IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 19.8.2008 Coram: The Honourable Mr.Justice A.C.ARUMUGAPERUMAL ADITYAN A.S.No 439 of 1998 Albert Jayasingh rep by Power Agent Pichaiammal Rajakumari ..Appellant/defendant -vs- Marie Louise .. Respondent/Plaintiff This appeal is filed under Section 96 of CPC , against the decree and Judgment dated 16.12.1997 made in O.S.No.18 of 1994 on the file of the Court of the Additional District Judge, Pondicherry at Karaikal. For appellant : Mr.U.Karunakaran For G.M.Mani Associates For respondent : Mr.S.V.Jayaraman Senior Counsel for Mr.T.Susindran JUDGMENT This appeal has been directed against the decree and judgment in O.S.No.18 of 1994 on the file of the Additional District Judge, Pondicherry at Karaikal. The defendant, who has lost his case before the trial Court, has preferred this appeal. 2. The short facts of the case of the plaintiff in the plaint runs as follows:The plaintiff Maria Louise is the absolute owner of the plaint schedule property viz., Manaikat Property of an extent of OH 00A 67 Ca comprised in Ward -F, Block -36, T.S.No.96, R.S.No.77/1 part situated at Marunthakidangu Streeet, Karaikal Town. The plaintiff - Maria Louise has filed the suit for declaration of her title against the defendant by name Albert Jayasingh . The plaint schedule property and the adjacent property were originally belonged to one Durairaj, S/o.David of Trichirapalli and he sold the said properties in favour of Paul Lourdesmaria @ Palaniammal, D/o.Samia Pillai, W/o.Paul Ignace, Karaikal for valuable sale consideration on 29.05.1962. Paul Lourdesmarie is the mother of the plaintiff, who had executed the settlement deed dated 5.9.1992 in respect of the plaint schedule property in favour of the plaintiff, who became the absolute owner of the suit property from the date of the above said settlement https://hcservices.ecourts.gov.in/hcservices/ deed dated 5.9.1992. The plaintiff has sold the rear portion of the northern side of the suit property to an extent of 78Ca in T.S.No.95 to one Indirani and retained the suit property for her own purpose. After purchase of the suit property, the plaintiff's mother had effected mutation in her favour in the revenue records and till date, the patta for the suit property stands only in the name of the plaintiff's mother. At the time of purchase of the suit property, there was a hut in the suit property, which was maintained by the plaintiff's mother. The house tax was assessed only in the name of the plaintiff's mother. The defendant's father Sri.Vallabasass Arokianathan came into occupation of the suit property by getting prior permission from the plaintiff's mother in or about the year 1966 and lived in the hut with his family, but the hut belonged to the plaintiff's mother. The plaintiff's mother was also paying the house tax for the suit property. The defendant's father was only a lessee in the suit property. The hut was repaired by the defendant's father with a prior permission of the plaintiff's mother. At the time, when the defendant's father was put in possession of the suit property, the plaintiff's mother imposed a condition that he should vacate and surrender vacant possession of the suit property as and when required by the plaintiff's mother. The hut in the suit property fell down in the year 1986 due to heavy rain. Later the defendant and his father constructed a thatched house with the permission of the plaintiff's mother. At the time of new assessment of the houses for tax purpose by Karaikal Municipality, the defendant made a representation that he only constructed the hut and therefore, he influenced the municipal people and got his name being entered in the tax register. As the land patta stood in the name of the plaintiff's mother and as her old hut has completely fallen down, she did not insist for change of the defendant's name in the house tax register. As far as the suit property is concerned, it is the absolute property of the plaintiff's mother and no one can have a better title than that of the plaintiff's mother. Inspite of several demands were made by the plaintiff to the defendant for vacating and surrendering vacant possession of the suit property, the defendant has not vacated the suit property, but wanted time to vacate and surrender vacant possession to find out a new accommodation. In July, 1993, the defendant refused to vacate the suit property and hand over possession of the suit property to the plaintiff. Therefore, on 20.07.1993, the plaintiff caused the suit notice to the defendant terminating the tenancy and asked him to surrender vacant possession of the suit property on 1.8.1993. The defendant in his reply dated 11.8.1993 has denied the title of the plaintiff as well as her mother's in respect of the plaint schedule property. The suit property is the self-acquired property of the plaintiff's mother and she has donated the same in favour of the plaintiff. The defendant has claimed in his reply notice that he had constructed the house worth Rs.1 lakh, but it was only a thatched hut worth less than Rs.10,000/-. Hence, the suit for declaration of title and for recovery of possession. 