SEKAR REPORTER

Court News from Madras High Court

are answered.  In view of this finding, the judgment and decree of the first appellate Judge/Subordinate Judge, Kancheepuram, in A.S.No.14 of 2013, dated 31.08.2018 is set aside and the judgment and decree of the trial Judge/District Munsif-cum-Judicial Magistrate, Sriperumbudur in O.S.No.1062 of 2008, dated 21.12.2012 is restored. This Second Appeal is allowed.  No costs.  Consequently, connected Miscellaneous Petitions are closed. Mra    08.04.2022 Internet: Yes Index   : Yes Speaking/Non speaking order To The Subordinate Judge, Kancheepuram. The District Munsif-cum-Judicial Magistrate, Sriperumbudur. G.CHANDRASEKHARAN, J., mra Judgment in S.A.No.302 of 2019 and CMP Nos .4541 of 2019 and  17832 of 2021    08.04.2022. For Appellants                           :         Mr.P.Dinesh Kumar for    M/s.M.Nandhakumar                                  For Respondent                           : Mr.R.Subramanian JUDGMENT

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

Judgment Reserved on

24.01.2022

 Judgment Pronounced on 08.04.2022

CORAM:

THE HONOURABLE MR. JUSTICE G.CHANDRASEKHARAN

S.A.No.302 of 2019 and

CMP Nos .4541 of 2019 and  17832 of 2021

  1. Saradha Ammal
  2. Mani … Appellants

..vs..

J.Sridhar           … Respondent

 

This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 31.08.2018 made in

A.S.No.14 of 2013 on the file of the learned Subordinate Judge, Kancheepuram, reversing the judgment and decree dated 21.12.2012 made in O.S.No.1062 of 2008 on the file of the learned District Munsifcum-Judicial Magistrate, Sriperumbudur.

For Appellants                           :         Mr.P.Dinesh Kumar

for

M/s.M.Nandhakumar

For Respondent                           : Mr.R.Subramanian

JUDGMENT

This Second Appeal is filed challenging the judgment and decree of learned Subordinate Judge, Kancheepuram, in A.S.No.14 of 2013 dated 31.08.2018 reversing the judgment and decree of the learned District Munsif-cum-Judicial Magistrate, Sriperumbudur in O.S.No.1062 of 2008 dated 21.12.2012.

  1. Respondent filed the suit for declaration of his title to ‘B’ schedule property and for recovery of possession from the appellants and for costs.
  2. The case of the respondent, as seen from the plaint, in brief is as follows:-

He is the absolute owner of ‘A’ schedule property.  He got title to this property by virtue of a registered partition deed dated 04.12.2013.  It is an ancestral property.  His grand father was having a rice mill in the suit village.  First appellant’s father-in-law Chinnappan was employed under him.  During the course of his employment, he was permitted by respondent’s grand father Thirumalai Naidu to occupy the ‘B’ schedule property, which is a portion in ‘A’ schedule property.  After the death of Chinnappan, husband of the first appellant continued to be employed in the rice mill and therefore, he continued to occupy the ‘B’ schedule property as a permissive occupier.  After the death of first appellant’s husband Ethirajan, appellants were employed under respondent’s father T.Jayarama Naidu till his death in 1996.  After the death of respondent’s father T.Jayarama Naidu in 1996, appellants, though not employed under the respondent, continued to occupy the suit property as permissive occupiers.  They have not vacated the suit property even after they were asked to vacate.  In a panchayat, panchayatdars directed the respondent to purchase some other property to accommodate the appellants and the appellants agreed to vacate and handover the suit B schedule property. Respondent was making arrangement for that.  But appellants filed the suit in O.S.No. 285 of 2004 seeking permanent injunction against the respondent.  The suit was decreed.  Respondent filed the appeal before Subordinate Court, Chengalpattu and it is pending.  Appellants are permissive occupiers and they have no right to deny the title of the respondent.  They refused to vacate the ‘B’ schedule property.  Therefore, this suit.

