Madras High Court
Renganathan vs K.G.Kaliyaperumal Chettiyar (Died) ... on 19 June, 2024
2024:MHC:2326
S.A.NO.1064 OF 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 19 / 03 / 2024
JUDGMENT PRONOUNCED ON : 19 / 06 / 2024
CORAM:
THE HON'BLE MR.JUSTICE R.SAKTHIVEL
S.A.NO.1064 OF 2005
AND
CMP NO.14582 OF 2005
1.Renganathan
2.Viswanathan
3.Venkatesan
4.Thangammal @ Thangayal
5.Kolanjiammal ... Defendants 1 to 5 /
Respondents 1 to 5/
Appellants
Versus
1.K.G.Kaliyaperumal Chettiyar (died) ... Plaintiff / Appellant
1st Respondent
2.Government of Tamil Nadu
Rep. by District Collector
Cuddalore.
3.Inspector
Natham Alavai
Vridhachalam.
4.Rasathi
Page 1 of 24
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S.A.NO.1064 OF 2005
5.Selvam
6.Sarangapani
7.Murugan
8.Lakshmi
(R1 died. RR4 to 8 brought on record as
LRs' of the deceased R1 viz., KG Kaliyaperumal
Chettiyar vide Court order dated 22.04.2021
made in in CMPs 3337, 3339 and 3341 / 2010
in SA No.1064 / 2005) ... Respondents
PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code
against the judgment and decree of the Additional Subordinate Judge's Court
at Vridhachalam, dated October 5th, 2004 in A.S.No.118 of 2003 reversing the
judgment and decree of the District Munsif cum Judicial Magistrate at
Neyveli, dated September 12th, 2003 in O.S.No.1 of 1998.
For Appellants : Ms.Gayatri
for M/s.Sarvabhauman Associates
For Respondent 3 : Mr.V.Ramesh
Government Advocate
For Respondents 4-8: Mr.T.Dhanasekaran
JUDGMENT
This Second Appeal is directed against the judgment and decree
dated October 5 , 2004 passed in A.S.No.118 of 2003 by ‘the Additional
Subordinate Court, Vridhachalam' [henceforth 'First Appellate Court'].
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S.A.NO.1064 OF 2005
2.The appellants herein and the first respondent herein are the
defendants 1 to 5 and the plaintiff respectively in O.S.No.1 of 1998 on the
file of 'District Munsif cum Judicial Magistrate Court, Neyveli' [henceforth
'Trial Court'].
3.Since the plaintiff / first respondent herein died on August 5,
2018, his legal heirs were brought on record as respondents 4 to 8 vide order
of this Court dated April 22, 2021, in CMP No.3341 of 2020 in S.A.No.1064
of 2005.
4.For the sake of convenience, the parties will be referred to as
per their array in the Suit i.e., the appellants 1 to 5 will be referred to as
defendants 1 to 5; first respondent will be referred to as plaintiff; and
respondents 2 and 3 will be referred to as defendants 6 and 7.
Case of the Plaintiff:
5.The Suit Property is an extent of 6 Cents in R.Survey
No.318/14 which originally belonged to one Iyyakannu Chettiar
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S/o.Ramasamy Chettiar. The plaintiff's paternal uncle - Uthandi Chettiar
purchased the Suit Property along with some other properties from the said
Iyyakannu Chettiar vide Sale Deed dated October 20,1938. The said Uthandi
Chettiar and his wife passed away without any issues. After their demise,
plaintiff's father - Govinda Chettiar acquired the Suit Property along with
some other properties by way of survivorship. The plaintiff's father - Govinda
Chettiar passed away in the year 1954. After his demise, the plaintiff and his
brother - Subramaniam had orally partitioned the properties in the year 1962.
The plaintiff's mother - Radhambal had informed that she did not want any
share in the properties. Hence, she was not allotted any Property. The Suit
Property fell to the share of the plaintiff.
5.1.The plaintiff's mother - Radhambal passed away in the year
1987. From the date of partition, the plaintiff is in possession and enjoyment
of the Property by paying Kist to the Government. Patta stands in the name of
the plaintiff. The first defendant had no title and right over the Suit Property.
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5.2.The first defendant has Property on the northern and the
western side of the Suit Property. Taking advantage of the same, the first
defendant had encroached upon the Suit Property and has constructed a house
two years ago. Hence, the first defendant is a trespasser. The plaintiff came to
know the fact that the first defendant with a connivance of the defendants 6
and 7 had changed the Patta in his name. The defendants 6 and 7 without
conducting any proper enquiry, had issued Patta in favour of the plaintiff and
hence, it is not legally valid.
