IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21-04-2010
CORAM:
THE HONOURABLE MR.JUSTICE S. PALANIVELU
A.S.Nos.935 and 936 of 2008 and
M.P.Nos.1 of 2008
Mrs. K. Saraswathy ... Appellant
[in both A.Ss.]
vs.
1.The State of Tamil Nadu rep.
by the Collector of Chennai,
Chennai 600003.
2. The City Municipal Corporation
represented by its Commissioner
Rippon Building,
Chennai 600003.
3. A.P. Rangarao
4. A. Mukundiah ... Respondents
[in A.S.No.935/08]
1. A.P. Rangarao
2. A. Mukundiah … Respondents
[in A.S.No.936/08]
Appeal Suit No.935 of 2008 is filed under Section 96 Order XLI Rule 1 of the Code of Civil Procedure against the judgtment decree dated 2.9.2008 made in O.S.No.2844 of 2004 on the file of the VII Additional Judge,City Civil Court, Chennai.
Appeal Suit No.936 of 2008 is filed under Section 96 Order XLI Rule 1 of the Code of Civil Procedure against the judgtment decree dated 2.9.2008 made in O.S.No.8866 of 2005 on the file of the VII Additional Judge,City Civil Court, Chennai.
For Appellant : Mr.T. Srinivasaraghavan
[in both A.Ss.]
For Respondents : Mr.V. Ravi
Special Govt. Pleader
[for R-1 in A.S.No.935/2008]
Mr.V.Bharathidasan
[for R-2 in A.S.No.936/2008]
Mr.B.T. Seshadri
[for R3 & R4 in A.S.No.935/2008
and R1 & R2 in A.S.No.936/2008]
C O M M O N J U D G M E N T
Because of the interconnectivity of the matter, the common judgment is rendered.
1. The plaint in O.S.No.2844 of 2004, filed by the appellant herein, contains the following averments:-
1.(a) Land measuring 2419 Sq.ft. with superstructure therein in T.S.No.15(part) Block No.3, in Sembium Village, Purasavalkam-Perambur Taluk, Chennai with other properties were purchased by M. Sethumadhavan from one M. Sadullah Bhasha and others by a registered sale deed. Thereafter the said Sethumadhavan sold the suit land with small superstructure, to the plaintiff. The plaintiff demolished the superstructure and applied to the Corporation/2nd defendant, for planning permission and building license for construction of house. The 2nd defendant also granted planning permission and building license to build ground floor of the proposed building. The plaintiff obtained house building loan from Life Insurance Corporation of India, constructed the house with the ground floor and residing in that house. She got electricity connection and is paying property tax as assessed by the second defendant. Thereafter, she applied for planning permission and building license for construction of the first floor in the house and the second defendant granted the same for additional construction. On the strength of planning permission, she completed the construction of the first floor in the month of May 2000 and is in possession of the land and building by paying property tax and electricity consumption for the said building.
1.(b) To her shock and surprise, the plaintiff received a show cause notice on 13.11.2000 from the 2nd defendant as to why the planning permission and building license granted to her should not be revoked. She sent reply to that notice on 23.11.2000. But the 2nd respondent by order dated 29.12.2000, revoked the planning permission and building lincense under Sec.54(2) of the Tamil Nadu Town and Country Planning Act and under Sec.365(4) of the Madras City Municipal Corporation Act, which is illegal arbitrary, without lawful authority and colorable exercise of powers.
1.(c) The plaintiff filed W.P.No.2369 of 2001 before the High Court, Madras, against the above order. The said writ was admitted. Subsequently, the defendants 3 and 4 (respondents 3 & 4 in A.S.No.935/2008) filed petition for impleadment to the said writ petition and the same was allowed. The writ petition was finally disposed of with a direction to the plaintiff to establish her title in Civil Court and also directed her and the defendants 3 and 4 to work out their remedy in the Civil Court. Hence, the plaintiff filed this suit seeking for declaration of her title to the suit property and for consequential reliefs.
1.(d) Originally one Muthu was in possession of the suit property. Subsequently, Sadulla Basha purchased the property and he had been in possession and enjoyment of the property. After the sale deed by Sadulla Bhasha and his sons to Sethumadhavan, Sethumadhavan was in possession of the property. There was a small superstructure with a tiled roof. The plaintiff purchased the land with the superstructure from Sethumadhavan on 6.9.1984 under a registered sale deed, demolished the superstructure and constructed a pucca building after obtaining necessary planning permission and building licence from Corporation authorities. It is therefore clear that the plaintiff and the vendors had been throughout been in open, uninterrrupted and continuous possession and enjoyment of the schedule land and superstructre.
1.(e) It is further averred in the plaint that the first defendant i.e., the Collecter of Chennai by order dated 13.8.1996 cancelled the patta granted by the Tahsildar. The cancellation of patta did not take into account the spate of registered documents and the cancellation was the result of a casual approach and without going into the substance of the matter. Patta is not a document of title but it is only a bill of rent. It is now settled law that the revenue authorities cannot decide the question of title in respect of immovable properties and it is the prerogative of the Civil Court to adjudicate upon the title in respect of immovable properties. Therefore the cancellaion of patta cannot be put against the plaintiff, as the cancellation did not take into account several clinching documents of title and continuous possession by the concerned parties. The person, i.e., Thiru Denduluri Durgaprasad who petitioned to the collector had not established his title before him. Further, the Collector also did not take into account whether Mr. Denduluri Durgaprasad was in possession of the property in dispute. The cancellation of patta by the Collector was on superfluous grounds and on alien consideration.
