The Hon''ble Ms. Justice K.B.K. Vasuki
1. The 3rd defendant is the appellant herein. The suit arising out of which is the present Second Appeal is filed for the relief of declaration and recovery of possession and for mesne profits in respect of the suit property numbering 17 items. The suit is filed against the three defendants and the suit is seriously contested between the plaintiff and the 3rd defendant. The trial court dismissed the suit and aggrieved against the same, the plaintiff preferred A.S.No.57 of 1996 and the appellate court reversed the judgment of the trial court and decreed the suit as prayed for. Hence the Second Appeal by the 3rd defendant before this court.
2. The Second Appeal is admitted on the following Substantial Questions of Law
1. Whether the lower Appellate Court is right in decreeing the suit on the basis of the will alleged to have been executed by Selliammal and when the same is shrouded with mystery and suspicion?
2. Whether the lower Appellate Court had not ignored the Revenue auction sale in respect of Item No.1 and Exs.B1 and B2, the sale in favour of Thoppili Ammal and Periasamy Moopar respectively and the possession of his predecessor?
3. Whether the lower Appellate Court is right in its appreciation of the principles of adverse possession and whether its judgment is not opposed to the dictum laid down by the Division Bench of the Madras High Court in 1993 2 MLJ page 598?
4. Whether the lower Appellate Court has not committed serious error in ignoring the revenue records and whether its judgment is not opposed to the Judgment in AIR 1989 Supreme Court 1269?
3. As already referred to the suit is filed against three defendants out of whom the defendants one and two are non else than the father and the brother of the plaintiff and they did not contest either the suit or appeal. The plaintiff claimed title to the suit properties on the strength of Ex.A6 to Ex.A11 sale deeds executed in favour of Chellammal and Ex.A12 patta, in respect of the suit properties and Ex.A1 will executed by Chellammal. According to the plaintiff, the plaintiff being handicapped was brought up by his grand mother Chellammal and his father was leading a wayward life and the grand mother being unhappy with the life style of the first defendant and being affectionate and sympathetic with the handicapped grand son, executed the will duly in the manner known to law in sound disposing state of mind thereby bequeathed all the properties in favour of the plaintiff and the property is the subject matter of the present suit and the possession of the suit properties by the grand father thereafter by the plaintiff was unlawfully interfered with by the defendants 1 to 3 who trespassed into the suit property, thereby denying the right of the plaintiff in respect of the same.
4. The father and the brother of the plaintiff did not contest the suit and the suit was resisted by the 3 defendant. According to him the 3rd defendant was in possession and enjoyment of the suit properties for more then 26 years and he purchased the suit item No.1 in the public auction held by revenue Tahsildar on 20.05.1964 and he had been in possession of the same till 19.11.1966 the date on which he sold the suit item No.1 and suit item Nos.2 to 4 which are the ancestral property of the 3rd defendant to one Thopilliammal by sale deed dated 19.11.1966 for sale consideration of Rs.500/-. Thoppliammal had in turn sold the suit first item to the one Perisamy Moopanar who is the brother in law of the 3rd defendant by registered sale deed dated 17.04.1970, on the same day effected the oral sale of suit items 2 to 4 in favour of the 3rd defendant for sale consideration of Rs.90 and the subsequent purchaser Perisami Moopanar during 1972 orally sold suit item No.1 to the 3rd defendant for sale consideration of Rs.95 and the 3rd defendant has been in possession and enjoyment of the suit properties for more than 26 years as on the date of suit during 1998. It is his further case that suit items 6 to 8 are in possession and enjoyment of one Subburayan of Alur village as lessee since 1980. It is also his case, that the suit items 9 to 17 are purchased in the auction held by the revenue authorities during 1963 by Narayanasamy who is non else then his brother and the auction was confirmed and Narayanasamy Iyer was in possession and enjoyment of the same and even during his life time suit items 9 to 17 are leased out to one Subburayan and Subburayan has been in possession and enjoyment of the same as lessee and the suit is not maintainable in limine for non impleadment of Subburayan and Lrs. of Narayanasamy Iyer.
5. The plaintiff and the 3rd defendant have in support of their respective contentions, examined the plaintiff and his witnesses and 3rd defendant as PW1 to PW5 and DW1 and produced Ex.A1 to Ex.A12 and Ex.B1 to Ex.B8 documents on both sides.
