Madras High Court
Unknown vs Jayapandia Nadar on 25 February, 2021
S.A.No.1619 of 2000
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.No.1619 of 2000
1.Senthur Pandian Nadar
2.Subramania Nadar (Died)
3.Palavesamuthu Nadar
4.Shanmugavel Nadar (Died)
5.Esakkiammal (Died)
6.Mokkammal
7.Selvam
8.Paneer
(Declared as Major and discharged the
guardianship of mother vide order dated
25.09.2000)
9.Thafasingh
10.Thmaraikani
11.Annakili
12.Chellathai
13.Nagarajan
14.S.Krishnan
15.Chentur Kani
16.Selvam
17.Pathrakali
1/18
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S.A.No.1619 of 2000
18.Muthumalar
(Appellants 10 to 18 are brought on record as LRs
of the deceased 4th appellant, vide Court order
dated 07.06.2018 made in C.M.P.(MD)Nos.
4006 to 2008 of 2018)
19.Paldurai
20.Thanagarasi
21.Ramar
22.Lakshmanan
23.Rajiv Gandhi
24.Kavitha
(Appellants 19 to 24 are brought on record as LRs
of the deceased 2nd appellant vide Court order
dated 20.07.2020 made in CMP(MD)No.2566/2020)
25.P.Jeyapal
26.P.Thangakumar
27.P.Gunasekaran
28.P.Sarathy
29.P.Ganesan
30.V.Saraswathi
(Appellants 25 to 30 are impleaded vide Court order
dated 19.01.2021 made in CMP(MD)No.7103 of 2020) ... Appellants
Vs.
1.Jayapandia Nadar
2.Chellakani
3.Ponmadasamy
4.J.Mani
5.J.Sembulingam ... Respondents
2/18
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S.A.No.1619 of 2000
PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree in A.S.No.38 of 1989 on the file of the Sub-
Court, Tuticorin, dated 24.02.1992 confirming the judgment and decree in O.S.No.
247 of 1984 on the file of the Principal District Munsif, Tuticorin, dated
04.01.1989.
For Appellants : Mr.H.Arumugam
for A1 to A3 & A6 to A30
A4 & A5-Died
For Respondents : Mr.S.Kadarkarai for
Mr.S.Sreekumaran Nair for R2 to R3
R1-died
JUDGMENT
Aggrieved over the concurrent findings of the Courts below, the
present Second Appeal is filed.
2.The parties are referred to as per their rank before the trial Court.
3. The brief facts leading to the filing of the present Second Appeal
are as follows:-
3(1) The suit property originally belonged to one Piramasathy
Nadathy, wife of Vellaikkan Nadar and she had three sons, namely, Periasamy
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S.A.No.1619 of 2000
Nadar, Sudalaimada Nadar and Shanmuga Nadar. After the death of the said
Piramasathy Nadathy, her above mentioned three sons had inherited the I schedule
property and they had been in joint possession and enjoyment of the said property.
The said Periasamy Nadar leaving behind his three sons viz., Arunachala Nadar,
Subramania Nadar and one Palavesamuthu Nadar as his legal heirs. The second
and third plaintiffs in the suit are Subramania Nadar and Palavesamuthu Nadar.
The said Arunachala Nadar died leaving behind his only one son viz.,
Senthurpandy Nadar and the said Senthurpandy Nadar is the first plaintiff in the
suit. The second brother Sudalaimada Nadar had two sons viz., Thangavel Nadar
and Shanmugavel Nadar and the above said Shanmugavel Nadar is the fourth
plaintiff in the suit. The above said Thangavel Nadar leaving behind his wife
Mokkammal and his two sons viz., Selvam and Paneer as his legal heirs. His legal
heirs herein are the plaintiff Nos.6 to 8 in the above suit. Hence, the share of the
above said Sudalaimada Nadar in the I schedule property was inherited by the
plaintiff Nos.4 and 6 to 8.
3.(2). All the plaintiffs have become joint owners of the I schedule of
the suit property as the legal heirs of the original owner viz., Piramasathy Nadathy
and they have paid the kist for the I Schedule property. The defendants in the
suit have no right, interest, title or possession in respect of the I schedule property.
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S.A.No.1619 of 2000
The defendants 1 and 2 were tried to interfere with the plaintiffs' possession of the
II schedule property in the second week of January 1984. Hence, the plaintiffs 3,
4 and 5 sent a legal notice to the defendants 1 and 2. The defendant Nos.1 and 2
had received the notice and sent a reply notice on 27.01.1984. The defendants 1
and 2 have put up sheds in the suit property. The defendants 1 and 2 were never in
possession and enjoyment of the II schedule property as alleged. The defendants 1
and 2 have only trespassed into the II schedule property. Hence, the plaintiffs
filed the suit for declaration and recovery of possession of the II schedule suit
property.
