ADVERSE POSSESSION

In the High Court of Judicature at Madras

Dated: 15/02/2005

Coram

The Honourable Mr. Justice S.R.SINGHARAVELU    

Second Appeal  No. 1065 of 1994

Neelavathi                             ..Appellant

-Vs-

1. Shanmugam  
2. Arulmigu Ramapiran Koil
   at Senthamangalam rep.
   by its Trustee Inbasekaran                   ..Respondents


        Second Appeal filed under Section 100 of Civil Procedure Code  against
the  judgment  and decree dated 18.02.1994 in A.S.No.26 of 1993 on the file of
Sub Court, Kancheepuram, reversing the judgment and decree dated 25.09.1992 in
O.S.No.657  of  1986  on  the  file  of  Principal  District   Munsif   Court,
Kancheepuram.

!For Appellant :  Mr.D.Durairaj

^For Respondents :  Mr.R.Rajesh for
                Mr.S.Balasubramanian


:JUDGMENT  

        This  Second Appeal is directed against the decree and judgment of the
Sub Court, Kancheepuram, dated 18.02.1994 in A.S.No.26 of 1993, which reversed
the decree and judgment passed by the District Munsif Court, Kancheepuram,  on
25.09.1992 in O.S.657 of 1986.

        2.   While  admitting  the  Second  Appeal,  the following substantial
question of law was framed:
"Whether the learned Subordinate Judge erred in law in construing the plea  of
adverse  possession  as inconsistent with plea of title under Ex.A1 failing to
note that the plaintiff had merely set out alternative source of  title  which
is not prohibited by law ?

        3.  This  is  a suit for declaration and injunction.  The appellant is
the plaintiff.  The subject matter of suit is 0.32 cents in  survey  No.94/3-B
of  Papankuzhi  Village  of  Kancheepuram Taluk, patta number of which is 239.
The plaintiff relied upon a settlement  deed  dated  25.0  7.1966,  marked  as
Ex.A-1,  whereby  the property was gifted to plaintiff by her father Nagappan.
In the said document, Nagappan had mentioned two factors; one  is  that,  that
property  belonged to him by his purchase and the other is that he had earlier
executed a Gift deed in favour of his wife on 09.03.1951 and that Alamelu, the
wife subsequently died.  Unfortunately, no particulars of the sale  in  favour
of Nagappan were mentioned thereunder nor was found in the course of evidence.
Apart  from  the  gift  deed,  the  other  documents  that were filed are kist
receipts through Exs.A-2 to A-5 and yet another sale deed  dated  2  6.11.1982
through  Ex.A-8  in  favour  of  one Inbasekaran, which refers to the property
lying on the west of suit property.    There  were  three  witnesses  examined
including  the  plaintiff  on her side and one witness examined on the side of
the defendants.

        4.  The 1st defendant claimed cultivating tenancy right under the 2 nd
defendant temple, in whose written statement, it  was  denied  that  the  suit
property never belonged to Nagappan nor did he have any competency or capacity
to execute  a  gift  in  favour  of  plaintiff.  It was further contended that
neither the plaintiff nor  her  alleged  predecessor  was  in  possession  and
enjoyment of  the  same.    On  the contrary, the suit property was pleaded as
belonging to 2nd defendant  temple  inasmuch  as  one  Kanniappa  Naicker  had
purchased  it in the capacity of the trustee of the said temple as early as on
27.09.1934 under Ex.B-1.

        5.  A careful perusal of that document through Ex.B-1 would show  that
what Kanniappan  purchased  thereunder was 34 cents in Survey No.94/3 .  Since
it was purchased by Kanniappan not in  his  individual  capacity  but  in  the
capacity of the trustee of the 2nd defendant temple, the title vested with the
temple as  early  as  in 1934.  The 2nd defendant temple had also produced the
copy of chitta through Exs.B-12  and  B-13  and  the  copy  of  patta  through
Ex.B-14.   Leaving Ex.B-2 patta as it had corrections in the survey number, we
may have to rely upon Exs.B-1 2 to B-14, the chitta and  patta  for  the  suit
survey number.   It has been argued by the counsel for the appellant that they
were dated 12.0 9.1992 and 14.09.1992, whereas decree was passed in the  trial
court on  25.09.1992.    It  is  in that way documents pertained to the period
subsequent to the suit.  But later developments and events subsequent to  suit
may also have to be taken into consideration.  While plaintiff has no document
of patta nor chitta, the 2nd defendant was able to file them under Exs.B-12 to
B-14.  This will go to show their possession.

        6.   Since  Ex.A-1 is of the year 1966 and no document was produced to
show that Nagappan, the plaintiff's father gifted it to his wife on 09.03.1951
and since no document of purchase in favour of  Nagappan  in  regard  to  this
property  was  produced and that the same was not mentioned in Ex.A-1 and also
since Ex.B-1 is 32 years older than Ex.A-1 document, it was correctly found by
the learned Sub Judge that the appellant / plaintiff has not established  hetr
title.

        7.   Again,  when  plaintiff  had relied upon a particular document of
title, namely, Ex.A-1 gift deed, in order to claim right  and  title  to  suit
property,  she  cannot  claim  it by adverse possession, because when once she
claims title upon a particular document, then whatever right plaintiff  claims
would  be  flowing  if  at  all under that document, in which case there is no
element of adverse nature of possession  in  order  to  make  out  a  case  of
prescription by  title.    Thus,  the  substantial question of law is answered
against the appellant/plaintiff and I find no  reason  to  allow  this  second
appeal.

        8.   The  Second Appeal is dismissed and decree and judgment passed by
the first appellate court is confirmed.  No costs.

Index:  Yes.
Internet:  Yes.

gl

To

1) The Subordinate Judge,
Kancheepuram.

2) The Principal District Munsif,
Kancheepuram.

Copy to:
The Record Keeper,
V.R.Section,
High Court,Madras.