Madras High Court
Mohanambal vs Dhanammal on 1 July, 2021
A.S.No.97 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.07.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
A.S.No.97 of 2015
1. Mohanambal
2. T.Srinivasan
3. T.Vijayalakshmi
4. N.Manomani
5. N.Prakash ... Appellants
Vs.
Dhanammal ... Respondent
PRAYER: Appeal Suit filed under Section 96 of CPC to set aside the
Judgment and Decree dated 08.10.2014 made in O.S.No.7192 of 2010 on
the file of the learned IV Additional District Judge, City Civil Court,
Chennai.
For Appellants : Mr.Adinarayana Rao
For Respondent : Mr.J.Sudhakaran
JUDGMENT
The Appeal Suit is filed as against the Judgment and Decree
dated 08.10.2014 made in O.S.No.7192 of 2010 on the file of the IV
Additional District Judge, City Civil Court, Chennai.
2. For the sake of convenience, the parties are referred to as per
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A.S.No.97 of 2015
their ranking in the trial Court.
3. The suit is filed for declaration and recovery of possession.
The case of the plaintiffs is that they are the legal heirs of the deceased
Thangavelu and Nagalingam, who are brothers. The defendant is the
elder sister of the above said brothers. The above said brothers, along
with defendant and another sister, had partitioned their properties, which
were originally belonged to their parents, by a registered partition deed
dated 11.05.1982. As per the partition deed A schedule properties were
allotted to the defendant. B schedule properties were allotted to another
sister viz., Lakshmi. C schedule properties were allotted to one of the
brothers viz., deceased Thangavelu and D schedule properties were
allotted to another brother viz., deceased Nagalingam. After demise of
the said brothers, the plaintiffs are being the legal heirs were in
continuous possession and enjoyment of their respective shares. The
plaintiffs 1 to 3 and 4 & 5 are each entitled to half share. The plaintiffs
were residing in one portion and the remaining portions are let out to
tenants. After vacating the tenant, the defendant was given permission to
occupy the said portion. The tenants and the defendant were paying rent
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A.S.No.97 of 2015
to the plaintiffs. Only to avoid the payment of rent, the defendant filed
suit in O.S.No.1915 of 1994 on the file of the City Civil Court, Chennai,
for permanent injunction as against the plaintiffs. Hence the plaintiffs
filed this suit for declaration and recovery of possession.
4. Resisting the same, the defendant filed written statement
admitting the relationship and also execution of partition deed dated
11.05.1982. But according to the defendant, the partition deed was never
acted upon between them and the so called brothers were never put into
possession of the suit property. The house referred by the plaintiffs was
built up by one Ammakannu Ammal from her own funds and later
developed by the defendant. The defendant has been in continuous
possession and enjoyment of the suit properties with her mother and even
after demise of her mother, in fact, she inducted the tenants in the house
and collected rent from the tenants. The portion of item No.1 of the A
and B schedule suit properties are in exclusive possession and enjoyment
of the defendant. All the revenue records stands in the name of the
defendant. The suit itself is vexatious and frivolous one. In fact, the
defendant filed suit in O.S.No.1915 of 1994, as against the plaintiffs and
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A.S.No.97 of 2015
the same was decreed in her favour by the judgment and decree dated
16.12.1999. Therefore, the first and fourth plaintiffs or their respective
husbands viz., Thangavelu and Nagalingam were never in possession of
the suit properties. If at all any right had accrued to them, they have lost
their right due to continuous and adverse possession of the defendant in
respect of the suit properties. The defendant has also perfected title of the
suit properties by way of adverse possession. Hence the present suit is
barred by limitation and the plaintiffs did not disclose any cause of
action to file the suit.
5. On hearing the rival pleadings, the learned trial Judge
framed the following issues for determination of the suit :-
“1. Whether the plaintiffs 1 to 3 are
absolutely entitled to the item mentioned in “A”
schedule of the suit properties?
2. Whether the plaintiffs 4 and 5 are
absolutely entitled to the item mentioned in “B”
schedule of the suit properties?
3. Whether the defendant is in illegal
occupation of the item No.1 “A” Schedule and
item No.1 “B” schedule of properties of the
pliantiffs and that to direct the defendant to
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A.S.No.97 of 2015
delivery of possession of the same to the
plaintiffs?
4. Whether the question of prescription of
title by adverse possession will arise when
permissive occupation is given to a close relative?
5. Will the question of ouster arise within
the close relatives who are in permissive
possession?