5.3.The Suit Property is a cultivable land. The plaintiff was
cultivating Ragi and Kambu. Since the defendants 1 to 5 have encroached
upon the Property and had constructed houses, the plaintiff could not get
income from the Suit property. On July 12, 1997, the plaintiff issued notice to
the defendants 1, 6 and 7 directing the first defendant to vacate and hand over
the vacant site and calling upon the defendants 6 and 7 to cancel the Patta.
5.4.The first defendant issued reply notice on July 29, 1997 with
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false allegations. In the said reply, the first defendant has stated that his father
had purchased the Suit Property from them and had constructed a house in the
year 1983 itself. He has been in possession and enjoyment of the same and
thus, he has prescribed title by adverse possession.
5.5.Therefore, the plaintiff filed a Suit for declaration, for
recovery of vacant possession, for mandatory injunction against the
defendants 6 and 7 to cancel the Patta in respect of the Suit Property and for
mesne profits and costs.
Case of the defendants:
6.The defendants 1 to 5 filed written statement stating that the
plaintiff’s father owned R.Survey No.318/13 and R.Survey No.318/14
surrounded by the Cart Track on the East, Rangasamy Padaiyachi’s land on
the South and the West, and R.Survey No.318/11 on the North. After the
demise of plaintiff’s father, plaintiff’s mother - Rajammal, for herself and for
the minor plaintiff as a guardian, sold an extent of 55 Cents within the
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aforementioned four boundaries vide Sale Deed dated August 6, 1954, to
Chinnasami, who is the father of D1 to D3 & D5 and husband of D4. Post the
Sale, the plaintiff’s family does not have any right in the said extent of 55
Cents. R.Survey No.318/13 was subsequently subdivided under Updating
Registry Scheme (UDR Scheme). R.Survey No.318/12 and R.Survey No.319
are the Cart Track. On the western side of the Cart Track are the entire extent
of land in R.Survey No.318/14 and a part of the land in R.Survey Nos.
318/13. Though R.Survey No.318/14 was over-sightedly omitted in the said
Sale Deed, it is clear that the land surrounded by the aforementioned four
boundaries forms the subject matter of the Sale Deed which includes
R.Survey No.318/14 (Suit Property).
6.1.Further, the defendants 1 to 5 were in open and continuous
possession and enjoyment of the Suit property, adverse to the plaintiff’s
family. The defendants 1 to 5 constructed a house occupying a major portion
of the Suit Property in the year 1983 itself . The plaintiff was well aware of
the said fact. Hence, the defendants 1 to 5 have perfected title by Adverse
Possession also and thus, the plaintiff has lost his title, if any over of the Suit
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S.A.NO.1064 OF 2005
Property.
6.2.Considering the continuous possession and enjoyment over
the Suit Property by D1 to D5, D6 and D7 arranged Patta in the name of D1,
in which there is no illegality or irregularity. Hence the Suit is liable to be
dismissed.
7.The 7th defendant filed written statement which has been
adopted by the sixth defendant. It is stated that the seventh defendant is not
the competent authority to issue Patta. The seventh defendant can only
measure the lands and send report to the higher officials. When the seventh
defendant went to measure the lands, he came to know that the Suit Property
was in possession and enjoyment of the defendants 2 and 3. There was no
necessity to add 6th and 7th defendants as parties to the Suit. Hence, they
sought to dismiss the Suit.
8.At trial, the plaintiff examined himself as P.W.1 and Ex-A.1 to
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Ex-A.39 were marked. The second defendant examined himself as D.W.1
along with D.W.2 to D.W.6 and Ex-B.1 to Ex-B.19 were marked. Ex-X.1 to
Ex-X.4 were also marked through D.W.4. After hearing the arguments on both
sides and perusing the evidence available on record, the Trial Court held that
in a Suit for recovery of possession, the burden is upon the plaintiff to prove
his title and he cannot take advantage of weakness of the defence side and
that the plaintiff failed to prove his title over the Suit Property. Further held
that the defendants nos.1 to 5 have perfected title by adverse possession qua
Suit property. Accordingly, the Trial Court dismissed the Suit.
9.Feeling aggrieved with the judgment and decree of the Trial
Court, the plaintiff / appellant preferred an appeal in A.S.No.118 of 2003
before the First Appellate Court.