  1. The case of the appellants is that they are in lawful possession and enjoyment of the land measuring 15 cents in S.No.34/5 Oragadam village from time immemorial. This land was originally occupied by Chinnappa Naicker, father-in-law of the first appellant. They occupied the land when he was employed in the rice mill run at the adjacent property. His possession and enjoyment of the said land was continuous, uninterrupted and nobody including the person who was running the rice mill did not object the possession and enjoyment of the said property and even when the superstructure was raised and development was made.  Even if the respondent has any title deed or documents pertaining to the suit property, he ceased to have any right to seek possession of the suit property as the claim is beyond the period of limitation.  The superstructure is assessed to property tax and tax has been paid periodically. Appellants are the absolute owners of the property.  During 2004, respondent influenced the electricity authorities and disconnected the electricity to force the appellants to quit the property.  Appellants filed O.S.No.285 of 2004 and got the electricity supply restored.  There is no question of permissive occupation arises in the case of appellants and nobody had given such a permission to occupy 15 cents or any part thereon.  No such permission was revoked to enable the respondent to demand possession.  Respondent is not able to say when the permission was granted, by whom it was granted.  There is no cause of action to file the suit.  The suit is not properly valued.

Therefore, the suit is liable to be dismissed.

  1. On the basis of the above pleadings, the trial court framed the following issues:-
    1. Whether the plaintiff has proved his title to the suit ‘B’ schedule property and whether he is entitled to the relief of declaration as prayed for ?
    2. Whether the plaintiff is entitled for recovery of possession of the suit ‘B’ schedule property as prayed for ?
    3. To what other relief ?
  2. In the trial before the trial Court, PW.1 and PW.2 were examined and Exs.A1 to A9 were marked on the side of respondent/plaintiff. 1 was examined and Exs.B1 to B10 were marked on the side of appellants/defendants.
  3. On the basis of oral and documentary evidence, the trial

Court found that the appellants are in continuous possession and enjoyment of ‘B’ schedule property for more than 50 years, well within the knowledge of the respondent and his predecessors in title and therefore, they cannot be considered as permissive occupiers and their possession is settled possession and therefore, the respondent is not entitled for the relief claimed in the plaint and dismissed the suit.  The respondent filed appeal in A.S.No.14 of 2013.  First appellate Court, on reconsideration and reappreciation of evidence, found that the appellants’ possession can only be construed as possession of permissive occupiers, because the appellants have not pleaded and proved adverse possession. The trial Court, without any pleadings and evidence, wrongly concluded that appellants’ possession is adverse possession and therefore, they cannot be evicted after the period of limitation.  In this view of the matter, first appellate court, reversed the finding of the trial Court and found that the respondent is entitled for the relief claimed in the plaint and decreed the suit by allowing the appeal.  Challenging the said judgment, appellants/defendants have filed this appeal.

  1. At the time of admission of this Second Appeal, the

following substantial questions of law were framed for consideration:-

  1. Whether the lower appellate court was right in decreeing the suit for declaration and recovery of possession in view of the categorical finding in O.S.No.285 of 2004 that the defendants herein are not in permissive possession and that they have proved settled possession over the property disbelieving the theory of permissive possession putforth by the present plaintiff as defendant in the said suit ?
  2. Whether the lower appellate court was right in relying upon Ex.A6 patta to conclude that the plaintiff has proved his title over the suit property ?
  1. Learned counsel for the appellants submitted that appellants proved that they and their predecessors in title are in possession and enjoyment of the suit property for a period of more than 50 years.

Respondent has not produced any document to show that his grand father Thirumalai Naidu had any right in ‘B’ schedule property.  There is also no proof to show that Thirumalai Naidu had any right to permit Chinnnappan to occupy ‘B’ schedule property.  The alleged permission granted by Thirumalai Naidu in favour of Chinnappan is not proved. After Chinnappan, his son Ethirajan continued to be in possession and after that of Ethirajan, appellants are in possession of ‘B’ schedule property.  Ex.A6-patta came into existence only in 1987.  Ex.B6Electricity payment receipt, dated 12.11.1982, stands in the name of Ethirajan, shows that appellants were in possession and enjoyment of ‘B’ schedule property, even prior to 1987.  Ex.A6-patta was obtained behind the back of appellants.  Ex.A7-partition deed was created on the basis of invalid Ex.A6-patta.  Suit filed by the appellants in O.S.No.285 of 2004 against the respondent was decreed.  It was found in O.S.No.285 of 2004 that the appellants are in possession in their own right and not in permissive occupation.  The lower appellate Court has not considered all these aspects and wrongly set aside the well considered judgment of the trial Court and decreed the suit.  Therefore, learned counsel for the appellants prayed for setting aside the judgment of the first appellate Court and for the dismissal of the suit.

