Madras High Court

Sarasvathi vs Maragatham on 27 July, 2021

SA No.750 of 2004

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.07.2021

CORAM:

THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE

SA No.750 of 2004
and
CMP No.5901 of 2004

1. Sarasvathi
2. Markandan
3. Selvaraj
4. Sellammal
5. Selvi ... Appellants

versus
Maragatham ... Respondent

Second Appeal filed under Section 100 of Civil Procedure Code
against the judgment and decree passed in A.S. No.32 of 2002 by the
Additional District Judge cum Fast Track Court No.5, Coimbatore at
Tiruppur, dated 06.11.2002 confirming the judgment and decree passed
in O.S. No.46 of 1999 by the District Munsif Cum Judicial Magistrate
Court, Avinashi dated 28.06.2001.

For Appellants : Mr.R.Govindaraj

For Respondent : Mr.C.R. Prasannan

https://www.mhc.tn.gov.in/judis/
1/20
SA No.750 of 2004

JUDGMENT

(Heard Video Conference)

This Second Appeal has been filed challenging the concurrent

findings of the Courts below.

2. The appellants are the defendants in the suit O.S. No.46 of 1999

on the file of the District Munsif cum Judicial Magistrate Court,

Avinashi. The suit was filed by the respondent / plaintiff against the

appellants / defendants seeking for recovery of possession of the suit

schedule property measuring 19 cents, which is situated on the western

side of the respondent / plaintiff's property which according to her, the

appellants / defendants have encroached.

3. It is the case of the respondent / plaintiff that she is the owner of

the land measuring 2.07 acres with specific boundaries in SF No.76/1,

out of the total extent of land measuring 4.14 acres. According to the

respondent / plaintiff originally, Palani Gounder sold 2.07 acres in SF

No.76/1 of Pachapalayam Village, Avinashi Taluk to the respondent

/plaintiff's mother Devariammal under a sale deed dated 21.11.1945. The

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SA No.750 of 2004

mother of the respondent / plaintiff, Devariammal, executed a registered

Will dated 03.07.1962 in favour of the respondent /plaintiff and

bequeathed the land measuring 2.07 acres. After her death, the

respondent / plaintiff became the absolute owner of the land measuring

2.07 acres, out of 4.14 acres in SF No.76/1. The appellants / defendants

1 to 5 are neighbours of the respondent / plaintiff. It is the case of the

respondent / plaintiff that they own adjacent lands measuring 2.07 acres

in SF No.76/1 situated on the western side of the property, as per their

sale deed dated 29.03.1961. It is the case of the respondent / plaintiff

that a false claim has been made by the appellants / defendants that they

are entitled to 2.26 acres, whereas according to the respondent / plaintiff,

they are entitled only to 2.07 acres in SF No.76/1. It is the case of the

respondent /plaintiff that the appellants / defendants have encroached 19

cents, which is the suit schedule property, which belongs to the

respondent /plaintiff. The suit has been filed by the respondent / plaintiff

on the ground that the appellants / defendants have encroached 19 cents

out of her property and therefore, she sought for recovery of possession.

4. A written statement has been filed by the appellants / defendants

before the Trial Court, wherein, they have pleaded that Patta No.86 in SF https://www.mhc.tn.gov.in/judis/

SA No.750 of 2004

No.76/1 measuring an extent of 2.26 acres has been issued in the name of

their predecessors in title, who were in possession of the said extent of

the land. According to them, they and their predecessors in title are in

possession of the entire extent of 2.26 acres, ever since 1912. They

would also plead that the suit is barred by the law of limitation, since, the

suit has been filed beyond the period of 12 years.

5. Issues were framed by the Trial Court and thereafter the suit

filed by the respondent / plaintiff was decreed in her favour by the Trial

Court by its judgment and decree dated 28.06.2001 in O.S. No.46 of

1999 and the relief of possession as sought for in the plaint was granted

in favour of the respondent / plaintiff.

6. The Trial Court while decreeing the suit in favour of the

respondent / plaintiff has given the following findings:

A) The respondent / plaintiff has proved his title for 2 acres and 7 cents in SF No.76/1 based on the documents viz., a) sale deed, dated 20.06.1939 marked as Ex.A1; b) sale deed, dated 21.11.1945, marked as Ex.A2, c) Will, dated 03.07.1962 marked as Ex.A3 and d) Kist receipts marked as Ex.A4.

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SA No.750 of 2004

B) The Trial Court has also taken note of the fact based on the oral evidence of DW1 that the surveyor appointed by the respondent /plaintiff to measure the suit schedule property was prevented from taking measurement by the 1st defendant in the suit schedule property three years prior to the filing of the suit which has been acknowledged by DW1 in his deposition.

