The first defendant is the appellant. The appeal is preferred against the judgment and decree of the learned Subordinate Judge, Palani, dated 26.09.2006, made in A.S.No.56 of 2004, confirming the judgment and decree passed by the learned District Munsif Palani, dated 30.09.2004, made in O.S.No.1093 of 1996. The suit is filed for declaration and for recovery of possession.
2.The brief facts of the case are as follows:-
The first item of the suit property is a house and the second and third items of the suit properties are the vacant site. The plaintiff had purchased item Nos.1 and 3 by a sale deed, dated 22.10.1996, from one Ramayi Ammal and he purchased the second item from one Veerappa Goundar. The plaintiff has been in possession and enjoyment of the property. The first defendant is the daughter of Ramayi Rammal, the second defendant is the sister's husband of the said Ramayi Ammal, the third defendant is the husband's brother of the said Ramayi Ammal. Ramayi Ammal got the property by means of exchange deed, dated 07.08.1989 and by a sale deed, dated 27.02.1984. She had constructed a house in the first item, out of her own funds. The plaintiff is possession and enjoyment of the same. When the plaintiff went to Thiruppathi at the end of December, 1996, the defendants broke open the door of the house of the 1st item and encroached the second and third items of the properties and therefore, the suit is filed for declaration and for recovery of possession.
3.The suit was resisted by the defendants and they have also denied the relationship between the parties. According to the defendants, the second defendant and the father of the Kaliappa Goundar are brothers and sons of one Nachimuthu Goundar. Ramayi Ammal is the wife of Kaliappa Goundar. One Chellammal, the first defendant, is the sole daughter of the Kaliappa Goundar. Chellammal's husband one Rajagoundar died in the year 1987, leaving behind the wife and the children viz., Ramesh Gandhi and Kavithamalar as his legal heirs. The suit property are joint family ancestral properties belonging to the said Kaliappa Goundar and the second defendant and they were in common enjoyment. Ramayi Ammal is the mother of the first defendant, got separated from Kaliappa Goundar and was leading immoral life with one Veerappa Goundar. Kaliappa Goundar purchased the land in S.No.284/2, measuring 7 cents consists 650 sq.ft., by means of a sale deed, dated 27.02.1984. Ramayi Ammal effected exchange deed, dated 07.08.1989 in respect of 119 sq.ft. The second item of the property does not belong to Veerappa Goundar. He was never in possession and enjoyment of the land in S.No.284/2, measuring 138- 3/4 sq.ft. The plaintiff is not in possession and enjoyment of the property. The first defendant is in continuous possession and enjoyment of the first item of the property over a statutory period and she is paying house-tax and Electricity Bill in S.C.No.185. The suit is liable to be dismissed.
4.The 4th defendant set up an independent claim for the 3rd item of the suit property. According to the 4th defendant, Ramayi Ammal sold 201 sq.ft., to the 4th defendant by means of sale deed, dated 28.10.2002 and she is in possession of the 3rd item of the suit property and the said Veerappa Goundar has no right or enjoyment in the said property.
5.Based on the above averment, the trial Court framed triable issues and on critical analyse of the rival contention and also based on the oral and documentary evidence found that the plaintiff has proved his tile to the suit property and has decreed the suit as prayed for. Aggrieved by the judgment and decree, the first defendant preferred an appeal before the Sub-Court, Palani. The first appellate Court concurred with the findings of the trial Court and confirmed the judgment and decree. Hence, the present second appeal is filed on the following grounds:-
(i) The trial court has erred in solely relying on mathematical calculation, adduced by P.W.3, for determining the extent belonging to predecessor in title of respondent. When there is no specific plea by the respondent that the extent as shown in documents and the extent available on ground vary and when the documents contain specific recitals as to extent, without any ambiguity, the trial Court ought not to have adopted conflicting stance.
(ii) When there is a specific denial by the appellant, relating to antecedent title and interest of one of the respondent's predecessor in title, Veerappa Gounder, the respondent ought to have discharged the burden placed on him. The Courts below failed to appreciate this issue.
(iii) the respondent being the dominus litus, is burdened with the obligation of substantiating his predecessors and subsequently his interest over the suit property. Hence, the Courts below failed to appreciate the fact that discrepancies exist with respect to description of property as found in title deeds and status on ground.
(iv) The Courts below have erred in accepting the pleading of the respondent, relating to encroachment by appellant, without adequate proof.
(v) the Courts below failed to see that, though the respondent has pleaded that he was in possession of suit property after purchase, till the time of encroachment by the appellant, the respondent has not substantiated the same in evidence.
