9911796707
TMI Blog2003 (7) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... led the suit for declaration against defendants 4, 6, 9 and 10 as well as for mesne profits, past and future. 3. The contesting defendants/respondents have filed a detailed written statement, not only denying the allegations in the plaint, but also claiming title in themselves, labeling the suit property as ancestral property in which the plaintiff or the other family descendants have no semblance of title, that from the year 1918 onwards, the defendants' predecessors in title and interest were in possession and enjoyment of the suit property, continuously, openly and to the knowledge of others and after their demise respectively, they continued to be in possession of the same as rightful owners, even to the knowledge of alleged owner viz., the plaintiff and others for the past more than 45 years, which conferred upon them title over the suit property, by adverse possession, which should necessarily follow that the claim of the plaintiff, if any, might have been extinguished by efflux of time, which should follow further that the plaintiff is neither entitled to declaration nor possession nor profits. 4. The learned District Munsif, Srivilliputhur, considering the pleadin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, Srivilliputhur, is in accordance with Order 41 Rule 31 C.P.C.? 2. Whether after the enactment of the Benami Transactions (Prohibition) Act, 1988 is it open to the defendants to plead that the sale in favour of Ganapathiammal was a benami transaction? 3. When in the absence of evidence of throwing the suit property in the common hotchpot, whether the same could be treated as joint family property? 4. When in a suit for declaration of title and for recovery of possession, if the plaintiffs title is proved and the defendant does not establish a better title or adverse possession, whether the suit is to be decreed? and 5. Whether the lower appellate Court was right in non suiting the plaintiff purely on the basis of oral evidence? 9. Heard the learned counsel Mr. T. Srinivasaraghavan, who is appearing for the appellants, and the learned counsel Mr. K. Rajkumar, who is appearing for the contesting respondents, who have taken me through the pleadings and evidence meticulously, in support of their respective claims, to dislodge the first appellate court's finding as well as to sustain the trial Court's finding, respectively. 10. The learned counsel for the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. Neerathalinga Achari and his wife Ganapathi Ammal, who died 50 and 40 years ago respectively, had three sons and one daughter and they are, Ramalinga Achari, Rakka Muthu, Veerappan Achari and Pillaiyar Ammal. The first defendant is the wife of Ramalinga Achari, who died on 19.2.1978, not disputed. Pillaiyar Ammal is the only daughter died on 13.5.1958 and her husband died on 10.10.1975, not disputed. Their legal heirs are the plaintiff, Seeniammal, Samuthiram, Thangavelu, Lakshmi, Mariyammal. As far as the relationship narrated above, which is indicated in the genealogy appended to the plaint, not disputed. The plaintiff claims absolute title to the suit property through his mother and grand mother alleging that his grand mother, Ganapathi Ammal had purchased the suit property in her name, which was inherited by her only daughter, Pillaiyar Ammal under the law then prevailed, which was inherited by her heirs, who have executed a release deed in favour of the plaintiff under Ex.A9, thereby vesting absolute right in respect of the suit property, in favour of the plaintiff alone. 14. On the other hand, the first defendant and her supporters would contend that the property was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from laying any claim, as if the property belonged to Neerathalinga Achari or the joint family. Though the contention appears to be some what reasonable, considering the short period of transactions, I hesitate to fix my seal of approval, to the plea of benami, since to prove the benami, essential ingredients are absent, for which I could say there is nil evidence. Further, as rightly contended on behalf of the appellants, in view of the Benami Transactions (Prohibition) Act, 1988 it is not open to the contesting defendants, to plead that the sale in favour of Ganapathi Ammal was a benami transaction. I find no acceptable argument or answer from the learned counsel for the contesting defendants/respondents, to negative the said acceptable legal position. Therefore, in view of the settled position at present, since the plea of benami transaction is prohibited, and the plea is also barred, the court should conclude that the property might have been purchased by Ganapathi Ammal, or the property might have been purchased by her husband, to benefit Ganapathi Ammal and in both the way, it should be held that Ganapathi Ammal was the absolute owner of the property, on record from 13.12.191 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be established. The adverse possession pleaded, if proved, then it will have the effect of extinguishing the title of Ganapathi Ammal and Pillaiyar Ammal and in this view of the matter, Pillaiyar Ammal's heirs had nothing to inherit from their mother, especially the suit property. The burden is very very heavy upon the shoulders of the contesting defendants, to prove their claim of adverse possession, since they have taken that stand and the law is well settled on this point. Before going into the adverse possession, as contended by the learned counsel for the appellants, let me see whether the lower appellate Court has committed any mistake of law not following the mandatory provisions of Order 41 Rule 31. 20. Order 41 Rule 31 reads- The judgment of the Appellate Court shall be in writing and shall state- (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision, and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall bear the date on which it is pronounced and shall be signed by the Judge or by the Judges concurring therein. From the above mandatory prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate court, it is the duty of this Court also, though sitting in the second appeal, to assess the evidence on record, in order to render real justice to the parties instead of throwing the case on technicalities. In this view of matter, adverse possession, which was not properly considered by the trial Court, which was not at all adverted to by the first appellate Court, has to be decided by this Court. 