Madras High Court
B.Suseela vs A.P.Rangarao (Died) on 8 June, 2023
A.S.No.1123 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.06.2023
CORAM:
THE HON'BLE Mrs.JUSTICE V.BHAVANI SUBBAROYAN
A.S.No.1123 of 2015
B.Suseela ... Appellant
Vs.
A.P.Rangarao (Died)
A.Mukundiah (2nd plaintiff died)
(recorded as the LR of the deceased
2nd plaintiff as per order in memo
dated 26.11.2014)
S.Sathyavathi
R2 brought on record as Lrs of the
deceased sole respondent viz.,
(A.P.Rangarao) vide court order
dated 28.06.2022 made in
C.M.P.No.3926 of 022 in A.S.No.1123
of 2015) ... Respondent
Appeal Suit filed under Section 96 Order 41 Rule 1 of CPC to set
aside the Judgment and decree dated 26.06.2015 passed in O.S.No.9556
of 2010 on the file of the learned VI Additional Judge, City Civil Court,
Chennai.
For Petitioner : Mr. T.Srinivasaraghavan
For Respondent : Mr.R.Dasaratha Rao
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A.S.No.1123 of 2015
JUDGMENT
The present Revision has been filed to set aside the Judgment and
decree dated 26.06.2015 passed in O.S.No.9556 of 2010 on the file of the
learned VI Additional Judge, City Civil Court, Chennai.
2. The brief facts of the case are as follows:-
The appellant is the defendant in O.S.No.9556 of 2010 and
A.P.Rangarao and A.Mukundiah who were deceased had filed O.S.No.9556
of 2010 to direct the appellant / defendant to deliver possession of the suit
property described in the schedule after removing the superstructure
illegally put by the appellant / defendant and if she fails to do so, sought a
direction to remove the superstructure at plaintiffs' cost and recover it from
the defendant and to pay Rs.18,000/- towards damages and continue to pay
at Rs.500/- p.m., till date of delivery of possession. The present respondent,
viz., Sathyavathi, is the legal heir of A.P.Rangarao. The written statement
was filed by the appellant / defendant. The court below upon considering
the submissions, going through the proof affidavits, documents and framing
the issues, had decreed the said suit with cost by directing the appellant /
defendant to deliver possession of the suit property described in the
schedule after removing the superstructure put up by the appellant /
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A.S.No.1123 of 2015
defendant within three months. Further the deceased plaintiff,
A.P.Rangarao was directed to file separate proceedings under Order 22
Rule 12 of CPC with regard to the relief of damages. As against the same,
the present appeal suit has been filed.
3. The contention of the learned counsel for the appellant /defendant
are as follows:-
(i) The suit land was in possession of one Muthu and after his death,
his legal heirs, viz., Pooranadevi, Bakthavathsalam and Suhamathi sold the
land to one Sadullah Basha under unregistered Sale deed dated
24.04.1982. The said Sadullah Basha and their children sold the property
to one K.Sethumadhavan by sale deed dated 09.11.1983 and the said
Sethumadhavan sold 2419 sq.ft., to one Saraswathi and remaining 2944
Sq.ft., of land to the appellant / defendant under sale deed dated
06.09.1984. Thereafter, the appellant / defendant constructed the house as
per the legal sanction and obtained patta on the basis of registered
documents. However, without going through the documents of the title
produced by the appellant, Saraswathi and others, the District Collector
came to a wrong conclusion and ordered the cancellation of patta.
(ii) Further, the deceased plaintiffs admitted that when the land was
sold, there were some trespassers and it was also recited in the sale deed
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A.S.No.1123 of 2015
that symbolic possession was given. Also, not only the appellant, but the
adjacent owners,Saraswathi and others had constructed superstructures on
the land and the said Muthu, Sadullah Basha and Sethumadhavan were in
possession continuously. Neither the said Denduluri Vaidiyanatha
Krishnamoorthy nor his heirs took any action for recovery of possession of
land. That apart, steps for recovery of possession has not been taken
within the statutory period of limitation. However, the court below had not
considered any of the pleadings and hence seeks to set aside the Judgment
passed by the court below and allow the present appeal suit.
