IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 2.9.2010 Coram: THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.655 of 2007 M.Mahalingam .. Appellant/Defendant vs. Abdul Bari .. Respondent/Plaintiff The Second Appeal has been filed under section 100 of Civil Procedure Code against the judgment and decree, dated 7.9.2006, made in A.S.No.57 of 2006, on the file of the Principal Subordinate Court, Myladuthurai reversing the judgment and decree, dated 29.9.2005, made in O.S.No.542 of 1998, on the file of the Additional District Munsif Court, Myladuthurai. For Appellant : Mr.A.Thiyagarajan Senior Advocate for S.Srinivasan For Respondent : Mr.A.Muthukumar J U D G E M E N T This second appeal has been filed against the judgment and decree, dated 7.9.2006, made in A.S.No.57 of 2006, on the file of the Principal Subordinate Court, Myladuthurai, reversing the judgment and decree, dated 29.9.2005, made in O.S.No.542 of 1998, on the file of the Additional District Munsif Court, Myladuthurai. 2. The defendant in the suit, in O.S.No.542 of 1998, is the appellant in the present second appeal. The plaintiff in the said suit is the respondent herein. The suit had been filed praying for a decree, directing the defendant to deliver possession of the suit property, to pay the sum of Rs.1,000/-, being the value of the bamboo cut and carried away by the defendant, from the suit property, and to direct the defendant to pay the future mesne profits, and for costs. 3. The plaintiff in the suit, in O.S.No.542 of 1998, has stated that the plaintiff is the owner of the suit property and the tress https://hcservices.ecourts.gov.in/hcservices/ therein, by putting up a fence around the said property, from the time of its purchase. While so, the defendant, during the first week of September, 1997, had cut and carried away the bamboo, worth Rs.1,000/-, from the bamboo clusters raised by the plaintiff in the suit property, without the knowledge of the plaintiff. Thereafter, the plaintiff had issued a registered notice to the defendant, on 18.9.1997, calling upon him to return the bamboo, cut and carried away by the defendant, from the suit property. No reply had been sent by the defendant. 4. It had also been stated that the defendant, coming to know of the intention of the plaintiff to sell away the suit property, had encroached upon the same, on 18.5.1998. Even though the plaintiff had reported the matter to the Myladuthurai police, no action had been taken against the defendant. In such circumstances, the plaintiff had filed the suit, in O.S.No.542 of 1998, on the file of the Additional District Munsif Court, Myladuthurai. 5. In the written statement filed by the defendant, the averments and allegations made in the plaint had been denied. It had also been stated that the suit filed, for recovery of possession, is not maintainable, either in law or on facts. It had also been stated that the description of the property, boundaries and the extent, as given in the plaint, are incorrect. The plaintiff had suppressed the fact regarding the existence of a residential hut in the suit property. It is not correct to say that the plaintiff has been enjoying the suit property, along with the standing trees therein. The plaintiff should prove his title and possession regarding the suit property. 6. It had also been stated that the defendant has been in possession and enjoyment of the suit property, for more than 25 years and he has put up a residential hut in the suit property and he has been residing therein, along with his family members. The standing trees in the suit property have been raised and taken care of by the defendant. The bamboo clusters in the suit property had also been cultivated by the defendant. Therefore, there is no question of the defendant trespassing upon the suit property, to cut and take away the bamboo grown therein. 7. It had also been stated that the plaintiff has no right in the suit property. The defendant is a cultivating tenant, in respect of the lands belonging to the plaintiff and he has been paying the rental amounts, regularly. While so, the plaintiff had filed a petition, before the revenue court, in respect of Nanja lands, with false and frivolous allegations, as if the defendant had not paid https://hcservices.ecourts.gov.in/hcservices/ any rent in respect of the said lands. Since, the defendant had contested the said matter, the plaintiff had filed the present suit, with a mala fide motive. 8. In view of the averments made on behalf of the plaintiff, as well as the defendant, the trial Court had framed the following issues for consideration: "1. Whether the suit property belong to the plaintiff? 2. Whether the plaintiff is entitled for the recovery of possession of the suit property? 3. Whether the plaintiff is entitled for damages as sought for? 4. Whether the plaintiff is entitled for mesne profits? 5. Whether the defendant has acquired title to the property by way of adverse possession? 6. Whether the plaintiff is entitled for the benefit of the Tamil Nadu Kudiyurruppu Act?" 9. The trial Court had found that the plaintiff had filed the sale deed, dated 17.8.1971, marked as exhibit A.1, to prove his title to the suit property. A perusal of Exhibit A.1 had shown that the plaintiff had purchased the suit property from one Ayyaru Naidu, who in turn had purchased the said property, on 2.7.1967, from one Chinnadurai Padayachi. However, the defendant had claimed that the purchase of the suit property, by the plaintiff, from Ayyaru Naidu, is not true, as the plaintiff had admitted during his cross examination that he had purchased the property from one Manthira murthy. 