6. The trial court though accepted the genuineness of the sale deeds Ex.A6 to Ex.A12 and accepted the original ownership of the properties with the plaintiff''s grand mother Chellamal and answered issue No.1 to that effect in favour of the plaintiff and further found that the suit items are purchased by the 3rd defendant and Narayanasamy in public auction and since the date of auction the 3rd defendant and the said Narayamsamy became owners of the suit items and had been possession and enjoyment of the same and the suit items are thereafter leased out to Subburayan. The trial court has further found that the suit Ex.A1 will is not proved to be truly and validly executed by examining the attestors and the scribe and Ex.A1 will is shrouded with suspicious circumstances and the plaintiff and his father 1st defendant are guilty of suppression of facts. The trial court on the basis of the findings so rendered dismissed the suit whereas the lower appellate court has in the appeal filed by the plaintiff arrived at a conclusion that the suit items did belong to Chellamal under Ex.A6 to Ex.A12 and true and valid execution of Ex.A1 will is not only proved but the same is also not denied by the contesting defendant and the claim of the 3rd defendant regarding ancestral nature of the suit items 2 to 4 and the purchase of suit items 1 and 9 to 17 in the public auction by the 3rd defendant and one Narayanasamy and the possession and enjoyment of the same by one Subburayan as lessee are not substantiated by any satisfactory oral and documentary evidence and the ownership of Chellamal having been proved and the genuineness and due execution of Ex.A1 will having been established the plaintiff who is the beneficiary under the will is entitled to the relief of declaration and recovery of possession of the suit properties and the 3rd defendant who has no valid title cannot be allowed to be in possession of the same.
7. The correctness of the findings rendered by the lower appellate court is questioned by the appellant by attacking the genuineness and validity of Ex.A1 will and by relying upon revenue auction sale in favour of the 3rd defendant and Narayanasamy and other revenue records evidencing their possession and on the principles of adverse possession.
8. Heard the rival submissions made on both sides.
9. As already referred to both the courts below have accepted the original ownership of Chellammal who is non else than the grand mother of the plaintiff in respect of suit items under Ex.A6 to Ex.A12 registered sale deeds executed in her favour between 1932 and 1946 and as the sale deeds are on the date of the suit during 1988 more than 30 years old, the legal presumption regarding the valid execution of the same is invoked. As far as Ex.A1 will is concerned the genuineness, true and valid execution of the same is no where denied in the written statement filed by the 3rd defendant.
10. Even otherwise, the true and valid execution and attestation of the same in accordance with law is duly established through the oral evidence of PW3 who is non else than the daughter of the 1st defendant and sister of the plaintiff and the 2nd defendant who is also one of the attestors of the document. Hence the findings rendered by the trial court against the true and valid execution of the document and to the effect as if Ex.A1 will is shrouded with suspicious circumstances is absolutely baseless and unfounded and is not supported by any pleading and valid reasons.
11. The Apex court has in the judgment reported in 2007 5 MLJ 318 M. Venkataramana Hebbar v. M. Rajagopal Hebbar and others has clearly observed that in the absence of any specific denial of the plaintiff claim in the written statement the claim would be Or. VIII R.3 and Or. VIII R.5 of C.P.C deemed to be admitted. The Supreme court has in para 11 of its judgment held that, if a plea which was relevant for the purpose of maintaining a suit has not been specifically traversed the court is entitled to draw an inference that the same had been admitted and a fact admitted in terms of Section 58 of the Evidence Act need not be proved.
12. Applying the same ratio the failure on the part of the 3rd defendant to deny the genuineness of the title deeds in favour of Chellammal and execution of Ex.A1 will much less valid and true execution of the same and his failure to plea any suspicious circumstances shrouding the same amounts to admission of genuineness of the title deeds and that of Ex.A1 will.
13. The same view is also expressed by our High Court in the judgment reported in (i) CDJ 1998 MHC 390 in S. Kaliyammal and others v. Palaniammal and others; (ii)
14. Once the owner ship of Chellammal under Ex.A6 to Ex.A12 and the right of the plaintiff to succeed to the property under Ex.A1 will are thus well established on the side of the plaintiff the burden shifts to the contesting 3rd defendant to prove his claim either on the basis of better title or on the basis of adverse possession.
