Madras High Court
Leelavathi vs Stevenson Rubasingh (Died) : 1St on 29 April, 2025
SA(MD) No.18 of 2004
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 29/04/2025
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
SA (MD)No.18 of 2004
1.Leelavathi
2.Annammal
3.Chellammal
4.Thangathai
5.Annavadivu
6.Rajasekaran : Appellants/
Appellants 13,16,17,20,29 and 30/
Defendants 13,16,17,28,29 and 30
Vs.
1.Stevenson Rubasingh (Died) : 1st Respondent/
Respondent/Plaintiff
2.Lakshmi
3.V.Sekar
4.Chinnathambi
5.Mary Thangam
6.Rajan
7.Esther Mary Kamala
8.Annalakshmi
9.Shanmugathai
10.Muniyandi
11.Paul Thangam
12.Ganesan
13.Sahadevan
14.Santhi @ Natchathira Mascrenhas
15.Violet
16.Daisy
17.Antony
18.Sahayaraj
19.Selvarani
20.Thilagam
21.Pushparaj
22.Pushparani
23.Pugalmathi :Respondents 2 to 23/
Appellants/
D1,D2,D4,D6 to D12, D14,
D15, D18 to D27
1/15
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SA(MD) No.18 of 2004
24.Jothibai Sugirtham
25.Emerson Udhaysingh
26.Jemima Sugunabai
27.Thavamani Grenapoo
28.Isreal Arulsingh
29.Gibson Balasingh : Respondents 24 to 29/
LR.s of the deceased
1st respondent
(R24 to R29 are brought on
record as LR.s of the deceased
1st respondent, vide order of
court, dated 19/02/2008 made
in MP 1 to 3 of 2007 in
SA No.18 of 2004)
PRAYER: Second Appeal is filed under Section 100 of
the Civil Procedure Code, against the judgment and
decree, dated 17/07/2002 made in AS No.63 of 1999 on the
file of the Principal District Court, Tuticorin,
confirming the judgment and decree, dated 17/02/1999 made
in OS No.15 of 1990 on the file of the Subordinate
Judge's Court, Tuticorin.
For Appellants : Mr.S.Siva Thilakar
For R1 : Died (Steps Taken)
For R2 to R23 : Given up
For R24 : Dies (Steps Due)
For R25 to R29 : Mr.M.P.Senthil
J U D G M E N T
This second appeal is filed against the judgment and
decree, dated 17/07/2002 passed in AS No.63 of 1999 by
the Principal District Court, Tuticorin, confirming the
judgment and decree, dated 17/02/1999 passed in OS No.15
of 1990 by the Sub Court, Tuticorin.
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2.The plaint averments:-
The suit property was purchased by the plaintiff on
17/05/1989 from the owner by name Natarajan Nadar. The
defendants 13 to 26 have no right over the properties.
They disturbed the possession and enjoyment of the
plaintiff's vendor Natarajan Nadar. So, Natarajan Nadar
filed a suit in OS No.124 of 1987 seeking permanent
injunction. Along with the suit, he filed IA No.217 of
1987 seeking injunction. The suit is pending. In the IA,
temporary injunction was granted. Pending the suit, the
plaintiff purchased the property as mentioned above from
Natarajan Nadar. Ever-since, he is in possession and
enjoyment. Later, Natarajan Nadar not-pressed the suit
filed by him. Later, the defendants 13 to 16 joined hand
with the other defendants causing disturbance to the
plaintiff's possession and enjoyment and made trouble on
21/03/1990. So, the suit is laid for declaration that the
suit property absolutely belongs to the plaintiff and for
consequential injunction or in the alternative if the
court finds that the defendants encroached the suit
property, for recovery of possession with costs. The
prayer for recovery of possession or consequently
included by making amendment as per the order made in IA
No.114 of 1995, dated 09/01/1996.
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3.The Statement filed by the defendants 3, 6 and 7
adopted by the defendants 4 and 8:-
(i)The previous tracing of title in the plaint is
denied. It is denied that Natarajan Nadar was in
possession after purchase. The said Natarajan Nadar was
the resident of Thanjavur town. The defendants are in
occupation of the suit property for more than 50 years.
