IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 01.04.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA S.A.Nos.2235 to 2238 of 2003 and 153, 155, 156, 157, 162 to 164, 274 to 276, 327 to 329, 423 and 491 to 494 of 2004 and C.M.P.Nos.578, 643 to 645, 1725 to 1727, 2140 to 2142, 3698 and 3832 to 3835 of 2004 Venkatesan Assary .. Appellant in SA.2235/03/Defendant Anbazhagan .. Appellant in SA.2236/03/Defendant Mangaiyarkarasi .. Appellant in SA.2237/03/Defendant Muniammal .. Appellant in SA.2238/03/Defendant Mahalakshmi .. Appellant in SA.153/04/Defendant Gaberial .. Appellant in SA.155/04/Defendant Vijayalakshmi .. Appellant in SA.156/04/Defendant 2.Alexander @ Mangalsingh 3.Premkumar(minor) 4.Preetha Mary(minor) Appellants 3 & 4 are represented by their father NO.2 as guardian vide order dt.27.11.09 in CMP.1301 to 1304/09 Appellants 2 to 4 brought on records in LRs of the deceased sole appellant vide order dt.27.11.09 in CMP.1301 to 1304/09 1.Devadoss @ Raja(died) .. Appellant in SA.157/04/Defendant 2.Sundari 3.Nithya(minor) 4.Manikandan(minor) Appellants 3 & 4 rep.by their mother the 2nd Appellant Appellants 2 to 4 brought on record as LRs of the deceased vide order dt.27.11.09 in CMP.1308 to 1311/09 Rajakumari @ Jegada .. Appellant in SA.162/04/Defendant Sokkalingam .. Appellant in SA.163/04/Defendant Arokiamary @ Gowri .. Appellant in SA.164/04/Defendant Jayalakshmi .. Appellant in SA.274/04/Defendant https://hcservices.ecourts.gov.in/hcservices/ Madhi .. Appellant in SA.275/04/Defendant Alangaravalli .. Appellant in SA.276/04/Defendant Arokiadoss @ Ravi .. Appellant in SA.327/04/Defendant Shanmugavel .. Appellant in SA.328/04/Defendant Kalangiyam .. Appellant in SA.329/04/Defendant 1.Ganesan @ Muniappan(died) .. Appellant in SA.423/04/Defendant 2.Pushpa 3.Sasikala 4.Sasirekah 5.Saneka 6.Sabari Appellant 2 to 6 brought on record as LRs of the deceased sole appellant vide order dt.27.11.09 in CMP.No.1298 to 1300/09 in SA.No.423/04 Clara .. Appellant in SA.491/04/Defendant Angalan .. Appellant in SA.492/04/Defendant Sengeni .. Appellant in SA.493/04/Defendant Ravi .. Appellant in SA.494/04/Defendant Vs. Prakash Mull Chordia Rep. by Power of Attorney J.S.Sundar .. Respondent in all the Appeals/Plaintiff Second Appeal No.2235 of 2003 against the judgment and decree dated 30.09.2002 in all cases and 4.10.02 in SA.164/04,274/04,276/94 and 327/04 in AS.No.42/99, 44/99, 63/99, 45/99, 47/99, 49/99, 48/99, 46/99, 53/99, 55/99, 54/99, 51/99, 50/99, 52/99, 56/99, 62/97, 61/99, 43/99, 57/99, 58/99, 59/99, 60/99 on the file of II Additional District Court, Pondicherry, against the judgment and decree dated 28.08.1998 in O.S.No.1839/96, 1842/96, 38/97, 1843/96, 1862/96, 1864/96, 1863/96, 1861/96, 1948/96, 1985/96, 1984/96, 1946/96, 1880/96, 1947/96, 1988/96, 37/97, 2062/96, 1840/96, 1989/96, 2010/96, 2011/96, 2061/96 on the file of II Additional District Munsif Court, Pondicherry. For appellant in all appeals : Mrs.Emily Venkatesan for M/s.T.R.Rajaraman For respondent in all appeals : Mr.S.V.Jayaraman, Senior Counsel for Mr.N.Srinivasan https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT The defendants/legal representatives of the defendants, have filed these Second Appeals against the judgments and decrees of the first appellate Court, reversing the judgments and decrees of the trial Court. 2. As the facts are common in all the cases, for the purpose of convenience, the facts in S.A.No.2235 of 2003 are discussed, for arriving at the conclusion in respect of all the Second Appeals. 3. The averments in the plaint in O.S.No.1839 of 1996, are as follows:- (i) The property has been purchased by one Tayanayagui Ammal on 14.08.1957 and on the same day, in the very same document, she had donated the property in favour of her grand-children, viz., Pougaje Sojene, Sivasangarane and Radjou. In pursuance of that, grandchildren were in possession and enjoyment of the property. (ii) The second item in the sale deed was comprised of an extent of 60 ares and 50 cent ares, out of which, 50 ares were acquired by the Government of Pondicherry for assignment of free house-sites to the landless labourers in rural areas and therefore, an award