IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.1.2006. CORAM: THE HONOURABLE MR.JUSTICE R.BALASUBRAMANIAN AND THE HONOURABLE MR.JUSTICE M.THANIKACHALAM APPEAL SUIT No.441 OF 1998 AND CROSS-OBJECTION No.33 OF 2000. 1. Tmt.A.Vedanayagam 2. A.Michael 3. A.Lazar Mary 4. A.Jesudass 5. A.Joseph (Died) 6. A.Arokiasamy 7. A.John 8. A.James 9. A.Augustin 10.Thenmozhi Joseph 11.Arul Baskar 12.J.Rapeetha Earnest Mary 13.Minor J.Arokia Arona 14.Minor J.Stephen .. Appellants in A.S.No.441/1998 and respondents in Cross Objection No.33/2000. (Appellants 10 to 14 brought on record as L.Rs. of the deceased 5th appellant, as per the order of the Court dated 22.4.1999 in C.M.P.Nos.6059 and 6060/1999) (Minor appellants 13 and 14 are represented by their mother and natural guardian-the 10th appellant-Thenmozhi Joseph) Vs. https://hcservices.ecourts.gov.in/hcservices/ 1.Annakili 2.Mangalakshmi 3.K.Selvaraj 4.M.Rajamanickam 5.Tmt.Suseela 6.Tmt.Sarasu .. Respondents in A.S.No.441/1998 and cross-objectors in Cross-Objection No.33/2000. A.S.No.441 of 1998 has been filed under Section 96 and Cross Objection No.33 of 2000 has been filed under Order 41 Rule 22 of the Code of Civil Procedure, both against the judgment and decree dated 13.4.1998 rendered in O.S.No.14770 of 1996 by the VII Additional Judge, City Civil Court, Chennai. For appellants in : A.S.No.441/1998 & : Mr.V.Raghavachari, respondents in the : for M/s.A.J.Abdul Razak Cross-objection : and A.R.Shamsudeen No.33/2000 : For R.1 & R.3 to R6 : in A.S.No.441/1998 &: Mr.N.S.Sivam cross-objectors in : for Mr.R.Nadana Sabapathy the Cross-Objection : No.33/2000 : For R.2 in A.S.No.441/1998 : Mr.R.Suresh JUDGMENT M.THANIKACHALAM, J. The plaintiffs, having failed in their attempt, to evict the respondents/defendants from the suit properties, have come to this Court, as appellants. 2. The defendants 1 and 3 to 7, aggrieved by some of the findings rendered by the trial Court, have preferred the cross-objection. 3. The parties are referred, in this appeal and cross- objection, as arrayed in O.S.No.14770 of 1996. https://hcservices.ecourts.gov.in/hcservices/ 4. The brief facts, regarding the plaintiffs case: (a) The suit properties, originally belonged to the Corporation of Madras, from whom one Krishnadoss Lala and his brother had purchased the same, under a registered sale deed, dated 19.4.1944. In the partition, dated 5.5.1968, between Krishnadoss Lala and his brother, the suit properties were allotted to the share of Krishnadoss Lala. After his demise, the suit properties devolved upon his heirs. The heirs of Krishnadoss Lala and two others, by name Mohamed Idris and K.Peer Mohideen, entered into an agreement, under which it was agreed that the properties should be released from the notification of the year 1973, issued by the Tamil Nadu Slum Clearance Board. From the owners of the suit properties, as well as from the agreement holders, the plaintiffs have purchased the suit 'A' schedule property, for valuable consideration, on 30.9.1986. Thus, the plaintiffs are the absolute owners of the suit properties. (b) The Corporation of Madras, had, erroneously, transferred the 'A' schedule property, to the Tamil Nadu Slum Clearance Board, on 17.12.1973 and thereafter, the same was treated as 'slum area'. Thereafter, at the instance of the plaintiffs' vendors, the Corporation of Madras, informed the Tamil Nadu Slum Clearance Board, that a resolution would be passed, cancelling the earlier notification, thereby confirming the sale in favour of Krishnadoss Lala. Pursuant to the action taken by the plaintiffs' vendors, for vacating the persons, who are residing in the slum, and towards the repayment of the amount, spent by the Slum Clearance Board, for carrying out improvement works in the area, a sum of Rs.1,12,950/= was remitted by the vendors of the plaintiffs' on 8.5.1986, in favour of the Slum Clearance Board. Thereafter, some persons, residing in the slum, have vacated the premises, after receiving the compensation also. The Government of Tamil Nadu, issued a Notification, cancelling the Kamaraj Colony Slum at New Boag Slum in Madras as a 'slum area' in and by G.O.Ms.No.831 Housing and Urban Development, dated 16.5.1991. Thus, the plaintiffs' vendors had transferable right over the property, which was transferred in favour of the plaintiffs, and the plaintiffs are the absolute owners of the suit properties, at present. (c) The De-notification of the land, from 'slum area', had been issued at the instance of the plaintiffs, who had filed a Writ Petition in W.P.No.1283 of 1989, questioning the inaction of the Government, in not removing https://hcservices.ecourts.gov.in/hcservices/ the slum dwellers from the suit premises, which was allowed by this Court on 10.1.1990, directing the Slum Clearance Board, to take steps to get the slum dwellers settled elsewhere and put the plaintiffs in possession of the land, free from any encumbrance. Aggrieved by the order in W.P.No.1283 of 1989, the defendants, along