4. The learned counsel for the petitioner in support of his contention,
has relied on the following Judgments:-
(i) Judgment of the Hon'ble Supreme Court reported in AIR (38) 1951
Supreme Court 469 [Collector of Bombay Vs. Municipal Corporation of the
City of Bombay and Others]
(ii) Judgment of the Hon'ble Supreme Court reported in AIR 1970
Supreme Court 1778 [State of West Bengal Vs. The Dalhousie Institute
Society]
(iii) Judgment of the Hon'ble Supreme Court reported in 2005 – 1 –
L.W.730 [Karnataka Board of Wakf Vs. Government of India & Others]
(iv) Judgment of Hon'ble Supreme Court reported in (2007) 6
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A.S.No.1123 of 2015
Supreme Court Cases 59 [P.T.Munichikkanna Reddy and Others Vs.
Revamma and Others]
(v) Judgment of Hon'ble Supreme Court reported in 2006 (5) CTC
378 [T.Anjanappa and Others Vs.Somalingappa & Another]
(vi) Judgment of Hon'ble Supreme Court reported in (2007) 14
Supreme Court Cases 308 [Annakili Vs. A.Vedanayagam & Others]
(vii) Judgment of Hon'ble Supreme Court reported in (2017) 6 CTC
Page 195 (SC) [Dagadabai (dead) by Lrs., Vs., Abbas]
(viii) Judgment of Hon'ble Supreme Court reported in (2004) 10
Supreme Court Cases 779 [Karnataka Board of Wakf Vs. Government of
India and Others]
(ix) Judgment of Madurai Bench of this Court reported in (2011) 1
MLJ 515 [Chinnappa (died) and others Vs. Marudhan & Others
(x) Judgment of this Court reported in 2010 – 3 – L.W. 892
[K.Saraswathy Vs. The State of Tamilnadu rep. By the Collector of Chennai,
Chennai – 3]
(xi) Judgment of this Court reported in S.A.No.279 of 2010
[N.Thirugnanasambandam and Another Vs. R.Sundararaj and Another]
4. Per contra, the contention of learned counsel for the respondent /
plaintiff are as follows:-
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A.S.No.1123 of 2015
(i) The vacant property described in schedule forms part of a largest
extent of vacant side measuring about 6 ½ grounds situated in T.S.No.15,
Block No.3, No.1, Jamunabai street, sembiam perambur, Chennai – 11,
owned by late Denduluri Vaidyanatha Krishnamurthy by virtue of sale deed
dated 05.04.1948. The said land was in possession of the said Denduluri
Vaidyanatha Krishnamurthy till his death and thereafter, his legal heirs, wife,
four sons and two daughters were in possession of the same by paying
urban land tax. Since the said family shifted their residence to their native
place at Andhrapradesh, they appointed the first plaintiff as their power
agent to look after the suit property, since it was a vacant land.
(ii) When the deceased plaintiffs had inspected the suit property, it
was found that the appellant / defendant has put up a superstructure
illegally and that obtained bogus patta, thereafter, on the complaint made by
the deceased 1st plaintiff and after enquiry, patta was cancelled on the
ground that the land has no link with the original owners of the property
holder vide proceedings no.J4/69381/93 dated 13.08.1996. Thereafter, the
legal heirs of Denduluri Vaidyanatha Krishnamurthy executed a sale deed
in favour of the deceased 1st plaintiff in respect of 4 ½ grounds and
executed a sale deed in favour of the 2nd plaintiff in respect of 2 grounds
and as such, the deceased plaintiffs are the owners of the entire suit
schedule property measuring to an extent of 6 ½ grounds.
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A.S.No.1123 of 2015
(iii) In fact, when the property was sold to the deceased plaintiffs by
the legal heirs of Denduluri Vaidyanatha Krishnamurthy, there were some
trespassers and hence it was recited in the sale deed dated 14.02.1996 that
symbolic possession was given in respect of the portion of land occupied by
the trespassers. The appellant / defendant was fully aware of the same and
any sale deed purported to have been obtained from K.Sethumadavan, who
himself has no title to the property to convey the same to the appellant /
defendant, will not convey any right to the appellant / defendant. The court
below rightly decreed the suit and there is no flaw warranting interference,
thereby pleaded to dismiss the suit.
5. The learned counsel for the respondent / plaintiff in support of his
contention has relied on the Judgment of this Court in C.S.No.552 of 2011
[A.P.Rangarao & Another Vs. S.A.M.Naina Mohamed]
6. Heard the learned counsel on either side and perused the
documents and the citations placed on record.
7. Upon considering the present case, it is relevant to note that the
appellant / defendant claims title on the following grounds:
(a) One Muthu was in possession of the suit schedule property for a
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A.S.No.1123 of 2015
period of 40 years and one Sadhula Basha was tenant under the said Muthu
for a period of 15 years.
