S. Nirmala Vs Kanniammal

Mr. N. Sathish Kumar, J.—The suit is filed for recovery of possession and permanent injunction restraining the defendants from in any way changing the nature and character of the suit property.

2. The brief facts of the case of the plaintiff are as follows:

An extent of 4 ground and 18 sq.ft of land were originally purchased by one P.Chakrapani Reddiar, vide registered sale deed dated 17.3.1966. The said P.Chakrapani Reddiar, who is none other than the father-in-law of the plaintiff, was in possession and enjoyment of the suit property from the date of purchase and also obtained patta in his favour. The suit property consists of two items. Item No.1 consists of 3 grounds and item No.2 consists of 1 ground and 18 sq.ft. The aforesaid Chakrapani Reddiar appointed one Ramasamy as a watchman in the year 1978 and permitted him to stay in the watchman shed, which was constructed in item No.2 of the suit property. The said Chakrapani Reddiar died intestate in the year 1979 leaving behind his only son, Sathyanarayanan, and his wife, C.Shyamalavalli as his legal heirs. The said Sathyanarayanan, also died intestate in the year 2003 leaving behind his wife (the plaintiff herein), his mother, namley, C.Shyamalavalli and three daughters, as his legal heirs.

2.1. The Watchman appointed by Chakrapani Reddiar (father-in-law of the plaintiff), died in the year 2004 and his son Varadan, predeceased him. The first defendant is the daughter-in-law of the deceased Ramasamy and the other defendants are the sons and daughters of the deceased Varadhan through the first defendant.

2.2. According to the plaintiff, the defendants, who were squatting on the suit property, unauthorisedly tried to obtain patta and electricity service connection to the property behind her back. The plaintiff, being one of the co-owner, has filed the present suit to protect the interest of herself and other co-owners.

2.3. It is the case of the plaintiff that the defendants have strenuously made an attempt in the year 2005, to obtain electricity connection in their name and the same was thwarted by the plaintiff. Hence, the plaintiff has no other option but to file a suit for recovery of possession and permanent injunction.

3. The case of the defendants in nutshell is as follows:

Though the father-in-law of the plaintiff, late P.Chakrapani Reddiar, purchased the suit property, he never exercised the right of ownership at any point of time. It is denied by the defendants that the said late P.Chakrapani Reddiar, dug a well and constructed a watchman shed in the suit property. In fact, the father-in-law of the first defendant, namely, Ramasamy, occupied the suit property and put up a shed in the year 1960 and was in possession and enjoyment of the same on his own right since 1960.

3.1. It is the contention of the defendants that the said Ramasamy was working as Watchman at various places and was residing in the suit property along with his family members. The defendants 2 to 6 are born and brought up in the suit property.

3.2. It is the further contention of the defendants that neither Chakrapani Reddiar nor his son C.Sathyanarayanan, who were residing adjacent to the suit property, questioned the possession and occupation of Ramasamy and his family members in the suit property. Therefore, they perfected title by adverse possession. The suit is also bad for non joinder of necessary and proper parties and the court fee paid is also not correct. Hence, the plaintiff is not entitled for the relief as prayed for.

4. On the above pleadings, originally, this Court has framed the following issues for trial on 14.10.2011.

1. Whether the deceased Ramasamy was in permissive occupation of a portion of the suit property as a watchman appointed by P.Chakrapani Reddiar?

2. Whether the defendants have perfected title by adverse possession?

3. Whether the suit for recovery of possession filed by the plaintiff as one of the coowners and also for the benefit of other coowners is not maintainable?

4. Whether there is any suppression of fact sufficient to non-suit the plaintiff for the reliefs sought for?

5. Whether the plaintiff is entitled to a decree directing the defendants to deliver vacant possession of the suit property?

6. Whether the plaintiff is entitled to a decree for permanent injunction as prayed for?

7. To what other relief the plaintiff is entitled?

5. On the side of the plaintiff, P.W.1 was examined and Exs.P1 to P8 were marked. On the side of the defendants, D.W.1 and D.W.2 were examined and Exs.D1 to D15 were marked. Exs. X1 to X3 were also marked. The details of the same are hereunder:

Exhibits produced on the side of the plaintiff:

Exhibits produced on the side of the defendants:

Witnesses examined on the side of the plaintiff:

P.W.1. - S.Nirmala (PW1)

Witnesses examined on the side of the defendants

D.W.1 - Kanniammal (DW1)

D.W.2- Rajammal (DW2)

6. Heard, Mr. M. Balasubramanian, learned counsel appearing for the plaintiff and Mr. C.P. Sivamohan, learned counsel appearing for the defendants and perused the records.

