Thangammal (Died), Vs. V. Ramasamy - Court Judgment

Excerpt:
property - title - possession - plaintiff filed suit for declaration of title and possession - trial court decreed suit in favour of plaintiff - first appellate court upheld findings of trial court - hence, present second appeal - held, fact that the plaintiff had filed the suit not only for declaration but also delivery of possession would show that the possession of the suit property had been with the defendants - onus was on plaintiff to prove that possession of defendants was unlawful - no evidence to show that defendants had unlawfully entered into property either as trespasser or encroacher - adverse possession of defendants had been proved - both the courts below had lost sight of the vital issue involved in case - appeal allowed - - 1. the unsuccessful defendants in both the courts below are the appellants in this second appeal. reported in (2005)1mlj540 in which the law relating to adverse possession has been clearly laid down by this court. learned counsel also would state that both the courts below have failed to appreciate that the adverse possession has not been proved. in these circumstances, the plaintiff in the suit is bound to fail and the second appeal is allowed.p. jyothimani, j.1. the unsuccessful defendants in both the courts below are the appellants in this second appeal. the plaintiff, v. ramasamy has filed a suit for declaration and possession in respect of the suit property apart from seeking mesne profits. according to the plaintiff, he is the only son of venkatrama gounder who had pre-deceased wife karuppakkal and venkatrama gounder died on 12.1.1984. in a partition deed between venkatrama gounder and his brothers dated 5.10.1951, the suit properties were allotted to venkatrama gounder. the plaintiff by virtue of his birth is entitled for half share and after the death of venkatrama gounder, the plaintiff has inherited his another half share and therefore, he has become entitled to the entire suit property.2. it is the further case of the plaintiff that after the death of his mother, taking advantage of the fact that his father venkatrama gounder lived alone, the defendants started living with him and fabricated documents. one among other document is dated 8.12.1972 stated to have been entered into an agreement by the venkatrama gounder in favour of the defendants for selling the property for a sum of rs.2000/-. there was another mortgage deed dated 18.7.1973 created stating as if venkatrama gounder has borrowed a sum of rs.1500/- from the first defendant by creating a mortgage of the suit property. according to the plaintiff, these documents are not valid. the plaintiff also would state that venkatrama gounder had no right to create any encumbrance over the property and it is not binding upon the plaintiff. the plaintiff also would further state that the first defendant filed a suit for an injunction in o.s. no. 803 of 1985 against the plaintiff and it was only after filing of the said suit, the plaintiff himself came to know about the agreement. the defendants having entered into possession refused to give possession to the plaintiff which necessitated the plaintiff to file the suit for declaration and possession. 3. in the written statement filed by the defendants, it is stated that the present suit itself has been filed by the plaintiff only as a counter-blast for the two suits filed by the first defendant in o.s. no. 803 of 1985 and 1524 of 1988. the first defendant filed the suit in o.s. no. 803/1985 for injunction and o.s. no. 1524/1988 under a mortgage deed executed by venkatrama gounder. the defendants also denied that the suit property is an ancestral property. according to the defendants, venkatrama gounder is the absolute owner of the property. there is no relationship between the first defendant and venkatrama gounder. it is only at the instance of venkatrama gounder, the first plaintiff entered into an agreement to purchase the property. it is only after receiving the entire amount, the said venkatrama gounder has executed the mortgage deed in respect of executing the sale deed, which came to the knowledge of the defendants only recently. when it is a fact that venkatrama gounder and the plaintiff living together, it cannot be sold with the knowledge of the plaintiff. it is from the date of execution of the document by venkatrama gounder for the past eighteen years, the defendants have been an uninterrupted possession and enjoyment of the property and in any event, they have acquired title by adverse possession. the plaintiff having personally known about the sale agreement executed by his father has filed the present suit after his death. the plaintiff is estopped from denying the right of defendants. 4. on an elaborate trial, the trial court has decreed the suit in favour of the plaintiff granting a decree of declaration and possession. on the appeal filed by the defendants, the first appellate court while confirming the decree and judgment of the trial court, dismissed the first appeal. it is as against concurrent finding of both the courts below, the defendants have filed the present appeal.5. learned counsel appearing for the appellant would submit that the suit filed by one of her clients, namely, the first defendant in o.s. no. 183/1985 was dismissed and no appeal was filed. it is the further case of the learned counsel for the appellant that the suit filed by the first defendant under the mortgage deed executed by venkatrama gounder, namely, o.s. no. 1524 of 1988 was decreed and no appeal was filed. it is also brought to my notice that having realised his obligation that the father has mortgaged the property in favour of the defendants, the plaintiff himself has agreed to pay the decree amount and the amount has also been discharged. learned counsel for the appellant would also contend that in the written statement filed before the trial court, they have pleaded adverse possession. it is the specific case of the defendants that it was pursuant to the agreement dated 8.12.1972 entered between venkatrama gounder and the first defendant marked as ex.b1, the defendants came into possession of the suit property. thereafter, under ex.b15, mortgage deed dated 18.7.1973, venkatrama gounder was executed in favour of the first defendant. when it is admitted that the plaintiff being the son of venkatrama gounder himself has paid the entire decree amount and discharged the mortgage, it is not open to him to deny the right of the plaintiff in the suit property. the defendants have also in addition to the specific plea of adverse possession have filed exs.b3 to b14, which are the kist receipt in respect of the suit property. 