Devadas Roselet and Shaji vs Sadananthan and Radhamony

A. Selvam, J.—Challenge in this second appeal is to the concurrent Judgments and decrees passed in Original Suit No.92 of 2004 by the First Additional District Munsif Court, Kuzhithurai and in Appeal Suit No.91 of 2005 by the Sub Court, Kuzhithurai.

The respondents herein as plaintiffs have instituted Original Suit No.92 of 2004 on the file of the trial Court for the reliefs of recovery of possession and also for future mesne profits, wherein the present appellants have been shown as defendants.

It is averred in the plaint that the suit property is comprised in R.S.No.862/1 admeasuring 50 cents and its old Survey Number is 3025/1. The suit property is a Government poromboke land and one Krishnan Nadar, S/o. Velayudhan Nadar has entered into the suit property and its adjoining land and he reclaimed the same and made it fit for cultivation and on 19.05.1986 he sold the suit property in favour of the plaintiff for a sum of Rs.11,000/- towards cost of land and Rs.9,000/- towards trees. The plaintiffs have been put in possession of the suit property. After getting necessary permission, the plaintiffs have put up a building in the suit property and the same has been assessed to tax and Door Number is 2/53C. On 08.06.1987 at about 08.30 A.M., the defendants have forcibly entered into the suit property. Since the plaintiffs belong to minority community, they have not been able to restrain the defendants. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint.

In the written statement filed on the side of the defendants, it is averred that the description of suit property is not correct. It is false to contend that R.S.No.862/1 is related to old Survey No.3025/1. The four boundaries given in the plaint are related to Survey No.3029 situates in Kaliyal Village. The plaintiffs are not having any right or possession over the suit property. The deceased Krishnan Nadar, S/o. Velayudhan Nadar has had no right to deal with R.S.No.862/1 or old Survey No.3029. The sale deed relied upon by the plaintiffs is nothing, but a fraudulent one. The deceased Krishnan Nadar has had enjoyed the land comprised in old Survey No.3025/1 and he surrendered his possession in favour of one Valsalam. It is false to contend that the defendants have trespassed into the suit property on 08.06.1987. The Government have chosen to give ''B'' Memo against the first defendant and thereby recognised his possession. The plaintiffs have no right to file the present suit. There is no merit in the suit and the same deserves to be dismissed.

On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the suit in respect of the relief of recovery of possession. Against the Judgment and decree passed by the trial Court, the defendants as appellants have filed Appeal Suit No.91 of 2005 on the file of the first appellate Court.

The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments passed by the Courts below, the present second appeal has been preferred at the instance of the defendants as appellants.

As agreed by the learned Counsels appearing for both sides, the present second appeal is disposed of on merits at the stage of admission.

On the side of the appellants/ defendants, the following substantial questions of law have been raised for consideration:

a) Whether the Judgment and decree of the Courts below are vitiated for non-consideration of the oral and documentary evidence in proper perspective?

b) Whether the Courts below are right in decreed the suit particularly when the suit claim is barred by limitation in view of Section 6 of the Specific Relief Act?

c) Whether the Courts below are right in casting the burden of proof on the appellant particularly when the respondents/plaintiffs has to prove his own case?

d) Whether the Courts below are right in granting the relief of recovery of possession particularly without asking the relief of declaration?

e) Whether the first appellate Court has properly appreciated and applied the principles to find out the admissibility of the additional documents in the first appeal especially when the appellants herein have filed vital documents to disprove the plaintiffs claim under Rule 27 and 28 of Order 41 of C.P.C.?

f) Whether the lower appellate Court is right in holding that the Ex.D.1, Ex.D.2 and Ex.D.3 cannot be considered to be evidence?

g) Whether the suit is bad for non-joinder of necessary party particularly when the Government, who is the absolute owner of the property ought to have been impleaded as a necessary party to prove who is in possession of the property under the Government?

h) Whether the Courts below have not framed the issue with regard to the dispute regarding the description of the suit property?

The pith and substance of the case of the plaintiffs is that the suit property is comprised in R.S.No.862/1 admeasuring 50 cents and its old Survey Number is 3025/1 and the same is the absolute property of the Government. One Krishnan Nadar, who is none other than the father of the first defendant has trespassed into the suit property and reclaimed the same and made it fit for cultivation and on 19.05.1986 he sold the land in favour of the plaintiff for a sum of Rs.11,000/- and trees for a sum of Rs.9,000/- and since then the plaintiffs have had enjoyed the same. On 08.06.1987, the defendants have forcibly trespassed into the suit property and evicted the plaintiffs. Since the plaintiffs belong to minority community, they have not been able to restrain the defendants from dispossession. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint.

In the written statement filed on the side of the defendants, it is averred that the description of suit property given in the plaint is erroneous and the four boundaries given in the plaint are not related to the suit properties and they are related to Survey No.3029, which situates in Kaliyal Village and further the father of the first defendant viz., Krishnan Nadar has not sold the suit property in favour of the plaintiffs and the sale deed relied upon by the plaintiffs is nothing, but a fraudulent one and the said Krishnan Nadar has surrendered possession of R.S.No.862/1 in favour of one Valsalam and further the trespass alleged to have been made by the defendants is also false and altogether the present suit is liable to be dismissed.

