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Judgment
S. Vimala, J.—The second defendant is the appellant. The second appeal has been filed challenging the judgment and decree made in A.S.
No. 128 of 1997, dated 30.6.2000, by confirming the judgment and decree made in O.S. No. 811 of 1986, dated 15.4.1997. The suit was filed
by the deceased first plaintiff (R. Thaiyalnayaki Ammal) seeking for the relief of recovery of purchase money of Rs. 1,163.52, from the first
defendant or alternatively, in the event of the Court declining such relief from the first defendant, the relief of recovery of possession from all the
defendants.
The total extent of property is 71 cents covered in R.S. Nos. 110/6A (55 cents) and 110/6B (16 cents), out of which dispute exists only with
regard to 16 cents. The deceased first plaintiff purchased the same from the first defendant on 18.2.1984, but found the deficit of 16 cents after
fifteen months of the purchase, i.e., 19.5.1985. After issuing the notice, dated 11.8.1986, the deceased first plaintiff filed a suit in O.S. No. 811 of
1986. During the pendency of the suit, the legal representatives of the deceased first plaintiff have been added as plaintiffs 2 to 4 on 7.11.1996.
2.1. The contention of plaintiffs 2 to 4 was that even though the deceased first plaintiff paid purchase money for an extent of 71 cents, possession
was handed over only to the extent of 55 cents and the balance of purchase money paid by him has to be proportionately returned to him, i.e., for
an extent of 16 cents. The purchase money was paid at the rate of Rs. 72.00 per sq. ft.,
During the pendency of the suit, a Commissioner has been appointed by the Court to measure the property in R.S. No. 110/6B. From the
Commissioner''s report, it came to light that the second defendant was in possession of 36 cents. He was in possession pursuant to a sale
agreement obtained by him from one Venkatesa Mudaliar. Therefore, the second defendant was impleaded, in pursuance of the order passed in
CMP No. 564 of 1995, dated 4.4.1995. The second defendant is in possession and enjoyment of the property by virtue of the agreement to sell,
but not under any sale deed.
3.1. The third defendant is the son of the original owner of the property in R.S. No. 110/6B and he has been impleaded by virtue of the order
passed in I.A. No. 1755 of 1995, dated 13.12.1995.
The suit was resisted by the first defendant on the contention that the entire land available in the survey numbers were agreed to be sold for a
sum of Rs. 5,112.00 and it is only the deceased first plaintiff who has to pay money for the coconut trees, iron gate and walls in the suit lands. In
other words, the contention is that boundary prevails over the extent and therefore, whatever was covered within the boundary stated in the sale
deed was sold out and the first defendant is not bound to make good the so-called loss.
The suit was also resisted by the second defendant denying the truthfulness, validity and genuineness of the sale deed. The vendor to the first
plaintiff herself did not have any title, interest or right to an extent of 71 cents. Only in order to get unlawful gain, the suit has been filed.
One Bangarammal sold the property in R.S. No. 110/6B, an extent of 20 cents, i.e., the second item of the suit property, to one Venkatesa
Mudaliar. Venkatesa Mudaliar was enjoying both sets of property as a single unit. In between the property of Venkatesa Mudaliar and the first
defendant, there is a pucca fence. Venkatesa Mudaliar received a sum of Rs. 5,000/- from the second defendant and put the property in the
possession of the second defendant. After the death of Venkatesa Mudaliar, the third defendant, who is the son, was impleaded. He did not
dispute the possession and title of the second defendant over the second item of the suit property.
The third defendant has adopted the written statement of the second defendant.
The trial Court has granted a decree for recovery of possession from the second defendant to plaintiffs 2 to 4 on the following findings:-
(i) The third defendant is not the owner of the property as the title and possession has been already transferred in the name of the second
defendant.
(ii) The second defendant is in possession of 36 cents, even though as per the sale agreement he is entitled to possess only 20 cents. Even though
the plaintiff is found entitled to get return of purchase money from D-1, yet on overall consideration of the entire facts and circumstances, the trial
Court has granted the relief of recovery of possession from the second defendant, and possession has to be handed over within a period of three
months.
As against this judgment and decree, the second defendant-Iyyathurai filed an appeal in O.S. No. 128 of 1997. After elaborating the power of
the Court to mould the relief and to do justice by granting appropriate relief, the first appellate Court justified the grant of relief of recovery of
possession from the second defendant to plaintiffs 2 to 4.
Challenging these findings, the above second appeal has been filed.
The second appeal has been admitted on the following substantial question of law:-
(i) Whether the lower appellate Court erred in law in granting the alternative relief of possession when the Courts below found that plaintiffs are
entitled for main relief, the refund of the sale consideration from their vendor to the first defendant?
