Manicka Konar vs Vadivel Konar
2021 Latest Caselaw 11498 Mad

                                                                    S.A.(MD)No.827 of 2001


                        BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                            DATED : 09.06.2021

                                                 CORAM

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                           S.A.(MD)No.827 of 2001
                1.Manicka Konar
                2.Ramaiah Konar (Died)
                3.Sivapackiyam (Died)
                4.Anjammal
                5.Karuppiah Konar (Died)
                6.Subramanian
                7.V.Baskaran
                8.V.Krishnamoorthy
                9.R.Savithiri
                10.J.Vasanthan
                11.S.Kaliammal
                12.R.Rasin
                (Appellants 7 to 12 are brought on record as LRs
                of the deceased 3rd appellant vide order dated
                15.11.2016 in C.M.P.(MD)Nos.9939 to 9941 of
                2016 in S.A.No.827 of 2001 by VMVJ)
                13.R.Ramayee
                14.R.Durairaj
                15.R.Rengasamy
                16.S.Dhanalakshmi
                17.R.Rajendran
                18.S.Amudha
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                                                                               S.A.(MD)No.827 of 2001


                19.M.Chandra
                20.R.Pandian                                              ... Appellants
                (Appellants 13 to 20 are brought on record as
                LRs of the deceased 2nd appellant vide order
                dated 20.09.2018 in C.M.P.(MD)Nos.11035 and
                11306 of 2017 in S.A.No.827 of 2001 by CVKJ)

                                                          Vs.

                1.Vadivel Konar
                2.Saratha
                3.Iyappan                                                 ... Respondents
                (Respondents 2 and 3 are brought on record as
                LRs of the deceased sole respondent vide order
                dated 15.11.2016 in C.M.P.(MD)Nos.9942 to
                9945 of 2016 in S.A.No.827 of 2001 by VMVJ))


                Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,

                against the decree and judgment dated 28.03.2001, made in A.S.No.27 of 2000

                on the file of the Sub Court, Pattukkottai, confirming the decree and judgment,

                dated 27.03.2000 made in O.S.No.692 of 1993 on the file of the

                District Munisf Court, Pattukkottai.



                                   For Appellants   : Mr.M.P.Senthil

                                   For Respondents : Mr.S.Subbiah, Senior Counsel,
                                                         For Mr.S.R.Sathan Boopathy.




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                                                                               S.A.(MD)No.827 of 2001


                                                  JUDGEMENT

The defendants in O.S.No.692 of 1993 on the file of the District Munsif

Court, Pattukkottai are the appellants in this second appeal. The said suit was

instituted by one Vadivel Konar against Asiammal and the appellants herein.

Asiammal was none other the mother of the defendants 2 to 7. The case of the

plaintiff was that first defendant/Asiammal was permitted to enjoy the property

by way of leave and license from the year 1984 in the suit property that belongs

to him. Since she attempted to setup an adverse claim by effecting mutation in

the revenue records, the plaintiff moved the revenue authorities. The revenue

authorities made it clear that the plaintiff will have to establish his case only

before the jurisdictional civil court. Therefore, the suit was filed seeking the

relief of declaration as well as recovery of possession. After the suit was filed,

before writ statement could be filed, Asiammal passed away. The third

defendant/Ramaiah Konar filed written statement. The stand taken in the

written statement was that the suit property originally belonged to one Rama

Konar. It was further claimed that Rama Konar had two wives. Veerapa Konar,

the father of the plaintiff/Vadivel Konar was born through the first wife while

Asiammal was born through the second wife. When the plaintiff's father was

alive, he had orally gifted the suit property in favour of Asiammal and that for

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S.A.(MD)No.827 of 2001

more than half a century, Asiammal was enjoying the property. The house

standing in the suit property was also constructed only by Asiammal. For more

than 35 years, tax is being assessed in respect of the property in the name of

Ramaiah Konar/D3. A plea of adverse possession was also projected in the

written statement.

