Madras High Court
Ramanathan (Died) ..../ vs Selvaraj on 28 July, 2021
S.A.No.824 of 2001
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 31.01.2022
JUDGMENT PRONOUNDED ON : 07.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.No.824 of 2001
and CMP(MD).Nos. 7480 and 7642 of 2021
1.Ramanathan (died) ..../Appellant/Plaintiff
2.R.Swaminathan ...Appellant
Vs.
1.Selvaraj
2.Kathija Beevi
3.M.S.Basheer Ali
4.M.S.Kamarudden
5.M.S.Sakubar
6.R.Chellamani
7.Sathiyabama ....Respondents
(The 2nd appellant is brought on record as legal heir of the deceased sole
appellant vide order dated 28.07.2021)
(Respondents 2 to 5 are the legal heirs of Late.Sheik Dawood Rowther,
second defendant in the suit)
1/23
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S.A.No.824 of 2001
(Respondents 6 & 7 are impleaded vide Court order dated 22.09.2021)
PRAYER : Second Appeal is filed under Section 100 of C.P.C, against
the judgment and decree made in A.S.No.3 of 1999 on the file of the Sub
Court, Pattukkottai dated 19.02.2001 confirming the judgment and
decree made in O.S.No.342 of 1988 on the file of the District Munsif
Court, Pattukkottai, dated 10.09.1996.
For Appellant : Mr.M.P.Senthil
For R1 : Mr.V.K.Vijayaragavan
For R2 : No appearance
R3 & R4 : Dispensed with
R5 : died
For R6 & R7 : Mr.M.Rahuman Khan
JUDGMENT
The plaintiff is the appellant.
2.The plaintiff filed O.S.No.342 of 1988 before the District Munsif
Court, Pattukkottai for declaration of title and recovery of possession.
The said suit was dismissed by the trial Court. The plaintiff had filed
A.S.No.3 of 1999 before the Subordinate Court, Pattukkottai. The
learned Subordinate Judge was pleased to confirm the judgment and
decree of the trial Court and dismissed the appeal. As against the
concurrent findings, the plaintiff has filed the above second appeal.
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S.A.No.824 of 2001
3.The plaintiff had contended that the first item of the suit schedule
property originally belonged to the plaintiff's father Saminatha Iyer and
his brother Venkatrama Iyer. After the death of Venkatrama Iyer, the
property devolved upon his son Narayanasamy Iyer. Hence, the plaintiff's
father Saminatha Iyer and Narayanasamy Iyer entered into an oral
partition, in which, the northern 33 cents of the first item was allotted to
the share of plaintiff's father Saminatha Iyer. He has planted Coconut
saplings and he was in enjoyment of the suit schedule properties. The
plaintiff is the only legal heir of the said Saminatha Iyer and hence, after
his father's death, he is enjoyment of the suit schedule properties after
mutating the revenue records in his favour.
4.According to the plaintiff, the second item of the suit schedule
property namely the northern 40 cents was orally allotted to the share of
the plaintiff's father and he was in enjoyment of the same. After his
death, the said second item devolved upon the plaintiff by inheritance
and the plaintiff is in enjoyment of the suit schedule property. The
plaintiff further contended that in the year 1984, the defendants have
trespassed into the suit first item of the property and has constructed a
Tea shop in the second item of the property. The first defendant claims
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S.A.No.824 of 2001
that he has got title over the suit schedule property and hence, the present
suit for declaration of title and recovery of possession. The plaintiff had
further contended that the second defendant is completely stranger to the
suit schedule property. Since the first defendant claims some right from
the second defendant, the second defendant has been impleaded in the
suit.
5.The first defendant filed a written statement contending that the
suit schedule properties originally belonged to one Iyyasami Iyer and
after his death, it devolved upon his four sons namely Ramachandra Iyer,
Kuppusamy Iyer, Saminatha Iyer ( Plaintiff's father) and Venkatrama
Iyer. The first defendant had further contended that the suit first item of
the property fell into a share of one Nataraja Iyer who is the son of
Kuppusamy Iyer. The said Nataraja Iyer has executed a registered sale
deed on 18.07.1942 under Exhibit A7 in favour of one Mohammed
Sultan Rowther. According to the first defendant, the suit first item is an
inam land and the same was taken by the Government of Tamil Nadu
under Act 26 of Tamil Nadu Estates (Abolition and Conversion into
Ryotwari) Act, 1948. The defendants had further contended that the said
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S.A.No.824 of 2001
Mohammed Sultan Rowther's son is the second defendant namely Sheik
Dawood Rowther. Under Act 26 of 1948, patta was granted in favour of
the second defendant.