7. Learned counsel for the plaintiff would submit that the suit property was originally purchased by one Chakrapani Reddiar, the father-in-law of the plaintiff, and he appointed one Ramasamy as Watchman to look after the suit property. He would further submit that the said Chakrapani Reddiar, died long back leaving his wife Shyamalavalli and his son Sathyanarayanan, the husband of the plaintiff herein. The said Sathyanaraynan also died leaving behind the plaintiff, his mother, Shyamalavalli and three daughters as his legal heirs. Therefore, the learned counsel would submit that the defendants cannot contend that they exercised right over the suit property and, perfected title by way of adverse possession.

8. The learned counsel for the plaintiff would further submit that absolutely, there is no pleading whatsoever, as to the date on which the possession became adverse to the plaintiff. Further, there is no document to show that the defendants have allegedly exercised overt act over the suit property. In the absence of the above particulars, the plea of adverse possession cannot be sustained in the eye of law.

9. It is further contention of the learned counsel that the plea of non joinder of necessary parties raised by the defendants has also no legs to stand. Hence, the learned counsel prays for decree as prayed for.

10. Per contra, learned counsel for the defendants would submit that the defendants are in possession and enjoyment of the suit property for long period without objection whatsoever. The Exhibits D1 to D15 would clearly establish the fact that the defendants have exercised their right over the property. The overt act of the defendants is also clearly established. The learned counsel would further submit that the plaintiff, having pleaded that one Ramasamy was permitted to occupy the suit property as a watchman in the year 1978, has taken a contra stand in her cross examination, wherein she has stated that father-in-law''s father has permitted Ramasamy to stay in the suit property. The above stand clearly vouch-safe the fact that defendants are in possession for more than 30 years in the suit property by exercising their independent right over it. Hence, he would submit that the defendants perfected title by adverse possession.

11. It is submitted by the learned counsel that other legal heirs of the alleged original owner, namely, Chakrapani Reddiar, have not been impleaded as parties in the suit and hence, the suit is bad for non joinder of necessary parties.

12. It is the submission of the learned counsel that Ex.D2 would clearly show that even prior to 1977, the first defendant''s husband was residing in the suit property. This fact clearly falsify the plaintiff''s stand in the plaint that Ramasamy was allowed to stay in the suit property only in the year 1978.

13. It is the further submission of the learned counsel that only in the year 2005, some protest has been shown by the plaintiff by giving objections to the electricity Department and giving complaint to the police station and till such time, no action whatsoever was taken by her. According to the learned counsel the plaintiff had knowledge about the possession of the defendants and hence, he prayed for dismissal of the suit.

14. In support of his argument, the learned counsel has placed reliance on the judgment of the this Court reported in 2005 (3) CTC 399 (A.Rajagopal And Others v. Muthulakshmi Ammal And Another) as well as the judgments of the Hon''ble Apex Court reported in 2007 (3) CTC 691 (M.Durai v. Madhu And Others) And (2014) 1 SCC 669 (Gurdwara Sahib v. Gram Panchayat Village Sirthala And Another).

15. Since the pleadings and evidence are already available, framing of additional issue is not necessary.

16. For the sake of convenience, the relevant issues framed by this Court are recapitulated as under:

1. Whether the deceased Ramasamy was in permissive occupation of a portion of the suit property as a watchman?

2. Whether the defendants have perfected title by adverse possession?

3. Whether the suit for recovery of possession filed by the plaintiff as one of the co-owners and also for the benefit of other co-owners is not maintainable?

4. Whether the plaintiff is entitled to a decree directing the defendants to deliver vacant possession of the suit property?

5. Whether the plaintiff is entitled to a decree for permanent injunction as prayed for?

6. To what other relief the plaintiff is entitled?

Issue Nos. 1 and 2 :

17. The suit has been laid for recovery of possession of the schedule mentioned properties from the defendants and for permanent injunction restraining the defendants from changing the nature and character of the suit property.

18. It is the contention of the plaintiff that the defendants are in permissible possession. Originally, the father-in-law of the first defendant, Ramasamy, was permitted to occupy the suit property as a watchman. The other defendants are the legal heirs of Varadhan, who is the son of the said Ramasamy.

19. It is the contention of the defendants that the said Ramasamy has occupied the suit property in the year 1960, on his own and since then, he has been in possession and enjoyment of the property continuously, without any interruption by any one including the true owners and thereby perfected title by adverse possession.

