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

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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