4. It is the contention of the defendants 2 and 4 that the suit property
originally consists of 5 acres 50 cents and the suit property was purchased 100
years ago by one Shenbulinga Nadar and Subbiah Nadar as one sharer, Samuel
Nadar and Madakkan Nadar as another sharer and Vellaikan Nadar as another
sharer. Each sharer will be entitled to one share i.e., 1.83 acres each. But in the
notice sent by the plaintiffs and also in the plaint, it has been mentioned as two
acres and ten cents, which is not correct. The aforesaid Vellaikan Nadar sold his
share to his wife Piramasathi Nadathy on 08.02.1919.
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S.A.No.1619 of 2000
5. It is the contention of the defendants that they have got absolute
right in respect of the II schedule property and they are in enjoyment of the same.
The second defendant viz., Jeyapandi is the grand son of Shenbulinga Nadar, who
had put up two houses bearing doorr Nos.28 and 28-A in Ward No.5, where the
suit property is located. The said Jeyapandi is also entitled to 61 cents in the suit
property. The first defendant has purchased eight cents from the above said
Subbiah Nadar, one of the first group of sharers already mentioned in the above
paragraphs and he has put up two houses in the suit property, bearing Door Nos.as
23 and 23 A. The plaintiffs who are in possession and enjoyment of 1.83 acres
were making a speculation claim based on a sub-division done behind the back of
these defendants. Only the defendants are in absolute enjoyment and possession
of the II Schedule property and paying taxes etc. The defendants have put up
houses long back and they are in enjoyment of the II schedule property for more
than 30 years and the defendants are entitled to the II schedule property by adverse
possession also.
6. Based on the above pleadings, the trial Court has framed the
following issues:
1. Whether the plaintiffs are entitled to claim any right over
the I and II schedule of the suit property?
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S.A.No.1619 of 2000
2. Whether the plaintiffs are entitled to the relief of
declaration and recovery of possession as prayed for?
3.To what other reliefs, the plaintiffs are entitled?
7. Before the trial Court, on the side of the plaintiffs, P.W.1 to P.W.3
were examined and Ex.A.1 to Ex.A.11 were marked. On the side of the
respondents, D.W.1 and D.W.2 were examined and Ex.B.1 to Ex.B.36 were
marked and Ex.C.1 and Ex.C.2 were also marked as Court documents.
8. Based on the evidences and materials, the trial Court having found
that the II schedule property was originally owned by one Piramasathi Nadathy
and the defendants 1 to 3 were residing in the suit property for more than twelve
years, dismissed the suit. As against which, first appeal was filed. The First
Appellate Court having found that the defendants have not proved their adverse
possession and further held that the construction of the suit property has not been
established, dismissed the appeal. As against which, the present Second Appeal is
filed.
9. While admitting the Second Appeal, the following substantial
question of law has been framed.
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S.A.No.1619 of 2000
“Have not the Courts below committed an error of
law in not granting the declaratory relief of title on the
established facts?”
10. During this stage, an Advocate Commissioner was appointed by
this Court and the Advocate Commissioner was also examined before the lower
Court and his report was also taken on record, which has been marked as Ex.C.3
and Ex.C.4.
11. It is the contention of the learned counsel appearing for the
appellants that main dispute in the entire appeal is with regard to 27 cents, which
was shown as II schedule in the suit property. It is his contention that those 27
cents is forming part of the larger extent of 2.10 cents originally purchased under
Ex.A.1 in the year 1919. Though the defendants claimed that each sharers are
entitled to 1.83 acres, the same has not been accepted by the trial Court and the
trial Court infact held that as per Ex.A.10 only 2.10 acres were allotted to
plaintiffs' predecessors in title, which was confirmed by the Courts below and this
has not been challenged by way of cross-appeal. Now the only dispute in this
appeal is that though the first defendant had claimed that he had purchased eight
cents of land comprised in Survey No.369/14, the same is different than the suit
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S.A.No.1619 of 2000
property, whereas the suit property is in survey No.369/13. Hence, it is his
contention that now the Advocate Commissioner's report makes it very clear that
the Commissioner has identified the property and correlated the survey numbers
with the help of the Surveyors and filed a report indicating that the II Schedule of
the suit property is the part of the I schedule property, which are in occupation of
the first and second defendants.
