IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:25.04.2011 CORAM: THE HON'BLE MR.JUSTICE T.MATHIVANAN S.A.No.1297 of 2002 Sarangapani .. Appellant / Appellant/ Defendant Vs. 1.Kalidoss 2.Narayanan .. Respondents/Respondents/Plaintiff Prayer : Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree dated 26.02.2002 and made in A.S.No.87 of 2001, on the file of the learned III Additional District Judge at Pondicherry, modifying the Judgment and Decree dated 31.08.2001 and made in O.S.No.142 of 1996, on the file of the learned III Additional District Munsif, Pondicherry. For Appellant : Mr.V.Raghavachari For Respondents : Mr.V.Rajanarayanan ***** J U D G M E N T Challenging the correctness of the Judgment and Decree dated 26.02.2002 and made in A.S.No.87 of 2001, on the file of the learned III Additional District Judge at Pondicherry, modifying the Judgment and Decree dated 31.08.2001 and made in O.S.No.142 of 1996, on the file of the learned III Additional District Munsif, Pondicherry, the defendant has preferred this second appeal. 2. The facts, which giving rise to the memorandum of second appeal, are recapitulated as under: The original legal status of the parties to the suit in the trial court need not be changed and may herein after be referred as it is in the suit. https://hcservices.ecourts.gov.in/hcservices/ The suit in O.S.No.142 of 1996 has been filed by the plaintiffs, who are the respondents herein as against the defendant, who is the appellant herein for the following reliefs: 1. declaring that the plaintiffs are the absolute owners of the suit property, 2. directing the defendant to vacate and hand over the vacant possession of the suit property, 3. passing a decree for a sum of Rs.930/- towards arrears of rent, 3. The plaintiffs are the sons of one Kannappa Nayakar. He had demised long before. The land measuring 40.00 Ares, comprised in Cadastre No.30 and Re-survey No.134/7, situated at Keezhagraharam Village, is originally belonged to the plaintiffs' maternal grandfather Gopalu Gounder. The said Gopalu Gounder had executed a registered Will on 30.09.1953 bequeathing the said property in favour of the plaintiffs' father Kannappa Nayakar and mother Perianayagi @ Mangavarathammal. Both the father and mother of the plaintiffs were in possession and enjoyment of the said property till their death. The said Perianayagi @ Mangavarathammal had pre- deceased her husband. 4. At the end of 1970, the plaintiffs' younger maternal grandfather's daughters Arundavam and Vimala had claimed title over the family property including the suit property. Hence, the plaintiffs' father and mother had filed a suit in O.S.No.15 of 1971 for the relief of declaration of their title over the property before the learned Principal Subordinate Judge at Pondicherry. That suit was decreed on 30.12.1972. 5. Impugning the Judgment and decree the said Arundavam and Vimala had filed an appeal in A.S.No.69 of 1973 on the file of the learned Principal District Judge, Pondicherry. The said appeal was dismissed on 23.04.1975. 6. Being aggrieved by the dismissal of the appeal, the said Arundavam and Vimala had filed a second appeal before this Court in S.A.No.1233 of 1976. The said second appeal was also dismissed on 14.09.1979 and as such, the Judgment and Decree dated 30.12.1972 and made in O.S.No.15 of 1971 in favour of the father and mother of the plaintiffs had become final. 7. Out of the extent of 40 Ares, a portion was leased out to the defendant for a monthly rent of Rs.10/- by the plaintiffs; father Kannappa Naicker. The defendant is residing in the suit property in the capacity of a lessee. He had been paying rent to https://hcservices.ecourts.gov.in/hcservices/ the plaintiffs' father till his death. After his death, the lease was attorned in favour of the plaintiffs and thereafter the defendant had become irregular in paying the rents. Actually, he had committed wilful default in paying the rent from August 1990. Hence, the plaintiffs were constrained to issue a legal notice on 27.08.1992 and the defendant was also replied. Thereafter, the lease was duly terminated. Since, the defenant had denied the title of the plaintiffs over the suit property, the plaintiffs were constrained to file the suit for declaration and recovery of possession etc., 8. The defendant had contended in his written statement that the plaintiffs maternal grandfather Gopalu Gounder never possessed and enjoyed the said property till his death and that he never executed a registered Will on 30.09.1953 bequeathing the said property to the plaintiffs' father Kannappa Nayakar and mother Perianayagi @ Mangavarathammal. Neither the plaintiffs' father Kannappa Nayakar nor his mother Perianayagi @ Mangavarathammal had enjoyed the said property at any point of time. The defendant was not a party to the litigation as alleged by the plaintiffs and that the Judgment and decree obtained by the plaintiffs or their father and mother as against the said Arundavam and Vimala would not bind on him. It is the basic principles of law that any judgment and decree passed as against another person will bind only that person and will be of no use as against a third party to that suit. The plaintiffs do not reside and occupy the remaining extent of the property in the said survey number. 