IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 06.07.2009 CORAM: THE HON'BLE MR. JUSTICE M.DURAISWAMY Second Appeal No.924 of 2000 Maragatham @ Krishnammal .. Appellant /Plaintiff Vs Marimuthu .. Respondent/Defendant SECOND APPEAL filed under Section 100 of the Code of Civil Procedure judgment and decree dated 20.12.1999 made in A.S.No.53 of 1999 on the file of Subordinate Judge, Mayiladuthurai confirming the Judgment and Decree dated 13.04.1999 passed in O.S.No.349 of 1995 on the file of the District Munsif, Sirkali. For Appellant : Mr.A.Muthukumar For Respondent : Mr.M.Arunachalam for Mr.C.Prakasam J U D G M E N T The above Second Appeal arises against the judgment and decree in A.S.No. 53 of 1999 on the file of Sub Court, Mayiladuthurai confirming the Judgment and Decree in O.S.No.349 of 1995 on the file of the District Munsif Court, Sirkali. 2. The plaintiff in the suit is the appellant in the above second appeal. The respondent is the defendant in the suit. 3. The plaintiff filed suit in O.S.No.349 of 1995 on the file of the District Munsif Court, Sirkali. for delivery of possession in respect of B schedule property and for past and future mesne profits. 4. The brief case of the plaintiff is as follows:- The plaint 'B' schedule property is part of 'A' schedule property and the 'B' schedule property alone is the subject matter of the suit. The plaintiff is the daughter of Lakshmanasamy Nadar, who died in the year 1981. The plaintiff's father Lakshmanasamy Nadar, by virtue of Inam registered sale deed dated 25.3.1968, conveyed the 'A' schedule property to the plaintiff. The defendant, who is https://hcservices.ecourts.gov.in/hcservices/ the brother's son of the said Lakshmanasamy Nadar, was permitted to reside in a portion of 'A' schedule property, which is the suit 'B' schedule property. The rest of the 'A' schedule property is in the possession of the plaintiff. The plaintiff also accepted the permissive occupation of the defendant in the suit 'B' schedule property to which the plaintiff is the owner from the date of Inam sale deed. By notice dated 20.3.1990, the plaintiff revoked the permission and demanded to surrender possession of the suit property. The defendant, on receipt of the said notice, sent a reply notice raising false allegations. Since the defendant failed to deliver possession, the plaintiff filed the suit. 5. The brief case of the defendant is as follows: According to the defendant, the description of the suit property is not correct. The suit property is the self acquired property of the plaintiff's father, Lakshmanasamy Nadar. The defendant is in peaceful possession and enjoyment of the 'B' schedule property on his own right by paying tax in his name for the past so many decades and treating the property as his own. According to the defendant, the suit 'A' schedule property originally belonged to one Duraisamy Nadar. After his death, it was inherited by his four sons, namely, Lakshnamasamy Nadar, Mahalingam, Muthukumarasamy and Amirthalingam. Muhukumarasamy and Amirthalingam left the village by not claiming any right over the 'A' schedule property. The property was enjoyed by Lakshnamasamy Nadar and Mahalingam. Lakshnamasamy Nadar is the father of the plaintiff and Mahalingam is the father of the defendant. On 11.8.1955, a family arrangement took place between Lakshmanasamy Nadar, Muhukumarasamy, Amirhaligam and Mahalingam. Another family arrangement took place on 26.9.1955 between Lakshmanasamy Nadar, Muthukumarasamy, Amirhaliingam, Marimuthu, Gurumurthy and Periyasamy @ Pesal Nadar. As per the said family arrangement, the property situate west of the suit 'B' schedule is to be taken by all the 3 and the 'B' schedule property to be taken by Marimuthu and 2 others. 10 days time was fixed for completing the family arrangement. Otherwise, it was alternatively agreed, the said arrangement will be confirmed by engrossing in the stamp papers and have it registered. After the second family arrangement, Muthukumarasamy and Amirthalingam without laying any claim over the property left the village. So far as 'B' scheduled property is concerned, the defendant is in actual possession and enjoyment of the same from the year 1955 in his own right and residing there even 10 years prior to 1955. From 1995 onwards, the B schedule property was given Door No.5A by the Panchayat Board. Therefore, the defendant prayed for dismissal of the suit. 6. In the additional written statement filed by the defendant, the defendant pleaded adverse possession. https://hcservices.ecourts.gov.in/hcservices/ 7. Before the trial court, on the side the plaintiff, 3 witnesses were examined and 8 documents Exs. A1 to A8 were marked. On the side of the defendant, 2 witnesses were examined and 19 documents Exs. B1 to B19 were marked. 