This second appeal has been preferred against the Judgment and decree dated 15.07.1996 passed in A.S.No.10 of 1994 by the Principal Sub Court, Dindigul, reversing the Judgment and decree dated 15.04.1993 passed in O.S.No.548 of 1987 by the Additional District Munsif Court, Dindigul.
2. The first defendant in the suit is the appellant herein. Originally, suit was filed by one Ponnan against the first defendant adding District Collector, Dindigul as a formal party. But the contest is only between the plaintiff and the present appellant. During the pendency of the suit, Ponnan died and the respondents herein were brought on record. For convenient to sake in this second appeal, the appellant is referred as defendant and the respondents are referred as plaintiffs.
3. Originally the said Ponnan had filed the suit for declaration of title to the suit property of total extent of 1 acre 84 cents in Survey No.162/2-A, 1 acre 70 cents and in Survey No.162/2A2, 14 cents and for consequential injunction.
4. The brief facts of the case is as follows:
The deceased plaintiff Ponnan was in possession and enjoyment of 1 acre 84 cents in S.No.162/2A. He has been in possession for more than 30 years and had acquired title by adverse possession also. Ponnan and one Arumugam purchased property in S.No.162/2 from one Kaliammal under Ex.A3 dated 26.03.1952. The joint purchaser Arumugam sold 88 cents out of 1 acre 70 cents to one Palaniappan under Ex.A4 on 11.04.1964. The said Palaniappan conveyed the extent 88 1/2 cents to Ponnan under Ex.A5. A patta was granted under Ex.A1 for 1 acre 84 cents including a strip of land on the west of the existing 1 acre 77 cents. According to the plaintiffs, Ponnan has acquired 1 acre 77 cents. However, there was a survey in which he was allotted 1 acre 84 cents under patta No.196 in S.No.162/2A. According to him, without his knowledge there was another resurvey in which the said S.No.162/2A,was further sub divided into S.No.162/2A1 and 162/2A2. Under 162/2A2, 40 cents was annexed with S.No.162/2b which belonged to the defendant and therefore, the plaintiff has filed the suit for declaration that they are entitled for 1 acre 84 cents which is comprised as follows:
5. The suit was resisted by the defendant. According to the defendant, his predecessor in title, Karupayee Ammal purchased 87 cents from one Solaimalai under Ex.B1 dated 22.02.1945. The said Karupayee Ammal in turn sold the property to Azhagammal under Ex.B2 dated 07.06.1955. The said Azhagammal sold the property to one Balu under Ex.B3 dated 12.06.1971. The said Balu sold the property under Ex.B4 to Veerachamy Servai on 04.12.1974 and the defendant is in possession and enjoyment of the property and he has been issued with a patta for 162/2A2 and 162/2b for the extent he purchased in the above said documents.
6. Based on the averments and documents, the trial Court found the plaintiff is in possession and enjoyment only for an extent of 1 acre 70 cents in S.No.162/2A1 and the patta granted to him for 1 acre 84 cents is baseless and the defendant is in possession and enjoyment of 19 cents in S.Nos.162/2A2 and in S.No.162/2B. The trial Court has also found that the plaintiff has not acquired any title by adverse possession for the disputed 14 cents and has negatived the claim.
7. The plaintiffs preferred an appeal in A.S.No.10 of 1994 on various grounds. The lower Appellate Court namely the Principal Sub court, Dindigul framed necessary points for consideration and on analysing the oral and documentary evidence, found that the plaintiff has proved his possession for 1 acre 84 cents for more than the statutory period and the defendant has not proved his extent for 19 cents and decreed the suit in favour of the plaintiffs holding that they are entitled to 1 acre 84 cents.
8. Aggrieved by the Judgment and decree of the first appellate Court, the defendant has preferred the present appeal on the following grounds:
(a) The lower appellate Court has erred in reversing the well considered Judgment and decree of the trial Court without properly appreciating the oral and documentary evidence
(b) The lower appellate Court erred in conferring title on the plaintiff in respect of the suit property on the basis of the documents produced by the first defendant without considering the adverse documents produced by the plaintiff which are contrary to the pleadings.
(c) The lower appellate Court failed to note that even as per the title documents produced by the plaintiff, he had purchased only 1.77 cents and he is not entitled to an extent of 1 acre 84 cents
(d) The lower appellate Court erred in holding that the plaintiff has prescribed title to the suit property by adverse possession without considering the fact that he is not in continuous possession for more than 12 years.
(e) The lower appellate Court has erred in applying the principles of boundaries will prevail over the extent without considering the fact that the boundaries, extent and the survey numbers are properly mentioned in the title deed of the defendant.
