Madras High Court
P.Vittobah(Died) vs A.Lourdurayan on 14 July, 2021
C.R.P.(P.D).No.2325 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.07.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(PD) No.2325 of 2018 and
CMP.No.14443 of 2018
1.P.Vittobah(died)
2.R.Premakumari
3.Sindhana
4.Priyadharshini
5.Sridevi
(petitioners 2 to 5 brought on record as LR's
of the deceased sole petitioner viz.,
P.Vittobah vide court order dated 17.04.2021
made in CMP.No.3255 of 2021 in
CRP.No.2325 of 2018 ... Petitioners
Vs
1.A.LourduRayan
2.Secretary,
Tamilnadu Public Service Commission,
Frazer Bridge Road,
Chennai 600 003
3.District Collector,
ChhinthanaaiChhirpiSingarvelarMalligai,
Chennai 600 001
4.District Collector,
Tiruvallur 602 001
5.The Special Officer,
Assistant Director of Town Panchayat,
Thirunindravur, Thiruvallur District
6.Assistant Engineer,
Tamizh Nadu Electricity Board,
Thirnunindravur, Thiruvallur District 602 024
1/12
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C.R.P.(P.D).No.2325 of 2018
7.Assistant Engineer,
ThamizhNaadu Water and Drainage Board,
Thirunindravur, Thiruvallur District
8.Village Administrative Officer,
Thirunindravur, Thiruvallur District ... Respondents
Prayer :- Civil Revision Petition is filed under Article 227 of the Constitution
of India against the fair order and decretal order dated 27.06.2018 in
IA.No.1063 of 2016 in OS.No.59 of 2016 on the file of the Additional District
Judge No.II at Poonamallee and to allow the application with costs.
For Petitioners : Mr.M.V.Seshachari
For Respondents
R1 : Mr.A.E.Chellaiah,
Senior Counsel
for Mr.K.Ramanujam
R2 to 8 : Mr.Edwin Prabakar,
Government Advocate(CS)
ORDER
This Civil Revision Petition is filed against the fair order and
decretal order dated 27.06.2018 passed in IA.No.1063 of 2016 in OS.No.59
of 2016 on the file of the Additional District Judge No.II at Poonamallee,
thereby dismissing the petition for rejection of plaint.
2. The petitioners are the defendants and the first respondent is the
plaintiff. The first respondent filed suit for declaration and mandatory
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C.R.P.(P.D).No.2325 of 2018
injunction in respect of the suit property. While pending suit, the first
petitioner filed petition for rejection of plaint and the same was dismissed.
Aggrieved by the same, the present civil revision petition has been filed.
3. Mr.M.V.Seshachari, the learned counsel for the petitioners
submitted that the suit is barred by limitation. The first respondent filed suit
for declaration of title in respect of the suit property for recovery of
possession in the year 2016 on the basis of the cause of action arose in the
month of January 1990. Even according to the first respondent, he came to
know the fact that the name board put up in plot No.62 was removed during
January 1990 itself and also came to understand that the first petitioner had
constructed a house in plot No.62 rather than plot No.61. Immediately, the
first respondent herein had spoken to the first petitioner about the exchange
of plots. Thereafter, the first respondent herein caused legal notice on
16.04.1990, thereby called upon the first petitioner for demolition of the
house constructed in plot No.62 and delivery of vacant possession of plot
No.62. The first respondent also will initiate appropriate criminal action as
against the first petitioner for trespass and other offences committed by the
first petitioner. Therefore, on the cause of action arose in the year 1990, the
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C.R.P.(P.D).No.2325 of 2018
present impugned suit has been filed only in the year 2016. The first
respondent ought to have filed the suit for recovery of possession on the
basis of the title within a period of twelve years from the date on which the
possession of the first petitioner become adverse to that of the first
respondent as per Article 64 of Limitation Act. Therefore, the essential
ingredient of adverse possession has been made out as per the plaint
averments, i.e. open, uninterrupted and continuous possession of the suit
property by the first petitioner with the knowledge of the first respondent
and acknowledging the title of true owner.