12. It is the further contention of the learned counsel appearing for the
appellants that though it is the contention of the first defendant that they are
continuously in possession of the property, on the basis of the title deed for eight
cents and the second defendant claimed 61 cents, there is no evidence to
substantiate the same. The plea of adverse possession is also negatived by the
First Appellate Court. Therefore, mere possession will not convey any right to the
defendants to resist the suit for recovery of possession of the suit property. Hence,
prays for allowing of the appeal.
13. Whereas, the learned counsel appearing for the respondents would
submit that originally the suit property comprised of 5.5 acres which has not been
disputed and it has been sold by the three sharers. Each sharers are entitled to
1.83 acres. The second defendant is also the grandson of one of the sharer viz.,
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S.A.No.1619 of 2000
Senbulinga Nadar. Therefore, the plaintiffs claim that they are entitled to 2.10
cents, cannot be countenanced. Even assuming that the predecessors of the
plaintiffs were allotted such an extent, the defendants are in possession of II
Schedule property for more than a decade. The documents filed on the side of the
defendants make it very clear that the house buildings were in existence and the
taxes have been paid continuously. Therefore, the contention of the plaintiffs that
only in the year 1984, the defendants tried to enter into the suit property cannot be
countenanced for the simple reason that such allegation has been pressed into
service only in order to create a cause of action for filing the suit for recovery of
possession.
14. The evidence of P.W.3 and others makes it very clear that D.W.1
and D.W.2 had put up a construction long back and they are residing for more than
a statutory period. Therefore, merely strict pleadings of adverse possession has
not been pleaded and the same cannot be a ground to decree the suit. The suit has
been filed for recovery of possession much after the period of twelve years which
is barred in law. Hence, the courts below rightly found that the property has not
been identified. Even assuming that the present Commissioner's report and
evidence would show that II schedule property was forming part of I schedule
property, the fact remains that the defendants 1 and 2 were residing in the above
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S.A.No.1619 of 2000
mentioned property for more than a decade, hence, he submitted that the suit for
recovery of possession is barred by law. Hence, he prayed for dismissal of the
appeal.
15. Heard the learned counsel on either side and perused the entire
materials available on record.
16. The suit has been laid for declaration and recovery of possession
in respect of II schedule item of property which is part of the I schedule property.
It is the contention of the defendants that each sharer is entitled to 1.83 acres out
of 5.5 acres. However, the Courts below have held that the plaintiffs are entitled to
2.10 cents, which has not been challenged.
17. The first defendant has purchased the property under Ex.B.1
measuring to an extent of eight cents in the suit property. On perusal of Ex.B.1-
Sale deed it makes very clear that the land measuring to an extent of eight cents of
property is situated in Survey No.369/14, whereas, the suit property is in Survey
No.369/13. Though it is the specific contention of the first defendant that eight
cents were situated in Survey No.369/13, the trial Court having found that the
defendants have not established their stand with regard to the adverse possession,
dismissed the suit on the ground that the suit property has not been identified.
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S.A.No.1619 of 2000
Whereas, this Court appointed the Advocate Commissioner and the Commissioner
visited the property with the help of the qualified surveyor and filed a report i.e.,
Ex.C.3 and Ex.C.4. The Commissioner also examined before the trial Court as
per the directions of this Court. Ex.C.3 and Ex.C.4 make it very clear that the
property has been properly identified with the help of the Surveyor. The report
filed by the Commissioner makes it very clear that the defendants have infact
objected to survey their land and the conduct of the defendants not to co-operate
with the Commissioner in fixing the boundaries cannot be ignored. They
deliberately made such an attempt to prevent the Commissioner in fixing the
boundaries.
18. Be that as it may, it is seen from Ex.C.3 and Ex.C.4 that the
Commissioner has fixed the boundary with the help of the Surveyor and the
boundary was accepted and identified by both parties. Based on the sale deed, it is
found that 27 cents of the II schedule property falls within the Survey No.369/13.
It was also clearly identified by the Surveyor and the Commissioner has also filed
a report under Ex.C.3 and Ex..C.4. The contention of the first defendant is that he
has purchased the property under Ex.B.1 cannot be countenanced.
19. Now, it is seen that whether the defendants have encroached the
property in the year 1984 or not?
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S.A.No.1619 of 2000
20. It is the specific case of the plaintiffs that the defendants were
tried to interfere with the suit property in the year 1984 onwards. Whereas, it is
the specific case of the defendants that the defendants are residing in the suit
property for more than a decade and put up a construction.
