Madras High Court
J.Uma vs Haja Ammal @ Hathija Beevi (Died) on 8 June, 2022
S.A(MD).No.64 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.06.2022
CORAM:
THE HONOURABLE MR. JUSTICE N.SESHASAYEE
S.A(MD).No.64 of 2012
and
M.P(MD).Nos.1 and 2 of 2012
1.J.Uma
2.S.Suresh
3.A.Mohammed Mohaideen
.... Appellants/Appellants/
Defendants
Vs.
Haja Ammal @ Hathija Beevi (died) ..... Respondent/Respondent/Plaintiff
2.Peer Mohammed
3.Mohammed Hakkim
4.Habirahman
5.Imaran Kahan ... Respondents
(R2 to R5 are impleaded vide Court order dated 24.01.2022 in
CMP(MD).Nos.9773 to 9775 of 2021 in SA(MD).No.64 of 2012)
Prayer : Second Appeal is filed under Section 100 of Code of Civil
Procedure, to set aside the judgment and decree in A.S.No.102 of 2010
dated 23.06.2011 on the file of the Additional Sub Court, Thanjavur,
Thanjavur District confirming the judgment and decree passed in O.S.No.5
of 2008 on the file of the District Munsif Court, Thanjavur District dated
06.07.2010.
For Appellants : Mr.G.Gomathi Sankar
For Respondents : Mr.A.Arumugam
for M/s.Ajmal Associates
1/8
https://www.mhc.tn.gov.in/judis
S.A(MD).No.64 of 2012
JUDGMENT
The defendants, who had suffered a dismissal successively before the trial
Court and the First Appellate Court, are the appellants herein.
2.The suit was originally laid as O.S.No.5 of 2008 for declaration of title
and for ancillary decree of prohibitory injunction. The suit came to be
decreed by the trial Court, following which, the defendants had preferred
A.S.No.102 of 2010 before the Additional Sub-Court, Thanjavur and the
learned Additional Sub-Judge, Thanjavur, Vide its judgment dated
23.06.2013, dismissed the appeal. Hence, this Second Appeal is directed
against the said decree of the First Appellate Court.
3. The facts can be divided into two parts, since part of the same are
admitted on either side. Admitted facts are:
(a) A certain Meera Maideen Sahib owned a block of agriculture land
measuring an extent of 1.13 acres in S.No.366/1 of Kalyanapuram
Village, Thiruvaiyaru Taluk. He had two sons namely, Abdul Razack
and Syed Mohamed. On 11.11.1935, under Ex.A-1 Meera Maideen
Sahib settled the property in favour of his sons. As per the settlement
https://www.mhc.tn.gov.in/judis
S.A(MD).No.64 of 2012
deed, Syed Mohammed was given 1.0 acre and the balance 13 cents
was given to Abdul Razack;
(b) On 10.06.1953, Syed Mohamed sold his 1.0 acre to Balkis Bivi
under Ex.A-2. Balkis Bivi has two daughters namely, Hathija Bivi,
who is the plaintiff in the suit and one Rahima Bivi. These sisters
partitioned the property under Ex.A-3 dated 20.05.1999, in which,
Hathija Bivi was allotted 33.5 cents and Rahima Bivi was allotted
66.5 cents;
(c) Turning to Abdul Razack's branch, as already indicated, he is the
recipient of 13 cents under Ex.A-1 settlement deed. Abdul Razack's
son is Mohamed Maideen, who is the third defendant in the suit. On
25.01.2007, Mohamed Maideen executed Ex.B-1 sale deed in favour
of the first defendant in the suit. The first defendant, in turn, had sold
the property to the second defendant Vide sale deed dated
30.03.2007. The last mentioned sale deed was not marked in the suit.
4.1 The dispute arose in the following circumstance: While Abdul Razack
was admittedly allotted only 13 cents under Ex.A.1-settlement deed, his son
Mohamed Maideen had conveyed 53 cents under Ex.B-1 sale deed to the
https://www.mhc.tn.gov.in/judis
S.A(MD).No.64 of 2012
first defendant. This implies Mohamed Maideen had dealt with an
additional extent of 4 cents over and in excess of 13 cents that his father had
obtained under Ex.A-1 settlement deed.
