FOR ADVERSE POSSESSION Madras High Court N.Ramaraj vs State Of Tamil Nadu on 1 February, 2012 DATED : 01.02.2012 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH S.A.No.246 of 2004 1.N.Ramaraj 2.N.Sundaraj 3.N.Dorairaj ... Appellants / Defendants vs. State of Tamil Nadu by the District Collector, Salem. ... Respondent / Plaintiff Appeal filed under Section 100 of C.P.C. against the judgment and decree on the learned Principal District Judge at Namakkal as passed in A.S.No.448 of 2002 dated 28.7.2003 confirming the judgment and decree made in O.S.No.854 of 1983 on the file of the Additional District Munsif Court at Namakkal, dated 06.01.1995 thereby dismissing the suit filed by the appellants herein seeking for declaration of title and for consequential injunction. For Appellants : Mr.Ayyadurai For Respondent : Mr.M.Venugopal AGP (CS) J U D G M E N T This appeal is directed against the judgment and decree passed by the First Appellate Court in A.S.No.448 of 2002 and the order passed in I.A.Nos.81 and 82 of 2003 in confirming the judgment and decree passed by the Trial Court in dismissing the suit. 2. The averments in the plaint are as follows:- Originally, Nallappa Reddiar, the father of the first defendant is the owner of the suit property. During his life time, he has bequeathed his properties to his eldest son, the first plaintiff and another son viz., Subramanian and to his grandson through the second son viz., Pedhu Reddiar. The first plaintiff purchased 1/3rd share of the suit property of Subramanian. The 2nd to 4th plaintiffs have purchased the remaining 1/3d share belong to Devarajan, S/o Pethu Reddiar and have become the absolute and exclusive owners of the suit schedule property. The suit property is bounded by a compound wall which was constructed more than 50 years ago. Presently, the Tamil Nadu Electricity Boards office is in the main building which was formerly occupied by the Ceylon Labour Commissions office for a long period. Even after the taking over of Namakkal Estate by the Government, consequent upon the Abolition of Estates in 1948, patta has been granted to the first plaintiff and the predecessors of the plaintiffs in respect of S.No.483/1 Namakkal village, in which, the schedule property is a portion. The said allotment of survey number was made after the settlement proceedings. The schedule property on and prior settlement operations had been in existence as it stands now without modification. There is no encroachment by the plaintiffs and their predecessors of any land or portion belonging to any one either third parties or the Government. While so, the 1st plaintiff was served with a notice signed by the Junior Engineer Highways on 19.07.1983 as if the plaintiffs construction of shop inside the compound is an encroachment to an extent of 60 X 15 of the Highways land. The 1st plaintiff immediately sent a communication on 28.07.1983 to the Divisional Engineer Highways and Rural works and the same was replied on 22.8.1983 stating that the plaintiff could proceed with their construction only after the property is surveyed and the exact position is determined. The stand of the Highways department seems to be that there is some encroachment. There is no encroachment by the plaintiffs or by his predecessors, of the Highways land. There is no encroachment to the portion found to have been encroached in lieu of its peaceful and uninterrupted and exclusive possession and enjoyment of the entire portion comprised within the schedule property. On the four sides of the building and the site compound wall was erected by the father of the 1st plaintiff more than 30 years ago and other constructions are also of the same period. Even if any excess portion is in the actual possession of the plaintiff out side the survey number, it will not affect the title of the plaintiff. Any defect in the title has become cured by perfection of his right by adverse possession. From the communication issued to the plaintiff, it is seen that the area of encroachment is said to be 900 sq.ft. Now, the dispute is on the title and right of the plaintiff regarding some portion of the plaintiffs property i.e. about 5 cents on the road side. 3. The contentions raised by the defendant in the written statement would be thus:- It is true to say that the suit property was owned originally by one Nallappa Reddiar. The extent of the property purchased by the said Nallappa Reddiar does not include the said property. The defendant is not concerned with the shares of the plaintiff herein relating to their own properties. This defendant does not admit that the compound wall was constructed about 40 years ago. After coming into force of the Tamil Nadu Estates ( Abolition and Conversion into Riotwari Lands) Act 1948, Namakkal Village was notified by the Government and was taken over by the Government on 12.1.1951 and the title for the entire village is vested with the Government subject to the rights of the landholder. The settlement scheme is introduced in the said village only for the Fasli 1369 and the survey operations were conducted at the time of the settlement proceedings and S.No.482 of Namakkal village have been classified as Road Poramboke measuring 2.04 acres. The father of the 1st plaintiff obtained patta only for his occupation in S.No.483/1. The fact that the plaintiffs have not disclosed the extent of S.No.481/1 itself reveals the original occupier is not in the occupation