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2015 Supreme(Mad) 2154
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. MALA, J.
K.R. Kirubakaran - Petitioner
Versus
G. Lakshmi & Another – Respondents
S.A.No. 271 of 2008 & M.P.No. 1 of 2008
Decided On : 01-07-2015
For the Appellants:S. Subbiah, Advocate.
For the Respondent:Perumbulavil Radhakrishnan for P. Paul Selvam, Advocates.
Headnote:
Transfer of Property Act – Section 54 – Registration Act – Section 17 – Limitation Act – Article 64 – Tamil Nadu Slum Areas (Clearing and Improvement Act) 1971 – Section 65 – Tenement – Second appeal arises out of the judgment and decree made in A.S. on the file of the II Additional City Civil Court, Chennai, confirming the judgment and decree made in O.S. on the file of the learned XVIII Assistant City Civil Court, Chennai. – Held, A person claiming adverse possession has to prove three aspects for nec-nec vi, nec clam and nec precario. – Accordingly, (1) the possession must be adequate in continuity for the said period, (2) the possession must be open and public and extend at least to show as to when the possession became adverse to the party affected and (3) the possession must be for the statutory period. Mere possession for 12 years or more would not confer title by adverse possession, unless the person claiming adverse possession could prove his animus possidendi and hostile possession and enjoyment of the property against the person or persons, who owned the property, for the statutory period. – It is not the case that adversed to the interest of his sister, the first defendant is enjoying the property. – Court is of the opinion, all the documents show that the property only stood in the name of the sister/plaintiff/first respondent herein. So the appellant has not prescribed title by adverse possession. – Second Appeal Dismissed
1. The second appeal arises out of the judgment and decree dated 26.02.2007 made in A.S.No.594 of 2006 on the file of the II Additional City Civil Court, Chennai, confirming the judgment and decree dated 01.08.2006 made in O.S.No.4511 of 2004 on the file of the learned XVIII Assistant City Civil Court, Chennai.
2. The averments made in the plaint are as follows:-
(i) The Tamil Nadu Slum Clearance Board (hereinafter called as 'the second defendant') allotted a tenement to the plaintiff in Plot No.213, Door No.3, West Namachivayapuram, Nelson Manickam Road, Chennai-94 of extent 65 sq.mts, which is the suit property in and by the proceedings of the second defendant dated 23.03.1984 under the lease cum sale agreement scheme.
(ii) As per the said scheme, the plaintiff has to pay a sum of Rs.2,725/- towards sale consideration in monthly installments of Rs.30/- per month for 10 years. Accordingly, the plaintiff has paid entire amount to the second defendant.
(iii) The first defendant is the elder brother of the plaintiff. After the plaintiff took possession of the suit property, she allowed her brother to stay along with her. Thus the first defendant was under permissive occupation of a part of the suit property. In the year 2002, the plaintiff due to poor health, had to stay out along with her mother in law for nearly one year. Taking advantage of her absence, the first defendant took possession of the entire suit property and broke open the plaintiff's portion of the suit property and took away the receipts of the lease amount paid by the plaintiff to the second defendant and he also prevented the plaintiff from entering the suit property.
(iv) The plaintiff made a representation to the second defendant in April 2002 requesting him to execute the sale deed in respect of the suit property in her favour. She also made another representation to the second defendant on 24.07.2002 requesting him to remove the first defendant from the suit property.
(v) The second defendant sent a reply to the plaintiff on 25.07.2002 directing the plaintiff to approach the police for evicting the first defendant and she also lodged a complaint to the police on 20.08.2002. However, the first defendant has not vacated the suit property and he approached the second defendant claiming execution of a sale deed in respect of the suit property in favour of his wife namely, Lakshmi by using the similarity of the names of the plaintiff and his wife. The second defendant has been turned down on the ground that the allotment order stands only in the name of the plaintiff and hence, sale deed cannot be executed in favour of the wife of the first defendant. Since the first defendant is not willing to hand over the possession of the suit property to the plaintiff, the plaintiff forced to file the suit for delivery of vacant possession of the suit property. Thus, she prayed for decree.
3. The gist and essence of the written statement filed by the first defendant are as follows:
(i) Though the tenement was made in the name of the plaintiff, she has nothing to do with that and she had never contributed any money towards the allotment and she was not even having any receipt issued by the second defendant. The plaintiff was never in possession of the suit property at any point of time. The money was paid over by the first defendant and the plaintiff is living separately with her family at Nerkundram. All the records stand in the name of the first defendant.
(ii) The first defendant is in continuous possession of the suit property for a period of more than 20 years without any interruption and paying the taxes to the authorities. There is no cause of action to file the suit and the suit is barred by limitation. The suit is grossly under valued and the Court fees paid is not correct. The plaintiff has not come to the Court with clean hands. Further in the absence of declaration of title over the suit property, the suit for recovery of possession as filed by the plaintiff
