IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 17 -06-2011 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.No.325 of 1998 Sivakumaran : Appellant/Plaintiff vs. Subramani Gounder : Respondent/Defendant Prayer: This second appeal is filed under section 100 of the Civil Procedure Code, against the judgment and decree, dated 17.02.1997 made in A.S.No.150 of 1996, on the file of the District Judge, Nagai-Quaide Milleth District, Nagapattinam, confirming the judgment and decree, dated 17.10.1995 made in O.S.No.84 of 1988, on the file of the District Munsif, Thiruthuraipoondi. For Appellant : Mr.T.P.Manoharan For Respondent : Mr.S.Viswanathan for Mrs.K.M.Nalinishree J U D G M E N T The plaintiff, who lost in both the Courts below is the appellant. 2.The plaintiff/appellant filed a suit for declaration that the suit 2nd item of the property, having an extent of 40 cents belongs to the plaintiff's joint family and for recovery of possession and for mesne profit. 3.The case of the plaintiff was that originally the plaintiff's paternal great grand-father Pachaiyappa Gounder purchased an extent of 1 acre in old S.No.109/B3 and he had three sons by name Ammaiyappa Gounder, Veerappa Gounder, Chinnathambi Gounder and Ammaiyappa Gounder allotted 7 Kuzhi on the western extreme, 153 Kuzhies on the eastern extreme and Ramaiya Gounder was the son of Ammaiyappa Gounder and the plaintiff is the son of Ramaiya Gounder and therefore, as per the earlier document of the year 1920, the plaintiff became entitled to 160 Kuzhies in old S.No.109/B3. It is further stated that thereafter, the plaintiff's father Ramaiya Gounder purchased one acre from Dharmaraja Iyer and that property was situate east of the property in the possession of the plaintiff's father and therefore, the plaintiff https://hcservices.ecourts.gov.in/hcservices/ became entitled to 1 acre 51 cents in both the lands and the defendant purchased the property, which is situate east of the plaintiff's property purchased from Dharmaraja Iyer and the defendant encroached upon 40 cents in the plaintiff's property and also obtained UDR patta in his name and as the defendant has no title to the suit property to an extent of 40 cents, which is the 2nd item of the suit 2nd schedule, the suit was filed for declaration of plaintiff's title to the encroached portion of 40 cents by the defendant and for recovery of possession. 4.The defendant contended that the plaintiff never had any title over 40 cents, which was described as 2nd item of the suit property and no proof was filed by the plaintiff that old S.No.109/B3, which was purchased by Pachaiyappa Gounder under document, dated 21.07.1920 became S.No.80/7 and in that one acre of the property, the plaintiff and his predecessor in title were given 51 cents and the plaintiff has purchased one acre of land from Dharmaraja Iyer and the plaintiff is found to be in possession of 1.10 acres in S.No.80/7 and in the absence of any title, in respect of 1.51 acres, which was described as 1st item of the suit property, the plaintiff is not entitled to get any declaration for the 2nd item. He further submitted that in the notice issued by the plaintiff, he has specifically stated that one acre of land purchased by Pachaiyappa Gounder, the plaintiff's predecessor in title, was equally divided by all his three sons and considering the equal division, the plaintiff's vendor must have got 33-1/3 cents and in the absence of any division among the sons of Pachaiyappa Gounder, the plaintiff cannot claim title in respect of 40 cents, which is in the possession of the defendant for more than 20 years. 5.It is his further case that the defendant purchased an extent of 1.89 acres from Dharmaraja Iyer and that property is situate east of the property, which was sold by Dharmaraja Iyer to the plaintiff and the sale deed was dated 24.05.1962 and ever since the date of sale, the defendant is in enjoyment of 1.50 acres of property, which is situate east of the plaintiff's property and he also purchased further extent of 42 cents from the western owner Vedhaya Gounder under document, dated 4.10.1966 and therefore, he is enjoying the property which he has purchased and the properties were enjoyed within the specific boundaries and taking into consideration of the possession of the defendant, patta was granted in favour of the defendant and therefore, the plaintiff is not entitled to the relief as prayed for. 6.The defendant also claimed adverse possession in respect of the suit property. The trial Court on the basis of the oral and documentary evidence held that the plaintiff has not proved title to the suit property and without proving the same, the plaintiff is not entitled to declaratory relief and further held that the defendant cannot plead adverse possession as he claimed to be the owner of the property. Therefore, the suit was dismissed and the appeal filed by the plaintiff https://hcservices.ecourts.gov.in/hcservices/ was also dismissed by the Lower Appellate Court confirmed the findings of the trial Court that the plaintiff is not entitled to the suit property and the Lower Appellate Court also held that the defendant has also perfected title by adverse possession. Hence, this second appeal. 