10.The First Appellate Court found that the Patta, Adangal and
Kist receipts would show that the plaintiff alone is in possession and
enjoyment of the Suit Property and that the claim of adverse possession has
not been established by the defendants. Accordingly, allowed the Appeal and
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S.A.NO.1064 OF 2005
set aside the Trial Court's decree and judgment, and decreed the Suit as
prayed for.
11.Feeling aggrieved with the judgment and decree passed by the
First Appellate Court, the defendants 1 to 5 in the Suit filed this Second
Appeal.
12.This Second Appeal was admitted on September 2, 2005 on
the following substantial questions of law:
“1.Whether the Lower Appellate Court is correct in law
in granting decree for possession and removal of construction of
the building put up in the year 1983 in respect of the Suit filed in
the year 1998, especially when such a relief is barred under
Article 113 of the Limitation Act, 1963?
2.Whether the Lower Appellate Court is correct in law in
arbitrarily awarding mesne profits at the rate of Rs.1000/- per
annum especially when it has to be relegated (Sic. related) to a
separate proceedings under Order 20 Rule 12 of the Code of
Civil Procedure?”
Arguments
13.The learned counsel for the appellants / defendants 1 to 5
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would argue that the First Appellate Court miserably failed to appreciate the
defendants' side documents especially Ex-B.1 to Ex-B.3, which clearly
establish that Chinnasamy, who is the father of D1 to D3 and D5, purchased
an extent of 55 Cents in R.Survey No.318/13 and R.Survey No.318/14 within
four specific boundaries. R.Survey No.318/14 was inadvertently omitted in
the Sale Deed. But, the four boundaries stated in Ex-B.1 would show that the
subject matter therein includes R.Survey No.318/14.
13.1.Further would submit that, it is a settled law that four
boundaries will prevail over extent and survey numbers. The First Appellate
Court failed to consider the said legal position.
13.2.Further would submit that, the defendants 1 to 5 are in
possession and enjoyment over the Suit Property by paying Kist and the
defendants had constructed a house in the year 1983 in the Suit Property.
ExB.8 to Ex-B.14 are the House Tax Receipts. The revenue records also
stands in the names of the defendants.
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13.3.Further would submit that recognizing the title and
possession of the defendants 1 to 5, Patta has been issued under Natham Land
Tax Scheme for R.Survey No.318/14 in the name of the defendants. The said
fact has not been considered by the First Appellate Court. Accordingly, he
prayed to allow the Second Appeal and confirm the decree and judgment
passed by the Trial Court.
14.The learned Government Advocate appearing for the
respondents 2 and 3 would reiterate the averments made in the Written
Statement filed by D7 and adopted by D6 and prayed to dismiss the Suit.
15.On the other hand, the learned counsel for the first respondent
/ plaintiff would contend that the plaintiff's mother did not sell the Property
covered under R.Survey No.318/14 vide Ex-B.1. The Suit Property, namely
R.Survey No.318/14, is in continuous possession and enjoyment of the
plaintiff. The revenue records, namely Patta and Chitta, stand in the name of
the plaintiff. In or about 1995, the defendants encroached the Suit Property
and put up construction over the encroached portion. The First Appellate
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Court, after considering the oral and documentary evidence in proper
perspective, allowed the appeal and hence, there is no warrant to interfere
with the judgment of the First Appellate Court. Accordingly, he prayed to
dismiss the Second Appeal.
Discussion and Decision:
16.This Court has considered the submissions made on either
side and perused the evidence available on record in light of the Substantial
Questions of Law.
17.There is no dispute that, originally the plaintiff's forefather
purchased an extent of 58 Cents in R.Survey No.318/5, 6 Cents in R.Survey
No.318/14 and 12 Cents in R.Survey No.318/13 under Ex-A.1 - Sale Deed.
18.According to the plaintiffs, the plaintiff's mother - Rajammal
executed a Sale Deed in favour of Chinnasamy Padayatchi, who is the father
of the D1, D2, D3 and D5 and husband of the D4, in respect of an extent of 55
Cents in R.Survey No.318/13 within specific four boundaries. The plaintiff's
mother - Rajammal has not executed any Sale Deed in respect of R.Survey
No.318/14. Patta, Chitta and Adangal stands in the name of the plaintiff.
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According to the defendants, R.Survey No.318/14 is also covered under
ExB.1 - Sale Deed.
19.Though revenue records are not documents of title,
Cultivation Adangal Records along with Kist Receipts and other revenue
records can be relied on for the purpose of proof of possession when there is
no evidence to suggest the contrary. The plaintiff filed Ex-A.3 - Adangal
Extract for the Fasli years 1380 to 1387, 1389, 1390, 1391 and 1395 and
Ex-A.37 Adangal extract for the Fasli year 1400 which show that the plaintiff
was in possession and enjoyment of the Suit Property until the year 1990.