(ii) Whether the alternative relief of recovery of possession against the second defendant is sustainable in law when the plaintiffs had abandoned the
relief of possession against the second defendant by not impleading him as a party to the suit for nearly nine years and issued Exhibit A-1 for
claiming refund of sale consideration from the first defendant?
(iii) Whether the Courts below not erred in law in granting alternative relief of possession when the plaintiffs said to have purchased the property in
the year 1984, but measured the same in 1985 and filed suit initially against their vendor in the year 1986 and impleaded the second defendant in
the year 1995 contrary to the decision of our High Court reported in M. Delli Gramani and Another Vs. C.R. Ramachandran,
(iv) Whether the plaintiffs had abandoned the relief of recovery of possession when they chose to initiate proceedings against their vendor for
refund of sale consideration and impleaded the second defendant as party to the suit after nine years?
The main contention of the appellant/second defendant is that the plaintiffs are entitled to only the main relief of refund of sale consideration
towards shortage of possession to the extent of 16 cents and therefore the Courts below ought not to have ordered the alternative relief of
recovery of possession. In support of the same, the evidence of P.W. 1 (second plaintiff) is strongly relied upon where-under the second plaintiff
has stated that the recovery of money should be granted as a primary relief to him and in the event of the refusal of the same, the alternative relief of
recovery of possession should be given to him.
12.1 The evidence of P.W. 2 reads:-
The translated version is:-I have asked for money from first defendant and in the alternative, recovery of 16 cents from the second and third
defendants.
12.2. When the second plaintiff has stated that he wanted return of sale consideration and in the event of non-granting of the relief, then he needs
the relief of recovery of possession. In what way the relief asked for should be understood by the Court.
What would be the interpretation of the relief required by the plaintiff? Whether the relief asked for is vertical i.e., in the alternative, one excluding
the other sequentially or it is in horizontal i.e., one not excluding the other for consideration and that the relief should be considered one after the
other.
It is relevant to point out that the claim of the plaintiffs are, (i) The value representing the shortage of 16 cents of land, (ii) Recovery of
possession of that 16 cents itself. But those reliefs are asked for not from the same person, but from different persons, i.e., the first relief is asked
for from the first defendant and the second relief is asked for from the second defendant.
13.1 The first relief is sought for as against the first defendant, who is the vendor of the property, and the second relief is asked for as against the
second defendant, who is found to be in possession of the suit property, having obtained possession in pursuance of an agreement to sell, obtained
from one Venkatesa Mudaliar. When one relief is asked for against one defendant and the other remedy is asked for against yet another defendant,
whether it could be contended that the plaintiffs are asking for main relief and alternative relief. Whether such construction would be feasible in the
given set of circumstances is the issue to be considered.
The relief expected by the party should be interpreted having regard to the pleadings, documents and the entire set of facts surrounding the
circumstances. The relief asked for cannot be construed by merely taking into account the language used in the prayer portion alone, but by taking
into account the down-to-earth view of the whole case. The prayer portion of the plaint itself has to be understood having regard to the entire
pleadings in the plaint.
14.1. No doubt, originally the first plaintiff has asked for refund of sale consideration towards shortage of 16 cents of property. At that point of
time, the first plaintiff was not aware of, as to, (a) Whether if really the shortage of 16 cents would be available physically, (b) if so, where was the
location of that 16 cents and (c) if located, with whom the possession of 16 cents would be.
14.2. After the report of the Commissioner only, it came to light that the 16 cents of property might have been with the second defendant.
Therefore, subsequently the second defendant has been added as a party. If really the first plaintiff was very much particular about return of sale
consideration or if he had considered the return of money as the primary relief, he would not have taken steps to implead the second defendant and
to ask for recovery of possession. What is told by the second plaintiff is the indication of what is asked for in the suit and that it does not mean that
the plaintiffs wanted recovery of money as the primary relief and only in case of the inability to get it, they wanted recovery of possession. Rather, it
would have been vice-versa having regard to the facts and circumstances of the case. Anybody, who has chosen to purchase the property would
like to have only the property to be annexed in case of deficit and normal human conduct is not to opt to have refund of sale consideration. If the
plaintiff is interested in having/possessing money as money only, he would not have chosen to purchase the property by lending money. The
pleadings and evidence only go to show that the plaintiffs have adopted ""safe play mode"" in asking the relief and it does not indicate that the
plaintiffs were very particular only in getting refund of sale consideration as the primary relief and recovery of possession as the secondary relief.
14.3. It is relevant to quote the power and responsibility of the Court to award appropriate relief to the parties, subject to eligibility and availability
and it is relevant to quote the decision in E. Bhagwan Das Vs. Dilip Kumar and others, wherein the decision in Madamsetty Satyanarayana Vs. G.
