Ramamurthi and Arumugam Chettiar vs Ayinar Chettiar and Thangavel Chettiar

M.M. Sundresh, J.—The Plaintiffs are the Appellants herein. A suit was filed in O.S. No. 209 of 1990 on the file of the District Munsif Court, Musuri by the Appellants seeking declaration and possession and mesne profits in so far as ''A'' Schedule Property is concerned and for partition and separate possession in so far as ''B'' Schedule Property is concerned.

Undisputed facts involved in the present case are that the suit property originally belonged to one Subramaniam Chettiar. Subramaniam Chettiar had two sons, namely Ganapathy Chettiar and Arumugam Chettiar, who is the second Appellant/second Plaintiff. A registered partition deed was executed between Subramaniam Chettiar and his two sons. Apart from the partition deed, two settlement deeds have been executed by Subramaniam Chettiar. Ex.A.2 is the registered settlement deed dated 22.05.1970, executed by Subramaniam Chettiar pertaining to the suit properties. As per Ex.A.2, the second Plaintiff was permitted to enjoy the ''A'' Scheduled property till his life time and if he begets a son, the title should vest in the male child. It also states that in the event of second Plaintiff not having any male issue, the property which is covered under ''A'' Schedule would go to the Defendants. Similarly, in so far as the ''B'' Schedule property is concerned, the right to enjoy the same was given to the Defendants and in the event of a male child being born to the second Plaintiff, the properties will have to be divided equally between the said male child on the one hand and the Defendants on the other hand.

A suit was filed by the second Plaintiff in O.S. No. 106 of 1971, seeking partition of the entire properties belonging to the family of Subramaniam Chettiar. In the said suit, it was contended by the second Appellant, being the Plaintiff therein that the settlement deed cannot be acted upon. The suit filed in O.S. No. 106 of 1971 and the appeal filed in A.S. No. 542 of 1977 ended against the second Appellant. A specific plea has been taken by the Defendants that the settlement deed, which has been marked as Ex.B.6 in the said suit corresponding to Ex.A.2 in the present suit has been acted upon and the settlees are in possession and enjoyment of the respective portions of the property including the suit properties.

Thereafter, the Plaintiffs have filed the present suit on the ground that the Defendants have been permitted by the second Plaintiff to be in possession of the ''A'' Schedule property, which is a portion of the house. A defence has been taken in the written statement, claiming adverse possession. The Courts below have dismissed the suit on the ground that the Plaintiffs have not come before the Court within 12 years of assertion made by the Defendants claiming adverse title and the period in which the Plaintiff No. 2 prosecuted the earlier proceedings cannot be excluded u/s 14(3) of the Limitation Act. A further finding has been given by the Courts below that the Defendants have established adverse possession against the Plaintiffs. Accordingly, the suit was dismissed by the Courts below in respect of ''A'' Schedule Property is concerned. However, both the Courts below have granted a decree of partition in so far as ''B'' Schedule properties are concerned. Being aggrieved by the Judgments and decrees rendered by the Courts below in so far as the rejection of the relief regarding ''A'' Schedule property, the Appellants have come forward to file the present appeal.

The learned Counsel for the Appellants submitted that No. further appeal had been filed by the Respondents challenging the judgments and decrees granted in favour of the Appellants in so far as ''B'' Schedule properties are concerned.

Heard the learned Counsel appearing for the Appellants and perused the evidence available on record and the typed sets of papers. Even though notices have been served on the Respondents and their names appeared in the cause list, none appeared for them.

At the time of admitting the Second Appeal, the following substantial question of law has been framed:

Whether, in the absence of the plea as to when the Respondents'' possession has become adverse to that of the second Appellant and in the absence of evidence to show that their possession has become hostile and in the absence of a finding on the plea of permissive possession, the finding regarding adverse possession is legally valid and sustainable?