2.The plaintiff/Vadivel Konar examined himself as P.W.1 and Exs.A1 to

A21 were marked through him. Ramaiah Konar examined himself as D.W.1

and Alagar, Rajappan and Subbiah Konar were examined as D.W.2, D.W.3 and

D.W.4 and Exs.B1 to B31 were marked through them.

3.The learned trial judge after a consideration of the evidence on record

decreed the suit as prayed by judgment and decree dated 27.03.2000.

Questioning the same, the defendants filed A.S.No.27 of 2000 before the Sub

Court, Pattukkottai. The first appellate court by judgment and decree dated

28.03.2001 dismissed the appeal and confirmed the judgment and decree

passed by the trial court. Challenging the same, this second appeal was filed.

4.The second appeal was admitted to decide the following substantial

questions of law:-

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S.A.(MD)No.827 of 2001

“1.Having allowed the application under Order 31 Rule 27 and marked the document Ex.B.32, is the lower appellate court right in not giving an opportunity to the defendants to prove the boundary recitals (84 L.W. 691)? and

2.Whether the lower appellate court is right in not considering the plea of adverse possession raised by the defendants?”

5.Heard the learned counsel appearing for the appellants and the learned

senior counsel appearing for the respondents.

6.The learned counsel appearing for the appellants reiterated the

contentions projected in the memorandum of grounds and called upon this

Court to answer the substantial questions of law in favour of the appellants and

reverse the judgments and decree passed by the courts below. He strongly

contended that a mere look at Exs.B12 to B31 would show that the suit

property was assessed in the name of Ramaiah Konar at least since 1961-62

onwards. According to him, the courts below erred in rejecting the said

documents on the ground that the name of Asiammal was not found in the said

documents. Ramaiah Konar/D3 was none other than the son of Asiammal/D1.

In the written statement also, the plea taken was that the property was assessed

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S.A.(MD)No.827 of 2001

in the name of Ramaiah Konar. The courts below went completely wrong in

holding that Exs.B12 to B31 do not pertain to the suit property.

7.He also pointed out that before the first appellate court, additional

evidence was adduced. Ex.B32 dated 15.07.1985 is a sale deed pertaining to

the sale of an adjacent land. In the said sale deed, the property was described

as bounded on the one side by the land belonging to Asiammal. The learned

counsel for the appellant would state that having permitted the appellants to

mark Ex.B32 by way of additional evidence, the procedure laid down in Order

41 Rule 28 should have been followed. He faulted the first appellate court for

not following the said procedure. He also would strongly state that when the

defendants had been enjoying the property as their own property right from

1961 onwards, the Courts below erred in holding that the plea of adverse

possession has not been established.

8.Per contra, the learned senior counsel appearing for the respondents

submitted that the Courts below have correctly appreciated the evidence on

record and rightly negatived the defence put forth by the defendants. He also

would state that mere payment of house tax in the name of the third defendant

would not in any way show that they were possession of the property adverse

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S.A.(MD)No.827 of 2001

to the title of the plaintiff. He also would state that the plaintiff had

convincingly established that the suit property belonged only to the plaintiff's

family and there is absolutely no evidence to show that Asiammal was the half

sister of the plaintiff's father. In any event, there is not even a scarp of

evidence to show that there was any oral gift. He would also contend that

when the property belongs to the plaintiff, such a oral gift would not have been

made by his father.

9.The learned senior counsel relied on the following decisions:-

“1.Sennimalai Gounder (Died) v. Addl. Dist. Magistrate & Dist. Revenue Officer reported in 2019 (4) CTC 341.

2.Babloo Pasi v. State of Jharkhand reported in (2008) 13 SCC 133.

3.Nallapa Gounder & Others v. Pazhanimuthu & Others reported in 2021-1-L.W. 804.

4.Birjesh Kumar v. Shardabi (Dead) by L.Rs reported in 2021 (1) CTC 123.

5.Chenrayan v. Kaveri (Died) reported in 2020 (5) CTC

6.M.Durai v. Muthu reported in (2007) 3 SCC 114.

7.Shri Uttam Chand (D) v. Nathu Ram (D) reported in (2020) 1 MLJ 837.”

