Madras High Court
Pasubathi (Died) : 1St vs Ponnain (Died) on 19 March, 2025
SA No.545 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 19/03/2025
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
SA No.545 of 2003
1.Pasubathi (Died) : 1st Appellant/Appellant/
Plaintiff
2.Soundraw Ambikai
3.Kannan
4.Uma
5.Sree Priya
6.Rajalakshmi : Appellants 2 to 6/
(Appellants 2 to 6 & L.Rs of the deceased
14th respondent brought on Sole Appellant
record as L.Rs of the deceased
Sole Appellant, vide Court
order, dated 18/12/2024 made
in CMP(MD)No.11707 of 2023
in SA No.545 of 2003)
Vs.
1.Ponnain (Died)
2.Rathinam
3.Perumal : Respondents 1 to 4/
Respondents 1,2 & 4/
Defendants 1, 2 & 4
4.Annapottu
5.Chellam : Respondents 4 and 5/
Respondents 5 and 6/
LR.s of the deceased
3rd Defendant
6.Jayalakshmi
7.Selvaganapathy
8.Rajarajan
9.Amutha
10.Vanitha
11.Manikandan
12.Sudha
13.Nithya : Respondents 6 to 13/
(Respondents 6 to 13 are
brought on record as L.Rs
of the deceased 1st respondent
vide court order, dated 30/06/2003
1/15
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SA No.545 of 2003
made in CMP(MD)Nos.4736 to 4738 of
2016 in SA No.545 of 2003)
14.Raja : 14th Respondent/L.R
of the deceased
sole appellant
PRAYER: Second Appeal is filed under Section 100 of
the Civil Procedure Code, to set aside the decree and
judgment passed in AS No.63 of 1998, dated 27/03/2002 on
the file of the Sub Judge, Thiruchirappalli, confirming
the decree and judgment passed in OS No.66 of 1987, dated
08/03/1993 on the file of the District Munsif, Ariyalur.
For Appellants : Mr.K.Vamanan
For 1st Respondent : Died (Steps Taken)
For R2 to R13 : Mr.K.Kumaravel
For 14th Respondent : Mrs.S.Bharathi
J U D G M E N T
This second appeal is filed against the decree and
judgment passed in AS No.63 of 1998, dated 27/03/2002 by
the Sub Judge, Thiruchirappalli, confirming the decree
and judgment passed in OS No.66 of 1987, dated 08/03/1993
by the District Munsif, Ariyalur.
2.The plaint averments:-
The plaintiff's father Rajagopal Pillai constructed
a thatched house in the suit property and living along
with his family. After the death of his father, the
plaintiff is in possession and enjoyment. The first
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defendant was an Ex-Village Munsif. He claimed some right
over the property. After the abolition of Village Munsif
post, the Government issued patta for the property in
favour of the plaintiff and his father. There was some
mis-description of property in the patta. So, it was
submitted to the Revenue Divisional Officer for
correction. When the patta was sent to the Village
Administrative Officer, it was snatched by the first
defendant. Neither the first defendant, nor his community
people got any right over the property. The plaintiff and
his ancestors continued in possession of the suit
property and prescribed title by adverse possession. On
05/03/1987, the defendants tried to pull down the house.
But it was prevented. So, the suit is laid for
declaration that the suit property belongs to the
plaintiff and for consequential injunction, costs.
3.The statement:- It is denied that the plaintiff's
father constructed a house in the property and living
with his family members for several years. But in fact,
the house was constructed by the defendants predecessor
or ancestor around 1925. The house in the suit property
and poojanaimadam adjacent to it were originally
constructed by Pattayadharar and maintained by Nattamai.
Around 1925, one Maruthai Asari was permitted to live in
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the house. Later it became dilapidated. Around 1957, it
was reconstructed by making repairs, etc. One Rajagopal
Pillai was permitted to run a school in the building.
Later, the school was shifted to some other place. Around
1964 onwards, the defendants are in possession and
enjoyment. Around that year, the plaintiff's brother by
name Senthamarai Kannan was appointed as Village Karnam.
At that time, he had no house to reside. So, Senthamarai
Kannan and his family members were permitted to occupy
the house. The plaintiff was also living with Senthamarai
Kannam in that house. The defendants revoked the
permission and asked the plaintiff to vacate the same.
4.Later, additional statement was filed stating that
the plaintiff was never in possession of the property as
title holder. The plaintiff had no right or title over
the suit property.