6.On admission, this Court has framed the following substantial questions of law:-
(i) When the respondent has not substantiated that either he or his predecessors in title were in possession of the suit property within the period of limitation, as envisaged by
Art.65 of the Limitation Act, whether the suit for possession is maintainable?
(ii) When there is no pleading or evidence by the plaintiff that there is a discrepancy regarding measurements in title deeds, whether the Courts below are correct in holding that the boundaries will prevail over measurement and decreeing the suit on that basis when there is a clear finding by the courts below that the the respondent is entitled to a lesser extent in item 3 of the suit property?
(iii) Whether the decree passed by the Courts below, relating to item 3 of the suit property, conferring right over larger extent is sustainable, when there is a specific finding by the courts below in their judgments that the respondent is entitled to a lesser extent in item 3 of the suit property?
7.Before proceeding to decide the second appeal, it is pertinent to note that the plaintiff has filed a suit for declaration of title to the suit properties, which are three items, and for recovery of possession. According to the plaintiff, he purchased item Nos.1 and 3 by a sale deed, dated 22.10.1996 from one Ramayi Ammal and item No.2 from one Veerappa Goundar. The suit was resisted by the defendants 1 to 3 separately and the 4th defendant claimed a separate title for the 3rd item of the property. According to the defendants 1 to 3, the first defendant is in continuous possession and enjoyment of the first item of the property over a statutory period and the second item does not belong to the said Veerappa Goundar. The case of the 4th defendant is that she had purchased the 3rd item from the said Ramayee Ammal by a sale deed, dated 28.10.2002. The trial Court found that the said Ramayi Ammal from whom the plaintiff has purchased the property was absolute owner of the suit property for item Nos.1 and 3 and also found that item No.2 was also purchased by the said plaintiff and decreed the suit. The 4th defendant, who set up an independent claim over the 3rd item, was not examined and has also not produced the sale agreement, dated 28.10.2002. The appeal was preferred only by the first defendant. The first appellate Court has also confirmed the decree and judgment of the trial Court. Therefore, the first defendant has preferred the second appeal. Even in the grounds of appeal, there is no mention about the 3rd item of the property. The first defendant has raised the above substantial questions of law for consideration.
8. The questions of law 2 and 3 formulated on 21.03.2007 relates to item No.3 of the property, which is not the subject matter either before the first appellate Court or in this Second Appeal. Therefore, they are deleted and the substantial questions of law are substituted as follows:-
(a) In a suit for possession, when the plaintiff alleges dispossession by a certain act or event, whether the courts are correct in ordering possession, without adjudication of such an issue?
(b) When the respondent has not substantiated that either he or his predecessors in title were in possession of the suit property within the period of limitation, as envisaged by
Art.65 of the Limitation Act, whether the suit for possession is maintainable?.
9.The admitted facts are as follows:-
One Ramayi Ammal was the wife of one Kaliappa Goundar. The first defendant is the daughter of the said Kaliayappa Goundar. The suit property item Nos.1 & 3 belonged to the said Ramayi Ammal, under Exs.A1 and A3, dated 27.02.1984 and 07.08.1989. According to the plaintiff, the said Ramayi Ammal had constructed a house in item No.1 and was living there and enjoying the vacant site in Item Nos.2 & 3. According to the defendants 1 to 3, the property was purchased by Kaliappa Goundar and the suit property is ancestral joint family property and was in possession of the defendants 1 to 3. The specific case of the first defendant is that the property does not belonged to Ramayi Ammal and she had no right to sell the property and she was also not in possession.
10. However, the trial Court painstakingly scaned through the documents and analised both oral and documentary evidences and found that the said Ramayi Ammal was the absolute owner of the suit property and the plaintiff has purchased the same including some item, which was purchased from one Veerappa Goundar and has granted the relief of declaration and recovery of possession.
11.The second defendant has also claimed adverse possession by filing an additional written statement. However, this was not an issue before the trial Court. The first defendant preferred an appeal before the Sub-Court, Palani. In the grounds of appeal, the specific grounds were raised to the effect that the appellant has not trespassed but was in a settled possession of the suit property. There was no issue before the first appellate Court regarding the plea of adverse possession. A similar ground has also been raised to the effect that the appellant is in a settled possession and the Court below have not framed and decided the issue of adverse possession. However, a substantial question of law is framed as stated supra regarding the possession and whether the suit for recovery of possession is maintainable within the period of limitation as envisaged under
Article 65 of the Limitation Act.
