Dharmarajan & Others Vs. Valliammal &
Others [2007] Insc 1246 (11 December 2007)
H.K. Sema & V.S. Sirpurkar V.S. Sirpurkar,
J.
1. A common judgment passed by Madras High Court
allowing two Second Appeals is in challenge before us. The Single Judge of the Madras
High Court set aside the appellate judgment, again a common one allowing
appeals against the common judgment passed by District Munsiff, Bhawani whereby
the District Munsiff had decreed the suit filed by one Muthuswami Gounder and
dismissed the other suit filed by Dharmarajan, the appellant herein. A short
history of the case would be essential.
2. K. Muthuswami Gounder filed a suit registered
as O.S. No.555 of 1991 for declaration and injunction alleging that he had
purchased suit property Survey No.324/D1 under a Sale Deed dated 10.10.1980
from one Doraiswamy who was in possession and enjoyment of the property. The
said Doraswamy was claimed to be a foster son of one Karupayee who had expired
in the year 1961 and who was claimed to be in possession and enjoyment of the
suit property wherein she had put up a thatched shed and was residing for more
than 30 years. It is claimed that after Karuapyee her foster son who was none
else but his sister's son obtained the possession and enjoyed the said suit property.
Before this sale deed dated 10.10.1980, he had executed a Mortgage Deed in
respect of the suit property in favour of the plaintiff Muthuswami Gounder
dated 15.6.1980. It was further claimed that Doraiswamy was permitted to occupy
the suit property as tenant on monthly rent of Rs.50/-. It was further asserted
that defendants 1 to 7, i.e., the present appellants had also wanted to
purchase the property from Doraiswamy but having failed, they were falsely
claiming certain rights in the suit property by creating some false documents
and that they had no right, title or possession. It was claimed that the
plaintiff and his predecessor, namely, Doraiswamy had acquired the title by
adverse possession for more than 60 years. It is on this basis that Muthuswamy Gounder
claimed a decree for declaration of his ownership as also for the injunction
against the present appellants.
3. As against this, the present appellants
claimed that this property in fact belonged to first defendant therein, (the
appellant no.1 herein) in so far as the Eastern half of the property was
concerned since it was purchased by the first defendant from one Venkataramana Iyer.
It was claimed that the suit property originally belonged to one K.V. Krishnasamy
and others and they were throughout in possession and enjoyment of the suit
property and were paying house tax also. The other appellants claimed the other
half of the property on the plea that they had purchased the same from the
other co-sharer Venugopal Iyer who had inherited the property from K.V. Krishnasamy
and others. It was claimed that Karuppayee was working as a maid servant under
one Venugopala Iyer and it was he who had permitted her to put up the thatched
shed in the suit property and after the death of Karuppayee, Doraiswamy started
working as a servant of Venugopala Iyer and as such he was in occupation of the
thatched salai (house) with the permission of Venugopala Iyer. It was claimed
that the property stood in the name of Venugopala Iyer in Kavundapady Panchayat.
In short it was contended that the present appellants were owners of the
property which they had purchased on 15.7.1980 and 27.8.1980 vide different
sale deeds. It was further claimed that after the purchase of the suit
property, the present appellants who were the defendants in Suit No.555 of 1981
were paying the taxes and Doraiswamy was staying in the property with their
permission. The original defendants, the appellants herein stoutly denied the
right of ownership on the part of Doraiswamy to transfer the property in favour
of the plaintiff. They also denied that Karuppayee and after her Doraiswamy
were in independent possession of the property. They also denied that Karuppayee
or, as the case may be Doraiswamy, had perfected their title by adverse
possession.
Thus, the Appellant No.1 Dharamrajan claimed
half of the property whereas the rest of the appellants claimed the other half
of the property being purchasers from the members of Iyer family.
4. The Appellant No.1 Dharamarajan also filed a
suit being OS No.280 of 1982 in respect of the Eastern one half portion of the
suit property of which he claimed the ownership through the sale deed in the
earlier suit.
This suit was filed against Valliammal and Palaniammal,
who were the legal heirs of Doraiswamy. It must be stated here that Doraiswamy
had by then expired. This was also a suit for declaration of title of Dharamrajan.
