BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/12/2008 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL No.449 of 2007 M.Subbiah ... Appellant/ 1st Plaintiff Vs. 1.T.Subbiah (died) 2.Seethalakshmi Ammal (died) 3.V.Sathish Nair ... Respondents 1 to 3/ Defendants 4.M.Valli 5.M.Vasanthakumar 6.M.Kalyani 7.M.Seetharaman 8.M.Srinivasan ... Respondents 4 to 8/ Plaintiffs 2 to 6 9.Raviendran 10.Kalyana Sundaram 11.S.Muthu Krishnan 12.Kanaga Valli 13.Vinajayalakshmi 14.Mari ... Respondents 9 to 14 (3rd respondent in the above appeal is given up) (Respondents 9 to 14 brought on record as LRs of deceased 1st & 2nd respondents as per order dated 18.12.2006 made in M.P.No.1 of 2006) Second appeal has been filed under Section 100 of C.P.C., against the judgment and decree dated 13.11.2000 passed in A.S.No.49 of 1999 by the Second Additional District Court, Tirunelveli, confirming the judgment and decree dated 25.04.1996 passed in O.S.No.201 of 1991 by the Principal Subordinate Court, Tirunelveli. !For appellant ... Mr.R.S.Ramanathan ^For respondents ... Mr.V.Sri Balaji 9 to 14 :JUDGMENT
Challenge in this second appeal is to the concurrent judgments
passed in Original Suit No.201 of 1991 by the Principal Subordinate Court,
Tirunelveli and in Appeal Suit No.49 of 1999 by the Second Additional District
Court, Tirunelveli.
2.The appellant and respondents 4 to 8 herein as plaintiffs have
instituted Original Suit No.201 of 1991 on the file of the trial Court, for the
reliefs of declaration and perpetual injunction, wherein the present respondents
1 to 3 have been shown as defendants.
3.It is averred in the plaint that the plaintiffs are brothers and
sisters. The plaintiffs 1 & 2 are the children of the deceased Moondruyugam
born through is first wife by name Vasantha and the remaining plaintiffs are the
children of the said Moondruyugam born through his second wife by name Parvathy.
The first defendant is the husband of the second defendant and the second
defendant is the sister of Moondruyugam. The suit property is originally
belonged to one Sadagopa Iyengar of Nanguneri. The second defendant viz.,
Seethalakshmi has purchased the suit property under a registered sale deed dated
12.04.1955 and the second defendant has leased out the suit property to her
father by name Kalyani Chettiar for monthly rent of Rs.25/- and the said Kalyani
Chettiar is the paternal grand father of the plaintiffs. The said Kalyani
Chettiar has entered into an agreement of sale with the second defendant and
thereby agreed to purchase the suit property for a sum of Rs.3,500/- and the
sale agreement has come into existence between the said Kalyani Chettiar and
second defendant on 08.06.1956 and the said Kalyani Chettiar has paid Rs.3,000/-
towards sale consideration. In the sale agreement, one year has been fixed for
executing a sale deed. The possession of the suit property has been handed over
to the said Kalyani Chettiar by the second defendant and he has had enjoyed the
suit property till his demise. He has also borrowed Rs.1,000/- from one
Arunachalam Pillai by way of executing a registered mortgage deed dated
23.07.1956. Before the demise of Kalyani Chettiar, he executed a Will dated
14.08.1969, bequeathing the suit property in favour of his wife Valliammal with
the specific direction to enjoy the suit property till her life time and after
her demise his son by name Moondruyugam has to succeed the suit property. The
said Kalyani Chettiar has passed away on 25.09.1977 and therefore, the Will
executed by him has come into effect. Since the father of the plaintiffs by
name Moondruyugam has passed away, the plaintiffs have acquired title to the
suit property by virtue of the Will dated 14.08.1969. The said Kalyani
Chettiar, his wife Valliammal and their son Moondruyugam and their grand
children viz., plaintiffs, have been in possession of the suit property for more
than 36 years and thereby prescribed title to the same by adverse possession.