of Namakkal Village. No compound wall is in existence at that time. If any portion of S.No.483/1 is now in the occupation of the plaintiff, it is only an encroachment and the plaintiffs cannot claim any right or title over the suit property as it is a Road Poramboke and it is owned by the Government and the Highways Department is entitled to evict the plaintiffs at any time, without taking any recourse before Court of law. Only when the plaintiffs attempted to construct the suit property, the Highways Department issued notice obstructing such constructions. At the time of settlement proceedings during 1958-59 there was no encroachment, hence, the plaintiffs cannot claim adverse possession, as there was no animus of hostile ownership against the true owner. It the suit property is included wrongly in S.No.482, then the plaintiffs should have filed a suit within a year after the survey of the suit property. The claim is now barred under law. There is no necessity to declare the title of the plaintiff. No one could claim the title to the suit property. The plaintiffs have not specified the exact extent of the suit property. Unless the property is definite, no decision can be granted. The plaintiffs are not entitled to the reliefs as they are mere trespassers. Therefore, the suit has to be dismissed. 4. The Trial Court had framed necessary issues and entered trial. After appraising the evidence adduced on either side, the Trial Court had come to the conclusion of dismissing the suit. Aggrieved by the judgment and decree passed by the Trial Court, the plaintiffs filed the appeal before the First Appellate Court in A.S.No.448 of 2002 and they have also filed the applications in I.A.Nos.81 and 82 of 2003 seeking for reception of additional documentary evidence in the appeal. After hearing both parties in the appeal and the applications, the First Appellate Court dismissed both the appeal and the applications filed by the appellants and confirmed the judgment and decree passed by the Trial Court. 5. Having aggrieved by the dismissal of the appeal and the applications the plaintiffs have preferred the present second appeal before this Court. 6. On admission of this appeal, this Court has formulated the following substantial questions of law for consideration. "1. Whether the judgment and decree of the Courts below are vitiated by misappreciation of principles enshrines in Sections 101 and 104 of Evidence Act. 2.Whether the judgment and decree under appeal are vitiated by misreading of evidence and misappreciation of the materials available on record, especially with regard to reliance placed on Advocate Commissioner Report in ignoring the evidence of Pws.1 and 2. 3. Whether the judgment and decree are liable to be set aside as being opposed to the settled position of law that a. Plaintiffs are entitled to make alternative pleas; b. Once the parties to litigation aware of the issues in controversy, doctrine of burden of proof assumes no significance; and c. Boundaries prevailed over the extent. 4. Whether the Courts below are right in holding that the commencement of adverse possession will be from the notified date under the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act 1948 ignoring the previous possession of the plaintiffs and on that basis negatived the claim of adverse possession. 5. Whether the Courts below are right in drawing adverse inference against the plaintiffs for non-production of the settlement deed and sale deeds even though the said suit properties are clearly identified. Thus, such finding is contrary to the principles enunciated in Section 114 of Evidence Act." 7. Heard Mr.Ayyadurai, learned counsel for the appellant and Mr.M.Venugopal, learned Additional Govt. Pleader (C.S.), appearing for the respondents. 8. The learned counsel for the appellants/plaintiffs would submit in his argument that the First Appellate Court as well the Trial Court did not consider the evidence as well as the lie of the property and the title of the plaintiffs to the suit property, but had dismissed the appeal in which the erroneous judgment and decree passed by the Trial Court were confirmed. He would further submit in his argument that both the Courts below have not appreciated the evidence of PW1 and PW2 coupled with the Commissioners sketch that the alleged encroached portion was in possession and enjoyment of the plaintiffs and their predecessor in title even from the date of settlement proceedings, held in the year 1949 and even if the respondents/defendants were conferred with right in the property in the year 1949 after the settlement proceedings, the plaintiff and the plaintiffs predecessor in title had been in possession and enjoyment of the said portion said to have been encroached for more than 30 years. He would further submit that the said building was put up by the father of the 1st plaintiff Nallappa Reddiyar in the year 1934 and the tabloid imbedded in the wall of the main building would go to show that the main building and the compound walls were constructed in the year 1934. He would also submit that both the Courts below erred in perceiving the evidence adduced by the plaintiff regarding the entitlement of the property along with the compound walls which also covered the allegedly encroached property. He would further submit that the Commissioners report even if true, could be helpful to the plaintiffs case that they were in possession of more