IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03-08-2010 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.1336 of 2009 1. J.Simpson 2. Theodora Vivekraj 3. Victor Gnanaraj 4. Walter Selvaraj .. Appellants/Plaintiffs Versus Pazhverkadu Venkatasamy Gramani Trust Rep. By its Trustee S.Venkataraman, At 25, Thalayari Street, Mylapore, Chennai-4. .. Respondent/Defendant PRAYER: Appeal filed under section 100 of C.P.C. against the judgment and decree, dated 16.3.2009, made in A.S.No.635 of 2006, on the file of the learned V Additional Judge, City Civil Court, Chennai, confirming the judgment and decree, dated 24.4.2006, made in O.S.No.3178 of 1993, on the file of the learned XVI Assistant Judge, City Civil Court, Chennai. For Appellants : Mr.S.Kanniah For Respondent : Mr.T.V.Krishnamachari J U D G M E N T This second appeal has been filed against the judgment and decree, dated 16.3.2009, made in A.S.No.635 of 2006, on the file of the V Additional Judge, City Civil Court, Chennai, confirming the judgment and decree, dated 24.4.2006, made in O.S.No.3178 of 1993, on the file of the XVI Assistant Judge, City Civil Court, Chennai. 2. The plaintiffs in the suit, in O.S.No.3178 of 1993, are the appellants in the present second appeal. The defendant in the said suit is the respondent herein. https://hcservices.ecourts.gov.in/hcservices/ 3. The plaintiffs had stated that they have been residing at premises No.81, Vaidyanatha Mudali Street, Tondairpet, Chennai, for the past several years. The superstructure, measuring about 915 sq.ft, includes two tiled rooms and four other rooms. The superstructure in the said property had been constructed by the plaintiffs in the year, 1978, after carrying out certain alterations and additions in the superstructure, which had already existed for more than 50 years. 4. It had been further stated that the plaintiffs have been in continuous possession and enjoyment of the suit property, without any disturbance, whatsoever. The father of the first plaintiff, P.D.Anthony, was the owner of the suit property. He was employed as a labour contractor at the Hind Merchantile Corporation Private Limited. Besides his regular employment, he was carrying on business in milk vending. The superstructure that had existed in the suit property, prior to the year, 1978, was constructed by P.D.Anthony, out of his known income. The land on which the superstructure stands was occupied by the first plaintiff’s father about 50 years ago and that he had constructed the superstructure. 5. It had also been stated that the property tax receipts, issued by the Corporation of Madras, would clearly show that the father of the first plaintiff, P.D.Anthony, was the owner of the suit property. The first plaintiff, A.Rani, had got married to the second plaintiff J.Simpson, on 25.5.1972. The plaintiffs have been living in the suit property since then. It had also been stated that the second plaintiff was carrying on business in electrical work after his retirement from his employment at the B & C Mills, Perambur. The plaintiffs had reconstructed the superstructure in the suit property, with their own income. Thereafter, the first and the second plaintiffs, along with their three children and the first plaintiff’s, father P.D.Anthony, continued to live together in the suit property, wherein, they had put up the superstructure. The first plaintiff’s stepmother, Araniammal, is also living in the suit property, along with the plaintiffs. Till the death of the first plaintiff’s father, P.D.Anthony, on 4.1.1980, the property was assessed to tax in his name. After the demise of P.D.Anthony the assessment had been made in the joint names of the first plaintiff and her stepmother Araniammal. 6. It has been further stated that, even though the plaintiffs and the father of the first plaintiff, P.D.Anthony, had been living in the suit property, for more than 50 years, they had not paid any ground rent to any one. They had not entered into any lease agreement in respect of the said property. Nobody had collected rent from the plaintiffs, including the defendant Trust. Since, the plaintiffs have been living in the suit property, for more than 50 years, without their possession and enjoyment of the suit property being disturbed, https://hcservices.ecourts.gov.in/hcservices/ they have acquired title in the suit property, by way of adverse possession. While so, the first plaintiff’s stepmother, Araniammal, had received a notice, in E.P.No.3 of 1993, in E.S.No.39 of 1984, on the file of the Registrar, Court of Small Causes, Chennai. 