was passed on 22.02.1983. For the determination of rightful ownership, the matter was referred to the I Additional District Court, Pondicherry, under L.A.O.P.No.53 of 1983 and after enquiry, an award was passed on 22.11.1983. (iii) The remaining extent of land in the 'A' schedule property has been in the possession and enjoyment of the donees, viz. Pougaje Sojene, Sivasangarane and Radjou. They executed a Power of Attorney in favour of one Vaithiyanatha Mudaliar for management and sale of 'A' schedule property. He entered into a sale agreement with one Vadivambal. Since, Vadivambal expressed her inability to purchase 'A' schedule property, the sale agreement was cancelled on 16.12.1994. Subsequently, 'A' schedule property was sold by the Power of Attorney of the owners and the plaintiff purchased the same on 16.12.1994 and it was registered as Document No.496 of 1996. (iv) The plaintiff is the absolute owner of 'A' schedule property. The defendant was residing in the property very adjacent to 'A' schedule property and he had trespassed into the 'B' schedule property and had put up a thatched hut on 08.10.1995. (v) The plaintiff has filed O.S.No.1362 of 1996 on the file of Principal District Munsif, Pondicherry, against Electricity Department for disconnection of electricity service connection. Similarly, the plaintiff has also filed O.S.No.1591 of 1996 on the https://hcservices.ecourts.gov.in/hcservices/ file of I Additional District Munsif, Pondicherry, for removal of water tap installed in 'A' schedule property. Alleging that the defendant's wife and other women folk disturbed the running of school, the plaintiff has filed a suit in O.S.No.1454 of 1996 on the file of I Additional District Munsif, Pondicherry, for permanent injunction. The defendant and others have filed a suit in O.S.No.1281 of 1996 against the plaintiff stating that the property bearing R.S.No.77/3 is a common pathway to reach 'A' schedule property. Along with that, an interim injunction application in I.A.No.3306 of 1996 in O.S.No.1281 of 1996 was filed, which was dismissed. (vi) Since the plaintiff is the absolute owner of the 'A' schedule property, he came forward with the suit for declaration that he is the absolute owner of the 'B' schedule property and for delivery of vacant possession of the 'B' schedule property and prayed for a decree. 4. The gist and essence of the written statement filed by the defendant in O.S.No.1839 of 1996, are as follows:- (i) The defendant denied the averment that the plaintiff was in possession of 60 ares and 50 cent ares of land and that the Government had acquired 50 ares for assignment of free house-sites to the landless labourers in rural areas and the remaining extent was under the possession and enjoyment of the plaintiff's vendor. The plaintiff has to prove the same. The suits have not been properly valued. (ii) 'A' schedule property had remained vacant and the allegation that the defendant trespassed into it and put up a thatched hut on 08.10.1995 in the 'B' schedule property is totally false and the plaintiff has to prove the same. The defendant is residing in the property for more than 13 years and enjoying the property without any disturbance from anybody. Hence, he prescribed title by adverse possession. There was no police complaint. Hence, the defendant prayed for the dismissal of the suit. 5. The trial court, after considering the averments both in the plaints and in the written statements, framed necessary issues and after considering the oral and documentary evidence, dismissed the suits. Against that, the plaintiff preferred First Appeals before the first appellate Court, which after considering the arguments of both the counsel, framed necessary points for determination and reversed the judgments and decree passed by the trial court and allowed the First Appeals. Against that, the defendants have come forward with the present Second Appeals. 