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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. PONGIAPPAN, J.
Nicolas & Others - Appellant
Versus
Xavier Robert & Another - Respondent
S.A. No. 494 of 2010 & M.P. No. 1 of 2010
Decided On : 14-12-2021
Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Adverse possession - Defendants have come with a simple case that they have not claimed title to suit property by way of any title deed and they have not traced their title to suit property by way of transfer of property between parties - In respect to validity of said documents, lower appellate Court has held that in documents exhibited on side of defendants, some of documents are having different door number and all documents exhibited on side of defendants cannot be taken into account for accepting possession of defendants in suit property - When defendants have clearly stated in written statement from when they were in exclusive possession of suit property with knowledge of real owner for over period prescribed for claiming title by adverse possession, are Courts below right in ignoring statement and corroborative evidence, especially when plaintiff miserably failed to prove possession of defendants as licensees - When defendants have proved requirement for establishing adverse possession, are Courts below right in negativing plea by non-consideration of documentary evidence produced by defendants – Held, defendants have not stated about date on which they entered into property - It is for defendants to state as to when and under what manner their possession becomes adverse to real owner - First appellate Court has correctly held that defendants have not pleaded particulars as when they took possession hostile to real owner - Defendants have taken a simple plea that they have been in possession of suit property openly for a long and continuous period - Said plea is not enough to entitle them to claim prescriptive title by adverse possession - Defendants though proved their possession of suit schedule property for more than statutory period, possession cannot be taken adverse to real owners and it could not be said that they acquired prescriptive title to suit property - Second Appeal dismissed.
JUDGMENT :
(Prayer: This Memorandum of Second Appeal is filed under Section 100 of Code of Civil Procedure, against the Judgment and decree dated 07.12.2009 made in A.S.No.263 of 2006 on the file of the learned Principal District Judge, Puducherry, confirming the judgment and decree dated 29.04.2004 made in O.S.No.356 of 1999 on the file of the learned I Additional Subordinate Judge, Puducherry.)
1. This second appeal is focused as against the judgment and decree dated 07.12.2009, passed in A.S.No.263 of 2006 by the learned Principal District Judge, Puducherry in confirming the judgment and decree dated 29.04.2004, passed in O.S.No.356 of 1999 by the learned I Additional Subordinate Judge, Puducherry.
2. The parties, for convenience sake, are referred to hereunder, according to their litigative status before the trial Court.
3. Bereft and niggard of details, the facts which are absolutely necessary and germane for the disposal of this second appeal would run thus.
(ii) The defendants who were the licencees under the plaintiff’s vendors’ father on oral lease, after death of the said deceased Joseph maleapa have not paid any rent to his legal heirs, and without their consent and knowledge, the defendants raised two huts in the suit property and the plaintiff orally informed the defendants about the purchase of the suit property and requested them to vacate the property after removing the super structures raised thereon. Since the plaintiff is the absolute owner of the property, the defendants refused to comply with the demands of the plaintiff and hence, the plaintiff issued a lawyer’s notice to the defendants on 23.04.1999 to vacate and hand over the suit property to him after removing the superstructure.
(iii) The notice sent to the defendants 1, 2 and 5 were returned as not claimed by them, while the defendants No.3 and 4 did not send any reply to him even after receipt of the notice, and as such, the defendants are liable to be ejected from the suit property in as much as the leave granted to them ended on revocation by the plaintiff as on 23.04.1999.
(iv) On 10.07.99 the defendants with an ulterior motive tried to raise permanent structure in the property, but the same was stopped by the sister of the plaintiff, and on 04.09.1999 they accumulated bricks, cement and sand in the suit property and without any right over the suit property, the defendants tried to make permanent structure thereon in order to get illegal gain over the same, and the plaintiff will be put into irreparable loss and hardships. Hence, the plaintiff prays for declaration of title, recovery of possession and permanent injunction.
4. The case of the defendants are as follows:
(ii) At any point of time, the defendants were not at all licencees under the plaintiff’s vendors’ father
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