IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :
05. 06.2013 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.563 of 2011 and M.P.No.1 of 2011 1. G.Srinivasan 2. K.Perumal 3. D.Kumari 4. S.Savithri 5. P.Sarala .. Appellants vs.
1. K.Ganesan 2. K.RAmesh 3. R.Margabandhu .. Respondents This Second Appeal is directed as against the judgment and decree dated 22.11.2010, passed in A.S.No.59 of 2008 on the file of the learned Subordinate Judge, Vellore, confirming the judgment and decree dated 04.06.2008 in O.S.No.613 of 2004 on the file of the Principal District Munsif, Vellore. For Appellants : Mr.P.Arulmathi For Respondents : Mr.R.Margabandhu for Mr.M.P.Jayaprakash, for R3 Notice dispensed with [For R1 & R2]. JUDGMENT
This Second appeal is focussed animadverting upon the judgment and decree dated 22.11.2010 passed in A.S.No.59 of 2008 by the learned Subordinate Judge, Vellore, confirming the judgment and decree dated 04.06.2008 in O.S.No.613 of 2004 passed by the Principal District Munsif, Vellore.
2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the germane facts absolutely necessary for the disposal of this Second Appeal would run thus: (a) The original plaintiff, Krishnan, filed the suit seeking the relief of declaration of his title to the suit properties and for obtaining delivery of possession of it and for recovery of a sum of Rs.70,000/- (Rupees seventy thousand only) towards damages. (b) The gist and kernel of the averments in the plaint would run thus: The third defendant herein, previously filed the suit O.S.No.831 of 1971 as against the said Krishnan and others, seeking delivery of possession of the suit property and in that a compromise was arrived at. However, he did not comply with the compromise decree. Wherefore, irrespective of the said compromise decree, the plaintiff/Krishnan had been in possession and enjoyment of the suit property and acquired title over the suit property by adverse possession. While so, D1 and D2 the men of D3, high - handedly barged into the suit property and cut and removed 70 coconut tress, 45 teak trees, 3 tamarind trees, 3 neem trees, one jack fruit tree and ten other trees worth Rs.70,000/- (Rupees seventy thousand only) and also dispossessed the plaintiff/Krishnan. Hence the suit. During the pendency of the suit, Krishnan died and his legal representatives P2 to P6 were added. (c) Per contra, challenging and impugning, refuting and inveighing the averments/allegations in the plaint, D3 filed the written statement, the pith and marrow of it would run thus: After obtention of the compromise decree in the previous suit O.S.No.831 of 1971, D3 herein filed E.P. and got delivery through Court and the sum of Rs.500/- (Rupees five hundred only) contemplated therein to be paid to Krishnan by D3 herein, was also deposited in Court, since the plaintiff/Krishnan did not come forward to receive the amount. After taking delivery through Court, D3 has been in possession and enjoyment of the suit property. The said Krishnan was not in possession and enjoyment of the suit property. However, he vexatiously and falsely filed the suit so as to keep the litigation alive illegally. Accordingly, he prayed for the dismissal of the suit. (d) D1 and D2 also filed written statement contending that they were authorised by D3 to level the suit property and carve out thereon. Accordingly, they prayed for the dismissal of the suit.
4. The trial Court framed the relevant issues.
5. Up went the trial, during which the third plaintiff/Perumal examined himself as P.W.1 along with P.W.2/Kandhasami and marked Exs.A1 to A17; and the third defendant/Margabandhu examined himself as D.W.1 and Exs.B1 to B11 were marked.
6. Ultimately the trial Court dismissed the suit as against which the appeal was filed, for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial Court.
7. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been focussed on various grounds and also suggesting the following substantial questions of law: ".(1) When the possession of the 1st plaintiff is admitted, is not the burden on the 3rd defendant to prove that the alleged delivery was actual delivery and ought not the Court below made the utmost adverse inference against the 3rd defendant in this regard for concealing the delivery receipt admittedly in his possession and which will throw light on the crucial issues?. (2) Whether the possession of the appellants does not automatically become adverse since 31.03.1975, the date fixed for delivery of possession in the prior suit in which the title of the 3rd respondent was upheld?..". (extracted as such) 8. At the outset, I would like fumigate my mind with the following decision of the Hon'ble Apex Court reported in 2012(8) SCC148[Union of India v. Ibrahim Uddin and another].; an excerpt from it would run thus: ".59. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of facts or of law. In SBI v. S.N.Goyal (2008) 8 SCC92 this Court explained the terms ".substantial question of law". and observed as under: (SCC p.103, para 13) ".13......The word ".substantial". prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties ......any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law......There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case.". (emphasis added) 9. Keeping the aforesaid dictum, in mind, I would like to analyse the records to find out as to whether any substantial question of law is involved in this case.