  1. In response, learned counsel for the respondent submitted that the appellants claimed injunction on the basis of their adverse possession of the suit property in O.S.No.285 of 2004. The trial Court has not given a specific finding as to whether the appellants’ possession is adverse possession to the interest of the respondent.  The trial Court found that the appellants’ possession was a settled possession.  It was also found that appellants are entitled to get protection of the settled possession until they are evicted by due process of law.  Therefore, the present suit is filed.  In the suit before hand, the case of the respondent is that appellants are in permissive possession.  Appellants did not claim adverse possession, but only claim lawful possession.  There is no pleading with regard to the adverse possession.  A permissive possession cannot become adverse, how long so the permissive occupier is in possession of the property.  Respondent filed the suit when the appellants have not vacated the property even after they were asked to do so.  The first appellate Court, on reappreciation of evidence, found that the appellants are in permissive possession and therefore, ordered eviction of the appellants.  Thus, he prayed for confirming the judgment of the first appellate Court and for dismissal of this appeal.
  2. From the case set out by the parties, the common thing admitted by both is that the suit ‘B’ schedule property was in possession and enjoyment of Chinnappan, thereafter his son Ethirajan and now in the possession of appellants. It is claimed by the respondent that Chinnappan, Ethirajan and appellants are permissive occupiers.  The claim of permissive occupation by the respondent is denied by the appellants and it is claimed in the suit that they are in lawful possession from the time of Chinnappan, more than 50 years before.  The right, if any, of the respondent in the suit property is lost by limitation.
  3. As rightly pointed out by the learned counsel for the

respondent, there is no specific plea fitting the ingredients necessary to constitute adverse possession, in the written statement.  However, in the suit in O.S.No.285 of 2004 filed by the appellants against the respondent and the Divisional Engineer, Tamil Nadu Electricity Board, Sriperumbudur, seeking permanent injunction, they have clearly pleaded that the suit property is in their possession and enjoyment for more than 50 years from the time of Chinnappan and they perfected title by adverse possession.  In para-7 of the plaint in O.S.No.285 of 2004, it is specifically pleaded that “plaintiffs submit that they are in continuous, undisturbed, uninterrupted, peaceful, open and exclusive possession of the suit property for last more than 50 years, which would bar the remedy of real owner and excludes his title, but also confirms the title upon the plaintiff.”  The respondent had pleaded in that case that Chinnappan was permitted by his grandfather Thirumalai Naidu to occupy a small hut belong to Thirumalai Naidu and after his death, first appellant’s husband and then, appellants are in permissive occupation. The trial Court in O.S.No.285 of 2004 found that the appellants are in settled possession of the suit property and therefore, they are entitled to get their possession protected, unless they are evicted by due process of law.  Respondent’s contention that appellants are in possession of the suit property on the permission granted by his grandfather is not proved by any evidence. Respondent, it seems, has not preferred any appeal against the said judgment and that judgment in O.S.No.285 of 2004 has become final.

  1. It is clear from this judgment that there is a specific finding that the respondent has not proved the plea of permissive possession and on the other hand, the plea of the appellants for protection on the basis of their settled possession found acceptance and the court found that their settled possession is to be protected until they are evicted by due process of law. Only on the basis of this finding, the respondent has now filed this suit.  In this suit, respondent has again set up the case of permissive possession.
  2. It is submitted by the learned counsel for the respondent that there is no specific pleading raised by the appellants in the written statement that appellants’ claim of right in the suit B schedule property is on the basis of adverse possession. They claimed that they are in lawful possession for more than 50 years, presumably because of the finding given in O.S.No.285 of 2004 that their possession is settled possession. What is a settled possession?  Learned counsel for the respondent relied on the judgment reported in (2004) 3 LW 143 in Rame Gowda (D) by LRs. ..vs.. M.Varadappa Naidu (D) by LRs and another, as to what constitute settled possession.  He also relied on the judgment of the Hon’ble Supreme Court reported in 2020 (1) MLJ 837 in Civil Appeal