8. The trial court, after taking in to consideration the oral and documentary evidences of both the parties found that by virtue of Exs.B18 & B19 family arrangements, the defendant derived title and is in possession and enjoyment of the suit property Therefore, the trial court dismissed the suit. 9. Aggrieved over the judgment and degree of the trial court, the plaintiff filed an appeal in A.S.No.53 of 1999 on the file of Subordinate Judge, Mayiladuthurai and the lower appellate court after taking into consideration the materials available on record, confirmed the judgment and decree of the trial court and dismissed the appeal. 10. Aggrieved over the judgments and decrees of the courts below, the plaintiff filed the above second appeal. 11. Heard Mr.A.Muthukumar, learned counsel appearing for the appellant and Mr.M.Arunachalam, learned counsel for the respondent. 12. At the time of admission of the above Second Appeal, the following substantial questions of law arose for consideration:- i) Whether the lower appellate court not erred in law in holding that the defendant has perfected title by adverse possession especially when the defendant admitted title of the plaintiff's father? and ii) whether mere execution and registration of the documents by the defendant would operate as notice to the plaintiff and the defendant's possession adverse to the plaintiff contrary tot eh decision of Supreme Court reported in 1998 (7) SCC 436 ? 13. On a careful consideration of the materials available on record and the submissions made by both the learned counsel, it could be seen that one Duraisamy Nadar had four sons, namely, Lakshnamasamy Nadar, Mahalingam, Muthukumarasamy and Amirthalingam. The plaintiff is the daughter of Lakshmanasamy Nadar and the defendant is the son of Mahalingam. Lakshmanasamy Nadar executed Ex.A1 settlement deed on 25.3.1968 in favour of the appellant/plaintiff. The appellant/plaintiff is claiming title over the suit property by virtue of the said settlement deed. The https://hcservices.ecourts.gov.in/hcservices/ respondents are claiming title over the suit property by virtue of the two family arrangements Exs.B18 and B19, dated 11.8.1955 and 26.9.1955 respectively. The respondent/defendant also produced Ex.B17, patta, dated 8.2.1996 standing in his name. Ex.B4 is the paper publication published in 'Sudesamithran' daily on 3.5.1966. Ex.B5 dated 10.6.1958 is the conductor licence issued to the respondent/defendant in which, address of the 'B' schedule property has been mentioned. The respondent/defendant also produced house tax receipts and water connection receipts pertaining to the suit property. The respondent/defendant in his written statement claimed title to the suit property by virtue of Exs.B18 and B19 namely, family arrangements. Whereas in the additional written statement he has pleaded adverse possession. 14. Since the respondent/defendant pleaded both title to the suit property by virtue of the family arrangements and also pleaded adverse possession, the learned counsel for the appellant contended that claiming title and pleading adverse possession shall not go together and in support of his contention, he relied on the following judgments : (i) In 2002(2) CTC 219 (Kannappan v. Pargunan and 9 others),it is held as follows: " Plaintiff can contend adverse possession only when he admits that another person has got title. Plea of adverse possession rejected as plaintiff claimed title in his vendors." (ii) In 2002(5) CTC 147 (Chinnaponnu (died) & Another v. Lakshmana Naidu & Others), it is held as follows: " 15. ... The respondents claim that they are entitled to the suit property by virtue of Ex.A1. Therefore, adverse possession would mean setting up title hostile to ex.A1. Therefore, adverse possession would mean setting up title hostile to themselves. These two pleas cannot coexist and therefore, it is only in these circumstances that the new substantial question of law was permitted to be raised by the appellant and it is answered in favour of the appellant." (iii) In 2002(2) CTC 58 (Neelavathi v. Shanmugam and another), it is held as follows: "7. Again, when plaintiff had relied upon a particular document of title, namely, Ex.A-1 gift deed, in order to claim right and title to suit property, she cannot claim it by adverse possession, because when once she claims title upon a particular document, then whatever right plaintiff claims would be flowing if at all under that document, in which case there is no element of adverse nature of possession in order to make out a