IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:1.9.2008 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.NOs.409 and 446 OF 2000 S.Doss .... Appellant in A.S.No.409 of 2000/1st Defendant Mahimaidoss .... Appellant in A.S.No.446 of 2000/2nd Defendant vs. 1.Vanathayya 2.Mahimaidoss 3.Anthony Doss ... Respondents in A.S.No.409 of 2000/Plaintiff and 2nd Defendant & 3rd Defendant 1.Vanathayya 2.S.Doss 3.Anthony Doss ... Respondents in A.S.No.446 of 2000/Plaintiff and 1st Defendant & 3rd Defendant Appeals preferred against the judgment and decree dated 31.7.2000 passed in O.S.No.10219 of 1996 by the II Additional Judge, City Civil Court, Madras. For Appellant in : Mr.A.S.Lawrance A.S.446/2000 and for R2 in A.S.409/2000 For Appellant in : Mr.S.V.Jayaraman, AS.409/2000 and Sr.counsel for for R2 in Mr.N.Maninarayanan A.S.446/2000 For Respondents : Mr.M.Balasubramanian 1 & 3 in both Appeals https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT These appeals are focussed against the judgment and decree dated 31.7.2000 passed in O.S.No.10219 of 1996 by the II Additional Judge, City Civil Court, Madras 2. Briefly but broadly, precisely but narratively, the case of the plaintiff, as stood exposited from the plaint could be portrayed and parodied thus:- The deceased Santhanasamy-the father of the plaintiff and defendants and his brother jointly purchased the suit property comprised of the plot and the house situated thereon during the year 1925 from out of the joint funds. Subsequently, Santhanasamy acquired the half share of his brother also during the year 1928 for valid consideration. Thereafter, Santhanasamy and his son-the plaintiff Vanathayya contributed jointly for raising a pucca construction on the above said property. (b) On 4.5.1973 Santhanasamy executed the settlement deed in favour of the plaintiff, transferring the suit property in his favour. The patta was got transferred in the name of the plaintiff, who also mortgaged the suit property with the Egmore Benefit Society Ltd., on 4.5.1974 for a sum of Rs.10,000/- and he started paying tax. As such, the plaintiff has been exercising his right of ownership over the suit property ever since the date of execution of the settlement deed by Santhanasamy, in his favour. (c) While so, D1, without any legal basis issued the notice dated 10.2.1974 to Santhanasamy-the father of the parties, and the plaintiff herein, contending that Santhanasamy was only a benamidar of the suit property and that D1 only had put up construction on the concerned suit property out of his own funds. (d) D1 filed a suit in O.S.No.2743 of 1974 in the City Civil Court Madras seeking declaration that D1 herein was the legal owner of the suit property, in addition to praying for permanent injunction. The said suit was dismissed on 31.3.1977. Aggrieved by the same, the appeal in A.S.No.306 of 1977 was filed before the City Civil Court, Madras, and the same was allowed on 12.2.1979. As against the same, the Second Appeal, viz., S.A.32 of 1982 was focussed before this Court, which set aside the judgment and decree passed by the first appellate Court and restored the judgment and decree of the trial Court in dismissing the original suit. (e) Even after the completion of the earlier proceedings, D1 herein did not come forward to vacate the suit property, despite https://hcservices.ecourts.gov.in/hcservices/ incessant demands. The plaintiff issued lawyer's notice to the defendants on 5.4.1993 calling upon them to pay the rents and also directed them to vacate and hand over possession of the suit property on or before 30.4.1993, which evoked false and untenable reply, denying the title of the plaintiff and also ignoring the earlier Court proceedings. The defendants' attempt to claim adverse possession was not tenable. Accordingly, the plaintiff prayed for declaration of his title and for delivery of possession of the suit property, in addition to claiming damages towards use and occupation. 3. Remonstrating and gainsaying the allegations/averments in the plaint, D1 filed the written statement, setting out various averments, the warp and woof of them would run thus:- The disposal of the second appeal No.32 of 1982 by the High Court was on technical grounds, which would not enure to the benefit of the plaintiff. Even in the year 1975, when D1 filed the suit for declaration of his title, he had perfected his title by adverse possession. Neither Santhanasamy nor the plaintiff is the owner of the suit property. Accordingly, D1 prayed for the dismissal of the suit. 4. D2 filed the written statement, the gist and kernal of them would run thus:- (i) Santhanasamy-the father of the parties to the suit, was the absolute owner of the suit property and along with him the parties to the suit have been in occupation of the same. D1 was earning good