Further, the Kist Receipts and other revenue records would also establish the
plaintiff's possession and title over the Suit Property.
20.The defendants 1 to 5 contended that, in recognition of their
possession and title, D6 and D7 had issued Ex-B.18 - Patta. This Court has
perused Ex-B.18 which is a Patta issued under Natham Land Tax Scheme in
the year 2000 i.e., after filing of the Suit. D.W.5, who is the Surveyor, has
deposed that no notice was issued to the plaintiff while issuing Natham patta
to the defendants 1 to 5. Hence, Ex-B.18 was issued without proper notice to
the plaintiff and thus, without following the principles of natural justice.
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21.It is true that, Kist Receipts and the House Tax Receipts stand
in the names of defendants since 1985-1986 (Ex-B.8). But the Kist Receipts
are related to R.Survey No.318/13. The defendants failed to produce the plan
to show in which Survey number the house has been constructed and that the
House Tax Receipts are related to R.Survey No.318/14. Hence, the House Tax
Receipts and Kist Receipts would not lend any support to the defendants’
case. The said documents would not confer any title or right to the defendants
1 to 5 over the Suit Property.
22.According to the plaintiff, the defendants encroached the Suit
Property and put up construction therein in the year 1995. The Suit Property is
an extent of 6 Cents in R.Survey No.318/14. In the revenue records, the Suit
Property has been classified as Ryotwari Punja Land. As stated supra, Patta
has been issued to the defendants under Natham Land Tax Scheme, that too,
without notice to the plaintiff. The defendants 1 to 5 contended that though
R.Survey No.318/14 was inadvertently omitted in Ex-B.1, the description of
four boundaries therein would clearly prove that R.Survey No.318/14 was
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covered under Ex-B.1. They also relied heavily on the boundaries stated in
Exs-B.2 & B.3 - Sale Deeds.
22.1.For better appreciation of the facts, a rough sketch
describing the location of Suit Property is drawn hereunder:
22.2.As stated supra, under Ex-B.1, an extent of 55 Cents in
R.Survey No.318/13 were sold to the defendants by the plaintiff’s mother.
The Suit Property is only a meagre portion of land measuring 6 Cents in
R.Survey No.318/14 situated in the eastern portion of the said 55 Cents land
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in R.Survey No.318/13. The said 55 Cents land in R.Survey No.318/13
surrounds the 6 Cents land in R.Survey No.318/14 on the 6 Cents land’s
North, South and West sides while the Cart Track borders its east side. Major
portion of the said 55 Cents land in R.Survey No.318/13 adjoins the Cart
Track. In such a scenario, given the facts and circumstances of the case,
merely describing the cart track, located to the east of the 6 cents in R.Survey
No.318/14 and the 55 cents in R.Survey No.318/13, as the eastern boundary
of the 55 cents of land does not imply that the 6 cents in R.Survey No. 318/14
is also included under Ex-B.1.
22.3.As far as Ex-B.2 - Sale Deed is concerned, one
Vasanthamal purchased 35 Cents of land from one Rangasamy under Ex-B.2.
The said land is situated in R.Survey No.318/13 on the southern side of the
55 Cents land belonging to the defendants in the same Survey Number i.e.,
R.Survey No.318/13. The contention of the defendants is that, in Ex-B.2,
northern boundary of the land purchased thereunder has been described as
defendants’ land; and that R.Survey No.318/14 adjoins the northern boundary
of the land purchased thereunder and therefore, it shows that R.Survey
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No.318/14 belongs to the defendants.
22.4.As far as Ex-B.3 - Sale Deed is concerned, the said
Vasanthamal sold a portion in the eastern side of the 35 Cents land she
purchased viz., 10 Cents to one Ramadass under Ex-B.3. In Ex-B.3,
defendants’ land has been described as the northern boundary of the subject
matter viz., 10 Cents. The contention of the defendants is that, R.Survey
No.318/14 adjoins the northern boundary of the subject matter viz., 10 Cents
and hence, it shows that R.Survey No.318/14 belongs to the defendant.