6. Were the plaintiffs at any time in
possession and enjoyment of item No.1 of A and B
schedule properties mentioned in the plaint after
the partition deed dated 11.05.1982?
7. Has not the defendant prescribed title to
item No.1 of the plaint A & B schedule properties
being in possession of the same openly,
continuously and adverse to the knowledge of the
plaintiffs?
8. Is not the decision in O.S.No.7927 of
1986 City Civil court, Madras a bar to the
plaintiff's claim for possession?
9. Has not the defendant prescribed title to
plaint No.1 of A and B Schedule property by open,
continuously and adverse possession over the
statutory period?”
6. On the side of the plaintiffs, they examined P.W.1 to P.W.3
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A.S.No.97 of 2015
and marked Ex.P.1 to Ex.P.5. On the side of the defendant, she examined
D.W.1 and marked Ex.B.1 to Ex.B.39. On perusal of the material
produced on record and considering both the oral and documentary
evidence adduced by the respective parties and also the submissions
made by the learned counsel on either side, the trial Court dismissed the
suit. Aggrieved by the same, the present Appeal Suit has been preferred
by the plaintiffs.
7. The learned counsel appearing for the plaintiffs/appellants
submitted that the defendant categorically admitted the partition between
the first and fourth plaintiffs' respective husbands along with other sister
by the registered partition deed dated 11.05.1982. On permission, the
defendant occupied the suit property for rent. In order to avoid the
payment of rent, she filed suit in O.S.No.1915 of 1994 for permanent
injunction. He further submitted that to claim adverse possession in
respect of the suit properties, the possession and enjoyment of the suit
property should be challenged or denied. In the present suit, the
limitation does not arise and the defendant is not entitled to any right by
way of adverse possession. When the defendant categorically admitted
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A.S.No.97 of 2015
the partition between the plaintiffs' family members, she cannot claim
adverse possession over the suit properties.
8. Per contra, the learned counsel appearing for the defendant
submitted that though the defendant admitted the partition deed dated
11.05.1982, it was never acted upon and the plaintiffs or their
predecessors were never in possession of the suit properties. The
defendant and her mother are in continuous possession and enjoyment of
the suit properties. In order to substantiate her possession and enjoyment,
the defendant marked the documents in Ex.B.1 to Ex.B.31 to prove her
possession and enjoyment of the suit properties from the year 1984
onwards. Those documents categorically proved her possession and
enjoyment of the suit properties without any obstruction or objection. He
further submitted that the present suit is nothing but vexatious and
frivolous only to extract money from the defendant. Therefore, he prayed
for dismissal of the appeal suit.
9. Heard Mr.Adinarayana Rao, learned counsel appearing for
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A.S.No.97 of 2015
the appellants and Mr.J.Sudhakaran, learned counsel appearing for the
respondent.
10. Admittedly, there was a partition deed dated 11.05.1982,
which was marked as Ex.A.1, between the first plaintiff's husband and
fourth plaintiff's husband viz., Thangavelu and Nagalingam respectively,
along with their sisters. Accordingly, the first item in A and B schedule
suit properties were allotted to the said Thangavelu and Nagalingam by
equal share. A perusal of Ex.A.1 reveals that, the item 1 of the A schedule
suit property was a thatched house at the time of execution of partition
deed. Whereas a perusal of documents marked by the defendant in
respect of the suit property reveals that, it was a terrace house.
11. The plaintiffs also failed to prove their possession of the suit
property at any point of time even during the time when their husbands
were alive. Therefore, the defendant claimed adverse possession in
respect of the suit property. The defendant prescribed title by way of
ouster in respect of the suit property, since the defendant is in continuous
possession from the time immemorial. Whereas the plaintiffs claimed
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A.S.No.97 of 2015
title through the said Thangavelu and Nagalingam by the partition deed
dated 11.05.1982. The plaintiffs have filed the present suit with vague
avernments, without any specific avernment in respect of any date viz.,
the date on which the defendant was permitted to occupy the suit
property and what was the rent paid by her. Therefore, the plaintiffs are
not entitled for any relief sought for in the plaint. Hence the Court below
rightly dismissed the suit and there is nothing warranting interference by
this Court.
12. Accordingly, this Appeal Suit stands dismissed. There shall
be no order as to costs.
01.07.2021
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
rts
To
The IV Additional District Judge,
City Civil Court, Chennai.
https://www.mhc.tn.gov.in/judis/
A.S.No.97 of 2015
G.K.ILANTHIRAIYAN, J.
rts
A.S.No.97 of 2015
01.07.2021
https://www.mhc.tn.gov.in/judis/