3.1 He further submitted that as per Section 9 of Limitation Act,
once the time period starts to run, then no subsequent disability or inability
to institute a suit or make an application, stops it. Therefore, the cause of
action arose for the impugned suit in the month of January 1990 itself and
the suit itself is barred by law of limitation. In fact, by order dated
15.09.2015, Sub Collector, Tiruvallur had set aside the report of Tahsildar,
Poonamallee Taluk and ordered for resurvey of the suit property. Therefore,
the said order is nothing to do with the cause of action to file the present
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C.R.P.(P.D).No.2325 of 2018
impugned suit. The specific case of the petitioners is that the first petitioner
constructed house in the plot No.61 and not in Plot No.62. Therefore, entire
claim of the first respondent is false and frivolous. Only in respect of
adverse possession, is made as per the averments of the plaint alone, since
for the purpose of deciding the application for rejection of plaint, the plaint
averments are alone to be considered. In support of his contention, he relied
upon the following judgments:
(i) V.Meenakshysundaram Vs.P.Shanmugam
reported in 2015 (6) MLJ 520
(ii) Hardesh Ordes Private Limited Vs. Hede and
Company reported in 2007 (5) SCC 614
(iii) K.Murali Vs. M.Mohamed Shaffir
reported in 2020 (1) CTC 38
4. Per contra, Mr.A.E.Chellaiah, Senior Counsel appearing for the
first respondent submitted that the first respondent filed suit for declaration
and mandatory injunction as against the first petitioner herein. Admittedly,
the first petitioner and the first respondent purchased the plot Nos.61 and 62
respectively. In fact, the first petitioner pledged the documents in respect of
the plot No.61 and obtained loan to construct house. There has been
continuous communication between the first petitioner and the first
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C.R.P.(P.D).No.2325 of 2018
respondent including the issuance of notice of the year 1990 and promise
was given by the first petitioner to the first respondent about amicable
settlement as both were working in the Tamil Nadu Public Service
Commission, Chennai. Whenever the first respondent approached the first
petitioner, he requested to wait till his retirement and thereafter he will settle
the matter, since it would affect his retirement. Even then, the first petitioner
did not come forward for amicable settlement.
4.1 He further submitted that the first respondent lodged
complaint. Both were summoned to attend the enquiry before the Revenue
Divisional Officer, Tiruvallur. On receipt of the report, the Sub Collector,
Tiruvallur instructed Tahsildar, Poonamallee to remeasure the plots and file
a report. Thereafter the first respondent caused legal notice on 07.03.2016,
thereby the second respondent herein advised the first respondent to
approach the Land Grabbing Cell for legal remedy. Therefore, the first
respondent approached by way of the present suit for declaration and
mandatory injunction. That apart, the cause of action in the present suit has
bundle of facts and issues. It has to be gone into by fulfledged trial by let in
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C.R.P.(P.D).No.2325 of 2018
evidence. It cannot be rejected in its limine. He also vehemently contended
that there is no continuous, uninterrupted possession of the suit property by
the petitioners. The first respondent filed documents from the year 1981 till
filing of the suit i.e. 30.03.2016. Therefore, the petitioners cannot claim
adverse possession on the plaint averments i.e. after issuance of notice in
the year 1990, the present suit has been filed in the year 2016. In support of
his contention, he relied upon the following judgments:
(i) State of Haryana Vs. Mukesh Kumar and others reported in
(2011) 10 SCC 404
(ii) Dagadabai (dead) by LR’s Vs. Abbas @ Gulab Rustum
Pinjari reported in 2017 (6) CTC 195
5. Heard, Mr.M.V.Seshachari, the learned counsel for the
petitioners, Mr.A.E.Chellaiah, Senior Counsel appearing for the first
respondent, and Mr.Edwin Prabakar, Government Advocate(CS) appearing
for the respondents 2 to 8.
6. The first petitioner is the first defendant and the first respondent
is the plaintiff. While pending the civil revision petition, the first petitioner
died and his legal heirs impleaded as petitioners 2 to 5 herein. The case of
the plaintiffs is that the deceased first defendant and the first respondent
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C.R.P.(P.D).No.2325 of 2018
herein were working in the Tamil Nadu Public Service Commission as
Junior Assistants and they purchased plot Nos.61 and 62 respectively. Plot
No.61 was purchased by the deceased first defendant and Plot No.62 was
purchased by the first respondent herein. The deceased first defendant
availed loan to construct a house. He obtained approved plan and mortgaged
title deed in respect of plot No.61 for availing loan. Thereafter, he
constructed a house in the plot No.62 instead of plot No.61 in the month of
January 1990. When the first respondent visited the suit property and
questioned about the same. Immediately, the deceased first defendant
undertook to settle the issue by exchanging plots by execution of exchange
deed. Even after several years, he did not come forward to exchange the
plots as undertaken by him. Therefore, the first respondent issued notice on
16.04.1990 thereby called upon the deceased first defendant for sorting out
the matter, failing which legal action will be initiated as follows:
(a) By issue of a notice under Section 80 CPC, to
the employer viz., the Government of Tamil Nadu rep. by the
Secretary to the Government of Tamil Nadu, Personnel and
Administrative Reforms (Per.M) Department, Fort.