10. Heard both sides.
11. The present original suit was initiated by Krishnan, who was the judgment debtor in the decree in O.S.No.831 of 1971 which was filed by D3 herein previously, for obtaining delivery of possession and in that the compromise decree was passed incorporating the following terms: ".1. That the plaintiff's title to the extent of 0-74 = cents in the plaint to schedule property and marked as ABCDEFG in red colour in the plan attached herewith be and the same is hereby declared; 2. That the first defendant do deliver vacant possession of the abovesaid extent of 0-74 = to the plaintiffs after demolishing the thatched hut constructed by him in the said property; 3. That the first defendant be and is hereby granted time till 31.3.1975 for delivery of possession of the said 0-74 = cents in the 'A' schedule property; 4. That the plaintiffs do pay Rs.500/- to the first defendant on or before 01.02.1975 towards compensation for the demolition of the hut and delivery of vacant possession; 5. That before taking delivery of possession of the extent marked 'ABCDEFG' by the plaintiffs, the first defendant do harvest the crops, if any, raised by him in the said extent; 6. If the first defendant fails to comply with the directions given above, plaintiffs be and are hereby entitled to execute the decree as stated supra; 7. That the plaintiffs be and are hereby entitled to a half share in the extent of 905 cents marked AGFH in the plan attached hereto which includes well, well medu and trees; 8. That while taking delivery of possession of the property by the plaintiffs, the land be measured with the help of a Surveyor and if there is any increase or decrease in the extent decreed between the plaintiffs and the first defendant, they are entitled to get it in equal moieties.
9. That the plaintiffs' claim for mesne profits be and the same is hereby given up; and 10. That the plaintiffs, the 1st defendant, and the defendants 2, 3, 5 and 7 do bear their respective costs of suit Rs.Nil (costs memo not filed by them) (extracted as such) 12. Subsequently, E.P.No.107 of 1976 was filed by D3 herein and through Court he took delivery and the Court also recorded delivery as under: ".Possession given as per decree on 09.07.1977, certain moveables left with sureties. Delivery recorded. E.P. Closed. Put up separate office note.". (extracted as such) 13. While so, the core question arises as to whether the original plaintiff deceased Krishnan in these proceedings was justified in alleging and averring that he irrespective of the delivery recorded by the Court in the earlier proceedings, continued to be in possession of the suit property and acquired prescriptive title.
14. I would like to recollect the following maxims: (i)Ex turpi causa non oritur actio: Out of a base illegal, or immoral consideration, an action does not arise. (ii) Ex dolo malo non oritur actio Out of fraud no action arises; fraud never gives a right of action.
15. There is nothing to indicate and exemplify that Krishnan being the judgment debtor in the earlier proceedings, agitated as against the E.P. proceedings. The learned counsel for the appellants herein, who are the legal heirs of Krishnan, would supinely without mincing words, state that the earlier E.P. proceedings were not challenged and even the earlier compromise decree was not challenged. However, he would hasten to add that the delivery was only a paper delivery and that Krishnan continued to be in possession of the suit property and that he acquired prescriptive title over it.
16. At this juncture, I would like to refer to the recent decision of the Hon'ble Apex Court reported in (2007) 6 SCC59(P.T.Munichikkanna Reddy and others vs. Revamma and others). An excerpt of it would run thus: ".10. In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom wherein the European Court of Human Rights while referring to the Court of Appeal judgment JA Pye (Oxford) Ltd. v.Graham made the following reference: ".Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the Courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol"..
11. This brings us to the issue of mental element in adverse possession cases intention. ...................
14. Importantly, intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialise.
18. On intention, Powell v.McFarlane is quite illustrative and categorical, holding in the following terms: ".If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')". * * * If his acts are open to more than one interpretation and he has not made in perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner. * * * In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner. * * * What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow".. (emphasis supplied) 19. Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and the plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of waiving (wilful) or omission (negligent or otherwise) of the right to defend or care for the integrity of property on the part of the paper-owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.
