Elumalai Naicker
& ANR Vs. Chandran Naicker [2008] INSC 1128 (15 July 2008)
Judgment
CIVIL APPELLATE
JURISDICTION CIVIL APPEAL NO.5622 OF 2002 ELUMALAI NAICKER & ANR. ...
APPELLANTS VERSUS
O R D E R
1.
This
appeal by special leave is by the plaintiffs in a suit for declaration of
title, possession, permanent injunction, mandatory injunction and manse
profits. The second appellant claims to be the owner of the suit properties
that is two portions of survey No.209/6 of Kadapakkam village measuring 1.75
acres and 60 cents described as items (1) and (2) respectively in the plaint
Schedule. The first appellant is the husband of second appellant. The
respondent - defendant is the brother of the second appellant. For convenience,
we will refer to the appellants and respondent by their ranks in the suit, as
plaintiffs and defendant.
2.
The
plaint averments in the suit filed in the year 2 1987, in brief, are as
follows:
a. The second plaintiff
purchased the suit properties under a registered sale deed on 25.11.1977
executed by one Ratnavelu PW-2, who had earlier purchased the suit properties
from Adikesavalu under sale deed dated 25.1.1972.
b. The second plaintiff
was in possession of the suit lands even prior to the sale in her favour and
she had perfected her title by adverse possession also.
c. In or about in March
1981, the second plaintiff's brother namely Chandran Naicker (defendant) sought
her permission to reside in a portion of her property and offered his services
to look after the fruit bearing trees therein. The second appellant permitted
the defendant to put up at his own cost, a thatched hut in a portion of her
land (the portion described as item (2) in the plaint Schedule) and permitted
him to reside there free of rent, in consideration of his assurance of service
by looking after the fruit bearing trees in the suit schedule item (1)
property.
d. After a few years, as
defendant's service was not satisfactory, the plaintiffs called upon the
defendant to 3 vacate the thatched hut. He failed to do so and set up a claim
that he was the owner of the suit schedule item(2) land measuring 60 cents.
This necessitated filing of the suit for declaration of title, possession,
injunction and mesne profits.
3.
The
defendant contended in his written statement that he had occupied the 60 cents
of land (suit schedule item no.2 land) in the year 1970 and has been in
possession and enjoyment thereof openly, peacefully and continuously and had
perfected his title by adverse possession. He alleged that he constructed the
thatched hut and planted trees in the 60 cents land and his open and
uninterrupted possession of the said portion from 1970 was not objected to
either by plaintiff or anyone else claiming to be the owner; and that the second
plaintiff was also in similar possession of the adjoining portion that is
remaining portion of Survey No.209/6 (suit schedule item (1) land). He denied
the allegation that he was in occupation of 60 cents of land only from the year
1981 under permission from the plaintiffs or that he was engaged to keep a
watch over the fruit bearing trees in suit schedule item(1) land. He claimed
that he has been paying taxes in respect of suit schedule item(2) property and
that he was recorded as the owner of the said land in the Revenue records. He
did not deny the 4 ownership or possession of second plaintiff in respect of
suit schedule item no.1 land measuring 1 acre 75 cents.
4.
The
trial court framed appropriate issues regarding title, adverse possession,
possession, permanent injunction, mesne profits. The second plaintiff examined
herself as PW1 and examined her vendor Rathnavelu as PW2. The defendant gave
evidence as DW1 and examined one R. Ramachandran as DW2. Both sides also
tendered documentary evidence. The documents exhibited by plaintiffs consisted
of title deeds, Jamabandhi, Chitta and Adaugal Extracts and tax receipts. The
documents exhibited by defendant consisted of house tax receipts.
5.
After
appreciating the evidence, the trial court decreed the suit on 16.7.1990. The
first appellate court allowed the appeal by the defendant on 28.6.1991,
reversed the judgment of the trial court and dismissed the suit. The second
appeal filed by the plaintiffs was dismissed by the High Court on 12.10.2001
and the decision of the first appellate court was confirmed. Feeling aggrieved,
the plaintiffs have filed this appeal by special leave.
6.
The
first appellate court which is the final court of fact has recorded a finding
that the defendant is in 5 possession of the suit schedule item no.2 land (60
cents) ever since 1970 and that plaintiffs have failed to prove that second
plaintiff had been in possession of both items of suit schedule earlier or that
she had permitted the defendant to occupy a portion of her land (suit schedule
item no.2) in the year 1981. The first appellate court has also held that the
defendant was in open peaceful and uninterrupted possession of the suit
schedule item no.2 and paid the house taxes from 1972-73, in respect of the
house constructed by him. The said findings of fact were not disturbed by the
High Court. We find that the said findings are based on admissions and
documentary evidence and do not call for interference in exercise of
jurisdiction under Article 136 of the Constitution.
