Madras High Court
V.Kumaresan vs The District Collector on 21 March, 2022
S.A.(MD)No.291 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.291 of 2010
and
M.P.(MD)No.1 of 2010
1.V.Kumaresan
2.K.Sumathi ... Appellants / Appellants / Defendants 1 & 2
-Vs-
1.The District Collector,
Madurai District. ... 1st Respondent / 1st Respondent /
3rd Defendant
2.Indira Subramanian
3.T.S.Prabhakar
4.T.S.Sudhakar ... Respondents 2 to 4 / Respondent 2 to 4 /
Plaintiffs
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the Judgment and decree made in A.S.No.10 of 2005 on the
file of the Sub Court, Uthamapalayam, dated 16.12.2005, confirming the
judgment and decree made in O.S.No.30 of 1991 on the file of the District
Munsif Court, Uthamapalayam, dated 16.12.1997.
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S.A.(MD)No.291 of 2010
For Appellants : Mr.A.Arumugam
for M/s.Ajmal Associates
For R1 : Mr.N.Muthu Vijayan
Special Government Pleader
For R2 & R3 : Mr.S.Madhavan
For R4 : No appearance
JUDGMENT
The defendants 1 and 2 in O.S.No.30 of 1991 on the file of the
District Munsif Court, Uthamapalayam are the appellants in this second
appeal.
2. The plaintiff Dr.T.Subramanian filed the said suit seeking the relief
of declaration and recovery of possession from the appellants herein in
respect of the suit property. The State of Tamil Nadu was shown as the
third defendant. The appellants herein filed written statement controverting
the plaint averments. Based on the divergent pleadings, the trial court
framed the necessary issues. On the side of the plaintiffs, two witnesses
were examined. Ex.A1 to Ex.A7 were marked. The first defendant
examined himself as D.W.1 and one Kottaisamy was examined as D.W.2.
Ex.B1 to Ex.B27 were marked. An Advocate Commissioner was appointed.
He inspected the property twice once in 1991 and again in 1993. Both the
reports and plans were marked as court exhibits 1 to 4. After consideration
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of the evidence on record, the trial court by judgment and decree dated
16.12.1997 decreed the suit as prayed for. Aggrieved by the same, the
contesting defendants filed A.S.No.10 of 2005 before the Sub Court,
Uthamapalayam. The original plaintiff died during the pendency of the first
appeal and his legal heirs were brought on record. By the impugned
judgment and decree dated 16.12.2005, the first appellate court confirmed
the decision of the trial court and dismissed the appeal. Challenging the
same, this second appeal came to be filed. The second appeal was
admitted on 19.08.2010 on the following substantial question of law:-
“1. Whether the courts below are correct in law in deciding the case without
framing issues on identification of property, when there is a plea in the written
statement that the suit property does not fall under Ex.A1 as claimed by the
plaintiff / respondent? ”
After hearing the learned counsel on either side, the following additional
substantial question of law was framed on 11.03.2022.
“2. Whether the right of the plaintiffs to seek recovery of possession was
lost on account of the provisions contained under the Limitation Act, 1908?”
3. The learned counsel appearing for the appellants reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to answer the substantial questions of law in favour of the appellants
and set aside the impugned judgment and decree and dismiss the suit.
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S.A.(MD)No.291 of 2010
4. The learned counsel appearing for the respondents herein / legal
heirs of the original plaintiff submitted that no substantial question of law
arises for consideration and pressed 'for dismissal' of the appeal.
5. The case of the original plaintiff was that the suit property
measuring 60 cents is comprised in Survey No.26/1 and was a part of the
larger extent of land in Mallingapuram Village. According to him, it
originally belonged to two brothers namely Rajaiah and Samuel. Rajaiah
sold the sold property in favour of the original plaintiff's father namely
Thiyagaraja Mudaliar under Ex.A1 dated 22.11.1948. There was partition
between Rajaiah and his brother Samuel in the year 1971. Samuel sold a
portion what was allotted to him under Ex.B1 under Ex.B10 to Ex.B13 in
August and September 1984. Unfortunately, what was sold under Ex.B10
to Ex.B13 also included what was already sold to the plaintiff's father under
Ex.A1. He would further claim that the defendants committed
encroachment and occupied the property sold to the plaintiff's father under
Ex.A1. Therefore, the plaintiff moved the revenue authorities seeking
mutation of patta in his name. Even though he succeeded before the
Thasildar, it was later reversed by the higher authorities. The plaintiff was
left with no other option but to file the aforesaid suit for declaration and
recovery of possession in respect of the property covered under Ex.A1.
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S.A.(MD)No.291 of 2010
6. The learned counsel appearing for the appellant raised many
contentions. His first contention was that admittedly, the suit property
belonged not only to Rajaiah but also his brother Samuel. Partition between
them in respect of immovable properties took place only in the year 1971.
Therefore, Rajaiah had only an undivided interest in the old survey No.26.
He could not have sold any definite portion under Ex.A1 in favour of the
original plaintiff's father. In such an event, the remedy open to the plaintiff
was to file a suit for partition and not a suit for declaration and recovery of
possession. He would further contend that even though the original sale
deed-Ex.A1 dated 22.11.1948 was filed and marked by the plaintiff, under
Section 90 of the Indian Evidence Act, presumption can be drawn only in
respect of due execution and attestation. The contents of the document will
have to be independently proved. In this case, the contents of the document
have not at all been proved. He would also further state that the plaintiff
came out with a definite case that the suit property is comprised in Survey
No.26/1. According to him, the plaintiff failed to establish that his father
had taken possession of the suit property after its purchase. His pointed
contention is that before the present Limitation Act, 1963, the law of
limitation was governed by the Limitation Act, 1908. Under Article 142
and 144 of the Limitation Act, it was imperative on the plaintiff not only to
prove his title, but also to prove his possession within 12 years preceding
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S.A.(MD)No.291 of 2010
the date of institution of the suit. The plaintiff failed to show that he was
ever in possession of the suit property between the date of purchase under
Ex.A1 and promulgation of the new Limitation Act, 1963. Thus, he had
already lost his right and title over the suit property even before the new
Limitation Act, 1963 came into force. What was lost cannot be revived.
