IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 09.04.2007
CORAM
THE HONOURABLE MR. JUSTICE P.JYOTHIMANI
Second Appeal No.1340 of 1994
1. Anantham Ammal
2. Murugesan
3. Rangarajan
4. Jayanthi ..Appellants
Vs
1. Kamalambal (Exparte)
2. Balasubramanian
3. Rajammal (Exparte)
4. Lalitha (Exparte)
(R1 and R4 dismissed
with vide order
of this Court
dated 28.09.2006) ..Respondents
APPEAL under Section 100 of the Code of Civil Procedure
against the judgment and decree passed in A.S.No.51 of 1990
on the file of the Subordinate Judge, Nagapattinam, dated
23.06.1993, as confirmed the judgment and decree passed in
O.S.No.224 of 1983, dated 31.10.1989, on the file of the
District Musnif Court, Thirutharaipoondi.
For Appellants : Mr. N.Pappiah
For Respondents : Mr. N.Srinivasan, for R2.
No appearance for R3.
J U D G M E N T
The unsuccessful plaintiffs in the Courts below are the
appellants in the above second appeal. The plaintiffs filed
the suit for declaration of title and possession apart from
rendering of accounts. The suit property is described as
comprised in R.S.No.202/14 in 0.10 cents manai with thatched
house bearing Door Nos.7 and 8, Thoothukudi Town and circle,
Nagapattinam District, of course with boundaries on all the
four sides. The plaintiff laid the case on the basis that
the said properties were originally owned by Ramu Chettiar,
husband of the first plaintiff and father of plaintiffs 2 to
4, and his purchase was under a registered sale deed dated
04.10.1939, marked as Ex.A-26 and he was in possession till
his death in 1961 by residing in the said house. He is also
stated to have mortgaged the said house, by way of Mortgage
Deeds, on 11.04.1944 and 27.07.1943 marked as Exs.A-23 and A-
24 respectively. It is the case of the plaintiffs that
after the death of Ramu Chettiar, they were living in the
said suit property. Since they had no one to support them,
the first plaintiff’s sister, who was in Assam took the
plaintiffs and the fourth defendant to Assam leaving the
house under the control of the two tenants. At the time
when the plaintiffs went to Assam, they requested the first
defendant, who is the sister of Ramu Chettiar, to collect
the rent from the tenants and she has also leased out the
house to various tenants. The second defendant is the son
of another sister of Ramu Chettiar. The first defendant has
also written many letters to the plaintiffs. Since the
first defendant had no issues, she had brought up the second
respondent as her adopted son.
2. According to the plaintiffs, the first and second
defendants have colluded with each other and created various
documents taking advantage of the absence of the plaintiffs
and in that way, a sale deed was obtained from one Suseela
Rajagopalan in the year 1975 for the same land, but with the
different survey number in respect of three cents without
mentioning any boundaries. Inasmuch as, the said Suseela
Rajagopalan is not the owner of the property, the second
defendant, who has stated to have purchased the property
from her cannot have any right. Even in respect of the suit
property the second respondent has set up the title as if he
has purchased the said property before 20 years that is on
20.05.1975. The plaintiff would also submit that in respect
of the Rent Control Proceedings also, the second defendant
has stated that he has acted as the Agent of the plaintiffs.
The second defendant has obtained the change of the
assessment from Panchayat in respect of the suit property in
his name. Both the first and second defendants have not
paid any amount of rent to the plaintiffs, even though they
have collected the same from the tenants on behalf of the
plaintiffs. The first and second defendants are liable to
put the plaintiffs in possession and therefore, the suit has
been filed.
3. The fourth defendant is the daughter of the first
plaintiff and she is also entitled for the joint possession.