9. The defendant is in possession and enjoyment of an extent of 57 feet east to west and 110 feet south to north over which he has got a house with lite roofing, with electricity and water connections. He is in possession and enjoyment of this extent of the property from the time of his father i.e. for more than sixty years openly, peacefully and uninterruptedly. Therefore, the allegations that out of 40 Ares a portion was leased out to the defendant on a monthly rent of Rs.10/- by the plaintiffs' father Kannappa Nayakar is totally false. The defendant never reside in the capacity of a lessee and never paid rent to the plaintiffs' father till his death and committed any irregularities in payment of rent as alleged by the plaintiffs and as such he is not liable to pay any arrears of rent from August 1990 as claimed by the plaintiffs. 10. The defendant has been paying the house tax from the time when the house tax was imposed and he has also got electricity connection in the year 1969 in his own name and he has also been paying the electricity charges till today. Since the defendant and https://hcservices.ecourts.gov.in/hcservices/ his ancestors had/has been in possession and enjoyment of the extent of the land measuring 57 feet east to west and 110 feet south to north for more than sixty years, they had/have thus prescribed title by adverse possession. After the receipt of the reply notice from the defendant, the plaintiffs were kept quiet for more than four years and thereafter they have filed the suit. 11. Based on the pleadings of the parties, the trial Court had formulated the following five issues for the better adjudication of the suit: 1. Is it true that the suit is under valued and liable to be dismissed? 2. Is it true that there is no cause of action for the suit? 3. Is it true that the defendant prescribed title of the suit property by adverse possession? 4. Whether the plaintiff is entitled to a judgment and decree as prayed for? 5.To what relief the parties are entitled? In order to establish their respective cases, the first plaintiff was examined as PW1. During the course of his examination Exs.A1 to A14 were marked. On the other hand, the defendant was examined as DW1 and one Pandurangan, who is the resident of Keela Agraharam was examined as DW2. During the course of their examination Exs.B1 to B9 were marked. Besides this one S.Mahendran, Advocate Commissioner was examined as C.W.1 and during the course of his examination Exs.C1 to C4 were marked. 12. On appreciation of the oral and documentary evidences and on considering the related facts and circumstances, the trial Court had found that mere possession for howsoever length of time does not result in converting the permissive possession to adverse possession and ultimately concluded that the plaintiffs are the absolute owners of the suit property and that the defendant is the permissive occupier and hence the defendant was directed to be vacated from the premises. With this conclusion, the trial Court had decreed the suit declaring that the plaintiffs are the absolute owners of the property and directing the defendant to vacate and hand over the vacant possession of the property after removing the superstructure raised by him and the defendant was also directed to pay Rs.930/- towards arrears of rent to the plaintiffs. 13. Aggrieved by the trial court's judgment, the defendant has preferred the first appeal in A.S.No87 of 2001, on the file of the learned III Additional District Judge, Pondicherry. https://hcservices.ecourts.gov.in/hcservices/ 14. When the appeal came up for hearing, the first appellate Court has carved out the following points for consideration. 1. Whether the plaintiffs are the absolute owners of the suit property? 2. There is no landlord and tenant relationship between the plaintiffs and the defendant or the defendant has been in possession and enjoyment of the suit property under the parents? 3. Whether there is any infirmity in the judgment and decree of the trial court? 