When once limitation started running, it cannot be arrested. Since the
plaintiff had failed to show that he was ever in possession of the suit
property, he submitted that the suit is hopelessly barred by limitation. He
also contended that unless the extent of land purchased by him is
established, it is not possible to show that they were holding any property in
excess or they had committed any encroachment. He lamented that the
report submitted by the Advocate Commissioner is absolutely unhelpful to
resolve the issue.
7. I carefully considered the rival contentions and went through the
evidence on record.
8. There cannot be any dispute that Thiru.Thiyagaraja Mudaliar/
father of the plaintiff had purchased a piece of land under Ex.A1 dated
22.11.1948. It is true that Rajaiah and his brother Samuel jointly owned the
said property. Samuel brother of Rajaiah does not appear to have
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S.A.(MD)No.291 of 2010
questioned the alienation made by his brother. Be that as it may, partition
of immovable properties took place between Rajaiah and Samuel in the year
1971. The terms of partition were reduced into writing and the partition
deed has been marked by the contesting defendants as Ex.B1 dated
26.05.1971. Under Ex.B1, Samuel was allotted 5 acres and 68 cents of land
in Survey No.26/1. The western portion is shown as tamarind grove
belonging to P.T.Rajan and Chinnappa Rowther. Ex.A5 is the settlement 'A'
register for the year 1942 (fasli 1353). It refers to the land holdings of
Rajaiah Nadar and Samuel Nadar. In the said 'A' register, Survey No.26
figures at two places. Survey No.26 had then not been sub divided. At one
place, the extent of survey number is mentioned as 4 acres and 68 cents and
in another place, it is mentioned as 2 acres and 9 cents.
9. One can therefore come to the conclusion that the undivided old
survey No.26 referred to Ex.A5 had total extent of 6 acres and 77 cents.
One is not quite sure as to when the sub division took place and what was
the extent of land comprised in Survey No.26/1 or Survey No.26/2. But
what was allotted to Samuel under Ex.B1 was 5 acres and 68 cents land in
Survey No.26/1. Samuel in turn sold 1 acre and 61 ¼ cents in favour of the
first defendant under Ex.B10. A reading of Ex.B10 would show that 79 ¼
cents was sold in Survey No.26/1A and 82 cents in Survey No.26/2C.
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S.A.(MD)No.291 of 2010
Added together, they come to 1 acre 61 ¼ cents. Under Ex.B11, 1 acre 61
¼ cents in Survey No.26/1A was sold in favour of the second defendant.
Under Ex.B12, 1 acre and 61 ¼ cents in Survey No.26/1A was sold in
favour of the first defendant in his capacity as guardian of the purchasers.
Under Ex.B13, another 1 acre and 61 ¼ cents of land in Survey No.26/1A is
sold in favour of the first defendant as guardian and father of the minor
children. Under Ex.B1-partition deed, Samuel was allotted only 5 acres and
63 cents of land in S.No.26. However, he had sold 6 acres and 44 cents in
favour of the contesting defendants under Ex.B10 to Ex.B13. Of-course, in
Ex.B10, the vendor Samuel referred to not only the partition deed dated
25.01.1971 but also a sale deed dated 03.05.1972.
10.The learned counsel appearing for the appellants would contend
that the sale under Ex.B10 was in two parts namely 79 ¼ cents in Survey
No.26/1A and 82 cents of land in Survey No.26/2C. The plaintiff had filed
the case only regarding R.S.No.26/1. Even though the suit schedule spoke
only of unsub-divided old survey number, the plaint averments are clear and
categorical that the suit property is located only in survey No.26/1.
Therefore, the contesting defendants had no occasion to justify their title
over 82 cents of land comprised in Survey No.26/2.
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S.A.(MD)No.291 of 2010
11.Though this contention of the learned counsel appearing for the
appellants is attractive, the fact remains that the Advocate Commissioner
had located the suit property covered under Ex.A1 as situated in R.S.No.
26/1C. The courts below have concurrently come to the conclusion that the
suit property is located in survey No.26/1. Before sub division, Survey No.
26 of Amalapuram Village measured a total extent of 6 acres and 77 cents.
I come to the conclusion that Samuel Nadar knew fully well the sale of the
suit property measuring 60 cents in favour of the original plaintiff's father
under Ex.A1 dated 22.11.1948 by his brother Rajaiah and that is why, when
the partition was entered into between them, what was allotted in favour of
Samuel was only 5.63 cents of land and not 6 acres and 77 cents. Of-
course, as rightly contended by the learned counsel appearing for the
appellants, the plaintiff was obliged to establish that he had possession
over the suit property before coming into force of the new Limitation Act.
The suit property was only a vacant site. The plaintiff by examining P.W.2-
Nalluthevar had established that they were in possession of the suit property
originally. That apart, in cases relating to vacant site, possession follows
title.
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S.A.(MD)No.291 of 2010
G.R.SWAMINATHAN.J.,
rmi
12. The substantial questions of law are answered against the
appellant. The impugned judgments and decrees are confirmed. The second
appeal is dismissed. No cost. Consequently, connected miscellaneous
petition is closed.
21.03.2022
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Sub Court, Uthamapalayam.
2.The District Munsif Court, Uthamapalayam
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.291 of 2010
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S.A.(MD)No.291 of 2010
21.03.2022
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