Balaraman vs Vasudevan - 2022 Supreme(Mad) 66

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Mad) 66

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. PONGIAPPAN, J.
Balaraman - Appellant
Versus
Vasudevan & Others - Respondent
S.A. No. 156 of 2010 & M.P. No. 1 of 2010
Decided On : 04-01-2022

Advocates Appeared:
For the Appellant :T.S. Baskaran, Advocate.
For the Respondents: R. Sripriya, V. Raghavachari, Advcoates.

Headnote:
Civil Procedure Code, 1908 - Section 100 – Adverse possession - Trial Court after going through evidence adduced by both sides and after hearing arguments advanced on either side had decreed suit as prayed for with cost and counter claim of defendants was dismissed - Whether First Appellate Court is right in allowing claim of adverse possession of respondents merely because of possession of respondents in suit property when possession of respondents is not adverse to true owner but only a permissive occupier - Has not First Appellate Court erred in holding that, since respondent was not dispossessed in 1997, by continuous possession of suit property respondents had prescribed title by prescription which is opposed to settled principles of law that, “Unless person possessing land has a requisite animus, period of prescription does not commence and possession must be open and undisturbed one” - Has not First Appellate Court erred in allowing claim of adverse possession only on basis of Ehibits which are correspondence to respondents which does not satisfy requirements of animus possessendi - Has not First Appellate Court overlooked categorical admission of DW1 that, she did not know that plaintiff was owner, disentitling her to claim of adverse possession – Held, though possession of suit property by defendants is open and known to plaintiff, said possession is not hostile to constitute an adverse possession - Adverse possession in one sense is based on theory or presumption that owner has abandoned property to adverse possessor or on acquiescence of owner to hostile acts and claims of person in possession - It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile - Enquiry into starting point of adverse possession i.e. dates as to when paperowner got dispossessed is an important aspect to be considered - Starting point of adverse possession and other facts such as manner in which possession operationalised, nature of possession whether open, continuous, uninterrupted or hostile possession, have not been disclosed - It is found that when there is no material placed on record by respondent that her possession is hostile in nature, essential ingredient, namely, adverse intention being completely absent in respect of claim of respondent and when it is found that respondent has not pleaded in specific nor established as to from which particular date, her possession had become adverse to plaintiff in respect of disputed property, determination of Courts below upholding claim of respondents in respect of disputed land by way of adverse possession, as such, cannot be accepted - Second Appeal allowed.

JUDGMENT :

Prayer: The Second Appeal is filed under Section 100 of C.P.C. against the Judgment and Decree dated 07.08.2009 passed in A.S.No.22 of 2007 on the file of the Principal District Court, Puducherry, reversing the Judgment and Decree dated 09.02.2007 passed in O.S.No.18 of 1999 on the file of the Principal Sub Court, Puducherry.

1. This second appeal is focused as against the judgment and decree dated 07.08.2009 passed in A.S.No.22 of 2007 by the learned Principal District Judge, Puducherry, reversing the judgment and decree dated 09.02.2007 passed in O.S.No.18 of 1999 by the learned Principal Subordinate Judge, Puducherry.

2. For the sake of convenience, hereinafter the parties are called as per their respective litigative status before the trial Court.

3. The laconic averments made in the plaint are as follows:

3.1. The plaintiff is the absolute owner of the suit schedule property by virtue of French Notorial Exchange deed dated 16.06.1958 and subsequent registered partition deed dated 15.03.1972. The suit mentioned ‘B’ schedule property is a part of a larger extent of ‘A’ schedule property measuring to an extent of 17 Kuzhies and 1 Veesam being owned by the plaintiff. The first defendant is the father of the defendants 2 to 5, and they are the origins of Rengareddipalayam Village of Cuddalore Taluk. The first defendant was doing the work of milking in the village of Abishegapakkam including in the house of the plaintiff, apart from that he was rearing buffaloes and goats. The first defendant along with his family settled in Singirikoil, Cuddalore Taluk, which is situated near the village of Abishegapakkam. In the month of December, 1988, on the request of the first defendant, the plaintiff permitted him to use his cattle shed situated in the ‘B’ schedule property for a period of three months and thereafter, the first defendant made it use for residential purpose too without the knowledge and consent of the plaintiff and also constructed one hut near the cattle shed in ‘B’ schedule property and he is only a permissive occupier of the said property. The other defendants are also enjoying the said property along with the first defendant as his sons. The first defendant filed a suit in O.S.No.840 of 1997 before the Principal District Munsif, Pondicherry against the plaintiff’s son for an injunction, not to evict him except under due process of law, as if the plaintiff's son had attempted to interfere with his possession and enjoyment over the suit property. The suit was decreed in his favour on 25.08.1998. In the said situation, the plaintiff has revoked the oral permission granted in favour of the first defendant by a notice dated 20.11.1988, which was acknowledged by the first defendant, who gave an evasive reply dated 27.11.1998 stating that they are in continuous and enjoyment of the suit property for the last 26 years and they have claimed adverse possession over the said property, which was denied by the plaintiff. Hence, the suit.

4. The averments found in the written statement are as follows:

4.1. The defendants contended that they are living in the suit property for the last 27 years i.e. from the year, 1972 to till date, without any interruption from anybody. They are residing in the suit property since 1972 with the knowledge and without permission from the plaintiff, by constructing a hut. The voter card, family ration card, and house tax for the Municipality stand in the name of the first defendant. As the plaintiff has admitted in the plaint the above fact, the first defendant is entitled for the property as adverse possession, since they administered the suit property as owner for the last 27 years without any interruption and continuous enjoyment and without permission from the owner of the property, for which the defendants made a counter claim as per Order VIII Rule 6(A) of C.P.C. The defendants, therefore, prayed for the dismissal of the suit with costs.

5. In support of the plaintiff's case P.W.1 and P.W.2

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2022 Supreme(Mad) 66

IN THE HIGH COURT OF JUDICATURE AT MADRASR. PONGIAPPAN, J.Balaraman - AppellantVersusVasudevan & Others - RespondentS.A. No. 156 of 2010 & M.P. No. 1 of 2010Decided On : 04-01-2022

Cases Referred (2)

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. PONGIAPPAN, J.
Balaraman - Appellant
Versus
Vasudevan & Others - Respondent
S.A. No. 156 of 2010 & M.P. No. 1 of 2010
Decided On : 04-01-2022