As stated earlier, the trial Court has decreed the suit in respect of the relief of recovery of possession. The first appellate Court has upheld the Judgment and decree passed by the trial Court. Under the said circumstances, the Court has to look into as to whether the respondents/plaintiffs are entitled to get the relief of recovery of possession as sought for in the plaint?

The learned Counsel appearing for the appellants/defendants has made his attempt to set aside the concurrent Judgments and decrees passed by the Courts below on the following grounds:

(a) In the plaint, it has been simply stated that R.S.No.862/1 is related to old Survey No.3025/1 and the same has not been established on the side of the plaintiffs.

(b) In the written statement, the defendants have clearly stated that the sale deed dated 19.05.1986 is nothing, but a fraudulent one and no attempt has been made on the part of the plaintiffs to prove the same.

(c) The suit property is nothing, but a poromboke land and the first defendant has been in possession and enjoyment of the same for a long time and in recognition of his possession, the Government have issued ''B'' Memo in his name and therefore question of trespass into the suit property does not arise.

(d) The present suit has been instituted as per the provision of Article 64 of the Limitation Act, 1963 but this suit should be instituted only on the basis of provision of Section 6 of the Specific Relief Act, 1963 and therefore the present suit is barred by limitation.

In order to remonstrate the argument advanced by the learned Counsel appearing for the appellants/defendants, the learned Counsel appearing for the respondents/plaintiffs has laconically contended that the specific case of the plaintiffs is that the father of the first defendant viz., Krishnan Nadar has sold the suit property and standing trees and subsequently the plaintiffs have entered into possession of the suit property and on 08.06.1987, they have been forcibly dispossessed by the defendants and the present suit has been instituted during January, 1997 and therefore the present suit is well within the period of limitation as prescribed under Article 64 of the Limitation Act, 1963 and since the present suit has been instituted as per the provision of Article 64 of the Limitation Act, 1963 question of instituting the present suit u/s 6 of the Specific Relief Act, 1963 does not arise and the Courts below after considering all the rival contentions raised on either side have rightly rejected the defence taken on the side of the appellants/defendants and therefore the present second appeal deserves to be dismissed.

In fact, this Court has closely perused the entire averments made in the written statement. In the written statement, it has been specifically pleaded that R.S.No.862/1 does not relate to old Survey No.3025/1. In the plaint, it has been specifically stated that R.S.No.862/1 is related to old Survey No.3025/1. At paragraph No.3 of the plaint, it has been clearly stated that on 19.05.1986, the father of the first defendant viz., Krishnan Nadar has sold the suit property and also standing trees in favour of the plaintiffs and the said sale deed has been marked as Ex.A1 and its Tamil translation has been marked as Ex.A2. In Exs.A1 and A2 in the property description, it has been clearly mentioned that old Survey No.3025/1 is related to R.S.No.862/1. Therefore it is needless to say that the suit property is comprised in R.S.No.862/1 and its corresponding old Survey Number is 3025/1. Even though a definite stand taken on the side of the defendants to the effect that old Survey No.3025/1 is not related to R.S.No.862/1, no attempt has been made on the side of the defendants to prove the same. But at the same time, positive evidence has been let in on the side of the plaintiffs by way of filing Exs.A1 and A2. At this juncture, it would be more useful to look into the evidence given by D.W.1 and also the averments made in paragraph No.10 of the written statement. In paragraph No.10 of the written statement, it has been clearly stated that the father of the first defendant viz., Krishnan Nadar has enjoyed old Survey No.3025/1 and he surrendered the same in favour of one Valsalam. The first defendant has been examined as D.W.1. He would say in his evidence that his father has created a sale deed in respect of 50 cents of land in favour of the plaintiffs. Further the son of the said Valsalam has been examined as D.W.2. He would say in his evidence that no document has been created in favour of his father by the father of the first defendant. Therefore from the evidence of D.W.1 coupled with the averments made in paragraph No.10 of the written statement, the Court can unflinchingly come to a conclusion that the suit property is comprised in R.S.No.862/1 and its corresponding old Survey Number is 3025/1 and the same has been sold by the father of the first defendant in favour of the plaintiffs.

Now the Court has to look into the legal point raised on the side of the appellants/ defendants. As assorted earlier, the learned Counsel appearing for the appellants/defendants has attacked the concurrent Judgments and decrees passed by the Courts below stating that the present suit ought to have been instituted only on the basis of Section 6 of the Specific Relief Act, 1963 and therefore the present suit is barred by limitation.

Section 6 of the Specific Relief Act reads as follows:

Suit by person dispossessed of immovable property.- (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be brought-

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

Article 64 of the Limitation Act, 1963 reads as follows:

Description of suit Period of limitation Time from which period begins to run

64.For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Twelve years The date of dispossession.