1.(f) In the writ petition, the defendants 3 and 4 intervened and claimed title to the schedule land, who have absolutely no manner of right, title and interest in the schedule land. It is not established that the defendants 3 & 4 have any substring right, title or interest. Even the person who claimed to be the original owner had not been in possession of the land in question for over the statutory period and the title of the said person got extinguished by lapse of time. The defendants No.3 and 4 had never been in possession of the suit land. The plaintiff constructed the house in the year 1987 and it is in existence for over 15 years. Therefore, it is clear that the defendants No.3 and 4 could not have been and are not in possession of the suit land. Hence the suit may be decreed as prayed for.
2. In the written statement filed in O.S.No.2844 of 2004 by the second defendant/Corporation Commissioner, it is alleged as under:
2.(a) The suit is not maintainable either in law or on facts. The plaintiff has filed the suit with false and frivolous averments. Initially the plaintiff got sanctioned plan for additional construction in ground floor in respect of the suit property from Corporation of Chennai vide proceedings dated 28.10.99. Since, there was a dispute in respect of the suit property, the Collector of Chennai vide Proceeding No.J4/69381/93 dated 13.08.1996, after careful examination and verification of the other connected documents produced by the plaintiff and on enquiry, cancelled the patta issued in favour of the plaintiff and three others. In the above proceedings, the Collector has observed that the documents furnished by the plaintiff have no link with the original owner of the property Denduluri Vaidyanatha Krishnamurthy and ordered to restore the name of Denduluri Vaidyanatha Krishnamurthy in the original records for T.S.No.15/4, Block No.3, Sembium Village, Chennai.
2.(b) Since the plaintiff had obtained sanctioned plan by suppression of material facts, this defendant issued show-cause notice to the plaintiff. But the plaintiff has not given any specific reply for the points mentioned in the show cause notice. Based on the show cause notice and after careful examination of records, the planning permission and building permit were revoked by this defendant vide proceeding No.D4/5084/99 dated 29.12.2000. As per the direction of High Court in W.P.No.2369 of 2001, the plaintiff has to approach the City Civil Court within a period of two months from the date of the order. It is also specifically stated in the order that in the event of failure on the part of the plaintiff to approach the Civil Court and to get an order of interim stay as directed, the direction granted to the Commissioner, Corporation of Chennai, shall stand automatically vacated. Since the planning permission and building permit have been revoked and also as per the direction of W.P.No.2369 of 2001, action has been taken under 256(3) of the Madras City Municipal Corporation Act and notice was served on the plaintiff.
2.(c) The patta has been issued in favour of original owner Sri Denduluri Vaidyanatha Krishnamurthy, in the year 1985 in respect of property comprised in S.No.15, Block No.3 to the total exetnt of 6 = grounds. The patta issued to the plaintiff has been cancelled by the Chennai Collector by his proceedings on 13.8.1996. Against the order of cancellaion of patta, there was no appeal or challge by the plaintiff before any court or any appropriate forum. Therefore, the order of the Collector cancelling the patta became absolute and permanent. Urban Land Tax is being paid by the original owner and C.R.Durga Prasad upto 1996 right from the purchase in 1948 for the entire 6 = grounds and later Mr.A.P.Ranga Rao and his elder brother A.Mukundiah paid Urban Land Tax in their name from their purchase in 1986. Since the patta was cancelled by the Collector, the planning permission is bound to be cancelled and treated the building in the suit property as unauthorised and subject to demolition. The plaintiff had already filed a suit in O.S.No.4842 of 1999 in the City Civil Court and the same was dismissed as withdrawn. This defendant has taken necessary action by due process of law only and all the notices and the orders issued by the defendant are valid. The suit is barred by limitation. Hence the suit is liable to be dismissed.
3. The following are the averments contained in the written statement filed by the 3rd and 4th defendants in O.S.No.2844 of 2004 :-
3.(a) The suit is false, frivolous and unsustainable in law and on facts. The plaintiff is put to strict proof of all the allegations contained in the plaint except those that are admitted herein. The suit was not filed within the time stipulated by the High Court, Chennai. High Court has directed the plaintiff in the writ petition that she should file a suit within 4.9.2003 and seek necessary relief. But the plaint shows the suit was filed only on 12.11.2003. Hence the suit ought not have been entertained by the Court and the same should be rejected with costs. The plaintiff is now perfectly aware that this suit vacant site forms part of larger extent of area owned by late Denduluri Vaidyanatha Krishnamurthy and after his death, his legal representatives were in possession of the entire area till it was purchased by these defendants. Nobody else has got any interest, right or title to the suit property. It is not correct to state that the vacant site measuring 2419 sq.ft. with a superstructure was purchased by one Sethumadhavan from one Sadulla Bhasha and others in 1983 and the said Sethumadhavan was in actual possession and enjoyment of the property. The plaint is silent about how or from whom Sadullah Bhasha got the same. It is evident that the said Sadullah Bhasha had no manner or right whatsoever in the suit property who sold the same by taking advantage of the fact that the real owners of the property were residing in Kakinada, Andhra Pradesh. He posed himself as owner of the suit property and sold the same to one Sethumadhavan from whom the plaintiff is alleged to have purchased. On the basis of the fictitious sale deed, the present plaintiff got a patta in her name and subsequently got a building plan sanctioned by the 2nd defendant and put up a structure on the suit site.