7.The following substantial question of law was framed at the time of admission in this second appeal:- Whether the claims of the respondent that he is the owner of the item-2 of the suit property on the one hand and also that he has perfected his title over the same by adverse possession on the other, are not mutually destructive and consequently, are both the said claims are not liable to be rejected? 8.Mr.T.P.Manoharan, the learned counsel appearing for the appellant/plaintiff submitted that both the Courts below erred in holding that the defendant/respondent perfected title by adverse possession, without appreciating the law of adverse possession and the judgment of the Hon'ble Supreme Court and when the defendant/respondent is claiming title to the property, he cannot plead adverse possession in respect of the same property and without stating that he is enjoying the property belonging to another person and his enjoyment was to the knowledge of the real owner, the defendant cannot claim adverse possession and in this case, it is not the case of the defendant that he was enjoying the property to the knowledge of the plaintiff and he was aware that the plaintiff is having title over the property. 9.On the other hand, the specific case of the respondent/defendant was that he is the owner of the suit 2nd item and he is in enjoyment of the property as his own and therefore, the claim of ownership and the claim of adverse possession are mutually contradictory and therefore, the judgments of the Courts below are liable to be set aside. He also relied upon the following judgments reported in 2009(5)CTC 558 (SC) in the case of S.Ganesan vsi. Bharathirajan and in (2004)10 SCC 779 in the case of Karnataka Board of Wakf vs. Government of India and others, AIR(38) 1951 SC 177 (FB), in the case of Firm Srinivas Ram Kumar vs. Mahabir Prasad and others, in support of his contention. 10.Mr.S.Viswanathan, the learned counsel appearing for respondent submitted that the appellant/plaintiff filed a suit for declaration in respect of 2nd item of property and admittedly, the 2nd item is part of the 1st item and without asking a declaration in respect of the entire 1st item of the property, the defendant cannot claim declaration in respect of the 2nd item alone and both the Courts below have concurrently held on the basis of the documents that the plaintiff has no title to the 2nd item of the suit property and that finding was based on documentary and oral evidence and that has become final and without challenging the said finding, the concurrent findings of the Courts https://hcservices.ecourts.gov.in/hcservices/ below, the plaintiff is not entitled to the suit property and the second appeal is not maintainable, even assuming that the defendant/respondent cannot plead adverse possession. 11.Heard both sides. 12.In this second appeal, the plaintiff claimed declaration in respect of 2nd item of the property and it is admitted by the plaintiff/respondent that the 2nd item is part of the 1st item of property. It is the specific case of the plaintiff/appellant that one Pachaiyappa Gounder purchased 1 acre in old S.No.109/B3 under a document, dated 21.07.1920 (Ex.A1) and he had three sons, namely Ammaiyappa Gounder, Veerappa Gounder, and Chinnathambi Gounder and Ammaiyappa Gounder is the grand-father of the plaintiff and he was enjoying 7 Kuzhies on the western side, 153 Kuzhies on the eastern side and he was in enjoyment of 160 Kuzhies, which is equivalent to 51 cents and east of that property was the property belonged to Dharmaraja Iyer and the plaintiff's father Ramaiya Gounder purchased one acre of land from Dharmaraja Iyer, under a registered sale deed, dated 27.10.1961 (Ex.A2) and therefore, the plaintiff's father became entitled to 1.51 acres under both sale deeds and the defendant encroached upon 40 cents of property taking advantage of the UDR Patta given in his favour and therefore, 40 cents which is in the possession of the defendant belongs to the plaintiff, the suit was filed for declaration and recovery of possession. 13.In this case, an Advocate Commissioner was appointed and he also surveyed the property and according to the Commissioner's report, the plaintiff is having in his possession of 1.10 acres and the defendant is in possession of 2.90 acres. 14.It was contended by Mr.T.P.Manoharan, the learned counsel appearing for the appellant that both the Courts below have concurrently held that the defendant was entitled to 2.29 acres under Exs.B1 and B2 and he was found to be in possession of 2.90 acres and the defendant is having 60 cents excess in his possession and that would also prove that he has encroached upon the plaintiff's property and therefore, both the Courts below erred in holding that the plaintiff has not proved his title to the suit property. 