income by running a mechanic shed and from out of the income derived from it, he developed the suit property by putting up fresh construction. D1 effected developments in the suit property in the name of his father Santhanasamy. After completing the construction in the 1961, the parties to the suit have been occupying various portions in the suit property, respectively. (ii) During the year 1970 onwards difference of opinion crepth in, wherefore Santhanasamy betraying D1 and supporting the plaintiff herein, executed the settlement deed dated 4.5.1973 in favour of the plaintiff. But the real fact is that the first defendant is the real owner of the suit property. (iii) D2 gave evidence during trial in the previous suit O.S.2743 of 1974 denying the title of the plaintiff herein over the suit property and supporting the case of the first defendant. Despite such denial, the plaintiff had not chosen to institute legal https://hcservices.ecourts.gov.in/hcservices/ proceedings as against him for obtaining possession of the suit property within a reasonable time. From 23.3.1977 onwards, the possession of D2 became adverse to the interest of the plaintiff in the suit property. Despite the plaintiff having given notice, dated 29.4.1977, he did not take any action and as such, D2 acquired title to the suit property by adverse possession by his open and continuous enjoyment of the suit property for more than 12 years as owner, hostile to the claim of the plaintiff. The claim for damages for use and occupation is not tenable. Accordingly, D2 prayed for dismissal of the suit. 5. D3 filed the written statement supporting the case of the plaintiff. 6. The trial Court framed the relevant issues. During enquiry, before the trial Court the plaintiff examined himself as P.W.1 and Exs.A1 to A12 were marked on the side of the plaintiff. On the side of the defendants, D1 and D2 examined themselves as D.W.1 and D.W.2 and Exs.B1 to B12 were marked. 7. Ultimately, the trial Court decreed the suit. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court D1 and D2 filed separate appeals in A.S.No.409 of 2000 and A.S.446 of 2000, respectively. 8. The nitty-gritty of the appeal in A.S.No.409 of 2000 filed by D1 would run thus:- (a) the trial Court failed to note that the previous proceedings cannot be relied upon by the plaintiff to save limitation in instituting the suit for vacating the defendants and that the adverse possession of D1 cannot be construed as one got interrupted by the previous proceedings. (b) the trial Court taking into consideration that in the year 1974 itself the defendants denied the title of the plaintiff and they claimed prescriptive title also should have dismissed the suit holding that D2 acquired prescriptive title by adverse possession. (c) the lower Court was wrong in construing that the defendants were permissive occupiers, as they were born and brought up in the suit property. (d) the trial Court should have upheld the respective portions under the occupation of the defendants as the ones, https://hcservices.ecourts.gov.in/hcservices/ over which, the defendants claimed prescriptive title by adverse possession. (e) The Settlement Deed relied on by the plaintiff was not proved as per law. Accordingly, D1 prayed for setting aside the judgment and decree of the trial Court and for dismissing the suit. 9. Quintessentially and precisely the grounds of appeal filed by D2 in A.S.No.446 of 2000 would run thus:- (i) the suit was barred by limitation, but the trial Court wrongly decreed the suit and that too ignoring the plea of adverse possession pleaded by D2. (ii) the entire approach of the lower Court was based on wrong proposition of law. (iii) the trial Court took into account only the pleadings and evidence of plaintiff, whereas D1 and D2's case was not at all considered. (iv) the trial Court wrongly understood as though injunction in O.S.No.2743 of 1974 prevented the plaintiff from filing the suit as against the defendants, even earlier. (v) the trial Court failed to note that D1 herein alone got the benefit of injunction in O.S.No.2743 of 1974. (vi) the trial Court failed to note that D2 herein was not a party in the previous suit O.S.No.2743 of 1974. (viii) the trial Court's finding that D2 is the permissive occupier in the suit property was wrong and that too in the absence of any pleading to that effect by the plaintiff. (ix) the trial Court wrongly understood Ex.B6 and Ex.B7 and held that the plaintiff terminated the licence given to D2. (x) the D2's specific plea of adverse possession, based on specific interest pleaded in the written statement, and his evidence were not considered by the trial Court. (xi) D2's evidence would indicate that he denied the title of the plaintiff and that tantamount to ouster of the plaintiff, but the trial Court did not