7. In the year, 1984, Araniammal, had suffered a paralytic stroke, on receipt of the summons in the ejectment suit. Since, she was not in a position to sit, she had not informed anyone regarding the receipt of the summons in the suit. Therefore, the said suit had been decreed, exparte. By taking advantage of the decree obtained against Araniammal the defendant is trying to disturb the possession of the plaintiffs, by attempting to vacate them from the suit property. Therefore, the plaintiffs had filed a suit for interim injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit property, by the plaintiffs and for a declaration that the decree passed in the suit, in E.S.No.39 of 1984, as null and void. Therefore, the plaintiffs had filed the present suit. 8. In the written statement filed by the defendant, had denied the averments and the allegations made in the plaint had been denied. It has been stated that it is false to state that the present superstructure in the suit property had been constructed in the year, 1978, after demolishing the old superstructure. The first plaintiff’s father, P.D.Anthony, was not the owner of the suit property. He was a tenant of the defendant Trust in the said land and after his life time his wife, Araniammal, became the tenant. The first plaintiff, who claims to be the daughter of P.D.Anthony, had not been residing in the suit property. The plaintiffs have not been residing in the suit property from the year, 1978, as claimed by them. 9. It had also been stated that P.D.Anthony was paying the rent, in respect of the suit property, to the defendant Trust. After the demise of P.D.Anthony, in the year, 1980, his wife Araniammal had not been paying the rent to the defendant Trust. Therefore, the defendant Trust had sent a letter of demand asking her to pay the rent. Since, there was no response, the defendant Trust had once again issued a letter, dated 18.12.1983, calling upon her to pay the rent. Thereafter, a lawyer’s notice, dated 4.1.1984, had been issued to her terminating the tenancy by 30.4.1984. The said notice had been received by Araniammal, on 28.1.1984. As there was no proper response from Araniammal, an ejectment suit had been filed against her, in E.S.No.39 of 1984, on the file of the Small Causes Court, Chennai. After having received the summons Araniammal had remained exparte. Therefore, an exparte decree had been passed, on 16.8.1984. 10. Thereafter, the execution petition, in E.P.No.877 of 1985, had been filed against Araniammal for delivery of possession. She had appeared in the execution proceedings and had resisted the same. She had filed an application, in M.P.No.1987 of 1986, for condoning the https://hcservices.ecourts.gov.in/hcservices/ delay of 764 days in filing the petition to set aside the exparte decree. The petition to condone the delay of 764 days had been dismissed, on 4.3.1989. As Araniammal had filed a petition to set aside the exparte decree, the execution petition, in E.P.No.877 of 1985, had been dismissed as not pressed, on 23.9.1987. Thereafter, the defendant had filed an execution petition, in E.P.No.3 of 1993, before the Registrar, small causes Court, Chennai. Even though Araniammal had appeared in the execution proceedings, she had been delaying the proceedings for one reason or the other. The reasons stated for the delay in filing the petition to set aside the exparte decree are incorrect and vague. It is only to drag on the execution proceedings and to prevent her eviction from the suit property she has filed the present suit, praying for a decree of interim injunction. The present suit filed by the plaintiffs is frivolous and vexatious. As such, it is liable to be dismissed. 11. Based on the averments made on behalf of the plaintiffs, as well as the defendant, the trial Court had framed the following issues for consideration: 1) Whether it is correct to state that the first plaintiff’s father, P.D.Anthony, had purchased the suit property and had put up a construction with his own income? 2) Is it correct to state that the first and the second plaintiffs had been carrying on business in the suit property after putting up construction therein. 3) Is it correct to state that the plaintiffs and their father had put up constructions in the suit property and that they had been in possession and enjoyment of the same, and that they had not been paying any rent to anyone, in respect of the suit property? 4) Whether it is correct to state that the plaintiffs had put up constructions in the vacant suit property and that they have perfected their title by adverse possession, since, the defendant had not obtained any decree, in respect of the suit property? 5) Is it correct to state that the plaintiff’s father, P.D.Anthony, had not put up any constructions in the suit property in the year, 1978 and that the plaintiffs had not been residing in the suit property. 