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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. KARPAGAVINAYAGAM
Mr. Thanisias (deceased) and nine others
Versus
Ms. Selvam Ammal (died) and four others
S.A. No. 269 of 1988
Decided On : 05-10-1999
ADVERSE POSSESSION - ORAL SALE - TENANCY - BURDEN OF PROOF - SUIT FOR DECLARATION AND RECOVERY OF POSSESSION - ADVERSE POSSESSION COMMENCED FROM 1967 - DEFENDANTS CONSTRUCTED THE BUILDING IN THE SUIT LAND AND ENJOYED THE SAME BY ADVERSE POSSESSION FOR A LONG NUMBER OF YEARS - PLAINTIFFS FAILED TO PROVE THEIR TITLE TO THE HOUSE BUILDING IN THE SUIT LAND AS OWNERS - DEFENDANTS PLEADED THAT BY VIRTUE OF THE ORAL SALE, THEY HAVE BEEN POSSESSION OF THE SUIT PROPERTY FROM 1958, EXCEPT THEIR ORAL STATEMENT, THERE IS NOTHING TO INDICATE THAT THE DEFENDANTS WERE IN POSSESSION OF THE SUIT PROPERTY FROM 1958 AS THE OWNERS OF THE SAME - DEFENDANTS PROVED THEIR ADVERSE POSSESSION COMMENCING FROM 1967 THROUGH THE DOCUMENTARY EVIDENCE WHICH WAS CONTINUOUS AND UNINTERRUPTED TO THE KNOWLEDGE OF THE PLAINTIFFS - PLAINTIFFS' CASE THAT THE DEFENDANTS TOOK POSSESSION OF THE SUIT PROPERTY ONLY IN THE YEAR 1977 AS TENANTS CANNOT BE TRUE, INASMUCH AS THERE ARE DOCUMENTARY EVIDENCE TO SHOW THAT THE HOUSE WAS CONSTRUCTED IN 1965 AND DOOR NUMBER WAS ALLOTTED AS 5/111 AND WATER CHARGES AND HOUSE TAX HAVE BEEN PAID BY THE DEFENDANTS FROM 1967 ONWARDS - PLAINTIFFS WERE WELL AWARE THAT THE FIRST AND SECOND SCHEDULE OF PROPERTIES WERE PURCHASED BY MADUTHIN NADAR IN HIS NAME - DEFENDANTS CONSTRUCTED THE BUILDING IN THE SUIT LAND AND ENJOYED THE SAME BY ADVERSE POSSESSION FOR A LONG NUMBER OF YEARS - AT ANY RATE, UNDER DOCUMENTARY EVIDENCE, THE ADVERSE POSSESSION COMMENCED IN 1967 ITSELF.
Fact of the Case:
Suit for declaration and recovery of possession filed by the plaintiffs/respondents. The claim for recovery of possession was made by the plaintiffs on the basis that the defendants were put in possession as tenants in the year 1977. The defendants pleaded that by virtue of the oral sale, they have been possession of the suit property from 1958. The trial court dismissed the suit filed by the plaintiffs, the first appellate Court allowed the appeal and set aside the judgment and decree of the trial Court and decreed the suit. Hence, this second appeal.
Finding of the Court:
The lower appellate Court erred in holding that the decree by the trial court in favour of the defendants that they are entitled to the suit property by adverse possession was without any issue being framed. The defendants pleaded adverse possession and relevant issue was framed by the trial court. The defendants proved their adverse possession commencing from 1967 through the documentary evidence which was continuous and uninterrupted to the knowledge of the plaintiffs. The plaintiffs failed to prove their title to the house building in the suit land as owners.
Issues: 1. Whether the lower appellate Court committed error apparent on the face of the record in reversing the judgment and decree of the trial Court, by holding that the appellants alternative plea of adverse possession could not be favourably considered for the reason that the trial court did not frame any issue on that aspect, despite the point that was framed as an additional issue No. 3 and findings rendered thereon? 2. Whether the defendants proved their adverse possession commencing from 1967 through the documentary evidence which was continuous and uninterrupted to the knowledge of the plaintiffs?