6.The first defendant has further contended that right from the
period of Nataraja Iyer, the first defendant's father namely Karuppan
Ambalam was in possession of the suit schedule first item and after his
death, his mother Kamatchi Ammal is in possession of the said property.
According to the first defendant, now they have attorned the tenancy in
favour of the second defendant and they are regularly paying the rent to
him.
7.The first defendant further contended that his mother Kamatchi
Ammal has entered into a sale agreement with the second defendant on
25.07.1978 under Exhibit B15 and they are in possession of the first item
pursuant to the sale agreement.
8.The first defendant had further contended that as far as the suit
second item of the property is concerned, he is in possession of the suit
second item for more than 15 years. When the father of the plaintiff
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S.A.No.824 of 2001
claimed that the said second item is his property, the mother of the first
defendant namely Kamatchi Ammal has entered into an oral sale
agreement for purchasing the second item from the father of the plaintiff
namely Saminatha Iyer. Accordingly, a sum of Rs.4,000/- was paid by
the first defendant's mother to the said Saminatha Iyer. Despite several
Panchayats and requests made by the mother of the first defendant,
Saminatha Iyer has not executed a sale deed pursuant to the said sale
agreement. Hence, according to the first defendant, he is in possession of
the suit schedule property even prior to the sale agreement.
9.The first defendant had further contended that neither the
plaintiff nor his father Saminatha Iyer is in possession of the suit
schedule property from time immemorial. Only the first defendant's
father and thereafter, his mother and the first defendant are in possession
and enjoyment of both items of the suit schedule properties. Since the
plaintiff has not made any claim to the suit schedule property, the first
defendant has acquired title by adverse possession for both the items of
the suit schedule properties.
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S.A.No.824 of 2001
10.The second defendant had filed a written statement supporting
the case of the first defendant with regard to the first item of the suit
schedule property. The second defendant had contended that the property
that was purchased by his father under Exhibit A7 is the subject matter of
sale agreement under Exhibit A15. However, the second defendant do
not make any rival claim over the second item of the suit schedule
property in the written statement.
11.The trial Court after considering the oral and documentary
evidence arrived at a finding that the plaintiff has neither established his
title over the suit schedule property nor his possession over the suit
schedule property. The trial Court further found that except Exhibit A1
which is a patta issued by the revenue authority, no other document or
title has been filed on the side of the plaintiff to establish his title or
possession over the suit schedule property. However, the trial Court
further found that the defendants have also not established their title over
the first item of the property. The trial Court further found that the
defendants have also not established that they are in possession of the
second item, pursuant to the oral sale agreement with the plaintiff's
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S.A.No.824 of 2001
family. However, the trial Court proceeded to dismiss the suit on the
ground that the defendants have established their possession beyond the
statutory period and they are acquired title by adverse possession. Based
upon the said findings, the trial Court dismissed the suit.
12.The First Appellate Court concurred with the findings of the
trial Court and found that the plaintiff has not established whether there
was any partition in his family and which portion was allotted to the
plaintiff's father. The First Appellate Court further found that the
defendants have not established their acquisition of title by adverse
possession with regard to the first item of the suit schedule property. The
First Appellate Court also rejected the oral sale agreement projected by
the defendants with regard to the second item of the suit schedule
property. However, the First Appellate Court came to a conclusion that
the first defendant has acquired title by adverse possession over the
second item of the suit schedule property. Based upon the said findings,
the First Appellate Court confirmed the judgment and decree of the trial
Court and dismissed the appeal. As against the concurrent findings, the
plaintiff has filed the above second appeal.
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S.A.No.824 of 2001
13.The second appeal has been admitted on the following
substantial questions of law:
1).Whether the judgement and decree of the Courts below
are sustainable in law, when the appellant has proved his right and
the partition among the appellant's ancestors in a manner known
to law by producing Ex.A12 and A13 which contain referring the
name of the appellant's ancestor in the boundary description?
2).Whether the judgment and decree of the Courts below
relating to the second item of the suit property are sustainable in
law, when the Courts below have categorically given findings
against the defendants regarding agreement of sale and plea of
adverse possession?
