IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.09.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN S.A.No.294 of 1999 Rajalakshmi (Deceased) .. Plaintiff Ravishankar .. Appellant/ LR of Plaintiff -vs- Ramadoss .. Respondent/2nd defendant Prayer:- This Second Appeal has been filed under Section 100 of CPC against the decree and judgment dated 29.11.1995 in A.S.No.79 of 1994 on the file of the Subordinate Judge, Mayiladuthurai, reversing the judgment and decree dated 27.06.1994 in O.S.No.29 of 1986 on the file of the District Munsif, Sirkali. For appellants : Mr.S.Sounthar, Advocate For respondents : Mr.S.Viswanathan, Advocate JUDGMENT This second appeal has been directed against the decree and judgment in A.S.No.79 of 1995 on the file of the Court of Subordinate Judge, Mayiladuthurai, which had arisen out of the decree and judgment in O.S.No.29 of 1986 on the file of the Court of District Munsif, Sirkali. The plaintiff, who had succeed before the trial Court and got a decree for bare injunction, has lost the same in the first appeal A.S.No.79 of 1994 preferred by the defendant, has filed this second appeal. Pending second appeal, the appellant / sole plaintiff died and her son has been impleaded as LR of the deceased plaintiff. 2.The short facts of the plaint relevant for the purpose of deciding this second appeal are as follows:- The plaint schedule property is a vacant site belonging to the plaintiff's husband Kannuswamy Chettiar, who had purchased the same under a sale deed dated 2.1.1935 and he was in possession and enjoyment of the plaint schedule property till his death. Subsequent to his death his wife / plaintiff and their children were in continuous possession and enjoyment of the plaint schedule property as legal heirs of deceased Kannuswamy Chettiar. Except the plaintiff and her children no one else has got any right, title https://hcservices.ecourts.gov.in/hcservices/ or possession in respect of the plaint schedule property. D2 is the son of D1. Both the defendants are residing near the plaint schedule property. The defendants have no right or title in respect of the plaint schedule property. Taking advantage of the fact that the plaintiff is residing far away from Poraiyar, the defendants had made an attempt to take possession of the plaint schedule property on 6.1.1986, which was successfully prevented by the plaintiff's close relatives. The plaintiff apprehends that at any time the defendants may trespass into the suit property. Hence, the suit for bare injunction. 3.The defendants in their joint written statement would contend that the defendants are residing on the west of the plaint schedule property and are enjoying the plaint schedule property for the past 30 years by selling lime stone. The plaintiff was never in possession and enjoyment of the plaint schedule property and the plaintiff never visited the plaint schedule property to the knowledge of the defendants. The plaintiff is residing at Poraiyur Village, which is situated 6 kms away from the plaint schedule property, and her children are residing at various other towns. The alleged certificate issued by the VAO, to show that the plaintiff is in possession of the plaint schedule property was created by the plaintiff for the purpose of this case. The allegation that the defendants have made an attempt to trespass into the plaint schedule property on 6.1.1986 is false. On the other hand, the defendants are in possession and enjoyment of the plaint schedule property over the past 50 years. Defendants are conducting lime stone business and also firewood business in the plaint schedule property for the past 30 years. The defendants have thus prescribed title to the plaint schedule property by way of their long continuous adverse possession. The residential place of the defendants and the plaint schedule property, which is situated adjoining to the property, in which the defendants are residing on the east are being enjoyed by the defendants. The plaintiffs have no cause of action to file the suit. Hence, the suit is liable to be dismissed with costs. 4. On the above pleadings the learned trial Judge has framed five issues for trial. On the side of the plaintiff P.W.1 and P.W.2 were examined and Ex.A.1 and Ex.A.2 were marked. The 2nd defendant has examined himself as D.W.1 besides examining D.W.2 to D.W.4 and exhibited Ex.B.1 to Ex.B.4. The learned trial Judge, after meticulously going through the evidence both oral and documentary, has come to the conclusion that the plaintiff is entitled to the relief asked for in the plaint and accordingly, decreed the suit with costs. Aggrieved by the findings of the learned trial Judge, D2 has preferred an appeal before the first appellate Court in A.S.No.79 of 1994. The learned first appellate Judge, after coming to the conclusion that the defendants are in possession and enjoyment of the plaint schedule property for more than the statutory period and thus prescribed title by way of adverse possession, has allowed the appeal thereby setting aside the decree and judgment of the learned trial Judge, dismissing the https://hcservices.ecourts.gov.in/hcservices/ suit, which necessitated the plaintiff to approach this court by way of this second appeal. 