with some others, as third parties, have preferred an appeal in Writ Appeal No.272 of 1990 and a Division Bench of this Court, setting aside the order of possession, observed that 'the question of putting the plaintiffs in possession should be decided by separate, appropriate process, at the instance of the parties'. In view of the same, the plaintiffs are constrained to file the suit, for recovery of possession. (d) The defendants do not have any right over the suit properties, at any point of time. They have put up only temporary structures on the four corners of the land and they are squatting on the property, preventing the plaintiffs, from effectively enjoying the same. The defendants are in possession, only at the instance of the Slum Clearance Board and they cannot have any independent title or interest. The refusal to vacate the suit properties is only illegal and their occupation wholly unauthorised. By the refusal, to vacate the properties, the defendants have caused loss to the plaintiffs, and therefore, they are liable to pay the damages also. Hence, the suit. 5. The defendants' case, in brief: (a) The suit is not properly valued, for the purpose of Court fee and jurisdiction; if valued properly, the Court may not have pecuniary jurisdiction. The plaintiffs are not the owners of the suit properties, since the alleged vendors of the plaintiffs, themselves had no title over the suit properties. All the defendants have perfected title to the suit properties, by adverse possession, being in continuous, uninterrupted possession and enjoyment for more than sixty years. From the year 1973, there was a slum in the 'A' schedule property, where, about 50 families, including the defendants, were residing, even in the year 1979. Therefore, the notification issued by the Tamil Nadu Government in G.O.Ms.No.831, Housing and Urban Development, dated 16.5.1991, is not legally valid. Even before the allotment of the portions to the defendants, they are in possession and enjoyment of the property, for the past sixty years. Therefore, it is incorrect to state that the defendants came to be in possession, only at the instance of the Slum Clearance Board. Since the defendants have perfected title to the https://hcservices.ecourts.gov.in/hcservices/ suit properties, the plaintiffs are not entitled to recover the same, the further fact being, the suit is barred by limitation. (b) In the additional written statement, as well as in the written statement filed by the 5th defendant also, the same plea was repeated. 6. Originally, the suit was filed before this Court, as C.S.No.1485 of 1995. After the re-alignment of the pecuniary jurisdiction, the suit was transferred from this Court, to the City Civil Court, Madras, where the same was taken on file as O.S.No.14770 of 1996. 7. On the basis of the pleadings, the learned trial Judge, framing number of issues, has taken-up the case, for trial. In order to make out a case, as pleaded in the plaint, A.Arokiasamy (the 7th plaintiff) has been examined as P.W.1, seeking aid from 15 documents, marked as Exs.A.1 to A.15. On behalf of the defendants, five witnesses have been examined as D.Ws.1 to 5, seeking strength from Exs.B.1 to B.38. 8. The learned trial Judge – the VII Additional Judge, City Civil Court, Chennai - while evaluating the above materials, has come to the conclusion, that the City Civil Court has jurisdiction to try the suit; that though the plaintiffs had title to the suit properties, the same is extinguished by adverse possession, in this view, the suit is barred by limitation; that though the properties are properly described, in view of the proved fact that the defendants have perfected title to the suit properties, by adverse possession, the plaintiffs are not entitled to recover the same. Thus concluding, the suit was dismissed, without costs, as per the judgment dated 13.4.1998, which is under challenge in this appeal. 9. Heard Mr.V.Raghavachari, the learned counsel appearing for the appellants in the appeal and the respondents in the cross-objection; Mr.N.S.Sivam appearing for the respondents 1 and 3 to 6 in the appeal and the cross-objectors and Mr.R.Suresh for the second respondent in the appeal. 10. Mr.V.Raghavachari, the learned counsel appearing for the appellants, would contend: i) that when the plaintiffs have established their unquestionable title to the suit properties, the suit ought to have been decreed, as prayed for; ii) that the defendants have failed to prove the https://hcservices.ecourts.gov.in/hcservices/ alleged adverse possession and in this view, the owners of the suit properties are entitled to recover possession, automatically; iii) that the conclusion of the trial Court, the suit is barred by limitation, is erroneous, since the effect of Article 65 of the Limitation Act is not properly considered; and iv) that the defendants, being the trespassers, are not entitled to squat upon the properties, without any legal basis. Elaborating the above points, taking us