From the cumulative reading of Section 6 of the Specific Relief Act, 1963 as well as Article 64 of the Limitation Act, 1963, it is easily discernible that as per Section 6 of the Specific Relief Act, 1963 if any person is dispossessed without his consent of immovable property, a suit has to be laid within six months from the date of dispossession. As per Article 64 of the Limitation Act, for possession of immovable property on the basis of previous possession, a suit can be levied within a period of twelve years from the date of dispossession.

The entire legal argument advanced on the side of the appellants/defendants is based upon the provision of Section 6 of the Specific Relief Act, 1963.

As a befitting reply to the legal point raised by the learned Counsel appearing for the appellants/defendants, the learned Counsel appearing for the respondents/plaintiffs has drawn the attention of the Court to the decision in Nair Service Society Ltd. v. K.S. Alexander and Ors. reported in AIR 1968 Supreme Court 1165, wherein the Hon''ble Apex Court has held as follows:

Provisions of Sections 8 and 9 of Specific Relief Act are not mutually exclusive so that after the period of six months is over it cannot be said that a cult based on prior possession alone is not possible. Section 8 of the Specific Relief Act does not limit the kinds of suit but only lays down that the procedure laid down by Civil P C must be followed. This is different from saying that a suit based on possession alone is incompetent after expiry of six months. The correct position is that if Section 9 of the Specific Relief Act is utilised the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of 6 months has passed question of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit u/s 4 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one. The present amended Articles 64 and 65 of the Limitation Act bring out this difference. Article 64 enables a suit within 12 years from dispossession, for possession of immovable property based on possession and not on title, when the plaintiff while in possession of the property has been dispossessed.

Even a cursory look of the decision rendered by the Hon''ble Apex Court, it is made clear that the provision of Section 6 of the Specific Relief Act, 1963 is not a bar to institute a suit under Article 64 of the Limitation Act, 1963.

The present case has been instituted only on the basis of Article 64 of the Limitation Act, 1963. In the plaint, it has been specifically pleaded that on 08.06.1987, the defendants have forcibly entered into the suit property and dispossessed the plaintiffs. Of course, it is true that the present suit has been instituted during January, 1997. As per Article 64 of the Limitation Act, 1963 from 08.06.1987 within a period of twelve years, a suit can be levied. Since the present suit has been instituted during January, 1987, the present suit is not barred by limitation and the same is also legally maintainable. Therefore the legal argument advanced by the learned Counsel appearing for the appellants/defendants is sans merit.

As pointed out earlier, the learned Counsel appearing for the appellants/defendants has also contended that in pursuance of long possession and enjoyment of the first defendant, the Government have chosen to issue a ''B'' Memo in his name and therefore question of trespass does not arise and the Courts below have failed to look into it.

The suit property, as adverted to earlier, is nothing but a poromboke land and the same belongs to Government of Tamil Nadu. Even in the plaint, it has been clearly admitted to the effect that suit property is a Government poromboke land. The residual defence taken on the side of the appellants/defendants that the first defendant has been in possession and enjoyment of the suit property for a long time and therefore question of trespass does not arise. At this juncture also the Court has to look into the main averments made in paragraph 10 of the written statement as well as the evidence of D.W.1. As pointed out earlier in paragraph 10 of the written statement, it has been clearly stated that the father of the first defendant viz., Krishnan Nadar has surrendered his possession of the land, which is comprised in old Survey No.3025/1 in favour of one Valsalam. The first defendant (D.W.1) has also admitted in his evidence that his father has sold 50 cents of land in favour of the plaintiffs. Therefore the Court can very well come to a conclusion that the plaintiffs have been dispossessed by the defendants. As stated earlier, the date of dispossession as mentioned in the plaint is 08.06.1987 and the present suit has been instituted after a lapse of ten years. Under the said circumstances, considering the possession and enjoyment of the first defendant, the Government of Tamil Nadu might have issued ''B'' Memo in the name of the first defendant and that itself does not mean that the defendants have not dispossessed or trespassed into the suit property. Therefore viewing from any angle, the entire argument advanced by the learned Counsel appearing for the appellants/defendants cannot be accepted and the substantial questions of law raised on the side of the appellants/defendants are not having substance at all.

The Courts below after analysing all the rival contentions raised on either side have rightly rejected the defence taken on the side of the appellants/defendants and in view of the foregoing elucidation of both the factual and legal aspects, this Court has not found even a flimsy ground to make interference with the wellmerited Judgments and decrees passed by the Courts below and altogether the present second appeal deserves to be dismissed.

In fine, this second appeal deserves dismissal and accordingly is dismissed without costs at the stage of admission. The Judgment and decree passed in Original Suit No.92 of 2004 by the First Additional District Munsif Court, Kuzhithurai, upheld in Appeal Suit No.91 of 2005 by the Sub Court, Kuzhithurai are confirmed. Consequently, connected Miscellaneous Petition is dismissed.