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S.A.(MD)No.827 of 2001

10.I carefully considered the rival contentions and went through the

evidence on record.

11.As regards the first substantial question of law, it needs only to be

stated to be rejected. The first appellate court had admitted the additional

evidence and of course following the procedure laid down in Order 41 Rules 27

and 28 of C.P.C. But then, the appellants are the beneficiaries of the said

erroneous approach. If at all, it is only the respondents who can complaint that

the first appellate court did not follow the correct procedure. When the

respondents have not made any complaint regarding infraction of the

procedure, I fail to understand as to how, the aforesaid issue can be said to

constitute a substantial question of law arising for my determination. The first

substantial of law is answered against the appellant.

12.As regards the contentions that the courts below have not considered

the plea of adverse possession, I must sustain the argument put forth by the

learned senior counsel appearing for the respondents. In the written statement,

there is only a passing plea as regards adverse possession. The primary

defence of the defendants is anchored on their contention that the property was

orally gifted by the father of the plaintiff to the first defendant. The plea of

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S.A.(MD)No.827 of 2001

adverse possession has been raised more as a contingent or fallback defence.

The judgment reported in 2020 (5) CTC 448 [Chenrayan v. Kaveri (Died)]

directly answers the contention urged by the appellants' counsel. In paragraphs

10 and 11 of the said judgment, the Hon'ble Judge held as follows:-

“10. The law on prescription of title by adverse possession is too old, and too well firmed up in our jurisprudence, that it does not require an elaborate statement. 'Adverse possession', as the very expression explains, is holding possession adverse to the interest of the one in who the ownership to the property is vested. What is significant here is not the possession, but the animus or intent, hostile to the interest of the title holder of the property (with which possession is held). It is not the duration of the possession, or its continuity that matters to law to divest title of the true owner, but the animus or the hostile intent of the one who enters upon the property of another. This possession must be open enough to caution the true owner of the hostile intent of the non-owner to possess an immovable property. Hence, mere long and continuous possession of an immovable for over twelve years does not convert possession into prescriptive title, unless a hostile animus to hold possession in open defiance of the title of the true owner characterises the same. See Ravinder Kaur Grewal & Others Vs Manjit Kaur & Others [2019(4)CTC 936 (SC)] L.N.Aswathama & another Vs P. Prakash [(2009)13 SCC 229] and Nanje gowda alias Gowda (dead) by Lrs., & another Vs Ramegowda [(2018)1 SCC 574], to refer a few in the endless list of authorities on the topic.

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S.A.(MD)No.827 of 2001

11. Turning to the pleadings of the defendants, the relevant portion in the written statement reads: “..even if here is any defect in their title to the suit property, they have perfected the same by way of adverse possession.” The reliance of the defendants has always been on the oral sale, which is their primary line of defense, and as they were uncertain about the quality of this defense, they bring in a secondary line of defense in adverse possession as a contingent strategy. But the plea of adverse possession is a stand alone concept and it cannot be fitted with a plea of ownership. They are inconsistent, and though they can be pleaded, yet the party pleading alternate and inconsistent plea has to elect one, and cannot press both the plea simultaneously. Here, the attempt of the defendants is not even to introduce an alternate and inconsistent plea, but to plea adverse possession only as a contingent plea. The character of pleading in the written statement creates a situation that only if the Court finds the title founded on the oral sale defective, then the court ought to consider the plea of adverse possession. The election, the court may have to take for the defendants. And, where is the requisite animus in the entire exercise of the defendants to demonstrate that they had hostile intent to hold possession from the time they entered possession, open to the knowledge of the 3rd plaintiff? Have they entered possession of the suit property with the knowledge that it still belonged to the 3rd plaintiff, and with a hostile intent to hold the property adverse to the title of the 3rd plaintiff? The answers to both necessarily have to be negative. The structure of the defense that the defendants have provided creates an impossibility of establishing it. This Court finds that plea of adverse possession has not been established by the defendants/appellants”

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S.A.(MD)No.827 of 2001

13.In the decision reported 2021-1-L.W. 804 (Nallapa Gounder &

Others v. Pazhanimuthu & Others), a learned Judge of this Court had held as

follows:-

30. Though, there are number of judgments to buttress the above

conclusion, it is suffice to quote the above judgment of the Hon'ble

Supreme Court in Karnataka Board of Wakf vs. Government of India

reported in (2004) 10 SCC 779, which held as below:-

“11.Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b). what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed.”