3)Whether the Courts below is right in holding that the
defendants have prescribed title to the suit property by way of
adverse possession while answering issue No.2 when the
defendants have not pleaded and proved the same in a manner
known to law?”
14.The learned counsel for the appellant had contended that the
suit schedule properties originally belonged to his father Saminatha Iyer
and his brother Venkatrama Iyer and in the oral partition, the suit
properties were allotted to the share of Saminatha Iyer. According to the
plaintiff, he is possession and enjoyment of the suit schedule property.
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S.A.No.824 of 2001
However, in the year 1984, the defendants have encroached upon the
first item and have put up Tea shop in the second item of the suit
schedule property. The trial Court as well as the Appellate Court have
not properly appreciated the pleadings and evidence let in by either side
and have erroneously dismissed the claim of the plaintiff. The learned
counsel for the appellant further contended that the defendants in the
written statement have admitted the title of the plaintiff's family. The
defendants have only contended that based upon Exhibit A7 sale deed,
they are claiming title to the first item of the suit schedule properties.
However, the trial Court as well as the First Appellate Court have
rejected the claim of the first defendant based upon Exhibit A7 sale deed
in favour of Mohammed Sultan Rowther said to have been executed by
Nataraja Iyer, S/o.Kuppusamy Iyer.
15.The learned counsel for the appellant further contended that as
regards the second item of the suit schedule property is concerned, the
defendants in the written statement have specifically admitted the title of
the plaintiff's father. It is their specific case that they have parted with a
sum of Rs.4,000/- towards sale consideration for purchasing the second
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S.A.No.824 of 2001
item from the plaintiff's father. However, according to the defendants,
the plaintiff's father was giving lame excuses for not executing the sale
deed in his favour. Even before the alleged oral sale agreement, the first
defendant's family is in possession of the suit schedule property right
from the days of the first defendant's father Karuppan Ambalam. Hence,
the first defendant claimed adverse possession based upon his long
possession over the second item of the suit schedule property. He further
contended that when the first defendant has admitted the title of the
plaintiff's father, his possession is only traceable to that of a possession
pursuant to an oral sale agreement. The first defendant or his ancestors
have not taken any steps to get the sale deed executed, if at all, the said
sale agreement is genuine. When the possession of the first defendant is
traceable to a sale agreement, it could only be construed to be a
permissive possession and it could never be termed to be an adverse
possession over the vendor of the property. Hence, he contended that the
trial Court as well as the Appellate Court have erroneously conferred the
benefit of adverse possession on the defendants and has non-suited the
plaintiff. The learned counsel further contended that as far as the case of
the first defendant with regard to the first item of the suit schedule
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S.A.No.824 of 2001
property is concerned, he is in possession pursuant to a sale agreement
entered into with the second defendant. The second defendant claims
title only on the basis of Exhibit A7 said to have been executed by one of
the family members of the plaintiff's family. The trial Court as well as
the Appellate Court have categorically found that the second defendant
title is not traceable to Exhibit A4 sale deed. In fact, the second
defendant in his written statement has not claimed adverse possession to
the suit schedule property as against the plaintiff. When the alleged
vendor of the first defendant with regard to the first item has not claimed
any adverse possession to the suit schedule property, the agreement
holder namely the first defendant cannot claim adverse possession over
the first item of the suit schedule property. Hence, he prayed for allowed
the second appeal.
16.Per contra, the learned counsel for the respondents had
contended that the suit first item of the property was originally sold by
Nataraja Iyer son of Kuppusamy Iyer in favour of father of the second
defendant under Exhibit A7 on 18.07.1942. During inam settlement
proceedings, patta has been granted in favour of the second defendant.
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S.A.No.824 of 2001
However, the plaintiff or any one from his family have not objected to
the patta granted in favour of the second defendant during the inam
settlement proceedings under Act 26 of 1948. Hence, the plaintiff and his
family member have lost title to the first item of the suit schedule
property.
17.The learned counsel for the respondents further contended that
the first defendant is in possession of the suit schedule properties even
during the days when the property was owned by the plaintiff's family.