6. At the time of admission of the Second Appeals, the following substantial questions of law were framed for consideration in the Second Appeals: https://hcservices.ecourts.gov.in/hcservices/ (a) Substantial question of law in S.A.Nos.2235 to 2238 of 2003, 153 and 156 of 2004: Whether the reversal judgment and decree of the lower appellate Court are sustainable in law, as the lower appellate Court has not appreciated the entire evidence to decide the issue in question and the relevant provisions of law applicable to the facts of the case ? (b) Substantial question of law in S.A.Nos.155, 157, 274 to 276 of 2004: Whether the reversing judgment and decree of the lower appellate Court is sustainable in law, as the lower appellate Court has not appreciated the entire evidence applicable to the facts of the case and the relevant question of law to decide the issue raised before him ? (c) Substantial question of law in S.A.Nos.327 to 329 of 2004: Whether the reversing judgment of the lower appellate Court is sustainable in law as it has not considered the entire evidence available on record, which are relevant to decide the issue, as also the relevant question of law applicable to the facts of the case ? (d) Substantial question of law in S.A.Nos.162 to 164, 491 to 494 and 423 of 2004: Whether the judgments and decrees of the Courts below are sustainable in law, as the entire evidence which is relevant to decide the issue and the relevant question of fact applicable to the facts of the case were not taken into consideration ? 7. The respondent as plaintiff filed the suits for declaration of title and for delivery of vacant possession in respect of the 'B' schedule property. The trial court dismissed the suits after considering the defence raised by the appellant/defendant. The respondent/plaintiff preferred First Appeals before the first appellate Court, which allowed the First Appeals and granted the prayer for declaration of title in respect of the properties and delivery of vacant possession. Against that, the defendants have come forward with the Second Appeals. https://hcservices.ecourts.gov.in/hcservices/ 8. The learned counsel appearing for the appellants-defendants, would put-forth the following contentions: (i) The respondent/plaintiff ought to have proved his case by way of documents. The respondent/plaintiff cannot pick out the loopholes in the case of appellants/defendants. (ii) P.W.1-M.J.Sundar, who is the Power of Attorney of plaintiff, is not a competent person to speak about the alleged trespass and possession. There is no cause of action for the suits. (iii) The respondent/plaintiff has not established that 'B' schedule property forms part of 'A' schedule property. The respondent/plaintiff failed to correlate the suit property along with the property purchased in the sale deed dated 14.08.1957. (iv) The appellants/defendants have disputed the identity of the properties. To substantiate the above contentions, the learned counsel for the appellants-defendants relied upon the decisions reported in 2005 (5) CTC 17 (Division Bench of Madras High Court) (P.Panneerselvan Vs. A.Baylis) and 1999 (I) MLJ 769 (Madras High Court) (Periasamy Vs. Joseph Nadar) to show that the respondent/plaintiff has to establish his case and he cannot pick out the loopholes in the case of the appellants/defendants to prove his claim. Learned counsel for the appellants-defendants also relied upon the decision of the Supreme court reported in 2003 (4) CTC 565 (SC) (Dalip Singh Vs. Sikh Gurudwara Prabhandak Committee) and submitted that the Revenue records are not the title documents. Learned counsel for the appellants-defendants also relied upon the decision of the Supreme Court reported in 2005 (3) CTC 128 (SC) (Janki Vashdeo Bhojwani Vs. Indusind Bank Limited) and submitted that the Power of Attorney holder is not a competent person to speak about the things what happened prior to his appointment as a Power of Attorney. Learned counsel for the appellants-defendants prayed for allowing the Second Appeals. 