6) Is it correct to state that P.D.Anthony had been paying the rent, in respect of the suit property, to the defendant Trust and after his death Araniammal had failed to pay the rent to the defendant Trust and therefore, proceedings had been initiated against her. 7) Whether the plaintiffs are entitled to a decree of permanent injunction, as prayed for by her? https://hcservices.ecourts.gov.in/hcservices/ 8) What other reliefs the plaintiffs are entitled to?” 12. The additional point for consideration framed by the trial Court is as follows: “Whether the plaintiffs are entitled to a decree of declaration, as prayed for in the suit?” 13. On the side of the plaintiffs, P.W.1 had been examined and Exs.A-1 to A-26 had been marked. On the side of the defendant D.W.1 and D.W.2 had been examined and Exs.B-1 to B-29 had been marked. 14. Based on the averments made and the evidence available on record, the trial Court had come to the conclusion that the claims made by the plaintiffs in the suit, in O.S.No.3178 of 1993, cannot be sustained. It had noted that the plaintiffs had not adduced acceptable evidence to prove their claim that the plaintiffs’ ancestors, including the first plaintiff’s father, had been in possession and enjoyment of the suit property, along with the superstructure therein, for over 50 years. Nothing has been shown on behalf of the plaintiffs to sustain their plea that they had obtained the title, in respect of the suit property, by way of adverse possession. 15. On the contrary, the trial Court had found, from Exs.B-3 decree, dated 10.11.1954, made in C.S.No.221 of 1951, that the suit property belongs to the defendant Trust. Further, it had also been noted that an ejectment suit, in E.S.No.39 of 1984, had been filed against Araniammal and an exparte decree, dated 16.8.1984, had been passed against her. Thereafter, the Trust had initiated execution proceedings, in E.P.No.3 of 1993. It had also been found that the legal heirs of Araniammal had been impleaded in the execution proceedings, in M.P.No.133 of 1995. 16. Further, in the civil revision petition filed before the High Court of Judicature at Madras, in C.R.P.Nos.353 and 354 of 2004, against the orders made in I.A.No.18374 of 2002, passed by the trial Court, the petitions had been allowed. However, the petitioners in the civil revision petition had been directed to deposit the rental amount due to the defendant Trust, at the rate of Rs.40 per/- month, from the month of June, 1984, to the month of March, 2004, amounting to a total sum of Rs.9520/-, before the trial Court. Thus, the landlord tenant relationship had been established between the petitioners in the civil revision petition and the respondent Trust. 17. Similarly, in the order, dated 1.4.2005, made in C.R.P.Nos.402 and 403 of 2003, the High Court, while staying the proceedings in the ejectment suit, on the file of the Registrar, Small Cause Court, Chennai, in E.S.No.39 of 1984 and in the pending https://hcservices.ecourts.gov.in/hcservices/ suit, in O.S.No.3178 of 1983, on the file of the XVI Assistant Judge, City Civil Court, Chennai, had directed the petitioners to pay a sum of Rs.3,000/-, on or before the 10th of every English Calendar month, directly to the respondent Trust, from the month of April, 2005. The orders passed by the High Court in the civil revision petitions had become final. 18. The trial Court had further found that the decree passed in the ejectment suit, in E.S.No.39 of 1984 and the proceedings in the execution petition, in E.P.No.3 of 1993, would be binding on the legal heirs of Araniammal. The trial Court had also come to the conclusion that the plaintiffs had not made out a case to accept their claim that they had perfected title in the suit property, by way of adverse possession, as it has been found that the plaintiffs were tenants in the suit property and as they had not proved their claim that the superstructure in the suit property had been constructed by the first plaintiff’s father, P.D.Anthony and thereafter, maintained by the plaintiffs. In such circumstances, the trial Court had dismissed the suit filed by the plaintiffs, by its judgment and decree, dated 24.4.2006, made in O.S.No.3178 of 1993. 19. Aggrieved by the judgment and decree of the trial Court, dated 24.4.2006, the plaintiffs had filed an appeal on the file of the V Additional Judge, City Civil Court, Chennai, in A.S.No.635 of 2006. 20. The First Appellate Court had framed the followings points for consideration: “1) Whether the appellants/plaintiffs are entitled for the reliefs of declaration and injunction against the respondent/defendant, as sought for in the suit? 2) Whether this appeal is allowable or not?” 21. The First Appellate Court, while considering the rival contentions of the appellants, as well as the respondent in the first appeal, had found that there was no dispute about the fact that the respondent/defendant had obtained a decree against Araniammal, in the ejectment suit, in E.S.No.39 of 1984, before the Small Causes Court, Chennai and that steps had been taken by the judgment debtor, Araniammal, by filing a petition to condone the delay of 764 days in filing the petition to set aside the exparte decree, in M.P.No.1987 of 1986, which had been dismissed, on 4.3.1989. 