3.(b) The sons of the said late Denduluri Vydyanatha Krishnamurthy on coming to know the fraud played upon by the said Sadullah Basha, Sethumadhavan and the plaintiff, presented a petition to the first defendant [Collector of Chennai] who enquired into the same and found that they had trespassed into the suit land and created fictitious sale deeds and on the strength of those deeds, maneuvered to get patta and so the patta granted in favour of the plaintiff was cancelled. The same was brought to the notice of 2nd respondent, who on verification found that the above said persons have committed fraud and maneuvered to get a building plan sanctioned and so revoked the sanctioned plan and directed the plaintiff to demolish the unauthorised construction put up on the suit site.
3.(c) Show cause notice was sent by 2nd defendant to the plaintiff on 13.11.2002 and the plaintiff submitted her explanation to the show cause notice. The 2nd respondent found that the explanation given by her was not satisfactory and so the building plan and license was revoked. Hence, it is not correct to state that the order of the revocation is illegal, arbitrary, bereft of lawful authority and amounts to colourable exercise of powers.
3.(d) The plaintiff filed O.S.No.4842 of 1999 in the City Civil Court against the 2nd defendant and its Asst. Engineer, for a declaration that the notices sent by these defendants are illegal, null and void and consequential injunction restraining these defendants from demolishing superstructure. As these defendants have become the owners of the entire property by virtue of sale deeds executed by the legal representatives of deceased Denduluri Vaidyanatha Krishnamurthy on 14.2.1996, they filed a petition to get themselves impleaded as defendants 3 and 4 in the above suit. Immdiately the said suit was not pressed and the same was dismissed as not pressed. Then the plaintiff filed W.P.No.2369 of 2001 to quash the order of the second defendant dated 29.12.2000. However, the petition was dismissed with a direction to the plaintiff to establish her title and work out her remedy in a Civil Court by filing a suit on or before 04.09.2003. As aforestated the above suit was not filed within the stipulated period and so the suit is not maintainable.
3.(e) The allegation that the plaintiff and the vendors had been in open, uninterrupted and continuous possession of the suit land with superstructure is false, because the owners though absentee-landlords, residing in Andhra Pradesh, have been paying Urban Land Tax till date. After cancellation of pattas by the first defendant, all the revenue records were restored in the name of the original owner by the Tahsildar, Purasawalkam-Perambur, Chennai-11 and the subsequent purchasers were trespassers and have no right whatsoever in the suit property. It is not correct to state that the defendants 3 and 4 have absolutely no manner of right, title or interest. It is equally false to allege that even the person who claimed to the original owner had not been in possession of the land in question for over the statutory period and the title of the said person got extinguished by lapse of time. Not only the original owners have been paying the Urban Land Tax but also got the patta in their names. It is therefore futile to contend that the original owners had not been in possession for over the statutory period. It is not open to the plaintiff to raise the question of adverse possession when she seeks declaration on the basis of the sale deed in her favour.
3.(f) The plaintiff has miserably failed to establish how her predecessors especially Sadullah Bhasha got title to such a vast property or even to the suit property and from whom he had purchased or how his vendor acquired the suit property. The said Sadullah Bhasha is a rank trespasser and he had created fictitious documents to cheat the purchasers and subsequently committed a fraud on the Revenue officers and maneuvered to get patta on 28.1.1988. The plaintiff and her vendors have played fraud on the strength of fictitious sale deeds and managed to get patta not only in the name of the plaintiff but also the neighbours. When the L.Rs of the Denduluri Vaidyanatha Krishnamurthy came to know about the patta granted in the name of the plaintiff and other three individuals he filed a petition before the 1st defendant, who on enquiry, close scrutiny and examination of the documents produced by both the parties, was satisfied with the title of the late Deduluri Vaidyanatha Krishnamurthy and that the fictititous sale deeds have no connection whatsoever with the title of the late Deduluri Vydyanatha Krishnamurthy.
3.(g) The suit land and the adjacent areas were all vacant sites and the plaintiff and her predecessors have trespassed into a portion and created fictitious sale deeds and cheated the defendants 3 & 4. Being the vacant site, the late Denduluri Vaidyanatha Krishnamurthy had been paying only the ULT and a vacant site is said to be in constructive possession and he later became permanent resident of Kakinada, A.P. His ownership is fortified by registered sale deed and therefore it is not correct to state that the claim of the defendants 3 and 4 who purchased the same from the rightful owner is not maintainable. The plaintiff who traces her title to the suit property has not stated how Sadulla Bhasha acquired title to the suit property. Therefore the suit may be dismissed with costs.
