IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :28.07.2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.1112 of 1997 Kannan ... Appellant/Defendant Vs. 1.Venkatachalam 2.Sadasivam 3.Subramanian 4.Balayya ... Respondents/Plaintiffs Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 17.1.1997 in A.S.No.78 of 1996 on the file of the I Additional Subordinate Judge, Pondicherry in modifying the Judgment and Decree of the trial Court dated 30.06.1993 in O.S.No.356 of 1989 on the file of the II Additional District Munsif Court, Pondicherry. For Appellant : Mrs.G.Sumithra For M/s.R.Subramanian For Respondents : Mr.R.Sunil Kumar J U D G M E N T The Appellant/Defendant has filed the present Second Appeal before this Court as against the Judgment and Decree dated 17.01.1997 in A.S.No.78 of 1996 passed by the Learned I Additional Subordinate Judge, Pondicherry. The Germane Plaint averments of the Respondents/Plaintiffs are recapitulated as follows:- 2.The suit property in dispute formed part of vacant land described in blue in the rough sketch attached to the Plaint. The suit land forms part of the land comprised in R.S.No.232/18 situate at Veemacoundanpalayam, Pondicherry. The disputed portion is shown as 'B' Schedule property and the same forms part of 'A' schedule property on the western side. 3.The 'A' schedule property originally belonged to one Murugesan, grandfather of the Respondents/Plaintiffs, who died https://hcservices.ecourts.gov.in/hcservices/ leaving behind his only son Veerabadiran. The Respondents/Plaintiffs are sons and heirs of the said Veerabadiran. 4.The Appellant/Defendant is the brother's son of the plaintiffs' father Murugesan. The Plaintiffs grandfather Murugesan had three brothers viz., Ariaputhiri, Subarayan and Ramasamy. The Appellant/ Defendant is the son of Ariaputhiri. The grandfather of the Respondents/Plaintiffs and his brothers divided the property several decades ago and were in possession and enjoyment of the respective shares. They had divided early. The patta for the shares had been mutated to four brothers and patta for the suit property was standing in the name of Murugesan for well over 50 years. The Appellant/ Defendant had purchased the shares from the Pangalis (Coparcener). The Respondents/Plaintiffs were enjoyed the suit 'A' schedule property by constructing a live fence and by storing the waste materials etc. Also, they were in exclusive possession and enjoyment of the same. 5.To widen the road as per Land Acquisition Act, the Government had acquired about 20 feet of land on the northern side of the suit property of the Respondents/Plaintiffs and the Appellant/Defendant. The Appellant/Defendant is a Contractor and is engaged in manufacturing of mosaic tiles. The Appellant/Defendant admitted to encroach into the 'B' schedule property which was resisted by the 2nd and 3rd Respondents/Plaintiffs, who suggested to the Appellant/ Defendant that the respective lands might be measured and surveyed by the Land and Survey Department and agreed to resolve the dispute amicably. The Appellant/Defendant initially accepted. The 3rd Respondent/3rd Plaintiff left for France urgently to see his ailing brother son. The Appellant/Defendant, taking advantage of his absence, had encroached into the suit 'B' schedule property and constructed building to the entire north-south. 6.Therefore, the Respondents/Plaintiffs had filed the suit for Declaration of their title in respect of 'B' schedule property viz., that they are the owners of 'B' schedule property and for the mandatory injunction to remove the superstructure in 'B' schedule property which was constructed in July-August, 1987. The Written Statement averments of the Appellant/Defendant are set out hereunder:- 7.The suit is highly vexatious and it is an abuse of process of law. The averment that the suit property alleged to be in dispute formed part of vacant land described in blue in the rough sketch and the same forms part of the land in R.S.No.232/18 etc. are all denied by the Appellant/Defendant as incorrect and legally unsustainable one. The further allegations that the Appellant/Defendant admitted to encroach into the 'B' schedule property and for the same was resisted by the 2nd and 3rd Respondents/Plaintiffs and that they suggested to him for the measurement of survey etc., are all blatant falsehoods https://hcservices.ecourts.gov.in/hcservices/ concocted for the purpose of projecting a non-existence cause for the suit. 8.The suit reliefs are all barred under the law of Limitation. Moreover, the suit is bad for non-joinder of the necessary, proper and essential parties to the proceedings. The Appellant/Defendant is the exclusive owner of the properties in his physical possession and enjoyment and that the properties were clearly demarcated by walls for decades. The Appellant/Defendant purchased the properties under two different Sale Deeds dated 22.03.1975 and 06.11.1971 and constructed his required superstructures. From that time onwards, the Appellant/Defendant was in exclusive, peaceful and open possession and enjoyment thereof as absolute owner. 