10. The trial court had also noted that the defendant had taken the plea that the plaintiff had made inconsistent claims in his statement, with regard to his vendor, in respect of the suit property. Further, it had also been pleaded that, except the sale deed, marked as Exhibit A.1, the plaintiff had not produced any other document in support of his claim. The defendant had also stated that the description of the boundaries of the suit property given in the plaint and in the sale deed, marked as Exhibit A.1, had differed from the description of the boundaries of the said property, by the plaintiff, while adducing oral evidence, as P.W.1. 11. The trial Court had also noted that it had also been pleaded by the defendant that the plaintiff had admitted that there was a partition suit filed by his family members, which was pending disposal, wherein, the suit property had also been included. While so, there was no substantial oral or documentary evidence to prove that the suit property had been allotted to his share. Therefore, it was not clear as to whether the plaintiff was claiming his right, https://hcservices.ecourts.gov.in/hcservices/ under exhibit A.1, sale deed or under the title acquired by him, in accordance with the suit for partition. It had also been pointed out by the defendant that, even though the plaintiff had claimed that the defendant was cultivating certain Nanja lands belonging to the plaintiff and that the defendant had been asked to look after the suit property as well, the plaintiff had admitted, during his cross examination, that his brother was looking after the suit property, during his absence. The plaintiff had also admitted, during his cross examination, that he had allowed the defendant to manage the suit property, during the years 1985 and 1990. As such, the defendant is only a permissive occupier. However, in the pleadings, the plaintiff had stated that the defendant had trespassed upon the suit property, all of a sudden, in the year, 1997. Accepting the contentions raised on behalf o the defendant, the trial court had answered the issues Nos.1 and 2 in the negative, against the plaintiff. As such, the trial Court had also held that the plaintiff was not entitled for future and past mesne profits, or for the damages, as claimed by him. 12. The trial court had also found that the plaintiff had admitted, during his cross examination, that even in the year, 1985, the defendant was in possession of the suit property. The trial court had found that the plaintiff had failed to prove his title, in respect of the suit property. However, the trial Court had admitted that the defendant was in possession of the suit property, as a permissive occupier. The trial court had also come to the conclusion that the defendant, having been in possession, for a period of nearly 30 years, he would be entitled to claim title, in respect of the suit property, by way of adverse possession. However, the trial court had rejected the claim of the defendant that he was entitled to occupy the suit property, as per the provisions of the Tamil Nadu Kudiyurruppu Act, since, he was not a tenant or a lessee. In such circumstances, the trial court had dismissed the suit filed by the plaintiff, by its judgment and decree, dated 29.9.2005, made in O.S.No.542 of 1998. 13. Aggrieved by the judgment and decree of the trial Court, dated 29.9.2005, made in O.S.No.542 of 1998, the plaintiff in the suit had filed an appeal, in A.S.No.57 of 2006, on the file of the Principal Subordinate Court, Myladuthurai. The first appellate Court had framed the following points for determination: "1. Whether the plaintiff has title to the suit property? 2. Whether the defendant had prescribed title in respect of the suit property by adverse possession? 3. Whether the plaintiff is entitled to the relief of recovery of possession? 4.whether the plaintiff is entitled to certain https://hcservices.ecourts.gov.in/hcservices/ benefits under the Tamil Nadu Kudiyurruppu Act? 5. Whether the plaintiff is entitled to damages, as prayed for? 6. whether the plaintiff is entitled to mesne profits? 7. Whether the appeal is to be allowed?" 14. The First Appellate Court, had reversed the findings of the trial Court, and had decreed the suit, as prayed for by the plaintiff, by its judgment and decree, dated 7.9.2006, made in A.S.No.57 of 2006. The First Appellate Court had come to the conclusion that the plaintiff is having the title, in respect of the suit property, as per Exhibit A-1. 15. It had also held that the claim of the defendant that he had prescribed title, in respect of the suit property, by way of adverse possession, is to be rejected. Further, it had also been held that no right had accrued in favour of the defendant, as per the provisions of the Tamil Nadu Kudiyurruppu Act. As such, it was held that the plaintiff was entitled to recovery of possession of the suit property from the defendant. 16. The First Appellate Court had further held that the plaintiff was entitled to recover a sum of Rs.250/-, from the defendant, for the bamboo, which had been cut and taken away by the defendant, from the suit property. The First Appellate Court had found that the plaintiff, who was the appellant in the first appeal, had filed Exhibit A-1 to show that the property belonged to him. Further, the defendant had not stated as to whom the property was belonging, at the time of its purchase. 17. The First Appellate Court had also found that the appellant in the appeal had stated in the plaint, filed in support of the suit, both the old, as well as the new boundaries of the suit property. While so, the oral evidence of the plaintiff, even if it had been inconsistent, could not be taken to be a serious defect. It had also been found that the defendant in the suit, who was the respondent in the first appeal, had put up the thatched hut in the suit property, only after the filing of the suit. While he was a lessee in respect of the Nanja lands belonging to the appellant, it was only natural on the part of the appellant to have asked him to look after the suit property. In such circumstances, it was not open to the respondent in the first appeal to claim that he had title to the suit property, by way of adverse possession. 