9. Per contra, the learned Senior Counsel for the respondentplaintiff would contend that it is true that the respondent/plaintiff has to prove his case and the plaintiff has proved his case by way of filing the Sale Deed, Field Map and other Revenue documents to show that the suit properties belong to plaintiff's predecessor-in-title. A portion of the property purchased under Ex.A1-Sale Deed dated 14.08.1957, has been acquired under the land acquisition proceeding for assignment of free house-sites to the landless labourers in rural areas and therefore, an award was passed on 22.11.1983 as per Ex.A3. The land acquisition proceedings have been initiated as per Ex.A12 and the Deputy Collector has acquired 50 ares for assigning the same to landless labourers. F.M.B. Plan--Ex.A9 https://hcservices.ecourts.gov.in/hcservices/ and Chitta--Ex.A10, have also been filed to show that the respondent/plaintiff's predecessorin- title were in possession and enjoyment of the property. The correlation of the property has been proved by way of marking Ex.A10--Chitta and Exs.X2--Settlement Register, X4--Map and X5-- Award, dated 22.02.1983. The first appellate court has considered all these aspects and came to the correct conclusion. 10. The learned Senior Counsel for the respondent-plaintiff further submitted that the trial court has dismissed the suits, because the identification of the properties, has not been proved by the respondent/plaintiff, but, at the stage of the First Appeals, Commissioner was appointed, who in turn has inspected the properties and filed the reports and the properties have been now identified. To substantiate his contentions, the learned Senior Counsel for the respondent-plaintiff culled out some portions from the evidence of P.W.2 and submitted that even though, now, the appellant/defendant has raised the plea that the respondent/plaintiff is not in possession, but, he has not disputed the title to the property. Hence, learned counsel for the respondent-plaintiff prayed for dismissal of the Second Appeals. 11. On a perusal of the documents, it is seen that Ex.A1 is the French Sale Deed dated 14.08.1957; Ex.A2 is the English Translation Copy, which shows that on 14.08.1957, Tayanayagui Ammal purchased the property from one Kuppusamy in two items of property and under the same document, she had donated the same in favour of her grand-sons viz., Pougaje Sojane, Sivasangarane and Radjou, all of whom are sons of Ramakrishna Padayachi. The second item of the property mentioned in Ex.A-1=Ex.A-2, is the suit property, which is bearing No.2350/2/3/1/2 of Cadastre--60 ares and 80 ares. As per Ex.A-12, the land acquisition proceedings have been initiated and the Deputy Collector has acquired 50 ares for assigning the same to landless labourers. Since, no document has been filed, the matter has been referred under Section 31(1) of Land Acquisition Act, to I Additional District Court, Pondicherry. In pursuance of that, on considering the oral evidence of Pugazhsholan/R.W.1 and sale deed--Ex.R1 dated 14.08.1957 therein, an award--Ex.A3 has been passed on 22.11.1983, granting compensation of Rs.11,672.50 in favour of respondents therein, viz., Pougaje Sojane, Sivasangarane and Radjou, which has proved that the property purchased under Ex.A.1-sale deed dated 14.08.1957 has been donated and it was in possession and enjoyment of the vendor of the respondent herein/plaintiff. 12. One of the contentions put-forth by the learned counsel for the appellant-defendant is that the respondent/plaintiff failed to correlate the suit property, with the property purchased in the sale deed dated 14.08.1957. While perusing Ex.A.1=Ex.A.2, it is seen that the suit property is mentioned as Cadastre No.2350/2/3/1/2. Ex.A-10 is Chitta. In that, it was stated, "Survey No.77, Cadastre No. https://hcservices.ecourts.gov.in/hcservices/ 2350/2/3/1/2, Patta No.1342", which stands in the name of "Pougaje Sojane, Sivasangarane and Radjou, Sons of Ramakrishna Padayachi." Furthermore, Ex.X-2 is the Settlement Register of the Village. In that, it was stated as "Resurvey No.77, 1/A & 1/B, Cadastre No.2350/2/3/1/2 portion, Ryotwary Punjai, measuring an extent 0.50.00 & 0.11.50. Patta No.1342, stands in the name of Pougaje Sojane, Sivasangarane and Radjou. Ex.X-2 is issued in the year 12.12.1997. Exs.X-3 and X-4 are the Field Measurement Maps for Thattanchavady Revenue Village. Ex.X-5 is the award passed by the Land Acquisition Officer dated 22.02.1983 and in that S.Nos.77/1A-0-50-00 and the names of Pougaje Sojane, Sivasangarane and Radjou, have been mentioned, which has proved that the respondent herein/plaintiff has correlated the suit property with the property purchased under Ex.A.1-sale deed, dated 14.08.1957. So, the argument advanced by the learned counsel for the appellant-defendant that the respondent/plaintiff has failed to correlate the suit property with the property purchased under Ex.A.1=A.2, does not merit acceptance. 