In this suit it was claimed that the property
originally belonged to the father of Krishnasamy Iyer, Kandsamy Iyer and the
father of one Vengugopala Iyer. In the family arrangement the suit property was
allotted to the father of Kandasamy Iyer and Venkatasubramania Iyer, the son of
Krishnasamy Iyer and the first appellant Dharamarajan had purchased the suit
property from Venkataramana Iyer on 15.7.1990 who was none else but the son of Krishnaswami
Iyer, both of whom were the heirs of Kandasamy Iyer. An injunction was also
claimed against the defendants. Valliammal and Palaniammal firstly claimed that
one suit was already filed against Doraiswamy being OS No.531 of 1981 and the
said suit was dismissed.
Doraiswamy had expired on 18.5.1981 and since Valliammal
and Palaniammal were the legal heirs of Doraiswamy, the suit was not
maintainable against them. Both these ladies claimed that they were in
possession of the suit property as the tenants under Muthuswami Gounder, the
plaintiff in OS No.555 of 1981. They denied the ownership of the Iyer family on
the suit property and claimed that it was false to allege that the suit
property was ever allotted to the father of Kandasamy Iyer and Venkatasubramia Iyer.
It was, therefore, pleaded that the vendors of the plaintiff- Appellant No.1
herein were not entitled to the suit property and they were never in possession
of the same. It was claimed that the suit property was a poramboke land and it
was throughout in possession of Karuppayee Ammal who had perfected title to the
same by adverse possession. It was only Karuppayee who had put up thatched salai
in the suit property and her successor Doraiswamy was the husband of the first
defendant Valliammal and father of Palaniammal and after the death of Karuppayee
Ammal he continued to be in possession of the suit property as the heir of Karuppayee
Ammal. Karuppayye Ammal had died 20 years ago and after he death Doraiswamy had
mortgaged the suit property to Muthuswamy Gounder on 10.10.1980 and thereafter
the Doraiswamy and defendants 1 and 2 continued to be in possession of the suit
property as tenants of Muthuswamy and on that count the suit was liable to be
dismissed.
5. The Trial Court decreed the Suit No.555 of
1981 and dismissed Suit No.280 of 1982 filed by the appellant no.1 in respect
of the half of the suit property. Two appeals came to be filed which were
allowed whereby the Appellate Court dismissed Suit No.555 of 1981 and decreed
Suit No.280 of 1982 only to the extent of the decree of declaration of title.
However, since the plaintiff therein (the appellant herein) had not terminated
the licence of Valliammal and Palaniammal in respect of the suit property that
relief was denied to the appellant No.1 herein and the suit succeeded only
partly. As stated earlier, the plaintiff Muthuswamy Gounder filed Second Appeal
No.2236 of 1986 while Valliammal filed Second Appeal No.2235 of 1986 which
appeals have been allowed by the learned Single Judge of the High Court and
that is how the parties are before us in the present two appeals.
6. Learned counsel appearing for the appellant
seriously criticized the High Court judgment firstly that the High Court had
entered into a prohibited arena of re-appreciation of evidence. It was
contended that the appellate court was the final court of facts and yet even
without discussing the appellate court judgment, considering the approach
thereof, the High Court had re-appreciated the evidence and had upset the well
considered judgment of the appellate court. Secondly, the learned counsel urged
that an entirely new case which was not even pleaded by the plaintiff in Suit
No.555 of 1981 was found out by the High Court and on that basis chose to
decree the said suit which was dismissed by the appellate court. It was further
pointed out that the sole plea raised in the plaint was that the plaintiff had
derived his title vide a Sale Deed from Doraiswamy who himself had continued to
be in adverse possession after Karupayee Ammal. In short the basis of the plea
of plaintiff was his valid title.
Learned counsel was at pains to point out that
the case regarding adverse possession was very rightly held not proved by the
appellate court and indeed there could not be any adverse possession since the
adverse nature of possession was not proved at all. Learned counsel pointed out
that the plea regarding adverse possession was a confused plea inasmuch as it
was not even pleaded as to against whom was the possession of Karupayee Ammal
and Doraiswamy adverse. Learned counsel, therefore, pleaded that once that plea
was rejected, there was no question of decreeing the suit and the suit should
have been straightaway dismissed as was done by the appellate court. Instead
the High Court had found entirely different theory by trying to re-appreciate
the evidence even regarding the boundaries of the plot and the identification
thereof which was nobody's case.