Now the defendants are trying to disturb the peaceful possession and enjoyment
of the plaintiffs. Under the said circumstances, the present suit has been
instituted so as to declare that the plaintiffs have prescribed title to the
suit property by adverse possession and also for restraining the defendants from
interfering with the peaceful possession and enjoyment of the plaintiffs by
means of perpetual injunction.
4.It is averred in the written statement filed on the side of the
defendants 1 & 2 that the relationship mentioned in the plaint is correct. It
is false to say that the second defendant has executed the sale agreement dated
08.06.1956 in favour of her father viz., Kalyani Chettiar. The second defendant
has never received a sum of Rs.3,000/- from her father. It is also equally
false to say that the second defendant has handed over possession of the suit
property to her father. The second defendant has obtained a licence so as to
run a rice mill. The defendants 1 & 2 have not known about the alleged
execution of Will dated 14.08.1969 executed by Kalyani Chettiar. The second
defendant is in possession and enjoyment of the suit property. It is false to
say that the plaintiffs and their predecessors in title have had enjoyed the
suit property for more than a statutory period and thereby prescribed title to
the same by adverse possession. The plaintiffs have tried to trespass into the
suit property and a police complaint has been lodged. There is no merit in the
suit and the same deserves dismissal.
5.On the basis of the divergent pleadings raised on either side, the
trial Court has framed necessary issues and after evaluating both the oral and
documentary evidence, has dismissed the suit. Against the judgment and decree
passed by the trial Court, the plaintiffs as appellants have preferred Appeal
Suit No.49 of 1999 on the file of the first appellate Court. The first
appellate Court, after hearing both sides and after reappraising the evidence
available on record, has dismissed the appeal and thereby confirmed the judgment
and decree passed by the trial Court. Against the concurrent judgments, the
present second appeal has been filed at the instance of the first plaintiff as
appellant.
6.On the side of the appellant, the following substantial questions
of law have been raised for consideration;
“1)Whether the Courts below erred in dismissing the suit without
appreciating the case of the appellant/plaintiff that he and his predecessors in
title are enjoying the suit property as owner for the past 36 years to the
knowledge of the respondents 1 & 2?
2)Whether the Courts below are right in holding that the plaintiffs have
not proved their adverse possession without appreciating Exs.A2 and A3 mortgage
and discharge and ex.A55, Will?
3)Whether the Courts below are right in dismissing the suit when the
plaintiffs were in possession by exercising ownership rights and the defendants
did not prove their possession 12 years prior to the file of the suit?
7.Before perpending the rival submissions made by either counsel, it
would be more useful to look into the necessary averments made in the plaint as
well as in the written statement.
8.In the plaint, it has been specifically stated that the plaintiffs
are the sons of one Moondruyugam who is none other than the brother of the
second defendant. The second defendant has purchased the suit property under a
registered sale deed dated 12.04.1955 from one Sadagopa Iyengar of Nanguneri and
subsequently she entered into an agreement of sale with her father by name
Kalyani Chettiar on 08.06.1956 and the sale consideration has been fixed at
Rs.3,500/- and an advance of Rs.3,000/- has been given to her and further it has
been agreed that the second defendant should execute a registered sale deed on
or before 07.06.1957. The said Kalyani Chettiar has enjoyed the suit property as
owner and he executed a registered Will dated 14.08.1969 with life interest to
his wife viz., Valliammal after his demise and after her demise, the suit
property should be succeeded by his son Moondruyugam and his legal heirs. The
said Kalyani Chettiar has passed away on 25.09.1977 and the said Moondruyugam
has also passed away and therefore, the plaintiffs have succeeded the suit
property by virtue of the Will dated 14.08.1969 and the plaintiffs and their
predecessors in title have had enjoyed the suit property for more than a
statutory period and that too to the knowledge of the second defendant and
thereby prescribed title to the suit property by adverse possession.
