2021 Supreme(Mad) 178

IN THE HIGH COURT OF JUDICATURE AT MADRAS
RMT. TEEKAA RAMAN, J.
Tholan @ Chinnathambi - Appellant
Versus
Gopal - Respondent
S.A. No. 1436 of 2008 & M.P. No. 1 of 2008
Decided On : 16-03-2021

Point of Law: Suit for Declaration of his right and title – Dismissal of plea of adverse possession - Defendant / appellant has not proved his possession beyond statutory period hostile to the title of the plaintiff and accordingly, has rightly appreciated the fact that his possession was not with the knowledge of true owner and accordingly, held that the defendant / appellant is not entitled to the relief of adverse possession and the said finding based upon the consideration of P.W.2 and D.W.1

Headnote:

Civil Procedure Code, 1908 – Section 100 – Declaration of his right and title in the suit property – Permanent Injunction – Defeated defendant is the appellant herein. – The respondent / plaintiff filed O.S. on the file of District Munsif-cum-Judicial Magistrate, for a declaration of his right and title in the suit property and for permanent injunction and also for mandatory injunction in respect of 10 cents of agricultural land. – Defendant / appellant filed written statement denying the right of the plaintiff inter-alia contending that the ridges between the properties are not straight as stated in the plaint but there was a curve towards the plaintiff's area and the land of the defendant is on a higher level and he is in possession of the portion measuring 4 cents wherein, he has planted 13 coconut trees for more than 17 years and he has perfected the title to the above said encroached portion by adverse possession and also disputed the other reliefs. – After trial, the suit was decreed and appeal was dismissed. – Hence, the second appeal. – Is the appellate Court right in law in rejecting the contention of the defendant that he is also entitled for adverse possession in respect of the disputed portion marked ABCD in the plaint when he is entitled to plead inconsistently as a defendant, which is permitted in law, but the appellate Judge erroneously rejected the same stating an erroneous view of law that the defendant cannot blow hot and cold at one and the same time – Whether the appellate Judge is right in rejecting the case of the defendant that he has been openly enjoying the disputed land marked ABCD for the past several years adverse to the plaintiff with his full knowledge and the same is also corroborated by the evidence of P.Ws.2 and 3, when he fulfilled the principles of law mentioned in Deva Vs. Sajjan Kumar, reported in AIR 2003 SCC 3907?”

Findings of Court:

Evidence of P.W.2 goes to show that he was a Panchayat Board President for the year 1996-2000 and when the dispute with regard to an extent of the land being in enjoyment of the respective parties arose, the Surveyor came and measured the respective lands of the plaintiff and respondent. – However there was no consensus arrived between the parties in putting the survey stone and this dispute resulting in police complaint and the civil suit. – No doubt, it is true that on three places in the segregating ridges between the properties there were lopsided, instead of being on a straight line. – The location of the respective lands of the parties are not in dispute. – Before the trial Court, Exs.C1 to C3 also identified the area between C,E,F and G, the defendant has encroached the property of the plaintiff and in I, G, H and A, C, D, a plaintiff has encroached upon the defendant property as rightly observed by the lower appellate Court. –It remains to be stated that the lower appellate Court, based upon the Advocate Commissioner's Report and the sketch filed by the revenue official, Ex.C3 has rightly come to the conclusion that while the plaintiff has encroached upon the defendant land as stated above and the defendant has encroached upon the plaintiff land as stated above, the same has to be returned to the respective parties. –Accordingly, passed the order of mandatory injunction directing the respective parties to handover the respective encroached places and such an order passed by the lower appellate Court appears to be in equity. – Based upon the evidence of D.W.1 coupled with Exs.C2 and C3 and the respective pleadings of the defendant, both the Courts below has rightly come to the conclusion that the defendant / appellant is only an encroacher. – He has to return the lands he has encroached and the quantum of the land is 4 cents as pointed out in E, F and A, C, D and G, H, I. – Accordingly, granted relief of declaration of title in respect of the total extent of the land for the plaintiff and also granted permanent injunction against the defendant / appellant not to interfere with the suit property and also granted mandatory injunction for recovery of possession to an extent of land of 4 cents encroached by the defendant so also the lands encroached by the plaintiff on the defendant side. – Court find that the order passed by both the Courts below do not suffer from any irregularity or illegality warranting interference under Section 100 of CPC. – Defendant / appellant has not proved his possession beyond statutory period hostile to the title of the plaintiff and accordingly, has rightly appreciated the fact that his possession was not with the knowledge of true owner and accordingly, held that the defendant / appellant is not entitled to the relief of adverse possession and the said finding based upon the consideration of P.W.2 and D.W.1 and hence all the substantial questions of law are answered in negation, i.e., against the defendant / appellant and in favour of the respondent / plaintiff. – Concurrent finding rendered by both the Courts below do not suffer from any irregularity in appreciation of the evidence or illegality in application of the law of limitation in respect of plea of adverse possession and hence the second appeal is devoid of merits.

Result: Second Appeal Dismissed