(b) The legal heirs of Muthu, viz., Poornadevi, Bakthavatsalam and
Sudhamathi sold the land to Sadhulla Basha vide unregistered sale deed
dated 24.04.1982.
However, there is no supporting documents to establish the above said
transactions.
(c) The said Sadhula Basha executed a settlement deed in favour of
his children, registered as document no.2190 of 1983 dated 09.11.1983 in
the office of the Sub-Registrar, Sembium (Ex.B.1).
(d) One K.Sethumadhavan purchased 5350 Sq.ft., from Sadhula
Basha and his legal heirs and registered as Document No.5014 of 1983
dated 09.11.1983 in the office of the Sub-Register, Sembium.
(e) Thereafter, the appellant, viz., Suseela, purchased the property
from Sethumadhavan measuring an extent of 2944 sq., ft., and registered
as document no.3096 of 1984 dated 06.09.1984 in the office of the Sub-
Registrar, Sembium (Ex.B.2).
8. On the contrary, it is pertinent to point out that the deceased-1 st
plaintiff claims title on the following grounds:-
(a) One V.S.Govinda Swamy Chetty purchased the huge extent of
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vacant lands by way of a court auction from the official assignee of this
Court, vide sale deed dated 23.08.1940. [There is no supporting documents
to establish the same].
(b) Thereafter, one Chandra Sekara Reddy purchased the same from
the said V.S.Govinda Swamy Chetty vide sale deed dated 27.01.1945
registered as Doc.No.97 of 1945 (Ex.A.8).
(c) Subsequently, Denduluri Vaidyanatha Krishnamurthy purchased
the suit mentioned property from Chandra sekara Reddy vide sale deed
dated 05.04.1948 registered as Document no.659 of 1948 in the office of
the Sub-Regitrar, Sembium (Ex.A.1) The said Denduluri Vaidyanatha
Krishnamurthy died in the year 1975 leaving behind his wife, four sons and
two daughters as his legal heirs. The said legal heirs obtained patta for the
suit schedule property and has been paying tax.
(d) Since the legal heirs of Denduluri Vaidyanatha Krishnamurthy
settled at Andhrapradesh, they have appointed the 1st plaintiff in the suit,
viz., A.P.Rangarao as their agent to look after the property and on
inspection, it was found that the appellant had put up superstructure illegally
and obtained bogus patta and on verification, the said patta was cancelled
by the District collector on the application of the 1st plaintiff vide proceedings
no.J4/69381/93 dated 13.08.1996. Thereafter, the 1st plaintiff in the suit,
viz., A.P.Rangarao and 2nd plaintiff in the suit, viz., A.Mukundiah have
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purchased 4 ½ grounds each from the legal heirs of Denduluri Vaidyanatha
Krishnamurthy (wife, 4 sons and 2 daughters) vide sale deed dated
15.02.1996 registered as document nos.991 and 992 of 1996 in the office
of the Sub-registrar, Sembiam (Exs.A.3 and A.4) respectively.
9. It is pertinent to note that the court below has framed as long as six
issues for consideration, among those issues, 2, 3 and 5, [(2) Whether the
defendant and her vendors had perfected their title by means of adverse
possession (3) Whether the title of the vendors of the plaintiff got
extinguished as stated by the defendant (5) Whether the suit is barred by
limitation] were dealt with at first the instance and Issue nos.1,4 and 6
[(1) Whether the plaintiffs are entitled for recovery of possession of the suit
property; (4) Whether the plaintiff is entitled for damages as prayed (6) To
what other relief the plaintiff is entitled to] were dealt with thereafter. On
considering the entire documents and proof affidavits, the court below
decreed the suit.
10. Taking note of the present facts of the case and upon perusing
the documents filed on record, the following issues arises for consideration
before this Court, which are as follows:-
1. Whether the appellant has proved her adverse possession ?
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2. Whether the suit is barred by limitation?
11. In order to deal with the issue no.1, it is necessary to extract the
relevant portion of the judgment of Hon'ble Apex Court in Karnataka
Board of Wakf Vs. Government of India and ors., (16.04.2004 – SC)
Manu/SC/0377/2004 wherein it is held that “it is for the defendant to clearly
plead and establish all facts necessary to establish his adverse possession”
and among other things, it is held as follows:-
“11. In the eye of law, an owner would be deemed to be
in possession of a property so long as there is no intrusion.