9.Before the trial Court, in the main suit, five issues in all were framed. On the side of the Respondents/Plaintiffs, witnesses P.W.1 to P.W.3 were examined and documents Exs.A.1 to A.5 were marked. On the side of the Appellant/Defendant, witness D.W.1 was examined and Exs.B.1 to B.16 were marked. The Court Commissioner was examined as C.W.1 and Exs.C.1 to C.3 were marked. 10.The trial Court, on an appreciation of oral and documentary evidence available on record, had decreed the suit to the effect that 'the Respondents/Plaintiffs are the owners of the property mentioned as R.1 in Ex.C.3 and entitled to recover the vacant possession of the same from the Appellant/Defendant and also granted the relief of mandatory injunction in favour of Respondents/Plaintiffs for the removal of superstructure constructed in the property described as R.1 in Ex.C.3.' The trial Court also granted six months' time for removal of superstructure from the encroached property and directed the handing over of the same to the Respondents/Plaintiffs. 11.Being dissatisfied with the Judgment and Decree passed by the trial Court in O.S.No.356 of 1989 dated 30.06.1993, the Appellant/ Defendant had filed A.S.No.78 of 1996 on the file of the I Additional Subordinate Judge, Pondicherry. 12.Before the First Appellate Court viz., I Additional Subordinate Judge, Pondicherry, in Appeal, on the side of Respondents/Plaintiffs, Exs.A.6 and A.7 were marked and on the side of the Appellant/ Defendant, Exs.B.17 and B.18 were marked. 13.The First Appellate Court viz., I Additional Subordinate Judge, Pondicherry, while delivering the Judgment in A.S.No.78 of 1996, modified the Decree of the Judgment, by directing the Appellant/ Defendant to hand over the delivery of possession of the area referred to R.1 in Ex.C.3 after removal of superstructure to the Respondents/ Plaintiffs and further directed the Respondents/Plaintiffs to pay the deficit Court fees within three months from the date of Judgment. https://hcservices.ecourts.gov.in/hcservices/ 14.Being dissatisfied with the Judgment rendered by the First Appellate Court viz., I Additional Subordinate Judge, Pondicherry in A.S.No.78 of 1996, the Appellant/Defendant had preferred the present Second Appeal as an aggrieved person before this Court. 15.At the time of admission of the Second Appeal, this Court has framed the following Substantial Question of Law: "Whether the Lower Appellate Court was right in not considering the question of acquiescence before granting a decree for mandatory injunction?" The Contentions, Discussions and Finding on Point:- 16.According to the Learned Counsel for the Appellant/ Defendant, the First Appellate Court ought to have seen that the relief sought for in the main suit is one for mandatory injunction and therefore, the Respondents/Plaintiffs ought to prove their case beyond reasonable doubt. 17.It is the contention of the Learned Counsel for the Appellant/ Defendant that the First Appellate Court has erred in coming to the conclusion that Ex.A.2-Patta standing in the name of Subramanian dated 28.21.1977, Exs.A.6 and A.7-Certified true copies issued by the Assistant Director of Archives would establish the title of the Respondents/Plaintiffs in respect of the suit property, when in fact Ex.A.6 shows that Cad.Bo.1861/5/6 stands in the name of Ramaswamy Gounder. 18.The Learned Counsel for the Appellant/Defendant contends that the Learned First Appellate Court has not adverted to the question of acquiescence and further has committed a mistake in holding that the actual construction has been put up only in the year 1987, when the re-survey records establish that the Appellant/Defendant has been in possession of the disputed area from the date of his purchase. 19.The Learned Counsel for the Appellant/Defendant takes a plea that the First Appellate Court has overlooked the difference in measurements in Commissioner's Report and the Plaint schedule. 20.Lastly, it is the contention of the Appellant/Defendant that the Respondents/Plaintiffs has remained quite for nearly 12 years before filing the instant suit in the year 1989 and therefore, a Decree for mandatory injunction ought not to have been granted. 