15. On evaluating the evidences and on considering the facts, which are in issue in this case, the first appellate court has found that there is no evidence to show that the defendant is in occupation of 57 feet from east to west and 110 feet from south to north, that it is crystal clear that the defendant is in occupation of a smaller portion within cadestre No.30. Further, the first appellate court has also found that in the presence of clinching documentary evidence on the side of the plaintiffs and in the absence of the documents showing exercise of ownership over the suit property on the part of the defendant, the oral evidence adduced by the defendant by examining himself as DW1 along with DW2 is of no significance. 16. Further, the first appellate court has also found that the plaintiffs have proved that they are the absolute owners of the suit property, but they have not proved the landlord and tenant relationship between them and the defendant and therefore the limited portion of the trial court's judgment and decree has been set aside. Ultimately, the first appeal filed by the defendant was partly allowed, after confirming the remaining part of the judgment and decree of the trial court in respect of the declaration and recovery of possession. The defendant was granted six months time for vacating the suit property. 17. Having been lost his case before the trial court as well as before the first appellate court, the defendant stands before this Court with this second appeal. 18. The second appeal has been admitted on the following substantial questions of law: 1. Whether the lower appellate court is right in drawing a presumption as regards the Will under Ex.A1, as an ancient document under Section 90 of the Evidence Act, when the original had not been produced and proved? https://hcservices.ecourts.gov.in/hcservices/ 2. Whether the lower appellate court is right in holding that notarised Will establishes the title of the testator? 3. Whether the Courts below are right in misplacing the burden of proof on the appellants? 4. When the appellant has established his possession and enjoyment for over five decades, whether the Courts below are right in not applying the principles laid down by the Division Bench of the Madras High Court in 1993 (2) MLJ 598? 19. The learned counsel appearing for the appellant/defendant has submitted that the plaintiffs had not filed any documents to prove their title and that the Will was not a document of title and even otherwise it had not been established that the testator had rights in and over the property. 20. The learned counsel has also added that Ex.A1 did not enjoy the benefit of Section 90 of the Indian Evidence Act and its genuineness could not be presumed merely it being an ancient document. He would submit further that no presumption could be drawn as regards the title merely because the document was a notarised one. He has also submitted that the plaintiff had not established the document under Exs.A1 and A13 by producing the originals of the same and he had also not given any acceptable explanation for the non-production of originals. 21. The learned counsel would also submit that the first appellate court ought to have considered Exs.B1 to B39, which established the continuous enjoyment of the property by the appellant for over five decades. He has also maintained that the possession of the appellant/defendant over the property in dispute had been with an intention of enjoying the same as the owner of the property and as such it would confer right on the occupant. 22. With regard to Exs.A1, A2, A3 as well as A13, the learned counsel would submit that the burden to prove these documents was virtually depending upon the plaintiffs to dispel of the suspicious circumstances surrounding those documents. 23. The learned counsel for the appellant/defendant has also made reference to Sections 101 and 103 of the Indian Evidence Act, 1872 and in support of his contention he has also placed reliance https://hcservices.ecourts.gov.in/hcservices/ upon the decision in Hindu Community in General and Citizens of Gobichettipalayam Senniappa Chettiar v. The Commissioner, Hindu, Religious and Charitable Endowment, Madras and others, reported in 2005 (3) CTC 151. 24. Further, the learned counsel has also submitted that when the plaintiffs were unable to establish their title over the suit property, they were not entitled to the relief of declaration. 