No.190 of 2020 in Uttam Chand (D) Through LRs. ..vs.. Nathu Ram (D) Through LRs. & Others dated 15.01.2020 as to the claim of adverse possession.  He relied on the judgment reported in (1998) 2 CTC 218 in R. Maria Siluvai ..vs..  B. Sreekumari Amma and three others as to the effect of the findings given in an earlier suit.  The ruling reported in (2012) 1 MWN Civil 840 (Maria Margarida Sequeria Fernandes and others ..vs.. Erasmo Jack de Sequerial (dead) through LRs and others) is relied for the proposition as to whether long possession entiles title to the property.  With regard to proof of adverse possession, he relied the ruling reported in (2019) 9 SCC 369 (Brijesh Kumar and another ..vs.. Shardha Bai (dead) through LRs and others).

  1. In Rame Gowda (D) by LRs. ..vs.. M.Varadappa Naidu (D) by LRs and another reported in (2004) 3 LW 143 (cited supra), the plaintiff filed a suit alleging his title and possession over the disputed piece of land. The trial Court though found that the plaintiff failed to prove his title, he succeeded in proving his possession and therefore, he is entitled to protect his possession unless dispossessed by due process of law.  While discussing the concept of law of possession in the suit filed on the basis of proprietary right and possessory right, referred the judgments,
    • Krishna Ram Mahale (D) by LRs. ..vs.. Mrs.Shobha Venkat Rao reported in (1989) 4 SCC 131, wherein it was held that where a person is in settled possession of the property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property, except by recourse of law. It is also observed in this judgment that, it is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner.  The concept of settled possession and the right to protect his possession against the owner has come to be settled by a catena of decisions.  But mere stray or even intermittent act of trespass do not give such a right against the true owner. The possession, which a trespasser is entitled to defend against the rightful owner, must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner.
    • In Puran Singh and others ..vs.. The State of Punjab reported in (1975) 4 SCC 518, the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into a settled possession. The settled possession must be, (i) effective, (ii) undisturbed and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser.  The phrase ‘settled possession’ does not carry any special charm or a magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of ‘settled possession’ :-
  1. i) that the trespasser must be in actual physical possession of the property over a

sufficiently long period; ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case; iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.

(iii) In the case of Munshi Ram and Ors.(supra) and Puran Singh and Ors. (supra), the Court has approved the statement of law made in Horam Vs. Rex AIR 1949 Allahabad 564, wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter, may be dispossessed by the true owner only by having recourse to the due process of law for re-acquiring possession over his property.

  1. In Rame Gowda case (cited supra), the Court has found the plaintiff as having failed in proving his title, nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff.  The trial Court, therefore, left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith.  The trial Court and the High Court have rightly decided the suit. It is still open to the defendant-appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property.
  2. In 2020 (1) MLJ 837 (Uttam Chand (D) Through LRs. ..vs.. Nathu Ram (D) Through LRs. & Others), after discussing various case laws regarding what is meant by adverse possession, what is required to prove adverse possession, it was finally held that
  3. …….. The plea of the defendants is one of continuous possession but there is no plea that such possession was hostile to the true owner of the suit property. The evidence of the defendants is that of continuous possession. Some of the receipts pertain to 1963 but possession since November, 1963 till the filing of the suit will not ripe into title as the defendants never admitted the plaintiff-appellant to be owner or that the land ever vested with the Managing Officer. In view of the judgments referred to above, we find that the findings recorded by the High Court that the defendants have perfected their title by adverse possession are not legally sustainable. ……..”
  4. In Maria Margarida Sequeria Fernandes and others ..vs..

Erasmo Jack de Sequerial (dead) through LRs. reported in (2012) 1 MWN Civil 840, the principles of law with regard to the claim of title on the basis of possession are crystalised as under:-

“101. Principles of law which emerge in this case are crystallized as under:-

  1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
  2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
  3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
  4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.
  5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.”
  1. On adverse possession, it is observed in the judgment reported in (2019) 9 SCC 369 (Brijesh Kumar and another ..vs..