9. On admitting the second appeal, the following substantial questions of law were framed:
"(a)Whether the lower appellate court is justified in conferring title on the plaintiff, in respect of the suit property by holding that plaintiff has prescribed title by adverse possession even before the expiry of the statutory period of twelve years?
(b) Is not the burden of proof under
section 101 of the Indian Evidence Act, lies on the plaintiff to prove his title and continuous and uninterrupted possession of the suit property for more than the statutory period and
(c) Whether the lower appellate Court is justified in applying the principles of 'boundaries will prevail over the extent' to the present case when the measurement and the boundaries mentioned in the title deeds produced by the plaintiff found to be correct and tallied with each other?"
10. Originally S.No.162/2 comprised of 2 acre 60 cents, belonged to Kaliammal and Solaimalai and the said Kaliammal sold 1 acre 77 cents out of 2 acres 60 cents on the western side to one Ponnan Kudumban and one Arumuga Kudumban under Ex.A3 dated 26.03.1952. The said Solaimalai sold 87 cents on the eastern side out of 2 acre 60 cents in S.No.162/2 to one Karuppayee Ammal under Ex.B1 dated 22.02.1945. The said Karuppayee Ammal sold the same property to one Azhagamml under Ex.B2 dated 07.06.1955. The co-purchaser Arumugam Kudumban sold his share of 88 1/2 cents on the eastern side to one Palaniappan under Ex.A4 dated 11.04.1964 and the said Palaniappan resold the said 88 1/2 cents to Ponnan kudumban under Ex.A5 dated 10.11.1970. Meanwhile, on the western side of 88 cents, Azhagammal sold the said property under Ex.B3 dated 12.06.1971 to one Balu and the said Balu conveyed the property under Ex.B4 dated 04.12.1974 to Veerachamy, the defendant.
11. Even according to these two series of sale deeds, exhibit 'A' series 3 to 5 refers to 1 acre 77 cents and exhibit 'B' series 1 to 4 refers to 87 cents, totally 2 acres 64 cents, whereas, the available extent is only 2 acre 60 cents. There is a difference of 4 cents. Since Ex.B1 is an earliest sale for 87 cents dated 22.02.1945, what was sold to the plaintiff and Arumugam under Ex.A3 dated 26.03.1952 should be for 1 acre 73 cents. However, it has been shown for 1 acre 77 cents. Coming to the actual dispute between the parties, the plaintiffs would state that they have been issued with a patta under Ex.A1 for 1 acre 84 cents for S.No.162/2A. So necessarily the defendant should have been issued with a patta for 76 cents for S.No.162/2B. But it was not so. He has been issued with a patta originally for 31 ares, i.e., approximately 76 cents in S.No.162/2B. However again he was issued with a patta for 0.05.5 ares under S.No.162/2A2. This position is clear under a sketch marked as Ex.X9. There is a strip of land, sub divided into 162/2A2. For this strip of land of 14 cents, the patta has been given to the defendant. But the plaintiffs claimed that it is in their possession and enjoyment for more than 30 years. The trial Court found that the plaintiff had purchased the property under the sale deed to an extent of 1 acre 77 cents only and he is not entitled to more than that. It has also found that under S.No.162/2A1, the plaintiff has been given a patta for only 1 acre 70 cents and he has to be satisfied only with that, whereas, the defendant was given patta for 90 cents under S.No.162/2A2 and 162/2b.
12. The Commissioner who had inspected the property had found that entire 162/2A, is one block and maze was cultivated. He had found 162/2b is on the western side and tomatoes were cultivated. However in chitta and adangal in S.No.162/2A1, 1 acre 70 cents has been shown as maze cultivation for plaintiff and in S.No.162/2A2, 14 cents maze cultivation for the defendant and in S.No.162/2b tomato cultivation for the defendant.
13. The lower appellate Court believed the version of the plaintiff supported by the finding of the Commissioner and has held that the plaintiff is in possession for 1 acre 84 cents including the S.No.162/2A1 of 14 cents and decreed the suit. While considering such larger extent for plaintiff, the lower appellate Court had applied the principle that the plaintiff has perfected title by adverse possession and for disallowing the claims of the defendant the lower appellate Court had applied the principle that the boundaries prevailed over the extent and the defendant has not proved that he had taken possession of 87 cents according to his documents.
14. In fact, the plaintiff has not pleaded very clearly about the facts and the extents how he acquired the suit properties. In fact, he never mentioned about the sale deeds through which he had acquired the property. It is only the defendant who had stated that the plaintiff has acquired the property under various sale deeds and he has acquired the properties under various sale deeds from a common predecessor in title.