21.In reply, the Learned Counsel for the Respondents/Plaintiffs supported the Judgment and Decree of the First Appellate Court in A.S.No.78 of 1996 and contends that the First Appellate Court had taken into account all the relevant facts and circumstances of the case coupled with the oral and documentary evidence available on record and had come to a just and fair conclusion which need not be interfered with at the stage of Second Appeal. https://hcservices.ecourts.gov.in/hcservices/ 22.The Learned Counsel for the Appellant/Defendant relies on the decision of this Court in Ramizabi and others V. Mohammed Yassin, (2010) 4 MLJ 884 at page 906 wherein in paragraph 41, it is held as follows: "41.It is true that both the Courts below have concurrently decreed the suit . But the question of law involved is whether the appellants have prescribed title by adverse possession. The first appellate court is the last fact finding court. If the last fact finding court has not considered the material evidence, then the second appellate court will have the jurisdiction to re-appreciate the evidence and interfere with the findings of both the Courts below. On the basis of the decision relied upon by both the parities and their oral and documentary evidence, it has been clearly proved that the adverse possession starts only on the date of dismissal of A.S.NO.65 of 1983 on 30.3.1984. The suit has been filed in the year 5.9.1996, so for about 12 = years the appellants have been enjoying the property with the knowledge of this true owner, adverse to the interest of this respondent, for more than statutory period. Hence they prescribed title by adverse possession. So I am of the opinion that both the courts have not considered this aspect in a proper perspective. The judgements and decrees of both the courts below are liable to be set aside and the second appeal is liable to be allowed." Further, in the aforesaid decision, at page 905 in paragraph 34 and 35, it is held thus: "34.Moreover in that earlier proceedings it was decided that Ramzan bi is in a permissive possession and she is only a licencee. As soon as the appeal has been disposed of, her possession become adverse to the interest of the true owner. Since Limitation act is applicable for the Pondicherry Territory the appellant is in possession and enjoyment for more than a statutory period with the knowledge of this respondent. Hence she prescribed possession of title by adverse possession. 35.One more adding point is that after the dismissal of A.S.65/1983 on 30.3.1984, the respondent herein has filed O.S.No.551/1983 against Abdul Azis, Shafya bi, Ibrahim and Muthu https://hcservices.ecourts.gov.in/hcservices/ and not against these appellants in S.A. 1106 and 1107 of 1999. Hence she is enjoying this property with the knowledge of the true owner openly, continuously without interruption for more than a statutory period. So there is animus possidendi since she is claiming adverse possession in the earlier suit. Even though it was decided in earlier suit that it is permissive possession, but the respondent has not filed any suit against her for recovery of possession." 23.He also seeks in aid of the decision of the Hon'ble Supreme Court in Syndicate Bank V. Prabha D.Naik and another (2001) 2 MLJ 97 (S.C.) at page 104 & 105, wherein in paragraphs 21 and 22, it is laid down as follows: "21.Admittedly, Limitation Act is a statute enacting the provisions in general terms applicable to the entire country excepting the exception as mentioned in the statute itself. It is a latter statute of the year 1963 only that the Portuguese Civil Code assuming had its application in the State of Goa, Daman & Diu and an earlier statute thus stand altered, as the latter is expressed in affirmative language, more so by reason of specific application of Negotiable Instrument Act and Indian Contract Act: It thus cannot but be said to be repealing by implication - "affirmative statute introductive of a new law do imply a negative" [(Harcourt v. Fox (1693) 1 show. 506]. 22.As regards the doctrine of implied repeal, another aspect of the matter ought to be noticed vis-a-vis the Civil Code. The issue of limitation being a mixed issue of law and fact under the Limitation Act, the Court in spite of plea not being raised by the defence, can go into the same suo moto but there is a specific bar under Article 515 of the Civil Code which records that the Court cannot suo moto take cognizance of description unless it is specifically pleaded by the parties. It is a bar of jurisdiction of Court. The repugnancy and incongruity arise by reason of the fact that the Parliament by law viz. The High Court at Bombay: (extension of jurisdiction to Goa, Daman and Diu) Act 1981 extended the jurisdiction of the High Court of Judicature at Bombay to the Union Territory of Goa, Daman and Diu from the appointed day and the Court of Judicial Commissioner was abolished. Section 9 of the statute [(Act of 1981) (supra)] provides that https://hcservices.ecourts.gov.in/hcservices/ there shall be, on and from appointed day, established a permanent Bench of the High Court of Bombay at Panaji and some Judges of the High Court at Bombay being not less than two