Non-use of the property by the owner even for a long time
won't affect his title. But the position will be altered when
another person takes possession of the property and asserts a
right over it. Adverse possession is a hostile possession by
clearly asserting a hostile title in denial of the title of true owner.
It is a well settled principle that a party claiming adverse
possession must prove that his possession is 'nec vi, nec clam,
nec precario' that is, peaceful, open and continuous. The
possession must be adequate in continuity, in publicity and in
extent to show that their possession is adverse to the true
owner. It must start with a wrongful disposition of the rightful
owner and be actual, visible, exclusive, hostile and continued
over the statutory period. Physical fact of exclusive possession
and the animus posited 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
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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.A person pleading adverse possession has no
equities in his favor. Since he is trying to defeat the rights of
true owner, it is for him to clearly plead and establish all facts
necessary to establish his adverse possession.
(Dr. Mahesh Chand Sharma v. Raj Kumari Sharma
MANU/SC/0231/1996 : AIR1996SC869:)
12. Applying the above said Rule enunciated by the Hon'ble Apex
Court referred supra to the present case on hand, it is clear that the
appellant / defendant, claims adverse possessesion stating that the suit
mentioned property was owned by her predecessor over a period 55 years
prior to the year 1983, however, able to establish documents only from the
year 1983 by relying upon a settlement deed executed by the said Sadhula
Basha with respect to the suit property in favour of his children, registered
as Document No.2190 of 1983 dated 20.05.1983 (Ex.B.1). Further,
K.Sethumadhavan, purchased 5350 Sq.Ft., from the said Sadhula Basha
and his heirs vide registered as Doc.No.5014 of 1983 dated 09.11.1983 and
thereafter, on 06.09.1984, the appellant purchased the property measuring
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2944 Sq.Ft., from Sethumadhavan and registered as Doc.No.3096 of 1984.
Further, the factum of possession of appellant / defendant was known to the
1st plaintiff, which is evident from the sale deed dated 14.02.1996, Ex.A.3,
wherein it is mentioned that “a) Advance paid on 01.02.1993, a sum of
Rs.65,000/- by way of State Bank of India, Mint Terminus Branch,
Madras 79, D.D.No.378625 dated 01.02.1993 b) The balance of
Rs.10,000/- (Rupees ten thousand only) agreed to be received before
the Registrar at the time of registration of this sale deed, the receipt
of total sum of Rs.75,000/- (Rupees seventy five thousand only) being
the entire sale consideration the vendors do hereby acknowledge
admit and acquit the purchaser from any further payment”. Hence it
is clear that the appellant was in uninterrupted peaceful possession of the
subject mentioned property.
13. As far as the Issue No.2, viz., 'whether the suit is barred by
limitation' is concerned, it is necessary to take note of Article 65 of the
Limitation Act, wherein it is mentioned that if one person has taken
possession of another person’s property, the aggrieved person can file the
suit for recovery of possession of that immovable property within 12 years
from the date of possession. That apart, Section 27 of the Limitation Act,
1963 provides that if the agreed party failed to institute the suit for
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possession of the immovable property within 12 years, after the expiry of 12
years, the aggrieved party will no longer be able to file the suit for
possession of that property. His/her right to such property shall be disabled.
It is pertinent to note that in the case of Ram Nagina Rai and Ors. Vs. Deo
Kumar Rai and Ors. (dated 21.08.2018 SC) reported in
MANU/SC/1003/2018, at Paragraph nos.8 and 9 among other things, it
is held as follows:-
'8.... Until the Defendants' possession becomes adverse
to that of the real owner, the Defendants continue in permissive
possession of the property. Only if the Defendants' possession
becomes adverse to the interest of the real owner and the real
owner fails to file the suit for possession within 12 years, as
prescribed Under Article 65 of the Limitation Act, from the point
of time the possession by the Defendants becomes adverse to
the Plaintiffs, the real owner loses his title over the property.
9. The Defendants are not only required to prove that
they have been in possession of the suit property continuously
and uninterruptedly, but also need to prove, by cogent and
convincing evidence, that there is hostile animus and
possession adverse to the knowledge of the real owner....'
14. Further, the Full Bench of the Hon'ble Apex Court in Ravinder
Kaur Grewal Vs. Manjit Kaur, reported in (2019) 8 SCC 729 has held
that if a rightful owner of an immovable property fails to take action to get
back possession within the limitation period, then, his / her rights are lost
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and person in possession acquires an absolute title. Besides the above, it is
also held as follows:-
“53. Law of adverse possession does not qualify only a
defendant for the acquisition of title by way of adverse
possession, it may be perfected by a person who is filing a suit.