9.In the written statement, it has been specifically stated that the
second defendant has not executed the alleged sale agreement dated 08.06.1956
and the second defendant has been enjoying the suit property as its owner and
further it is false to say that the plaintiffs have perfected title to the same
by adverse possession and therefore, the present suit deserves dismissal.
10.The Courts below, after having threadbare discussions, have
uniformly found that the plaintiffs are not entitled to the reliefs sought for
in the plaint.
11.The learned counsel appearing for the appellant has repeatedly
contended that the suit property has been purchased by the second defendant and
she has agreed to sell the same to her father viz., Kalyani Chettiar and both of
them have entered into an agreement of sale on 08.06.1956 and the same has been
marked as Ex.A1 and in Ex.A1 it has been clinchingly stated that the said
Kalyani Chettiar has been directed to enjoy the suit property as owner from
08.06.1956 and the said Kalyani Chettiar has had enjoyed the suit property till
his demise and before his demise, he has executed a will stating that his wife
should enjoy the suit property till her demise and after her demise their son by
name Moondruyugam and his legal heirs have to succeed the suit property and the
said Will has come into effect and the plaintiffs as well as their predecessors
in title have had enjoyed the suit property more than a statutory period to the
knowledge of the second defendant and thereby prescribed title to the suit
property by adverse possession and the Courts below without considering the oral
and documentary evidence have erroneously non-suited the plaintiffs and
therefore, the concurrent judgments passed by the Courts below are liable to be
set aside and the suit is liable to be decreed.
12.In order to repudiate the argument advanced by the learned
counsel appearing for the appellant, the learned counsel appearing for the
respondents 9 to 14 has also equally contended that the suit property has been
purchased by the second defendant and she has not executed the alleged sale
agreement dated 08.06.1956 and further she has not known about the Will alleged
to have been executed by her father viz., Kalyani Chettiar and the plaintiffs
have not enjoyed the suit property at any point of time and therefore, they are
not entitled to get the reliefs sought for in the plaint and the Courts below,
after having threadbare discussions have rightly non-suited the plaintiffs and
therefore, the concurrent judgments passed by the Courts below are not liable to
be interfered with.
13.On the basis of the divergent submissions made by either counsel,
the only point that comes for consideration in the present second appeal is as
to whether the plaintiffs have prescribed title to the suit property by adverse
possession.
14.At this juncture, the Court has to perpend the circumstances
under which adverse possession can be claimed. In order to analyse the above
legal aspect, it would be more useful to look into the following decisions;
a)In 1995 (2) MLJ 294 (Ponnaiyan Vs. Munian (died) and others) it
has been held that it is well established that a person who claims title to the
property by adverse possession must definitely allege and prove how and when
adverse possession commenced and what was the nature of his possession.
b)In 1998 (I) L.W 244 (Roohnisha Beevi and 15 others Vs. A.M.M.
Madhudu Mohamed and 29 others), it has been held like thus;
“The party pleading adverse possession must state with sufficient clarity
as to when his adverse possession commenced and the nature of its possession.”
“Adverse possession means a hostile assertion i.e. a possession which is
expressly or impliedly in denial of title of the true owner.”
“The person who bases his title on adverse possession, therefore, must
show by clean and unequivocal evidence i.e., possession was hostile to the real
owner and amounted to a denial of his title to the property claimed.”
c)In 1998 (2) L.W. 171 (The State of Tamilnadu represented by the
District Collector, Tiruchirapalli Vs. K.Purushothaman) it has been held that
long possession itself is not adverse possession and possession with animus to
hold it against the true owner is the basic requirement to prescribe title by
adverse possession.