Shardha Bai (dead) through LRs. and others)  as follows:-

  1. Adverse possession is hostile possession by assertion of a hostile title in denial of the title of the true owner as held in M. Venkatesh (supra). The Respondent had failed to establish peaceful, open and continuous possession demonstrating a wrongful ouster of the rightful owner. It thus involved question of facts and law. The onus lay on the Respondent to establish when and how he came into possession, the nature of his possession, the factum of possession known and hostile to the other parties, continuous possession over 12 years which was open and undisturbed. The Respondent was seeking to deny the rights of the true owner. The onus therefore lay upon the Respondent to establish possession as a fact coupled with that it was open, hostile and continuous to the knowledge of the true owner. The Respondent-Plaintiff failed to discharge the onus. Reference may also be made to Chatti Konati Rao and Ors. v. Palle Venkata Subba Rao, MANU/SC/1033/2010 : (2010) 14 SCC 316, on adverse possession observing as follows:

“15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law.”

  1. From the reading of these judgments on adverse possession, the claim of adverse possession requires all the three classic requirements to co-exist at the same time, namely,
  • nec vi, adequate in continuity;
  • nec clam, adequate in publicity; and
  • nec pricario, adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful, so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that, but for due diligence he would have known it.  A person, who sets up a plea of adverse possession must establish both possession, which is peaceful, open and continuous.   A plea of adverse possession is founded on the acceptance that ownership of the property vests in another, against whom the claimant asserts a possession adverse to the title of the other.  The settled possession of trespasser is protected only till the time when he is dispossessed by the true owner, by having recourse to due process of law for re-acquiring possession over his property.  It is not as though the person in settled possession can continue to be in possession against the true owner, when the true owner exercised the right of eviction against him by recoursing to due process of law.  We have to appreciate the evidence available in this case, on the basis of this settled proposition of law.
  1. It is claimed by the respondent that the appellants are in permissive possession of the property and that is denied by the appellants. Initially, they claimed adverse possession in the suit filed in O.S.No.285 of 2004.   The trial Court in O.S.No.285 of 2004 found that the possession of the appellants is the settled possession and it has to be protected until they are evicted by due process of law.  There is also a finding that the  permissive possession alleged by the respondent was not proved.  In this case also the respondent’s case is that the appellants are in permissive possession.  Now the case of the appellants is that they are in lawful possession, by being in possession for more than 50 years. Certainly the appellants are not claiming proprietary right, but only possessory right.  That means that there is one proprietor for the property. Appellants claim possessory right against the interest of the owner.  The first appellate Court found that the second appellant’s grandfather and second appellant’s father have worked under respondent’s grandfather and therefore, there is possibility to infer that second appellant’s grandfather and father were permitted to occupy and reside in the suit ‘B’ schedule property.   Appellants have not indicated any one as the owner of the property.  Respondent produced documents in support of the claim of title in the form of pattas (Ex.A1 and A6), partition deed (Ex.A7), Adangal  (Ex.A8) and kist receipts (Ex.A9).  Appellants had only produced voters list, family card, electricity receipts, house receipts in the form of Exs.B3 to B7.  Respondent has produced better document in the form of Exs.A1 and A6 to stake claim to the title to the suit property.
  2. It is pertinent to refer to the evidence of respondent, who was examined as PW.1 in this case. He admitted that appellants stopped coming to work from 1997, after the death of his father in 1996.  He admitted that appellants are in possession of ‘B’ schedule property from the time he can remember and beyond.  He specifically admitted that appellants built house in the suit ‘B’ schedule property and are residing there.  He also admitted that house tax and electricity charges are being paid by the appellants.  It is his evidence that he did not know who granted permission to the appellants, as to whether it was his father or grandfather and he has no written document to show the permission granted.  He very clearly admitted that appellants and before them, Ethirajan and Chinnappan were in possession and enjoyment of ‘B’ schedule property for over 60 years.  There is a damaging admission that the appellants are in occupation of ‘B’ schedule property as owners. Thus, it is seen from his evidence that appellants are in possession and enjoyment of the suit ‘B’ schedule property, before them, Ethirajan and Chinnappan for over 60 years.  Respondent’s right to this property is claimed only from 2003 when he was allotted this property through Ex.A7- partition deed.  Neither respondent’s father nor his grandfather initiated any action against the appellants for evicting them from the suit property.  2 also stated that the hut belongs to the appellants and they are residing there from his childhood days.  It again confirms the case of the appellants that they are in possession and enjoyment of the suit ‘B’ schedule property for more than 50 years.
  3. Appellants produced Ex.B3-Voters identity card, Ex.B4-