Yellogi Rao and Others, has been quoted in which, their Lordships approved the principle laid down by SIR BARNES PEACOCK in Lindsay
Petroleum Co. v. Prosper Armstrong Hurd (1814) 5 CP 221 which is as follows:-
Where it would be practically unjust to give a remedy; either because the party has, by his conduct, done that which might fairly be regarded as
equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a
situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and
delay, are most material.
Therefore, the impact of grant of relief in terms of lapse of time and delay vis-a-vis, the position/situation in which the other party would be put by
the grant of remedy, is the material to be considered while granting the relief.
In this context, it is relevant to point out paragraphs 12 and 13 of the judgment of the first appellate Court wherein finding has been given to the
effect that the second defendant has not proved adverse possession over the suit property and the possession of the second defendant, being an
illegal possession, he is bound to hand over possession to the plaintiffs. It is also observed that ordering of recovery of possession would be an
appropriate remedy than ordering recovering of money.
The Courts below have ordered recovery of possession from the second defendant based upon the Commissioner''s report, but the
Commissioner''s report was filed prior to the entry of the second defendant in the suit. The Courts below ought to have either re-issued the
commission warrant with a direction to measure the property in the presence of the second defendant or should have examined either the
Commissioner or the Surveyor, so that opportunity is given to the second defendant to test the veracity of the Commissioner''s report. In the
absence of such an opportunity, the Commissioner''s report will not be binding upon the second defendant. Therefore, based upon that
Commissioner''s report, the second defendant cannot be directed to handover possession to the plaintiffs.
The second defendant''s vendor and the father of the third defendant had purchased the suit property from one Bangarammal under Exhibit B-
Exhibit B-4 is dated 29.7.1958. The plaintiff''s predecessors-in-title had purchased the property, by virtue of the sale deed, dated 18.2.1956.
But, the plaintiff''s predecessors-in-title had sold the property to the plaintiffs on 18.2.1984. In the evidence of Azhagappan, it is stated that
between the place of the plaintiff and the second defendant, there had been a fence for 30 to 40 years and this was the extent of property enjoyed.
It is relevant to point out the observation made in the Commissioner''s report, wherein it has been mentioned that there is a live fence to an extent
of 100.8 meters running north to south and in between, Survey Nos. 110/6A and 110/6B. The observation in the Commissioner''s report would
enable the Court to come to the conclusion that an extent of 16 cents in R.S. No. 110/6B, as contended by the second defendant, was not in the
enjoyment of the plaintiff. Therefore, this evidence will go to show that the property has been enjoyed by boundary and not by extent. It is settled
law that the boundary prevails over the extent of the property. Therefore, in the absence of any acceptable evidence regarding the enjoyment of
property with reference to extent, then the claim for recovery of possession cannot be maintained, more especially, when the extent of property
was not proved in the presence of the second defendant.
Contending that report of the Commissioner cannot be relied upon, as against the appellant, in the absence of notice to the appellant before
visiting the property, the learned counsel for the appellant relied upon the decision in John Sylem Vs. Chanthanamuthu Pillai and Another, wherein,
it has been held as follows:-
On going by Order 26, Rules 9, 10 and 18 of the Code of Civil Procedure, the report of the Commissioner can be treated as evidence only if the
statutory conditions are complied with i.e., the report should be prepared at least with notice to the affected persons. Order 26, Rule 18
contemplates the presence of the parties before the Commissioner.
Naturally, the Court or the Commissioner will have to inform the parties asking them to appear before the Commissioner and only after the said
information, if they are not present, the Commissioner can proceed in their absence. Only in such cases, the report is considered as evidence in the
case. The language of the statute is imperative. It is reiterating the fundamental principles of natural justice. Evidence taken behind the back of any
person is not to be considered for any purpose.
Contending that, (a) The plaintiffs are entitled to get recovery of possession from the second defendant/appellant, even though there is no
privity of contract between the plaintiffs and the second defendant, and (b) The second defendant has not proved title by adverse possession and
therefore, the plaintiffs as owners, in the absence of the defendants establishing title by adverse possession, are entitled to recovery of possession
from the second defendant, the following legal principles/decisions are relied upon by the learned counsel for the plaintiffs.
19.1. The meaning and basic characteristics of ownership are brought to the notice of the Court:-
(a) Ownership-Meaning of-Literal meaning of the term ''own'' is to have or hold a thing. The one who holds a thing as his own, is said to be the
owner and has the right of ownership over it. Thus in the non-legal sense Ownership may be defined as the right of exclusive control over and
disposal of a thing at Will.