in number or as may be nominated by the Chief Justice of the High Court from time to time shall sit at Panaji, in order to exercise the jurisdiction and power for the time being vested in the High Court in respect of cases arising in this Union Territory. The authority and jurisdiction of the High Court of Bombay to take cognizance of an action being barred by limitation, thus stands negated -conceptually, even a difficult situation to conceive that same High Court will have two different spheres of jurisdiction while dealing with matters. At the cost of repetition we say that while implied repeal is not to be readily inferred but in the contextual facts, upon scrutiny, we cannot but hold that on the wake of the factum of the Limitation Act coming into existence from 1.1.1964, Article 535 of the Portuguese Civil Code cannot but be termed to be impliedly repealed and it is on this score that the decision of this Court in Justiniano's case (supra) stand overruled. There is one general law of limitation for the entire country being the Act of 1963, and the Portuguese Civil law cannot be termed to be a local law or a special law applicable to the State of Goa, Daman & Diu prescribing a different period of limitation within the meaning of Section 29(2) of the Limitation Act and in any event, question of saving of local law under the Limitation Act of 1963 does not and cannot arise. The submission that without there being a specific mention of repealing statute (since 1963 Act of Limitation does not record express repeal of any other law excepting the Limitation Act of 1908), question of Portuguese Civil Code being repealed does not arise, cannot hold good by reason of the doctrine of implied repeal as noticed above. In the premises aforesaid, these appeals fail and are dismissed without however any order as to costs." 24.However, the Learned Counsel for the Respondents/Plaintiffs invites the attention of this Court to the decision in Rangaswamy @ Govindaram (Died) and 5 others V. The Deputy Collector (Revenue)-Cum- Land Acquisition Officer, Pondicherry 1997 (II) CTC 97 at page 101, 102 & 103 wherein in paragraph 9, it is held as follows: "9. We have carefully considered the submissions https://hcservices.ecourts.gov.in/hcservices/ of the learned counsel appearing on either side. Section 53 of the Land Acquisition Act lays down that save in so far as they may be inconsistent with anything contained in this said Act, the provisions of the Code of Civil Procedure, 1908 shall apply to all proceedings before the court under the Land Acquisition Act. There is nothing in the Land Acquisition Act, which militate against the applicability of Section 114 and Order 47 of the Code of Civil Procedure relating to review to proceedings before courts exercising powers under the said Act. The next aspect that requires in this context to be adverted to is the period of limitation applicable. Under the Limitation Act, 1963, Article 122 of the Schedule to the Act prescribes the period of limitation for review, among other things, as thirty days from the date of the order sought to be reviewed. If the provisions of the Limitation Act, 1963, alone applied to the case on hand, no exception could be taken to the conclusions arrived at by the court below. But, Section 29(2) of the Limitation Act provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as and to the extent to which, they are not expressly excluded by such special or local law. In Cooppousamy's case, 1988 (I) MLJ 432, Sathiadev, J. had dealt with a similar issue interpreting the scope of Section 29(2) of the Limitation Act in the context of a similar claim as the one made before us with reference to the French Civil Code, particularly Article 2262, and the learned single Judge had held therein that in the absence of a specific extension of the Limitation Act to the Union Territory of Pondicherry by virtue of extension of the provisions of the Code of Civil Procedure with effect from 1.8.1966, the law of limitation, namely Limitation Act, 1963, also cannot be considered to have been extended or that it became automatically applicable or enforceable in the Union Territory of Pondicherry. In coming to such https://hcservices.ecourts.gov.in/hcservices/ a conclusion, the learned single Judge placed strong reliance upon the earlier decisions of this Court in Chockalinga Mudaliar v. Manivanna Pillai, 1978 (2) MLJ 544 and Justiniano v. Antonio, . The decision of the apex Court was rendered in the context of an identical situation as the one arising now pertaining to the French Settlements in India, now Union Territory of Pondicherry, in relation to Portuguese settlements, which are now Union Territories of Goa, Diu and Daman. Consequently, the learned single Judge held that Article 2262 would continue to have application in the Union territory