4. Besides those are pleaded in the written statement in O.S.No.2844 of 2004, other averments found in O.S.No.8866 of 2005, filed by the plaintiffs/respondents 3 & 4 in A.S.No.935 of 2008 are as follows:-
4.(a) Ever since the said Denduluri Vaidyanatha Krishnamurthy had been in possession and enjoyment of the property till 1975 when he died leaving behind his wife, four sons and two daughters and they have been in possession of the entire area of 6 = grounds. They have also obtained patta for the said land even as early as in 1985 and paying the Urban Land Tax till date. The said family first resident of Madras, later shifted to their native place Kakinada, Andhra Pradesh and have been visiting the land often to prevent any encroachment by third parties, since the same is open vacant site without any compound wall.
4.(b) In due course, they found difficult to manage the said property and so they appointed the first plaintiff as their legal agent to look after the property. On his inspection, it was found that the defendant has put up a superstructure on the North eastern corner abutting E.B.Road and on further probe it was learnt that she has obtained a bogus patta from the revenue department in respect of the suit land and also a building plan from the Corporation and put up a superstructure. The first plaintiff therefore asked Deduluri Durgaprasad to give complaint to the Collector of Madras to enquire into the circumstances which had led to the grant of patta in favour of the defendant and three others. The enquiry disclosed that one Sethu Madhavan created a fictitious sale deed and the defendant appears to have purchased the land from him, who is only a way-farer. On the strength of fictitious sale deed, the defendant appears to have persuaded the revenue officials to grant patta in her favour and Corporation officials to sanction a plan to put up a building on the suit site and got the same. Hence the Collector of Madras cancelled the patta issued to the defendant on 13.09.1996. She did not prefer any appeal or challenge the orders of the Collector in any Court of law, or before any appropriate forum at any time and the order of the Collector became final and conclusive.
4.(c) Since the family of Denduluri Vaidyanatha Krishnamurthy, has been finding very difficult to look after the entire area of 6 = grounds, the plaintiffs were persuaded to purchase the lands and got executed the sale deed in their favour for valid consideration on 15.2.1996 and thus they have become the absolute owners of the property.
4.(d) In spite of the direction given by the High Court by way of clarification to file the suit within two months from the date of 04.07.2003 to establish her title in a Civil Court, the defendant did not care to carryout the direction, but filed the suit belatedly eight months later against the Collector of Channai, Corporation of Madras and these plaintiffs, for a declaration of her title to the superstructure. The circumstances stated above clearly disclose that she is perfectly aware that she had no valid title to the suit vacant site and she wants to prolong the matter as long period as possible. Hence, the suit may be decreed as prayed for.
5. In the written statement of defendant/appellant, the following are the contents in addition those whice are mentioned in the plaint in O.S.NO.2844 of 2004:-
5.(a) The claim of the plaintiff is not sustainable on questions of fact as well as under law. The plaintiffs are not entitled to any relief. This defendant does not admit the plaintiffs’ claim that the suit land was owned by late Denduluri Vaidyanatha Krishnamurthy by virtue of a sale deed dated 5.4.1948. The plaint is deliberately silent as to who the vendor was and what was pre existing title that the vendor had. The said Denduluri Vaidyanatha Krishnamurthy did not derive any right, title or interest in the land referred to above, much less in the suit land. In any event he was never in possession of the land nor did he exercised any act of ownership on the said land. The defendant had at all material times been and is in actual physical possession and enjoyment of the suit property.
5.(b) The plaintiffs with the evil intention of harassing this defendant filed W.P.No.3589 of 2006 in the High Court seeking a Writ of Mandamus to direct the City Municipal Corporation of Chennai and Junior Engineer/Assistant Engineer of Corporation of Chennai to demolish the suit house. The defendant resisted the unlawful claim made in the writ petition. The High Court disposed the same on 21.3.2006 with a direction for the joint trial of the above suit and O.S.No.2844 of 2004 filed by this defendant and to dispose of within a period of one year.
5.(c) The suit land is part of a larger extent of land. For the adjacent lands in the same survey number, pattas were issued to the respective land owners and they had also constructed superstructure on their respective lands. It is therefore clear that in the surrounding lands also different persons own land and constructed superstructures. Therefore the plaintiffs’ claim over the suit property is not maintainable. The defendant had constructed a pucca building on the suit land on the basis of the planning permission dated 10.9.1987. The suit building is in existence for over 17 years. It is therefore clear that the plaintiffs and their predecessors had not been and are not in possession of the suit land. Though the plaintiffs claim that a sale deed was executed on 15.02.1996 in their favour, no such sale deed had been produced into Court. Even if such a document exists, it is not true and valid. No title was conveyed to the plaintiffs. Hence the suit may be dismissed with costs.
6. The allegations contained in the above written statement were denied in detail by way of reply statement by the plaintiffs.
7. After consideration of the pleadings, exhibits and oral evidence on record, the learned VII Additional Judge, City Civil Court, Chennai, dismissed the suit in O.S.No.2844 of 2004 filed by the plaintiff with costs and decreed the suit in O.S.No.8866 of 2005, directing delivery of property as prayed for, granting two months time for the same. The defeated plaintiff the appellant has challenged the Common Judgment in these appeals.