5.On the basis of the pleadings of both sides, the
trial court formulated the following issues:-
(1)Whether the suit property
belonged to the plaintiff and he has
absolute right in the property?
(2)Whether the suit property owned
by the defendants and whether the house
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situated in the suit property was
constructed by them?
(3)Whether the plaintiff is
residing in the suit house with the
permission of the defendants?
(4)Whether the plaintiff is
entitled to the relief of injunction
against the defendants?
(5)To what other relief, the
plaintiff is entitled to?
6.The following additional issue was framed on
22/01/1993:-
“Whether the plaintiff is entitled
to the declaratory relief in respect of
the right over the suit property?”
7.Before the trial court, on the side of the
plaintiff, 3 witnesses were examined and 13 documents
marked. On the side of the defendants, 4 witnesses were
examined and 21 documents marked. The Commissioner's
report and plan were marked as Exs.C1 and C2.
8.At the conclusion of the trial process, the trial
court dismissed the suit without any costs. Against
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which, the plaintiff preferred appeal before the
appellate court namely the I Additional Sub Court,
Trichy, in AS No.63 of 1998. It came to the dismissed,
confirming the judgment and decree passed by the trial
court, dated 27/03/2002.
9.Against which, this second appeal is preferred by
the appellants.
10.At the time of admission, the following
substantial question of law was framed:-
“Whether the dismissal of the suit
filed by the plaintiff is sustainable in
law, when both the courts below found
that the plaintiff is in possession of
the suit property with the permission of
the defendants?
11.Heard both sides.
12.Originally, the suit was filed for bare
injunction. After full trial, the trial court dismissed
the suit. Against which, appeal was preferred by the
plaintiff/1st appellant herein to amend the plaint for the
relief of declaration. It was allowed. Based upon which,
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the matter was remitted back to the trial court. The
plaint was amended and the parties were permitted to lead
further pleadings and evidence. Again after full trial,
the trial court dismissed the suit. Against which, appeal
was preferred and the appeal was dismissed concurrently
finding that the plaintiff failed to establish his title
over the suit property and consequently the suit was
dismissed. Against the concurrent findings, this second
appeal is preferred.
13.Being the suit for declaration and permanent
injunction, the primary duty is cast upon the plaintiff
to establish his title. Now it is the case of the
defendants that the plaintiff is in permissive occupation
of the house and never as the owner of the property. This
is the simple ground made by the respondents before the
trial court and the appellate court.
14.When the possession is admitted, now the learned
counsel appearing for the appellants at the time of
argument would submit that natham patta was granted in
favour of the plaintiff. On that basis, they are still in
possession. Apart from that, he would also submit that by
long, open and continuous possession, he has prescribed
title by adverse possession. On both counts, he failed
before the trial court as well as the appellate court.
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15.A plea of adverse possession simultaneously based
upon the tittle will not lie. Even though the plaintiff
is entitled to plead alternatively, but he must stick
either one of these two grounds at the time of starting
of the trial process. It appears that no election was
made by the plaintiff. He simply proceeded on the basis
of these two pleas, which are mutually exclusive and not
inclusive. This is the major defect available in the case
of the appellants.
16.With this in mind, now we will go to the evidence
available on record. Except the tax receipt and patta,
no other title document is produced by the plaintiff. He
has simply stated that his father constructed a house in
the property, when his elder brother was working as
Village Karnam. On that basis, patta was issued in his
name. The plaintiff is bereft of particulars regarding
the date of the entry into the possession, the date of
the construction of the house by his father. After
constructing the house, the father is living along with
his brother and sister. He would further state that he
was born and brought up in the house. So, he may not
aware the date of construction of the house by his
father. On his side, his brother was examined as PW2
after remand. He would say that the property is their
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ancestral property. In a partition, it was allotted to
the plaintiff.
17.But it is not the case of the plaintiff in the
plaint or during evidence. The evidence of PW2 runs quite
contra to the plaint pleadings and the evidence of PW1.
18.PW2 would further say that he was working as
Village Karnam from 1954 to 1980. During his tenure, he
recorded the demand notice in favour of his father. After
the death of his father, he recorded the demand notice in
the name of the plaintiff. From 1974 onwards, tax was
standing in the name of the plaintiff. During his tenure,
no patta was granted to any occupant in the village
natham. The Door number is 4/49D. Previously, it was
4/49C. To his knowledge, none was issued with any patta.