than 30 years as there was a old structure on the north-western corner of the entire property, which is found in the alleged encroached portion. He would also submit that the Commissioner ought to have given the age of the compound wall abutting the road as old as the building in the suit property. He would also submit that the Commissioners report and the sketches would not depict the correct lie of properties since the Commissioner himself had referred that the suit property was not located with reference to the survey stones, available in the near vicinity. He would also submit that when the Commissioner has not correctly located the northern boundary of the plaintiffs property as to whether it lie within the survey No.483/1 or S.No.482, it would not correctly state the location of the property. He would further submit that merely the Commissioner failed to do his duty, the plaintiff should not be blamed as an encroacher in S.No.482 and even if such encroachment is proved, the plaintiff have proved their long, continuous uninterrupted possession of the suit property measuring at 60 Feet X 15 Feet till the year 1983 when the notice was served by the Highways Department, for over a statutory period of more than 30 years. He would further submit in his argument that the plaintiffs have proved their case with cogent evidence but the Courts below have failed to perceive the evidence adduced by the plaintiffs to its true meaning and therefore, the judgment and decree passed by the Courts below have to be set aside and the suit filed by the plaintiffs have to be decreed and thus, the second appeal be allowed. 9. The learned Govt. Pleader (C.S) would submit in his argument that both the Courts below have correctly come to the conclusion in rejecting the case of the plaintiffs, since the suit property measuring 60 feet X 15 feet is a clear encroachment in the Government property located in S.No.482, which is a road poramboke. He would further submit that the Commissioner had taken all steps to measure the suit property correctly with the help of the FMB sketches, and the suit properties were measured and the report of the Commissioner with sketches were filed. He would also submit that the Commissioner has clearly found that there is an encroachment to an extent of 60 feet X 15 feet in S.No.482 to which the plaintiffs are not entitled to be in possession. He would also submit that the evidence of PWs are inconsistent and there was no evidence produced for proving effective possession of the suit property for over a statutory period. He would further submit that the Commissioners report did not give any age of the old compound wall found in the encroached portion and therefore, the case of the plaintiff that they have prescribed title to the suit property through adverse possession against the Government by keeping the suit property for over 30 years in their possession and enjoyment, cannot be accepted. He would further submit that the plaintiffs have miserably failed to establish their title to the suit property namely 60 feet X 15 feet which is clearly found in S.No.482 and therefore, the judgment of both the Courts below need not be interfered and the second appeal may be dismissed. 10. I have given anxious thoughts to the arguments advanced on either side. 11. The claim of the plaintiffs was that they are entitled to the properties for an extent of 5 cents in Trichy main Road bearing Door No.106, 107, 114, 115 and 116. The claim of the plaintiff was that originally the suit property along with the property lying on its south, belonged to Nallappa Reddiyar, the father of the 1st plaintiff and the said Nallappa Reddiyar had bequethed his properties through a Will in favour of his two sons namely the 1st plaintiff and Mr.Subramaniam Reddiyar and grand sons through the predeceased son namely Petha Reddiyar allotting 1/3rd to each of the branch and the said Subramniam Reddiyar sold 1/3rd share in favour of the 1st plaintiff and the sons of Petha Reddiyar sold their 1/3rd share in favour of the plaintiffs 2 to 4 and thus, all the plaintiffs are entitled to the entire properties which also comprised the suit property. The said transactions were not seriously questioned. The predecessor in title Nallappa Reddiyar had put up construction in the said property in the year 1934 and it was rented to Ceylon Labour Commissioner in the year 1948, 1951 and 1959. The lease agreement and the other formats of documents towards the said lease had in between the parties have been produced as Exs.A3 to A5. The other documents would show that the property after its construction was leased out by the Nallappa Reddiyar was shown through Exs.A6 and A7. As per those documents if the building with compound wall and the site located in S.No.483/1 are comprising the suit property, the Court could see that the suit property would be belonging to the plaintiffs as per those documents. If the said suit property is not found with in S.No.483/1, and it is out side the said survey number to be found in S.No.482, it would be deemed as encroachment in S.No.482. The plaintiff has sought for title of the suit property and in case, it was found encroached in S.No.482 belonging to Government, the building with compound wall which was constructed as part and parcel of the main building in the year 1934 would enure him prescriptive title against the Government. On going through the Commissioners report, I could see that the sketches were prepared with the help of surveyor by using the town survey maps and FMB sketches. It is the categorical submission of the Commissioner that there was no perfect or permanent survey stones for locating the suit property, and however the measurement was done approximately. Therefore, the Commissioner sketch produced as Ex.C2 cannot be relied upon for deciding that there was an encroachment by the plaintiff in S.No.482. No doubt, the case was purely on the basis of measurement and the encroachment alleged by the defendant against the plaintiff has to be decided only on the basis of the measurement taken by Commissioner. 