The defendants 2 to 5, 8, 9 and 10 in the suit in O.S.No.223 of 2004 on the file of the Principal District Munsif Court, Nagercoil, are the appellants in this Second Appeal.
2.The first respondent herein as plaintiff filed the suit in O.S.No.223 of 2004 for declaration of his title and for recovery of possession of the suit property from the defendant. The original defendant died and his legal representatives were added as defendants 2 to 8, even during the pendency of the suit.
3.The case of the plaintiff / first respondent as culled out from the plaint are as follows:
3.1.The suit property measuring an extent of about 1 cent of land with building originally belonged to the mother of the plaintiff and defendant Smt.Ayyana Pillai. The mother of the plaintiff Smt.Ayyana Pillai borrowed a sum of Rs.2,000/- from the plaintiff to meet the marriage expenses of the elder daughter of the defendant and later executed a sale deed in favour of the plaintiff in respect of the suit property where there was only a thatched house in existence at that time. The sale deed executed by the plaintiff's mother on 11.02.1978 is supported by valid consideration and it was a bona fide transaction. After getting the sale deed, the defendant requested the plaintiff to allow him to live in the house for some time and promised to vacate the house when it is required by the plaintiff. After some time, the mother left the suit house and was living with the plaintiff in his house till she died on 31.10.1985 in the house of the plaintiff.
3.2.Since the defendant was cordial with the plaintiff, the plaintiff rendered all monetary help to the defendant and his sons and the defendant was also permitted to continue to live in the suit house for some more time. The plaintiff renovated the suit house by converting the thatched roof into a tiled one in the year 1992. The house was also electrified on 31.01.1993 and municipal water connection has also been obtained by the plaintiff in the year 1995. All the improvements were effected only by the plaintiff with the knowledge of the defendant and his sons. When the plaintiff requested the defendant to surrender vacant possession, as it was required for the personal use of the plaintiff's daughter, the defendant was evading. It was thereafter a notice was sent to the defendant through Advocate on 27.03.2001. But the defendant sent a reply contending false and frivolous averments which forced the plaintiff to file a suit for declaration of title and for recovery of possession.
4.The suit was contested by the defendant by filing a detailed written statement. Though the plaintiff admitted the lending of money by the plaintiff to the mother towards the marriage expenses of the defendant's daughter, it was the contention of the defendant that under the pretext of getting a record for the said loan transaction, the defendant and his mother were taken to the Sub Registrar's office by the plaintiff and created false records. It was the contention of the defendant that the defendant and his mother had executed the sale deed believing it to be a hypothecation deed with interest at 12%. Even though it was the understanding that the document would be cancelled upon repayment of the loan amount of Rs.2,000/-, it is stated by the defendant that they never intended to execute any sale deed in favour of the plaintiff in respect of the suit property. It is the specific case of the defendant that the defendant and his mother are illiterate and that they do not know to read and writ in any language. In fact, the possession of the property continued only with the defendant. After the death of the defendant, other legal heirs continued the enjoyment.
5.The defendant further relied upon a Will alleged to have been executed by the defendant's mother on 14.11.1968 bequeathing the suit property in favour of the defendant. It was further contended that the defendant paid the hypothecation amount with interest to the plaintiff and that the plaintiff who agreed to cancel the earlier sale deed in his favour postponed the same under some pretext or the other. It was also contended by the defendant that the possession never followed the sale deed in favour of the plaintiff and that the plaintiff never exercised his right of ownership over the suit property. The defendant also claimed title by adverse possession. The plaintiff thereafter filed a reply statement reiterating the stand in the plaint and denying the averments in the written statement. After the death of the original defendant, the second defendant, wife of first defendant, filed a written statement reiterating the stand taken earlier. The defendants 9 and 10 who were impleaded as the legal heirs of 6th defendant also filed independent written statement.
6.The trial Court after examining the entire records decreed the suit partly by granting a decree for declaration and for recovery of possession from the defendants. As against the judgment and decree of the trial Court, the appellants herein filed an appeal in A.S.No.12 of 2012 on the file of the II Additional Sub Court, Nagercoil. The appellate Court also dismissed the appeal, confirming the judgment and decree of the trial Court.
7.Both the trial Court as well as the lower appellate Court framed an issue with regard to the title of the plaintiff and found that the plaintiff has proved his title by virtue of the sale deed obtained by him from his mother. Various documents filed by the plaintiff to show that the plaintiff was exercising his right of ownership were accepted by the trial Court to prove the case of the plaintiff. Since the plaintiff's title to the suit property is upheld by the Courts below, both the Courts below have considered the truth and merit in the case of defendant who has set up title by adverse possession. The plaintiff filed several documents, namely, Ex.A1 to A42 and examined himself as P.W.1. Though defendant examined three witness, marked only 6 documents, namely, Ex.B1 to B6. Ex.B1 is the certified copy of the Will and Ex.B6 is the death certificate of the first defendant. Ex.B2 to B5 are the notice and reply notice and acknowledgement. Since the execution of the sale deed under Ex.A1 dated 11.02.1978 in favour of the plaintiff was admitted, both the Courts below have accepted the case of the plaintiff and held that the defendants have not proved their case that Ex.A1 is a sham and nominal document and that it was executed only to evidence a loan transaction. The contentions of the defendants cannot be accepted in view of
Section 92 of the Indian Evidence Act and the defendants are estopped from let in evidence varying or contradicting the terms of Ex.A1. The defendants though admitted the execution of Ex.A1, have not chosen to challenge the sale deed. There is no consistency in the case of the defendants even against the validity of the document under Ex.A1. In such circumstances, the document Ex.A1 has been rightly held to be a valid conveyance and binding on the defendants by Courts below.