20. While dealing with the aspect of intention in the adverse possession law, it is important to understand its nuances from varied angles.
22. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf Vs. Govt. Of India in the following terms: (SCC p.785, para 11) ".Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.".
23. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner.
31. Inquiry into the starting point of adverse possession i.e dates as to when the paper-owner got dispossessed is an important aspect to be considered. In the instant case the starting point of adverse possession and other facts such as the manner in which the possession operationalised, nature of possession: whether open, continuous, uninterrupted or hostile possession, have not been disclosed. An observation has been made in this regard in S.M.Karim Vs. Bibi Sakina: (AIR p.1256, para 5) ".Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for 'several 12 years' or that the plaintiff had acquired 'an absolute title' was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.". (emphasis supplied) 32. Also mention as to the real owner of the property must be specifically made in an adverse possession claim.
33. In Karnataka Wakf Board it is stated: (SCC pp.785-86, para 12) ".A plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. In P.Periasami V. P.Periathambi this Court ruled that: (SCC p.527, para 5) 'Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.' The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal V. Mirza Abdul Gaffar that is similar to the case in hand, this Court held: (SCC pp.640-41, para 4) '4.As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53 A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.'". (emphasis supplied) 17. A mere running of the eye over the above precedent, would display and demonstrate that a party cannot try to achieve success in the litigative process by simply pleading adverse possession without adducing any clinching evidence. He must be able to establish and prove that he entered into possession of the suit property independently and started enjoying it from a particular date as absolute owner. Here the above admitted narration of facts, would portray and parody, display and demonstrate that the said Krishnan, the original deceased plaintiff, was none but the judgment debtor in the E.P. and he cannot simply call upon the Court itself to pooh-pooh or belittle, discard or despise the earlier court proceedings and recognise his alleged adverse possession. The very plea taken in the plaint itself is a misconceived one unworthy of being considered and processed in a Court of law. If a judgment debtor is actually aggrieved by any order of the Executing Court, he has to challenge it before the higher forum and he should take appropriate steps. He cannot simply file a separate suit. The principle of res judicata would be applicable in such circumstances.
18. I would recollect the following maxims : (1) Res judicata pro veritate accipitur: A decision of court is accepted as evidence of truth. (2) Nemo dat qui non habet - He who hath not cannot give. (3) Res judicata facit ex albo nigrum, ex nigro album, ex curvo rectum, ex recto curvum A matter adjudged makes white black; black white; the crooked straight; the straight crooked.
19. No litigant can ever venture to come before the Court and assert or contend that his participation in the earlier proceedings should simply be ignored and afresh his case has to be heard and that too without even making a prayer for getting the earlier proceedings set aside. Hence, this is a good example of a bad case, which should be discouraged in unmistakable terms. It turned out to be an ill-wind that blew no one any good.
20. The learned counsel for the appellants/plaintiffs also would try to argue that the sum of Rs.500/- (Rupees five hundred only) contemplated in the compromise decree was not deposited within the time, for which the learned counsel for the respondents would submit that the sum of Rs.500/- (Rupees five hundred only) was tendered within time to the said Krishnan, but that was not accepted by him and therefore, the money was deposited in Court. I would like to point out that whatever plea that might have enured to be benefit of Krishnan, should have been put forth before the Executing Court or he should have challenged the previous E.P. Proceedings, but he did not do so. However, in the new suit which he initiated, would venture to plead as though he had been in possession and enjoyment of the suit property continuously de hors those earlier proceedings. Wheefore, no more elaboration in this matter is required and a fortiori the very suit itself is untenable and unjustifiable. It is nothing but the one filed in abuse of the process of Court.
21. The learned counsel for the defendants would argue highlighting and spotlighting that after taking delivery of the suit property, D3 has been in possession and enjoyment till date and there is nothing to indicate and exemplify that during the year 1998 as claimed by Krishnan, he was dispossessed from the suit property also. As such, both the Courts below au fait with law and au courant with facts decided the lis, warranting no interference in the Second Appeal. Au fond the plaint in the present suit is nothing but one filed ignoring the relevant provisions of law highlighted supra and in such a case, no interference is required. Accordingly, this Second Appeal stands dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed. gms To 1. The Subordinate Judge, Vellore.
2. The Principal District Munsif Vellore