18. The First Appellate Court had found that, even though the respondent was an agriculturist, he cannot be described as a tenant or as a lessee, in respect of the suit property. As such, it cannot https://hcservices.ecourts.gov.in/hcservices/ be said that he would be entitled to the benefits, under the provisions of the Tamil Nadu Kudiyurruppu Act, as it would not be applicable to him. 19. The First Appellate Court had also found that the respondent was liable to pay Rs.250/-, for the unauthorised cutting and taking away of the bamboo from the suit property, without obtaining the permission from the appellant. Even though the appellant had issued a notice to the respondent, marked as Exhibit A.2, and as proof of the receipt of the said notice, by the respondent he had filed Exhibit A.3, no reply had been sent by the respondent. Therefore, it could be inferred that the respondent had acted in a manner prejudicial to the interests of the appellant, in respect of the suit property, by encroaching upon the same and by taking away the bamboo, which had grown in the suit property. Therefore, the First Appellate Court had held that the respondent was liable to pay a sum of RS.250/-, to the appellant, as damages. 20. The First appellate court had also found that the claim of the respondent, who was the defendant in the suit, that he was in possession of the suit property, for over 25 years, cannot be accepted. Even though the respondent had accepted, in his evidence, that he had two houses, including the thatched house in the suit property, and even though he had claimed that there were two family cards issued in his name, in respect of the said houses, he had not filed the same before the trial Court. Further, from the evidence available on record, the First Appellate Court had come to the conclusion that the thatched hut put up by the respondent, in the suit property, is of a recent origin. Even though certain receipts, relating to the payment of house tax, had been filed on behalf of the respondent, the First Appellate Court had found that those documents are not sufficient to prove his possession and occupation of the thatched house, put up by him in the suit property, as it had been found that the said receipts had not contained the dates as to when they had been issued and the door numbers of the houses. Therefore, the claim of the respondent that he has been in continuous possession and occupation of the thatched hut in the suit property, for a long time, had not been accepted by the First Appellate Court. In such circumstances, the First Appellate Court had accepted the claims made on behalf of the appellant and had decreed the suit in his favour, by its judgment and decree, dated 7.9.2006, made in A.S.No.57 of 2006. 21. Aggrieved by the judgment and decree of the First Appellate Court, dated 7.9.2006, made in A.S.No.57 of 2006, the defendant in the suit, who was the respondent in the first appeal, had filed the present second appeal before this Court, raising the following questions, as substantial questions of law: "1. Whether the decree and judgment on the first https://hcservices.ecourts.gov.in/hcservices/ appellate Court is liable to be reversed for non consideration of no substantial oral or documentary evidence to prove that the suit property allotted to the plaintiff? 2. On the admitted evidence of the plaintiff that the defendant is in possession as he claims title by way of the adverse possession, which was not properly decided by the first appellate Court in its findings, when the plaintiff has failed to prove his specific cases? 3. Whether the rejecting of exhibit by interpretation by the first appellate Court is tenable in law especially when the oral evidence can be excluded by the documentary evidence? 4. Whether the interpretation given to the boundaries as it is one and the same as to the exhibit A.1 and suit schedule property by the first appellate Court is tenable in law when the appellant has specifically pleaded that the description of property given by the plaintiff is not correct?" 22. The learned counsel appearing on behalf of the appellant had submitted that the judgment and decree of the first appellate Court, made in A.S.No.57 of 2006, is contrary to law, weight of evidence and the probabilities of the case. The first appellate Court ought to have considered the fact that the appellant has been residing in the suit property, by putting up a hut therein, for nearly 34 years and that the possession had been admitted by the respondent, from the year 1985 onwards. Even though the respondent had alleged that the appellant had trespassed upon the suit property, he had not initiated any criminal proceedings against the appellant. Thus, it is clear that the appellant was not guilty of trespass, as alleged by the respondent. 23. The learned counsel appearing on behalf of the appellant had further submitted that the first appellate Court ought to have seen, from the pleadings, as well as the evidence available before the trial Court, that the main objective of the respondent was to evict the appellant from the Nanja lands under his cultivation. The first appellate Court ought to have considered the fact that the appellant had been in long and continuous possession. As such, he had prescribed title, in respect of the suit property, by adverse possession. Sufficient reasons had not been given by the first appellate Court to set aside the judgment and decree of the trial Court, even though the trial Court had given clear findings in dismissing the suit filed by the respondent. 