C) The Trial Court has also taken note of the fact that the appellants / defendants have not denied in their written statement or in their deposition, the respondent /plaintiff's title as seen from Exs.A1 to A3.

D) The Trial Court has also observed that the appellants / defendants have also not challenged the Sale deed standing in the name of the respondent /plaintiff in respect of the land measuring 2.07 acres in the same survey number.

E) The Trial Court has also taken note of the fact that before granting patta for the entire extent of 2.26 acres, which is in excess of the land which was actually purchased by the appellants / defendants predecessors in title, no notice was given to the

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SA No.750 of 2004

respondent / plaintiff and therefore, the Trial Court has given a finding that Patta standing in the name of the appellants / defendants cannot be used as a document of title.

f) The Trial Court has also observed that appellants / defendants have also not raised the plea of adverse possession in their written statement and since no documents have also been marked as Exhibits on their side to prove that they are in possession of the suit property right from the year 1912, the plea of adverse possession over the suit schedule property measuring 19 cents was also rejected.

7. Aggrieved by the judgment and decree dated 28.06.2001 passed

by the Trial Court in O.S. No.46 of 1999, the appellants / defendants in

the suit preferred a regular appeal before the Lower Appellate Court in

A.S. No.32 of 2001.

8. The Lower Appellate Court in its judgment and decree dated

06.11.2002 confirmed the findings of the Trial Court and dismissed the

appeal filed by the appellants / defendants.

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SA No.750 of 2004

9. Aggrieved by the same, the appellants / defendants in the suit

have now preferred this Second Appeal before this Court.

10. This Court admitted the Second Appeal on 17.04.2004 by

formulating the following substantial question of law :

i) Whether the Courts below are right in decreeing the suit over looking the material evidence of D.W.2?

ii) Whether the Courts below have committed error in receiving the evidence of the plaintiff without any pleadings for decreeing the suit?

iii) Whether the Courts below have committed illegality to come to the conclusion that the defendants failed to prove their adverse possession by documentary evidence rejecting Exs.B-2 and B3?

11. Heard Mr.R.Govindaraj, learned counsel for the

appellants/defendants and Mr.C.R.Prasannan, learned counsel for the

respondent / plaintiff .

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SA No.750 of 2004

Submissions of the learned counsels

12. The learned counsel for the appellants would at the outset

submit that the suit filed by the respondent / plaintiff is barred by law of

limitation. He would submit that the predecessors in title of the

appellants / defendants are in possession of the suit schedule property,

ever since 1912. He would also submit that the Patta, Ex.B2 standing in

the name of the predecessors in title of the appellants/defendants

measuring 2.26 acres which includes the suit schedule property was

issued on 18.03.1987. He would submit that the said Patta proves that

the appellants / defendants are in possession of the suit schedule

property. He would also submit that the said patta for an extent of 2.26

acres has not been cancelled till date. Therefore, he would submit that ,

the suit filed by the respondent / plaintiff is not maintainable as the

appellants/defendants are in legal possession of the property and further,

the suit is also barred by the law of limitation as the suit was not filed

within 12 years from the date when the appellants/defendants

predecessor in title were put in possession of the property. According to

him, the Trial Court as well as the Lower Appellate Court have

concurrently committed a wrong by not giving due consideration to the

oral and documentary evidence produced by the appellants / defendants https://www.mhc.tn.gov.in/judis/

SA No.750 of 2004

which will clearly prove that they and their predecessors in title are in

possession of the suit schedule property, ever since 2012. According to

him, the Courts below have given a perverse finding ignoring the oral

and documentary evidence produced by the appellants / defendants.

13. Per contra, Mr.C.R.Prasannan, learned counsel for the

respondent / plaintiff drew the attention of this Court to Article 65 of the

Limitation Act, 1963 and would submit that unless and until the plea of

adverse possession was taken by the appellants / defendants in the

written statement, the limitation period of 12 years for filing of the suit

for recovery of possession will not get attracted. He then drew the

attention of this Court to the written statement filed by the appellants /

defendants in the suit and would point out that no such plea was taken by

them in their written statement.

14. He also drew the attention of this Court to the oral evidence of

DW1, who is the second defendant in the suit, wherein, he has admitted

that the appellants/defendants predecessor in title had purchased only

2.07 acres and not 2.26 acres. He would also draw the attention of this

Court to the admission made by DW1 in his deposition that no title https://www.mhc.tn.gov.in/judis/

SA No.750 of 2004

document has been filed by the appellants / defendants to prove that they

are the owners of the suit schedule property measuring 19 cents. He

further, drew the attention of this Court to the statement made by DW1

during the course of his cross examination that he does not know

directly as to whether his father was enjoying possession of the suit

schedule property measuring 19 cents.

