Back
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE MOHAN & THE HONOURABLE MR. JUSTICE NAINAR SUNDARAM
V. Muthiah Pillai (Died) and Others - Appellant
Versus
Vedambal and Others - Respondent
Case No : App. No. 726 of 1978
Decided On : 26 March 1985
ADVERSE POSSESSION - SUIT FOR DECLARATION, RECOVERY OF POSSESSION AND MESNE PROFITS - ORAL GIFT OF SUIT PROPERTY - ADVERSE POSSESSION - ESSENTIAL ELEMENTS - KNOWLEDGE OF OWNER NOT NECESSARY - ADVERSE POSSESSION ESTABLISHED - APPEAL DISMISSED.
Fact of the Case:
Plaintiffs purchased the suit property from the third defendant by a registered sale deed dated 22-6-1972. The third defendant was adopted by the husband of Vengalakshmi and Vengalakshmi as their son. On the death of Vengalakshmi in 1945, the third defendant succeeded to the property. The plaintiffs alleged that the third defendant had no right to sell the house and that the first defendant was in permissive possession. The third defendant claimed that the first defendant was given the suit property as Stridhanam in 1936 and that she had been in possession and enjoyment of the property in her own right since then. The first defendant also claimed that she had acquired title to the property by adverse possession.
Finding of the Court:
The trial court held that the plaintiffs had no title to the suit property, that the oral gift of the suit property alleged to have been made in favour of the first defendant by Subbanna Iyer was neither true nor valid, that the first defendant had acquired title to the suit property by adverse possession, that the first defendant had not been in permissive possession of the salt property as alleged by the third defendant, and that the third defendant and plaintiffs were estopped from disputing the first defendant's title to the suit property.
Issues: 1. Whether the plaintiffs have title to the suit property? 2. Whether the oral gift of the suit property alleged to have been made in favour of the first defendant by Subbanna Iyer is true and valid? 3. Whether the plaintiffs are entitled to the relief of possession prayed for? 4. Whether the plaintiffs are entitled to mesne profits? If so, to what amount? 5. To what relief, the plaintiffs are entitled?
Ratio Decidendi: 1. Adverse possession is commenced in wrong and is aimed against right. 2. A person is said to hold the property adversely to the real owner when that person, in denial of the owner's right excluded him from the enjoyment of his property. 3. Setting up adverse possession by the person in adverse possession is not wrong; it is not shameful on his part to do so. 4. This plea is allowed with the laudable intention of giving a quietus to long possession. 5. In fact under the Civil Procedure Code, when a suit in ejectment or for possession is filed by the plaintiff he is required to show prima facie that it is within time. 6. Now the party claiming to hold the immovable property adversely must at least go on to prove that it was in denial of the owner's title and that he excluded him from the enjoyment of his property. 7. Where a stranger is in possession it is not necessary to do so to the knowledge of the true owner, but it is sufficient if the possession is hostile, notorious and exclusive, so that the owner could perceive the same.
Final Decision: The appeal is dismissed with costs.
MOHAN
The plaintiffs are the appellants.
2. The appeal arises out of O.S.18 of 1974 on the file of the Sub-Court, Madurai. The said suit is for declaration, recovery of possession and mesne profits.
3. The averments in the plaint are shortly as under - (i) The suit property bearing door No. 41, Sokkappa Naicken St. Madurai was originally purchased by one Subbanna Iyer by a registered sale deed dated 5-6-1924. He died in the year 1927, leaving behind his widow Lakshmi Ammal and his only daughter Vengalakshmi. By a registered adoption deed Ex. A6 dated 16-7-1936, the third defendant was adopted by Sethurama Iyer the husband of Vengalakshmi and Vengalakshmi as their son. On the death of Lakshmi Ammal in 1939 Vengalakshmi, the daughter, succeeded to the property and was enjoying the same, as woman's estate. Vengalakshmi died in 1945. On her death, her adopted son the third defendant succeeded to the property.
(ii) By a registered sale deed Ex.A1 dated 22-6-1972, the plaintiffs purchased the property for a valuable consideration of Rs. 32,000.
(iii) Pursuant to the sale, the third defendant wrote a registered letter on 11-7-1972, calling upon defendants 1 and 2 to attorn their tenancy in favour of plaintiffs, informing them of the sale that has taken place in their favour. Likewise, the plaintiffs also issued a registered notice under Ex.A2 on 10-7-1972, to the defendants 1 and 2 requesting them to vacate the house and deliver vacant possession. Under Ex.A4, dated 4-8-1972, the defendants 1 and 2 sent a reply denying the right of the third defendant to sell the house and setting up title on the first defendant. Thereupon, the plaintiffs contacted the third defendant to inform them that the allegations in the reply notice were wholly unfounded. They learnt from the third defendant that the second defendant was given to licentious and profligate ways of life. He never cared for the family or the first defendant. It was under these circumstances, the third defendant taking pity permitted the first defendant to live in the suit house and she was permitted to collect the rents from the tenants and utilise the same towards her maintenance after paying the taxes and kist for the properties. The possession of the first defendant was, therefore, permissive. The third defendant persuaded the plaintiffs not to rush to court promising to prevail upon the defendants 1 and 2 to abandon their untenable claim. But that promise has not been fulfilled. Therefore, the present suit has come to be filed.
4. Defendants 1 and 2 in their written statement contended as follows :- (i) It is true the suit property originally belonged to Subbanna Iyer. He had no son. The mother of the first defendant viz. Vengalakshmi was his only daughter. Since the first defendant is the only daughter of Vengalakshmi, Subbanna Iyer, the grand-father had great affection towards the first defendant. As a matter of fact, the marriage of the first defendant itself was celebrated by Subbanna Iyer. Ever since the marriage, defendants 1 and 2 were living with Subbanna Iyer and his wife. In 1923, Subbanna Iyer executed a will in respect of his property. Under the said Will, he had bequeathed all the properties in favour of his wife, Vengalakshmi, the suit property was purchased subsequent to the will. Out of affection for the first defendant, in or about January 1936, the suit property was orally gifted as Stridhanam to the first defendant by Subbanna Iyer. The first defendant, therefore, has been in possession and enjoyment of the suit property in her own right as full owner thereof. On the death of Subbanna Iyer, Lakshmi Ammal was in enjoyment of the property till 1939. Thereafter, the first defendant and her husband, the second defendant along with Vengalakshmi were in enjoyment of the property. Vengalakshmi was living in Pudukottai. She came to Madurai in 1937, when her husband died, and lived with defendants 1 and 2. The registry of the house was mistakenly transferred i
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
