said that the registration would
amount to fraudulent registration, thereby, making the entire document
invalid. I find no evidence to meet the twin requirements, namely, the
non-availablity of the property at Kerala and the ownership of the property at
Kerala. Therefore, the validity of the instrument, namely Ex.A1 cannot be
questioned at this stage. The first question of law has to be answered against
the appellant.
10. Mr.Balamohan Thambi, learned counsel for the appellants
would contend that the Courts below should not have decided the question of
adverse possession without framing a proper issue. He would also contend
that the plaintiff had claimed both title and adverse possession and therefore,
the plaintiff cannot be heard to contend that she has perfected title by adverse
possession as the very claim of the adverse possession requires the plaintiff to
concede the title of the defendants.
11. The learned counsel also relied upon the Judgment of the
Hon'ble Supreme Court, reported in 2014 SAR 33SC in support of his plea that
adverse possession cannot be taken as a basis for seeking declaration of title.
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S.A.(MD)No.153 of 2015
12. The learned counsel also invited my attention to the Judgment of
the Supreme Court in Shankar & Others vs. Surendra Singh Rawat (D) Thr.
LRs. & Anr. reported in 2019(1) Civil Court Cases 213, in support of his
submission that alternative pleas of title and adverse possession cannot go
together.
13. Contending contra, Mr.Srikumaran Nair, the learned counsel for
the respondent would submit that it is open to the plaintiff to plead both title
and adverse possession, but, the plaintiff should elect one of the pleas at the
time of trial. If the plaintiff had elected one of the pleas and let in evidence
based on that plea, then, there is no bar for the Court in deciding the question
of adverse possession de hors the claim for title.
14. Mr.Sreekumaran Nair, learned counsel for the respondent,
would further submit that the plaintiff had elected the plea of adverse
possession at the time of trial and proof affidavit has been filed by the plaintiff
based on the adverse possession and therefore, it cannot be said that the
plaintiff had pleaded both title as well as adverse possession.
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S.A.(MD)No.153 of 2015
15. Answering the contention on maintainability of the suit for
declaration of title based on adverse possession, Mr.Sreekumaran Nair would
rely upon the Judgment of the Hon'ble Supreme Court in Radhakrishna
Reddy (D) Through LRs. vs. G.Ayyavoo and others, reported in 2019 (8) SCC
729, wherein, the Hon'ble Supreme Court had overruled the Judgment reported
in 2014 SAR 33SC.
16. As regard the requirements of adverse possession,
Mr.Sreekumaran Nair would rely upon the Judgment of the Division Bench of
this Court in A.Rukumani and another vs. Gopalaswamy and another
reported in 1993 (2) MLJ 598, wherein, the Division Bench had held that
possession under void documents would be adverse to the true owner from the
date of the document.
17. I have considered the submissions of the learned counsel on
either side.
18. As far as the first contention of the learned counsel for the
appellants that the plaintiff cannot plead both adverse possession as well as
title, I must point out that the plaintiff came up with the suit for injunction
claiming title under Ex.A1-Settlement Deed. Once the defendants took a plea
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S.A.(MD)No.153 of 2015
that the plaintiff has no title to the entire extent of property, the plaint was
amended including the claim of adverse possession. Therefore, it is for the
plaintiff to elect as to the basis on which she is to seek the relief of declaration
of title.
19. A perusal of the proof affidavit filed by the plaintiff as P.W.1
would demonstrate that the plaintiff has struck to the claim of adverse
possession and she has not pleaded title. The proof affidavit very clearly
mentions that from the date of execution of sale deed by Vellaiyan in favour of
her father, her father was in possession of the property adverse to the interest
of others. Therefore, she has perfected title to the adverse possession.
20. As rightly pointed out by Mr.Sreekumaran Nair, learned counsel
appearing for the respondent, the possession under invalid document or void
document would be adverse to the true owner from the date of the said
document. The Division Bench in Rukumani and another vs. Gopalaswamy
and another, reported in 1993 2 MLJ 598, has held as follows:
“The classical requirement to establish adverse possession
is that the possession should be nec vi nec clam nec precario. Here
the possession on the part of the respondents is sufficiently overt
and without an attempt at concealment, so that the person against
whom time is running should if he exercises due vigilance, be aware
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S.A.(MD)No.153 of 2015
of what is happening. Even if it is assumed that Ex.B-2 sale deed is
void, in view of the evidence showing that the vendors are in open
continuous and uninterrupted possession and enjoyment of the land
since 1954, they have acquired title by adverse possession. In
Venkatsubramania v. Sivagurunatha, A.I.R. 1938 Mad. 60, a
Division Bench of this Court has held that adverse possession of an
alienee dates from the moment the alienee is without lawful title.
That time is, in the case of a void transfer, the date of the transfer.
So, we find no reason to differ from the finding of the trial Court on
this aspect.”
21. If the principle laid down by the Division Bench of this Court is
applied to the facts of the case on hand, it will be clear that the possession of
the plaintiff's father became adverse right from the date of Ex.A14, namely
08.08.1949. Therefore, the Courts below cannot be faulted for having
concluded that the plaintiff has established that she has perfected title by
adverse possession. Even otherwise, the plaintiff's father has exercised the
right over four cents of land and executed Ex.A14 in the year 1979. Now that,
the validity of Ex.A14 is beyond doubt. The plaintiff's possession would be
adverse to the real owner at least from the date of Ex.A14 that is 24.04.1979.
In any event, the plaintiff satisfies the statutory requirements of being in actual
physical possession for over the statutory period.
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S.A.(MD)No.153 of 2015
22. As regards the contention of the learned counsel for the
appellants that the plaintiff cannot seek declaration of title based on adverse
possession, relying upon the Judgment in Gururdwara Sahib vs Gram
Panchayat Village Sirthala and another reported in 2014 (1) SCC 699, the
said Judgment has been overturned by larger bench of the Supreme Court in
Radhakrishna Reddy (D) Through LRs. vs. G.Ayyavoo and others reported in
2019 (8) SCC 729.
23. In view of the said Judgment of the Supreme Court, the law is
now settled to the effect that the plea for declaration of title on the basis of
adverse possession can be maintained by the plaintiff.
24. In view of the above settled position of law, the questions of law
raised are answered against the appellants. The Second Appeal, therefore, fails
and it is accordingly dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
19.02.2021
Index : Yes / No
Internet : Yes / No
ogy
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S.A.(MD)No.153 of 2015
R.SUBRAMANIAN, J.
ogy
To
1. The Sub Court,
Kuzhithurai.
2. The II Additional District Munsif Court,
Kuzhithurai.
S.A.(MD)No.153 of 2015
19.02.2021
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