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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
Nallapa Gounder & Others - Appellant
Versus
Pazhanimuthu & Others - Respondent
A.S. Nos. 186 & 188 of 2019 & C.M.P. No. 7200 of 2019 & 3244 of 2020
Decided On : 10-02-2021
Adverse Possession - Property Dispute - Code of Civil Procedure - O.S.No.142 of 2015, O.S.No.63 of 2016 - Section 96 of CPC, Order XLI Rules 1 & 2 of CPC, 1908 - 19.02.2003, 25.08.2008, 05.11.2007 - The court declared the title in favor of the plaintiffs, passed a preliminary decree in the partition suit, declared three documents as null and void, and granted recovery of possession to the plaintiffs in O.S.No.63 of 2016. The defendants were restrained by a decree of permanent injunction from creating encumbrance in any manner or from alienating the suit property.
Fact of the Case:
The dispute involved ancestral property claimed by the sons and daughters of Palaniappan against the permissive occupants who had executed and registered documents to defraud the plaintiffs. The permissive occupants claimed continuous possession for over 38 years and sought adverse possession.
Finding of the Court:
The court found that the possession of the permissive occupants was not adverse to the true owner and that the revenue records and possession did not confer title. The court held that the permissive occupants did not demonstrate open hostility to the true owner and had not perfected title by adverse possession.
Issues: The main issues were whether the permissive occupants had perfected title by adverse possession and whether the deeds marked as Ex.B-12 to Ex.B-14 were valid in the eye of the law.
Ratio Decidendi: The court emphasized that mere possession of land would not ripen into a possessory title and that the possessor must have animus possidendi and hold the land adverse to the title of the true owner. The court also highlighted that the requirement to prove hostility to the true owner should be open, uninterrupted, and continuous from the inception.
Final Decision: The appeal suits were dismissed, and the connected miscellaneous petitions were closed. No costs were awarded.
JUDGMENT :
Prayer in A.S.No.186 of 2019: First Appeal is filed under Section 96 of the Code of Civil Procedure read with Order XLI Rules 1 & 2 of C.P.C., 1908, against the judgment and decree dated 20.08.2018 made in O.S.No.142 of 2015 on the file of the III Additional District Judge, Salem.
A.S.No.188 of 2019: First Appeal is filed under Section 96 of the Code of Civil Procedure read with Order XLI Rules 1 & 2 of C.P.C., 1908, against the judgment and decree dated 20.08.2018 made in O.S.No.63 of 2016 on the file of the III Additional District Judge, Salem.
1. The subject matter of these two Appeals is the land under 4 different survey numbers to a total extent of 1 acre 25 cents at Omalur Taluk, Amani Periyeripatti Village. This property originally belongs to one Ontha Gounder and his wife Sevakkal. They both died intestate leaving behind their only son Palaniappan. The said Palaniappan had two sons and two daughters by name Palanimuthu, Periyapaiyan, Nallammal and Chinnathangam.
2. As per the plaint in O.S.No.63 of 2016, (originally filed before District Munsif Court, Omalur as O.S.No.6 of 2010, renumbered after transfer to the III Additional District Court, Salem) the said property is an ancestral property. Ontha Gounder, his wife Sevakkal and his son Palaniappan were enjoying the property till their lifetime. Thereafter, it devolved upon the two sons of Palaniappan namely Palanimuthu (first plaintiff) and Periyapaiyan. They both were in possession and enjoyment of the property. After the demise of Periyapaiyan, his three sons namely Selvam, Anbarasu and Vekatachalam (plaintiffs 2 to 4) inherited his share and enjoying the property jointly along with Palanimuthu. Thus, the plaintiffs are in absolute possession and enjoyment of the suit property and none else have right over it.
3. In respect of the suit property, on 14.06.1978, Palanimuthu, the first plaintiff and Periyapaiyan father of plaintiffs 2 to 4, entered into a sale agreement with one Onthappa Goundar for consideration of Rs.5,500/- and received advance of Rs.2,000/-. The sale agreement was also registered. Onthappa Goundar was not able to pay the balance sale consideration and not ready and willing to perform the contract. He wanted the refund of advance money or to permit him to cultivate the land for 3 years period. Palanimuthu and Periyapaiyan permitted Onthappa Goundar to cultivate the land for a period of 3 years and same got renewed time to time since the first plaintiff and his brother Periyapaiyan were living away from Salem and not able to bestow their attention on the land. After the death of Periyapaiyan, his sons, who are the plaintiffs 2 to 4 became the joint owners of the property. On the demise of Onthappa Goundar, defendants 1 to 3, who are the sons and grandson of Onthappa Goundar were permitted to enjoy the suit properties on permissive basis. When the plaintiffs decided to dispose the property, they contacted the defendants 1 to 3 to vacate and handover the possession, they denied the plaintiff’s title and refuse to vacate. The notice dated 12.09.2008 to vacate the suit land returned unserved since the defendants 1 to 3 refused to receive it. Later, the plaintiffs came to know that, based on patta obtained by fraud, three documents were executed and registered in respect of the suit properties to defraud the plaintiffs. They are:-
(ii). 05/11/2007: First defendant had executed a registered settlement deed in favour of his son the 4th defendant in respect of land extending 0.27 ¼ cents.
(iii). 25/08/2008: A partition deed between defendants 1 to 3 registered in respect of some of the suit properties.
4. It was averred in the plaint that behind the b
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