of Pondicherry and the extended period of limitation provided therein will be available to a litigant. So far as the Union territory of Pondicherry is concerned, it is only thereafter the Pondicherry Limitation (Repeal of Local Laws) Act, 1994, Act 15 of 1994, was passed. The said Act provided for in a Section 3, repeal of local laws in force in the Union territory of Pondicherry or any area therein corresponding to the Limitation Act, 1963 on and from the date of coming into force of the said Act. Section 1(3) provided that the Act shall come into force on such date as the Government may, by notification in the Official Gazette, appoint. The Government of Pondicherry issued G.O.Ms.No. 9/95 - L.D. dated 28.2.1995 appointing first day of March, 1995 as the date on which the provisions of Act 15 of 1994 shall come into force in the whole of the Union territory of Pondicherry. In view of the above, the local law, namely, the French Civil Code in so far as it relates to the relevant provision pertaining to the period of limitation visualised under Article 2262 of the French Civil Code, could, if at all, be said to have ceased application only on and from 1.3.1995. The judgment and decree which are sought to be reviewed in this case were made on 26.4.1983 and the respective petitions for review were presented before the Court below on 14.9.1989. It is well settled that the law of limitation that is applicable is the one, which is in force at the time when the cause or action is instituted, unless any special provision is made to the contra. Consequently, we are of the view that the petitioners herein are entitled to rely upon Article 2262 of the French Civil Code and the period of limitation of thirty years provided therein will ensure to the benefit of the https://hcservices.ecourts.gov.in/hcservices/ petitioners. We are unable to agree with the learned Additional Government Pleader that there is no scope for extending the period made by him by replying upon the decision in Shah Manilal Chanulal's case, . That was a case which concerned the construction of Section 18 of the Land Acquisition Act, 1894 and the nature of the power that was conferred therein. It is no wonder that the apex court held that it was a statutory power conferred upon the statutory authority and not upon any court and the claim for reference within period striputed being a condition subject to the fulfillment of which only a reference can be sought for and made, there was no scope for extending the period of six weeks provided in Section 18 by invoking or applying the provisions of the Limitation Act, particularly Section 5 of the said Act. The said judgment has no relevance whatsoever to the case on hand." 25.He also cites the decision of this Court in Couppousamy V. Alamelu and 6 others, 1998-1-L.W.-120 at page 121 wherein it is observed as follows: "Under Art.2262 of the French Civil Code, all rights of action whether in rem or in personam are extinguished by prescription after thirty years. The person who sets up a title by prescription for thirty years is not obliged to rely on any title; nor can a plea alleging bad faith be set up. This Article alone would take in the circumstances arising in the instant case, and is akin to Art. 137 in the Schedule to the Limitation Act. Unless the other provisions of the Limitation Act are extended, the Fresh Civil Code being the "local law" as held by the Supreme Court, and such a la having been applied by the Court below, the civil revision petition has to be dismissed with costs." 26.Before the trial Court, the 3rd Respondent/3rd Plaintiff was examined as witness P.W.1. In his evidence, he had deposed that his brother viz., 1st Respondent/1st Plaintiff was residing in France and that he had executed Ex.A.1-General Power of Attorney dated 27.02.1978 in his favour and that the suit property belonged to them as an ancestral one and her grandfather's father was Muthukrishna Gounder, to whom the property originally belonged and for the said Muthukrishnan, Ariyaputhiri, Subarayan, Ramasamy and Murugesan were the children and an extent of 2 Are and 17 santhars came to the share of Murugesa Gounder and that the said Murugesan had only son by name, Veerabadiran and that his father had expired. https://hcservices.ecourts.gov.in/hcservices/ 27.It is the further evidence of P.W.1 that the suit property remained as their family property for well over 200 years and the Respondents/Plaintiffs were the four children to their father and that the patta-Ex.A.2 for the suit property stood in the name of Murugesa Gounder and the father of Ariyaputhiri was Loganathan, who son Kannan was the Appellant/Defendant and he had been enjoyment of the western side of the 'A' property and that the suit property was situated on the south of Dindivanam Road and the Appellant/ Defendant's