15.From the conjoint reading of the decisions referred to supra, it
is made clear that the person who claims adverse possession must have requisite
animus and without requisite animus, his or her possession however long would
not be adverse to the real owner and further the person who claims adverse
possession must state as to when and in what manner his possession becomes
adverse to real owner. Unless these conditions are established plea of adverse
possession cannot be entertained.
16.With these legal backdrops, the Court has to anlayse the plea of
adverse possession raised on the side of the plaintiffs.
17.The specific averments made in the plaint are that the second
defendant is the owner of the suit property and she has agreed to sell the same
in favour of her father by name Kalyani Chettiar under Ex.A1 and in Ex.A1 it has
been specifically stated that from the date of execution of Ex.A1 the said
Kalyani Chettiar can enjoy the suit property as its owner.
18.The sheet anchor of the case of the plaintiffs is Ex.A1. Ex.A1
is nothing but a sale agreement. In fact, this Court has closely perused the
same and found that before Ex.A1 the said Kalyani Chettiar has enjoyed the suit
property as a lessee. On the side of the defendants, 1 & 2 execution of Ex.A1
has been specifically denied. Even forgetting the stand taken on the side of
the defendants 1 & 2, the Court has to analyse as to under what capacity the
said Kalyani Chettiar has enjoyed the suit property.
19.As stated earlier, prior to the execution of Ex.A1, he enjoyed
the suit property as a lessee and after execution of Ex.A1 his lease hold right
has merged with the rights mentioned in Ex.A1. Of-course it is true that in
Ex.A1 it has been stated that the said Kalyani Chettiar can enjoy the suit
property as its owner. It is an acknowledged principle of law that an agreement
of sale would not convey title to an agreement holder and at the most he can
protect his possession by virtue of sale agreement. In the instant case, after
execution of Ex.A1, the said Kalyani Chettiar has dealt with the suit property
as its owner by way of executing a mortgage deed dated 23.07.1956 which has been
marked as Ex.A2 and the Will dated 14.08.1969 which has been marked as Ex.A55.
20.As stated earlier, the said Kalyani Chettiar has not derived any
title in respect of the suit property under Ex.A1. At the most he can protect
his possession of the suit property by virtue of Ex.A1. Therefore, the mortgage
deed as well as the will alleged to have been executed by the said Kalyani
Chettiar, would not clothe title either to him or to the plaintiffs.
21.The plaintiffs have stated in their plaint that the said Kalyani
Chettiar has enjoyed the suit property by virtue of Ex.A1 and after his demise
as well as the demise of his wife, his son by name Moondruyugam has enjoyed the
suit property and after his demise, the plaintiffs have been enjoying the suit
property by virtue of Exs.A1 as well as A55. In the plaint, at Paragraph No.19,
it has been simply stated that the said Kalyani Chettiar, his wife Valliammal,
their son viz., Moondruyugam and their grand children viz., plaintiffs have been
in open, continuous, uninterrupted, exclusive and hostile possession of the
suit property for more than 36 years with the knowledge of the defendants 1 & 2
and thereby, prescribed title to the same by adverse possession.
22.It has already been pointed out that the person who claims
adverse possession must state in definite terms as to how and when his
possession has become adverse to real owner. In the instant case, such condition
is not present. On that score alone, the plea of adverse possession raised on
the side of the plaintiffs is liable to be thrown out.
23.As stated earlier, through out the plaint it has been stated that
the said Kalyani Chettiar has enjoyed the suit property by virtue of Ex.A1 and
the plaintiffs have been enjoying the suit property by virtue of the Will dated
14.08.1969. In Ex.A1 it has been stated that the said Kalyani Chettiar has
enjoyed the suit property as a lessee prior to execution of Ex.A1. As stated
earlier, after execution of Ex.A1, his lease hold right has become merged with
the rights created under Ex.A1. Therefore, the said Kalyani Chettiar has had
enjoyed the suit property as an agreement holder. The learned counsel appearing
for the appellant has repeatedly contended that in Ex.A1 it has been clinchingly
stated that the said Kalyani Chettiar can enjoy the suit property as its owner.