22.5.It is true that when an extent has been described
approximately, the four boundaries will prevail over extent and even survey
number. In the instant case, as shown in the rough sketch, both the 55 Cents
land in R.Survey No.318/13 and the 6 Cents land in R.Survey No.318/14, lies
on the northern boundary of the land covered under Exs-B.2 and B.3. As
stated supra, the 6 Cents land in R.Survey No.318/14 is a meagre extent of
land compared to the 55 Cents land in R.Survey No.318/13. Hence, it is
highly probable that Exs-B.2 and B.3 refer to R.Survey No.318/13 and not
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the meagre extent in R.Survey No.318/14. Notably, the plaintiff was not a
signatory to the said Sale Deeds. Further, R.Survey No.318/14 is a separate
Survey Number since the execution of Ex-A.1 - Sale Deed viz., 1938,
whereby the plaintiff’s paternal uncle purchased the Suit Property along with
some other Property. Hence, in the facts and circumstances of the instant
case, the general proposition of law that four boundaries will prevail over
extent and survey number will not be applicable. This Court is of the view
that the evidence available on record is not sufficient to prove that R.Survey
No.318/14 belongs to the defendants.
23.As far the plea of adverse possession goes, the defendants 1 to
5, at the time of trial, stuck to the plea of title alone. Even while assuming that
the defendants 1 to 5 had elected the plea of adverse possession, the said plea
has not been established. This Court finds it appropriate to summarize the law
on this subject. Adverse Possession begins with wrongful possession and is
claimed against rightful ownership. Key requirements include actual,
conclusive, open, and uninterrupted hostile possession with a clear intent to
assert ownership of the Property in question, adverse to the true owner’s
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rights. To establish a claim of adverse possession, specific allegations
regarding when and how the possession turned adverse to the true owner are
essential for determining the limitation period from that point onward.
Adverse possession is primarily a matter of fact and must be pleaded with
specificity and substantiated with legal evidence. Mere long-term possession
alone is insufficient to establish adverse possession. Animus Possidendi
against the true owner is also required. Furthermore, permissive possession
can never be considered adverse. As stated supra, documentary evidence is
available to prove that the plaintiff was in possession of the Suit Property
until 1990. The Suit was filed on December 24, 1997. Though the defendants
have pleaded that he constructed house in the Suit Property in the year 1983
and that the plaintiff was aware of the same, they have failed to establish the
same. There is no evidence to show that the defendants were in open and
continuous enjoyment of the Suit Property for the statutory period which is 12
years. Hence, the plea of adverse possession has not been established by D1
to D5.
24.The defendants failed to establish that they had perfected title
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by adverse possession. The Suit is filed well within three years from the date
of knowledge of the plaint. The Suit is not barred under Article 113 of the
Limitation Act, 1963. Further, as per Article 65, the plaintiff as a title holder is
entitled to recover possession or interest therein within 12 years from when
the possession of the defendant becomes adverse to the plaintiff. The
Substantial Question of Law No.1 is answered accordingly, in favour of the
plaintiff and against the defendants.
25.As far as mesne profits are concerned, the First Appellate
Court without any enquiry or evidence, ordered the defendants to pay a sum
of Rs.1,000/- per annum from the year 1995 till recovery of possession, which
is not in accordance with law. There is no sufficient evidence available on
record to quantify the mesne profits. Hence, mesne profit can be decided in a
separate enquiry. Accordingly, Substantial Question of Law No.2 is answered
in favour of the defendants and against the plaintiff.
26.For the above reasons, this Second Appeal is partly allowed
in the following terms :
(i)It is hereby declared that the plaintiff /
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respondents 4 to 8 (legal representatives of the
plaintiff) are the owners of the Suit Property and the
defendants 1 to 5 are directed to hand over vacant
possession after removing the superstructures, if any,
to the plaintiff within three months from today i.e., on
or before September 19, 2024.
(ii)In case, if the defendants / appellants failed to
handover vacant possession, the plaintiff / respondent
4 to 6 are entitled to recover possession through the
process of court.
(iii)The respondents 2 and 3 are directed to
cancel the Patta issued in the name of the defendants
and restore its original position.
(iv)The plaintiff / respondents 4 to 8 are entitled
to mesne profits and the same shall be decided in a
separate enquiry subject to payment of Court Fee.
(v)No costs.
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(vi)Consequently, connected Civil
Miscellaneous Petition is closed.
19 / 06 / 2024
Index : Yes
Internet : Yes
Neutral Citation : Yes
Speaking order
TK
To
1.The Additional Subordinate Judge
Vridhachalam.
2.District Munsif cum Judicial Magistrate
Neyveli.
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S.A.NO.1064 OF 2005
R.SAKTHIVEL, J.
TK
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO.1064 OF 2005
19 / 06 / 2024
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