IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 6.02.2002
CORAM:
THE HONOURABLE MR. JUSTICE K. SAMPATH
SECOND APPEAL No. 1820 of 1989
Sabariaradimai .. Appellant
Vs..
Maria Retnam .. Respondent
! For Appellant .. Mr. K.V.Subramanian
^ For Respondent .. Mr. T.R.Rajaraman
The second appeal is filed against the Judgment and Decree,
dt. 28.2.1989, made in A.S.No. 101/1984, by the Sub-Judge,
Padmanabhapuram.
: J U D G M E N T
The substantial questions of law raised
in the second appeal are: “1. Whether the decree and
judgment of the Court below are to be set aside for
non-consideration of document produced on the side of the
appellant viz., Ex.B.19 etc. and non-consideration of
the Commissioner’s evidence and report, and plan marked
in the present suit and for relying upon the
Commissioner’s report rendered in a different suit which
do not have a binding effect on the defendant-appellant?
2. When there is a boundary dispute, whether the Courts
below are right in decreeing the suit on the question of
title by adverse possession between two adjacent owners?
3. Whether the judgment of the appellate Court is
vitiated as it failed to do its duty of final fact
finding authority after considering the evidence produced
and hence it is perverse?”
2. The first defendant in O.S.No.513 of
1980 on the file of the Principal District Munsif,
Padmanabhapuram, is the appellant in the second appeal.
The first respondent herein filed the suit for
declaration of his title, possession and for injunction.
Her case was as follows: She was the owner
of 11 ½ cents in R.S.No.476/23, corresponding to old
S.No.6466 at Lakshmipuram Village. She got it under the
title deed, dt.3.4.1121 M.E. executed by her father.
The property was surrounded by well defined old kasalas
more than 70 years of age. The property had been in her
possession and enjoyment. The defendants were the
adjacent owners of S.No.476/17 which was on the western
side of the plaint schedule property. They had no manner
of right or possession over the plaint schedule property.
The plaint schedule property was more than 4′ lower in
level than the property of the defendants. As the
defendants attempted to encroach upon the suit property,
and put up a new boundary, the suit was necessitated.
The disputed property had been in the possession of the
plaintiff and her ancestors for a long time. Her
possession was of right, open and hostile to all others
and so even if the defendants or their
predecessors-ininterest had any right in the remote past,
it had been long lost by adverse possession of the
plaintiff from 3.4.1121 M.E.
3. The first defendant alone contested
the suit. The other defendants remained ex parte. The
plaintiff was not entitled to 11 ½ cents in Old S.No.6466
corresponding to R.S.Nos.476/17 and 476/23. The gift
deed, dt.3.4.1121 M.E. for 14 cents was obviously wrong.
There were no such separating boundaries as alleged in
the plaint. The plaintiff did not rely upon any other
source of title to the suit property. Patta was wrongly
issued in resurvey for the whole of R.S.No.476/23 by
altering the original settlement. The great grandfather
of the plaintiff and the first defendant was in enjoyment
of the property long prior to the last settlement. He
sold a portion of the suit property to his son
Vydhianathan, the grand father of the plaintiff, on 8.2
.1068 M.E. describing the portion conveyed as the
eastern half of the middle one third of the southern half
of Lekkom 134. The Lekkom was wrongly stated. On the
same date the said Devasahayam sold the remaining western
half to Meyyal and his brothers. After the death of
Vydhianathan, his right was inherited by his only son
Manuvel, who gave a gift of his property to the
plaintiff. The gift deed in favour of the plaintiff was
valid and effective only in respect of the eastern one
half of old S.No.6466. The first defendant and his
brother Pathrose filed a suit O.S.No.139 of 1976 for
partition of the western one half against the other
sharers, and others who were defendants 2 to 9 in the
present suit. The suit was decreed and after the
preliminary decree, the first defendant purchased the
remaining shares from the sharers. Thus, the first
defendant became entitled to the whole of western half of
S.No.6466, which now consisted of R.S.No.476/17 and the
suit property. Defendants 8 and 9 had no right to any
portion of the S.No.6466. The suit was barred by
limitation.
4. The trial Court framed three issues
and one additional issue: “1. Whether the plaintiff is
entitled to a declaration of title and possession as
prayed for? 2. Whether the plaintiff is entitled to a
permanent injunction prayed for? 3. Reliefs and costs?”
Additional issue: “Whether the plaintiff has perfected
title by adverse possession?”
5. The learned District Munsif, decided
the additional issue first and held that the plaintiff
had prescribed for title by adverse possession.
6. On issue No.1, the learned District
Munsif held that the plaintiff could claim title only for
half of 21 cents as per Ex.A.1 which followed Exs.B.1 and
B.2. However, on the finding that the plaintiff had
established title by adverse possession and in the
resurvey the plaint property having been included in
R.S.No.476/1923 and the patta also having been issued to
the plaintiff, it held that the plaintiff was entitled to
declaration and possession in respect of the plaint
property and therefore entitled to a permanent
injunction. Consequently, by judgment and decree,
dt.17.8.1984 the trial Court granted the prayer of the
plaintiff.
7. The first defendant filed appeal in
A.S.No.101/1984. The learned Subordinate Judge,
Padmanabhapuram, by judgment and decree, dt.28.2 .1999
dismissed the appeal and confirmed the decision of the
trial Court. It is, as against this, the present second
appeal has been filed.