He would further admit that even before his birth, the
house was constructed.
19.Reading of the evidence of PW2 does indicate that
during his tenure only, he recorded the demand notice in
favour of the plaintiff.
20.The adjacent house owner was examined as PW3 on
the side of the plaintiff. He would say that till 1992,
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he was living in the village, later went somewhere else.
His oral evidence need not be given any importance, since
possession was admitted by the plaintiff.
21.Now we will go to the documents available. Ex.A1
is the house tax standing in the name of the plaintiff.
The person, who examined as DW4 was Velayudham. He
produced the demand registers for the house. From the
records produced by him, as recorded by the trial court,
right from the beginning, the demand registers for the
house tax were standing in the name of other persons,
except the plaintiff. He would admit that Exs.A1 and A4
were issued by him. As mentioned above, against Exs.A1
and A4, the documents produced by the defendants shows
the above said fact. So, from Exs.A1 and A4, no finding
can be recorded that he paid the tax as the owner of the
house.
22.As admitted by PW2 during the course of his
evidence, he recorded the demand notice in the name of
the plaintiff. So, this document need not be given any
importance showing the title of the plaintiff. When the
record shows the contra fact, how suddenly the plaintiff
was assessed with house tax was not properly explained by
him. Probably, as stated above, on the basis of the
possession started paying tax in his own name.
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23.After Exs.A1 and A4, it is seen that again taxes
were paid by various persons representing Udayar
community. Neither Exs.A1 and A4, nor tax receipt issued
in favour of the defendants need be given any importance.
Except Ex.A2, no other document of title is produced by
the plaintiff.
24.Ex.A2 is the certificate of ownership of the
house site. Wherein it has been stated that the plaintiff
is in possession of the house site measuring 3 cents in
survey No.216/1. So, this will not also confer tittle
upon the plaintiff. Simply, it is certified showing his
possession.
25.As mentioned above, the contention on the part of
the plaintiff is that since the property is a village
natham, recognizing his occupational right, patta was
issued. But, as mentioned above, for the house situated
in the suit property right from 1968 onwards, the
defendants were shown as owners. So, Ex.A2 will not
confer any title upon the plaintiff.
26.As observed by the trial court and confirmed by
the appellate court, there is every possibility of
permissive occupation right from the days of the
plaintiff's father. Now the permissive occupation can be
taken advantage by the plaintiff claiming title himself.
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When he failed to prove the tittle over the possession,
mere long possession will not create any adverse tittle
in his favour, more particularly, when the tax receipts
are being issued in the name of both parties.
27.When the plaintiff is not able to substantiate
his case over the tittle of the property, even the
definite title in the case of the defendants will not
enure to the benefit of the plaintiff. The trial court as
well as the appellate court recorded a finding in favour
of the defendants by drawing inference or probability.
28.DW1 would say that the house was constructed
before 1925, but for the benefit of the villagers. One
Maruthai Asari was granted permission and he was in
occupation for about 30 years. In 1957, PW2 came to the
village, was permitted to occupy the house. PW2
constructed another house. When he was asked to vacate
the house, the suit was filed by him. He would further
admit that no title document was available to him, except
the house tax receipt. He also does not know the
possession and title of the property, since he was aged
about 48 at the time of examination. By Ex.A6, the
plaintiff purchased a house on 16/07/1984. This shows
that the plaintiff is having some other house site.
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29.DW2 is the son of Rajagopal. He supported the
case of the defendants. He would say that his father was
running a school in that property and later vacated it.
During that time, he was working in the school under his
father.
30.Nothing is brought on record to discard his
evidence. The evidence of DW2 squarely supports the case
of the defendants and against the case of the plaintiff.
31.DW3's oral evidence need not be given any
importance, since he simply supports the case of the
defendants. But the evidence of DW2 probabalises the
defendants story. Against which, the plaintiff has not
established the title and legal possession over the
property. So, the substantial question of law framed does
not arise at all.
32.In the result, this second appeal fails and the
same is dismissed with costs, confirming the judgment and
decree of the courts below.
19/03/2025
Index:Yes/No
Internet:Yes/No
er
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To,
1.The Additional District Munsif,
Ariyalur.
2.The I Additional Sub Judge,
Trichy.
3.The Section Officer,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
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G.ILANGOVAN, J
er
19/03/2025
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