20. In the light of the above submissions, pleadings and evidence adduced by both sides and, more particularly, on a careful perusal of Ex.P1, sale deed dated 17.3.1966, it is clear that one Chakrapani Reddiar, has purchased the suit property and other properties by way of sale deed, as referred to above. The said Chakrapani Reddiar, is the father-in-law of the plaintiff. This fact is not disputed.

21. The plaintiff, in the pleadings as well as in the evidence, has clearly spoken about the purchase of the suit property by her father-in-law, namely, Chakrapani Reddiar. The plaintiff''s husband, Sathyanarayanan, is the only son of the said Chakrapani Reddiar. This fact is also not disputed by the defendants.

22. It is also not disputed that the said Chakrapani Reddiar, died as early as on 24.3.1979. This fact has been clearly established by producing Ex.P2, Death Certificate. It is also not in dispute that his only son, Sathyanarayanan, the wife of the plaintiff herein, also died on 04.3.2003, which is also established under Ex.P3, Death Certificate. He died leaving behind three daughters and mother, which is evident, as per Ex.P4, Legal Heir Certificate.

23. From the above documents, it is clear that the plaintiff is none other than the daughter-in-law of the original owner, namely, Chakrapani Reddiar, who purchased the suit property under Ex.P1 in the year 1966.

24. It is the further case of the plaintiff that her father-in-law, has appointed one Ramasamy, the father-in-law of the first defendant and father of the other defendants, as a watchman in the suit property in the year 1978.

25. In this regard, it is pertinent to note that P.W.1 in her evidence, has clearly stated that her father- in-law has appointed one Ramasamy as a watchman to look after the suit property and permitted him to occupy the portion as a watchman or as servant in the suit property. According to her, the said Ramasamy was allowed to stay in the watchman shed to look after the suit property and other properties, whereas it is the contention of the defendant that the said Ramasamy has occupied the suit property on his own from the year 1960.

26. Though D.W.1 has stated in the Chief Examination that her father-in-law occupied the suit property on his own, in the cross examination, she has refuted the same. D.W.1 has categorically admitted that she did not know the statement relating to the above fact made in the proof affidavit. Further, she has also admitted in her cross examination that she did not know whether her father-in-law has been allowed to construct a shed in the suit property. Furthermore, not even a piece of paper whatsoever, has been filed to show that the so-called shed was constructed by Ramasamy in the suit property in the year 1960.

27. In the absence of any evidence as to the specific date on which the said Ramamsay came into the possession of the suit property, the defendants'' stand that they perfected title by adverse possession cannot be inferred merely because they were in the suit property for many years. In the absence of the direct evidence by either side only preponderance of probabilities and other circumstances to be taken into consideration to decide whether the said Ramasamy has occupied the suit property on his own or he was permitted to occupy the shed as a watchman. The permissible character can be inferred from the attending circumstances in the absence of any direct evidence.

28. It is specifically suggested to P.W.1 during cross examination that Ramasamy was appointed as a watchman by Pattabiraman Reddiar, the father of Chakrapani Reddiar. The very suggestion and answer elicited from P.W.1 in her cross examination itself clearly shows that the said Ramasamy was, in fact, permitted to occupy the suit property as a watchman. In the absence of any documents, to show that the said Ramasamy has occupied the suit property on his own and exercised his right over the suit property, as the owner of the suit property, the plea of adverse possession cannot be sustained.

29. It is to be noted that though the defendants claim to be in longer possession of the suit property, no overt act or whatsoever has been exercised by them as independent owners. No mutation or whatsoever has taken place in their names. No receipt or whatsoever was issued by the Government in their names.

30. On the contrary, the Property Tax has been paid only by the plaintiff, as evidenced by Ex.P7, Tax Collection Receipt and Ex.P8 Property Tax demand card. Though the defendants have produced Exs.D1 to D15, documents, issued by various Department as well as, the voter list, the same will not help to prove the fact that the defendants have exercised their right over the suit property as independent owners of the same.