Ex.A1 is a sale agreement and the same has not conveyed any title to the said
Kalyani Chettiar. If the contention of the learned counsel appearing for the
appellant is legally valid, definitely, the provision of Section 54 of the
Transfer of Property Act, would become redundant. Therefore, the said contention
urged by the learned counsel appearing for the appellant is not legally
acceptable.
24.In many places, it has been pointed out that the said Kalyani
Chettiar has enjoyed the suit property as an agreement holder by virtue of
Ex.A1. At this juncture, a nice legal question arises as to whether the person
who is having an agreement of sale can claim adverse possession.
25.The plaintiffs have claimed title to the suit property by adverse
possession on the basis of Ex.A1, sale agreement alleged to have been executed
by the second defendant in favour of Kalyani Chettiar. The said Kalyani
Chettiar has dealt with the suit property as its owner by way of executing
mortgage deed as well as Will.
26.In 1991(1) MLJ Supreme Court 32 (Achal Reddy Vs. Ramakrishna
Reddiar and others) it has been held as follows;
“In the case of an agreement of sale, the party who obtains
possession acknowledges the title of the vendor even though the agreement of
sale may be invalid. It is an acknowledgment and recognition of the title of
the vendor which excludes the theory of adverse possession. The well settled
rule of law is that if a person is in actual possession and has a right to
possession under a title involving a due recognition of the owner’s title, his
possession will not be regarded as adverse in law even though he claims under
another title having regard to the well-recognized policy of law that possession
is never considered to be adverse if it is referable to a lawful title. The
purchaser who got into possession under an executory contract of sale in a
permissible character cannot be heard to contend that his possession was
adverse. In the concept of adverse possession there is an essential and basic
difference between a case in which the other party is put in possession of
property by an outright transfer, both parties stipulating for a total
divestiture of all the rights of the transferor in the property and in a case in
which there is a mere executory agreement of transfer both parties contemplating
a deed of transfer to be executed at a later point of time. In the latter case
the principle of estoppel applies estopping the transferee from contending that
his possession, while the contract remained executory in stage was in his own
right and adversely against the transferor. Adverse possession implies that it
commenced in wrong and is maintained against right. When the commencement and
continuance of possession is legal and proper referable to a contract, it cannot
be adverse. In the case on an executory contract of sale where the transferee
is put in possession of the property in pursuance of the agreement of sale and
where the parties contemplate the execution of a regular registered deed, the
animus of the purchaser through out is that he is in possession of the property
belonging to the vendor and that the former’s title has to be perfected by a
duly registered deed of sale under which the vendor has to pass on and convey
the title. The purchaser’s possession in such cases is of a derivative
character and in clear recognition of and in acknowledgment of the title of the
vendor. The position is different in the case where in pursuance of an oral
transfer or a deed of transfer not registered, the owner of the property
transfers the property and puts the transferee in possession with the clear
animus and on the distinct understanding that from that time onwards, he shall
have not right of title to the property. In such a case, the owner of the
property does not retain any vestige of right in regard to the property and his
mental attitude towards the property is that it has ceased to belong to him
altogether. The transferee after getting into possession retains the same with
the clear animus that he has become the absolute owner of the property and in
complete negation of any right or title of the transferor, his enjoyment is
solely as owner in his right and not derivatively or in recognition of the title
of any person so far as the vendor is concerned both in mind and actual conduct,
there is total divestiture of all his right, title and interest in the property.
This applies only in a case where there is a clear manifestation of the
intention of the owner to divest himself of the right over the property. On the
other hand, in the case of an executory contract, the possession of the
transferee until the date of registration of the conveyance is permissive or
derivative and in law is deemed to be on behalf of the owner himself.”