15. In so far as the claim on the basis of the title is concerned the 3rd defendant has set up title upon himself in respect of suit items 1 to 4 and upon one Naryanasamy in respect of suit items 9 to 17. As far as the defendant claim for title on the strength of revenue auction and oral sale, the same is correctly dealt with by the lower appellate court the 3rd defendant has not produced any records to prove his purchase in revenue auction in respect of suit item No.1. The documents produced on his side are the subsequent sale deed executed by him in favour of Thopilliammal and the sale deed executed by Thopilliammal in favour of Periyasamy Moopanar except producing these two documents the 3rd defendant failed to establish his title in respect of the suit item No.1 and suit item 2 to 4 and on his failure to do so he cannot be held to have conveyed any valid title in favour of third parties. Even otherwise the properties having been sold under Ex.B2 for Rs.500 the plea of oral sale in his favour in respect of same item for Rs.90 and Rs.95 much thereafter cannot be believed. What the trial court did was to accept the claim of the 3rd defendant merely on the basis of Ex.B1 and Ex.B2 without any prior title deed to prove his ownership and Ex.B3 to Ex.B5 chitta and adangal which are obtained much after the institution of the suit. Even otherwise Ex.B3 to Ex.B5 would at best establish his possession for the period mentioned there on and nothing further. Thus his claim based on title in respect of suit items 1 to 4 is rightly neglected by the lower appellate court.
16. As far as the plea of adverse possession is concerned the same is neither pleaded nor proved by any sufficient oral and documentary evidence. Further the defendant is entitled to raise alternative pleas is not entitled to raise mutually inconsistent pleas, as such he is not entitled to claim title based on sale deed as well as adverse possession.
17. Our Supreme Court has in the judgment reported in
18. Further, it is here again well settled, that the burden is upon the person who set up title upon himself to prove it on the basis of adverse possession. In order to prove the adverse possession the occupier is required to plead and prove that his possession is continuous for more than 12 years openly and uninterruptedly and he has been enjoying the same adverse to the real owner of the property. The starting point of limitation commences only from the date on which the defendant''s possession become adverse and mere possession of the land would not ripen into possessory title and the assertion of the title must be clear and open, with sufficient indication of animus possidendi to hold it adverse to the title of the true owner, and the period for the purpose of reckoning adverse possession will commence from the date when both the actual possession and dispossession of title in the manner referred to above by the possessor is known to exist. The following authorities laid down the principle regarding adverse possession
19. Whereas in this case except pleading that he has been in possession and enjoyment of the property for more then 26 years and producing Ex.B3 to Ex.B5 chitta, adangal and patta the 3rd defendant neither pleaded nor proved his possession in the manner as discussed above so as to constitute adverse possession. As a matter of fact he did not claim to have prescribed title over adverse possession.
20. As far as suit items 9 to 17 are concerned, it may be true that Ex.B6 to Ex.B8 do show that properties are brought for sale in revenue auction and was purchased in the name of Narayanasamy Iyer. But it is not explained by DW1 as to how and what circumstances the property belonging to Chellammal is brought for sale in revenue auction that too for the arrears due from the 1st defendant. As Chellammal who is the original owner of the property under Ex.A6 to Ex.A12 died during 1984 and the succession opened in favour of the plaintiff immediately thereafter under Ex.A1, the sale in favour of Narayanasamy in revenue auction during 1987-1989 and possession of the property by Narayanasamy during the pendency of the suit does not have the effect of extinguishing the right of the plaintiff who is not a party to the auction proceedings and the same will in no way affect the title of the plaintiff. Though plaintiff side witness do speak about the auction sale in favour of Narayanasamy the same is not rightly attached any serious reliance by the lower appellate court while deciding the claim of the plaintiff under Ex.A1 and Ex.A6 to Ex.A12.
21. Regarding the plea of possession and enjoyment of Subburayan the same is also not substantiated by any document and the same is rightly disbelieved by the lower appellate court. The lower appellate court has also in view of clear and categorical findings in favour of the plaintiff''s claim for title and against either 3rd defendant or Narayanasamy negatived the plea of non-joinder of necessary parties.
22. In my considered view the lower appellate court after due analysis and appreciation of entire legal and factual aspects involved herein upheld the plaintiff''s claim for title and on the failure of the 3rd defendant to prove his claim for better title either based on document or on adverse possession decreed the suit for recovery of possession and mesne profits. This court find no reason to interfere with the well considered judgment of the lower appellate court. The substantial questions of law are accordingly decided in favour of the plaintiff.
23. In the result, the second appeal stands dismissed. There shall be no order as to costs.