31. Ex.D1 is the certificate issued in the name of R.Varadhan, from St.John Ambulance Association. This certificate is in no way connected with the suit property. Similarly, Ex.D2 is also another certificate issued by the Department of Employment and Training to show that he has attended some course. Ex.D3 is the marriage invitation of the first defendant with Varadhan and Ex.D4 is the Community Certificate of the husband of the first defendant, i.e. Varadhan. Exs.D5 and D6 are the letter addressed to Varadhan from M/s.Tool Room Services Private Ltd. and Ex.D7 is the terms of contract entered into between the said Varadhan and M/s.Tool Room Services Private Limited. Exs.D8 and D9 are the voters list showing their name in the electoral roll. Ex.D10 is the Burial Ground receipt issued by the Corporation of Chennai in the name of Varadhan. Ex.D11 is the Death Certificate of the said Varadhan. Ex.D12 is the Community Certificate of Sathyakala, i.e. the fourth defendant herein. Ex.D13 is the letter issued by the District Collector recommending the Government Scheme to the first defendant. Ex.D14 is the Death Certificate of Ramasamy. Ex.D15 is the Electoral Card showing the names of the defendants.

32. From the above documents, it can be easily inferred that the defendants are residing in the suit property for quite a long period. It is to be noted that they are the legal heirs of the original occupant, Ramasamy. Furthermore, the very suggestion to P.W.1, clearly shows that the said Ramasamy was permitted to reside in the suit property by the father-in-law''s father of the plaintiff. Therefore, even Ex."D" series are taken into consideration, it is quite a nature that the legal heirs would normally reside along with the said Ramasamy. Therefore, the contention of the defendants that they perfected title by adverse possession is not sustainable.

33. To claim adverse possession, there must be a specific plea, as to when the possession became adverse to the true owner and what was the nature of the overt act exercised by the possessor against the true owner. To prove the title to land by adverse possession for the statutory period, it is not sufficient to show that some acts of possession have been done; the possession required must be adequate, in continuity, in publicity, and in extent to show that it is in possession adverse to the real owners; in other words, the possession must be actual, visible, exclusive, hostile and continued during the time necessary to create a bar under the statute of limitation. Therefore, mere possession howsoever length of time does not result in converting the permissible possession into adverse possession.

34. As already discussed above, the permissible character can be inferred from the attending circumstances even without direct evidence. The very suggestion to P.W.1 in the cross examination clearly established the fact that Ramasamy, father -in-law of the first defendant was inducted into possession as a watchman of the property from the inception. If the possession is found to be permissive at the inception, the possessor or the legal representatives cannot prescribe title or any claim adversely to the owner or their legal representatives. It is to be noted, as already discussed, a perusal of "D" series documents would go to show that the defendants are in possession of the property, when the plaintiff''s father-in-law was alive. They continued to remain in possession even after the demise of the first defendant''s father-in-law, namely, Ramasamy.

35. Further, D.W.1, in her cross examination, clearly admitted that the defendants have not even chosen to obtain electricity connection on their own to the suit property. Only when they made an attempt, the same was thwarted by the plaintiff. It is also categorically admitted by D.W.1 that the plaintiff gave objection letter to the Electricity Board not to provide electricity connection to the defendants. Till now they are not having electricity connection, which is evident from Ex.P5. As per Ex.P6, the defendants have made an attempt to get electricity connection in their name. Further evidence of DW2 also does not help the defendants in proving the plea of adverse possession except proving mere possession.

36. Had the defendants enjoying the property adverse to the interest of true owners, they ought to have exercised some control over the suit property, which is about 1 ground 18 sq.ft, situate in the heart of the Chennai city. They ought to have extended the building or obtained electricity connection on their own. If really they had animus or hostile intention adverse to the interest of true owners, they should have done some overt act over the suit property. The non extending of building in the suit property and non obtaining electricity connection would clearly indicate that they are in permissive possession. The above inference is very much possible from the conduct of the defendants particularly they have not even able to get electricity connection in their name, despite their long possession over the suit property.

37. The defendants are none other than the legal representatives of the said Ramasamy, who originally occupied suit property as a watchman. Unless and until, the defendants establish some overt act over the suit property to the knowledge of the true owner, they cannot contend that they perfected the title by adverse possession by mere long possession of the suit property. It is well settled that a party, who sets up a title by adverse possession, has to affirmatively prove his or her possession for over a statutory period by concrete and direct evidence. The presumptions and probabilities cannot be substituted for direct evidence. Burden of proof is heavy and lies on the person who sets up plea of adverse possession. The reason for such heavy burden lying on the person, who sets up adverse possession, is the serious consequences of true owner losing title over the property in case the plea of adverse possession is accepted by court of law. In this case, defendants have not discharged their burden of proving the plea of adverse possession.