15. As stated earlier, the dispute is only with regard to 14 cents of land sub divided as 162/2A2 as mentioned in Ex.X9, field map. Originally the entire extent of 2 acre 60 cents was comprised in S.No.162/2 out of which the plaintiffs have acquired 1 acre 77 cents on the western side and the defendant has acquired 87 cents on the eastern side. As mentioned earlier, there is a difference of 3 cents between these two set of title deeds.
16. Originally the plaintiff was given a patta under Ex.A1, for 1 acre 84 cents for S.No.162/2A. The S.No.162/2 was sub divided into 162/2A and 162/2B. Suddenly 162/2A was further sub divided into 162/2A1 for 1 acre 77 cents and 162/2A2 for 14 cents and thereby reducing the extent of the plaintiffs to 1 acre 70 cents and a patta was granted to the defendant for this 14 cents in addition to the extent available under S.No.162/2B. However even after the patta, the possession continued to be with the plaintiffs and the plaintiffs claimed such possession adverse to the defendant.
17. The learned counsel appearing for the appellant would submit that a person claiming adverse possession must plead and prove that from which date he has been holding such possession. The learned counsel also contended that the lower appellate Court is wrong in holding that the defendants have failed to prove the extent with boundaries and has wrongly applied the principle that the boundaries will prevail over the extent.
18. The learned counsel relied upon the decision reported in 82 LW 142 (Kamakshi Ammal Vs. R.Ranganathan), wherein this Court has held as follows:
"if the deed of conveyance gives both the extent and the boundaries, the Court will have to determine what the intention of the parties was at the time of the grant, having due regard to the law of evidence. The problem can arise only when there is inconsistency and both the area and the boundaries are specific."
19. The learned counsel also pointed out that the lower appellate Court had relied on the Commissioner's report entirety to give a finding that the plaintiff is in possession of 1 acre 84 cents.
20. The learned counsel for the respondent would submit that the lower appellate Court was right in holding that the plaintiff is in possession and enjoyment of 1 acre 84 cents and granting of patta by the revenue authorities without ascertaining the ground reality will not disentitle the plaintiff's claim. The learned counsel also pointed out that the plaintiff has in fact pleaded that he is in adverse possession for more than 30 years and he has perfected the tile for the disputed 14 cents.
21. The argument of the appellant seems to be that adverse possession start running from 10.11.1970 when the plaintiff purchased 88. cents from one Palaniappan who purchased the property from Arumugam who is the co-purchaser along with the plaintiff.
22. In fact the predecessor in title to the defendant have acquired 87 cents under exhibit 'B' series and the defendant has purchased the property in the year 1974 under Ex.B4. However, when S.No.162/2 was sub divided, patta has been granted to the plaintiff under 162/2A for 1 acre 84 cents and on the date of filing of the suit, he has been found to be in possession and enjoyment of the same, whereas the defendant on the east of the plaintiff's property comprised in S.No.162/2B, is in possession only for an extent of 76 cents. According to the documents, the plaintiff is only entitled to 1 acre 77 cents, but he was in possession of another 7 cents on the eastern side which was marked as 'a b c d' under Ex.A2. Ex.B5 was given to the defendant including S.No.162/2A2 for 0.05.5 ares, when the earlier patta under Ex.A1 was given to the plaintiff for 1 acre 84 cents under S.No.162/2A. Though the defendant has purchased 87 cents and though patta has also been given to him under Ex.B5 for 90 cents, he is found to be in possession and enjoyment and cultivation of only 76 cents or 0.31.0 ares in S.No.162/2B. When there is an inconsistency between the extent on ground and the extent on the document of title, the lower appellate Court had applied the theory that the boundaries prevail over the extent. Ex.X6 (162/2B 76 cents) in the name of the defendant. Ex.X7 (162/2A 1 acre 84 cents) in the name of the plaintiff would also prove that the plaintiff was given patta for 1 acre 84 cents in S.No.162/2A. However, under Ex.X9 and Ex.B5 there seems to be an another sub division by the revenue authorities for granting patta subdividing S.No.162/2A into 162/2A1 (1 acre 70 cents) and 162/2A2 for 14 cents and this 14 cents, patta has been granted to the defendant which is against the possession. Such patta will not confer any title to the defendant though he is in short of 11 cents. The plaintiff has pleaded an adverse possession for more than 30 years, taking into consideration of the first purchase in the year 1952 under Ex.A3. Therefore, the lower appellate Court is right in finding for the 14 cents out of which the plaintiff has already been holding a title for 7 cents under his sale deeds and had acquired title by adverse possession also. Therefore all the issues are decided against the appellant.
23. In the result, the appeal fails and is dismissed accordingly. The Judgment and decree passed in A.S.No.10 of 1994 by the Principal Sub Court, Dindigul are confirmed.
mj To
1.The Principal Sub Court, Dindigul
2.The Additional District Munsif Court, Dindigul