21. Ex.B.2 to Ex.B.36 make it very clear that from the year 1959 till
1984, the first defendant has paid tax and the second defendant has paid tax for the
house bearing Door No.5/28. The house tax receipts were obtained on 29.01.1984
and the fact remains that the houses bearing Door Nos.5/28 and 26A were situated
in the II schedule of suit property. Further, in the evidence of P.W.3, it is very
clear that the defendants houses were existed for more than 20 years . Therefore,
the contention of the plaintiffs that the defendants were trying to interfere with the
property in the year 1984 cannot be countenanced. The plaintiffs themselves feign
ignorance of the defendants' possession, particularly, the defendants' houses.
Whereas, the witness admitted that they are residing for more than 20 years in the
house. This would clearly show that though the defendants have not established
their adverse possession in II second schedule of property, the fact remains that
they have put up some constructions in the suit property, namely, in II schedule of
property.
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S.A.No.1619 of 2000
22. When the matter came up for hearing on 19.02.2021, this Court
passed the following order:
It is now submitted by the learned counsel for both sides
that Survey No.369/3 has been sub-divided as various Survey
numbers including Survey Nos.369/13 and 369/14.
2. Now, it appears that the defendants are residing in the
house situated in Survey No.369/13. However, as far as Survey No.
369/14 is concerned, it is a vacant site.
3. In view of the above, this Court is of the view that the nature
of adverse possession in respect of the vacant site has not been
established. Hence, this court is inclined to know the exact extent of
the vacant site in Survey No.369/14.
4. At this juncture, learned counsel appearing for either side
would fairly submit before this Court that they will measure the
above mentioned areas and file a report before this Court on or
before 23.02.2020.
5. The learned counsel appearing for the respondents would
submit that this Court may direct both parties to co-operate for
measuring the properties.
6. For such exercise, this Court directs both the parties to
measure the above said areas and file a report before this Court on
or before 23.02.2021.
7. Registry is directed to post this appeal on 23.02.2021 under
the caption "For Orders".
23. Thereafter, when the matter came up for hearing on 23.02.2021, this
Court passed the following order:
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S.A.No.1619 of 2000
Pursuant to the orders passed by this Court now a
report has been filed by both sides admitting that other than the
constructed area only 10.43 cents of vacant site is available. The
defendants i.e., respondent Nos.1 and 2 have not disputed the
vacant site and agreed to hand over the same to the appellant.
2.It is contended by the learned counsel for the
appellant that their rights could be confined only to other than
10.43 cents, which is shown as BRSQ.
3.For taking physical possession and for filing
affidavit by both sides in this regard post the case on 25.02.2021.
24. In continuation of the earlier orders, the parties are agreed to
measure the properties in Survey Nos.369/13 and 369/14. Survey No.369/13 is
fully constructed by defendant No.2 and in survey No.369/14, a building was
constructed by the first defendant measuring 1.93 cents and a vacant site
measuring 10.43 cents is available, which is also shown as BRSQ in the report.
25. Today when the matter is taken up, the defendants 3 to 5 filed an
affidavit of undertaking to the effect that they undertake to vacate the vacant site
(measuring 10.43 cents shown as BRSQ in the rough plan filed along with the
report filed on 23.02.2021) in Survey No.369/14.
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S.A.No.1619 of 2000
26. Mr.H.Arumugam, learned counsel appearing for the appellants
submitted that 10.43 cents have been identified and fenced completely and handed
over to the plaintiffs viz., appellants herein.
27. In such view of the matter, as earlier discussed by this Court in the
earlier part of judgment, taking note of the long and continuous possession of the
defendants in Survey No.369/13 and 1.93 cents in Survey No.369/14, this Court
declares the title of the plaintiffs only in respect of the remaining vacant land viz.,
10.43 cents. Since the respondents 3 to 5 filed an affidavit to the effect that the
above land was identified and fenced and they have also undertake to hand over
the same, now the plaintiffs' right in respect of 10.43 cents in Survey No.369/14 is
hereby declared and the plaintiffs are entitled to a decree and judgment for
declaration and also possession in respect of 10.43 cents, morefully mentioned as
'BRSQ' in the rough plan filed along with the report filed on 23.02.2021 and
therefore, the suit is decreed in part.
28. Accordingly, this Second Appeal is partly allowed and the affidavit of
undertaking filed by the respondents 3 to 5 is placed on record. No costs.
vsm 25.02.2021
Index :Yes/No
Internet: Yes/No
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S.A.No.1619 of 2000
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
1.The Subordinate Judge, Tuticorin.
2.The Principal District Munsif, Tuticorin,
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.No.1619 of 2000
N.SATHISH KUMAR, J.
vsm
S.A.No.1619 of 2000
25.02.2021
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