THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN S.A.No.626 of 2008
and MP.No.1 of 2011
Arulmighu Tulukanathamman Koil Rep. by Managing Trustee Office at No.10, Appavu Gramani 1st Street, Robertsonpettai Chennai-600 028. .. Appellant Versus
1. Sarasu
2. E.Kala
3. Santhanamma .. Respondents Prayer: Petition filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 13.12.2007 made in A.S.No.157 of 2007 on the file of the Court of the Additional District Judge, (Fast Track Court-V) confirming the judgment and decree dated 24.08.2006 made in O.S.No.5463 of 2002 on the file of the Court of the VIII Assistant Judge, City Civil Court, Chennai.
For Appellant : Mr.K.Senthil For Respondents : M/s.Anna Shoba Premika For R1
JUDGMENT
The plaintiff is the appellant herein. This appeal is directed against the concurrent findings of the Courts below dismissing the suit for delivery of vacant possession and permanent injunction.
2. The case of the plaintiff is that the suit property was sold in favour of the plaintiff temple by one Javanthamull Sowcar on 13.10.1936 through the registered sale deed and since then the temple is in possesion of the property. The property is used for performing temple poojas and festivals. While so, the defendants, who are living adjacent to the temple land are trying to encroach into the temple land by erecting thatched huts with an intention of grabbing the temple land.
3. The defendants filed the written statement contradicting the averments made in the plaint and claim right over the property through alleged purchase by the grand-father of the 2nd defendant. According to the 2nd defendant, the property which, she was residing along with her mother was originally purchased by her grand-father Late Periathambi Gramani from the plaintiff temple authorities and after the death of her grand-father it is in her possession and enjoyment along with her family members. Thus, being in enjoyment of the property more than sixty years, the plaintiff temple can have no right or claim over the suit property. The allegations of encroachment of temple land also been denied by the 2nd defendant. The written statement of the 2nd defendant have been adopted by the 3rd defendant. Based on the pleadings, the trial Court framed six issues, examined PW1, PW2, DW1, DW2, DW3 on the respective sides and admitted Ex.A1 to Ex.A41 and Ex.B1 to Ex.B22.
4. After considering the evidence let in by the respective parties, the trial Court has held that the 2nd defendant is residing south of the plaintiff temple and the temple is protected by compound on the southern boundary. Therefore, the area in occupation of the 2nd defendant cannot be construed to be an encroachment by the 2nd defendant and further more taking note of the door number assigned by the Corporation of Chennai, the trial Court rejected the plea of the plaintiff stating that the plaintiff has failed to take necessary steps to appoint an Advocate Commissioner to note down the physical features to establish the defendants are in encroached portion owned by the plaintiff.
5. The First Appellate Court while considering the appeal preferred by the plaintiff has re-affirmed the findings of the trial Court. While affirming so, the First Appellate Court has observed that the present trustees of the plaintiff temple has come into the management of the temple only in the year 2002 and alleging encroachment against the defendants. Whereas, the defendants have established that they are in possession for more than sixty years by paying property tax to the Corporation of Chennai, availing electricity and sewage connection to the property, which stands in her name. While so, the plaintiff temple have no door number of its own and therefore there cannot be a cause of action against the 2nd defendant.
6. Aggrieved by the said concurrent findings, the appellant / plaintiff has preferred the present second appeal raising the following substantial questions of law on the grounds below:
(a) Are the Courts below correct and justified in dismissing the suit, which is filed on the basis of title and which title is admitted by the defendants?
(b) When once the suit is filed on the basis of title and when once the title is admitted are the Courts below correct and justified in casting the burden on the plaintiff to prove encroachment and is not burden on the defendants to prove better title or possessive title which she has filed to prove?
(c) When the defendant herself has admitted that she was the purchaser of the suit property from temple authorities and when the title or purchase has not been established or proved is not the plaintiffs entitled to the decree as prayed for?
(d) Are the Courts below correct and justified in dismissing the suit based on title merely on the ground that the plaintiff has admitted the defendants possession for more than 15 years and mere possession for any length of time in the absence of prescriptive title defendants can take advantage of the right of plaintiff to the relief prayed for?