In the legal sense, the term Ownership carries the connotation of right over a thing to the exclusion of all other persons. This implies non-
interference by others in the exercise of this right and must be distinguished from mere holding of a thing in one''s possession.
Ownership consists of a bundle of rights, it may be limited or full... One of the main incidents of ownership is right to possess the thing. It is
residuary in character and when the lesser rights are given away their extinction revives all rights in the owner. The simultaneous existence of all the
incidents of ownership is not imperative to constitute ownership of a property.
(i) Jiban Roy Choudhury Vs. Sm. Taramoyee Debi,
(b) Necessary ingredients in the notion of ownership. - Normally ownership implies -
(i) Right to possess;
(ii) Right to use;
(iii) Right to manage;
(iv) Right to the capital; and
(v) Right to income.
(a) Right to possess. - The owner of a thing has the right to possess it, to the exclusion of all others i.e., the owner has exclusive physical control of
a thing or such control as the nature of the thing admits...
(ii Indira Vs. Arumugam and Another,
It is, therefore, obvious that when the suit is based on title for possession, once the title is established on the basis of relevant documents and
other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited...
(iii) Surendra Kumar Asthana Vs. Smt. Kamlesh Asthana,
There is a distinction between title and possession and there is nothing in law to prevent the owner of property from transferring his title even if the
property is in the actual possession of others.
(iv) Karnataka Board of Wakf Vs. Government of India and Others,
It is a well-settled principle that a party claiming adverse possession must prove that his possession is ""nec.vi, nec claim nec pracario"", that is,
peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to
the true owner.
The principles enunciated in the decision, cited supra, explaining the rights of the owner of the property and the right of the owner to get
possession from the opposite party who is not in a position to prove title by adverse possession cannot be disputed. But whether these principles
will apply to the facts of this case is the issue. As already discussed, it is not proved, in the presence of the second defendant, that the second
defendant is in possession of excess 16 cents which is to be in the possession of the plaintiff by virtue of the purchase made. Therefore, recovery of
possession cannot be ordered from the second defendant to the plaintiffs.
There is a concurrent finding that the first defendant is liable to return the purchase money for the deficit of 16 cents. As against the finding by
the trial Court, the first defendant did not file any cross objection before the first appellate Court. That finding was allowed to become final.
21.1 It is contended on behalf of the first defendant that the purchase money was paid with reference to the extent of property in actual enjoyment
and not with reference to the extent of property as mentioned in the sale deed. Therefore, the issue to be considered is whether the sale price was
fixed with reference to the extent of property as mentioned in the sale deed or with reference to the extent of property in the actual enjoyment of
the parties. The evidence available goes to show that the plaintiff''s predecessor ought to have been in possession of lesser extent of property than
the extent mentioned in the sale deed. But, the amount of sale price fixed would give an indication as to whether sale price would have been fixed
with reference to extent indicated in the sale deed or extent in actual possession. The sale price indicated is Rs. 5,112/-. Unless sale price has been
negotiated with reference to value per cent, there is no possibility of the sale price having been not fixed in a round figure. The evidence is that the
sale price was Rs. 72/- per cent. The fraction of Rs. 112/- over and above Rs. 5,000/- is an indication that the sale price ought to have been fixed,
with reference to price per cent. Therefore, this Court holds that the first defendant should return the excess sale price received in respect of 16
cents.
It may not be out of place to mention that Exhibit A-1-notice demanding recovery of Rs. 1,152/- has been issued as early as 11.8.1986. But the
first defendant has not chosen to pay the same and still remains so, successfully for more than 25 years. There is escalation in value of lands and if
the excess sale price received about 25 years back, i.e., Rs. 1,152/-, is returned today, it is of no value to the plaintiffs. Therefore, the first
defendant is liable to return the same, having regard to the time spent by the plaintiffs in pursuing this remedy. Taking into account, the basic
underlying principle enunciated in the decision in Rattan Lal (since deceased) through his Legal Representatives v. S.N. Bhalla and Another ILR
2008 (17) (Del.) 2780, this Court is of the view that the first defendant is liable to pay a sum of Rs. 30,000/- as litigation cost right throughout,
apart from Rs. 1,152/-, representing the excess sale price received.
21.1. In the result, the second appeal is allowed. The judgment and decree made in A.S. No. 128 of 1997 on the file of the Court of Additional
Subordinate Judge, Mayiladuthurai, dated 30.6.2000, confirming the judgment and decree made in O.S. No. 811 of 1986 on the file of the Court
of Principal District Munsif, Mayiladuthurai, dated 15.4.1997, are set aside.
21.2. The first defendant shall pay a sum of Rs. 30,000/- as litigation cost right throughout, apart from Rs. 1,152/- towards refund of excess sale
consideration to the plaintiffs 3 and 4.