4.2 The contentions of the third defendant in his written statement (Which
are adopted by other two defendants) are two fold:
● Sometime in 1970, an identical dispute arose between Balkis Beevi
and these defendants, which came to be resolved by Panchayat
convened at the instance of Balkis Beevi, in which a compromise was
arrived, as per which some 40 cents out of the extent purchased by
Balkis Beevi was given to these defendants; and at any rate the
defendants have prescribed title by adverse possession.
5.1 The dispute went to trial and before the trial Court Hathijaammal @
Hathija Bivi examined herself as P.W.1 and she examined two other
independent witnesses as P.W.2 and P.W.3. She has produced as many as
12 documents, which came to be marked as Ex.A-1 to Ex.A-12, of which,
Ex.A-12 is the patta passbook of the property and it is dated 02.01.2003. on
the side of the defendants, the third defendant examined himself as D.W.1.
The husband of the first defendant was examined as D.W.2 and second
https://www.mhc.tn.gov.in/judis
S.A(MD).No.64 of 2012
defendant was examined as D.W.5. Besides them, D.W.3, D.W.4 and D.W.
6 were examined, and on their side eleven documents were marked as
Ex.B-1 to Ex.B-11.
5.2 On appreciating the evidence before it, the trial Court dismissed the
defence of the defendants and decreed the suit. In the first appeal preferred
by the defendants in A.S.No.102 of 2010, the first appellate Court
concurred with the findings of the trial Court and arrived at a same
conclusion, and dismissed the appeal. Hence, the defendants are before this
Court in this second appeal.
6. The facts is admitted on the following substantial question of law:
Whether the appellants/defendants prove title by way of adverse
possession?
7. Heard Mr.Gomathi Shankar, learned counsel for the appellants and
Mr.A.Arumugam, learned counsel for the respondents. The learned counsel
for the appellants made a valiant effort to convince this Court that Ex.B-9 is
the patta issued to third defendant in 1985, and added that the suit is laid
only in the year 2008, which implies the third defendant has prescribed title
https://www.mhc.tn.gov.in/judis
S.A(MD).No.64 of 2012
to the property by adverse possession. He also submitted that the
defendants had produced other tax receipts etc.
8. This Court finds that the plea of adverse possession which the defendants
canvass get nullified with their alternate plea of title taken out in the written
statement. As already indicated, the defendants' primary contention was
that there was a panchayat in the year 1970, in which Balkis Beevi, the
mother of the plaintiff has parted with 40 cents in favour of the third
defendant. While there is no documentary evidence produced to
substantiate it, yet even if it is presumed as a plea available to the third
defendant, its foundation is that the third defendant had obtained an
additional extent of 40 cents based on the consent of Balkis Beevi. This in
essence project a case for the defense founded on title. Now, in the face of
this plea, the alternate plea of adverse possession cannot be accommodated,
for a plea of adverse possession requires hostility of possession against the
true owner and hence it cannot co-exist with a plea of title. In other words,
the plea of adverse possession is an inconsistent plea, and its effect gets
nullified by the principal plea of compromise in the year 1970.
9. Turning to Ex.B-9 patta, on which the defendants had pivoted their
https://www.mhc.tn.gov.in/judis
S.A(MD).No.64 of 2012
argument now, law is settled long long ago that patta is not a document of
title. More so, when the defendants find themselves on a slippery wicket
vis-a-vis, the plea of adverse possession.
10. To conclude, this Court does not find merit in the Second Appeal.
Accordingly, this Second Appeal is dismissed. No costs. Consequently,
connected Miscellaneous Petitions are closed.
08.06.2022
Index : Yes/No
Internet: Yes/No
rmk/cm
To
1.The Additional Sub Judge, Thanjavur, Thanjavur District.
2.The District Munsif Judge, Thanjavur District.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
N.SESHASAYEE, J.,
https://www.mhc.tn.gov.in/judis
S.A(MD).No.64 of 2012
rmk/cm
S.A(MD).No.64 of 2012
08.06.2022
https://www.mhc.tn.gov.in/judis