25. Exs.A1 to A3 have been produced by the plaintiffs to show that originally Gopalu Gounder and others were the owners of Cadastre No.30 and thereafter Gopalu Gounder became the absolute owner of the property in Cadastre No.30 and subsequently he bequeathed the property in Cadastre No.30 in the year 1953 in favour of his daughter Perianayagi @ Mangavarathammal and his son-in-law Kannappa Nayakar, who are the parents of the plaintiffs. Exs.A1 to A3 are all ancient documents. But, not the originals. In this connection, as already discussed, the learned counsel for the appellant/defendant would submit that these documents could not be admitted into evidence and that the benefit under Section 90 of the Indian Evidence Act could not be derived for getting these documents admitted into evidence. 26. Section 90 of the Indian Evidence Act, 1872 reads as follows: Section 90. Presumption as to documents thirty years old.-Where any document, purporting or proved to be thirty years old is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the hand writing of any particular person, is in that person's hand writing, and in the case of document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. The principle and scope of Section 90 of the Indian Evidence Act is that this section does away with the strict rules of proof which are enforced in the case of private documents, by giving rise to a presumption of genuineness, with regard to documents reaching a certain age. If private documents not less than thirty years old are produced from proper custody, and are on their face free from suspicion, the court may presume that they have been signed or written by the person whose signatures they bear or in whose handwriting they purport to be, and that they have been duly https://hcservices.ecourts.gov.in/hcservices/ attested and executed, if they purport so to be. In other words documents thirty years old prove themselves. The age of the document, its unsuspicious appearance, the production from proper custody and other circumstances are the foundation for the presumption. It is immaterial that a witness to the document is alive or is present in court. 27. In this connection, Section 107 of the Indian Evidence Act, 1872 is also very much relevant to be extracted: Section 107. Burden of proving death of person known to have been alive within thirty years.- When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. 28. On coming to the instant case on hand, the documents under Exs.A1, A2, A3 and A13 are all ancient documents, aged about more than thirty years and the executor Gopalu Gounder was not expected to be alive when the documents came to be admitted before the trial court. Ex.A4 is the death certificate of Gopalu Gounder which shows that he died on 11.02.1992. Hence, as contemplated under Section 90 of the Indian Evidence Act, 1872, it could be presumed that the documents have been produced from proper custody and there is no suspicion with regard to the genesis of these documents. This Court is of view that the above specified documents are all free from suspicion and it could be presumed that they had been signed or written by the person whose signatures they bear or in whose handwriting they purport to be and that they have been duly attested and executed. Hence, there is no obstacle in placing reliance upon these documents. 29. It is pertinent to note here that the appellant/defendant has claimed that he has been in possession and enjoyment of the disputed site for more than sixty years and that on account of long and uninterrupted possession he had prescribed title over that disputed site by adverse possession. But, on thorough scrutinization of evidence both in oral as well as in documentary, it is manifest that it does not have any reference to show as to when and how he came to be in possession of the disputed site. As rightly observed by the first appellate court, the plaintiffs have established their right over the suit property. The first appellate court has also rejected the claim of the plaintiffs that the defendant was permitted to occupy the disputed site in the capacity of a tenant. Since there is no proof to that effect, the plaintiffs' contention has also been rightly rejected by the first appellate court. https://hcservices.ecourts.gov.in/hcservices/ 30. It appears from the case of the plaintiffs that their parents had filed a suit in O.S.No.15 of 1971 for the declaration of title as against Arundavam and Vimala, who are the daughters of the plaintiffs' younger maternal grandfather. That suit was decreed as prayed for and the said Arundavam and Vimala were defeated before the first appellate court as well as before this Court in S.A.No.1233 of 1976, which was dismissed on 14.09.1979. The defendant, who is the appellant herein has contended that he was not aware of the above said legal proceedings. It is the settled principles of law that when a person claims for title by prescription of adverse possession he must first admit the title of the real owner. But, on coming to the instant case on hand, the defendant has not admitted that the plaintiffs are having title over the disputed site. When such being the case, the learned counsel for the respondents/plaintiffs would contend that the appellant/defendant could claim title by way of adverse possession. 