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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. SAMPATH
Rathnasamy Mudaliar and others
Versus
Rasu
A.A.O.No.794 of 1992
Decided On : 09-12-1999
ADVERSE POSSESSION - PLEADINGS - SUFFICIENCY - REMAND - PRINCIPLES.
Fact of the Case:
In a suit for permanent injunction restraining the defendant from interfering with the plaintiff's possession of a property, the defendant denied the plaintiff's title and claimed to be in possession for 25 years, but no issue was framed on this claim. The trial court found in favor of the plaintiff and dismissed the suit. On appeal, the lower appellate court remanded the matter to the trial court to frame additional issues on the defendant's title and possession and to decide the suit afresh.
Finding of the Court:
The High Court held that the lower appellate court erred in remanding the matter. The court found that the defendant's written statement contained sufficient pleadings to constitute a plea of adverse possession, even though the words 'adverse possession' were not specifically mentioned. The court also held that the lower appellate court failed to satisfy the criteria for remitting the matter to the trial court, as it did not find that the trial court's judgment was erroneous or that the parties were denied an opportunity to present their evidence.
Issues: 1. Whether the defendant's written statement contained sufficient pleadings to constitute a plea of adverse possession? 2. Whether the lower appellate court erred in remanding the matter to the trial court without satisfying the criteria for remitting the matter?
Ratio Decidendi: 1. The court held that the defendant's written statement contained sufficient pleadings to constitute a plea of adverse possession, even though the words 'adverse possession' were not specifically mentioned. The court noted that the defendant had alleged that he had been in possession of the property for 25 years, had put up a hut, was living there, had raised several trees, and that this fact was known to everyone in the village. The court found that these averments were sufficient to constitute the plea of adverse possession. 2. The court held that the lower appellate court erred in remanding the matter to the trial court without satisfying the criteria for remitting the matter. The court noted that the lower appellate court did not find that the trial court's judgment was erroneous or that the parties were denied an opportunity to present their evidence. The court held that the lower appellate court should have re-settled the issues, if necessary, and decided the question itself.
Final Decision: The High Court set aside the lower appellate court's order of remand and remitted the matter to the lower appellate court for a decision on the issues additionally framed by it on the materials, oral and documentary evidence on record. The lower appellate court was directed to decide the appeal within a period of three months from the date of receipt of the order.
The C.M.A. has been filed against the order of remand by the Subordinate Judge, Mayiladuthurai in A.S.No.12 of 1990 on his file. The first appellant in the Civil Miscellaneous Appeal filed suit O.S.No.171 of 1983 before the District Munsif, Seerghazhi against the respondent herein for a permanent injunction restraining him, his men and agents from interfering with his possession or in the alternative for recovery of possession in respect of an extent of 7 cents in R.S.No.166/4 in No.91 Mudikandanallur Village in Tharangambadi Taluk, Mayiladuthurai Registration District with 22 coconut trees, plantains and trees like portia, vaagai and margoza. Pending C.M.A., he died and his legal representatives have come on record as appellants 2 and 3. The case as set out in the plaint is as follows: The suit property was allotted to the plaintiff in a family partition between his paternal uncle and himself to be enjoyed by them jointly and the paternal uncle having died 40 years prior to the suit without leaving behind any heir or legal representative, he became the sole owner and in possession of the same. The defendant/respondent used to work as a casual labourer in his wet lands in the village and as he was creating trouble demanding higher wages the plaintiff stopped engaging him as a casual labour from January, 1983. The defendant had been nurturing the grievance against the plaintiff from the first week of March, 1983. He attempted to cut the trees in the fence line around the suit property. This was prevented by the plaintiff. He had been coming out from 23. 1983 that he would cause interference to the plaintiffs possession of the property. The defendant is not denying the title of the plaintiff but bent upon causing any once to him and the suit is therefore necessitated.
2. The defendant has filed a written statement and an additional written statement with the following averments:
The title and possession of the plaintiff to the suit property are denied. The defendant is poor Harijan in possession of 15 Kuzhis for the past 25 years bounded on the North by the Tank and east West and South by Channels. He has put fence all round and the property is in his possession and lock and key. He has raised the various trees. He is living in the hut built in the property and it is known to everybody in the village. The enmity mentioned in the plaint is not true. There was no necessity for the defendant to cut the trees belonging to him. The alternative prayer is not maintainable.
3. The learned District Munsif Seerghazhi framed the following issues and additional issues on the pleadings:
.• (1) Whether the plaintiff was in possession on the date of the suit and whether he is entitled to the permanent injunction prayed for by hime
.• (2) What relief the plaintiff is entitled toe Additional issues were:
.• (1) Whether the plaintiff would be entitled to the alternative relief of recovery of possession.
.• (2) Whether he would be entitled to the other reliefs prayed for by him.
4. On the side of the plaintiff Exs.A-1 to A-6 were marked and the plaintiff besides examining himself as P.W.1 examined 4 other persons as P.Ws.2 to 5. The defendant marked Exs.B-1 and B-2, examined himself as D.W.1 and 4 others as D.Ws.2 to 5. The Advocate Commissioners Report and Plan were marked as Court Documents 1 and 2 and the Report and the plan of the Surveyor/Commissioner were marked as court documents 3 and 4. The learned District Munsif after elaborately considering the oral and the documentary evidence held that the plaintiff had established his case of title, that the defendant had not shown by any acceptable evidence, that he had been in enjoyment and possession of the suit property by production of the kist receipts alleged to have been issued to him. The learned District Munsif also found that the ‘B’ Memos produced by the defendant were not true documents that there were corrections made in them, that his case that it was poromboke land had no
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