24. The suit is one for declaration and possession including claim of mesne profits from 1982, thereby showing the suit property is in the possession and control of defendants 4,6,9 10. To explain the possession, an attempt is made in the plaint, in paragraph 5 as well as 8. According to the plaintiff, after the death of Ganapathi Ammal in the year 1947, the property devolved upon the only female heir Pillaiyar Ammal, but the property was managed and controlled by the husband of the first defendant by name Ramalinga Achari. Thus, the possession of the suit property, at least from the year 1947, with the first defendant family, is admitted. It is also not the case of the plaintiff, that Ramalinga Achari or after his death, his wife, the first defendant, paid any rent to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adverse inference, that even if he had been examined, he would not have supported the case of the plaintiff. In this view of matter, accepting the oral evidence of D.W.1 and the plea in the written statement, it should be held that Samuthiram was not residing in the property in the capacity as the heir of Pillaiyar Ammal, whereas, he should have been permitted to occupy a portion of the building, being the son-in-law of the first defendant, which will not give any crack or gap, in the possession of the first defendant's family, as far as the suit property is concerned. Therefore, I find no hurdle of any nature or of any other problem to say emphatically, even without contradiction, that the possession of the suit property was always with Ramalinga Achari and thereafter with the first defendant and her family members, till the date of filing of the suit, and even today. 27. The pleadings in paragraph-5 of the plaint, that as if the first defendant and her husband were permitted to look after the suit house, remained as dead letters, in the absence of evidence. No other legal heirs of Pillaiyar Ammal was living in the suit building. For not occupying the suit property, by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the so called animus to enjoy the suit property, adverse to the real owner was not informed or known to the real owner and in this view of the matter also, in this case, adverse possession is not available to the contesting defendants. This plea is taken on the basis that the person, who is enjoying the property must be conscious that the property belongs to somebody else and then only he can claim adverse possession. 30. The learned counsel for the appellants would contend, that the close relation admitted or permitted to be in possession of the property, will not clothe him to claim adverse possession, since it is the ordinary practice prevailing in the Hindu Community, to manage the property belongs to family by a male belonged to that family. In aid reliance is placed on the decision of the Supreme Court in the case of Kanakarathanammal v. V.S. Loganatha Mudaliar and another , wherein the Apex Court of this land has held as follows: In ordinary Hindu families property belonging exclusively to a female member would also be normally managed by the manager of the family This principle is not disputed and to apply the same, it should be shown that the property was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson sets up title in himself and fails to substantiate the same, the question may rise as to whether such a person can still claim adverse possession answering in the affirmation. I respectfully agree with the above observation, and to apply the same principle, what is required in this case is, that the contesting defendants should have enjoyed the property as that of their own to the knowledge of the claimants in this case viz., the plaintiff and his brothers and sisters. It is not mandatory that a person, who is in possession of the property, enjoying the same with animus should take the same to the knowledge of the rightful owner, if any. If the rightful owner, claims to know that the property is enjoyed by others, but failed to take any action for several decades, then nothing should prevent to draw a presumption that the so called rightful owner had knowledge and the person, who is in enjoyment of the property was enjoying the same adverse to the real owner. 32. For adverse possession, there is no statutory definition. Adverse possession refers to actual and exclusive possession, giving cause of action to the so called owner to take action for recovery of possession. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the suit property, admittedly, by the contesting defendants. In this view of the matter, even on the basis of satisfactory oral as well as the documentary evidence, I am inclined to accept the plea of adverse possession ignoring the plea of the contesting defendant at first, setting up title in themselves. In this view of the matter, I am constrained to hold that the contesting defendants would have acquired title to the property by adverse possession. Assuming even Pillaiyar Ammal or her predecessors, had title in view of the fact, sale deed standing in the name of Ganapathi Ammal, it has been extinguished by efflux of time by the time of filing of the suit. The fact that Ganapathi Ammal owned some other properties, as seen from certain documents, will not militate the case of the adverse possession. 35. As far as the adverse possession is concerned, unfortunately, neither the trial Court, nor the first appellate Court, has considered the plea of adverse possession in its proper perspective, since possession is the criterion, to establish the title, coupled with other factors. Though the lower appellate court has failed to consider all these matters elaborately, in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