8.In the case on hand, the plaintiff has produced revenue documents as well as the property tax assessment in respect of the suit property in the name of the plaintiff. The electricity service connection has been obtained by the plaintiff and water connection was also obtained only by the plaintiff. As against the substantial evidence that was let in by the plaintiff, the defendants have not produced any document to prove that the defendants were enjoying the property as it's owner. Since patta and other revenue documents were produced in the name of the plaintiff, the case of the defendants that the document Ex.A1 sale deed was not acted upon, cannot be believed. Since it has been specifically held by the Courts below that the title in respect of the suit property has been transferred in the name of plaintiff under Ex.A1 and that he has been exercising his right of ownership by getting electricity service connection, water connection and property tax assessment in his name, the plea of adverse possession in this case is misconceived. Though the possession of the suit property by original defendant was admitted, the nature of defendant's possession and the plaintiff's right of ownership has been clearly established and accepted by Courts below. From the findings of the Courts below, the case of the plaintiff that the defendant's possession is permissive cannot be found fault with. Hence, the plea of adverse possession in this case cannot be sustained, even on the admitted facts. Further, the Courts below have analysed the documents and came to the conclusion that the defendants have not proved as to the date on which the defendant's possession became adverse to the plaintiff. In such circumstances, the findings of the Courts below that the defendants have failed to prove adverse possession does not suffer from any legal infirmity. Finally, the learned counsel for the appellant argued that the plaintiff had earlier issued a notice under Ex.B2 terminating tenancy. Since the plaintiff has admitted in the said notice about the enjoyment of the defendants under a tenancy agreement, the present suit for recovery of possession is not maintainable and that the plaintiff ought to have approached the Rent Controller for eviction. Either in the plaint or in the written statement, there is no plea that there was landlord and tenant relationship between the plaintiff and the defendants. Hence, this Court cannot go into this issue which was not pleaded by either of them.
9.It was argued by the learned counsel for the appellant that a tenancy agreement was admitted by the plaintiff and the same was determined by the plaintiff by issuing a notice under Ex.B2 on 18.08.1984. It was therefore, contended by the learned counsel for the appellant that the possession of the defendants after the termination of tenancy from 18.08.1984 is adverse to the plaintiff. It is further contended that the plaintiff ought to have filed the suit within 12 years from the date of termination of the tenancy and that the present suit filed in O.S.No.223 of 2004 is also barred by limitation. The submission of the learned counsel for the appellant is contrary to his own pleadings. First of all, the notice of termination under Ex.B2 though was not explained by the plaintiff properly the relationship was never admitted by the defendants any time thereafter. When the defendants have denied title of the plaintiff, it is not open to rely upon the document Ex.B2 just to create a platform for a new plea. This plea could have been taken at the relevant point of time. Now, it is not even suggested by the defendants that the original defendant was earlier a tenant under the plaintiff. The document Ex.B2 is disowned by the plaintiff and the tenancy between the plaintiff and defendants was never accepted by the defendants. Hence, raising this as a pure legal issue in Second Appeal is impermissible. The learned counsel for the appellant relied upon a judgment of this Court in the case of Saral Saroja v. Simson reported in (2010) 4 MLJ 118 for the proposition that if a tenant denies the title of the landlord, the only course open to the landlord is to file a petition under Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and that he can approach the Civil Court only if the Rent Controller gives a finding that the denial of title by the defendants is bona fide. When it is not the case of any one that there was a tenancy agreement between the plaintiff and defendants, this judgment has no application. The learned counsel for the appellant relied upon a judgments of this Court in Selvanachi v. Dr.S.R.Sekar reported in (2003) 1 M.L.J. 769 and Natarajan v. Sengamala Moopanar reported in (2009) 7 MLJ 647 to substantiate the proposition that mere attestation will not operate as estoppel as against the defendants. In this case, it is admitted that the first defendant has attested the document Ex.A1. However, the Courts below have come to the conclusion about the genuineness and validity of the transaction under Ex.A1 on the basis of several documents and oral evidence on both sides. Under such circumstances, the proposition though acceptable is not relevant to this case.
10.The learned counsel for the respondent relied upon the judgment of the Hon'ble Supreme Court in the case of Maria Margarida Sequeira Fernandes and others v. Erasmo Jack De Sequeira (Dead) through LRS reported in (2010) 5 SCC 370 and submitted that the appellant who was in permissive possession cannot set up title by adverse possession and that the conduct of the appellant to drag the plaintiff / respondent to this Court has to be seriously viewed. Having regard to the findings of the Courts below and considering the argument of the learned counsel for the appellant, as dealt with in this judgment, all the substantial questions of law are answered against the appellant and this Second Appeal fails. The judgment and decree of the lower appellate Court, dated 04.07.2013 in A.S.No.12 of 2012, confirming the judgment and decree of the trial Court, dated 12.08.2011 in O.S.No.223 of 2004, is upheld. Considering the fact that the appellants are residing in the premises, they are given time till May, 2017, for vacating and handing over possession of the suit property and no further extension of time will be granted to the appellants beyond May, 2017. The appellants are directed to file an affidavit of undertaking through any one of the appellant within a period of two weeks from this date and failing which the benefit of granting time shall not be availed by the appellants. However, there is no order as to costs.
To
1.The II Additional Subordinate Judge at Nagercoil.
2.The Principal District Munsif, Nagercoil.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madura..