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2010 Supreme(Mad) 334
High Court of Judicature at Madras
THE HONOURABLE MS. JUSTICE R. MALA
Visvanathan
Versus
Parvathi
S.A.No.625 of 2003 & C.M.P.No.5858 of 2003
Decided On :27-01-2010
For the Appellant:P.B. Ramanujam, Advocate.
For the Respondent:Y. Jyothish Chander, Y. Thyagarajan, Advocates.
The appellant-defendant has not prescribed title by adverse possession as he has not filed any document to show as to who is the owner of the property and he has been enjoying the property adverse to the true owner.
Headnote:
Adverse Possession - Property Dispute - S.878 of 208 - Ex.A-8, Ex.A-1, Ex.A-2, Ex.A-3, Ex.B-1, Ex.B-3, Ex.B-11, Exs.B-4 to B-6, Exs.B-7 to B-10, Exs.B-12 to B-16 - The respondent-plaintiff filed the suit for declaration of title and injunction, stating that she succeeded to the property from her mother in respect of 2-1/2 cents and the remaining property also has been inherited by her as the sole heir of the deceased Muniammal. She is in possession and enjoyment of the same. The appellant-defendant resisted the suit stating that the property is owned by their forefather and as a legal heir, he inherited the entire property. The defendant and his predecessors-in-title were in possession and enjoyment of the same for the past 80 years and so, they have prescribed title by adverse possession. The trial Court, after framing necessary issues and considering the oral and documentary evidence, granted decree in respect of 2-1/2 cents and dismissed the suit in respect of the remaining portion of the suit property. Against that, the defendant preferred appeal and the plaintiff also preferred cross appeal. The first appellate Court dismissed the appeal preferred by the defendant and the cross appeal preferred by the plaintiff, was also dismissed observing that the suit ought to have been decreed in entirety. Against that, the present Second Appeal has been preferred by the defendant. The substantial question of law raised is whether the lower appellate Court was right in decreeing the suit on the ground that the appellant is a co-owner and he cannot raise a plea of adverse possession. The respondent-plaintiff has proved that her grandmother has purchased the property even in 1926 under registered sale deed Ex.A-3, dated 11.10.1926. Even though the appellant-defendant is claiming adverse possession, he has not filed any document to show as to who is the owner of the property and he has been enjoying the property adverse to the true owner and hence, the trial Court has considered this aspect and came to the correct conclusion that the appellant-defendant has not prescribed title by adverse possession. The appellant-defendant is not entitled to any relief. The Second Appeal is liable to be dismissed. The judgment and decree of both the Courts below are liable to be confirmed.
Fact of the Case:
The respondent-plaintiff filed the suit for declaration of title and injunction, stating that she succeeded to the property from her mother in respect of 2-1/2 cents and the remaining property also has been inherited by her as the sole heir of the deceased Muniammal. She is in possession and enjoyment of the same. The appellant-defendant resisted the suit stating that the property is owned by their forefather and as a legal heir, he inherited the entire property. The defendant and his predecessors-in-title were in possession and enjoyment of the same for the past 80 years and so, they have prescribed title by adverse possession.
Finding of the Court:
The respondent-plaintiff has proved that her grandmother has purchased the property even in 1926 under registered sale deed Ex.A-3, dated 11.10.1926. Even though the appellant-defendant is claiming adverse possession, he has not filed any document to show as to who is the owner of the property and he has been enjoying the property adverse to the true owner and hence, the trial Court has considered this aspect and came to the correct conclusion that the appellant-defendant has not prescribed title by adverse possession. The appellant-defendant is not entitled to any relief. The Second Appeal is liable to be dismissed. The judgment and decree of both the Courts below are liable to be confirmed.
Issues: The substantial question of law raised is whether the lower appellate Court was right in decreeing the suit on the ground that the appellant is a co-owner and he cannot raise a plea of adverse possession.
Ratio Decidendi: The appellant-defendant has not filed any document to show as to who is the owner of the property and he has been enjoying the property adverse to the true owner and hence, the trial Court has considered this aspect and came to the correct conclusion that the appellant-defendant has not prescribed title by adverse possession.
Final Decision: The Second Appeal is dismissed. The judgment and decree of both the Courts below are confirmed.
The Second Appeal is filed by the defendant against the judgment and decree dated 2.7.2002 in A.S.No.76 of 1997 on the file of the Additional District Court, Fast Track Court, Kancheepuram, confirming the judgment and decree dated 30.4.1997 in O.S.No.1104 of 1989 on the file of the Additional District Munsif Court, Kancheepuram.
2. The averments in the plaint are as follows:
The suit property originally belonged to one Nallandi Thanappa Gounder. It was succeeded by his son Nallandi Sappai @ Perumal Gounder and he became the absolute owner. Sappai @ Perumal Gounder executed a sale deed-cum-settlement dated 6.3.1918 in favour of his wife Mangaiammal and her two children Muniammal and Ponnusamy, in respect of 2-1/2 cents. They were in possession as absolute owners. Sappai @ Perumal Gounder died intestate leaving behind his wife Mangaiammal, son Ponnusamy and daughter Muniammal. They succeeded the remaining four cents and so, they are the absolute owners of the entire suit property. Mangaiammal also died intestate. Ponnusamy also died intestate without any marriage and so, Muniammal, the only heir, succeeded to the property. As the owner, she has been in exclusive possession and enjoyment for more than 50 years. So, she prescribed title by adverse possession. She put up two thatched huts and she has been now and then leasing to third parties, such as Vengaiammal and others. Her son G.Velu married the defendants sister at Uthiramerur and he was residing therein and managing the property. The plaintiff is the daughter of the said Muniammal and the said Muniammal, as the absolute owner of the suit property, while she was in a sound and disposing state of mind, voluntarily executed a Will, dated 26.10.1988, bequeathing the property in favour of her daughter, the plaintiff. It was duly executed and validly attested. Muniammal died on 21.5.1989. Then, the plaintiff became the absolute owner of the property. The plaintiff took Surveyor for sub-division and was preparing a plan for a pucca construction. The defendant objected to the sub-division, stating that he had two more feet of vacant site further east of his building, which is unjustified and without any basis. So, the plaintiff issued a notice on 14.6.1989, but the defendant was evading to receive the same. Once again, she issued notice on 21.7.1989, which was also returned and hence, the plaintiff has come forward with the suit for declaration of title to the suit property and for permanent injunction against the defendant, his men or agents from in any way interfering with the possession of the plaintiff. The plaintiff prayed for a decree.
3. The gist and essence of the written statement filed by the defendant are as follows:
Neither the plaintiff nor her predecessors-in-title were in possession and enjoyment of the suit property. All of them are rank outsiders and neither Velu nor Muniammal or the plaintiff were ever in possession of the property, nor they enjoyed the same as alleged. They were never seen at Uthiramerur and they were living at Madras. Velu never lived in the suit property. Muniammal also never put up any thatched sheds and leased the same to third parties. The defendants mother Janakiammal and his senior step mother Vengaiammal alone were living in the thatched shed. The Register also stands in their name. The property is in possession and enjoyment of the defendant and his predecessors-in-title. They were in possession for more than well over 80 years without interruption of anybody and they have prescribed title by adverse possession. Nallandi Sappai Gounder is not the only son of Nallandi Thanappa Gounder. Sappai Gounder had two brothers, Nallandi and Muruga Gounder. Sappai Gounder sold only 13 x 27 to Mangaiammal in 1918, who in turn sold the same to Chinnakolandai as early as in 1923. So, Mangaiammal has no right over the property after 1923. The property mentioned in the partition deed as well as the description of the property are different.