consider the same. (xii) the very issuance of Ex.B12 dated 29.4.1977 by the plaintiff to D2 would exemplify that the possession of D2 was adverse to that of the plaintiff's interest in the suit property. (xiii) the lower Court failed to take note of the fact that there was a gap of 16 years between the date of ouster and assertion of hostile title and the date of filing of the suit against D2. https://hcservices.ecourts.gov.in/hcservices/ (xiv) the plaintiff unsuccessfully attempted to project as though Ex.B12 was not a genuine one, and the trial Court failed to take note of the conduct of the plaintiff. (xv) the lower Court also was wrong in awarding damages for use and occupation in favour of the plaintiff, payable by D2. Accordingly, D2 prayed for setting aside the judgment and decree of the trial Court and for the dismissal of the original suit. 10. The points for consideration are as to: (i) Whether the plaintiff is the absolute owner of the suit property. (ii) Whether the defendants 1 and 2 have acquired title by adverse possession over the suit property or to the extent of the portions, which are in their respective possession, in the suit property? (iii) Whether there is any infirmity in the judgment and decree of the trial Court. 11. Points (i) & (ii): These two points are taken together for discussion, as they are inter-woven and interlinked with each other. 12. A 'resume' of facts, which are absolutely necessary and germane for the disposal of the these appeals would run thus:- The relationship among the parties is an admitted one. The deceased Santhanasamy's children are the parties to the suit. D1-Doss herein earlier instituted a suit in O.S.No.2743 of 1974 in the City Civil Court, Madras, for obtaining declaration that D1 herein was the real owner of the suit property and his father Santhanasamy was only a benamidar, and for permanent injunction as against the said Santhanasamy and his son the plaintiff herein from interfering with the peaceful possession and enjoyment of the suit property by D1 herein. The said suit was dismissed on 31.3.1977, whereupon appeal A.S.No.306 of 1977 was filed before the City Civil Court, Madras, which reversed the judgment and decree of the trial Court and decreed the suit. As against which, the second appeal, viz., S.A.No.32 of 1982 was filed before this Court, and this Court set aside the judgment and decree of the appellate Court and restored the judgment and decree of the trial Court in dismissing the original suit. 13. Interim injunction was in force, during the pendency of the plaintiff's suit, but not during the first appellate stage. After the previous litigation initiated by D1 here is was ended in favour of https://hcservices.ecourts.gov.in/hcservices/ the plaintiff, the latter has chosen to file the suit for declaration and delivery of possession as against the defendants herein. In the previous suit, the plea of D1-Doss herein that he was the absolute owner of the suit property, even though the suit property stood in the name of his father santhanasamy, was negatived and his plea of ownership over the suit property was finally decided as not tenable. As such, in the present suit filed by the plaintiff, who was D2 therein, the present D1 herein cannot once again set up title in himself under any pretext, as it is quite obvious that the principle of res judicata would be applicable as against him. 14. No-doubt, D1-Doss herein would try to lay claim over the suit property as though he acquired prescriptive title over it by adverse possession. Once again I would like to point out that D1 after meeting with his waterloo in the first round of litigation, which he initiated basing his claim on his alleged title over the suit property, cannot try to lay claim over the same suit property by dishing out a plea that he acquired prescriptive title by adverse possession. The previous judgment and decree of the trial Court and as confirmed by this Court, is binding on him. 15. D.W.1-Doss, in his deposition clearly and categorically without mincing words admitted that the suit property was originally purchased by his father Santhanasamy during the year 1928 and that Doss was born in that house. It is therefore quite obvious and apparent that his other brothers, who are parties to the suit, were also born in that house only. However, it is the contention of D1- Doss that he only raised construction afresh in the suit property. According to him Ex.A.1-the Settlement Deed, dated 4.5.1973, executed by Santhanasamy in favour of plaintiff-Vanathayya is invalid. But all his pleas were negatived in the previous proceedings. Ex.A7-the Printed copy of the judgment in the previous suit O.S.2743/74 would demonstrate and exemplify that Doss-D1 herein as plaintiff therein filed the suit seeking declaration that he was the real owner of the suit property and that Santhanasamy was only a benamidar and for permanent injunction so as to restrain the said Santhanasamy and Vanathayya-the plaintiff herein not to interfere with the alleged peaceful possession and enjoyment of the suit property by Doss-D1 herein. 