Thereafter, the first item of the suit schedule property was sold by
Natarajan in favour of the second defendant's father and after the said
sale, the first defendant have attorned the tenancy in favour of the second
defendant's father. Thereafter, the first defendant's mother has entered
into a sale agreement with the second defendant and they are in
possession of the first item based upon the said sale agreement. The
plaintiff has completely lost his title to the suit schedule property and
hence, the Courts below have rightly non-suited the plaintiff. Hence, he
prayed for dismissal of the second appeal.
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S.A.No.824 of 2001
18.I have considered the submissions made on either side.
19.It is the case of the plaintiff that the suit schedule properties
were jointly owned by his father Saminatha Iyer and his brother
Venkatrama Iyer. According to the plaintiff, the first item was allotted to
the share of his father in an oral partition and after the death of his father,
he is in possession and enjoyment of the suit schedule property. The
plaintiff relied upon Exhibit A1 patta to establish his possession and title
over the suit schedule property. On the other hand, the defendants have
contended that one of the family members of the plaintiff namely
Nataraja Iyer has sold away the suit first item under Exhibit A7 in favour
of one Mohammed Sultan Rowther on 18.07.1943. The first defendant
claims that he is originally a lessee under the said Mohammed Sultan
Rowther, but later become an agreement holder of the son of the said
Mohammed Sultan Rowther who is the second defendant in the suit.
20.As far as the second item of the suit schedule property is
concerned, it is the case of the plaintiff that the suit schedule properties
were allotted to the share of the father Saminatha Iyer in an oral
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S.A.No.824 of 2001
partition. The defendants have also admitted the title of the plaintiff's
father with regard to the second item of the suit schedule property.
However, the defendants pleaded that the plaintiff's father namely
Saminatha Iyer has entered into an oral sale agreement with the first
defendant's mother with regard to the second item of the suit schedule
property and received a sum of Rs.4,000/- towards sale consideration.
Despite several requests and panchayats, the plaintiff's father has not
executed a sale deed in favour of the first defendant's family. Further the
first defendant had contended that even before the said sale agreement,
they were in possession in their own right of the suit schedule property.
Hence, they have acquired title by adverse possession as against the
plaintiff's family.
21.The issue that requires to be considered by this Court is that
whether the plaintiff has established his title over the suit schedule
property and if so, whether he has lost his title by way of adverse
possession to the first defendant or not.
22.The plaintiff's title over the suit first item is admitted by the
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S.A.No.824 of 2001
defendants in Paragraph No.4 of the written statement. Their only
contention is that during the inam settlement proceedings under Act 26
of 1948, patta was granted in favour of one Mohammed Sultan Rowther
which was not objected to by any one of the family members of the
plaintiff. The defendants have further contended that they are having sale
agreement with the second defendant who is the son of the said
Mohammed Sultan Rowther in whose favour the patta was granted
during inam settlement proceedings. The defendants have not relied
upon Exhibit A7 sale deed in their written statement for tracing their title
with regard to the first item of the suit schedule property. The second
defendant in his written statement though claimed that he has purchased
the suit first item from the family members of the plaintiff under Exhibit
A7, the trial Court in Paragraph No.20 has categorically found that the
defendants have not established that the first item of the suit schedule
property belonged to them only on the basis of Exhibit A7. The trial
Court has further found that under Exhibit A7, only 1/3rd share has been
sold by the said Nataraja Iyer in favour of Mohammed Sultan Rowther
without mentioning any specific boundaries. Under Exhibit B15, it is
mentioned as north of the eastern side in Survey No.94/3 ( first item).
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S.A.No.824 of 2001
Hence, it is clear that the defendants have not established that they are in
possession of the first item of the suit schedule property either on the
basis of Exhibit A7 or on the basis of Exhibit B15.
23.When the defendants have specifically admitted the title of the
plaintiff's family, the minor discrepancies in sequencing the title on the
side of the plaintiff cannot result in non-suiting the plaintiff, especially
when the defendants admit title of the plaintiff's family with regard to the
first item of the suit schedule property. That apart, the possession of the
first defendant is shown only as lessee with regard to the first item and
thereafter, alleged to be continued as an agreement holder from the
second defendant. Either as a lessee or as an agreement holder, the first
defendant's possession can only be construed to be a permissive
possession. That apart, the second defendant has not claimed any adverse
possession with regard to the first item of the suit schedule property in
his written statement. Hence, this Court comes to a conclusion that the
plaintiff has established his title over the suit first item of the property
and when the defendants have not established their adverse possession
over the said item, the plaintiff is entitled to a decree for recovery of
possession.