The said suit was defended by the second defendant, denying
the title of the plaintiffs and the second defendant has
also relied upon an earlier order of this Court, wherein the
title of the plaintiffs was not accepted. The second
defendant also disputes that the boundary given in the
plaint are not correct and the disputed property is situated
only in R.S.No.202/14 and not in 202/13. According to the
second defendant, the husband of the first plaintiff-Ramu
Chettiar did not reside in the property and in fact, eight
years before his death, Ramu Chettiar had shifted to
Thanjavur and at that time, he had sold the property to the
second defendant’s father. However, there was no document
given in writing. But the super-structure was put up by the
second defendant’s father and the second defendant continued
to be in possession for more than twenty years and in
enjoyment by changing the mutation of public records in his
name. The case of the second defendant is that even though
he has taken sale deed for a lesser extent, he is in
possession of the entire suit property and the document for
three cents was made by mistake. However, according to him,
the boundaries are stated, therefore, the boundaries will
prevail. It is also the case of the second defendant that
after the death of Ramu Chettiar, the plaintiffs went to
Assam and settled there itself permanently and they have
abandoned the suit property. It is also the case of the
second defendant that the plaintiffs are aware of the
receipt of sale price and oral sale in favour of the second
defendant.
4. It is also the case of the second defendant that the
second defendant has never acted as an Agent of the
plaintiffs. Even though the second defendant has perfected
the title by adverse possession and prescription in respect
of the suit property and out of care and caution, he
purchased the property from the real owner Suseela
Rajagopalan to the entire extent of 10 cents in
R.S.No.202/14 and building thereon, that was under the sale
deed dated 26.04.1975 marked as Ex.B-1.
5. On an analysis of the entire evidence and
appreciation of documents, the Trial Court has dismissed the
suit filed by the plaintiffs, after giving a finding that
the second defendant has been in possession, as seen in
various documents filed on the side of the defendants,
including Ex.B-70. It was as against the said judgment, the
plaintiffs have filed the first appeal and the First
Appellate Court also finding that there is no material
irregularity or wrong appreciation of evidence etc., has
dismissed the appeal against which the plaintiffs have filed
the present second appeal.
6. While admitting the above second appeal, the
following substantial questions of law were framed:-
“1. Whether the findings of the Courts below
that title of the plaintiff has not been
established on the basis of Exs.A26, 23, 24,
12, 13 and A62 are sustainable?
2. Whether the plea of oral purchase and
adverse possession on the part of the
defendant is sustainable?”
7. The above second appeal was already dismissed as
against the first and fourth respondents, by an order of
this Court, dated 28.09.2006. The third respondent has not
appeared inspite of service. It is only the second
respondent, who has appeared through counsel.
8. According to the learned counsel for the appellants,
when the plaintiffs have produced the document, namely Ex.A-
26, under which the first plaintiff’s husband-Ramu Chettiar
has purchased the property and it is the case of the second
defendant that Ramu Chettiar, eight years before his death,
which was in 1961, has orally sold the property in favour of
his father, it was for the second defendant to prove the
same, especially in the circumstance that till the year
1978, the property tax has been standing only in the name of
the Ramu Chettiar and it was only after that, the second
defendant has made change. It is also the contention of the
learned counsel for the appellants that when the second
defendant has chosen to claim title by adverse possession,
the condition must be that he must admit the ownership of
the plaintiffs and then prove that to the knowledge of the
plaintiffs, he has been in possession of the property for
more than the prescribed period and according to the learned
counsel, there was no evidence produced by the second
defendant to prove adverse possession. He would also state
that admittedly the second defendant has denied the title of
the plaintiffs and therefore there was no question of
adverse possession in such circumstances. He would also
state that if adverse possession is claimed by the second
defendant against the plaintiffs on the basis that the first
plaintiff’s husband-Ramu Chettiar has orally sold the
property to the second defendant’s father, eight years prior
to 1961, what is the necessity for the second defendant to
get a sale deed from Suseela Rajagopalan in respect of the
said suit property under Ex.B-1-sale deed dated 26.04.1975,
especially when the recital of the said document contains
that it relates to three cents, whereas the suit property is
to the extent of 10 cents.