38. As already pointed out, the aforesaid Ramasamy was originally inducted to the possession as a watchman. His possession was permissible in nature from the very inception. His permissive possession never be converted into adverse possession, unless hostile intention is expressed against the real owner and proved before the Court of law. Further, from the pleadings of the defendants, this Court does not find any specific date on which their possession became adverse to true owner and what was the nature of the overt act exercised over the suit property. In the absence of such pleadings, mere long possession never became adverse to true owner. Therefore, mere long enjoyment of property by Ramasamy or his legal heir cannot be said to be adverse to the true owner.

39. In view of the above said discussion, the judgment of this Court reported in 2005 (3) CTC 399 (A.Rajagopal v. Muthulakshmi Ammal And Others) relied on by the learned counsel for the defendants is not applicable to the facts of the present case. Similarly, the judgment of the Apex Court reported in 2007 (3) CTC 691 (M.Durai v. Madhu And Others) relied on by the learned counsel for the defendants, is in no way helpful to the defendant as the Hon''ble Apex Court, had clearly held in the above judgment that mere possession howsoever long does not necessarily mean that it is adverse to true owner. Furthermore, the learned counsel for the defendants, in support of his contention, has also relied on the judgment of the Hon''ble Apex Court reported in (2014) 1 SCC 669 (Gurudwara Sahib v. Gram Panchayat Village Sirthala). As far as this judgment is concerned, the Hon''ble Apex Court has rejected the plea of declaration of ownership of land, on the basis of adverse possession. Therefore, the said judgment also will not help the case of the defendants.

40. At this juncture, it is useful to refer to the judgment of the Hon''ble Apex Court reported in 2012 -2-TNLJ 1 (Maria Margarida Sequeria Fernandes And Others v. Erasmo Jack De Sequeria), wherein the Hon''ble Apex Court has held that possession by Caretaker, Servant, Watchmen or Gratuitous can never be a possession of individual''s right and no one acquires title to the property, if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. It is also held by the Hon''ble Apex Court that the Caretaker, Watchmen and servant can never acquire interest in the property irrespective of the long possession.

41. Having regard to the above judgment and the evidence adduced in this regard, as discussed supra, the defendants have not established plea of adverse possession. Accordingly, issue Nos. 1 and 2 are answered as above and decided against the defendants.

Issue No : 3.

42. Admittedly, the plaintiff is the wife of one Sathyanarayan, who is the only son of the original owner Chakrapani Reddiar. Though the said Sathyanarayan, died leaving behind the plaintiff, three daughters, his mother and two sisters, the plaintiff alone has filed a suit.

43. P.W.1, in her cross examination, has also stated that the said Sathyanarayanan, died leaving behind the plaintiff, his mother, and three daughters and her husband also has two sisters. Though the plaintiff has not impleaded other co-owners of the suit property, in the plaint pleadings, it is categorically stated that she has filed the suit in the interest of other co-owners also. Merely because other co-owners were not arrayed as plaintiffs, the same cannot be a ground to non-suit the plaintiff. It is well settled that one of the co-owners can very well protect the property on behalf of other co-owners. There is no legal bar to file such a suit, on behalf of other co-owners also. Merely a suit has been filed by one of the co-owners against the third party, who is squatting on the properties without any semblance of right over such suit property, such filing of suit itself will not confer absolute title to the plaintiff alone. The rights of other coowners will not be defeated by mere filing of the suit by one of the co-owners against the third party, as the co-owners of the property have every right to protect the property from being snatched away by a third party. A co-owner, at the most, can be an agent of other co-owners and can act for the interest of the other co-owners also. Therefore, this Court does not find any irregularity in the suit filed by one of the co-owners, the plaintiff herein. Accordingly, the contention of the defendants that the suit is not maintainable for non-joinder of necessary parties has no legs to stand. Issue is No.3 is answered accordingly and held against the defendants.

Issue No :4

44. In view of the findings and discussions, in issue Nos. 1,2 and 3, the plaintiff is certainly entitled to recovery of possession from the defendants. Therefore, the defendants are liable to vacate and deliver the vacant possession of the suit property to the plaintiff within two months from the date of receipt of a copy of this judgment. Having regard to the escalation of price, value and location of the property, in the event of failure to vacate the property by the defendants within the above stipulated time, they are liable to pay damages of Rs.500/- per day, till they vacate and handover the suit property to the plaintiff.

Issue Nos. : 5 and 6:

45. In view of the discussions held in the above issues and also the contention of the defendants'' is negatived by this Court by holding that the defendants have no right interest whatsoever over the suit property, the defendants are not entitled to make any change or alter the suit property in any manner whatsoever. Accordingly, the plaintiff is entitled to a decree of permanent injunction.

In the result, the suit is decreed as prayed for with costs.