5.The following substantiate questions of law are formulated for consideration in this second appeal:- 1)Whether the judgment of the lower appellate Court is vitiated in its ignoring the settled legal principle "possession follows title", when the title of the appellant under Ex.A.1 is upheld by its and the suit property is a vacant site? 2)Whether the lower appellate Court is justified in upholding the plea of adverse possession by the respondent even though there is no evidence on record to show that he enjoyed the property adversely and to the knowledge of the respondent? 6.Substantioal Question of Law No.1:-The learned counsel appearing for the appellant relying on 2001(3) CTC 393 (Murugaiyan and 2 others Vs. Subbaiyan) would contend that in the absence of any adequate evidence to prove possession, the principle of law is that possession follows title. The facts of the said case are that: 6(a)One Duraimanickam filed the suit for a permanent injunction restraining the respondent/defendant from interfering with his possession and enjoyment to the suit property of an extent of 0.39 cents with a thatched shed, 30 palmyah trees, 1 tamarind tree and neem tree in S.No.114-9 in Ambalapattu North Village, Orthanadu Taluk, Thanjavur District. According to the plaintiff, the suit property ancestrally belonged to him and in the oral family arrangement between him and his brothers about 20 years prior to the suit, the suit property among other properties fell to his share and since then he had been in exclusive possession and enjoyment in his own right as absolute owner. Patta has been granted by the Government and that after partition he had put up a thatched shed and he was enjoying the trees. The defendant, who was an adjacent owner on the west of the plaint schedule property had made an attempt to trespass into the suit property and removed the shed put up by the plaintiff and cut and carried away the standing trees and that the said attempt of the defendant was prevented by the plaintiff and his men. Hence, he filed the suit. 6(b)The defence raised by the defendant was that the property east of the plaint schedule property belong to him and that he had planted trees some 45 years prior to the suit and that there was a partition in their family in which the tress were allotted to his share and that the plaintiffs with a view to knock of the trees had filed the vexatious suit and there was a panchayat took place between the plaintiffs and the defendant in which it was decided that the plaintiffs should pay Rs.500/- to the defendant as the price for the Palmyrah trees. The trial Court on the available evidence had decreed the suit. However, on appeal the learned Subordinate Judge reversed the decision. The plaintiffs to prove their title and possession had produced Ex.A.1 to Ex.A.12. Taking https://hcservices.ecourts.gov.in/hcservices/ into consideration the above said documents produced by the plaintiffs, this Court held as follows:- "The panchyats set up by the defendant have not been established. Ex.A.2 to Ex.A.12 show plaintiff's possession for the period 1962 to 1976 and 1985. Even otherwise the established legal position when there is no adequate evidence with regard to possession by either party, is possession should follow title. In the instant case, the title of the plaintiffs having been clearly found, the lower appellate court was in error in finding that the defendant was in enjoyment of the palmyrah trees. There is some vague averment in the written statement with regard to adverse possession by the defendant. However, there is no proof of the same. The claim of the defendant on the basis of adverse possession cannot therefore be countenanced. The plaintiff have title. Possession follows title." 6(c) The learned First appellate Judge while allowing the appeal has observed that the defendants have proved their title by way of adverse possession. The exact observation of the learned first appellate Judge is that the defendants were in continuous possession of the plaint schedule property for more than 30 years against the interest of the plaintiff and thus they have prescribed titlte to the plaint schedule property by way of adverse possession. Article 64 of the Limitation Act 1963 reads as follows:- Description of suit Period of limitation Time from which period beings to run For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed Twelve years The date of dispossession https://hcservices.ecourts.gov.in/hcservices/ Article 65 of the Limitation Act 1963 reads as follows:- Description of suit Period of limitation Time from which period beings to run For possession of immovable property or any interest therein based on title. Explanation_ For the purposes of this article_ (a)where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession; (b)where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies; (c)where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession. Twelve years When the possession of the defendant becomes adverse to the plaintiff. Even though the learned first appellate Judge has come to the conclusion that the defendants have prescribed title by way of adverse possession the documentary evidence produced on