BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 11/09/2007 CORAM: THE HONOURABLE MR. JUSTICE A.C.ARUMUGAPERUMAL ADITYAN S.A.No.1228 of 1995 1.Sundarraj 2.Durairaj 3.Dhairiyam ... Appellants Vs. G.George packkiam. ... Respondent PRAYER The Second Appeal has been preferred under Section100 of CPC against the judgment and decree dated 17.4.1995 in A.S.No.5 of 1995 passed by the learned Subordinate Judge, Pattukkottai, reversing the judgment and decree dated 28.12.1994 in O.S.No.807 of 1993 on the file of the District Munsif, Pattukkottai. !For Appellants ... Mr.K.Balasundaram ^For Respondent ... Mr.A.Hajamohideen :JUDGMENT
The defendant in O.S.No.807 of 1993 on the file of the District Munsif,
Pattukkottai, who has lost his defence before the first appellate Court, has
preferred this second appeal.
2.The averments in the plaint in brief relevant for the purpose of
deciding this second appeal sans irrelevant particulars are as follows:-
The plaint schedule property originally belonged to Anthoniyammal
w/o.Solaman Manivel Pillai, under family parition. In the year 1978 the said
Anthoniyammal had sold the plaint schedule property to the plaintiff by oral
sale. The plaintiff is in possession of the suit property from the year 1978
and thereby had prescribed title to the suit property by way of adverse
possession. The plaintiff is cultivating the suit property by raising paddy
crops and is also paying land tax to the Government. On 8.10.1993, the defendant
taking advantage of the oral sale made an attempt to intervene with the
possession of the plaintiff in the suit property and they obstructed the
plaintiff from ploughing the suit land. The defendants have no right title or
interest in respect of the suit property. Hence, the suit for declaration of
title and for consequential injunction.
3.The first defendant has filed written statement with the following
contentions:-
Anthoniyammal got the plaint schedule property in family partition and she
was in possession and enjoyment of the suit property till her death. The
averment that the said Anthoniyammal had sold the plaint schedule property in
the year 1978 for a valuable consideration in favour of the plaintiff is not
true. The plaintiff has not prescribed title to the suit property by way of
adverse possession. The suit is not maintainable. The plaintiff is not in
possession and enjoyment of the suit property and he has not raised any crops in
the suit property and he is not paying any land tax to the suit property. Late
Anthoniyammal had sons by name Thairiyam, Suntharaj & Thurairaj and daughters by
name Grace, Roseline, Pushpam & Manoranjeetham. Out of the daughters Grace and
Pushpam are now no more. Grace died issueless. But there are legal
representatives to late Pushpam. The suit is bad for non-joinder of necessary
parities. Anthoniyammal was in possession and enjoyment of the suit property
till her death. A portion of the property was acquired by the Government for
formation of canal and the compensation amount was also received by the said
Anthoniyammal. After formation of the canal Anthoniyammal was in possession of
about 30 Kuzhi of lands on the east of the canal and 27 kuzhi of lands on the
west of the said canal and was enjoying the same in two flats. She died on
21.12.1985. After her death, D1 & D2 are in possession and enjoyment of the
said land as legal heirs of Anthoniyammal. After the death of Anthoniyammal,
plaintiff approached the defendants for the sale of the suit property. Since D1
& D2 are not willing to sell the suit property to the plaintiff, with an
ulterior motive the plaintiff has filed the suit. The plaintiff is having both
muscle power and money power and the defendants are poor agriculturist. The
plaintiff have demolished the bund on the northern side of the suit property
and had ploughed the land and raised the crops. In this connection, the
defendants have preferred a police complaint against the plaintiff on 8.10.1993.
In a clandestine manner the plaintiff had obtained kist receipts in his name
from out of the money given by Anthoniyammal to pay the land tax in her name.
The plaintiff has no right title or possession in respect of the suit property.
There is not cause of action for the suit. Hence, the suit is liable to be
dismissed. The other defendants have adopted the written statement filed by D1.