It only restricts a right of the owner to recover possession
before the period of limitation fixed for the extinction of his rights
expires. Once the right is extinguished another person acquires
prescriptive right which cannot be defeated by re-entry by the
owner or subsequent acknowledgment of his rights.In such a
case suit can be filed by a person whose right is sought to be
defeated”.
It is also not in dispute that according to Article 65 of the Schedule to the
Limitation Act, 1963, the period of limitation for a suit for the relief of
possession of an immovable property or any interest thereunder based on
title is twelve years from the date when the possession of the defendant
becomes adverse to the plaintiff. The important point to be noticed is the
time from which the period begins to run is not from the date of his alleged
possession of the plaintiff's property by the defendant, but, the time begins
to run when the possession of the defendant becomes adverse to the
plaintiff. Therefore, Article 65 of the Limitation Act presupposes that the
limitation starts only if the defendants prove the factum of adverse
possession affirmatively from a particular time.
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15. In the present case, the respondent / plaintiff entered into a sale
Agreement with legal heirs of Denduluri Vaidhiyanatha Krishana murthy in
the year 1996 and there was a specific clause in the registered sale
agreement [vide document nos.991 and 992 of 1996 in the office of the Sub
Registrar, Sembiam, Madras Ex.A.3 and Ex.A.4] that there were some
encroachers in the property. The period of limitation would run only when
the plaintiff was aware of the possession of another party. The plaintiff who
was examined as PW1, during his cross examination, has stated that he
was aware of the encroachment 7 to 8 years before entering into the sale
agreement and the relevant portion is extracted as follows:-
“Mf;fpukpg;g[ Myh;fis mg;g[ug;gLj;j brytHpf;f ntz;oa[s;sjhy; Fiwe;j
tpiyf;F fpiuak;bfhLf;fg;gl;ljhf fpiua Mtdj;jpy; fz;Ls;sJ/ 7. 8
Mz;Lfshf Mf;fpukpg;g[fs; ,Ue;jd/ fpiua Mtzj;jpy; Mf;fpukpg;g[ bra;ag;gl;l
gFjp Fwpg;gpl;L Twg;gltpy;iy.”
Admittedly, the sale deed dated 14.02.1993 was executed in the name of
the plaintiff, Ex.A.3, wherein it is mentioned that 'a) Advance paid on
01.02.1993, a sum of Rs.65,000/- by way of State Bank of India, Mint
Terminus Branch, Madras 79, D.D.No.378625 dated 01.02.1993' and as
per the cross examination given by the plaintiff, if 7 or 8 years is calculated
from the date of advance paid, viz., 01.02.1993, the same would lead us
around the year 1988. If 12 years is calculated from that date/year [Since
Article 65 of the Limitation Act states that the aggrieved person can file the
suit for recovery of possession of that immovable property within 12 years
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from the date of possession], the limitation would end in the year 2000 or
2001, whereas, the suit was filed only in the year 2007, hence it is clear that
the suit is barred by limitation.
16. Considering the facts and circumstances of the case, this Court
is of the opinion that the appellant, viz., Suseela, had been in possession
and enjoyment of the property, from the year 1984, which was registered as
document no.3096 of 1984 dated 06.09.1984 and the evidence are not
available to show that the original owners used to visit the suit property often
so as to avoid encroachments therein and taking note of the cross
examination of the plaintiff, which would reveal that the true owners had
direct knowledge of the possession of the appellant even prior to 7, 8 years
of the date of execution of sale deed, also the appellant, without
interruption, continuously had been in open possession for over 12 years
and earlier to the year 1996 the original owners had not questioned the
possession of the appellant during 1980 – 1996 and no suit has been filed
for recovery of posession within the prescribed period of 12 years and filed
only after the period of limitation was lapsed, it is construed that the
appellant is in rightful occupation of the suit property. The points are
answered accordingly.
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In view of the above, the present Appeal suit is allowed and the order
passed in O.S.No.9556 of 2010 dated 26.06.2015 on the file of the learned
VI Additional Judge, City Civil Court, Chennai is set aside. No costs.
08.06.2023
Index:Yes/No
Internet:Yes/No
Speaking / Nonspeaking order
ssd
V.BHAVANI SUBBAROYAN J.
ssd
To
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A.S.No.1123 of 2015
The VI Additional Judge,
City Civil Court, Chennai.
A.S.No.1123 of 2015
08.06.2023
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