[ For the sake of convenience, the ranks of the parties are referred in this judgement as pleaded in A.S.No.935 of 2008.]
8. The points for consideration before this Court are:-
1.Whether the appellant is the exclusive owner of the property?
3.Whether the rights of the respondents 3 and 4 got extinguished by law?
Points No.1 and 2:
9. Ex.A-1 is the sale deed executed by Sadulla Bhasha and his sons, 4 in number on 9.11.1983 in favour of K. Sethumadhavan with respect to the suit property. By means of Ex.A-2 sale deed, the said Sethumadhavan sold the property to the appellant on 6.9.1984. An extent of 2419 sq.ft. situate in Sembiam Village, Purasavakkam-Perambur Taluk in Chennai Corporation is the suit property. The appellant claims that she purchased the property from Sethumadhavan, who in turn had got it by a sale from one Sadulla Bhasha and others and the said Sadulla Basha was a tenant under one Muthu with respect to vacant site and was paying ground rent to Muthu and by means of an unregistered sale deed dated 24.4.1982 Sadulla Bhasha acquired the property. The unregistered sale deed has not seen the light of the day. The registered sale deed on the side of the plaintiff came to existence for the first time on 9.11.1983 by Ex.A-1. It is her further contention that she got patta and permission for construction of house in the suit property from the 1st and 2nd respondents respectively and that the respondents 3 and 4 have no right over the suit property.
10. Conversely, it is contended by 3rd and 4th respondents that the suit property originally belonged to Denduluri Vaidyanatha Krishnamurthy, that their legal representative sold the properties to them by means of Exs.B-4 and B-5 sale deeds dated 14.2.1996, that by means of Exs.B-1 and B-2 sale deeds dated 27.1.1945 and 5.4.1948 respectively, their predecessors were in exclusive right and title in the property, that Ex.B-3 patta was issued on 14.5.1985 in the name of Denduluri Vaidyanatha Krishnamurthy and the appellant is a mere trespasser to the suit property who has not derived any right or title from anybody else.
11. Ex.A-4 is the patta issued in the name of the appellant by the Tahsildar, Purasawalkam-Perambur on 28.1.1988 for the suit property. Ex.A-5 is the proceedings of the Life Insurance Corporation of India dated 8.2.1988 sanctioning a sum of Rs.82,000/- as loan to the appellant for construction of building in the suit property. Ex.A-6 to A-14 are the receipts issued by the Corporation of Madras for the payment of property tax for the house constructed by her. Exs.A-15 and A-17 are sanction orders issued by the Chennai Corporation dated 28.10.99 in her favour. By means of Ex.A-16, the appellant was informed regarding the revision of property tax by the 2nd respondent. Ex.A-18 is the approved plan for construction of house by the appellant. Ex.A-19 is the letter addressed to the appellant by the Life Insurance Corporation of India on 11.1.2000 as regards the house loan. Ex.A-20 is the proceedings of the District Collector of Madras dated 13.8.96 cancelling the patta issued in the name of the appellant. Ex.A-21 is the copy of notice issued by the 2nd respondent to the appellant called her for show cause as to why the Planning Permission and Building Permit should not be revoked in view of cancellation of patta. By virtue of Ex.A-22 reply to the 2nd respondent the plaintiff stated that she is the title holder of the property,that she has constructed the house 12 years ago and that she has got prescriptive title by adverse possession. Ex.A-23 is the proceeding issued by the 2nd respondent dated 29.12.2000, revoking the planning permission and building permit already issued to the appellant.
12. The appellant filed suit in O.S.No.4842 of 1999 on the file of the City Civil Court, Chennai against the present second respondent for declaration that the notices issued by the Corporation officials are illegal and void and for consequential injunction restraining the Corporation from demolishing the superstructure put up by the appellant. The 3rd and 4th respondents filed petition to get themselves impleaded as parties to the suit and on coming to know to this, she withdrew the same as not pressed, as per the pleadings and written statement filed by 3rd and 4th respondents. Thereafter she filed a Writ Petition in W.P.No.2369 of 2001 against the 1st and 2nd respondents to quash the order of revocation, show cause notices issued by them. 3rd and 4th respondents filed applications to implead them and they were impleaded as parties in the writ petition. The writ petition was disposed of with the following observations:
“The dispute is with regard to the documents produced by the petitioner before obtaining planning permission as they are found to be forged. The Collector of Madras by order dated 13.08.1996 had found the patta produced by the petitioner as forged. Based upon the said order, the planning permission and building permit given to the petitioner were sought to be cancelled by the impugned order . It is not in dispute that the first respondent has the power to cancel the planning permission and building permit on the ground that the same were obtained by producing forged documents. However, the question as to the title in respect of the land cannot be gone into by this Court or the Collector or the first respondent. The same has to be adjudicated before the competent civil court. It is seen that the petitioner has earlier approached the Civil Court in O.S.No.4842 of 1999 and has withdrawn the same on 28.07.1999. Hence the contention of the learned counsel for the petitioner that the cancellation is not valid cannot be accepted. Accordingly, the writ petition had no merits and the same is dismissed. However, the petitioner is at liberty to approach the competent civil court to establish the title and the decision of the competent civil court shall bind the parties. The petitioner is also entitled to obtain interim order from Civil Court, till such time the application of the petitioner for interim order is considered and disposed of by the Civil Court, the first respondent shall not take any coercive steps to demolish the building already constructed by the petitioner pursuant to the planning permission. Both the petitioner and the third and fourth respondent shall work out their remedies before the competent Civil Court, No costs.”