22. The petition for setting aside the exparte decree had also been dismissed. Thereafter, proceedings had been initiated by the respondent Trust, pursuant to the decree passed in the ejectment suit, in E.P.No.3 of 1993. While so, Araniammal had filed the present suit, in O.S.No.3178 of 1993, to declare that the judgment and decree made in the ejectment suit, in O.S.No.39 of 1984, as null and void, by claiming title over the suit properties, stating that they had https://hcservices.ecourts.gov.in/hcservices/ been purchased by the father of the first plaintiff, P.D.Anthony and that a superstructure had been constructed in the said property, wherein, the plaintiffs/appellants have been residing. It had also been stated that the appellants have been in possession and enjoyment of the suit property, for more than 50 years and therefore, they have perfected title in the suit property, by way of adverse possession. 23. The First Appellate Court had also noted that the appellants had claimed that they were never under the respondent Trust, as tenants. However, the First Appellate Court had found that the appellants had not established their claims, by way of sufficient evidence. It had been noted that the High Court of Judicature at Madras had passed orders, in C.R.P.Nos.353 and 354 of 2004, filed against the orders made in I.A.No.18374 of 2002, directing the petitioners to deposit the rental arrears of Rs.9520/- and to continue to deposit an amount of Rs.40/-, per month, as the rental amount from April, 2004, till the disposal of the suit. Further, the High Court, by its order, dated 1.4.2005, made in C.R.P.Nos.402 and 403 of 2005, had ordered the petitioners therein, while staying the proceedings in the ejectment suit, in E.S.No.39 of 1984, on the file of the Registrar, Small Causes Court, Chennai and in the suit, in O.S.No.3178 of 1993, on the file of the XVI Assistant, City Civil Court, Chennai, to pay a sum of Rs.3,000/-, per month, to the respondent Trust, from the month of April, 2005, and that the said orders had become final. 24. It had also been seen from the document filed by the respondent, in Ex.B-18, that the respondent Trust had been asked to pay the arrears of urban land tax, by the Special Tahsildar, for the properties belonging to the Trust, which includes S.No.3940/2, which is the suit property. Further, from the evidence of D.W.2, who is a tenant under the respondent Trust, it was found that P.D.Anthony was also a tenant under the respondent Trust. The First Appellate Court had found that the appellants had filed the Corporation Tax receipts, wherein, the names of P.D.Anthony and A.Rani had been mentioned, for the properties bearing No.7/3, Vaidyanatha Mudali Street, New Door No.81, marked as Ex.A-10, and the copy of the summons received from the Small Causes Court, Chennai, in the Ejectment Suit, in E.S.No.39 of 1984, enclosing a copy of the plaint, to show that the property in the schedule, in S.No.3940/2, bearing Door No.81, with an extent of 4200 Sq.ft, marked as Ex.A-11, belong to the appellants. However, the First Appellate Court had found that the Corporation Tax Receipts, marked as Ex.A-10, cannot be taken as sufficient proof that they are the owners of the property in question. 25. It had also been found that Exs.A-22 and A-23 had been filed on behalf of the appellants. The said documents were copies of the appellate Court judgment and decree pronounced by the VIII Additional District Judge, in A.S.No.289 of 1989, filed by the respondent Trust against one Ansar, for eviction. In the said case the respondent https://hcservices.ecourts.gov.in/hcservices/ Trust had failed to establish the fact that Ansar was a tenant in the property belonging to the respondent Trust. However, the First Appellate Court had come to the conclusion that the said documents, marked as Exs.A-22 and A-23, cannot be taken as sufficient proof that the appellants were the owners of the suit property in question. Since, the respondent Trust had a large extent of land, in S.No.3940/2, it cannot be taken as a norm, in respect of all the tenants and others occupying the properties belonging to the respondent Trust. 26. It had also been held that since, the appellants are stepping into the shoes of Araniammal, in claiming their rights in the suit property they would not be entitled to claim their rights beyond more than what Araniammal was entitled to. The exparte decree passed against Araniammal in the ejectment suit, in E.S.No.39 of 1984, would also be binding on those who are claiming their rights under her. It had also been found that even though the documents marked as Exs.A-1, A-2, A-5 to A-7, A-9, A-10 and A-14 to A21 were showing the names of the plaintiffs, Araniammal and Rani, and Joseph, as the owners, the said documents were relating to the superstructure alone and that there was no proof to show that the plaintiffs are the owners of the lands on which the superstructure had been constructed. 