4.On the above pleadings the learned trial judge has framed seven issues
for trial. Before the trial Court P.W.1 to P.W.5 were examined and Ex.A.1 to
Ex.A.3 were marked on the side of the plaintiff. On the side of the defendants
D.W.1 was examined and Ex.B.1 to Ex.B.13 were marked. After going through the
oral and documentary evidence, the learned trial judge had come to a conclusion
that the plaintiff is not entitled to any relief asked for in the plaint and
accordingly, dismissed the suit with costs, which necessitated the plaintiff to
prefer an appeal in A.S.NO.5 of 1995 before the learned first appellate Judge,
who after due deliberations to the submissions made by the counsel of the
appellant as well as the counsel for the respondents and after meticulously
scanning the evidence, has come to the conclusion that there are grounds to
interfere with the findings of the learned trial Judge and accordingly allowed
the appeal, thereby setting aside the findings of the learned trial Judge, which
necessitated the defendants to approach this Court by way of this Second Appeal.
5.The following substantial questions of law arose for consideration in
this second appeal:
i)Whether the lower appellate Court was right in sustaining the plea of
oral sale in the absence of proper pleading or proof in accordance with law?
ii)Whether the non-compliance of the provisions of Section 54 of the
Transfer of Property Act renders the oral sale pleaded unsustainable in law?
iii)Whether the plaintiff, who has pleaded oral sale can fall back on the
plea of adverse possession also?
6.The Point:- 6(a) The plaintiff has filed the suit for declaration and
injunction on two grounds. First being, he had purchased the suit property from
one Anthoniyammal for Rs.90/- orally in the year 1978. At the same time, the
plaintiff would plead that he had prescribed title to the suit property by way
of his long, continuous and uninterrupted possession for more than the statutory
period. But as correctly held by the learned trial Judge, the plaintiff has
miserably failed to prove the oral sale as well as the plea of adverse
possession. The plaintiff should stand or fall on his own legs. Either he must
plead that he has prescribed title under oral sale or he must plead and prove
that he had prescribed title to the suit property by way of adverse possession.
As rightly observed by the learned trial judge, the plaintiff is not definite
about his oral sale, as to the purchase of the suit property for Rs.90/- from
Anthoniyammal in the year 1977 or in the year 1978.
6(b) In the plaint, the plaintiff would aver that the oral sale is
of the year 1978, but in the Court as P.W.1 in the box, he would depose that he
had purchased the suit property by oral sale in the year 1977. If it is so,
then the plaintiff would have filed the land tax receipts relating to the year
1977 or 1978 to show that from the date of oral sale, he took possession of the
suit property and he is paying the land tax to the property from the date of the
purchase. The land tax receipts Ex.A.1 to Ex.A.3 produced by the plaintiff, are
of the year 1986, 1987 and 1993 respectively. A perusal of Ex.A.-land tax
receipt dated 15.4.1986 will go to show that on behalf of Anthoniyammal, the
plaintiff had paid the land tax for the fasalis 1388, 1389, 1390, 1391, 1394 &
1395. From Ex.A.1 it cannot be presumed that the plaintiff is in possession of
the suit property from the year 1978. If the case of the plaintiff is true that
he had purchased the suit property from Anthonyammal then there is no necessity
for him to pay the land tax on behalf of Anthoniyammal under Ex.A.1. Ex.A.2 is
neither in the name of Anthoniyammal nor in the name of the plaintiff, but it is
in the name of one Margret Gatherin. The plaintiff has not given any
explanation in his evidence as to in what way thesaid Margret Gatherin was
related to the said Anthoniyammal or in respect of the suit property. Ex.A.3
alone is in the name of the plaintiff, which is dated 27.2.1993. It is settled
proposition of law that if a person claims adverse possession then he must admit
the title in respect of the said property vest with the other person against
whom he claims adverse possession. Having taken a plea that he had purchased
the suit property under oral sale from Anthoniyammal it is not open for him to
contend that he had prescribed title by way of adverse possession against
Anthoniyammal.