13. Then the matter was posted in the list under the caption “For Clarification” at the request of the learned counsel for the respondents 3 and 4. After hearing both parties, this Court passed the following order:-
“On consideration the above submissions, I am of the view that the grievance expressed by the learned counsel for respondents 3 and 4 is reasonable and accepted. Accordingly, the petitioner is directed to approach the Civil Court within a period of 2 months from today (on or before 4th September 2003). In the event of failure on the part of the petitioner to approach the Civil Court and to get an order of interim stay as directed, the direction granted to the first respondent shall stand automatically vacated.”
14. It is the contention of 3rd and 4th respondents that even though time was fixed by this Court as two months from the date of clarification (04.07.2003), the suit was filed on 12.11.2003 and hence the rights of the appellant got extinguished. The direction was issued for the purpose of getting interim order alone and nothing had prevented the appellant from filing the suit for establishing her right before the Civil Court.
15. The 3rd and 4th respondents pressed into service Ex.B-3 patta issued in the name of their predecessor Denduluri Vaidyanatha Krishnamurthy on 14.5.1985. They state that they have derived right over the property by way of Exs.B-4 and and B-5. Ex.B-8 is the communication issued by Tahsildar Purasawalkam-Perambur, intimating the District Collector, Madras, that in view of the cancellation of patta standing in the name of appellant, the names of the owners of the suit property were entered again as entered earlier. Ex.B-11 are the receipts for payment of Urban Land Tax by 3rd and 4th respondents. They are from year 1994 onwards.
16. As the facts stand, the appellant had title in her name from 1984, the second respondent issued sanction for construction of house in the suit property in the year 1987. After the construction of the house she had been paying property tax every year till 2000. The 1st respondent cancelled the patta and the 2nd defendant revoked the planning permission and building permit. The District Collector in Ex.A-20 has observed that the documents produced by the appellant do not reveal that they have link with the original owner of the property, Denduluri Vaidyanatha Krishnamurthy. Since the patta was cancelled, the 2nd respondent revoked the building permission. It has been stated by the appellant that earlier to the filing of the suit, she has been in possession. If her contention were accepted, it is to be observed that she is in possession of the suit property for about 22 years. The 3rd and 4th respondents came to the picture in the year 1996 under Exs.B-4 and B-5 sale deeds. Hence, it is stated by the appellant that atleast from 1983 till 1996, the possession of the appellant has to be treated to have been undisturbed and admittedly there had been no objection nor intrusion on the part of the predecessors of the respondents 3 and 4. The learned counsel for the appellant Mr. T. Srinivasaraghavan also contends that even though there is no specific pleading in the plaint and the written statement filed by the appellant that she had prescribed title by adverse possession, she raised defence with regard to the point of limitation that over 12 years the original owners had not asserted their title or right over the property and this circumstance would show that the claim of the respondents 3 and 4 has been barred by limitation.
17. Per contra, Mr.B.T. Seshadri, learned counsel for the respondents 2 and 3 would state that the appellant has not shown any title relatable to the true owner, that it could not be stated that she had been in possession and enjoyment of the property over 12 years earlier to the filing of the suit, that without the knowledge that who were the true owner, she cannot plead adverse possession and that no question of prescription of title by adverse possession would arise. It is his further contention that the rights of the respondents 3 and 4 have not been barred by limitation.
18. The backdrop of factual aspects have to be looked into, as to whether the appellant had been in possession and enjoyment of the property over 12 years. To show that from 1983 to 1996, there had been any objection nor intrusion on behalf of the original owners, there is no material. Ex.B-3 patta in the name of Denduluri Vaidyanatha Krishnamurthy was issued on 14.5.1985. It is pleaded in the plaint in O.S.No.8866 of 2005 filed by the respondents 3 and 4 that the family of the predecessors in title of the plaintiffs later shifted their residence to their native place Kakinada, Andhra Pradesh and have been visiting the area often to prevent any encroachment by third parties, since the suit property is an open vacant site without any compound wall. In order to establish the pleading, no independent evidence is forthcoming. None of the predecessor in title was examined. Even though Ex.B-3 patta was issued, there is no evidence to show that after the patta, the possession of the appellant was disturbed between 1983 to 1996 on the strength of the same.