31. In Annakili vs. A. Vedanayagam reported in (2007) 14 SCC 308, this Court emphasized that mere possession of land would not ripen into a possessory tile. The possessor must have animus possidendi and hold the land adverse to the tile of the true owner. Moreover, he must continue in that capacity for the period prescribed under the Limitation Act.”

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S.A.(MD)No.827 of 2001

14.In the written statement, the defendants must have taken a categorical

stand as to when they came into possession and what was the nature of

possession and whether the factum of adverse possession was known to the

other party. In the case on hand, there is absolutely no pleading or evidence in

this regard. In the evidence also, the defendants have not demonstrated as to

when their possession became adverse to the title of the plaintiff.

15.The learned senior counsel took me through the deposition of

Ramaiah Konar (D.W.1). A mere look at the cross examination would indicate

that he confessed his ignorance on several fundamental aspects. Therefore, the

testimony of Ramaiah Konar in whose name the house tax receipts are standing

is absolutely unhelpful to the case of the defendants.

16.Another major contention urged by the learned senior counsel also

finds favour with me. I went through Exs.B.12 to B.31. Though the courts

below have indicated that these documents do not pertain to the suit property,

I have to necessarily hold that they appear to relate the suit property only. But

this co-relation has not been effectively substantiated by the defendants. Be

that as it may, the documents only indicate that tax was collected in the name of

Ramaiah Konar. There is nothing on record to show that Ramaiah Konar paid

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S.A.(MD)No.827 of 2001

the taxes in his capacity as owner of the property. Even that would not have

been sufficient. The fact that Ramaiah Konar was remitting tax in the capacity

of owner must have been made known to the plaintiff. Only then, it would

have become adverse. Since these aspects have not at all been established, the

courts below rightly decreed the suit and I have to necessarily answer the

second substantial question of law also against the appellants.

17.I have to make yet another observation. The learned counsel for the

appellants would state that the plaintiff had come out with a false case that the

defendants were inducted as permissive occupants only in the year 1984, when

the documents convincingly demonstrate that they were in possession of the

property for more than forty years prior thereto.

18.Though I must sustain this contention put forth by the learned counsel

for the appellants, still that would not weaken the case of the plaintiff in any

manner. The consistent case of the plaintiff is that the first defendant/Asiammal

was inducted as permissive occupant. The year 1984 may not make any

difference. This is because, as rightly pointed out by the learned senior counsel

for the respondents, the law under the new Limitation Act is not what it was

under the old Act. He drew my attention to the decision of the Hon'ble Supreme

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S.A.(MD)No.827 of 2001

Court reported in (2007) 3 SCC 114 (M.Durai v. Muthu). The Hon'ble

Supreme Court held as follows:-

“7. The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis--vis Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the old Limitation Act, the Plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession.”

19.In the case on hand, the plaintiff had convincingly established his

title. Therefore, the burden was entirely on the defendants to show that they

perfected their title by adverse possession. The foregoing discussion would

clearly show that the defendants have completely failed to discharge the burden

cast on them. Therefore, the second substantial question of law also has to be

necessarily answered against the appellants. The impugned judgements and

decree are confirmed and the second appeal is dismissed. No costs.

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                Index              : Yes / No
                Internet           : Yes/ No
                ias

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                                                                                    S.A.(MD)No.827 of 2001

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 Court, Pattukkottai.

2.The District Munsif, Pattukkottai.

3.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.

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S.A.(MD)No.827 of 2001

G.R.SWAMINATHAN, J.

ias

S.A.(MD)No.827 of 2001

09.06.2021

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