the side of the defendants viz. Ex.B.1 to Ex.B.4 will go to show that those documents are subsequent to the suit only. The defendants have not let in any evidence to show that they were in possession of the plaint schedule property in a continuous uninterrupted possession for more than the statutory period prescribed under law. Under such circumstances, the findings of the learned first appellate Judge that the defendants have prescribed title by way of adverse https://hcservices.ecourts.gov.in/hcservices/ possession to the plaint schedule property is liable to be set aside and the same is hereby set aside. Admittedly the plaintiff was alive at the time of trial, but she has not chosen to enter into the box. Her brother was examined as P.W.1, who would depose that since the plaintiff was at Madras taking treatment, she was not in a position to appear before the Court to give her evidence. But P.W.1's evidence is of no use to the plaintiff. Even according to his evidence he has not seen the suit property for nearly 2 to 3 years before the date of his deposition. The plaintiff would rely on Ex.A.2, a certificate issued by the VAO to the effect that the plaintiff is in possession of the plaint schedule property. But the author of Ex.A.2 – certificate was not examined on the side of the plaintiff. Ex.A.2 was marked through D.W.3, the VAO of Tharangambadi Taluk. According to D.W.3 neither the plaintiff nor her father was ever in possession and enjoyment of the plaint schedule property. In the cross-examination D.W.3 would depose that the plaint schedule property is a natham land in S.No.104/A/11 and that he does not know the extent of the said land. But he would categorically depose that the defendants have put up a shed in the midst of the plaint schedule property and that according to his information the defendants are in possession and enjoyment of the plaint schedule property for the past 10 years. D.W.3 is not an interested witness. He is a Government servant / VAO. Even according to the evidence of D.W.3 it cannot be said that the defendants have prescribed title to the plaint schedule property by way of adverse possession. The plaintiff has filed Ex.A.1-sale deed executed by Kulanthaivelu Chettiar and Varadaraja Chettiar through is power of attorney agent Kulanthaivelu Chettiar S/o.Periyathambi Chettiar in favour of Kannuswamy Chettiar, husband of the plaintiff. Under Ex.A.1 east west 49 feet and north south 98 feet land inclusive of house site with a well was sold. It has further been specifically mentioned in the said sale deed that it is natham land. Under such circumstances, the plaintiff has to establish her title to the plaint schedule property on the basis of Ex.A.1. Even though the Courts below have upheld Ex.A.1, there is absolutely no evidence let in on the side of the plaintiff to show that after execution of Ex.A.1, the said land was enjoyed by the plaintiff and before her by her husband, the vendee under Ex.A.1. It is the case of the plaintiff that after Ex.A.1 plaintiff's husband had leased out the plaint schedule property to one Kaliayaperumal and Ramaswamy and that the lessees were in possession and enjoyment of the plaint schedule property till 1985. The suit was filed in the year 1986. Neither Ramawamy nor Kaliyaperumal was examined to show that after execution of Ex.A.1 the suit property was enjoyed by the husband of the plaintiff by leasing out the same to Ramaswamy and Kaliyaperuml. So, the remedy open to the plaintiff is to file a suit for declaration of title and also for recovery of possession on the basis of Ex.A.1 since there is evidence on record to show that the defendants are in possession of the suit property for nearly 10 years (as per the evidence of D.W.3 – VAO). Unless the defendants are evicted under the due process of law, the plaintiff cannot get injunction under the suit as rightly held by the first appellate Court. Substantiate Question of Law No.1 is answered accordingly. https://hcservices.ecourts.gov.in/hcservices/ 7.Substantial Question of Law No.2:- Since the defendants have failed to produce any document to show that they have prescribed title to the plaint schedule property by way of adverse possession, the findings of the lower appellate Court is not justified in holding that the defendants have prescribed title to the plaint schedule property by way of adverse possession, as I have already observed Ex.B.1 to Ex.B.4 are all subsequent to the suit. Substantial Question of Law No.2 is answered accordingly. 8.In fine, the appeal is dismissed, but the findings of the first appellate Court that the defendants have prescribed title to the plaint schedule property by way of adverse possession is hereby set aside. The plaintiff is at liberty to file a fresh suit for declaration of title and for recovery of possession on the basis of Ex.A.1. No costs. sd/- Deputy Registrar /true copy/ Sub Asst.Registrar ssv To, 1.The Subordinate Judge, Mayiladuthurai, 2.The District Munsif, Sirkali. Copy to The Section Officer, V.R.Section. High Court, Madras. +1 cc To Mr.S.Sounthar , Advocate, SR.53153 +1 cc To Mr.S.Viswanathan , Advocate, SR.52612 S.A.No.294 of 1999 kv [co] gkg/22.10 https://hcservices.ecourts.gov.in/hcservices/