31. As shown in the fourth substantial questions of law in A.Rukumani and another v. V.Gopalaswamy and another, reported in 1993 (2) MLJ 598, a Division Bench of this Court has referred a decision in Kuppuswami Udayar v. Murugayyan, reported in 1984 LW 120. In which it is pointed out that it is not necessary in order to establish adverse possession that the proof of acts of possession should cover every moment of the requisite period. Though the possession be not proved to have continued every quarter, month or year, yet, ordinary possession will be sufficient if the distance is not great. The fact of possession may be continuous through the several acts of possession are at considerable intervals. The classical requirement to establish adverse possession is that the possession should be nec vi nec clam nec precario. Here the possession on the part of the respondent is sufficiently overt and without any attempt at concealment so that the person against whom time is running ought, if he exercised due vigilance, to be aware of what is happening. Even if it is assumed that Ex.B2 sale deed is void, in view of the evidence showing that the vendors are in open, continuous and uninterrupted possession and enjoyment of the land since 1954, they have acquired title by adverse possession. 32. In the above cited decision, the legal maxim nec vi nec clam nec precario has been employed by the division bench of this Court. This is the classical requirement to establish adverse possession. The legal maxim nec vi nec clam nec precario is a latin legal term meaning 'not by force, nor stealth, nor licence'. It is the principle by which rights may be built up over time, principally public rights of way in the United Kingdom. Specifically, if a path is used – openly, not against protests, and without permission of https://hcservices.ecourts.gov.in/hcservices/ the landowner – for an extended period (20 years) then a permanent legal right to such use is usually established. It is often referred to in the context of adverse possession and other land law issues. It is also relevant to the creation of easements whereby the law 'prescribes' an easement in the absence of a deed. In order for the law to do so the right of way or easement needs to have been enjoyed without force, without secrecy, and without permission for a period of time, usually 20 years. 33. The term adverse possession has been explained at Page No.34 of the Book of Law of Adverse Possession by Bhuvneshwar Singh (Bhuvan, S.K.Ghosh) (First Edition, Re-print 2011) in the following manner: Adverse Possession.- It is a mode of acquisition of property or proprietary rights. By unbroken possession of premises for twelve years or longer, adverse to the right of the owner, the possessor can get a title to the premises. The owner loses his right by what is known as negative perfect prescription. The term prescription has also been defined in the same book at the same page as under: Prescription.- Prescription gives first a rise to a right by user or enjoyment of some type for twenty years or more. Prescription is the effect of passage of time. That effect may be positive or negative. Prescription is said to take effect in a positive manner when by it a right is created. It is also called investitive prescription. 34. On coming to the instant case on hand, as adumbrated supra, the plaintiffs' claim that out of 40 Ares a portion was leased out to the defendant on a monthly rent of Rs.10/- by their father Kannappa Nayakar and as such the defendant had/has been residing in the suit property as a lessee. It is also the case of the plaintiffs that the defendant had paid the rent till the date of their father's death and after his death the lease was attorned in their favour and thereafter the defendant had become very irregular in paying the rents and committed default from 1990 onwards. Therefore, a legal notice caused to be issued on 27.08.1992, which has been marked under Ex.A9. 35. In Ex.A9 it is stated that the plaintiffs' maternal grandfather Gopalu Nayakar had executed a registered Will on 30.09.1953 in favour of the plaintiffs' father and mother and thereby bequeathed the schedule mentioned property in their favour. https://hcservices.ecourts.gov.in/hcservices/ It is also stated that the schedule mentioned property has been in possession and enjoyment of the plaintiffs' family for more than 100 years and in fact the plaintiffs are residing in a portion of the