Madras High Court
Doraisamy Udayar (Deceased) vs Sivanandam Udayar on 4 October, 2021
S.A.No.50 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.10.2021
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.50 of 2005
1. Doraisamy Udayar (deceased)
2. D. Anandanam ...Appellants
2nd appellant brought on record as LR of the deceased
sole appellant vide order of court dated 25.06.2012
made in CMP Nos. 1048 to 1050/11 in S.A.
No.50/2005.
Vs.
1. Sivanandam Udayar
2. Poovayammal
3. Pachamuthy
4. Selvarasu
5. Ramalingam ...
Respondents
RR3 to 5 brought on record as LR of the deceased 1st
respondent vide order of court dated 26.02.2021 made
in CMP Nos.1070, 1071 & 1072/2011 in
S.A.No.50/2005
Prayer : Second Appeal filed under Section 100 of CPC, 1908 against
the decree and judgment dated 31.03.2003 passed in A.S. No.46 of
2000, on the file of the Subordinate Judge, Namakkal, setting aside the
decree and judgment dated 24.12.1999 passed in O.S. No.547 of 1983,
on the file of the District Munsif Court, Rasipuram.
For Appellants : Mr. Ragavendran
for Mr. Murali
Page 1 of 9
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S.A.No.50 of 2005
R2 to R5 : Mr.T. Dhanyakumar
JUDGMENT
The appellant is the plaintiff in O.S.No.547 of 1983 on the file
of the District Munsif Court, Rasipuram. He filed a suit for a declaration
of his title to the suit properties and for a permanent injunction
restraining the defendants from interfering with his peaceful possession
and enjoyment over the same.
2. For the sake of convenience, the parties are referred to as
per their ranking in the trial court and in appropriate places, their ranking
in the present appeal would also be indicated.
3. The case of the plaintiff is that the suit properties in Survey
No. 11/1A and Survey No.8/4 of Ayilpatti Village, Rasipuram Taluk,
admeasuring acres 2.75 and acres 0.77 respectively belong to him
absolutely through a registered sale deed dated 21.11.1961 (Ex.A4) and
he has been in possession and enjoyment of the same ever since the date
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S.A.No.50 of 2005
of purchase and also perfected his title by adverse possession and
prescription. According to the plaintiff, the defendants, taking advantage
that their property is lower in level compared to the plaintiff's properties,
are attempting to destroy the bund of the plaintiff's properties. Therefore,
he filed a suit for the reliefs as stated above.
4.The suit was resisted by the defendants on the following
grounds:
a) The plaintiff had purchased only 2.60 acres in Survey No.11/1 and
0.66 cents in Survey No.8/4B and that the properties of the plaintiff
and the defendants were not sub-divided when the plaintiff
purchased his properties through Ex.A4 on 21.11.1961.
b) The defendants had purchased the remaining extent in Survey
No.11/1 and Survey No.8/4B from Pachaimuthu Udaiyar and
others and have been in possession and enjoyment of the same.
c) It is also false to contend that the defendants attempted to destroy
the bund of the plaintiff's properties.
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S.A.No.50 of 2005
Therefore, they prayed for the dismissal of the suit.
5. The learned District Musnif, Rasipuram, after framing
necessary issues and after full contest, decreed the suit filed by the
plaintiff vide his decree and judgment dated 24.12.1999.
6. Aggrieved over the same, the defendants filed the appeal in
A.S.No.46 of 2000 before the Subordinate Court, Namakkal. The learned
Subordinate Judge reversed the findings of the trial Court vide his decree
and judgment dated 31.03.2003 and dismissed the suit filed by the
plaintiff on the ground that even as per the sale deed executed in favour
of the plaintiff, he is entitled to 2.60 acres in Survey No.11/1 and 0.66
cents in Survey No.8/4 of Ayilpatti Village, Rasipuram Taluk and that
though the plaintiff had claimed adverse possession and prescription, had
not stated in his plaint as to what was the date on which he came into
possession and how it had become hostile to the true owner and thus held
that the plaintiff has not also established his claim that he has perfected
his title over the suit properties by way of adverse possession and
prescription.
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S.A.No.50 of 2005
7. Aggrieved over the decree and judgment of the first
appellate court, now the present second appeal is filed by the plaintiff on
the following Substantial Question of law:
"Whether the lower appellate Court has failed
to consider the oral and documentary evidence adduced by
the plaintiff to show that he has prescribed title by adverse
possession?"
8. At the outset, it may be observed that the appellant/plaintiff.
in order to substantiate his title over the suit properties, relied on the sale
deed dated 21.11.1961 (Ex.A4) executed by one Perianna Chettiar in his
favour. Ex.A1 to Ex.A3 are the parent documents. A perusal of Ex.A1 to
Ex.A4 clearly shows that the plaintiff had purchased only 2.60 acres in
Survey No.11/1 and 0.66 cents in Survey No.8/4 of Ayilpatti Village,
Rasipuram Taluk. The measurements of the suit properties are indicated
as 2.73 acres in Survey No.11/1 and 0.77 cents in Survey No.8/4. The
plaintiff, as P.W.1, had also deposed that he is in possession and
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S.A.No.50 of 2005
enjoyment of the properties which were conveyed in his favour through
Ex.A4. He had further deposed in that he was not aware of the fact as to
who was in possession of the remaining extent of the land.
9. Mr.Ragavendran, learned counsel appearing for the
appellant, contended that the plaintiff purchased the properties mentioned
in Ex.A4 prior to sub-division and subsequently, when the properties
were sub-divided he became entitled to more extent of land than what
was mentioned in Ex.A1 and he had perfected his title in respect of that
land by way of adverse possession and prescription.
10. In order to prove adverse possession the plaintiff must
prove the following:
(1) Actual possession of the property.
(2) Such possession should be open, continuous, hostile
or adverse to the true owner without any interruption.
(3) The possession above stated should be understood to
mean dispossession of the true owner.
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S.A.No.50 of 2005
(4) Mere non user by the owner of the land is not
dispossession.
Since the plea of the adverse possession is not a pure
question of law but blended one of fact and law, a person who
claims adverse possession should plead and prove the following:
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 been continuous and
e) if possession was open and uninterrupted.
Absolutely there is no pleading in the plaint on the above aspects.
11. The first appellate Court, after analysing entire evidence on
record, had come to the conclusion that the plaintiff has not proved his
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S.A.No.50 of 2005
possession and enjoyment of entire extent of the properties and I do not
find any reason to interfere with the findings recorded by the first
appellate Court. Therefore, the Substantial Question of Law is answered
against the plaintiff.
11. In the result,
i. the second appeal is dismissed. No costs.
ii. the decree and judgment dated 31.03.2003 passed by
the learned Subordinate Judge, Namakkal, in A.S.
No.46 of 2000, are upheld.
iii. the decree and judgment dated 24.12.1999 passed by
the learned District Munsif, Rasipuram, in O.S.
No.547 of 1983, are set aside.
04.10.2021
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
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S.A.No.50 of 2005
R. HEMALATHA, J.
bga
To
1. The Subordinate Judge, Namakkal.
2. The District Munsif, Rasipuram,
3. The Section Officer, VR Section, High Court, Madras
S.A.No.50 of 2005
04.10.2021
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