2022 Supreme(Mad) 1522

IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. CHANDRASEKHARAN, J.
Saradha Ammal & Another - Appellant
Versus
J. Sridhar - Respondent
S.A.No. 302 of 2019 & CMP Nos. 4541 of 2019 7 17832 of 2021
Decided On : 08-04-2022

The appellants' possession of the suit property is the settled possession and it has to be protected until they are evicted by due process of law. The respondent had lost the right to claim declaration of title and recovery of possession. Even assuming, without admitting, that appellants' predecessors were permitted to be in possession of 'B' schedule property by respondent's predecessors, this permissive possession subsequently turned adverse to the interest of the owner when the appellants openly claimed right, title in the 'B' schedule property by constructing house, paying house tax in their name, obtaining electricity service connection and being in possession for more than 50 years.

Headnote:

Adverse Possession - Property Dispute - Ex.A6, Ex.A1, Ex.A7, Ex.A8, Ex.A9 - The appellants claimed adverse possession in the suit filed in O.S.No.285 of 2004. The trial Court found that the possession of the appellants is the settled possession and it has to be protected until they are evicted by due process of law. There is also a finding that the permissive possession alleged by the respondent was not proved. In this case also the respondent's case is that the appellants are in permissive possession. Now the case of the appellants is that they are in lawful possession, by being in possession for more than 50 years. Certainly the appellants are not claiming proprietary right, but only possessory right. That means that there is one proprietor for the property. Appellants claim possessory right against the interest of the owner. The first appellate Court found that the second appellant's grandfather and second appellant's father have worked under respondent's grandfather and therefore, there is possibility to infer that second appellant's grandfather and father were permitted to occupy and reside in the suit 'B' schedule property. Appellants have not indicated any one as the owner of the property. Respondent produced documents in support of the claim of title in the form of pattas (Ex.A1 and A6), partition deed (Ex.A7), Adangal (Ex.A8) and kist receipts (Ex.A9). Appellants had only produced voters list, family card, electricity receipts, house receipts in the form of Exs.B3 to B7. Respondent has produced better document in the form of Exs.A1 and A6 to stake claim to the title to the suit property. It is pertinent to refer to the evidence of respondent, who was examined as PW.1 in this case. He admitted that appellants stopped coming to work from 1997, after the death of his father in 1996. He admitted that appellants are in possession of 'B' schedule property from the time he can remember and beyond. He specifically admitted that appellants built house in the suit 'B' schedule property and are residing there. He also admitted that house tax and electricity charges are being paid by the appellants. It is his evidence that he did not know who granted permission to the appellants, as to whether it was his father or grandfather and he has no written document to show the permission granted. He very clearly admitted that appellants and before them, Ethirajan and Chinnappan were in possession and enjoyment of 'B' schedule property for over 60 years. There is a damaging admission that the appellants are in occupation of 'B' schedule property as owners. Thus, it is seen from his evidence that appellants are in possession and enjoyment of the suit 'B' schedule property, before them, Ethirajan and Chinnappan for over 60 years. Respondent's right to this property is claimed only from 2003 when he was allotted this property through Ex.A7- partition deed. Neither respondent's father nor his grandfather initiated any action against the appellants for evicting them from the suit property. PW.2 also stated that the hut belongs to the appellants and they are residing there from his childhood days. It again confirms the case of the appellants that they are in possession and enjoyment of the suit 'B' schedule property for more than 50 years. Appellants produced Ex.B3-Voters identity card, Ex.B4-Family card identity Chit, Exs.B5 and B6-Electricity payment receipts, Ex.B7-House Tax receipts to show their continued possession. These documents clearly establish the fact that there are documentary evidences to show, apart from the oral admissions of PW.1 and PW.2, that appellants are in possession and enjoyment of 'B' schedule property from 1979 and prior to that. DW.1's evidence is that his grandfather Chinnappa Naicker was the one who helped Thirumalai Naidu in purchasing the rice mill and even at the time of this purchase, Chinnappa Naicker was enjoying the 15 cents of land. His grandfather put up a hut, his father obtained electricity connection and the property is in their enjoyment for more than 50 years. He also admits during the course of his cross examination that his grandfather and then his father were working in the rice mill and he was also working in the rice mill. It is his evidence that 'B' schedule property was not purchased by either his father or grandfather. He claims that it is an ancestral property. It is also his admission that there is no patta for 'B' schedule property and they have not paid land tax. The house tax was paid by them. It is his evidence that there is no material to show that his grandfather helped Thirumalai Naidu in purchasing the suit property and that they were living there prior to the sale in favour of Tirumalai Naidu. However, the consistent evidence of DW.1 is that the suit 'B' schedule property is in their possession and enjoyment for several years in their own right and he specifically denied that his possession is permissive possession. Now, we have seen the oral and documentary evidence produced by both the parties. The documentary evidence produced by respondent show that Ex.A6-patta in respect of the suit property was issued in favour of respondent's father Jayaraman in 1987, followed by Ex.A1-patta of the year 2004 in favour of respondent. Appellants produced electricity receipt of the year 1979, 1982, family card identity chit of the year 1989, voter's list card of the year 1988 to show their possession of the property. It is clearly admitted by respondent in Ex.A3-complaint dated 21.07.2004 given to the Sub-Inspector of Police, Manimangalam police station that Ethirajan and his wife Saradha have constructed a house in their land and living there. They wanted them to vacate, but they refused to vacate the building. This complaint shows that even prior to 2004, appellants had constructed the building in 'B' schedule property and living there. The fact that the house tax receipts are in their name and the electricity connection is in their name show that the appellants have asserted their right in the suit 'B' schedule property and claimed title to the suit 'B' schedule property. This assertion is to the knowledge of the respondent and his predecessors. There are evidences to show that they are in open, continuous and uninterrupted possession of 'B' schedule property to the knowledge of the respondent and his predecessors. We have seen from the evidence of PW.1 that he openly admitted that he did not know who granted permission to the appellants and appellants are in occupation of 'B' schedule property as owners. When there is evidence to show that there are documents, atleast from 1979, to show that the appellants claim right and title to the suit 'B' schedule property, this suit for declaration of title and recovery of possession was filed only in 2007. Appellants had set up a subtle plea of adverse possession in this suit. It is now claimed in this suit that respondent's suit is barred by limitation. In the earlier suit filed by the appellants in O.S.No.285 of 2004, it is specifically pleaded that appellant's possession of the suit property is continuous, uninterrupted, peaceful, open, notorious and exclusive for past more than 50 years, which would bar the remedy of earlier owner and excludes his title but also confers the title upon the appellants, meaning thereby appellants claim to have acquired title by adverse possession. The trial Court in that case found that appellants' possession was their settled possession in view of their long possession for more than 50 years and it was also found that the permissive possession alleged by the respondent is not proved. Appellants claim in respect of suit 'B' schedule property in this case has to be considered in the light of pleadings and findings given in O.S.No.285 of 2004. Though the respondent has produced better documents to claim title to the suit property, in view of open, continuous, uninterrupted and hostile possession of the suit 'B' schedule property by the appellants, adverse to the interest of the respondent and to the knowledge of the respondent for more than 50 years, this Court is of the considered view that the respondent had lost the right to claim declaration of title and recovery of possession. Even assuming, without admitting, that appellants' predecessors were permitted to be in possession of 'B' schedule property by respondent's predecessors, this permissive possession subsequently turned adverse to the interest of the owner when the appellants openly claimed right, title in the 'B' schedule property by constructing house, paying house tax in their name, obtaining electricity service connection and being in possession for more than 50 years. In view of this finding, the judgment and decree of the first appellate Judge/Subordinate Judge, Kancheepuram, in A.S.No.14 of 2013, dated 31.08.2018 is set aside and the judgment and decree of the trial Judge/District Munsif-cum-Judicial Magistrate, Sriperumbudur in O.S.No.1062 of 2008, dated 21.12.2012 is restored. This Second Appeal is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.