9. On the other hand, the learned counsel for the
second respondent would rely upon Exs.B-14 to B-16, which
are all demand notices sent to the second defendant in
respect of the suit property relating to the years 1973 and
1980 and so on, and subsequent documents under which the
second defendant has paid the property tax as seen in Exs.B-
17 to B-30 and there are various documents filed on the side
of the second defendant to show that he has been in
continuous possession. He would also submit that Ex.A-26-
Sale Deed, dated 04.10.1939, purchased by Ramu Chettiar
itself contain the boundaries, which are defective and there
has been contradictory clauses. He would submit that while
the plaint reveals the survey number of the property as
202/14, Ex.A-26 states the survey number as 202/13. On the
other hand, Ex.B-1-sale deed by which the second defendant
has purchased the property is relating to 202/14 and even
though it is in respect of three cents, it is in the
categoric stand of the second defendant that he has been in
enjoyment of the entire extent of ten cents.
10. A reference to the judgments of both the Courts
below show that on fact both the Courts have come to the
conclusion that the second defendant has been in possession
of the property for more than the prescribed period and in
any event perfected title by adverse possession. The Courts
below have also found, by referring to Ex.A-26-sale deed, by
which Ramu Chettiar has purchased the property that there
has been some discrepancy in respect of the survey number
and also the boundaries by referring to evidence of P.W.1-
herself, and also have come to the conclusion that the plea
of Agency given to the second respondent to collect rent has
not been proved.
11. In view of the above said factual findings by both
the Courts below in respect of the possession of the suit
properties by the second defendant for more than the
prescribed period, even assuming that the defence of the
second defendant that his father has purchased the property
by oral sale from Ramu Chettiar, namely, his brother, eight
years before 1961, when he died, is not accepted, his
continuous possession has been proved. As far the documents
filed on the side of the plaintiff especially in respect of
Ex.A-26-sale deed is concerned, there is a specific finding
by both the Courts below that not only the survey number
differs, but also the boundaries do not tally apart from the
contradictory evidence of P.W.1 and in such circumstances,
even if the contention of the plaintiff is admitted that
Ramu Chettiar was the owner of the suit property, based on
Exs.A-23 and 24, by which he has mortgaged the property in
favour of third parties, on the claim of the second
defendant that it was eight years before 1961 when Ramu
Chettiar died, he has sold away the property in favour of
the second defendant’s father and based on the same, the
second defendant and his father had been in continuous
possession through out, it is certainly a finding of fact
and I do not think that this Court can interfere with such
finding of facts inasmuch as there is no material
irregularity or perversity in such finding of facts. As I
have considered the judgments of both the Courts below, this
Court is of the opinion that the Courts below have given
acceptable reasons.
12. In view of the above said position, as held by this
Court in the judgment rendered in the case of Pappayammal
Vs. Palanisamy and Others and reported in 2005 (3) C.T.C.
292, while exercising the powers under Section 100 of the
Code of Civil Procedure in the second appeal in respect of
the finding of facts recorded by both the Courts below, if
they are not perverse or there is no irregularity, there is
no question of interference. The relevant portion of the
judgment wherein this Court has narrated the previous
judgments in respect of the scope of Section 100 of the Code
of Civil Procedure is follows:
“This Court, sitting in Second Appeal,
invoking Section 100, C.P.C., cannot
interfere with the findings, recorded by the
two Courts below, which are based on proper
appreciation of the evidence and the
materials on record, and when there is no
perversity or irregularity in those findings.
As laid down by the Supreme Court in Ishwar
Dass Jain (Dead) through LRs. V. Sohan Lal
(Dead) by Lrs., 2000 (1) CTC 359 : 2000 (1)
SCC 434; Deena Nath V. Pooran Lal, 2001 (5)
SCC 705; Hafazat Hussain V. Abdul Majeed and
others, 2001 (7) SCC 189 and Krishna Mohan
Kul alias Nani Charan Kul and another V.