8. The substantial questions of law have
already been set out.
9. The only point for consideration, in
my view, is whether the plaintiff has proved adverse
possession as claimed by her. For coming to the
conclusion that the plaintiff had prescribed for title by
adverse possession, the trial Court as well as the lower
appellate Court have relied on certain alleged admission
on the side of the first defendant in the prior suit, the
commissioner’s report and plan therein, and the evidence
of the same Commissioner in the present suit as P. W.2.
In support of her case of adverse possession, the
plaintiff has not produced any document whatsoever. She
relies on the prior report and plan and the evidence of
the Advocate Commissioner, and also the grant of patta in
the resettlement proceedings. Ex.A.4 is the true copy of
the proceedings of the Assistant Settlement Officer,
Enquiry II, Padmanabhapuram, and it is dated 30.9.1974.
The suit is of the year 1980. To show that he had been
in possession of the property for over 12 years, the
plaintiff should have produced some material, prior to
1974. There is nothing on record on the side of the
plaintiff to show her possession prior to 1974. I will
come to the prior suit plan and report of the
Commissioner as also the evidence of the commissioner
presently. In the meantime, let us have a look at the
documents produced on the side of the first defendant.
10. Exs.B.2 to B.15 are the land tax
receipts covering the period 1 2.9.1956 to 2.8.1975.
They clearly show that the first defendant had paid the
land tax for 10 ½ cents, which is exactly what is claimed
by him as his property. As against these documents, as
already noted, no scrap of paper has been produced by the
plaintiff to show her possession prior to 1974. The
trial Court as well as the appellate Court have relied on
Ex.A.8 which is the certified copy of the Commissioner’s
report and plan in O.S.No.139/1976. In dealing with
Ex.A.8, the courts below have made much of the existence
of fences in the properties. In the report filed in the
prior suit, the age of the fence is not given. Only when
the Commissioner was examined in the present suit as
P.W.2 on 30.7.1984, he had given the age of the fence as
15 years. The prior suit was in the year 1976. The
present suit is 1980. The deposition of the Commissioner
to the effect that the fence in the property was 15 years
old, has to be taken only with a certain amount of
reservation. That cannot by itself show that the
plaintiff was in possession of the suit property. In
this connection, both the Courts have not properly
adverted to the vital admission by the plaintiff’s
husband in the prior suit which has been marked as
Ex.B.16 in the present suit, saying that the plaintiff
was in possession of only her half share out of the total
extent of 21 cents. This vital admission had been
explained away by the trial Court stating that any
evidence by the plaintiff’s husband would not bind her.
This, in my view, is not the correct approach
particularly when some right by adverse possession is
sought to be conferred on a party. On this vital
admission by the plaintiff’s husband regarding the
possession of the property, we can safely assume that the
plaintiff was in possession only of an extent of 10 ½
cents and not 11 ½ cents as claimed by her. As regards
the nature of right and necessity to plead right by
adverse possession it is well settled that it is
exception to the law of acquisition of title through
lawful means and has to be pleaded with certainty and
proved to the hilt, and in my considered view, it has not
been done by the plaintiff in the present suit. The
finding by the Courts below on adverse possession is
vitiated by application of wrong tests and based on
surmises and assumptions not at all justified.
[BUDHWANTI & ANOTHER VS.. GULAB CHAND PRASAD (AIR 1987
SC 1484 = 19 87 (2) SCC 153]. The two Courts have made a
patent mistake and I am well within my powers under
Section 100 CPC in reappreciating the evidence and coming
to my own independent conclusion. [see MADAN LAL VS..
GOPI [AIR 1980 SC 1754].
11. The title has been found by both the
Courts in favour of the first defendant/appellant. The
Courts below have misapplied the legal principles. They
also erred in placing reliance on patta proceedings which
would not prove the title of the plaintiff and in any
event so far as the present resurvey is concerned, the
demarcation in resurvey cannot be put against the first
defendant, when there is dispute regarding boundary. The
position is well settled by the decision of the Full
Bench of this Court in SIVAPRASAD VS.. NARASIMHAMURTHI [
AIR 1940 MADRAS 187]. The Madras Survey and Bounaries
Act, does not empower the Survey officer, or the
appellate authority to decide who was in law entitled to
the property under survey. There is no provision in the
Act which can be read as operating in such circumstances
to prevent A, when B had been registered as the owner of
a holding, from instituting a suit in a Court of
competent jurisdiction to establish his title as the true
owner. K.
SAMPATH, J. 12. This is a case of concurrent
mistake by two Courts with regard to adverse possession.
Consequently, I hold that the appellant is entitled to
succeed. All the substantial questions of law are
answered in favour of the appellant. The judgment and
the decree, dt.17.8.1 984 of the learned District Munsif,
Padmanabhapuram, in O.S.No.513/19 80 as confirmed in
A.S.No.101/84 by the learned Subordinate Judge,
Padmanbhapuram, on 28.2.1989 are set aside. The Suit
O.S.No.513/1980 will stand dismissed. No costs.
6.2.2002 Index:Yes/No pb
To
1. The Subordinate Judge Padmanabhapuram. (with
records)
2. The District Munsif, Padmanabhapuram.
3. The Record Keeper, VR Section.
S.A. No.1820/89