16. In the previous suit the relevant issues were framed and ultimately the trial Court held that Ex.A1 herein-the Settlement Deed was valid and the claim of D1 herein was untenable and unacceptable. 17. Ex.A9-is the printed copy of the judgment in the previous appeal 306/77, which would indicate that the judgment and decree of the trial Court was reversed and the previous original suit was decreed. https://hcservices.ecourts.gov.in/hcservices/ 18. Ex.A.10-the certified copy of the Judgment of this Court in S.A.No.32/82 dated 23.9.1991, which would reveal that the judgment of the first appellate Court, as contained in Ex.A9 was reversed and the judgment of the lower Court, as contained in Ex.A7 was restored. 19. The judgment of the High Court was passed on 23.9.1991, whereas the present suit was filed in the year 1993. The plaintiff and D1 herein got themselves locked up in litigation in the previous proceedings ever since 1974 till 1991. It is quite obvious from the deposition of D.W.1 and from the whole kit and caboodle of facts and figures relied upon by him that he has not acquired any title by adverse possession and for that matter, it was not his case also earlier. 20. Ex.A2-the mortgage deed dated 4.5.1973 executed by the plaintiff-Vanathayya and his wife Arokiameri in favour of the Egmore Benefit Society Fund, would expatiate that the suit property was mortgaged by the plaintiff-Vanathayya, and that is indicative of the fact that the plaintiff-Vanathayya, who got the suit property under Ex.A1-the Settlement Deed executed by Snathanasamy in his favour, was acted upon and that he exercised his right of ownership also even during the life time of Santhanasamy and even while, the other plaintiffs were occupying the suit property. It is a fact, which could be readily seen from the very cause tile of the plaint that the plaintiff herein and the defendants, who are all brothers, are residing in the suit property. 21. Ex.A3-the Property Tax Demand Notice for the year 1991 relating to the suit property, Ex.A4-dated 3.4.1993-the Corporation Tax Receipt, Ex.A5-dated 13.2.1991-the Water Tax Receipt and Ex.A6- 17.9.1973-the Original Patta dated 17.9.1973, all would all clinchingly demonstrate and establish that the plaintiff is the absolute owner of the suit property, that too, to the knowledge of the defendants. 22. D2 would contend as though he acquired prescriptive title to the suit property. It is not known as to how D2 could be even permitted to take the plea of adverse possession, when the circumstances are glaringly as against his plea of adverse possession. D2 even though not a party in the previous proceedings, nonetheless he figured as P.W.5 therein and deposed in support of Doss-who is D1 herein, to the effect that Doss was the real owner of the suit property. He did not depose that D2 herein Mahimaidoss acquired prescriptive title over the suit property by himself. The very suit previously filed by D1 herein itself was for declaring that he was the real owner of the suit property and in support of him D2 herein deposed as detailed supra and it is not known as to how he https://hcservices.ecourts.gov.in/hcservices/ could be permitted to plead as though he acquired prescriptive title over the suit property. Over and above that, in the written statement itself D2 averred quite antithetical to his plea of adverse possession, wherefore it is just and necessary to extract hereunder his version. "3. This defendant further states that the first defendant was earning good income through his methanic shed. Out of his income the first defendant developed the suit property by making fresh constructions. Though the Tax receipts and Corporation plan stood in the name of the said Santhanasamy it was out of the money spent of D-1 that the suit property was constructed. Since the said Santhanasamy was the head of the family, D-1 made all development in the suit property in the name of his father. After construction of the suit property of the year 1961, the parties to the suit started occupying the suit property and have been living there in their respective portions." 23. Absolutely there is no exiguous or modicum extent of evidence to exemplify that the portion of the suit property in which D2 is occupying has been treated by him as his exclusive property so as to lay claim over that portion by way of adverse possession. It is an admitted fact that in the suit property the plaintiff and defendants are all residing. On the one hand D1 would contend that he acquired title by adverse possession for the entire suit property and even for argument sake if it is taken that D1 also is claiming adverse possession relating to the portion under his occupation in the suit property. There is no proof of he having exercised ownership. 