7.
PW.2,
Ratnavelu who sold the suit scheduled property (items 1 and 2 of the plaint
schedule) to second plaintiff has given different versions in regard to
possession of the suit properties in his evidence. One version is that from the
date of purchase in 1972 from Adikesavalu till the date of sale in 1977 in
favour of second plaintiff, he was in possession of the suit properties and he
delivered possession thereof to the second plaintiff at the time of sale in
1977. Another version is that the second plaintiff was in possession of 6 the
suit properties from the year 1973. The second plaintiff (PW1) stated in her
evidence that she was in possession of the suit properties for 25 years, that
is from 1966, which was about 11 years prior to the purchase by her. The second
plaintiff also admitted in her evidence that the defendant was in possession of
the 60 cents of the land and thatched hut (suit schedule item 2) from the year
1970 itself. This clearly belies plaintiffs' case in the suit that defendant
entered possession of the suit schedule item (2) only in the year 1981, under
her express permission. The above evidence supports the claim of defendant that
he has been in possession of suit schedule item (2) in his own right ever since
1970.
8.
Another
significant aspect is that the sale deed in favour of second plaintiff (Ex.A1)
described the 60 cents out of Sy. No.209/6 (suit schedule item 2) as distinct
and separate from suit schedule item (1) measuring 1 acre 75 cents in Sy.
No.209/6. Both items were contiguous lands forming part of the same survey
number belonging to a single owner (PW2) and sold to a single purchaser (PW1).
The entire land was covered by same patta. If possession thereof had been
delivered to the second plaintiff as a single unit, there was no need to describe
the two portions separately in the sale deed. When this 7 fact is considered
with the averment in the plaint that plaintiffs and their predecessors in title
had acquired title to the suit property by adverse possession, it is evident
that the two portions were described separately as they were treated as
distinct properties, in the possession of second plaintiff and defendant
respectively from 1970 onwards long prior to the sale in favour of second
plaintiff. This would also support the claim of the defendant that he perfected
his title to suit schedule by adverse possession. It is probable that second
plaintiff and her predecessors in title had also perfected title by adverse
possession in regard to suit schedule item (1).
9.
The
Revenue records show that upto 1986, Adikeshavulu - second plaintiff's vendor's
vendor was shown as the owner, though second plaintiff purchased the suit
property in 1977 itself. It was only an year prior to the filing of the suit,
the name of the second plaintiff was entered as owner. The second plaintiff
produced and relied upon certain tax receipts to show that she has been in
possession. But most of them related to a period subsequent to the sale in her
favour. On the other hand the defendant also produced several house tax
receipts which showed that he was paying the house tax in respect of the
portion in his possession long prior to 8 1977 when second plaintiff purchased
the property. The plaintiffs of course dispute the claim of defendant that the
tax receipts produced by him relate to the suit schedule item (ii). Even if the
tax receipts are excluded the very admission by the second plaintiff that the
defendant has been in possession of 60 cents of land (suit schedule item 2)
from 1970 onwards destroys the case of the plaintiff that she was in possession
of the entire extent of 2.35 acres land in Sy. No.209/6 on purchase in 1977 and
that she had permitted her brother (defendant) to occupy a portion thereof
measuring 60 cents in the year 1981. Another unexplained feature is why second
plaintiff would permit defendant to be in possession of a big chunk of 60 cents
(out of total area of 2 acres 35 cents) if he was engaged merely to look after
the fruit bearing trees in the land.
10.
If
on the basis of the aforesaid evidence the first appellate court recorded a
finding that plaintiffs had failed to make out title and possession in regard
to suit schedule item (2) and that defendant had established open, peaceful and
uninterrupted possession in his own right for more than 12 years as on the date
of suit it cannot be said that the said findings were erroneous or called for
interference in second appeal by the High Court.
11.
The
first appellate court after due consideration of the evidence has recorded a
finding of fact in favour of the defendant, which has been confirmed by the
High Court. We find no reason to interfere with such finding.
The
appeal is therefore dismissed.
............................J.
(R.V. RAVEENDRAN)
...........................J.
(LOKESHWAR SINGH PANTA)
NEW
DELHI, SEPTEMBER 30, 2008.
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