3.The defendant in his written statement would contend that the plaintiff is not the absolute owner of the suit property nor her https://hcservices.ecourts.gov.in/hcservices/ mother. Nor her alleged vendor of the suit property viz. Durairaj S/o.David of Trichy has owned the suit property. The alleged sale deed dated 29.05.1962 does not create any transfer of interest in favour of the plaintiff's mother. The plaintiff is not entitled to claim any right in respect of the suit property through her mother or through her vendor. The settlement effected in favour of the plaintiff by his mother is not a valid settlement because the settlor herself had no right or title in respect of the suit property to convey the same in favour of the plaintiff. At the relevant point of time, the plaintiff's mother was suffering from paralytic attack in both her limbs. She has no mental capacity to decide to whom the property shall go. The plaintiff has to prove that the plaintiff's mother had sound deposing state of mind at the time when she executed the deed of settlement. Till 1980, patta was not changed for the suit property. Till 1980, the suit property was treated as Poramboku land. Only on production of valid and acceptable document in 1980, the pattas were given to the properties in Karaikal town. While the plaintiff was in possession of the property atleast from 1950, any change of patta without any enquiry or notice to this defendant or his father who are in possession of the property for more than 40 years and without basing on any document, the claim of the plaintiff is of no use for deciding the title and the revenue record as such without notice to the defendant has to be ignored for deciding the declaration of title. At no point of time the house on the suit property was assessed in the name of the plaintiff. It was assessed in the name of the defendant's father. The defendant's father was in occupation of the property from 1950 onwards and in his own volition had exercised all the rights of ownership. Till 1980, the suit property was considered as a poramboke land and no tax was collected from the said land. The entire house worth Rs.1,00,000/- was constructed by the defendant's father and this defendant. No mutation was effected as alleged in the plaint in favour of the plaintiff. For the notice received from the plaintiff, the defendant has sent a suitable reply. The property was originally held by one Vallabadass Arokianathan and on his death, all his legal heirs have to be impleaded, then only the suit will be maintainable. The gift deed executed by the plaintiff's mother in favour of the plaintiff itself is not valid. The Court fee paid on the plaint is not correct. There is no valid cause of action for the plaintiff to file the suit. As per the municipality records, the suit property belongs to one Paul Pecroni. The suit is bad for non-joinder of necessary parties. Hence, the suit is liable to be dismissed with costs. 4.On the above pleadings, the learned trial Judge has framed seven issues for trial. P.W.1 to P.W.4 were examined and Ex.A.1 to Ex.A.16 were marked on the side of the plaintiff. D.W.1 was examined and Ex.B.1 to Ex.B.4 were marked. Apart from those documents Ex.X.1 to Ex.X.3 – revenue survey records were also produced. 5.After going through the evidence both oral and documentary the learned trial Judge/ Additional District Judge, Pondicherry at Karaikal, had decreed the suit as prayed for with costs. Aggrieved https://hcservices.ecourts.gov.in/hcservices/ by the findings of the learned trial Judge, defendant has preferred this appeal. 6. Heard Mr.U.Karunakaran, the learned counsel appearing for the appellant and Mr.S.V.Jayaraman, the learned Senior counsel appearing for the respondent and considered their respective submissions. 7. Now the point for determination in this appeal are 1. Whether the plaintiff has identified the plaint schedule property? 2. Whether the Judgment and decree in O.S.No.18 of 1994 on the file of the Court of Additional District Judge, Pondicherry at Karaikal is liable to be set aside for the reasons stated in the memorandum of appeal? 8.Point No.1: When the appeal was taken up for hearing, an objection was raised by the appellant as to the effect that the property said to have been settled by the mother of the plaintiff under Ex A6 is not the property scheduled to the plaint. The property scheduled to the plaint in O.S.No.18 of 1994 is 0040-67Ca in Ward-F,Block-36, T.S.No.96 R.S.77/1 part situated by north of Marunthakidangu Street, Karaikal Town, south and west of Manaikat Property of Indirani and east of Manaikat property bearing T.S.No.97. According to the plaintiff, the plaint schedule property was purchased by the grand father of the plaintiff under Ex A11(Ex A12 is the original sale deed) wherein only four boundaries for the property purchased under Ex A11( the Original sale deed Ex A12) has been given as north of Gunpowder Depot Street, south of the plot of Saint Xavier Chapal, west of the plot consisting of the house of Jeganathan and East of the plot comprising the house of Amandage. Under Ex A6, settlement deed, the house plot and two thatched houses therein measuring 1 Are and 43 Centiare were conveyed by the mother of the plaintiff in favour of the plaintiff. Since there was no material available to correlate that the property scheduled to Ex A11(The original Ex A12 sale deed) and the property conveyed under Ex A6 in favour of the plaintiff are one and the same, this Court thought fit to identify the plaint schedule property with the help of the Taluk Surveyor. The learned trial Judge was directed to appoint the Taluk Surveyor to go to the plaint schedule property and to identify the same with four boundaries and measurements given