Ratio Decidendi: 1. The absence of an issue framed by the trial court in regard to adverse possession would not vitiate the right of the parties, if the parties went to trial with knowledge that a particular question is in issue and led all the evidence not only in support of their contentions but in refutation of those of the other side. 2. A person, who claims title to the property by adverse possession must definitely allege and prove how and when adverse possession commences and what was the nature of his possession. In the present case, the defendants pleaded adverse possession and relevant issue was framed by the trial court. The defendants proved their adverse possession commencing from 1967 through the documentary evidence which was continuous and uninterrupted to the knowledge of the plaintiffs.
Final Decision: Appeal allowed. Judgment and decree of the lower appellate court set aside. Judgment and decree of the trial court restored.
1. The appellants 1 and 2 are the defendants in the suit filed by the respondents for a declaration of title and for recovery of possession of the suit property from the defendants with mesne profits and the arrears of rent.
2. Though the trial Court dismissed the suit filed by the respondents, the first appellate Court allowed the appeal and set aside the judgment and decree of the trial Court and decreed the suit. Hence, this second appeal.
3. According to the plaintiffs, the suit property was handed over by the plaintiffs to the defendants for lease on a monthly rent of Rs. 3 in January, 1977 and the defendants did not pay the rent from January, 1978 and despite the notice terminating the tenancy, they did not vacate nor paid the arrears of rent. Therefore, they filed the suit.
4. According to the defendants, they purchased the suit property from the original owner Maduthin Nadar, the husband of the first plaintiff in the year 1958 and they constructed a pucca building in the suit land and they have been in possession for about 25 years and therefore, the plaintiffs would not be entitled to seek for any relief.
5. During the course of trial, on the side of the plaintiffs, P.Ws.1 to 4 were examined and Exs.A1 to A13 were marked. On the other side, the second defendant examined herself as D.W.1 and marked Exs.B1 to B5.
6. During the pendency of trial, an advocate-Commissioner was appointed to inspect the suit property and accordingly he inspected in the presence of both parties and filed a report before the Court. The same was marked as Ex.C1.
7. The trial Court, on consideration of the evidence, oral and documentary, rejected the case of both and held that the case of the plaintiffs that the suit property was leased out to the defendants and the case of the defendants that they purchased the property on oral sale from Maduthin Nadar have not been proved. However, on the basis of the materials available, the trial Court would hold that the defendants have been in adverse and uninterrupted possession of the suit property for about 19 years and that therefore, the suit is liable to be dismissed.
8. However, the lower appellate Court, in the appeal filed by the plaintiffs, allowed the appeal and set aside the judgment and decree of the trial Court and decreed the suit mainly on the ground that the finding had been given by the trial court in favour of the defendants on the basis of the adverse possession for about 19 years even without the relevant issue framed.
9. The said judgment and decree are challenged before this Court in the second appeal.
10. During the pendency of the second appeal, the first appellant died and his legal representatives were brought on record as appellants 3 to 10 and since the first respondent also died, the respondents 2 to 5 were recorded as her legal representatives.
11. At the time of admission, the following substantial question of law was formulated: “Whether the lower appellate Court committed error apparent on the face of the record in reversing the judgment and decree of the trial Court, by holding that the appellants alternative plea of adverse possession could not be favourably considered for the reason that the trial court did not frame any issue on that aspect, despite the point that was framed as an additional issue No. 3 and findings rendered thereon?”
12. On the basis of this question, the learned counsel appearing for the appellants would make elaborate submission, which is as follows:-
“The well considered judgment of the trial Court, which has exhaustively considered and properly decided all the issues on the basis of the available records, has been reversed by the lower appellate Court without applying judicial mind and law. The defendants established that they had only constructed the house by employing their own funds in the suit land and they had been continuously paying the property taxes and other ceases, thereby they have proved the title to the sai
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