27. Further, in the registered Will, marked as Ex.A-3, executed by one Perumal David, in favour of P.D.Anthony, the father of the first plaintiff, the property shown in the schedule therein is S.No.3940/5, having an extent of 1215 Sq.Ft. However, the plaintiffs are attempting to establish their claims in the property, in S.No.3940/2, which is the suit property. Further, P.W.1 had admitted, during the cross examination, that he did not know how his father had acquired title over the suit property, from the predecessors. In such circumstances, the First Appellate Court had come to the conclusion that the property mentioned in Ex.A-3 is an ancestral property and that it does not relate to the suit property in question. Therefore, the claim of the appellants that they have prescribed title, in respect of the property, by adverse possession, had not be established. Further, by way of the subsequent proceedings, in the ejectment suit, in E.S.No.39 of 1984, and in the execution petition, in E.P.No.3 of 1993, the appellants cannot claim any relief, as prayed for in their suit, in O.S.No.3178 of 1993. Accordingly, the First Appellate Court had dismissed the appeal filed by the appellants, in A.S.No.635 of 2006, by its judgment and decree, dated 16.3.2009, confirming the judgment and decree of the trial Court, dated 24.4.2006, made in O.S.No.3178 of 1993. 28. Aggrieved by the judgment and decree of the First Appellate Court, dated 16.3.2009, made in A.S.No.635 of 2006, the appellants had filed the present second appeal, raising the following questions, as substantial questions of law: https://hcservices.ecourts.gov.in/hcservices/ “1. Whether the Courts below are justified in holding the appellants though in possession of the suit property ages together have failed to prove the title to the same? 2. Whether the Appellants are entitled to have protection under Section 51 of the Transfer of Property Act pertaining to the superstructure admitting put by them to the knowledge of the respondent? 3. Whether the Courts below have committed an error in ignoring the oral evidence adduced by D.W.1 (respondent) in the suit? 4. Whether the respondent entitled to take possession of the suit property for the adequate compensation for the superstructure put by the appellants? 5. Whether the respondent is estopped from claiming vacant possession of the suit property when the appellants have put up superstructure thereon to their knowledge?” 29. The learned counsel for the appellants had submitted that the judgment and decree of the Courts below are erroneous, unsustainable and liable to be set aside. The Courts below had erred in coming to their conclusions, without properly considering the evidence on record. The Courts below had erred in not considering Ex.A-3, Will, to be sufficient evidence in establishing the fact that the suit property was an ancestral property, inherited by P.D.Anthony and that he was in continuous possession and enjoyment of the same, by paying the necessary taxes, as per Ex.A-1. The Courts below had erred in concluding that the appellants had failed to prove that they had perfected title, in respect of the suit property, by way of adverse possession, stating that they are legal heirs of Araniammal, who had been impleaded, in M.P.No.133 of 1995, in E.P.No.3 of 1993. 30. It had also been stated that the Courts below had erred in concluding that the tenancy of Araniammal had been proved by Exs.B-4 and B-5, marked on behalf of the respondent Trust. Further, the Courts below had erred in dismissing the suit claim overlooking the admissions of D.W.1 during the cross examination. The Courts below had also erred in concluding that the appellants are only tenants in the suit property, based on the evidence of D.W.2, who is an interested witness. It had also been submitted that the Courts below had not taken into account the judgment and decree, dated 30.11.1988, made in O.S.No.5622 of 1985, on the file of the I Additional Judge, City Civil Court, Chennai and the judgment and decree of the Appellate Court, dated 16.11.1989, made in A.S.No.225 of 1989, on the file of the VIII Additional Judge, City Civil Court, Chennai, relating to one Ansar, who was a defendant in the suit filed by the respondent Trust. 31. The respondent Trust, which was the plaintiff in the said suit, had claimed that the said Ansar, who was occupying the premises https://hcservices.ecourts.gov.in/hcservices/ next to that of the appellants in the present second appeal, was a tenant occupying the premises in Door No.83, in