19. Learned Counsel for the appellant placed reliance on the Full Bench decision of the Supreme Court in AIR 1951 SUPREME COURT 459 [Collector of Bombay v. Municipal Corporation of the City of Bombay and Others] wherein Their Lordships have held that even though the possession not being referable to any legal title, it was prima facie adverse to the legal title of the Government as owner of the land. The operative portion of the judgment goes thus:-
“[5]. … … … Therefore, the position of the respondent Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant. This possession has continued openly as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title it and its predecessor in title had been prescribing for during all this period, that is to say , the right to hold the land in perpetuity, free from rent but only for the purposes of a market in terms of the Government Resolution of 1865. The immunity from the liability to pay rent is just as much an integral part of an inseverable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose. There is no question of acquisition by adverse possession of the Government’s prerogative right to levy assessment. What the respondent Corporation has acquired is the legal right to hold the land in perpetuity free of rent for the specific purpose of erecting and maintaining a market upon the terms of the Government Resolution as if a legal grant had been made to it. The right thus acquired includes, as part of it, an immunity from payment of rent which must necessarily constitute a right in limitation of the Government’s right to assess in excess of the specific limit established and preserved by the Government Resolution within the meaning of S.8 of the Bombay Act II (2) of 1976.”
20. The above said decision has been followed in a subsequent decision of the Supreme Court in AIR 1970 SC 1778 [State of West Bengal v. The Dalhousie Institute Society]. From the above said decisions the preposition has been laid down that even though if the person in possession who places the plea of adverse possession has not shown that his possession was relatable to any legal title, it is prima facie adverse to the legal title of the other party. In this case, it is the contention of the appellant that Muthu was the original owner and even though there was no document standing his name was produced, still she is able to trace her right from Sadulla Bhasha. The first document conferring right upon her came to existence in 1993 hence it could be construed that her right is relatable to Sadulla Bhasha. So it could not be contended that the possession pleaded by the appellant is not relatable to a legal title. Even if it is considered that she has not shown any title or right, still her prima facie possession from the date of Ex.A-1 i.e., 9.11.1983, her possession has to be considered to be adverse to the right of the rightful owner as per the principles laid down in the decisions aforementioned.
21. In 2004 (10) SCC 779 [Karnataka Board of Wakf v. Government of India and Others] Their Lordships were pleased to hold after referring to earlier decision of the Court as follows, with regard to the features to be discerned by the Courts in assessing and deciding the fact of adverse possession. The operative portion is as under:-
“11. … … … The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. [See 1. S.M. Karim v. Bibi Sakina, AIR 1964 SC 1254; Parsinni v. Sukhi (1993) 4 SCC 375; and D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC 567]. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Please of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma, (1996) 8 SCC 128]”
22. When the circumstances (a) to (e) indicated in the above said decision are established in a given case, the Court can infer and determine that there is adverse possession in favour of the party. In the considered view of this Court, the appellant has satisfied the legal requirements as to circumstances which happened between the period from 1983 to 1996.
23. The learned counsel for the appellant also draws attention of this Court to a decision reported in 1991 (1) L.W. 502 [S. Veluchamy Nadar v. Diravia Nadar and others] wherein M.Srinivasan.J (as His Lordship then was) after citing a decision of the Supreme Court, stressed the preposition that the party who claims title or right from the immovable property shall be so diligent in exercising his rights and seek remedy before the Court of law within the prescribed time. The relevant portion of the judgment is as follows:
“23. The corresponding Section for S.28 of the Limitation Act of 1908 in the Limitation Act of 19637 is S.27. Thus, there being only one exception to the rule that limitation bars the remedy and does not extinguish the right, it is not correct to say that an anomoalous situation will arise by keeping the suit pending and yet depriving the decree-holder of the fruits of the decree. The principles underlying the provisions of the Limitation Act is that the litigants should be diligent in exercising their rights and seeking the enforcement thereof through Courts of law. It is well settled that equitable considerations are out of place in construing the provisions of a statute of limitation and strict grammatical meaning of the words is the only safe guide, as the rule of limitation is based on public policy. Vide Bootamal v. Union of India [AIR 1962 S.C. 1716].”
If he approaches the Court beyond the period, even though he is deemed to have obtained right from the rightful owners, he could not be held to have derived such right against the party who establishes long, uninterrupted and open possession.
24. The next limb of contention of the learned counsel for the respondents 3 and 4 is that the plea of adverse possession has not been specifically mentioned either in the plaint or in the written statement filed by the appellant and any amount of evidence or contention without specific pleading would not be of no avail. Repelling the said contention the learned counsel for the appellant garnered support from two decisions of the Supreme Court. In AIR 1987 SC 1242 [Ram Sarup Gupta (dead) by L.Rs., v. Bishun Narain Inter College and others] Their Lordships have observed that the pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities.
25. The Apex Court, in a Full Bench judgment, reported in AIR 1966 SC 735 [Bhagawati Prasad v. Chandramaul] has held that if a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it, if it is satisfactorily proved by evidence, that the general rule no doubt is that the relief should be founded on pleadings made by parties and that where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them,then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case.
26. Adverting to the facts of the present case, though there is no categorical pleadings as to adverse possession, the necessary implication as to this question can be inferred from the pleadings placed by the appellant. In the plaint in O.S.No.2844 of 2004, the appellant has alleged that even the person who claimed to be the original owner had not been in possession of the land in question for over the statutory period and the title of the said person got extinguished by lapse of time. Even if it is taken that specific plea as to adverse possession is not raised, still in the written statement filed by her in O.S.No.8866 of 2005, she has candidly raised the defence that the suit is barred by limitation. Hence, the contention as stated above advanced by the respondents 3 and 4 cannot be countenanced.