(ii)The plaintiff under the guise of helping the
defendants, collected house tax and 'B' memo stating that
memo will be submitted to the Government for issuance of
patta in their favour. Later, they came to know that the
plaintiff purchased the property from the third party and
acted adverse to the interest of the defendants. By long
possession, defendants having prescribed title by adverse
possession. Ever-since, the plaintiff is not in
possession of the property, there is no question of
disturbance by the defendants. The third defendant's wife
is in occupation of a portion measuring about east-west
15 feet and north-south 135 feet. Similarly, the 4th
defendant is in occupation east-west 15 feet, north-south
19-1/2 feet. Mary Thangam is in possession of portion
east-west 30 feet, north-south 35 feet.
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4.The statement of the 14th defendant adopted by the
defendants 11,12,13,15,16 and 17:- It is denied that the
plaintiff purchased the entire suit properties even
before the suit filed by Natarajan Nadar. The defendants
are in occupation and enjoyment of separate portion. The
plaintiff's vendor coming to know about the weakness in
his case, he withdrew the same. On 22/07/1989, the
plaintiff sent a complaint to the Superintendent of
Police, Chidambaram District stating that the 16th
defendant Anammal and 13 others encroached the suit
properties. Apart from complaint to the north Police
station on 09/07/1987 stating that no proper action was
taken by the police. The plaintiff also filed writ
petition before the court. So, the cause of action
pleaded in the plaint is not true. The suit property is a
Government poramboke lands. So, prays for dismissal of
the suit.
5.On the basis of the pleadings of parties, the
following issues were framed by the trial court:-
(1)Whether the suit property
belongs to the plaintiff?
(2)Whether the suit property is in
possession of the plaintiff?
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(3)Whether the defendants have
prescribed title by adverse possession
in the suit property?
(4)To what relief, the plaintiff
is entitled to ?
6.Additional issues were framed, on 17/02/1999:-
(1)Whether the plaintiff is
entitled to the relief of declaration
and injunction?
(2)Whether the plaintiff is
entitled to the relief of recovery of
possession?
7.During trial, on the side of the plaintiff, 3
witnesses were examined and 17 documents marked. On the
side of the defendants, 3 witnesses were examined and 31
documents marked.
8.At the conclusion of the trial process, the trial
court decreed the suit as prayed for with costs, for
declaration and recovery of possession. In respect of the
relief of permanent injunction, the suit was dismissed.
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9.Against which, appeal was preferred by the
defendants before the District Court, Tuticorin in AS
No.63 of 1999. The appellate court concurred with the
judgment and decree passed by the trial court and
accordingly, dismissed the appeal.
10.Against which, this second appeal is preferred.
11.At the time of admission, the following
substantial questions of law were framed.
(a)Whether the courts below
committed an error of law in discarding
the material evidence of the appellants
marked as Exs.B1, B3, B7, B11, B12,
B16, B30 and B31 on the assumption that
Ex.A16, Order subsequent to the suit
cancels the above documents and hence,
they are of no use?
(b)When Ex.B12 Town Survey Field
Register and B-Memos marked as Exs.B2
to B10 and B17 to B30 would establish
that the suit property is a Government
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property, Whether the courts below are
justified in law in discarding those
evidence and in simply accepting the
case of the respondent without any
basis?
(c)When Government is the owner of
the suit property as per Ex.B12
Register and when the appellants are in
possession by paying B-Memo charges as
per Exs.B3 to B10 and B17 and B30,
whether not appellants entitled to
sustain their possession against the
respondent who has no title as per
Section 110 of the Evidence Act?
12.Heard both sides.
13.A suit based upon the title. As per the case of
the plaintiff, in short, the suit property originally
belongs to Tuticorin Illathar Valibar Sangam. It was
taken in the court auction purchase by one Nayagam.
Nayagam in-turn sold the property to one Natarajan Nadar.
Natarajan Nadar filed a suit in OS No.124 of 1987 on the
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file of the District Munsif Court against the defendants.
Pending suit, he sold the property to the plaintiff and
not pressed the suit in OS No.124 of 1987. After that,
the present suit is filed, based upon the title. So,
based upon this, the plaintiff claims title over the suit
property.
14.The case of the defendants in brief is that it
never belongs to any persons mentioned by the plaintiff.
They are possessing the property for more than 15 years.
They have also stated that in the respective areas, the
independent defendants are in occupation. Apart from
that, it is also their contention that the suit property
is not the private property, but belongs to the
Government. For their possession and occupation, 'B'
memos are issued, penalties were collected by the
Government. So, the plaintiff has no right over the
properties.