Family card identity Chit, Exs.B5 and B6-Electricity payment receipts, Ex.B7-House Tax receipts to show their continued possession.  These documents clearly establish the fact that there are documentary evidences to show, apart from the oral admissions of PW.1 and PW.2, that appellants are in possession and enjoyment of ‘B’ schedule property from 1979 and prior to that.

  1. 1’s evidence is that his grandfather Chinnappa Naicker was the one who helped Thirumalai Naidu in purchasing the rice mill and even at the time of this purchase, Chinnappa Naicker was enjoying the 15 cents of land. His grandfather put up a hut, his father obtained electricity connection and the property is in their enjoyment for more than 50 years. He also admits during the course of his cross examination that his grandfather and then his father were working in the rice mill and he was also working in the rice mill.   It is his evidence that ‘B’ schedule property was not purchased by either his father or grandfather.  He claims that it is an ancestral property.  It is also his admission that there is no patta for ‘B’ schedule property and they have not paid land tax.  The house tax was paid by them.  It is his evidence that there is no material to show that his grandfather helped Thirumalai Naidu in purchasing the suit property and that they were living there prior to the sale in favour of Tirumalai Naidu. However, the consistent evidence of DW.1 is that the suit ‘B’ schedule property is in their possession and enjoyment for several years in their own right and he specifically denied that his possession is permissive possession.
  2. Now, we have seen the oral and documentary evidence produced by both the parties. The documentary evidence produced by respondent show that Ex.A6-patta in respect of the suit property was issued in favour of respondent’s father Jayaraman in 1987, followed by Ex.A1-patta of the year 2004 in favour of respondent.  Appellants produced electricity receipt of the year 1979, 1982, family card identity chit of the year 1989, voter’s list card of the year 1988 to show their possession of the property.  It is clearly admitted by respondent in Ex.A3complaint dated 21.07.2004 given to the Sub-Inspector of Police, Manimangalam police station that Ethirajan and his wife Saradha have constructed a house in their land and living there.  They wanted them to vacate, but they refused to vacate the building.  This complaint shows that even prior to 2004, appellants had constructed the building in ‘B’ schedule property and living there.  The fact that the house tax receipts are in their name and the electricity connection is in their name show that the appellants have asserted their right in the suit ‘B’ schedule property and claimed title to the suit ‘B’ schedule property.  This assertion is to the knowledge of the respondent and his predecessors.  There are evidences to show that they are in open, continuous and uninterrupted possession of ‘B’ schedule property to the knowledge of the respondent and his predecessors.  We have seen from the evidence of PW.1 that he openly admitted that he did not know who granted permission to the appellants and appellants are in occupation of ‘B’ schedule property as owners. When there is evidence to show that there are documents, atleast from

1979, to show that the appellants claim right and title to the suit  ‘B’ schedule property, this suit for declaration of title and recovery of possession was filed only in 2007.

  1. Appellants had set up a subtle plea of adverse possession in this suit. It is now claimed in this suit that respondent’s suit is barred by limitation.  In the earlier suit filed by the appellants in O.S.No.285 of 2004, it is specifically pleaded that appellant’s possession of the suit property is continuous, uninterrupted, peaceful, open, notorious and exclusive for past more than 50 years, which would bar the remedy of earlier owner and excludes his title but also confers the title upon the appellants, meaning thereby appellants claim to have acquired title by adverse possession.  The trial Court in that case found that appellants’ possession was their settled possession in view of their long possession for more than 50 years and it was also found that the permissive possession alleged by the respondent is not proved.  Appellants claim in respect of suit ‘B’ schedule property in this case has to be considered in the light of pleadings and findings given in O.S.No.285 of 2004.