27.From the close reading of the above decision rendered by the
Honourable Apex Court, it is made clear that the party obtaining possession of
property in pursuance of sale agreement is not entitled to claim adverse
possession and the possession of transferee until registration is nothing but
permissive or derivative.
28.In the written statement filed on the side of the defendants 1 &
2, it has been clearly stated that the second defendant has not executed Ex.A1
in favour of Kalyani Chettiar. At this juncture, the Court has to refer the
following decisions;
a)In 89 Law Weekly p-79(1976) (Rajammal Alias Sundayee Ammal (died)
Vs. Perumalswami) it has been held as follows;
“The question of adverse possession has to be determined with reference to
the animus of the person in possession. Such animus has to be determined solely
with reference to his mental attitude and not with reference to any finding
rendered by the Court in respect of matters advanced by him. Once the
proposition is accepted that so long as a person links his possession of a
property with an agreement of sale in his favour, his possession cannot be
considered hostile to that of the real owner. It is not open to any one to
contend that because the agreement of sale projected by him is held untrue, it
must automatically be held that his possession was adverse to the real owner.
To make it clear, the test of animus must be determined from the stand point of
the occupant and not from the other end, namely, the pronouncement made by a
Court regarding the truth and validity of the contentions raised by him.”
b)In 78 Law Weekly P-172 (Annamalai Chettiar and another Vs.
Muthiah Chettiar and another) it has been held that in the case of an agreement
of sale the party who obtains possession, acknowledges the title of the vendor
even though the agreement of sale may be invalid. It is the acknowledgment and
recognition of the title of the vendor which excludes the theory of adverse
possession.
29.From the conjoint reading of the decisions referred to above, it
is made clear that even the concerned agreement of sale is invalid or untrue,
the person who has been put in possession of the suit property in pursuance of
sale agreement is not entitled to claim adverse possession.
30.In the instant case, as noted down earlier, the plaintiffs have
failed to aver in the plaint as to when and how the possession of Kalyani
Chettiar and after his demise, their possession has become adverse to the owner
of the suit property viz., second defendant. Therefore, the basic requirements
of theory of adverse possession have not been averred in the plaint and further
the paternal grandfather of the plaintiffs viz., Kalyani Chettiar has enjoyed
the suit property only in pursuance of Ex.A1, the sale agreement alleged to have
been entered into between him and second defendant and in view of the decisions
referred to earlier, it is very clear that the said Kalyani Chettiar and the
plaintiffs are not at all entitled to claim adverse possession and therefore,
the plaintiffs are not entitled to get the reliefs sought for in the plaint.
31.The cumulative effect of the substantial questions of law raised
on the side of the appellant is as to whether the appellants have perfected
title to the suit property by adverse possession.
32.It has already been elaborately dealt with that the plaintiffs
are not entitled to claim adverse possession in view of the bereft of necessary
particulars of adverse possession in the plaint and also in view of the
decisions referred to supra and therefore, all the substantial questions of law
raised on the side of the appellant/first plaintiff are not factually and
legally sustainable.
33.The Courts below after having elaborate discussions have rightly
non-suited the plaintiffs. In view of the foregoing narration of both the
factual and legal premise, this Court has not found even a flimsy ground to make
interference with the well merited judgments passed by the Courts below and
therefore, the argument advanced by the learned counsel appearing for the
appellant is sans merit, whereas the argument advanced by the learned counsel
appearing for the contesting respondents is really having subsisting force and
altogether the present second appeal deserves dismissal.
34.In fine, the present second appeal deserves dismissal and
accordingly is dismissed with costs. The judgment and decree passed in Original
Suit No.201 of 1991 by the Principal Subordinate Court, Tirunelveli, upheld in
Appeal Suit No.49 of 1999 by the Second Additional District Court, Tirunelveli
are confirmed.
gcg
To
1.The Second Additional District Judge,
Tirunelveli.
2.The Principal Subordinate Judge,
Tirunelveli.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High
Court, Madurai.