through the pleadings as well as the previous proceedings between the parties, in addition to taking us through the oral and documentary evidence also, the learned counsel for the appellants would urge that the error or the mistake committed by the trial Court, in not considering the case from proper perspective, should be rectified by the interference of this Court thereby setting aside the judgment of the trial Court, a decree should be granted, as prayed for. 11. In response to the above submissions, the learned counsel appearing for the defendants would submit that for the past sixty years or so, the defendants are in continuous possession and enjoyment of the suit properties, adverse to the real owner, thereby prescribed title, which was properly considered and appreciated by the trial Court, not warranting any interference; that the findings of the trial Court, that the suit is barred by limitation, is also unassailable; that some of the findings rendered against the defendants, on issue No.2, by the trial Court, are erroneous and that the suit filed, without the permission under Section 29 of the Tamil Nadu Slum Areas (Improvement and clearance) Act, 1972 is barred and therefore, confirming the dismissal of the suit, the findings rendered against the defendants, should be set aside. The further submission is that the properties are not valued properly for the purpose of court fee and jurisdiction. 12. Having regard to the facts and circumstances of the case and the arguments advanced before us, the points that arise for consideration in this appeal and cross- objection are: https://hcservices.ecourts.gov.in/hcservices/ 1. Whether the defendants have perfected title to the suit properties, by adverse possession? 2. Whether the suit is barred by limitation? and 3. Whether the plaintiffs/appellants are not entitled to recovery of possession of the suit properties? POINTS:- 13. In order to appreciate the facts in issue and to clear the controversy, we have to remember the history, before the filing of the suit, and how the parties have traced out their title or possession, as the case may be. 14. In the plaint, there are five schedules of properties. 'A' schedule property includes, 'B' to 'E' schedules. Though a faint attempt was made, to say that the properties are not properly described, it was not taken to the end, because of its identification, as indicated in the plan, attached to the plaint. According to the plaintiffs, 'B' schedule is in the occupation of the first defendant, 'C' schedule is in the occupation of the second defendant, 'D' schedule is in the occupation of the third defendant and 'E' schedule is in the occupation of the fourth defendant. After the death of the second defendant, now his Legal Representatives viz. Defendants 5 to 7 are agitating the case, claiming inheritance. 15. It is the specific case of the plaintiffs, as seen from paragraph No.2 of the plaint, that the suit properties originally belonged to the Corporation of Madras, which had transferred the same in favour of Krishnadoss Lala and his brother, under a registered sale deed dated 19.4.1944 i.e. Ex.A.11. Thereupon, in the partition, the suit properties were allotted to the share of Krishnadoss Lala, under the partition deed dated 5.5.1968. Though the sale deed was assailed in the written statements, at present, the same is not challenged, because of the previous litigation and findings therein. Thus, it could be safely concluded, that Krishnadoss Lala and his brother had purchased the suit properties, from its original owner viz. the Corporation of Madras, under a registered sale deed dated 19.4.1944, which later devolved upon Krishnadoss Lala, under the partition deed dated 5.5.1968. https://hcservices.ecourts.gov.in/hcservices/ 16. The Corporation of Madras, having sold the suit properties in favour of Krishnadoss Lala, on 19.4.1944, either under mistaken impression or otherwise, appears to have, erroneously, transferred the 'A' schedule property to the Tamil Nadu Slum Clearance Board, on 17.12.1973 and pursuant to the same, this area was treated as 'slum area'. After the transfer of the suit 'A' schedule property to the Tamil Nadu Slum Clearance Board, to improve the slum, amounts were sanctioned and it appears, the Collector of Madras has also recommended, to grant housing pattas to several persons, in addition to, providing funds for construction of houses also, further providing basic amenities in the slum area. When the matter came to the knowledge of R.K.Mannulal, son of Krishnadoss Lala, he submitted a representation, to the Corporation of Madras, complaining that his private land had been erroneously handed over to the Tamil Nadu Slum Clearance Board and therefore, the land should be returned to him, assuring he would reimburse all developments charges, spent by the Board, for the improvement of the slum area. The Commissioner of Corporation also, informed the Tamil Nadu Slum Clearance Board, that by mistake, the private land of Krishnadoss Lala had been handed over to the Board in 1973, and requested the Board, to exclude the suit properties from the list of properties owned by the Slum Clearance Board, further assuring, appropriate resolution would be passed and furnished to the Board, in this regard. Agreeing to the conditions imposed, as evidenced by Ex.A.4, R.K.Mannulal paid the development charges, spent by the Slum Clearance Board, in the slum area. Thereafter, the Slum Clearance Board requested the Government of Tamil Nadu, to de-notify the 'slum area', but, there was no speedy action. 