Pratima Maity and Others, 2004 (9) SCC 468,
the scope of Section 100, C.P.C. is so
limited.”
The facts of the case which I have narrated above also
reveals that it is not as if the second defendant has been
in possession of the suit property without the knowledge of
the plaintiffs. The possession of the second defendant is
open and continuous as found on facts to the knowledge of
the plaintiffs especially in the circumstance of the
relationship between the plaintiffs and the defendants and
in the circumstances that it is admitted by the plaintiffs
themselves that in the Rent Control Proceedings the second
defendant while filing the counter affidavit has denied the
title of the plaintiffs, it is certainly a hostile
possession, which is a requirement, as held by the
Honourable Supreme Court in the judgment rendered in the
case of T.Anjanappa and Others Vs. Somalingappa and another
reported in 2006 AIR SCW 4368 wherein the Honourable Supreme
Court while holding that mere continuous possession for a
long time is not sufficient, unless it is hostilely or
expressly or impliedly a denial of title of the true owner
and to the knowledge of the true owner, even though it is
not necessary that there should be any evidence of the
adverse possession actually informing the real owner. The
operative portion of the judgment of the Honourable Supreme
Court is as follows:-
“22. It is well recognized proposition in law
that mere possession however long does not
necessarily means that it is adverse to the
true owner. Adverse possession really means
the hostile possession which is expressly or
impliedly in denial of title of the true
owner and in order to constitute adverse
possession the possession proved must be
adequate in continuity, in publicity and in
extent so as to show that it is adverse to
the true owner. The classical requirements
of acquisition of title by adverse possession
are that such possession is denial of the
true owner’s title must be peaceful, open and
continuous. The possession must be open and
hostile enough to be capable of being known
by the parties interested in the property,
though it is not necessary that there should
be evidence of the adverse possessor actually
informing the real owner of the former’s
hostile action.”
13. As correctly pointed out by the learned counsel for
the second respondent, the scope of this Court to interfere
with the findings of facts by both the Courts below while
exercising jurisdiction under Section 100 of the Code of
Civil Procedure, especially while speaking about the scope
after the amendment of the Code of Civil Procedure and also
by considering the legislative background in that regard,
has been extracted only in respect of substantial question
of law and as it has been categorically found by the
Honourable Supreme Court in the various judgments including
the latest judgment in the case of Gurdev Kaur and Others
Vs. Kaki and Others and reported in 2007 (1) C.T.C. 334.
The operative portion of the judgments is as follows:-
“70. Now, after 1976 Amendment, the scope
of Section 100 has been drastically
curtailed and narrowed down. The High
Courts would have jurisdiction of
interfering under Section 100, C.P.C. only
in a case where substantial questions of
law are involved and those questions have
been clearly formulated in the Memorandum
of Appeal. At the time of admission of
the Second Appeal, it is the bounden duty
and obligation of the High Court to
formulate substantial questions of law and
then only the High Court is permitted to
proceed with the case to decide those
questions of law. The language used in
the amended section specifically
incorporates the words as “substantial
question of law” which is indicative of
the legislative intention. It must be
clearly understood that the legislative
intention was very clear that legislature
never wanted Second Appeal to become
“third trial on facts” or “one more dice
in the gamble”. The effect of the
amendment mainly, according to the amended
Section, was:
(i) The High Court would be justified in
admitting the Second Appeal only when a
substantial question of law is involved.
(ii) The substantial question of law to
precisely state such question;
(ii) A duty has been cast on the High
Court to formulate substantial question of
law before hearing the Appeal;
(iv) Another part of the Section is that
the Appeal shall be heard only on that
question”.
14. In view of the same, there is no substantial
question of law involved in this case. Therefore, the above
second appeal fails and the same is dismissed. However,
there will be no order as to costs.
srk
To
1. The Learned Subordinate Judge,
Nagapattinam.
2. The District Musnif,
Thirutharaipoondi.
[PRV/10186]