15.Since the suit is based upon the title, it is the
duty of the plaintiff to prove the same. But the
defendants base their case by Ex.B12, the Town Survey
Register of Tuticorin Municipality. Wherein, it has been
mentioned that it is a Government Poramboke Natham land
and not a patta land. Further, they are relying upon the
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Commissioner report, which points out the possession of
the defendants.
16.They have specifically stated that the
plaintiff's documents are not relating to the suit
property. Now coming to the title deed of the plaintiff,
Ex.A2 is the Sale Certificate, dated 25/06/1948. In
pursuance of the Court Auction Sale, the property was
delivered to the plaintiff's predecessor-in-title under
Ex.A3. In EA No.522 of 2008, delivery was effected in
favour of one S.T.Nayagam. Nayagam in-turn sold the
property to Natarajan Nadar, as mentioned above, as per
Ex.A4. Later through Ex.A1, the present plaintiff
purchased the property. The measurement mentioned in the
document is noted as 58-1/2 feet east-west and 104 feet
north-south, Door No.49-B, Vacant site in TS No.5347.
These registers and other documents indicate that from
1968 onwards the property belongs to the individual and
never to the Government.
17.The subsequent tax receipts in the form of Ex.A6
and demand notice under Ex.A7 and tax receipts paid by
the plaintiff indicate their possession. So, against
these strong, genuine, reliable documentary evidence as
mentioned above, the defendants are basing the case on
Ex.A2 Town Survey Register.
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18.When the title document was proved by the
plaintiff, mere entry in the town survey will not
extinguish the right of the plaintiff and his
predecessor-in-title. It is rightly pointed out by the
appellate court that when the defendants says that the
plaintiff is not the owner of the property, the question
of adverse possession claimed by them does not arise.
19.When there is a specific plea by the defendants
that they prescribed title by adverse possession, it is
their duty to prove from which date their possession
became adverse to that of the plaintiff. But, as
mentioned above, this plea will not lie in view of the
specific finding that the property never belongs to the
Government, but to the plaintiff or his predecessor-in-
title. The appellate court discarded the tax receipts
produced by the defendants stating that those claims were
not established that it is related to the suit property.
From which date, the defendants came into possession of
the suit property is not clear on record. But, as
mentioned above, on the date of the inspection made by
the Commissioner, some of the defendants were in
possession of independent portions. When the plaintiff
established his title, naturally it is the duty of the
defendants to prove that they are in possession of the
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suit property on their own right. As mentioned above,
absolutely, there is no clear evidence on their side
regarding the date of entry into the possession of the
property and their right under which they entered. They
are taking contradictory stand.
20.The appellate court has stated that as per Ex.B5
the date of possession of the defendants can be fixed
around 1982. But the suit was filed in 1990. So, the
question of adverse possession or continuous possession
adverse to the title of the plaintiff does not arise.
That part of finding of the appellate court is perfectly
legal, which requires no interference.
21.The learned counsel appearing for the appellants
would submit that as per Ex.B12, the property is
classified as GR Natham; The Government has no right in
the property.
22.If it is so, how the plea was raised by the
appellants/defendants that the property belongs to the
Government and 'B' Memos were issued is not clear on
record. As mentioned above, they are contradicting
themselves.
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23.In respect of Ex.B12, the learned counsel
appearing for the respondents 25 to 29 would submit that
it is subsequent to the suit and not prior to the suit.
So, Ex.B12 has no relevancy. He would rely upon the
judgments of the Hon'ble Supreme court reported in:-
(1)Arunachalam Vs Manickammal and
another (2025(2)CTC 10); and
(2)Karnataka Board of Wakf Vs.
Government of India and others (2004)10
SCC 779.
24.So, it is the basic and fundamental law that the
persons who set up adverse possession must establish the
same. As mentioned above, the appellants/defendants are
contradicting themselves with regard to the character of
the property. I find absolutely nothing is brought on
record by the appellants to interfere into the judgment
passed by the courts below.
25.In view of the submission made by the parties,
none of the substantials of law framed arise for
consideration.
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26.In the result, this second appeal is dismissed
with costs, confirming the judgment and decree of the
courts below.
29/04/2025
Index:Yes/No
Internet:Yes/No
er
To,
1.The Principal District Court,
Tuticorin.
2.The Sub Court,
Tuticorin.
3.The Section Officer,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
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G.ILANGOVAN, J
er
29/04/2025
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