case of https://hcservices.ecourts.gov.in/hcservices/ prescription by title. Thus, the substantial question of law is answered against the appellant/plaintiff and I find no reason to allow this second appeal." (ii) In 2004(10) SCC 779 (Karnataka Board of Wakf v. Government of India and others), it is held as follows: " Adverse Possession - Essentials of – Held, are exclusive physical possession and animus possidendi to hold as owner in exclusion to the actual owner – facts to establish claim for adverse possession, stated – Pleas of adverse possession and of title are mutually inconsistent – Limitation act, 1963.Art.65." From the above judgments, it could be seen that the respondent/defendant cannot plead title based on document and adverse possession simultaneously. Therefore, in view of the judgments referred above, the plea of adverse possession is not maintainable. 15. Learned counsel for the appellant further contended that the lower appellate court erroneously came to the conclusion that the respondent/defendant has prescribed title by adverse possession. This finding cannot be sustained and it is liable to be set aside. The learned counsel for the appellant also contended Exs.B18 and B19 family arrangements were unstamped and unregistered therefore, it cannot be looked into. The said documents were marked through D.W.1. From the perusal of the deposition of D.W.1, it could be seen that there is no mention that the appellant/plaintiff had objected to the marking of the said document. However, the trial court in the judgment gave a finding that the appellant/plaintiff objected to the marking of the two documents and after hearing both sides, the documents were marked as Exs.B18 and B19. In support of the said contention, learned counsel for the appellant relied on a judgment reported in 2001(1) CTC 112 (A.C.Lakshmipathy and another v. A.M.Chakrapani Reddiar and others) The Division Bench of this court in the above judgment found that a family arrangement reduced to writing purporting to create, declare, assign limit or extinguish any right, title or interest of any immovable property should be stamped and registered. The Division Bench also found that a family arrangement, which is compulsorily registerable, if not registered, the same can be looked into by the court for collateral purposes. In the judgment of the Hon'ble Supreme Court reported in 2009(1) Scale 80 (Avinash Kumar Chauhan v. Vijay Krishna Mishra), it is held as follows: "11. Section 36 of the Act provides that where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61 thereof, be called in question at any stage of same suit or proceeding on the ground that the instrument has not been duly stamped. Section 38 provides for the mode and manner in https://hcservices.ecourts.gov.in/hcservices/ which the instrument impounded is to be dealt with. 12. The parliament has, in Section 35 of the Act, advisedly used the words "for any purpose whatsoever". Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking the aforementioned provisions. 16. Therefore, applying the principles laid down in the above judgment, Exs.B18 and B19 family arrangements, which are unstamped and unregistered, cannot be looked into. The respondent/defendant cannot claim any right or title to the suit property under the said documents. 17. In the case on hand, Exs.B18 and B19 were executed in the year 1955.Subsequent to the said document, the respondent/defendant also mortgaged suit property under Ex.B3 and paid house tax, water charges and electricity charges in respect of the suit property. The respondent/defendant also obtained patta in his name. 18. Learned counsel for the appellant also relied on a judgment reported in 1996(7) SCC 436 (Meethiyan Sidhiqu v. Muhammed Kunju Pareeth Kutty and others) which reads as follows: "11. ... So also the mere fact that the third defendant who was in exclusive possession executed documents and put the transferees in possession of the property also will not prove ouster or adverse possession. As a matter of course plaintiff cannot be fixed with knowledge of those documents simply because of the fact that they are registered documents. Registration of the documents by itself cannot operate as notice to the plaintiff that third defendant was holding the property adverse to him and dealing with it as full owner. ..." 