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S.A.No.824 of 2001
24.As far as the second item of the property is concerned, the first
defendant in Paragraph No.11 of the written statement has admitted the
title of the plaintiff and they have entered into an oral sale agreement
with regard to the second item. Even according to the first defendant, he
has paid a sum of Rs.4,000/- towards sale consideration. However, no
steps have been initiated by the first defendant to get a sale deed in his
favour. Any possession which is pursuant to a sale agreement can only
be construed to be a permissive possession on behalf of the vendor.
Hence, the first defendant could not be heard to contend that they have
acquired title to the second item on the basis of adverse possession. The
trial Court as well as the Appellate Court have not properly appreciated
the fact that the first defendant admits title of the plaintiff's father with
regard to the second item and has entered into an agreement for sale with
regard to the said property. In fact, the second defendant in his written
statement has not made any claim to the second item of the suit schedule
property.
25.One of the main ingredients to constitute a plea of adverse
possession is the person in occupation of the property should have
animus to hold the said property adverse to that of the original owner of
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S.A.No.824 of 2001
the property. In the present case, as regards the second item of the
property, the defendants have neither pleaded nor proved they have
animus to hold that the said property adverse to that of the plaintiff or his
family members. When the main ingredient of animus is absent, the plea
of adverse possession is not legally sustainable.
26.The appellant has filed CMP(MD).No.7480 of 2021 to receive
the sale deed dated 05.07.1943 as an additional evidence. No proper
reason has been assigned on the side of the appellant for not presenting
these documents before the Courts below. The second appeal is pending
from the year 2001 onwards, but the present application has been filed
after a period of 20 years without assigning any proper reason. Hence, I
do not find any reason to allow the said application. CMP(MD).No.7480
of 2021 stands dismissed.
27.CMP(MD).No.7642 of 2021 has been filed by some third
parties to get themselves impleaded in the second appeal. In the said
petition, it is contended that they are also legal heirs of the
late.Ramanathan. However, they have not been impleaded as legal heirs.
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S.A.No.824 of 2001
According to the petitioner, O.S.No.44 of 2019 is pending on the file of
the Additional District Court, Pattukkottai challenging the authority of
the alleged sale dated 02.07.2018. The present dispute is between the
family of Saminatha Iyer and the defendants who are third parties to the
family. Any decision in the second appeal will not in any way affect the
rights of other legal heirs of the deceased Ramanathan. The present
second appeal decides only the lis between the family of Saminatha Iyer
and the defendants herein. The dispute interse within the family of
Saminatha Iyer and the validity of the sale can very well be decided in
the pending suit. The present application in CMP(MD).No.7642 of 2021
is dismissed as unnecessary.
28.The trial Court as well as the Appellate Court have not properly
appreciated the written statement filed by the defendants 1 and 2.
Without considering the scope of the dispute raised by the defendants,
the Courts below have erroneously placed the burden on the plaintiff.
When the defendants have specifically admitted the title of the plaintiff's
family with regard to the first and second item of the suit schedule
properties, it is for the defendants to establish their character of
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S.A.No.824 of 2001
possession over the suit schedule properties and plead and prove the
adverse possession in order to non-suit the plaintiff. Without considering
the written statement of the defendants, the Courts below have
erroneously non-suited the plaintiff.
29.In view of the above said discussion, the judgment and decree
of the Courts below are set aside. All the substantial questions of law are
answered in favour of the appellant. The suit in O.S.No.342 of 1988 on
the file of the District Munsif Court, Pattukkottai is decreed as prayed
for. The second appeal is allowed. No costs. Consequently, connected
miscellaneous petitions are closed.
07.06.2022
Index : Yes / No
Internet : Yes / No
msa
https://www.mhc.tn.gov.in/judis
S.A.No.824 of 2001
To
1.The Subordinate Judge,
Pattukkottai
2.The District Munsif,
Pattukkottai
3.The Section Officer
V.R.Section
Madurai Bench of Madras High Court
Madurai
https://www.mhc.tn.gov.in/judis
S.A.No.824 of 2001
R.VIJAYAKUMAR,J.
msa
Pre-delivery Judgment made in
S.A.No.824 of 2001
and CMP(MD).Nos. 7480 and 7642 of 2021
07.06.2022
https://www.mhc.tn.gov.in/judis
