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2008 Supreme(Mad) 2150
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE A.C. ARUMUGAPERUMAL ADITYAN
K. Saraswathi
Versus
The State of Tamil Nadu represented by the Collector of Chennai & Others
A.S.Nos.1061 and 1062 of 2007 and M.P.No.1 of 2007
Decided on: 01-07-2008
For the Appellant:T.R. Mani, Senior Counsel, T. Srinivasaraghavan, Advocate. For the Respondents:R1, V. Ravi, Spl.Govt.Pleader, R2, G.T. Subramanian, R3 & R4, B.T. Seshadri, Advocates.
Mere possession of a person for any length of time will not automatically flow right on him under Article 65 to claim title in respect of the said property under adverse possession.
Headnote:
ADVERSE POSSESSION - TITLE - BURDEN OF PROOF - ADVERSE POSSESSION MUST BE OPEN, HOSTILE AND CONTINUOUS - MERE POSSESSION FOR ANY LENGTH OF TIME WILL NOT AUTOMATICALLY FLOW RIGHT ON HIM UNDER ARTICLE 65 TO CLAIM TITLE IN RESPECT OF THE SAID PROPERTY UNDER ADVERSE POSSESSION.
Fact of the Case:
The plaintiff in O.S.No.2844 of 2004 claimed title to the suit property by way of adverse possession. The defendants in O.S.No.8866 of 2005 claimed title to the suit property under Exs B4 and B5 sale deeds.
Finding of the Court:
The plaintiff in O.S.No.2844 of 2004 failed to prove that her possession was adverse to the plaintiffs in O.S.No.8866 of 2005 for more than a statutory period. The defendants in O.S.No.8866 of 2005 failed to prove their right, title and possession in respect of the plaint schedule properties.
Issues: 1) Whether the plaintiff in O.S.No.2844 of 2004 /defendant in O.S.No.8866 of 2005/appellant in both appeals viz., K.Saraswathi had prescribed title to the suit schedule properties(one and the same in both the suits) by way of adverse possession? 2) Whether the plaintiffs in O.S.No.8866 of 2005/defendant in O.S.No.2844 of 2004/respondents 3 and 4 in A.S.No.1061 of 2007 and respondents 1 and 2 in A.S.No.1062 of 2007 have proved their right title and possession in respect of the plaint schedule properties? 3) Whether the decree and Judgment in O.S.No.2844 of 2004 and O.S.No.8866 of 2005 respectively on the file of VII Additional Judge, City Civil Court, Chennai is liable to be set aside for the reasons stated in the respective memorandum of appeals in A.S.No.1061 of 2007 and A.S.No.1062 of 2007?
Ratio Decidendi: 1. Adverse possession must be open, hostile and continuous. Mere possession for any length of time will not automatically flow right on him under Article 65 to claim title in respect of the said property under adverse possession. 2. The burden of proving adverse possession lies on the person claiming title by adverse possession.
Final Decision: The appeals were allowed and the Decree and Judgment in O.S.No.2844 of 2004 and O.S.No.8866 of 2005 respectively on the file of VII Additional Judge, City Civil Court, Chennai was set aside. Both the appeals were remanded to the trial Court for framing a proper issue as to whether the plaintiff in O.S.No.2844 of 2004/defendant in O.S.No.8866 of 2005 has prescribed title to the suit property by way of adverse possession and after giving an opportunity to both parties ,to let in further evidence on the said issue, shall decide the suit is on merits within a period of two months from the date of receipt of a copy of this order.
A.S.No. 1061 of 2007 has been directed against the decree and Judgment in O.S.No.2844 of 2004 and A.S.No.1062 of 2007 has been directed against the decree and Judgment in O.S.No.8866 of 2005 on the file of VII Additional Judge, City Civil Court, Chennai. Both the appeals arise out of a common Judgment of the above said suits.
2. O.S.No.2844 of 2004 was filed by the plaintiff for declaration of her title in respect of the plaint schedule property and also for permanent injunction against the defendants from in any manner interfering with the peaceful possession and enjoyment of the plaint schedule property and also for a declaration that the order of the Commissioner, City Municipal Corporation, Chennai in W.D.C.No.D4/5084/99 dated 212. 2000 is not valid and against law.
3. The averments in the plaint in O.S.No.2844 of 2004 sans irrelevant particulars are as follows:
The Predecessors-in-title of the plaintiff viz., Sethumadhavan had purchased the plaint schedule property from one A.Sadullah Basha and others by a Sale deed dated 11. 1983. After the said purchase of the plaint schedule properties, Sethumadhavan was in actual possession and enjoyment of the property who had executed a registered Sale Deed dated 9. 1984 under document No.3097 of 1984 by the Sub Registrar of Sembium in favour of the plaintiff conveying the right title and possession in respect of the plaint schedule property. The plaintiff after demolishing the small superstructure in the said property applied to the second defendant for planning permission and building licence for construction of a house and after obtaining the building licence for constructing the ground floor in the plaint schedule property under planning permit AEE/V-VI/P.P.A.No.V5/383/87 dated 9. 1987 and after obtaining the house building loan from the Life Insurance Corporation of India, the plaintiff had constructed the house ie., ground floor only and thereafter the plaintiff was residing in the said ground floor, after getting electricity connection etc., The schedule house was assessed to property tax by the second defendant and the plaintiff is also paying the property tax. Thereafter, the plaintiff has applied to the second defendant for planning permission and for building licence for construction of the first floor in the house. After getting planning permission dated 210. 1999 and also building license dated 210. 1999 for putting up additional construction, the plaintiff completed the construction of the first floor in the month of May 2000. The plaintiff is in actual physical and khas possession of the plaint schedule property viz., inclusive of land with building consisting of ground floor and first floor. On 111. 2000, the plaintiff had received a show cause notice from the second defendant as to why the planning permission and the building license granted to her should not be revoked. The plaintiff sent a suitable reply dated 211. 2000 to the said show cause notice. But the second defendant had revoked the planning permission and building license granted to the plaintiff on 212. 2000 under Section 54(2) of the Tamil Nadu Town and Country Planning Act and under Section 365(4) of the Madras City Municipal Corporation Act. The said order of revocation by the second defendant is illegal and arbitrary, bereft of lawful authority. The plaintiff has filed a writ petition in W.P.No.2369 of 2001 before this Court for writ of certiorari to quash the order of the second defendant in W.D.C.No.D4/5084/99 dated 212. 2000. In the said writ petition, D3 and D4 were also impleaded. In the writ petition, the High Court had directed the plaintiff to establish her title in a Civil Court and further directed the plaintiff as well as the D3 and D4 to work out their remedy in the Civil Court which necessitated the plaintiff to file the suit for declaration of her title in the suit property and for consequential reliefs. The vendor of the plaintiff had traced their title to the said propert