17. In view of the slackness, shown by the Departments, the plaintiffs have filed W.P.No.1283 of 1989, before this Court, against (1) the State of Tamil Nadu; (2) the Slum Clearance Board and (3) the Corporation of Madras, seeking a direction to the respondents, to de-notify and put the plaintiffs, in possession of their property i.e. 'A' schedule, described in the plaint. By the order dated 10.1.1990, the said Writ Petition was allowed, issuing a Writ of Mandamus, directing the respondents therein, not only to de-notify the property, but also to hand over vacant possession of the land, to the petitioners therein. Admittedly, the persons, who were actually residing in the property, were not impleaded as parties to the said Writ Petition. Therefore, some of the defendants herein and others, as aggrieved third parties, with the permission of the Court, have preferred an appeal against the above said https://hcservices.ecourts.gov.in/hcservices/ Order, in Writ Appeal No.272 of 1990. 18. A Division Bench of this Court, by the judgment dated 21.3.1990, has come to the conclusion that the declaration granted by the learned single Judge, declaring that the properties ceased to be a 'slum area' and also the direction to the respondents to hand over vacant possession of the property to the petitioners therein, are not legally sound and in this view, the Writ Appeal was allowed, sustaining the prayer regarding 'de-notifying' alone. It is also observed: "The other controversies with reference to the recovery of possession from the third parties and the declaration with reference to the property ceasing to be a slum area are left open.' This judgment reached finality. In the judgment itself it is stated, as contended by the learned counsel for the appellants, the title to the property to Krishnadoss Lala is confirmed, since it is observed that 'the action taken by the second respondent (Slum Clearance Board) on the basis of the transfer by the third respondent (Corporation of Madras) to the former is totally without jurisdiction and must stand eschewed". It is also observed in paragraph No.6 of the said judgment: "Their grievance is only with reference to disturbance of their occupation. They have not disputed and obviously they cannot dispute the fact that there could not be a valid transfer of the property by the third respondent to the second respondent, when, in fact, even as early as 1944, the third respondent has parted with the title to the property to and in favour of Krishnadas Lal, the predecessor-in-title of the petitioners." (Emphasis supplied by us) Thus, the title of Corporation of Madras and transfer of the same to Krishnadoss Lala are all admitted and even we could say, it is declared. Therefore, it should be held that the suit properties were purchased by Krishnadoss Lala and his brother from the Corporation of Madras and subsequently in the partition, it was allotted to Krishnadoss Lala, which the plaintiffs are entitled to inherit, as his successors-in-interest. Therefore, it is not open to the defendants here to contend that the plaintiffs are not the owners of the suit properties. https://hcservices.ecourts.gov.in/hcservices/ 19. It is an admitted fact that elsewhere in the year 1980 or 1981, the slum dwellers have applied for the allotment of plots, probably agreeing to pay the sale price for the site, on installment basis. Pursuant to the applications, given by the slum dwellers, including the defendants, the Tamil Nadu Slum Clearance Board, in its proceedings dated 5.3.1981, allotted plots to them, fixing the sale price as well as the installment also. In the proceedings, the Tamil Nadu Slum Clearance Board have informed the allottees that at the time of the application, a particular amount has to be paid and the balance has to be paid, on installment basis, including interest, within ten years or so. The order further reads that after the lapse of ten years, that too on payment of the entire sale consideration, a sale deed would be executed in their favour, conferring title upon them. The above general allotment order, as well as specific portions, allotted to the defendants, were accepted by them without any demur, which would indicate that they have not claimed exclusive title or ownership over the suit properties, either as true owner or as a person, who had acquired title by adverse possession by long, uninterrupted enjoyment. It appears, after the allotment, the Tamil Nadu Slum Clearance Board failed or refused to receive the installments as per the allotment order, which caused grievance to the defendants, as well as the other slum dwellers. 