7. As against this the learned counsel for the
respondent supported the judgment and suggested that though the plea of adverse
possession was not proved, still what was transferred by Doraiswamy was a possessory
title. Learned counsel tried to urge that Karupayee Ammal continued on the land
and she became the owner of the land in question because of her long possession
over natham poramboke and hence Doraiswamy who continued after her demise would
inherit the same rights, he being her legal representative. It is these rights
which he had transferred in favour of Muthuswami Gounder and, therefore Muthuswamy
Gounder had a better title as against the present appellant Dharamrajan who
merely claimed a Sale Deed from non-existent owner.
8. A glance at the High Court judgment suggests
that the High Court has gone into a dangerous area of appreciation of evidence,
that too on the basis of non existent substantial questions of law. The five
questions of law framed by the High Court were as follows:
"(1) Whether the admitted long possession
of the original owner Karupayee and that of Doraiswamy who claims title through
her cannot be tacked together in law for the purpose of adverse possession?
(2) Whether the burden is not on the plaintiff
who is out of possession to prove that he has got valid title in the suit
properties as laid down by this Court?
(3) Whether non-examination of the vendors of
the plaintiff is not fatal to the case of the plaintiff?
(4) Whether Ex.A-8 is not admissible in
evidence? And
(5) Whether lower appellate court is justified
in decreeing the suit for declaration, having found that the defendants are in
possession and having refused to grant injunction in favour of the
plaintiff?"
In our opinion none of these questions could be
said to be either question of law or a substantial question of law arising out
of the pleadings of the parties. The first referred question of law could not
and did not arise for the simple reason that the plea of adverse possession has
been rightly found against the plaintiff. Karupayee Ammal's possession, even if
presumed to be in a valid possession in law, could not be said to be adverse
possession as throughout it was the case of the appellant Dharmarajan that it
was a permissive possession and that she was permitted to stay on the land
belonging to the members of the Iyer family. Secondly it has nowhere come as to
against whom was her possession adverse. Was it adverse against the Government
or against the Iyer family? In order to substantiate the plea of adverse
possession, the possession has to be open and adverse to the owner of the
property in question. The evidence did not show this openness and adverse
nature because it is not even certain as to against whom the adverse possession
was pleaded on the part of Karupayee Ammal. Further even the legal relationship
of Doraiswamy and Karupayee Ammal is not pleaded or proved. All that is pleaded
is that after Karupayee Ammal's demise Doraiswamy as her foster son continued
in the thatched shed allegedly constructed by Karupayee Ammal. There was no
question of the tacking of possession as there is ample evidence on record to
suggest that Doraiswamy also was in the service of Iyer family and that he was
permitted to stay after Karupayee Ammal. Further his legal heirship was also
not decisively proved. We do not, therefore, see as to how the first
substantial question of law came to be framed. This is apart from the fact that
ultimately High Court has not granted the relief to the respondents on the
basis of the finding of this question. On the other hand the High Court has
gone into entirely different consideration based on reappreciation of evidence.
The second and third questions are not the questions of law at all. They are
regarding appreciation of evidence. The fourth question is regarding the
admissibility of Exhibit A-8. In our opinion there is no question of
admissibility as the High Court has found that Exhibit A-8 was not admissible
in evidence since the Tehsildar who had issued that certificate was not
examined. Therefore, there will be no question of admissibility since the
document itself was not proved. Again the finding of the High Court goes
against the respondent herein. Even the fifth question was a clear cut question
of fact and was, therefore, impermissible in the Second Appeal.
9. It must be remembered that plaintiff Muthuswamy
Gounder had claimed the title and possession in respect of the suit property by
virtue of Exhibit A-1, Sale Deed dated 10.10.1980 and before which he had also
obtained the mortgage in respect of this property from Doraiswamy. It was,
therefore, imperative on the part of the plaintiff to prove a valid title on
the part of the Doraiswamy. The High Court has rightly not accepted the case of
adverse possession though it has given a confused finding about it.
However, one look at pleadings suggests that the
only plea regarding the ownership of Doraiswamy was based solely on the plea of
his adverse possession. Once that position is clear, the High Court could not
have gone into any other aspect which was not even pleaded in the plaint.
Instead of discussing the evidence of the
plaintiff since the burden was entirely on the plaintiff Muthuswamy Gounder,
his being a prior suit, the High Court went on to discuss the evidence on the
part of defendant Dharamrajan who was the purchaser of the Eastern half of the
suit property under Exhibit B-12 and B-13 and the other defendants 2 to 5 who
had purchased the Western half of the suit property under Exhibit B-1 and B-2.