The facts as narrated above are not in dispute. Admittedly, the registered settlement deed has been executed by the father of the second Appellant. In so far as ''A'' Schedule properties are concerned, the recital contained in Ex.A.2 clearly states that the second Appellant is entitled to enjoy the property till his life time and thereafter, it will come to his son. Only in the absence of son being born to the second Appellant, the property will go to the Defendants. Since, the first Appellant being the son of the second Appellant, there is No. dispute between the parties that under Ex.A.2 -settlement deed, the first Plaintiff is the rightful owner.

In so far as the question of limitation is concerned, the Courts below have grossly erred in holding that the suit has not been filed within 12 years of assertion made by the Defendants claiming adverse title to the property under the Limitation Act, 1863. The suit is based upon title. It is the case of the Plaintiffs that the second Plaintiff has permitted the Defendants to be in occupation of the ''A'' Schedule property. When the title is not in dispute and in fact the Defendants have accepted the title, it is not for the Plaintiffs to establish the fact that they have come before the Court within 12 years within the conclusion of the earlier proceedings. It is further to be seen that the earlier proceedings are totally different from the present proceedings. In the earlier proceedings, the second Appellant alone was a party and the properties involved therein were the entire properties, which cover the two settlement deeds. The issue involved in the earlier proceedings is as to whether the settlement deeds are true and genuine and whether they are acted upon or not. Therefore, the Courts below have committed an error in holding that the Appellants have not come to Court within 12 years.

As discussed above, when the title is not in dispute and it is the case of the Plaintiffs that the Defendants have been given only a permissive possession, the onus is squarely on the Defendants to prove that they have been enjoying the properties against the true owner, namely the first Appellant. The title to the first Appellant came after his birth. A perusal of the written statement and the judgments of the Court below nowhere indicate the date on which the Defendants have asserted their right against the true owner, the first Appellant. It is trite law, in order to establish the plea of adverse possession, there has to be a specific plea supported by a concrete evidence and the onus is on the party, who pleads adverse possession. Except by making a mere statement, there is No. evidence on record to show that how long the Respondents have been in enjoyment of the ''A'' Schedule property. The Courts below also not adverted to the said fact. In fact, a perusal of the judgments rendered by the Courts below would merely show that the second Appellant was not in possession and he has not produced any document except Ex.A.9 dated 11.01.1986. It has been further stated that No. steps have been taken by the second Plaintiff to assert the title. The said finding of the trial Court, which has been approved by the lower appellate Court is nothing but perverse. The Courts below have failed to note that the onus is on the Respondents to prove their case. It is the admitted case of the Respondent in the earlier proceedings that in pursuant to the settlement deed, parties have been enjoying their respective properties, which had been allotted to them. Therefore, in view of the specific case of the Respondents in the earlier proceedings, they are totally non-suited in pleading adverse possession. Moreover, as discusses above, neither the question of limitation nor the proof regarding adverse possession can be fastened on the Appellants.

The period of 12 years will have to be proved by the Respondents and not by the Appellants. The mere filing of the documents under Exs.B.12 to B.39 will not prove the case of the Respondents. As it is settled position of law that any length of possession would not amount to adverse possession. Further, the documents filed under Exs.B.32 and B.10 to B.26 stood in the name of Subramaniam Chettiar alone and not in the name of the Respondents. Moreover, No. document has been filed to show their possession in the ''A'' Schedule property for more than 12 years prior to the filing of the suit. Hence, in view of the above said discussions, the judgments and decrees rendered by the Courts below are liable to be interfered with and the substantial question of law is answered in favour of the Appellants.

In the result, the Second Appeal is allowed and the judgment and decree dated 11.11.1993, passed by the Court of Principal Subordinate Judge, Tiruchirapalli, in A.S. No. 20 of 1993, and the judgment and decree dated 13.03.1992 passed by the Court of District Munsif, Musiri in O.S. No. 209 of 1990 regarding the ''A'' Schedule Property are set aside and the suit is decreed as prayed for regarding ''A'' Schedule Property also. No. costs.