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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. VIJAYAKUMAR, J.
Karuthammal - Appellant
Versus
Sivanammal - Respondent
S.A.(MD). No. 153 of 2005
Decided On : 05-01-2022
Civil Procedure Code, 1908 - Section 100 – Adverse possession - According to First Appellate Court, plaintiff is in possession for more than statutory period and she has prescribed title by adverse possession - - First Appellate Court also found that defendant has not proved genealogy or possession of property - Based upon said findings, First Appellate Court reversed judgment and decree of trial Court and decreed suit filed by plaintiff as prayed for - Whether in law are not decree and judgment of lower appellate Court vitiated in discussing defendant's title and deciding plaintiff' title - Whether in law is not lower appellate Court in holding that plaintiff has title prescribed title by adverse possession in absence of necessary pleadings like animus etc - Was not lower appellate court failed to see that when plaintiff seeks title, he is estopeed from claiming adverse possession as in letter plaintiff admits title of other person - Whether in law has not lower appellants Court overlooked that in absence of any material showing partition among plaintiff's father and his brothers in a suit for declaration of undivided share maintainable – Held, plaintiff has not mentioned name of her father or grandfather in plaint - Plaintiff has simply relied upon Exhibits patta granted by revenue authorities for an extent of 2.32 acres - A perusal of Exhibits will clearly indicate that legal heirs were dealing not only their properties but also property belonging to other brother namely - Hence, a combined operative reading of all document will only strengthen case of defendant - Relationship of parties and document under which properties have been dealt with will clearly indicate that plaintiff's grandfather cannot have an extent of 2.32 acres. When all other brothers were allotted a lesser extent, plaintiff has also not explained how her father and grandfather alone were entitled to 2.32 acres when other brothers of her grandfather have dealt with only an extent of 1.61 acres - Plaintiff based upon Exhibits patta is attempting to make a claim in survey without any title - Appropriate remedy for plaintiff is to file a suit for partition to establish her share and get property divided by metes and bounds - Plaintiff is not entitled to a decree for declaration of title and consequential relief - First Appellate Court has not considered fact that other than revenue records, plaintiff has not filed any document to establish her title to suit schedule property - First Appellate Court has also not properly appreciated deposition who has gone to extent of denying everything including relationship of her grandfather and his brothers - All substantial questions of law are answered in favour of appellant - Second appeal allowed.
JUDGMENT :
Prayer : Second Appeal is filed under Section 100 of C.P.C, against the judgment and decree dated 30.07.2004 in A.S.No.176 of 2002 on the file of the Principal Sub Court, Madurai reversing the judgment and decree dated 19.10.2001 in O.S.No.140 of 1998 on the file of the District Munsif Court, Tirumangalam.
1. The defendant is the appellant herein.
2. The plaintiff filed O.S.No.140 of 1998 before the District Munsif Court, Tirumangalam for declaration of title and permanent injunction. The trial Court partly decreed the suit. As against the same, the plaintiff filed an appeal. The First Appellate Court reversed the judgment and decree of the trial Court and decreed the suit in entirety. As against the same, the present second appeal has been filed by the defendant.
3. The plaintiff had contended that the suit schedule property having an extent of 2.32 acres in Suvey No.25/1A2 belongs to the family of the plaintiff absolutely. According to the plaintiff, it was originally enjoyed by her father and thereafter, she is in possession and enjoyment of the same. The plaintiff further contended that she was granted patta in the year 1977 and again in the year 1988 during UDR proceedings. The plaintiff further contended that she is in possession and enjoyment of the entire suit schedule property for more than the statutory period and thus, she has acquired title by adverse possession. The plaintiff further contended that the defendant has no manner of title or possession over the suit schedule property and she is unnecessarily disturbing her possession.
4. The defendant filed a written statement contending that the suit schedule property along with other properties in Survey No.25/1 having an total extent of 6.44 acres was originally owned by four brothers namely Ulaga Thevar, Naga Thevar, Samiyar Maya Thevar and Maya Thevar. According to the defendant, there was an oral partition among the four brothers, in which, each was allotted to 1.61 acres. The defendant further contended that the southern most portion was allotted to Ulaga Thevar, next northern portion was allotted to Naga Thevar, next northern portion was allotted to Samiyar Maya Thevar and the northern most portion was allotted to the share of Maya Thevar. The defendant further contended that on the east of survey No.25/1, there was road which was extended and all the brothers lost an extent of around 11 cents each and thus, all the brothers are entitled to each 1.50 acres only.
5. The defendant further contended that the elder brother Ulaga Thevar had sold 74 cents out of 1.61 acres on 11.10.1976 in faovur of one Mokkachamy Devar in Survey No.25/1A1. The defendant further contended that the said Samiyar Maya Thevar had executed a registered mortgage deed on 19.06.1942 in favour of one Mayandi Devar and later redeemed it on 06.06.1993. In the said mortgage deed, an extent of 1.55 acres was dealt with in Survey No.25/1. The defendant further contended that after the death of Samiyar Maya Thevar, his wife Veerammal has executed a sale deed on 12.12.1953 in favour of one Mokkachamy Thevar for an extent of 1.11 acres in Survey No.25/1. He further contended that after the death of said Mokkachamy Thevar, his legal heirs namely Rajendran and Jeyaraj have executed a registered sale deed in favour of defendant's husband namely Ponnusamy for an extent of 1.46 acres in Survey No.25/1A2. After the death of Ponnusamy, his four sons were each entitled to 35 cents. The defendant further contended that one of the sons by name Karuppiah had executed a registered sale deed on 28.05.1997 in favour of one Andisamy in Survey No.25/1A3 for an extent of 10 cents. According to the defendant, the plaintiff is not entitled to a total extent in Survey 25/1A2 to the family of Naga Thevar, but also to the family of Samiyar Maya Thevar. According to the plaintiff, the recital in the sale deed executed by the family of Samiyar Maya Thevar will clearly indicate that untitled have been dealt in all the
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