12. Further more, the documents sought to be produced as additional evidence in the applications filed in I.A.Nos.81 and 82 of 2003 were also not allowed by the First Appellate Court. The said decision was reached by the First Appellate Court on the factual background that there was a presumption that the plaintiff and the predecessor in title were not found in possession of S.No.482 during the settlement proceedings from the date of issuance of patta in Ex.A3 in the year 1959. The said finding of the First Appellate Court is ex-facie not correct since the pronouncement of Tamil Nadu Estates (Abolition and Conversion into Riotwari Lands) Act 1948, was introduced and the Namakkal Jameen lands would vest with the Government and accordingly, the land in S.No.482 would vest with the Government from the notified date and if for any reason, the property belonged to the plaintiff covers the suit property also which is located in S.No.482, the said portion of the suit property would be deemed to be in possession of the plaintiff from the date of vesting of S.No.482 with the Government and not from the date of issuance of patta to the first plaintiffs father Nallappa Reddiyar in Ex.A3. In the said circumstances, it should be clearly found as to whether any encroachment was made by the plaintiffs or plaintiffs predecessor in title in S.No.482 which is admittedly belonged to the Government. 12. As rightly submitted by both sides, the Commissioners sketch would not depict the correct lie of the properties since it was not located and demarcated from the permanent survey stones. The Commissioner ought to have insisted the surveyor to trace them from the near by area and to locate the S.No.482 with the help of such permanent survey stones. That may be a difficult task but it has to be done to resolve the dispute. Therefore, if any order is pronounced without a perfect sketch, in respect of S.No.482 and 483/1, it is not possible to find out whether the suit properties is an encroached part or not. Therefore, there is no other option for this Court to remit the matter to the First Appellate Court for re-issuing the Commissioners warrant to the same Commissioner for measuring S.No.482 and 483/1 with reference to the measurements, after the extent of the property in those survey numbers are located from the near by survey stones and to file a fresh sketch along with his report. The parties are at liberty to file necessary applications before the First Appellate Court for reception of the Commissioners report and sketch as additional documents apart from relevant other documents to be produced for the purpose of enabling the Court to pronounce a correct judgment. Therefore, it has become necessary for this Court to set aside the judgment and decree passed by the First Appellate Court and to remand the matter for fresh disposal as per the directions indicated above. 13. For the forgoing discussion, I am of the considered view that the judgment and decree passed by the First Appellate Court have to be set aside and accordingly, set aside. The parties are given opportunity to adduce further evidence by way of filing applications regarding the production of documentary evidence and also to file necessary application for re-issue of warrant to the same Commissioner or to appoint another Commissioner, in the event that the previous Commissioner is not available, to measure the property once again with the aid of FMB sketch after locating the properties in S.Nos.482 and 483/1 with the help of permanent boundary survey stones available in the nearby properties and to produce necessary sketches with actual measurements along with his report and such report shall be received by way of additional evidence and also to consider such additional evidence along with the evidence already recorded before the Trial Court and to pass a judgment in accordance with law. Accordingly, the appeal is allowed after setting aside the judgment and decree of the first appellate Court and the case is remanded to the First Appellate Court for fresh hearing of argument of both parties, after giving opportunities to both parties as indicated above and to pronounce judgment. The parties are directed to appear before the First Appellate Court on 04.04.2012. ssn NB: The Registry is directed to issue order copy on or before 29.02.2012 and to send back the records to the First Appellate Court with this order on or before 09.03.2012. To 1. Principal District Judge, Namakkal. 2. Additional District Munsif Court, Namakkal Related Searches: ? District Court Rules Of Court Family History In India Supreme Court Decision Supreme Court Case Supreme Court Supreme Court Ruling Supreme Court Justice
Posted on: Sat, 15 Feb 2014 07:45:07 +0000
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