15. The learned counsel also drew the attention of this Court to the

statement made by DW1 in his deposition that three years prior to the

filing of the suit, the 1st appellant / 1st defendant had prevented the

Surveyor appointed by the respondent / plaintiff to measure the suit

schedule property.

16. The learned counsel for the respondent / plaintiff would

therefore submit that the suit filed by the plaintiff is well within the

period of limitation as no plea of adverse possession was taken by the

appellants/defendants in the suit and no document of title was also

produced by the appellants / defendants to prove their title over the suit

schedule property measuring 19 cents. He would submit that the

respondent / plaintiff has established their title over the suit schedule https://www.mhc.tn.gov.in/judis/

SA No.750 of 2004

property by virtue of the sale deeds, dated 20.06.1939 and 21.11.1945,

which were marked as Exs.A1 & A2. In support of his submissions, the

learned counsel for the respondent/plaintiff would rely upon the

following authorities :

a) Saroop Singh versus Banto and others reported in (2005) 8 SCC 330;

b) Natesan versus Chinnachi Kandar & four others reported in 1996 (1) CTC 699;

c) Sethuraman and another versus Arulsamy and others reported in 2020 (5) CTC 719;

d) Subramanian and 2 others versus Karuppayee Ammal and 15 others reported in 1998 (I) CTC 79;

e) Dagadabai (Dead) by Legal Representatives versus Abbas Alias Gulab Rustum Pinjari reported in (2017) 13 SCC 705 and

f) A. Manickam versus Jayakumari and others reported in 2019 (3) CTC 558.

Discussion :

17. Admittedly, in the written statement filed by the

appellants/defendants in O.S. No.46/1999, no plea of adverse possession

was taken by them against the respondent /plaintiff. The appellants /

defendants in their deposition through DW1 has also admitted the fact

that no document of title stands in their name for the land measuring 19 https://www.mhc.tn.gov.in/judis/

SA No.750 of 2004

cents in SF No.76/1, which is the suit schedule property. They claim

legal possession only through the Patta for the land measuring 2.26 acres

in SF No.76/1 which includes the land measuring 2.07 acres which their

predecessors in title had purchased by a Sale deed, which has been

marked as an Exhibit before the Trial Court. The Trial Court as well as

Lower Appellate Court has concurrently held based on the evidence

available on record that the appellants/defendants are the owners of 2.07

acres in SF No.76/1 and not the larger extent of 2.26 acres as claimed by

them. The Trial Court as well as Lower Appellate Court has held that

though there is a patta standing in the name of the appellants / defendants

predecessors in title for the land measuring 2.26 acres, the said document

cannot be relied upon in view of the fact that the said patta has been

issued without notice to the respondent / plaintiff. The plea of limitation

raised by the appellants / defendants has also been rejected by the Courts

below on the ground that even prior to three years before filing of the

suit, the appellants / defendants have prevented the respondent/plaintiff

from measuring the suit schedule property through the assistance of a

surveyor. Hence, the Trial Court as well as the Lower Appellate Court

have given a concurrent finding that the suit filed by the respondent /

plaintiff is well within the period of limitation. https://www.mhc.tn.gov.in/judis/

SA No.750 of 2004

18. Article 64 and 65 of the Limitation Act, 1963 prescribes the

period of limitation for filing a suit for recovery of possession.

Article 64 and 65 of the Limitation Act reads as follows :- Description of suit Period of limitation Time from which period begins to run

64. For possession of Twelve years The date of dispossession immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed.

                      65. For possession of Twelve years                   When the possession of
                      immovable property                                   the defendant becomes
                                                                           adverse to the plaintiff.
                      or any interest therein
                      based on title.

19. Insofar as Article 64 of the Limitation Act, 1963 is concerned,

the same is not applicable to the facts of the instant case. In the instant

case, the respondent / plaintiff has established his title over the suit

schedule property through Sale deed, Ex.A2. The relief sought for in the

plaint is also based on Ex.A2. Both the Courts below have concurrently

held based on the evidence available on record that the respondent /

plaintiff has established her tittle over the suit schedule property by

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SA No.750 of 2004

virtue of Ex.A2, Sale deed. Article 64 of the Limitation Act, gets

attracted only in cases where the plaintiff is seeking recovery of

possession not based on title and when the plaintiff has been

dispossessed. Hence, this Court is of the considered view that Article 64

of the Limitation Act is not attracted for the facts of the instant case.

