SA/1428/1990 of K KRISHNAN Vs S MARINAICKER on 27 December 2002

:JUDGMENT

This second appeal is preferred against the judgment anddecree, dated 13.11.1989, rendered in A.S.No.15 of 1989 on the file ofDistrict Judge, Chengalpattu. The plaintiffs are the appellants in the secondappeal.

2. The case of the plaintiffs is that they are brothers undivided in status.The schedule mentioned properties have been purchased by their parentsKanniappa Naicker and Alamelu Ammal under three registered sale deeds, dated4.11.1931, 29.11.1938 and 17.3.1939, from the first defendant's fatherVedagiri Naicker for valuable consideration and they took possession of theproperties and enjoyed the same. Kanniappa Naicker died in the year 1966 andAlamelu Ammal was managing the suit properties by paying kist through herbrother's son, namely, the first defendant herein. Since the plaintiffs andtheir mother Alamelu Ammal were residing at Madras, the first defendant wasrequested to take care of the schedule mentioned properties and he was cultivating the lands on behalf of the plaintiffs and their parents. Thesecond defendant is the sister of the plaintiffs. Alamelu Ammal executed aRegistered Will, dated 12.4.1977, bequeathing the properties in favour of theplaintiffs and she died on 10.11.1981. The Will came into effect and theplaintiffs have become the absolute owners of the properties. The plaintiffsdemanded possession of the lands in the month of Thai, 1981 and issued notice,dated 31.1.1981, to the first defendant to hand over possession. There was noreply. The first defendant has been evading to deliver possession. Theplaintiffs sent another lawyer's notice, dated 29.12.1981 and the firstdefendant sent a reply on 18.1.1982 setting up a hostile title. Hence theplaintiffs have filed the suit for declaration of their title to the schedulementioned suit properties and for a direction to the first defendant todeliver possession of the suit properties and for future profits.

3. The first defendant in his written statement and

3. The first defendant in his written statement and additional written statement has contended thus. The suit properties are notancestral joint family properties as alleged by the plaintiffs and they havenot been described correctly. The plaintiffs' mother Alamelu Ammal is theelder sister of the first defendant's father Shanmugha Naicker. Theallegation that the suit properties were purchased by Kanniappa Naicker andAlamelu Ammal from the first defendant's father under three registered saledeeds is false. Kanniappa Naicker and Alamelu Ammal were permanent residentsof Old Washermanpet at Madras and they did not purchase properties in the suitvillage. In any event, the three sale deeds alleged by the plaintiffs nevercame into force and acted upon. The plaintiffs in their notice, dated31.1.1981, had claimed that the house property contained in 'A' schedule is inpermissive possession of the first defendant and the lands mentioned in thenotice have been leased to the first defendant by their mother Alamelu Ammalon 'waram' basis and the first defendant was giving 'waram' to their mother.But in the plaint the plaintiffs have alleged that Alamelu Ammal was herselfmanaging the properties by paying kist through the first defendant and thefirst defendant was a caretaker. The plaintiffs have no definite case and thealleged Will by Alamelu Ammal is denied.The suit properties are ancestral joint family properties of the firstdefendant and his father Shanmugha Naicker. The elder brother of the firstdefendant died four years back and the mother of the first defendant is alive.The first defendant is residing in the suit house with his family, along withmother. The allegation that the first defendant is in permissive possessionin respect of the suit house is false. Neither Kanniappa Naicker nor AlameluAmmal ever attempted to sub-divide the lands in pursuance of the alleged saledeeds and obtain separate patta in their names. Though the sale alleged bythe plaintiffs is more than forty five years ago, the patta to the suitproperties were not transferred in the name of Kanniappa Naicker or AlameluAmmal. Patta to the suit lands stood in the name of father of the firstdefendant and afterwards it stands in the name of the first defendant. Kistis paid by them only. The first defendant is in possession and enjoyment ofthe suit properties in his own right and cultivating the same by paying kist.The house stands registered in the name of the first defendant only and thehouse tax is being paid by him. The father of the first defendant and the first defendant have been in possession and enjoyment of the suit propertiesin their own right and they have acquired title to the suit properties byadverse possession and prescription also. The first defendant's mother hasinstalled a pump-set to the Well and service connection stands in her name.The first defendant has prescribed title by adverse possession and the suit isalso barred by limitation.