15.In this case, before filing of the suit, Ex.A16 notice was issued by the plaintiff and in that notice, he has specifically stated that Pachaiyappa Gounder purchased one acre of property in S.No.109/B3 and that was equally divided by his three sons. Therefore, the plaintiff grand father Annaiyappa Gounder, as per Ex.A6 must have got only 33-1/3 cents in S.No.109/B3. However, in the plaint, it was stated that the plaintiff was in possession of 51 cents in respect of S.No.109/B3 and the plaintiff's father purchased one acre from Dharmaraja Iyer, which is situate east of that 51 cents and therefore, https://hcservices.ecourts.gov.in/hcservices/ the plaintiff is entitled to 1.51 acres of land. Admittedly, the plaintiff has not examined any of his paternal uncle to prove that in the property purchased by the Pachaiyappa Gounder, the plaintiff's father, Ammaiyappa Gounder was given having 51 cents and others were given lesser extent. In Ex.A6, the plaintiff has stated that one acre of land purchased by Pachaiyappa Gounder was equally divided by the plaintiff's grand-father and his brothers and therefore, even according to the plaintiff, his grand-father, Ammaiyappa Gounder must have got 33-1/3 cents and he purchased 1 acre in S.No.80/7 and he was found to be in possession of 1.10 acres in Survey No.8/13 and therefore, both the Courts below have rightly held that the plaintiff has not proved title to the suit property. 16.Further, before the trial Court, no evidence was let in by the plaintiff to correlate the S.No.109/B3 to S.No.80/7. Only in the 1st Appeal, the application was filed to receive the document to prove that S.No.109/B3 had become S.No.80/7 and that application was dismissed by the Lower Appellate Court. Therefore, as on date there was no proof adduced by the appellant/plaintiff that the property purchased by Pachaiyappa Gounder in S.No.109/B3 is correlated to S.No.80/7 and by reason of the purchase under Ex.A2, the plaintiff became entitled to 1.51 acres in S.No.80/7. Admittedly, under Ex.A1, 1 acre of land was purchased by Pachaiyappa Gounder in S.No.109/B3 and in the absence of any correlation relating to that property of S.No.80/7, it cannot be stated that the plaintiff is entitled to 1.51 acres in S.No.80/7. 17.Further, as stated supra, as per Ex.A6 the plaintiff has admitted that one acre of land in old S.No.109/B3 was equally divided among three sons of Pachaiyappa Gounder and in that case, the plaintiff would be entitled to 33-1/3 cents in S.No.109/B3 and 1 acre in S.No.80/7. Even assuming that S.No.109/B3 is correlated to S.No.80/7, in the absence of any declaration in respect of the entire extent of first item of property, the plaintiff is not entitled to claim declaration of 2nd item of the property, which is admittedly part of the first item. Further, the Commissioner has also found that the property in the possession of the defendant/respondent is on the lower level and the property in the possession of the plaintiff/appellant is on the higher level and therefore, both the Courts below have rightly held that the plaintiff or his predecessor in title would not be in possession of the 2nd item of the property at any point time. Therefore, considering all these aspects, both the Courts below rightly held that in the absence of any title to the first item of property, the plaintiff cannot maintain a suit for declaration that he is entitled to a declaration in respect of 2nd item of the property and for recovery of possession. Therefore, the plaintiff has no title to the suit property and hence, he is not entitled to declaration and when that finding was not challenged, the second appeal is not maintainable. 18.In the second appeal, the plaintiff has raised the substantial https://hcservices.ecourts.gov.in/hcservices/ question of law that the defendant cannot plea adverse possession, having pleaded that he is the owner of the 2nd item of the property. It is true that a person, who claims to be the owner of the property, cannot plead adverse possession in respect of the same property. But as stated supra, the suit filed by the plaintiff was dismissed not on the ground that the defendant has perfected title to the property by adverse possession, but on the ground that the plaintiff has not proved his title to the suit property. Therefore, though the substantial questions of law is answered in favour of the appellant and the defendant cannot plea adverse possession in respect of the suit property, he is found to be in possession of the property and having regard to the concurrent findings that the plaintiff has not proved his title to the suit property, the plaintiff is not entitled to any declaration. 19.In the result, the judgments and decrees of the Courts below are confirmed and the second appeal is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar er To, 01.The District Munsif, Thiruthuraipoondi. 02.The Principal District Judge, Nagapattinam. 3.The Section Officer, VR Section, High Court,Madras. +1cc to Mr.T.P.Manoharan, Advocate Sr 34918 +1cc to Mrs.K.M.Nalinishree, Advocate Sr 35041 SP(CO) km/7.9. S.A.No.325 of 1998 https://hcservices.ecourts.gov.in/hcservices/