Thereafter the High Court has given a finding
that Karupayee Ammal was in possession of the land for 50 years or so and
thereafter her foster son Doraiswamy continued and, therefore, the possession
of Karupayee Ammal and Doraiswamy could be tacked together and that the
appellate court was wrong in treating the possession of Karupayee Ammal and
subsequently by Doraiswamy as distinct and separate. All these findings are of
no use whatsoever for the simple reason that the theory of adverse possession
had already failed. Even the High Court has observed that it is not as if the
plaintiff is claiming the right only by adverse possession.
Further the High Court found out that the
property was a village Natham and, therefore, the person who first occupied the
same and was residing therein is entitled to title. The High Court has, from nowhere,
found out that it was an unoccupied Natham and Karupayee Ammal has entered the
possession and was residing there by putting up a house and fencing the
property and that she would be entitled to declaration of her occupancy rights
or title because the Government is not claiming it as a poramboke or its
vesting with the Government. We fail to follow any basis for this finding of
the High Court. There is no pleading about this. There is not even an iota of
evidence in the village records in favour of either Karupayee Ammal or Doraiswamy
and their so-called rights. There is a Gram Panchayat in the village and we are
certain that there would have been some evidence in the shape of revenue
records in favour of either of these two, had the case of uninterrupted
possession of Karupayee Ammal on village Natham for 50 years, was true. The
High Court has found out an entirely different case. The High Court has lastly
held that a continuous possession independently by the person in possession
will definitely entitle him to the property in view of the fact that the
property is only a Natham and not a poramboke. We are afraid this was not a
case pleaded in the plaint at all.
In fact excepting the plea of adverse
possession, no other plea has been raised. Therefore, the High Court has
clearly erred in this aspect. Similarly the High Court in para 13 went into the
question of identity of suit property without there being any pleading and a
long and unnecessary discussion.
10. There was a previous litigation in OS No.49
of 1963 before the Subordinate Judge, Erode which was the suit for partition
and separate possession filed by one Venugopal Iyer against Venkataramana Iyer
and his sons. The appellant Dharamrajan had produced Exhibit B-6, the Judgment
which showed that the Brahmin family under whom the present defendants claimed
title was represented by four brothers representing four branches and they were
Ramaswamy Iyer, Venkatasubba Iyer, Krishnaswamy Iyer and Subramaniya Iyer.
There was a partition between these four brothers and as per the Agreement Krishnaswamy
Iyer and Subramania Iyer were allotted the property jointly as against their
shares, Ramaswamy Iyer and Venkatasubba Iyer were dealing separately their
respective shares. It was Subramania Iyer's son Venugopal Iyer who was the
plaintiff in the said suit while Venkataramana Iyer and his sons who were the
descendants of Krishnaswamy Iyer were the main defendants therein. The High
Court has gone through this judgment and has recorded that ultimately the
partition was granted only in respect of Survey No.361/D of Kavundapadi village
which was Plaint "A" Schedule and the backyard of the house which was
Plaint "B" Schedule and in other aspects the suit was dismissed. What
the High Court has failed to see is that there is a mention of the property in
the suit in this litigation. The High Court ultimately gave a finding that the
suit property was not the subject matter as it was lying South of Kattabomman
Street and this property was not, therefore, partitioned in the said suit. In
its enthusiasm the High Court has given a finding that the house was extended
further south to the East West Kattabomman Street and, therefore, the vendors
of the defendants (Dharamrajan and others) had not chosen to deal with suit
property even as early as 1957. Ultimately the High Court has given a finding
that the suit property was not the subject matter of Exhibit A-11 partitioned
in the year 1957.
11. It was pointed out by the learned counsel
appearing on behalf of the appellant that there is a definite mention in Suit
OS No.49 of 1963 of the suit property. As if this was not sufficient, the
learned counsel has also pointed out that the suit property was registered in
the name of Venugopala Iyer in Kavundapadi Panchayat and he has also paid house
tax to the Panchayat for the suit property. There is a receipt (Exhibit B-3) on
record of the house tax paid by the Iyer family which is long prior to the
suit.
There is also a certificate (Exhibit B-5) to
show that house was registered in the name of Venugopala Iyer for a period even
prior to 1977. The appellate court had accepted this documentary evidence. In
our opinion that would be the end of the matter and in the absence of any
revenue records in favour of either Karupayee Ammal or Doraiswamy, there was no
question of their title over the land. The High Court has, in para 24,
recorded:
"The question of adverse possession does
not actually arise because the Brahmin family never asserted title over the
suit property and the defendants only with a view to harass the plaintiff has
gone and taken sale deeds from the members of the Brahmin family in the year
1980 knowing fully well that all along the family never asserted title and had
never been in possession of the suit property."