4. The second defendant in her written statement has stated that sheis not claiming any right over the schedule mentioned properties and theplaintiffs are the absolute owners by Registered Will, dated 12.4.1977 andentitled to recover possession from the first defendant.

5. On the above pleadings, the District Munsif, Chengalpattu, framed twelveissues and on a consideration of the oral and documentary evidence, decreedthe suit as prayed for. Aggrieved by the same, the first defendant preferredappeal in A.S.No.15 of 1989 on the file of District Judge, Chengalpattu andthe learned District Judge concluded that the plaintiffs are the owners of thesuit properties and even then they cannot recover possession since the firstdefendant has prescribed title by adverse possession and allowed the appeal.Aggrieved by the same, the plaintiffs have preferred this second appeal. Forthe sake of convenience, the parties are described as arrayed in the suit, inthis Judgment.

6. At the time of admission of the second appeal, the

following substantial question of law has been framed by this Court."Whether the lower appellate Court is right in holding that the 1st defendant/1st respondent had established his right to the suit properties by adversepossession over looking the oral evidence and documentary evidence of theplaintiff merely by relying upon kist receipts and electricity receipts."

7. The suit properties consist of schedule 'A' and schedule 'B' and mainly they are agricultural lands. The plaintiffs claim title to thesuit properties on the ground that their parents Kanniappa Naicker and AlameluAmmal purchased them under three registered sale deeds, dated 4.11.1931,29.11.1938 and 17.3.1939 from the first defendant' s father Vedagiri Naicker.Though the first defendant contended that the sale deeds never came intoforce, both the courts below have concurrently found that the plaintiffs areowners of the suit properties by virtue of the above sale deeds and thatfinding has become final since not appealed against.

8. The plaintiffs have challenged the finding of the lower appellate Court that the first defendant prescribed title by adverse possession to thesuit properties. The learned counsel for the appellants contended that oncetitle is established on the basis of relevant documents, unless defendantproves adverse possession for the prescriptive period, plaintiffs cannot benon suited and relied on the decision of the Apex Court in INDIRA vs.ARUMUGAM AND ANOTHER ((1998) 1 SCC 614) and in the same way, the other twodecisions cited by the learned counsel for the appellants (i) ANNASAHEBBAPUSAHEB PATIL AND OTHERS vs. BALWANT ALIAS BALASAHEB BABUSAHEB PATIL (DEAD)BY LRS. & Heirs, etc. (AIR 1995 SC 895) and (ii) Dr.MAHESH CHAND SHARMA v.

Smt.RAJ KUMARI SHARMA AND OTHERS (AIR 1996 SC 869) for the proposition thatthe person who claims prescription of title by adverse possession must pleadand establish all the facts necessary to establish his adverse possession areall well settled law.

9. In the present case, as regards analysis of the evidence,

the appellate Judge had devoted a more detailed and closer examination of bothoral and documentary evidence compared to the learned trial Judge. There isinconsistency in the case of the plaintiffs with regard to the character ofpossession of the suit properties by the first defendant. In the notice,dated 31.1.1981, which is marked as Ex.B-1 , the plaintiffs have stated thatthe first defendant is a 'waramthar' of the plaintiffs and in the plaint it isstated that the first defendant has been requested to take care of the suitproperties and also to cultivate them on their behalf. Exs.A-1 to A-3 are thesale deeds relating to the suit properties. Ex.A-4 is the suit notice, dated2 9 .12.1981 and Ex.A-5 is the reply sent by the first defendant denying thetitle of the plaintiffs to the suit properties. Ex.A-6 is the Will, dated12.4.1977, in which the suit properties were bequeathed to the plaintiffs bytheir mother. Ex.A-7 is the certificate issued by Karnam with regard to someitems of the suit properties and Ex.A-8 is the Chitta extract for fasli 1396.Ex.A-10 is the kist receipt for fasli 1381. The lower appellate court iscorrect in concluding that Ex.A-7 is only a certificate and not the patta.Admittedly, the suit properties are comprised in patta No.572 and it does notstand either in the name of the plaintiffs or in the name of their parents.The only kist receipt Ex.A-10, filed by the plaintiffs, is not shown to be related to the suit properties and is also doubtful as towhether the mother of the plaintiffs had paid kist in it as claimed. Inshort, the plaintiffs have not adduced any documentary evidence to show thatthey have paid kist to the suit properties. Insofar as the oral testimony isconcerned, the first plaintiff has examined himself as P.W.1 and he himselfhas admitted in the crossexamination that the patta is standing in the name ofthe first defendant for more than twenty years. The lower appellate court hasrightly disbelieved the testimony of P.W.2 on the ground that he does not knowas to where the suit properties are situated.