24. The learned counsel appearing on behalf of the appellant had further submitted that the first appellate Court ought to have noted that the respondent, while adducing oral evidence, as P.W.1, could https://hcservices.ecourts.gov.in/hcservices/ not state, correctly, the name of the vendor of the property in question, especially, when it differs from the description of the said property, in Exhibit A.1. The reasoning given by the first appellate Court, in justifying the evidence adduced by P.W.1, is unsustainable in law. 25. The learned counsel appearing on behalf of the appellant had further submitted that it must be noted that the respondent had not filed any document, except Exhibit A.1, to prove his title and possession, in respect of the suit property, prior to the year, 1985. No clear findings had been given by the first appellate Court, with regard to the difference in the description of the boundaries of the suit property in the plaint and in Exhibit A.1. Further, the first appellate Court ought to have noted that there was no evidence to prove the claim of the respondent that the suit property had been allotted to him, by way of partition. 26. The learned counsel appearing on behalf of the appellant had further submitted that the lower appellate Court ought to have considered the inconsistent claims of the respondent, as he had pleaded, at one stage that the appellant was a permissive occupant, and at another stage, he had pleaded he was a trespasser upon the suit property. The first appellate Court ought to have considered the house tax receipts, filed by the appellant, to prove his possession of the residential thatched hut in the suit property, in which he had been residing. 27. Per contra, the learned counsel appearing for the respondent had submitted that the first appellate Court was right in reversing the findings of the trial Court, by its judgment and decree, dated 7.9.2006, made in A.S.No.57 of 2006. The first appellate Court had come to its conclusions, by correctly appreciating the oral, as well as the documentary evidence available on record. 28. The learned counsel appearing on behalf of the respondent had further submitted that the first appellate Court had noted the fact that the appellant had been making mutually inconsistent and destructive claims, by denying the title of the respondent in respect of the suit property and at the same time, claiming title to the said property, by way of adverse possession. 29. The learned counsel appearing on behalf of the respondent had further submitted that, unless the appellant was a tenant or a lessee, he is not entitled to claim the benefits, under the Tamil Nadu Kudiyurruppu Act. The first appellate Court was right in coming to its conclusions that the respondent had title to the suit property, by holding that the documentary evidence available on record, as per Exhibit A.1, would prevail over the oral evidence adduced before the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 30. The learned counsel appearing on behalf of the respondent had further submitted that it had also been found that the appellant was not in possession of the suit property, beyond the statutory period of 12 years, to claim title, by adverse possession. It had also been held that the boundary description in Exhibit A.1 was tallying with the description of the suit property given in the plaint, filed in O.S.No.542 of 1998. Therefore, the first appellate Court was also right in coming to its conclusion that the appellant was liable to hand over the possession of the suit property, to the respondent and that he was also liable to pay Rs.250/- for the bamboo, cut and carried away by him, from the suit property. It had also been found that, in spite of having received the notice, issued on behalf of the respondent, marked as Exhibit A.2, no reply had been sent by the appellant. Thus, the first appellate Court had rightly decreed the suit, in O.S.No.542 of 1998, in favour of the respondent in the second appeal, who was the plaintiff in the said suit. 31. The learned senior counsel appearing on behalf of the appellant had relied on the following decisions in support of his contentions: 31.1. In PANNEERSELVAN P. Vs. A.BAYLIS (2005 (5) CTC 17), the Division Bench of this Court had held as follows: "13. We do not think such a contention can be countenanced, more particularly, in a suit for specific performance of a contract. Apart from the general principle of law that the plaintiff must succeed on the strength of his own case and not on the basis of the weakness in the case of the defendant, in a suit for specific performance of contract, the plaintiff is obviously required to prove that there is a definite contract which is capable of being specifically enforced." 31.2. In GOVINDAMMAL (DIED) Vs. ARUMUGHAM (1998 (1) CTC 501), this Court had held that "A careful analysis would go to show that the suit for recovery of possession straightaway itself is a misconceived remedy in the facts and circumstances of the case and it was in-appropriate also for the learned trial judge as also the first appellate Judge, who have chosen to deal with the claim of the parties as though it is for declaration of title when it was only a bare suit for recovery of possession in which the question of prima facie title alone can be gone into incidentally. No final adjudication or declaration of title can be made." https://hcservices.ecourts.gov.in/hcservices/ 31.3. In MURUGAIYAN Vs. SUBBAIYAN (2001 (3) CTC 393), this Court had held that "Even otherwise the established legal position when there is no adequate evidence with regard to possession by either party, is possession should follow title. In the instant case, the title of the plaintiffs having been clearly found, the lower appellate Court was in error in finding that the defendant was in enjoyment of the palmyrah trees. There is some vague averment in the written statement with regard to adverse possession by the defendant. However, there is no proof of the same. The claim of the defendant on the