13. Even though, the learned counsel for the appellants defendants raised the plea of adverse possession in the memorandum of the grounds of Second Appeals, but the learned counsel for the appellants-defendants did not advance any argument in this regard. Furthermore, in the First Appeals also, the appellants/defendants have not raised the plea of adverse possession. The learned first appellate judge, in his judgment in A.S.No.42 of 1999, dated 30.9.2002, has stated as follows: "25. The learned advocate for the respondent would argue that the defendant is not pressing into service the plea of adverse possession, but he would plead only enjoyment for over 13 years; Obviously realising that the plea of adverse possession could not be proved by the defendant. In whatever manner the plea of the defendant is found set out in the written statement, the pith and marrow of the defendant's plea is that he by enjoying the property for about 13 years be became owner. But absolutely there is no evidence in support of his plea. .... ..... ...... In this case understanding that the defendant could not prove that he acquired title by enjoying the property continuously for over 12 years openly, exclusively and publicly as owner he did not press for it. As such the plea of the defendant remains only an ipsi dixit." 14. Even in the memorandum of the grounds of Second Appeals, the appellant-defendants raised the ground that the defendants prescribed title by adverse possession, but during the argument, the learned counsel appearing for the appellants-defendants did not advance any argument on this point. Furthermore, the appellants-defendants have https://hcservices.ecourts.gov.in/hcservices/ not filed any single document to show that they were in possession for the past 13 years in the suit properties. 15. The person claiming title by adverse possession, must plead and prove that as to from which date, he was and he is in possession, openly, continuously and uninterruptedly for more than the statutory period with the knowledge of the true owner, adverse to the interest of the true owner. In this aspect, there is no pleading by the defendants and no evidence was also let in by them. So, the appellants-defendants have not proved that they have prescribed title by adverse possession. Moreover, in the written statement, the defendants have stated that the suit properties are 'poramboke lands', which shows that the defendants are not admitting the title of the plaintiff and the plaintiff's vendors and the defendants are not in possession of the properties adverse to the interest of the real owners. Hence, the appellants-defendants have not proved that they have prescribed title by adverse possession. 16. At this juncture, it is appropriate to consider the following decisions relied upon by the learned counsel for the appellants-defendants: (a) In 2005 (5) CTC 17 (P.Panneerselvan vs. A.Baylis), a Division Bench of this Court has held as under: "13. .... Apart from the general principle of law that the plaintiff must succeed on the strength of his own case and not on the basis of the weakness in the case of the defendant, in a suit for specific performance of contract, the plaintiff is obviously required to prove that there is a definite contract which is capable of being specifically enforced." (b) In 1999 (I) MLJ 769 (Periasamy Vs. Joseph Nadar), this Court has held as follows: " Plaintiff has to establish his case and cannot pick loopholes in the defendant's case to prove his claim..." 