6. therefore, according to the learned counsel for the appellants/defendants as decided by this court in ponnaiyan v. munian (died) and ors. reported in 1995 1 l.w. 680, the actual and exclusive possession coupled with the intention to hold as owner, openly and continuously has been proved apart from the animus, which is the crucial factor in the present case and therefore, according to the learned counsel for the appellants/defendants, the possession adverse to the owner to his knowledge for more than the statutory period stands proved. 7. learned counsel for the appellants/defendants also would rely upon another judgment of this court rendered in n.s. spance v. d.s. kangarajan and anr. reported in : (2005)1mlj540 in which the law relating to adverse possession has been clearly laid down by this court. according to the counsel, all the requirements as enunciated by this court in the above said judgment has been squarely proved by the defendants and therefore, it should be taken that the defendants have proved the adverse possession and entitled to have possession, which is lawful. therefore, according to the learned counsel for the appellants/defendants, both the courts below have lost sight of the entire legal requirements of adverse possession, which has been proved beyond any doubt and should not have granted a decree in favour of the respondent/plaintiff. learned counsel also took me to the judgment of the trial court, wherein the trial court has categorically stated that the plaintiff has accepted to pay the mortgage amount on behalf of his father venkatrama gounder. learned counsel also would state that both the courts below have failed to appreciate that the adverse possession has not been proved. 8. on the other hand, learned counsel appearing for the respondent/plaintiff would show that as laid down by this court in a judgment rendered in pappayammal v. palanisamy and ors. reported in : air2005mad431 , to prove the plea of adverse possession, the parties should admit the title of the owner and to the knowledge of the owner has been in possession for more than the statutory period. according to the learned counsel for the respondent/plaintiff, the contents of the written statement filed by the appellants would show that the defendants have in fact denied the title of the plaintiff and therefore, the plea of adverse possession is not open to them to raise. in this regard, the learned counsel refers to the contents of the written statement in paragraph-4, which reads as follows:-the defendants deny the entire allegations contained in the paragraph-4 of the plaint. the defendants more particularly denies that the suit property is the ancestral property of the plaintiff. the suit property is the absolute property of the plaintiff's father venkaitrama gowder previously. it is also equally false to state that the plaintiff is the exclusive owner of the suit property.9. learned counsel for the respondent/plaintiff would invite this court to treat the said paragraph as if the defendants have denied the title of the plaintiff. i do not agree with the contention. in the said paragraph, the defendants have only denied the allegations raised in the plaint. it is specifically denied by the defendants that the plaintiff is the exclusive owner of the suit property. therefore, it cannot be said as if the defendants have denied the title of the plaintiff. according to the learned counsel for the respondent/plaintiff, it is not correct to state that the agreement ex. b1 is valid. he also refers to the contents of ex. b15 mortgage deed of the year 1973, which contains a statement that the suit property was in possession of venkatrama gounder. according to the learned counsel for the respondent/plaintiff, if really, the defendants have taken possession pursuant to ex.b1, which is of the year 1972, the mortgage dee ex.b15 of the year 1973 ought to have contained a statement to the effect that the defendants are in possession. in the absence of such a clause, it should be construed that the defendants' possession is not proved. i do not agree with this contention also. the very fact that the plaintiff has filed the suit not only for declaration but also delivery of possession would show that the possession of the suit property has been with the defendants. in these circumstances, the onus was heavily on the plaintiff to prove that the possession of the defendants was unlawful. i do not find any evidence to show as if the defendants have unlawful entered into the property either as a trespasser or encroacher. it cannot be said that the defendants have absolutely no right over the suit property at all. if the absence of any prudent evidence to disprove the validity of ex.b1, i am of the firm view that the possession of the suit property by the defendants ought to have been under ex.b1. it is not also the case of the plaintiff that the defendants entered into the property after the death of his father venkatrama gounder, who died on 12.10.1984 as seen from ex.a1. on the other hand, it is the specific case of the plaintiff himself that taking advantage of the fact that venkatrama gounder was living alone, the defendants entered into the property. the entire circumstances taking into consideration, i have no hesitation to come to a conclusion that the defendants have pleaded adverse possession and in fact the adverse possession has been proved. the attempt made by the learned counsel for the respondent/plaintiff that adverse possession plea itself was raised for the first time, the written statement is not sustainable. if that be so, nothing prevented the plaintiff from filing a reply statement and taking effective steps to disprove the claim of adverse possession. i do not also agree with the contention of the learned counsel for the respondent/plaintiff as stated above that the defendants have denied the title of the plaintiff. it is only based on title of venkatrama gounder. the defendants claim under ex.b1 that they have purchased the property and it was based on the specific admission of the title of venkatrama gounder. the defendants' father advanced the amount of rs. 1500/- under mortgage deed ex.b15. therefore, i am of the firm view that both the courts below have lost sight of the vital issue involved in this case and have decided the issues, which are unconnected. in these circumstances, the plaintiff in the suit is bound to fail and the second appeal is allowed.10. with the result, the second appeal is allowed and the decrees passed by the courts below in favour of the plaintiff in o.s. no. 1828 of 1989 and confirmed by the first appellate court in a.s. no. 95 of 1991 are set aside and the suit stands dismissed. there is no order as to costs.