24. Not to put too fine a point on it, it is the basic and rudimentary principle of law relating to adverse possession that the person who claims adverse possession should clearly spell out as to which area is under his exclusive, open, continuous, uninterrupted possession as owner and that too hostile to the interest of the real owners. It is well known that when the defendants plead adverse possession as against the plaintiff, it implies that the defendants admit the title of the plaintiff. Here virtually D2 set up absolute title in D1-Doss, whereas, he pleads adverse possession as against the plaintiff-Vanathayya. The fact remains that D1-Doss, who instituted the previous suit claiming that he was the owner lost his contention and claim over the suit property and in such a case it is not known as to how D2, who placed reliance on D1's title and estranged the plaintiff, could plead prescriptive title at all against the plaintiff-Vanathayya. https://hcservices.ecourts.gov.in/hcservices/ 25. A mere perusal of it would clearly indicate that the contentions of D1 and D2 in the written statement as well as in their depositions relating to adverse possession before the trial Court are not even worth the paper on which they were written/recorded. 26. D2's contention is to the effect that after the dismissal of the previous suit O.S.2743/74 initiated by D1-Doss herein, by the trial Court, Vanathayya-the plaintiff herein issued Ex.B12-Notice dated 29.4.1977 to D2 and thereafter, no steps were taken by the plaintiff-Vanathayya to evict or get vacated D2 from the suit property; but on the other hand Vanathayya-plaintiff filed the suit only during the year 1993 after lapse of more than 12 years(here it has to be clarified that originally the present suit was filed under C.S.812/93 before this Court and subsequently it was transferred to the City Civil Court and numbered as 10219 of 1996). He would also contend that the lower Court was wrong in assuming as though injunction was in force as against the plaintiff-Vanathayya herein in the previous proceedings and that was why he was not in a position to take steps to evict the defendants herein, even though indubitably and indisputably injunction was obtained only by Doss-D1 during the pendency of the earlier suit in the trial Court. 27. The plea of D2 is ex facie and prima facie legally not tenable. Barely because Ex.B12-Notice was issued to Mahimaidoss-D2 on 29.4.77 calling upon him to vacate the suit property and that he filed the suit only after the Second Appeal in the previous matter was disposed of, there is no presumption that D2 acquired prescriptive title over the suit property. Whether injunction was in force, at the instance of D1-Doss in the previous proceedings, only during the trial stage or till the end of second appeal, is not at all germane for deciding the case. The fact remains that in the previous proceedings, the very title of Vanathayya was disputed and D2 as well as D1 herein, who are contesting the present proceedings, figured as witnesses and denied the title of the plaintiff-Vanathayya herein and in such a case it is not known as to how Vanathayya could be expected to file a suit for vacating D2 alone because D2 was not a party in the previous proceedings. After the issuance of notice- Ex.B12, the appeal was came to be filed by Doss as against the judgment and decree of the lower Court. Whereupon Vanathayya was contesting the appeal and after loosing the appeal, he approached the High Court and got the trial Court's judgment restored as per the High Court judgment dated 23.9.1991, which was in his favour. Thereupon, without wasting much time, he filed C.S.No.812 of 1993 and that too after issuing notice as contained in Ex.A11 dated 5.4.1993. 28. It is pertinent to note that in respect of Ex.B12 as well as Ex.A11 notices sent by the plaintiff to D2, no reply was given by D2. https://hcservices.ecourts.gov.in/hcservices/ From that itself adverse inference could rightly be drawn that D2 had no specific case of his own to put forth. No doubt the plaintiff, perhaps out of over reaching himself or out of some confused legal understanding of the circumstances might have averred that Ex.B12 was not issued by him, but the Court clearly found that Ex.B12 was issued through his Advocate. The fact remains that D2 has not chosen to reply either to Ex.B12 notice or Ex.A11 notice. In fact only D1-Doss replied vide Ex.A12. As has been already highlighted supra Doss-D1 already lost his contention in the previous proceedings and he cannot put forth his plea of adverse possession