17. The learned counsel for the appellants-defendants submitted that as per the decision reported in 1999 (I) MLJ 769 (cited supra), the respondent/plaintiff ought to have proved his case. 18. It is true that the plaintiff must prove his case. In the present cases, the plaintiff has filed documents/exhibits, like sale deeds, chitta, settlement register, etc. and proved that he is the owner of the suit properties. https://hcservices.ecourts.gov.in/hcservices/ 19. Learned counsel for the appellants-defendants also relied upon the decision of the Supreme Court reported in 2005 (3) CTC 128 (SC) (Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd.), in which the Supreme Court has held as under: "Power of Attorney holder cannot depose for principal in respect of matter of which only the principal can have personal knowledge and in respect of which principal is entitled to be cross examined." 20. The learned counsel for the appellants-defendants further submitted that the Power Agent of the plaintiff, is not a competent person to speak about the trespass and possession and hence, the evidence of P.W.1 has to be eschewed. Furthermore, P.W.2- Raju/predecessor-in-title/vendor of the plaintiff, was examined. Heis a competent person and nothing against him has been culled out. 21. In the present cases, it is true that the Power of Attorney Holder is not competent to depose as to what happened before he was appointed as Power of Attorney. The vendor of the plaintiff was examined as P.W.2 and cross-examined by the appellants-defendants and the appellants-defendants have not disputed the title of the vendor of the plaintiff. Admittedly, the appellants-defendants are in possession of the properties. The first appellate Court has considered the evidence P.W.1, the Power of Attorney of the plaintiff and P.W.2, the vendor of the plaintiff and decided the factor. There is no infirmity in the impugned judgments of the first appellate Court. 22. Learned counsel for the appellants-defendants also relied upon the decision of the Supreme Court reported in 2003 (4) CTC 565 (SC) (Dalip Singh Vs. Sikh Gurudwara Prabhandak Committee), wherein, the Supreme Court has held as under: "Revenue records by itself cannot prove title to property unless it is supported by other evidence." 23. It is true that the Revenue records are not title to the documents. In the present cases, the respondent-plaintiff has filed the sale deed relating to 1957 and the other documents relating to acquisition by the Government and the award passed thereon. That has been fortified by the Revenue records. So, the respondent-plaintiff has proved that he is the owner of the properties. 24. The respondent as plaintiff has proved that he is the owner of property by producing the sale deed Ex.A.1=Ex.A.2, dated 14.08.1957, his parent document of title and Ex.A7--sale deed dated 16.12.1994 in his favour. Identification of the properties had been proved by way of appointment of Commissioners and correlation of the suit property with the property mentioned in Ex.A.1=Ex.A.2, has also https://hcservices.ecourts.gov.in/hcservices/ been proved by way of marking Ex.A10--Chitta and Exs.X2--Settlement Register and X5-Award dated 22.02.1983. As the respondent/plaintiff is the owner of the properties, he is entitled to get recovery of possession. The first appellate court has considered all the aspects in proper perspective and came to the correct conclusion. Hence, the judgments and decrees of the first appellate Court do not warrant any interference. 25. The substantial questions of law are answered accordingly. The Second Appeals are devoid of merits and the same deserve to be dismissed and the judgments and decrees of the first appellate court are hereby liable to be confirmed. 26. In the result: (a) The Second Appeals are dismissed. (b) The judgments and decrees passed by the first appellate court, are hereby confirmed. (c) In all the cases, three months' time from today, is granted to the defendants to deliver the vacant possession of the respective 'B' schedule properties, to the plaintiff. (d) C.M.Ps. are closed. (e) No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar paa/cs To. 1. The IInd Additional District Judge, Pondicherry. 2. The District Munsif, Pondicherry. 3. The Section Officer, High Court, Madras. + 1 CC to Mr.T.R.Rajaraman,Advocate,SR.21628 + 1 CC to Mr.N.Srinivasan,Advocate,SR.21628 S.A.No.2235 to 2238 of 2003, etc. batch MBS(CO) EM/4.6.10 https://hcservices.ecourts.gov.in/hcservices/