In our opinion these findings are entirely
erroneous and the High Court has gravely erred in interfering with a well
considered judgment and findings of fact of the appellate court who has
accepted the case of the defendant and has chosen to hold that the plaintiff in
OS No.555 of 1981 was not able to discharge the burden at all.
12. In the absence of pleadings, the High Court
gravely erred in finding out an entirely new case on the basis of unpleaded
facts and non existent rights. Learned counsel for the respondent tried to
suggest that this was a Natham and the parties had proceeded on that basis and,
therefore, the long standing possession of Karupayee Ammal and thereafter of Doraiswamy
would clothe them with the ownership. In the first place that it was a Natham
was not pleaded. Secondly, there is nothing to suggest that this long standing
possession could clothe the Karupayee Ammal and Doraiswamy with the ownership
rights. That was neither a case pleaded nor proved. Again there was nothing in
the shape of revenue records in favour of Karupayee Ammal and Doraiswamy.
Learned counsel relied upon the judgment of the Madras High Court in The
Executive Officer, Kadathur Town Panchayat, Harur Taluk, Dharamapuri District
vs. I.V. Swaminatha & Ors. [(2004) 3 L.W. 278] delivered by the Division
Bench thereof in support of his contention that a long possession over Gram Natham
ripens into the ownership rights. We are afraid the judgment is being read too
broadly. No such proposition of law emerges from that judgment.
13. On the other hand the appellate court has
rightly relied on the tax receipts and the entry in the name of Venugopala Iyer
in respect of the suit land in Survey No.324 Ward No.4. The appellte court had
also correctly held that the suit property was mentioned in Exhibits B-6 and
B-7 as also in the decree in OS 49 of 1963 in Item No.1 of Schedule C property
which was not divided. All the lengthy discussion by the High Court over that
issue was not only uncalled for but the High Court has gravely erred in setting
aside the finding of the appellate court that the suit property was the
property of Item No.I of Schedule C in Exhibit B-7.
14. This Court has, time and again, explained
the scope of Section 100 CPC, more particularly in Gurudev Kaur & Others
vs. Kaki and Others [(2007) 1 SCC 546] where it was held that even before the
1976 amendment the scope of such interference under Section 100 drastically
curtailed and narrowed down. It is specifically held that the High Court would
have jurisdiction of interfering only in a case where substantial questions of
law are involved and those questions are clearly formulated in the Memorandum
of Appeal. We have already shown that the questions formulated were neither the
questions of law nor substantial questions of law. This is apart from the fact
that in the present case the High Court has completely gone astray inasmuch as
it is not even realized that it was a case which was not even pleaded. In Gurudev
Kaur's case the above mentioned position stated by us in respect of substantial
question of law has been reiterated. Thus, the judgment suffers from error of
law.
15. Learned counsel for the respondent lastly
suggested that Doraiswamy had transferred the possessory title and, therefore,
the plaintiff in OS No.555 of 1981 was justified in filing the suit against the
present defendants. This was not even the case pleaded. On the other hand what
was pleaded was adverse possession alone. This is apart from the fact that all
through the plaintiff claimed a title and ownership from Doraiswamy, who
according to the plaintiff, had both ownership and the title to the suit
property. The term possessory title was not even whispered anywhere.
We are, therefore, unable to accept the
contention of the learned counsel on behalf of the respondent.
16. Once the suit of Muthuswamy Gounder fails,
then the other suit filed by Dharamrajan being OS 280 of 1982 in respect of the
Eastern half portion of the suit property must succeed. The appellate court has
rightly granted the declaration in that suit and has also restricted the relief
only to the declaration since Dharmrajan and the other defendants had not
terminated or revoked the licence of Doraiswamy or his wife Valliammal or
daughter Palaniammal. The First Appellate Court had also correctly held that
appellant in AS No.10/1995 in OS No.280/1982 had established title of his
vendors and further that his vendors has passed a valid title to him with
respect to the suit property under Exhibits B-12 and B-13. We also accept the
judgment of the appellate court that Dharamrajan and other defendants were not
entitled to the injunction prayed for.
17. In the result the appeals succeed with
costs. The judgment of the High Court is set aside and that of the First
Appellate Court is restored.
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