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2010 Supreme(Mad) 4
High Court of Judicature at Madras
THE HONOURABLE MS. JUSTICE R. MALA
Sevigounder
Versus
Ramaswamy & Another
S.A. No.270 of 2003
Decided on: 01-01-2010
For the Petitioner:V. Girish Kumar, Advocate.
For the Respondent:V. Raghavachari, Advocate.
The main legal point established in the judgment is the application of adverse possession in property disputes and the interpretation of Order 1, Rule 9, C.P.C.
Headnote:
Adverse Possession - Property Dispute - Order 1, Rule 9, C.P.C. - Utha Moidu Haji v. Kuningarath Kunhabdulla, 2007 (14) SCC 792 - Des Raj v. Bhagat Ram, 2007 (2) CTC 838 (SC): 2007 (9) SCC 641 - P.T. Munichikkanna Reddy and others v. Revamma and others, 2007 (6) SCC 59 - Hemaji Waghaji Jat v. Bhikhabhai Kherngarbhai Harijan and others, AIR 2009 SC 103
Fact of the Case:
The suit property originally belonged to Muttiah Gounder, divided between his sons, and later purchased by the plaintiff. The defendants claimed ownership through purchase and adverse possession.
Finding of the Court:
The Court found that the plaintiff had prescribed title by adverse possession and the suit was not bad for non-joinder of necessary parties.
Issues: The issues included the ownership of the property, adverse possession, and non-joinder of necessary parties.
Ratio Decidendi: The Court held that the plaintiff had prescribed title by adverse possession and that the suit was not bad for non-joinder of necessary parties.
Final Decision: The Second Appeal was allowed, the decree and judgment of the First Appellate Court were set aside, and the decree and judgment of the Trial Court were restored to file.
1. This Second Appeal has been filed against the judgment and decree dated 28.06.2002 on the file if II Additional Subordinate Judge, Villupuram, in confirming the judgment and decree dated 05.02.2001 made in O.S. No.324 of 1996 on the file of II Additional District Munsif, Ulundurpet.
2. The averments in the Plaint are as follows:
(i) The suit property originally belonged to one Muttiah Gounder. He is having two sons, by name, Manu Gounder and Ramaswamy, the first defendant. On 26.12.1963, they divided the property in pursuance of a registered partition deed. In the above said partition, the suit property and other properties were allotted to the share of Manu Gounder. He died intestate leaving behind Velayutha Gounder as his only son. After his death, Velayutha Gounder was in possession and enjoyment of the same. On 19.05.1987, he alienated the property in favour of the plaintiff on behalf of himself and his minor son Karunanidhi. From the date of purchase, the plaintiff is in possession and enjoyment of the same by way of mutation of revenue records and by paying kist for the patta No.105. The chitta and adangal also stands in the name of the plaintiff. The plaintiff and his predecessor-in-title were in possession and enjoyment of the same openly, continuously, without any interruption for more than a statutory period. So, the plaintiff prescribed title by adverse possession.
(ii) The defendants are having no right over the property. The defendants are having property adjacent to the suit property. So, they attempted to interfere with the plaintiff’s possession, which was prevented. Since, at any time they may interfere with the possession, the plaintiff has come forward with the Suit for declaration of title and injunction and he prayed for a decree.
3. The gist andessence of written statement filed by the second defendant and adopted by the first defendant is as follows:
(i) The averment in paragraph 2 of the Plaint is not correct. The suit property is not owned by Muttiah Gounder. There is no partition between the first defendant and plaintiff’s predecessor-in-title Manu Gounder. So, the sale deed in favour of the plaintiff is not true and genuine. The plaintiff has not prescribed title by adverse possession. The partition deed is not binding the defendants. It was not acted upon. The suit property was wrongly included in the partition deed. So, Manu Gounder has no right over the property. So, his son Velayutha Gounder had not succeeded the property. The total extent of the suit survey number is 1 acre 64 cents. Western 1.33 cents originally belonged to second defendant’s father Marimuthu Gounder. He purchased the same under a registered sale deed dated 17.03.1944. He was in possession and enjoyment by way of transferring the patta in his name and paying kist till his life time. He died leaving behind his wife Dhanabagiyammal and daughter Nallammai, the second respondent/second defendant. For the non-impleading of Dhanabagiyammal, the Suit is bad for non-joinder of necessary party. Dhanabagiyammal and Nallammai, the second respondent were in possession and enjoyment for the past 53 years, without any interruption, so they prescribed title by adverse possession. Easter 0.31 cents, out of 1.64 cents is belonging to one Arunachalam @ Periyapaiyan, from whom, one Chinnapaiyan has purchased the same on 04.03.1947. He was in possession and enjoyment of the same. He died intestate leaving behind his son Mayavan and Murugesan. So, for the non-impleading of Mayavan and Murugesan, the Suit is bad for non-joinder of necessary parties. So, the appellant/plaintiff is not entitled to any relief. Hence, he prayed for the dismissal of the Suit.
4. The Trial Court after considering the averments both in the Plaint and written statement had framed ten issues and considering the oral evidence of PWs. 1 and 2, DWs. 1 and 2 and Exs.A1 to A5, Exs.B1 to B7 and Exs.X1 to X7, decreed the Suit as prayed for in the Plaint. Against that,
