Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5622 OF 2002
ELUMALAI NAICKER & ANR. ... APPELLANTS
VERSUS
CHANDRAN NAICKER ... RESPONDENT
O R D E R
This appeal by special leave is by the plaintiffs in
a suit for declaration of title, possession, permanent
injunction, mandatory injunction and mesne profits. The
second appellant claims to be the owner of the suit
properties that is two portions of survey No.209/6 of
Kadapakkam village measuring 1.75 acres and 60 cents
described as items (1) and (2) respectively in the plaint
Schedule. The first appellant is the husband of second
appellant. The respondent - defendant is the brother of
the second appellant. For convenience, we will refer to
the appellants and respondent by their ranks in the suit,
as plaintiffs and defendant.
2. The plaint averments in the suit filed in the year
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1987, in brief, are as follows:
(a) The second plaintiff purchased the suit properties
under a registered sale deed on 25.11.1977 executed by
one Ratnavelu PW-2, who had earlier purchased the suit
properties from Adikesavalu under sale deed dated
25.1.1972.
(b) The second plaintiff was in possession of the suit
lands even prior to the sale in her favour and she had
perfected her title by adverse possession also.
(c) In or about in March 1981, the second plaintiff’s
brother namely Chandran Naicker (defendant) sought her
permission to reside in a portion of her property and
offered his services to look after the fruit bearing
trees therein. The second appellant permitted the
defendant to put up at his own cost, a thatched hut in a
portion of her land (the portion described as item (2) in
the plaint Schedule) and permitted him to reside there
free of rent, in consideration of his assurance of
service by looking after the fruit bearing trees in the
suit schedule item (1) property.
(d) After a few years, as defendant’s service was not
satisfactory, the plaintiffs called upon the defendant to
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vacate the thatched hut. He failed to do so and set up a
claim that he was the owner of the suit schedule item(2)
land measuring 60 cents. This necessitated filing of the
suit for declaration of title, possession, injunction and
mesne profits.
3. The defendant contended in his written statement
that he had occupied the 60 cents of land (suit schedule
item no.2 land) in the year 1970 and has been in
possession and enjoyment thereof openly, peacefully and
continuously and had perfected his title by adverse
possession. He alleged that he constructed the thatched
hut and planted trees in the 60 cents land and his open
and uninterrupted possession of the said portion from
1970 was not objected to either by plaintiff or anyone
else claiming to be the owner; and that the second
plaintiff was also in similar possession of the adjoining
portion that is remaining portion of Survey No.209/6
(suit schedule item (1) land). He denied the allegation
that he was in occupation of 60 cents of land only from
the year 1981 under permission from the plaintiffs or
that he was engaged to keep a watch over the fruit
bearing trees in suit schedule item(1) land. He claimed
that he has been paying taxes in respect of suit schedule
item(2) property and that he was recorded as the owner of
the said land in the Revenue records. He did not deny the
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ownership or possession of second plaintiff in respect of
suit schedule item no.1 land measuring 1 acre 75 cents.
4. The trial court framed appropriate issues regarding
title, adverse possession, possession, permanent
injunction, mesne profits. The second plaintiff examined
herself as PW1 and examined her vendor Rathnavelu as PW2.
The defendant gave evidence as DW1 and examined one R.
Ramachandran as DW2. Both sides also tendered documentary
evidence. The documents exhibited by plaintiffs consisted
of title deeds, Jamabandhi, Chitta and Adaugal Extracts
and tax receipts. The documents exhibited by defendant
consisted of house tax receipts.
5. After appreciating the evidence, the trial court
decreed the suit on 16.7.1990. The first appellate court
allowed the appeal by the defendant on 28.6.1991,
reversed the judgment of the trial court and dismissed
the suit. The second appeal filed by the plaintiffs was
dismissed by the High Court on 12.10.2001 and the
decision of the first appellate court was confirmed.
Feeling aggrieved, the plaintiffs have filed this appeal
by special leave.
6. The first appellate court which is the final court
of fact has recorded a finding that the defendant is in
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possession of the suit schedule item no.2 land (60 cents)
ever since 1970 and that plaintiffs have failed to prove
that second plaintiff had been in possession of both
items of suit schedule earlier or that she had permitted
the defendant to occupy a portion of her land (suit
schedule item no.2) in the year 1981. The first appellate
court has also held that the defendant was in open
peaceful and uninterrupted possession of the suit
schedule item no.2 and paid the house taxes from 1972-73,
in respect of the house constructed by him. The said
findings of fact were not disturbed by the High Court. We
find that the said findings are based on admissions and
documentary evidence and do not call for interference in
exercise of jurisdiction under Article 136 of the
Constitution.