27. The learned counsel for the respondents 3 and 4 would also contend that the fact of adverse possession should be brought to the knowledge of the true owner and if the true owner is not aware of the possession of the other person, even thought if he had been in possession for a long time over statutory period, he cannot acquire the right by adverse possession. But it is held in 2006 (7) SCC 570 [T. Anjanappa and others v. Somalingappa and another] that 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. In this case, it is the contention of the respondents 3 and 4 that the appellant had not brought her alleged possession to the knowledge of the original owners. The respondents 3 and 4 came to picture in the year 1996 and earlier to this, the appellant had been in possession. It is in the plaint filed by the respondents 3 and 4 that the original owners were first residents of Madras later shifted to their native place Kakinada, Andhra Pradesh and have been visiting the area often to prevent any encroachment by third parties, since the property is an open vacant site without any compound wall. As adverted to supra, no independent evidence is forthcoming to show either the original owner or his representatives visited the suit property then and there anterior to the sale deed in favour of the defendants 3 and 4. Hence, it is ought to be presumed that the original owners had been having the knowledge of the possession of the appellant in the suit property during the relevant period.
28. The learned counsel for the respondents 3 and 4 cites a decision in 2007 (6) SCC 59 [P.T.Munichikkanna Reddy and Others v. Revamma and Others] in which it is held as follows:
“6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statues by operation of which right to access the Court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one’s right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under the claim of right or colour of title.”
29. It is further observed in the case of Karnataka Board of Wakf v. Government of India and others [(2004) 10 SCC 779] that non-use of the property by the owner even for a long time won’t affect his title, but the position will be altered when another person takes possession of the property and asserts a right over it and that it must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. [See 1. S.M. Karim v. Bibi Sakina, AIR 1964 SC 1254; Parsinni v. Sukhi (1993) 4 SCC 375; and D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC 567]. The further observation goes that it is a well settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario” that is, peaceful, open and continuous.
30. In 2000 (II) CTC 219 [Kannappan v. Pargunan] this Court has observed that whether the plaintiff is recognising title only by him and he is claiming title in vendors he cannot say that he has got animus to hold the property against others and that once he admits that another person got title, the question of prescribing the title by adverse possession will arise.
31. The learned counsel for the respondents 3 and 4 also relied on a decision of the Apex Court in 2007 (14) SCC 187 [C. Natarajan v. Ashim Bai and Another] in which it is held that the period of limitation for filing suit for recovery of possession is 12 years and not 3 years as contemplated in Article 58 of the Limiataion Act. The said preposition goes thus:
“14. If the plaintiff is to be granted a relief of recovery of possession, the suit could be filed within a period of 12 years. It is one thing to say that whether such a relief can be granted or not after the evidence is led by the parties but it is another thing to say that the plaint is to be rejected on the ground that the same is barred by any law. In the suit which has been filed for possession, as a consequence of declaration of the plaintiff’s title, Article 58 will have no application.”
32. He also draws my attention to a decision rendered by me, reported in 2010 (2) CTC 379 [Kamalammal (dead) Annapoornammal (dead) 1. Kalyani 2. K. Ravi v. Girija and 2 others] in which after referring to various decisions I have observed that mere possession however long does not amount to adverse possession as per the settled principle so that in order to perfect or prescribe adverse possession one must expose his possession in the property hostile to true owner and with his knowledge, he has been enjoying the property as his own, provided the said possession has to be an uninterrupted one.
33. The following distinctive features emerge on a careful scrutiny of the circumstances of the case:
a. The appellant had been in possession and enjoyment of
the property from 1983 to 1996.
b. Evidence are not available to show that the original
owners used to visit the suit property often so as to
avoid encroachments therein, and the presumption drawn
shows that the true owners had direct knowledge of the
possession of the appellant, even after getting Ex.B-3
Patta.
c. Without interruption, continuously the appellant had been
in open possession for over 12 years.
d. The original owners earlier to 1996 had not moved their
little finger to question the possession of the appellant
during 1983-1996.
34. The above said circumstances would vividly portray that the appellant had been in long, open, continuous and uninterrupted possession, having animus to possess the property against the true owner. No suit has been filed by them for recovery of possession within the prescribed period of 12 years. Respondents 3 and 4 came to the picture only after the period of limitation lapsed. The overwhelming evidence and preponderance of probabilities show that the appellant is the owner of the suit property. The points are answered accordingly. In view of the above said findings, upon the view taken by this Court, it is inevitable to interfere with the judgment and decree passed by the trial Court, which are liable to be set aside and they are accordingly set aside. Both the appeals deserve to be allowed.
35. In the result both the appeal suits are allowed. O.S.No.2844 of 2004 is decreed and O.S.No.8866 of 2005 is dismissed. No costs. Connected M.Ps are closed.
21.04.2010 Index : Yes Internet : Yes ggs To The VII Additional Judge, City Civil Court, Chennai. S. PALANIVELU,J. Ggs Judgment in: A.S.Nos.935 and 936 of 2008 and M.P.Nos.1 of 2008 21.04.2010