under Ex A6 and Ex A11 (Original Ex A12) and to file his report. Now the Taluk Surveyor has filed his report and plan. The Surveyor's report along with the plan filed as per the directions of this Court is given as Ex X4 . In Ex X4, the Surveyor at page 4 has referred to Ex A6, Settlement deed dated 5.9.1992 executed by the mother of the plaintiff in favour of the plaintiff. The Taluk Surveyor has identified the plaint schedule property as situate in T.S.NO.96 having an extent of 1 Are 43 Centiare. The four boundaries for the plaint schedule property as earmarked by the Taluk Surveyor are as follows: East – T.S.No.94 West- T.S.No.97 https://hcservices.ecourts.gov.in/hcservices/ North -T.S.No.95 South-T.S.No.98 9. The learned Senior counsel appearing for the respondent would contend that the plaint schedule property was originally purchased by Mariadass @ Igyas Paul , the paternal grand father of the plaintiff under Ex A11, who had a son and daughter. The son of Mariadass @ Igyas Paul had married the plaintiff's mother and one Durairaj is the grand son of the said Mariadass @ Igyas Paul through his daughter. The said Durairaj had executed Ex A5 in favour of the plaintiff's mother Mrs.Paul Lourdesmaria @ Palaniammal, transferring his entire right in the plaint schedule property in favour of the plaintiff's mother under Ex A5 which is dated 29.5.1962. Thereafter, the plaintiff's mother had executed Ex A6 Settlement deed dated 5.9.1992 in favour of the plaintiff settling her entire right in the plaint schedule property in favour of the plaintiff. The Taluk Surveyor has identified the plaint schedule property in T.S.No.96 in Ward-E, Block- 36 within the boundaries as referred to by me in the earlier paragraph. For T.S.No.91, the Taluk Surveyor has also given measurements as follows: East west on the northern side 8.1 metres East West on the southern side-8.8 metres North south on the eastern side-7.6 metres North south on the western side -8.3 metres 10.As against the claim of the plaintiff, the defendant would contend that he is in possession of the plaint schedule property from 1950 onwards. According to the French Law, the law of limitation for prescribing title by way of adverse possession is 30 years since the defendant claims adverse possession, it goes without saying that he is not the owner of the plaint schedule property. He would admit that even though the plaintiff has title, she had lost the same, since the defendant has prescribed title by way of his long, continuous and uninterrupted possession, adverse to the interest of the plaintiff from 1950. Having taken a plea of adverse possession, the burden is heavily on the defendant to prove that he has prescribed title to the plaint schedule property by way of adverse possession . On the side of the defendant, only four documents viz., Ex B1 to Ex B4 were marked. Ex B1 to Ex B3 are the voters' card relating to the year 1979, 1993, 1975 respectively and Ex B4 is the family identity Card for the year 1978. The suit was filed in the year 1994(O.S.No.18/1994)itself. Under such circumstances, there is absolutely no material placed before the trial Court to show that the defendant has prescribed title by way of adverse possession as per the provisions of French Law. The learned trial Judge, after elaborate discussion and taking into consideration, the relevant document like Ex A6,Ex A5 and Ex A11 has come to a correct conclusion that the plaintiff is entitled to the relief as prayed for and accordingly decreed the suit. 11. Since the property scheduled to the plaint has also been identified by the Taluk Surveyor under Ex X4, there may not be any difficulty for the plaintiff to take delivery of possession also from https://hcservices.ecourts.gov.in/hcservices/ the defendant. Even though, a vague attempt was made by the defendant , to claim that the superstructure over the plaint schedule property was put up by the defendant's father, there is absolutely no evidence let in for the same. According to the plaintiff, there was only one hut leased out by the plaintiff's mother to the defendant's father and the plaintiff has also asked for the relief of vacant possession of the suit property after removing the superstructure thereon. Under such circumstances, I hold on point No.1 that as per Ex X4, the plaint schedule property has been identified by the Taluk Surveyor. Point No.1 is answered accordingly. 12. Point No.2: In view of my findings in the earlier paragraph, I hold on point No.2 that the decree and Judgment in O.S.No.18 of 1994 on the file of the Court Additional District Judge, Pondicherry at Karaikal need not be set aside for the reasons stated in the memorandum of appeal. 13. In fine, the appeal is dismissed confirming the decree and Judgment in O.S.No.18 of 1994 on the file of the Court of Additional District Judge, Pondicherry at Karaikal. No costs. Time to vacate and surrender the vacant possession is one month. Ex X4 shall form part of the decree. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sg Court Exhibit: Ex X4 – Surveyor's report and plan marked by this Court in this appeal viz., A.S.No.439 of 1998 (Xerox copy attached) To 1.The Additional District Judge, Pondicherry at Karaikal 2. The Record Keeper, V.R.Section, High Court, Madras 1 cc To Mr.T.Susindran, Advocate, SR.46547. 1 cc To M/s.G.M.Mani Associates, Advocate, SR.46220. A.S.NO.439 OF 1998 NM(CO) RVL 04.09.2008 https://hcservices.ecourts.gov.in/hcservices/