(d) On the face of the admission that the defendants' predecessor purchased from the temple authorities and in the absence of establishing the same is not defendants estopped from questioning the title of the plaintiff?
7. Before admitting the appeal, this Court directed the appellant to serve notice on the respondents to ascertain whether there is any substantial questions of law need to be address. Pursuant to the direction of this Court, steps have been taken to serve notice to the respondents 1 to 3 through Court and privately. It is found from the records, that the respondents 2 and 3 have left the premises and postal cover has returned as "left". Therefore, this Court has directed the appellant to take paper publication as a substituted service and the same was also complied. Affidavit of Service to that effect has been filed before this Court.
8. The learned counsel appearing for the appellant in support of his contention cited a judgment reported in S.Nirmala
-Vs- Kanniammal & Others [(2006) 5 LW 647].
9. The learned counsel appearing for the 1st respondent submitted that her client was only a tenant under the plaintiff temple and now she has vacated the premises.
10. On perusal of the Appellate Court judgment, it appears that the appellant has already filed a memo before the First Appellate Court to eschew 1 and 3 respondents and the same has been recorded. Though the respondents 2 to 3 are not before this Court to contest the case, this Court find the plaintiff/appellant has the following substantial questions of law to agitate before this Court.
"Whether in law, the Courts below are rights in casting the burden on the plaintiff to disprove the encroachment and possessory title of the defendant?"
11. The specific case of the plaintiff / appellant is that from the date of purchase of the suit property, vide Ex.A1 dated 13.10.1936, the property is in their possession and enjoyment. The patta, Encumbrance Certificate, "A" Register of the property, Tax receipts also stands in the name of the plaintiff. While so, the 2nd defendant, claims title over the property based on the alleged sale deed in favour of her grand-father Periathambi Gramani had not produced any document to show her title over the property in her favour or in the favour of her fore-fathers. While so, the Courts below ought not to have accepted the plea of the defendants and dismissed the suit. When the 2nd defendant herself has admitted that she has purchased the suit property from the temple authorities but failed to produce the documents to substantiate the plea, the Courts below ought to have allowed the suit, but contrary to the establish principle of law dismissed the suit, which has caused great injustice to the plaintiff temple.
12. It is well settled principle of law that a person who claims rights based on the title document has to prove the case through sufficient evidence. If an alternate plea, such as adverse possession is claimed even then it is the duty of the defendants to establish the possession, the date of possession and such a possession was adverse to the true owner with their knowledge. Without declaration of adverse possession explicitly any number of years in occupation, no right of adverse possession will accrue to the defendants.
13. In the present case, though there are documents to show that the defendants were in occupation of the premises for substantial period of time, their plea is that they purchased the property from the temple authorities. However, there is no document, to substantiate this plea taken by the defendants.
14. One of the defence is that the property in their occupation is not at all the property of the temple covered under Ex.A1. No doubt the plaintiff could have taken out an application for appointment of Advocate Commissioner to note down the physical features measuring the property in dispute and to find out whether the property alleged to be in occupation of the defendants falls within the extent covered under Sale Deed Ex.A1, but the plaintiff has omitted to do so. However, that does not mean the right of title over the property get extinguished. Since, the defendants have failed to produce the title deed in respect of the occupation as well as failed to establish possession adverse to the title holder namely the plaintiff continuously and uninterruptedly with the knowledge of the plaintiff, the findings of the Courts appears to be perverse on this Court. The plaintiff suit is based on title deed Ex.A1 and it is alleged by the plaintiff that the defendants have encroached upon their land by putting up thatched huts whereas, the defendants denied the allegations of encroachment and set up title over the property in occupation. Having failed to prove better title in their favour or possession adverse to the knowledge of the plaintiff, the plaintiff / appellant is bound to succeed. Hence the Substantial questions of law is answered.
Dr.G.JAYACHANDRAN.J.,
mk Accordingly the Second Appeal is allowed. In the result suit is allowed as prayed. No costs. Consequently, connected miscellaneous petitions is closed.
06.01.2017 Index :Yes/No. Internet:Yes/No.
mk To
1. The Additional District Judge, Fast Track Court-V, Chennai.
2. The VIII Assistant Judge, City Civil Court, Chennai.
S.A.No.626 of 2008
http://www.judis.nic.in