12.The learned counsel for the appellant submitted that there are discrepancies in the sale deed regarding the extent and the Courts below have disregarded those discrepancies and has found the boundaries prevail over the extent. The learned counsel also pointed out that both the Courts below have relied on Ex.A1, a mathematical calculation furnished by the plaintiff to fix the extent and it is not reliable. The learned counsel also insisted that the appellant is in enjoyment of the property and has produced house-tax receipts and the Courts below have not given any finding whether the alleged tress-pass is true or not, for granting the relief of recovery of possession. The learned counsel also pointed out that the plaintiff, who pleads dispossession, ought to have proved that he has filed a suit within 12 years under
Article 65 of the Limitation Act.
13.On the contrary, the learned counsel for the respondent would submit that both the Courts have categorically found that the plaintiff is entitled for the suit property and there is a specific allegation by the plaintiff that he was dispossessed only on December-1996 and the suit is filed immediately thereafter and therefore, the Courts below are right in granting the relief of declaration and recovery of possession. The learned counsel also pointed out that the house-tax receipts produced by the defendant is of resent origin and therefore, the plea of adverse possession cannot be looked into. The learned counsel also pointed out that a person, who pleads adverse possession has to state when it commenced and also to prove that it was open and continuous and to hostile to the true owner.
14.I have carefully considered the rival contention put forth on either side.
15.The suit properties are three items and it is not in dispute that the first item is a house and the second and third items of the suit properties are vacant site in the same survey number. According to the plaintiff, item Nos.1 and 3 belonged to one Ramayi Ammal, who purchased it under Ex.A2, dated 27.02.1984 and obtained through an exchange deed, under Ex.A3, dated 07.08.1989. According to him, he has purchased the property under Exs.A4 and A5 dated 22.10.1996. The suit was resisted by the defendants. But, however, the purchase by the Ramayi Ammal under Ex.A1., dated 27.02.1984 is not denied and whatever being the discrepancies in the measurement both the Courts below have found that Ramayi Ammal and Veerappa Goundar were the predecessor in title and the plaintiff has validly purchased the property from them and therefore, the question of title has been finally decided and this Court has no reason to interfere with the findings. The only point to be considered is that when the plaintiff's alleged dispossession on a particular date without adjudicating the issue, whether the Courts are right in granting the relief of recovery of possession and whether the Courts below are wrong in not framing any issue on adverse possession when the plaintiff pleaded dispossession.
Article 65 of the Limitation Act, contemplates that for a suit for the recovery of possession, based on title, the period of limitation is 12 years from the date of dispossession.
16.The plaintiff has pleaded that after the purchase in 22.10.1996 he took possession of the property and only he was dispossessed in December-1996. The suit was filed on 26.12.1996 and the predecessor-in-title to the plaintiff has purchased the property only on 27.02.1984 under Ex.A1 and the other property under Ex.A3, dated 07.08.1989. It is an admitted fact that only thereafter, the said Ramayi Ammal had constructed a house. According to the first defendant, she was in continuous possession and enjoyment of the first item of the suit property by paying the house tax and Electricity Bill, but the documents produced by her relates to the period from 1995. This aspects has been dealt with by the Courts below. The Courts below have found Exs.B1 and B2 are house tax receipts in the name of Ramayi Ammal and there is no evidence to prove that these tax receipts relates to the suit property. Even assuming that the plaintiff has not taken possession of the suit property immediately after 22.10.1996, he is definitely entitled to ask for recovery of possession, as he has proved title in respect of the suit property, as the purchase itself was effected only on 22.10.1996. The appellant/first defendant has not proved her possession beyond 12 years. Even her mother viz., Ramayi Ammal has purchased the property only in 1984 and she had subsequently seems to have constructed a house. Looking at any angle, the possession as claimed by the first defendant will not extend beyond 12 years to perfect title for adverse possession.
17.It is settled law that when the plaintiff claims recovery of possession based on title he has to prove that the suit is filed within 12 years of dispossession as contemplated under
Article 65 of the Limitation Act. The specific plea of the plaintiff is that he has purchased the property on 22.10.1996 and he was dispossessed on December 1996 and the suit is filed on 26.12.1996. In that event, the burden shifts on the person, who pleads adverse possession stating when it commenced and whether it is continuous and hostile to the true owner. As stated earlier, even the true owner has purchased the property only in the year 1984 and thereafter she had constructed a house in which the first defendant claims to be in possession.
18.The plaintiff has proved that he was dispossessed in the year December- 1996. The Courts below have not specifically framed any issue to adjudicate the same and that will not vitiate the findings of the Court. The possession is a question of fact and possession follows title. When the plaintiff has proved his title necessarily he is entitled for recovery of possession. Therefore, the Courts below are right in granting the relief and I have no reason to interfere with. The substantial questions of law are decided accordingly.
19.In the result, the appeal is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
MPK To
1.The Subordinate Judge, Palani.
2.The District Munsif, Palani.