20. It is also clear from Article 65 of the Limitation Act that 12

years period is applicable only when the possession of the defendants

becomes adverse to the plaintiff.

21. In the case on hand, no plea of adverse possession was ever

taken by the appellants/ defendants in the suit as seen from their written

statement or from their deposition. The only contention raised by them

was that by virtue of patta issued for the extent of 2.26 acres which

includes the suit schedule property also they are the owners of the

property and that their possession cannot be disturbed.

22. When the respondent / plaintiff has established his title over

the suit schedule property by virtue of the sale deeds, dated 20.06.1939 &

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SA No.750 of 2004

21.11.1945 (Exs.A1 and A2) and when the plea of adverse possession

was never taken by the appellants / defendants, the suit filed by the

respondent / plaintiff is well within the period of limitation .

23. In the case of Saroop Singh versus Banto and others reported

in (2005) 8 SCC 330, the Hon'ble Supreme Court in paragraph 28 of the

said judgment has held as follows :-

28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, the plaintiff - respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant-appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred.

24. The aforesaid decision squarely supports the case of the

respondent / plaintiff as in this case also, the respondent / plaintiff has

been able to prove his title by virtue of Exs.A1 and A2 but the appellants

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SA No.750 of 2004

/ defendants have not taken the plea of adverse possession against the

respondent / plaintiff nor have they been able to establish by

documentary evidence that they are in adverse possession.

25. A single bench judgment of the Madras High Court in the case

of Sethuraman and another versus Arulsamy and others reported in

2020 (5) CTC 719 also supports the case of the respondent / plaintiff as

in that decision, also a learned Single Judge of this Court has held that

revenue records by themselves are not documents of title and there must

be an assertion of title, which has to be proved through other documents

of title and only then it will fortify the claim of title. In the case on hand

excepting for filing the Patta, which admittedly was issued in favour of

the appellants/ defendants predecessors in title without notice to the

respondent / plaintiff, no other document of title pertaining to the suit

schedule property measuring 19 cents were produced by the appellants /

defendants in the suit.

26. In another decision of the Madras High Court in the case of

Natesan versus Chinnachi Kandar & four others reported in 1996 (1) https://www.mhc.tn.gov.in/judis/

SA No.750 of 2004

CTC 699, a learned single Judge of this Court has also held that kist

receipts and documents are not sufficient to accept the plea of adverse

possession. In the said decision, a learned single Judge has held that

since in the written statement a specific plea has not been taken about

the adverse possession and therefore, production of patta and kist

receipts are not sufficient to prove adverse possession. As seen from the

aforesaid decision also, there must be a specific pleading of adverse

possession and only then the Court can adjudicate as to whether the said

plea can be accepted or not. In the case on hand, no such specific plea

was taken by the appellants / defendants.

27. In another decision of the Madras High Court in the case of

Subramanian and 2 others versus Karuppayee Ammal and 15 others

reported in 1998 (I) CTC 79, a learned Single Judge of this Court held

that patta is not a document of title and does not conclusively prove the

title of the property.

28. The learned counsel for the respondent /plaintiff had also

submitted that there is no substantial question of law involved in the

Second Appeal since the factual issues raised by the respective parties https://www.mhc.tn.gov.in/judis/

SA No.750 of 2004

have been adequately and correctly considered by the Courts below. In

support of the said submission he has relied upon the decision of the

Hon'ble Supreme court in the case of Dagadabai (Dead) by Legal

Representatives versus Abbas Alias Gulab Rustum Pinjari reported in

(2017) 13 SCC 705. In paragraph 15 of the aforesaid decision, the

Hon'ble Supreme Court has held as follows :-

15. Third, the plea of adverse possession being essentially a plea based on facts, it was required to be proved by the party raising it on the basis of proper pleadings and evidence. The burden to prove such plea was, therefore, on the defendant who had raised it. It was, therefore, necessary for him to have discharged the burden that lay on him in accordance with law. When both the courts below held and, in our view, rightly that the defendant has failed to prove the plea of adverse possession in relation to the suit land then such concurrent findings of fact were unimpeachable and binding on the High Court.

29. By applying the ratio laid down in the aforesaid decision, it is

clear that there is no substantial question of law involved in this Second

Appeal as both the Courts below have rightly held based on the materials

and evidence available on record that the appellants/defendants have

failed to discharge their burden of proving adverse possession as against

the respondent / plaintiff over the suit schedule property.

30. For the foregoing reasons, this Court does not find any error

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SA No.750 of 2004

in the findings of the Courts below and does not find any perversity in

the said findings. There are also no debatable issues of law involved in

this Second Appeal. Hence, there is no merit and accordingly, the