6(c)The learned counsel for the respondent relied on 2005(1)CTC 494
(N.S.Spance Vs. D.S.Kanagarajan and another), wherein it has been held that a
person, who is in possession of the property is entitled to take alternative
plea. But there was no pleading in the said case taken by the plaintiff that he
had prescribed title to the suit property under a sale. Once the plaintiff has
taken a plea that he has prescribed title by way of adverse possession then it
is not open to him to claim that he has also prescribed title to the suit
property under oral sale. The facts of the case relied on by the learned
counsel for the respondent in the above ratio is that:
“The plaintiff had filed the suit for declaration of the title and
consequently for permanent injunction. According to him, the suit property
originally belonged to one ‘A’, the father of D1 ancestrally. He had sold the
property to the plaintiff’s paternal uncle ‘B’ on 22.5.1960 for a valuable
consideration and in the subsequent family partition in the year 1958 the suit
property was allotted to the sons of one Subramania Chettiar, the brother of
‘B’. After the family arrangement in the year 1958, ‘B’ had purchased the suit
property in which the others have no interest. ‘B’ had no issues. The plaintiff
was looking after the affairs of ‘B’. Subsequently ‘B’ gave the suit property
to the plaintiff in the year 1970 and according to the plaintiff, he was in
possession from that date onwards and he would claim that the right vested in
favour of him by ‘B’ was confirmed in the family arrangements dated 30.10.1972.
In pursuance of the mutation took place in the property register and other
connected records and on that basis he was in possession and enjoyment of the
said property and paying the tax and leasing out the same to the third parties,
to the knowledge of the first defendant, who is adjacent owner of the suit
property. Since the defendants have made attempt to take possession by illegal
method and trespassed into the suit property, denying the title of the
plaintiff, the plaintiff approached the Court on the ground that he had
prescribed title by way of adverse possession and also pressing his title
through B, who was allotted the suit property in the family partition.”
Only under such circumstances, the alternative plea taken by the plaintiff was
upheld by this Court in the above dictum, which has no barring at all in respect
of the present facts of the case, in which the plaintiff claims title in respect
of the suit property under a oral sale and also by way of adverse possession.
6(d)It is pertinent to note here that in the plaint the plaintiff has not
even stated about the oral sale consideration for the suit property. Only in
the box he would contend that the oral sale consideration for the suit property
was Rs.90/-. The learned first appellate Judge under surmises and conjectures
held that Anthoniyammal was under dire circumstances to sell the suit property.
But in his judgment it has been stated that Anthoniyammal was getting pension
and was a pensioner. To prove the oral sale, the plaintiff had examined P.W.2,
who is none other than the brother-in-law of the plaintiff and also he has given
in marriage his daughter to the son of the plaintiff. But in the cross-
examination he would admit that he cannot say on which date, month and year the
oral sale was effected. P.W.3 is another witness examined on the side of the
plaintiff to prove the oral sale. P.W.3 is a chance witness. According to him,
he went to Anthoniyammal’s house for the purchase of cattle and at that time the
plaintiff and Anthoniyammal were discussing about the sale of the land and that
Anthoniyammal had demanded Rs.150/- for the land, but later settled for Rs.90/-.
According to him, Anthoniyammal had received Rs.90/- from him and handedover the
same to the plaintiff. He would further state that he had purchased the cattle
from the plaintiff and for that he gave Rs.250/- to the plaintiff and gave
another sum of Rs.250/- for executing a promissory note. But in the cross-
examination he would depose that the promissory note executed by him became time
barred and that he had discharged the said loan after 3 or 4 years. If oral
sale was effected in the presence of P.W.2 and P.W.3 then the plaintiff would
have stated about the same in the plaint. The plaint is silent about the fact
that the oral sale was effected in the presence of P.W.2 & P.W.3. So it goes
without saying that P.W.2 & P.W.3 have been procured by the plaintiff only for
the purpose of the case. If oral sale is true, then there is no need for the
plaintiff to plead adverse possession. Under such circumstances, I do not find
any reason to interfere with the findings of the learned trial Judge, which was
unfortunately set aside by the learned first appellate Judge. Point is answered
accordingly.
7.In fine, the second appeal is allowed setting aside the findings of the
first appellate Judge in A.S.No.5 of 1995 on the file of the Subordinate Judge,
Pattukkottai, consequently the suit is dismissed. Parties shall bear their own
costs.
ssv
To,
1.The Sub-Judge, Pattukkottai.
2.The District Munsif, Pattukkottai.