10. On the contrary, the first defendant has examined himself as D.W.1 and has categorically stated that his father was enjoying the suitproperties in patta No.572 by paying kist and after his death, he is inenjoyment of the suit properties and the patta stands in their namethroughout. Ex.B-3 is patta bearing No.572 relating to the suit propertiesand it stands in the name of the father of the first defendant. After hisdeath, patta has been transferred in the name of the first defendant and hisbrother Balakrishnan and Ex.B-4 is the patta book showing them as pattadars.Exs.B-5 to B-31 are kist receipts from the year 1958 to 1986 standing in thename of the father of the first defendant, his wife and later in the name ofthe first defendant and his brother Balakrishnan. Balakrishnan has expiredfour years prior to the filing of written statement. It is the further caseof the first defendant that the electricity connection with regard to theelectric motor installed in the Well stands in the name of his mother and theelectricity charges are being paid by them. Exs.B-37 to B-56 are the demand

notices and Exs.B-57 to B-81 are receipts evidencing payment of electricitycharges. In fact, P.W.1 himself has admitted in the cross-examination thatthere is an electricity connection to the Well situated in the suit propertiesbut pleads ignorance about the person on whose name it stands. The firstdefendant has let in oral and documentary evidence to show that his father andlater himself are in continuous enjoyment of the suit properties as their ownand the real owners, namely, the plaintiffs, did not take any step to asserttheir right and to interrupt the running of the period of limitation. I am inagreement with the view expressed by K.P.Sivasubramaniam,J in THANGAMANI vs.SANTHIAGU ((2000) 3 M.L.J. 589) that it was not necessary that the adversepossession should be brought to the knowledge of the person against whom it isclaimed and that it was sufficient that possession should be open and withoutany concealment so that the person against whom the time was running was awareof what was happening. The other decision cited by the learned counsel forthe respondent is SADASIVA GOUNDER AND ANOTHER v. PURUSHOTHAMAN ((2000) 3M.L.J. 785), in which K.Sampath,J has held that 'animus' in the legalparlance would mean mind, design, will, intention, disposition and to claimwith regard to possession, the term is animus possidendi, which means theintention of possession and the person claiming adverse possession must intendin his mind to possess a property as his own and it does not mean that he mustbe conscious that the property belongs to somebody else and all that isrequired by the term 'animus' in the context of adverse possession is that theperson must have intention to possess the property as his own and I agree withthe above view of the learned Judge.

11. In the present case, the appellate Court had rendered afinding and held that the first defendant had let in oral and documentaryevidence to show that he is in possession and enjoyment of the suit propertiesas his own. From the evidence available on record, I am also inclined to holdthat the first defendant had been in open and continuous possession assertingtitle in himself as against the whole world and that the plaintiffs or theirparents as predecessors in title had not taken any steps to exercise duevigilance in order to arrest time running against them.

12. In the result, I do not find any grounds to interfere with the judgment of the appellate court and the second appeal is dismissed.No costs.

Index: Yes.Internet: Yes.

gb.

To

1. The District Judge, Chengalpattu.

2. The District Munsif, Chengalpattu.

3. The Section Officer,

V.R.Section, High Court, Madras.