20. Because of the reason the Tamil Nadu Slum Clearance Board had refused to receive the amount, thereby attempting to deprive their right, some of the defendants and other allotees have filed W.P.No.7785 of 1987, to issue a Writ of Mandamus, directing the Tamil Nadu Slum Clearance Board, to collect the installments towards the sale consideration, as per the allotment order dated 5.3.1981. A Division Bench of this Court, considering the disposal of Writ Appeal No.272 of 1990, dismissed the Writ Petition as infructuous, by the order dated 21.3.1990. Because of the steps taken by the plaintiffs, de-notification was issued, exonerating the suit properties from 'the slum area', which was challenged by the defendants in W.P.No.4725 of 1997 and the same was dismissed on 4.4.1997. The said dismissal order came to be challenged before the Division Bench of this Court, in Writ Appeal No.475 of 1997. A Division Bench of this Court, while disposing the appeal had observed that 'the Government has issued the denotification, pursuant to the decision in Writ Appeal No.272 of 1990, which became final and the same cannot be challenged, that too, when the suit is pending for possession'. In view of this finding, it is no longer open to the defendants to argue, denotification is not proper https://hcservices.ecourts.gov.in/hcservices/ etc., and if at all, on other grounds alone, suit for possession could be resisted. Thus, as per the de- notification, the suit properties ceased to be a 'slum area'. Because of the above litigations between the parties, it is to be held, that the suit properties are no longer a 'slum area', which were the private properties of Krishnadoss Lala and after his demise, the same belonged to his legal heirs. In view of the admitted legal proceedings between the parties, wherein the title of Krishnadoss Lala was also accepted, it is not open to the defendants to contend, at present, that the plaintiffs, who purchased the property from the heirs of Krishnadoss Lala, are not the owners of the suit properties. 21. Under the sale deed dated 30.9.1986, from the legal heirs of Krishnadoss Lala, the plaintiffs have purchased the properties, wherein it is stated that the properties are under the illegal occupation of hut dwellers, who put up numerous huts and squatted in portion of the properties, without paying any rent to the vendors. It is also further stated, 'it became very heavy against the vendors 1 to 6, to establish their factual and legal ownership and it looked a very difficult, if not an impossible task, to redeem and restore the said property as a vacant land site, which could be done at a very cost of time, effort and money and the lack of incentive on the part of vendors 1 to 6, the said landsite was considered as good as lost forever'. These averments would indicate that the owners had knowledge about the illegal occupation of the suit properties by others, including the defendants. On the basis of the above averments, an attempt was made on behalf of the defendants, to show, as if the vendors of the plaintiffs had lost their title, which cannot be, it is not so also, since the vendors have reiterated their title, such as how they have purchased the property, how they are entitled to succeed, etc. Because of the inability on their part, to recover the properties, such as, from the trespassers, as that of the defendants and instead of having the long drawn legal battle before the Courts, they have conveyed the properties, to the plaintiffs, which will not, prima facie, extinguish the title of the plaintiffs' predecessors-in-interest. Instead of fighting with the trespassers, they thought of conveying the properties, certainly, not recognising the right of trespassers, if any. Therefore, considering the fact that the title of Krishnadoss Lala was admitted and that his Legal Representatives are having the right to convey the properties, and in this view, the plaintiffs, having purchased the suit properties, under Ex.A.1, they are entitled to maintain the suit, for recovery of possession, https://hcservices.ecourts.gov.in/hcservices/ even without declaration of title. It is not mandatory,the original owner of the property should file a suit, for declaration, with consequential relief of possession, if the trespassers denied the title. In a suit for possession also, which is based on title, it could be decided, since there is no bar. In this case, considering the previous litigation between the parties, where the title also considered, as indicated supra, without prayer for declaration, for possession, a suit is well maintainable. In this view, if the plaintiffs should be non-suited, it is for the occupiers of the properties, to establish their possession, as hostile one, vesting right in their favour, by extinguishing the title