Though the respondent has produced better documents to claim title to the suit property, in view of open, continuous, uninterrupted and hostile possession of the suit ‘B’ schedule property by the appellants, adverse to the interest of the respondent and to the knowledge of the respondent for more than 50 years, this Court is of the considered view that the respondent had lost the right to claim declaration of title and recovery of possession. Even assuming, without admitting, that appellants’ predecessors were permitted to be in possession of ‘B’ schedule property by respondent’s predecessors, this permissive possession subsequently turned adverse to the interest of the owner when the appellants openly claimed right, title in the ‘B’ schedule property by constructing house, paying house tax in their name, obtaining electricity service connection and being in possession for more than 50 years.

  1. In Ram Nagina Rai and another ..vs.. Deo Kumar Rai

(deceased) by legal representatives and  another reported in (2019) 13

SCC 324, it is observed that,

“Article 65 presupposes that the limitation starts only if the defendants prove the factum of adverse possession affirmatively from a particular time.   Adverse possession means a hostile assertion ie., a possession which is expressly or impliedly in denial of the title of the true owner.  Until the defendants’ possession becomes adverse to that of the real owner, the defendants continue in permissive possession of the property.  Only if the defendants’ possession becomes adverse to the interest of the real owner and the real owner fails to file the suit for possession within 12 years, as prescribed under Article 65 of the Limitation Act, from the point of time, the possession by the defendants becomes adverse to the plaintiffs, the real owner loses his title over the property.  The test of nec vi, nec clam, nec precario ie.,’without force, without secrecy, without permission’ as an established test for finding adverse possession, has to be applied.”

  1. It is pleaded in the plaint filed in this suit that Chinnappan was employed by respondent’s grandfather in the rice mill and during the course of his employment, he was permitted to occupy the suit ‘B’ schedule property. In the written statement filed by the respondent in O.S.No.285 of 2004, it is claimed that Chinnappan was working as an operator in the rice mill of his grandfather and therefore, he was permitted to occupy a small hut belong to his grandfather. In this suit, ‘B’ schedule property is shown as vacant site.  The existence of hut is not shown in ‘B’ schedule property.  It is also pleaded in the plaint filed in this suit that Chinnappan, after him his son Ethirajan and then, appellants worked under Thirumalai and Jayaraman till 1996.  After the death of respondent’s father in 1996, appellants were not employed under the respondent.  Though respondent claims that he has asked the appellants to vacate the suit property after 1996, there is no evidence produced to show that the respondent asked the appellants to vacate the suit property after 1996 till the filing of suit in O.S.No.285 of 2004.
  2. When there are evidences to show that appellants claim right, title to the ‘B’ schedule property from 1979, only in 2004, respondent came up with a case that appellants’ possession of ‘B’ schedule property is permissive possession. By that time when they raised this plea, appellants by their continued possession, acquired title adverse to the interest of the respondent.  In the considered view of this Court, appellants acquired title to the ‘B’ schedule property by adverse possession and barred the respondent from claiming declaration of title and recovery of possession.  It is now clarified in Ravinder Kaur Grewal and others ..vs.. Manjit Kaur and others reported in (2019) 8 SCC 729 that a person claiming title by virtue of adverse possession can maintain a suit for declaration of title.
  3. For the reasons aforesaid, this Court finds that though Ex.A6 patta is a better document to show the claim of respondent’s title in the suit property, in view of appellants acquiring title to the suit ‘B’ schedule property by their adverse possession, decreeing the suit by the first appellate Court is not correct. Thus, the substantial questions of law Nos.1 and 2 are answered.
  4. In view of this finding, the judgment and decree of the first appellate Judge/Subordinate Judge, Kancheepuram, in A.S.No.14 of 2013, dated 31.08.2018 is set aside and the judgment and decree of the trial Judge/District Munsif-cum-Judicial Magistrate, Sriperumbudur in O.S.No.1062 of 2008, dated 21.12.2012 is restored. This Second Appeal is allowed.  No costs.  Consequently, connected Miscellaneous Petitions are closed.

Mra    08.04.2022

Internet: Yes

Index   : Yes

Speaking/Non speaking order

To

  1. The Subordinate Judge, Kancheepuram.
  2. The District Munsif-cum-Judicial Magistrate, Sriperumbudur.

G.CHANDRASEKHARAN, J.,

mra

Judgment in

S.A.No.302 of 2019 and CMP Nos .4541 of 2019 and  17832 of 2021

08.04.2022

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