19. Learned counsel for the appellant further relied on a judgment reported in 2006(4) CTC 79 (Hero Vinoth (Minor) v. Seshammal), which reads as follows: " 19. ... The High Court will, however interfere where it is found that the conclusion drawn by the lower Appellate Court were erroneous being contrary to the mandatory provisions of law applicable or tis settled position on the basis of pronouncements made by the apex Court, or was based upon inadmissible i evidence or arrived at by ignoring material evidence. https://hcservices.ecourts.gov.in/hcservices/ 24. The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to 'decision based o no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the findings. 25. In the case at hand the High court found that the approach of the trial court and the First Appellate Court was erroneous inasmuch as they proceeded on the basis as if it is a case of easement of necessity. Had the trial court and the first appellate court considered the evidence in the light of the respective stands of the parties and then concluded one way or the other, the position would have been different. When the approach was fundamentally wrong, the High Court cannot be faulted for having gone into the question as to what was the proved intention of the party as culled out from the partition deed." 20. Countering the submissions made by the learned counsel for the appellant, learned counsel for the respondent submitted that the appellant/plaintiff failed to discharge the burden of proof. On the contrary, he shifted the burden of proof on the defendant to prove the case. The learned counsel for the respondent also contended that there is no substantial question of law in the above second appeal and on that ground the above second appeal is liable to be dismissed. 21. In support of the said contention, learned counsel for the respondent relied on the following judgments: (i) 2009 (1) CTC 376 (U.R.Virupakshaiah v. Sarvamma and another), which reads as follows: "Whether High Court, while exercising its jurisdiction under section 100 of Code of Civil Procedure could while dictating judgment, frame additional question of law and allow same without even referring to questions of law formulated at time of admission thereof, arise for consideration herein." (ii) AIR 1995 ORISSA 270 ( Nirakar Das v. Gourhari Das and others), which reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "(B) Evidence Act (1872), Ss. 101 and 3 Burden of Proof – Civil Suit – Plaintiff must establish his own case – Mere failure of defendant to establish his case – Plaintiff would not succeed automatically." (iii) AIR 1984 MADHYA PRADESH 147 (Kalooram and another v. Mangilai), which reads as follows: "Limitation Act (9 of 1908), Ars. 142, 144 – Applicability of – Suit for possession of property based on title alleging previous possession and subsequent dispossession by defendants – Art.142 is applicable and not 144 – Burden to prove dispossession within 12 years next before institution of suit – Is on plaintiff. (Evidence Act (1872).Ss.101 to 104.)" From the above judgments, it could be seen that the appellant/plaintiff must establish his own case and mere failure of defendant to establish his case, will not entitle the appellant/plaintiff to succeed automatically. 22. In the case on hand, the plaintiff though pleaded that the property was settled by her father Lakshmanasamy Nadar under Ex. A1 dated 25.3.1968 and that the respondent/defendant is in possession of the B schedule property as permissive occupant and that she revoked the permission on 20.3.1990, the appellant/plaintiff failed to produce any evidence to prove that the respondent/defendant was permitted to occupy the suit property by her. Though the appellant pleaded that the respondent is only a permissive occupant of the suit, she has not proved the same by any acceptable evidence. The appellant is solely relying on the weakness of the respondent/defendant. Merely because the respondent/ defendant failed to establish his case, would not mean that the appellant/plaintiff could succeed automatically. The courts below after taking into consideration the oral and documentary evidences of both the parties have correctly came to the conclusion that the appellant/plaintiff failed to prove her case by producing any acceptable evidence. 23. Therefore, I find no ground much less substantial questions of law to interfere with the findings of the courts below. The above second appeal is liable to be dismissed. Accordingly, the above Second Appeal is dismissed. However, there will be no order as to costs. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar rj https://hcservices.ecourts.gov.in/hcservices/ To 1.The Subordinate Judge, Mayiladuthurai. 2.The District Munsif, Sirkali. 3.The Section Officer, V.R.Section, High Court, Madras. + 2 cc to Mr.C.Prakasam,Advocate,SR.28683 + 1 cc to Mr.A.Muthukumar,Advocate,SR.28530 S.A. No.924 of 2000 GV(CO) EM/10.7.09 https://hcservices.ecourts.gov.in/hcservices/