Fact of the Case:

The respondent filed a suit for declaration of his title to 'B' schedule property and for recovery of possession from the appellants and for costs. The appellants claimed that they are in lawful possession and enjoyment of the land measuring 15 cents in S.No.34/5 Oragadam village from time immemorial. The trial Court found that the appellants are in continuous possession and enjoyment of 'B' schedule property for more than 50 years, well within the knowledge of the respondent and his predecessors in title and therefore, they cannot be considered as permissive occupiers and their possession is settled possession and therefore, the respondent is not entitled for the relief claimed in the plaint and dismissed the suit. The respondent filed appeal in A.S.No.14 of 2013. First appellate Court, on reconsideration and reappreciation of evidence, found that the appellants' possession can only be construed as possession of permissive occupiers, because the appellants have not pleaded and proved adverse possession. The trial Court, without any pleadings and evidence, wrongly concluded that appellants' possession is adverse possession and therefore, they cannot be evicted after the period of limitation. In this view of the matter, first appellate court, reversed the finding of the trial Court and found that the respondent is entitled for the relief claimed in the plaint and decreed the suit by allowing the appeal. Challenging the said judgment, appellants/defendants have filed this appeal.

Finding of the Court:

The Court found that the respondent had lost the right to claim declaration of title and recovery of possession. Even assuming, without admitting, that appellants' predecessors were permitted to be in possession of 'B' schedule property by respondent's predecessors, this permissive possession subsequently turned adverse to the interest of the owner when the appellants openly claimed right, title in the 'B' schedule property by constructing house, paying house tax in their name, obtaining electricity service connection and being in possession for more than 50 years.

Issues: The main issue was whether the respondent is entitled for the relief claimed in the plaint for declaration of title and recovery of possession of the suit 'B' schedule property.

Ratio Decidendi: The Court found that the respondent had lost the right to claim declaration of title and recovery of possession. Even assuming, without admitting, that appellants' predecessors were permitted to be in possession of 'B' schedule property by respondent's predecessors, this permissive possession subsequently turned adverse to the interest of the owner when the appellants openly claimed right, title in the 'B' schedule property by constructing house, paying house tax in their name, obtaining electricity service connection and being in possession for more than 50 years.

Final Decision: The judgment and decree of the first appellate Judge/Subordinate Judge, Kancheepuram, in A.S.No.14 of 2013, dated 31.08.2018 is set aside and the judgment and decree of the trial Judge/District Munsif-cum-Judicial Magistrate, Sriperumbudur in O.S.No.1062 of 2008, dated 21.12.2012 is restored. This Second Appeal is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.