7. PW.2, Ratnavelu who sold the suit scheduled property
(items 1 and 2 of the plaint schedule) to second
plaintiff has given different versions in regard to
possession of the suit properties in his evidence. One
version is that from the date of purchase in 1972 from
Adikesavalu till the date of sale in 1977 in favour of
second plaintiff, he was in possession of the suit
properties and he delivered possession thereof to the
second plaintiff at the time of sale in 1977. Another
version is that the second plaintiff was in possession of
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the suit properties from the year 1973. The second
plaintiff (PW1) stated in her evidence that she was in
possession of the suit properties for 25 years, that is
from 1966, which was about 11 years prior to the purchase
by her. The second plaintiff also admitted in her
evidence that the defendant was in possession of the 60
cents of the land and thatched hut (suit schedule item 2)
from the year 1970 itself. This clearly belies
plaintiffs’ case in the suit that defendant entered
possession of the suit schedule item (2) only in the year
1981, under her express permission. The above evidence
supports the claim of defendant that he has been in
possession of suit schedule item (2) in his own right
ever since 1970.
8. Another significant aspect is that the sale deed in
favour of second plaintiff (Ex.A1) described the 60 cents
out of Sy. No.209/6 (suit schedule item 2) as distinct
and separate from suit schedule item (1) measuring 1 acre
75 cents in Sy. No.209/6. Both items were contiguous
lands forming part of the same survey number belonging to
a single owner (PW2) and sold to a single purchaser
(PW1). The entire land was covered by same patta. If
possession thereof had been delivered to the second
plaintiff as a single unit, there was no need to describe
the two portions separately in the sale deed. When this
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fact is considered with the averment in the plaint that
plaintiffs and their predecessors in title had acquired
title to the suit property by adverse possession, it is
evident that the two portions were described separately
as they were treated as distinct properties, in the
possession of second plaintiff and defendant respectively
from 1970 onwards long prior to the sale in favour of
second plaintiff. This would also support the claim of
the defendant that he perfected his title to suit
schedule by adverse possession. It is probable that
second plaintiff and her predecessors in title had also
perfected title by adverse possession in regard to suit
schedule item (1).
9. The Revenue records show that upto 1986,
Adikeshavulu – second plaintiff's vendor's vendor was
shown as the owner, though second plaintiff purchased the
suit property in 1977 itself. It was only an year prior
to the filing of the suit, the name of the second
plaintiff was entered as owner. The second plaintiff
produced and relied upon certain tax receipts to show
that she has been in possession. But most of them related
to a period subsequent to the sale in her favour. On the
other hand the defendant also produced several house tax
receipts which showed that he was paying the house tax in
respect of the portion in his possession long prior to
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1977 when second plaintiff purchased the property. The
plaintiffs of course dispute the claim of defendant that
the tax receipts produced by him relate to the suit
schedule item (ii). Even if the tax receipts are excluded
the very admission by the second plaintiff that the
defendant has been in possession of 60 cents of land
(suit schedule item 2) from 1970 onwards destroys the
case of the plaintiff that she was in possession of the
entire extent of 2.35 acres land in Sy. No.209/6 on
purchase in 1977 and that she had permitted her brother
(defendant) to occupy a portion thereof measuring 60
cents in the year 1981. Another unexplained feature is
why second plaintiff would permit defendant to be in
possession of a big chunk of 60 cents (out of total area
of 2 acres 35 cents) if he was engaged merely to look
after the fruit bearing trees in the land.
10. If on the basis of the aforesaid evidence the first
appellate court recorded a finding that plaintiffs had
failed to make out title and possession in regard to suit
schedule item (2) and that defendant had established
open, peaceful and uninterrupted possession in his own
right for more than 12 years as on the date of suit it
cannot be said that the said findings were erroneous or
called for interference in second appeal by the High
Court.
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11. The first appellate court after due consideration of
the evidence has recorded a finding of fact in favour of
the defendant, which has been confirmed by the High
Court. We find no reason to interfere with such finding.
The appeal is therefore dismissed.
............................J.
( R.V. RAVEENDRAN )
...........................J.
( LOKESHWAR SINGH PANTA )
NEW DELHI,
SEPTEMBER 30, 2008.
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