St.George, Madras 600 009 as you had mortgaged the plot
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C.R.P.(P.D).No.2325 of 2018
No.61 in favour of Government of Tamil Nadu, to the
Collector of Madras who had sanctioned the loan for the
construction, and to the Chairman / Secretary, Tamil Nadu
Public Service Commission, Government Estate, Madras – 2
to bring to their notice your illegal acts and the misconducts
and for necessary actions against you in these regards.
(b) File a suit against you and the aforesaid
persons who are necessary parties to the suit for appropriate
reliefs and remedies viz. for demolition of the house
constructed by you on my client’s plot No.62, and for delivery
of vacant possession of the said plot No.62, of which my
client is the absolute owner, by a mandatory injunction to
you to demolish your house constructed on my client’s plot
and for recovery of all the damages caused to my client; and
(c) Without prejudice to the foregoing, (i.e. (a) &
(b) my client will also initiate appropriate criminal action
against you for criminal trespass, and for causing illegal loss
to my client and thereby making illegal gains for yourself
and for cheating my client and the Government of Tamil
Nadu and hold you liable for all the costs and consequences
incidental thereto.
7. The first defendant paid property tax in respect of the suit
property from the year 1982 to 1994. Thereafter, Village Administrative
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C.R.P.(P.D).No.2325 of 2018
Officer informed that there is construction of house and assessed to the
house tax by the first defendant herein. After obtaining encumbrance
certificate, the first respondent on 29.10.2010 had send representations to
the second defendant and other officials. Thereafter, by the representation
dated 01.11.2010 requested the fourth respondent to conduct enquiry. On
receipt of the same, by order dated 15.11.2010, the second respondent
issued letter to the deceased first defendant calling for explanation.
Thereafter enquiry was conducted by the second respondent and informed
the first respondent herein that the fourth defendant directed the Revenue
Department to conduct enquiry and survey the disputed site. Thereafter, the
first respondent also issued letter dated 22.10.2012 to the third respondent
herein. The Tahsildar, Poonamallee inspected the property and surveyed the
same. By the report dated 12.12.2012, the Tahsildar categorically stated that
the deceased first defendant constructed a house in plot No.62 which is
belong to the first respondent herein. Therefore, enquiry was conducted
from the year 2010 till the filing of the suit. Finally, by the order dated
15.09.2015, Sub Collector, Tiruvallur set aside the report of the Tahsildar,
Poonamallee and ordered for resurvey of the property.
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C.R.P.(P.D).No.2325 of 2018
8. Thereafter, the first respondent caused notice to the deceased
first defendant on 07.03.2016 and filed the present suit. Therefore, the cause
of action for filing the present suit till 07.03.2016 arose and the first
respondent herein though issued notice on 16.04.1990, thereafter
continuously taking appropriate action as against the deceased first
defendant. The cause of action in the present suit has bundle of facts and
circumstances. Therefore, the plaint cannot be rejected on the points raised
by the deceased first defendant and have to be gone into in fulfledged trial
by let in evidence. Therefore, the court below rightly dismissed the petition.
9. In view of the above discussion, the judgments relied upon by
the learned counsel for the petitioners are not helpful to the case on hand.
Accordingly, this civil revision petition is dismissed. Consequently,
connected miscellaneous petition is closed. No order as to costs.
14.07.2021
lok
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
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C.R.P.(P.D).No.2325 of 2018
G.K.ILANTHIRAIYAN,J.
lok
To
The Additional District Judge No.II
at Poonamallee
C.R.P.(PD) No.2325 of 2018
14.07.2021
https://www.mhc.tn.gov.in/judis/
