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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE P. SATHASIVAM
Natesan - Appellant
Versus
Chinnachi Kandar and Others - Respondents
Second Appeal No. 417 of 1983
Decided On : 29 March 1996
ADVERSE POSSESSION - TITLE TO THE SUIT PROPERTY - BURDEN OF PROOF - LIMITATION ACT, 1963 - TAMIL NADU ACT 17 OF 1978 - APPLICABILITY - ADMISSION OF TITLE BY THE DEFENDANT - SUFFICIENCY OF EVIDENCE TO ESTABLISH ADVERSE POSSESSION - INTERPRETATION OF RELEVANT PROVISIONS.
Fact of the Case:
The plaintiff filed a suit for declaration of title, possession, and mesne profits in respect of certain properties. The defendant claimed title by adverse possession and also claimed the benefit of the Tamil Nadu Act 17 of 1978, which provides relief to tenants in cyclone and flood-affected areas. The trial court decreed the suit in favor of the plaintiff, but the lower appellate court allowed the defendant's appeal and set aside the trial court's judgment and decree.
Finding of the Court:
The High Court held that the plaintiff had established title to the suit property and that the defendant had not prescribed title by adverse possession. The court found that the defendant's possession of the property was permissive and that he had not asserted an adverse title to the property for the requisite period of 12 years.
Issues: 1. Whether the plaintiff had title to the suit property? 2. Whether the defendant had prescribed title to the suit property by adverse possession? 3. Whether the defendant was entitled to the benefit of the Tamil Nadu Act 17 of 1978?
Ratio Decidendi: 1. The court held that the plaintiff had title to the suit property based on the following evidence: - Sale deeds, mortgage deeds, and release deeds showing that the plaintiff's father had purchased the property and enjoyed it. - Evidence of witnesses who attested to the sale deeds and mortgage deeds and who testified that the plaintiff's father was the owner of the property. - The defendant's admission in an earlier suit that the property belonged to the plaintiff's father. 2. The court held that the defendant had not prescribed title to the suit property by adverse possession because: - The defendant's possession of the property was permissive, as he had claimed the benefit of the Tamil Nadu Act 17 of 1978, which provides relief to tenants. - The defendant had not asserted an adverse title to the property for the requisite period of 12 years. - The defendant's production of kist receipts, patta book, and agreements with a sugar factory were not sufficient to establish adverse possession in light of his admission of the plaintiff's father's title and the evidence of permissive possession. 3. The court held that the defendant was not entitled to the benefit of the Tamil Nadu Act 17 of 1978 because he had claimed title to the property by adverse possession, which is inconsistent with the provisions of the Act.
Final Decision: The High Court allowed the plaintiff's appeal, set aside the judgment and decree of the lower appellate court, and restored the judgment and decree of the trial court.
Plaintiff is the appellant. He filed O.S. No. 120 of 1978 on the file of Subordinate Judge, Karur, for declaration declaring that the Plaintiff and Defendants 2 and 5 are the owners of the suit properties, for recovery of possession of the same from the first defendant, for re.covery of Rs. 9,000/- as past mesne profits and for recovery of future profits.
2. The case of the plaintiff as found in the plaint is as follows:-
The plaintiff is the son of Karunchami Kandar, who died in the year 1974 leaving behind him the plaintiff and the Defendants 2 to 5 as his heirs. The second defendant is the mother of the plaintiff, while the Defendants 3 to 5 are brothers and sister of the plaintiff. The suit plaintiff originally belonged to one Thoppakkutti alias Nallachi Kandar, son of Nallachi Kandar. It was purchased by the plaintiff's father on 10-3-1930 for a sum of Rs. 1,000/- under Ex. A-1. The plaintiff's father was in possession of the property. Since the plaintiff's father had to leave for Ceylon, he leased out the property to Thoppakkutti alias Nallachi Kandar, viz., his vendor on an yearly rental of Rs. 170/-. The plaintiff's father had borrowed Rs. 300/- from Kangani Muthiah Kandar on 14-5-1932 and executed a simple mortgage deed, under Ex. A-3. As lessee Thoppakkutti alias Nallachi Kandar enjoyed the suit properties till 9-3-1935, the plaintiff's father borrowed a sum of Rs. 300/- on 8-3-1935 from Palaniyandi Gounder son of Ammasi Gounder and executed an usufructuary mortgage deed for a period of 3 years in his favour directing the mortgagee to discharge the simple mortgage deed dated 14-3-1932. The mortgagee was to enjoy the property in lieu of interest. The mortgagee Palaniyandi was in possession in pursuance of the mortgage, and he enjoyed the same till 10-3-l953. The plaintiff's father on 10-3-1953 redeemed the mortgage and leased out the same to one Emakutti Kandar, son of Thoppakkutti alias Nallachi Kandar for a period of 3 years on an annual rental of Rs. 240/-. Emakkutti Kandar was in possession of the property and enjoyed the same till 11-11-1953. Meanwhile, the plaintiff's father executed a power of attorney in favour of Rasaiah Kandar son of Kangani Muthiah for the purpose of collecting the rent from lessee Palaniyandi. Meanwhile Chinnachi Kandar son of Thoppakutti alias Nallachi Kandar claimed some right in the properties and therefore, the plaintiffs' father paid a sum of Rs. 200/ - through his power-of-attorney agent Rasaiah Kandar and obtained a release deed from him on 18-3-1953. The lessee Emakkutti Kandar surrendered possession to the power of attorney on 11-11-1953. On 11-11-1953 the power of attorney agent leased out the property to Muthu Kandar for three years. Muthu Kandar was in possession and enjoyment of the property for a period of three years and then surrendered possession to the power of attorney agent. Therefore, the power of attorney agent leased out the property to one Chinnachi Kandar, son of Thoppakkutti Kandar alias Nallachi Kandar for a yearly rental of Rs. 225/-. Chinnachi Kandar was in possession and enjoyment of the same till his death which took place about 3 years ago paying the rent to the power of attorney agent of the plaintiff's father. The lessee Chinnachi Kandar had been living with the first defendant till his death. The first defendant has been helping the lessee Chinnachi Kandar in the cultivation of the suit property. After the death of lessee Chinnachi Kandar, the first defendant got into the suit property claims to be the only heir and ever since he is in possession of the same. The plaintiff returned from Ceylon in July, 1977 and has settled at Periyappalipalayam. The plaintiff has been demanding the defendant to pay reasonable rent at the rate, of Rs. 3000/- for the years 1974-75, 75-76 and 1976-77. Since the first defendant has been evading, the plaintiff has issued a notice to him on 5-10-1977 calling upon him to pay the reasonable market rate. The first defend
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