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Whether the suit filed by the respondent/plaintiff for recovery of possession is maintainable without any notice of termination of tenancy?

posted 8 Jun 2011, 04:37 by murali mohan Mandagaddi
IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:28.01.2011

Coram:

THE HONOURABLE MR.JUSTICE G.RAJASURIA

S.A.No.204 of 2006 
 
1. Mehboob Jani
2. Gulzar Hussain
3. Noorunnissa
4. Navazhusian
5. Minor Shaw Hussain
6. Nazimunisa
7. Minor Jameerunisa ..  Appellants


vs.


Vimalchand .. Respondent

This second appeal is filed against the judgment and decree passed in A.S.No.23 of 2002 dated 27.02.2004 on the file of Additional District and Sessions Judge, (Fast Track Court-II, Ranipet, Vellore District) confirming the judgment and decree passed in O.S.No.264 of 1986 dated 27.08.1993 on the file of District Munsif Court, Arakkonam.

For  Appellants             : Mr.A.Ilango

For Respondent              : Mr.D.Dharmachand Jain




J U D G M E N T

This second appeal is focussed animadverting upon the judgement and decree dated 27.02.2004 passed in A.S.No.23 of 2002 by the learned Additional District and Sessions Judge, (Fast Track Court-II, Ranipet, Vellore District) confirming the judgment and decree of the learned District Munsif Court, Arakkonam in O.S.No.264 of 1986. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.

2. The factual matrix germane for the disposal of this Second Appeal would run thus:

(a) The plaintiff filed the suit seeking the following reliefs:

"(a) To declare the title of the plaintiff to the schedule mentioned property;
(b) To direct the defendants to deliver possession of the schedule mentioned property, failing which the plaintiff may be directed to take possession through the process of court;
(c) To direct the defendants to compensate the plaintiff to the extent of Rs.540.00 for damages for use and occupation;
(d) To direct the defendants to pay the costs of the suit."
    (extracted as such)

(b) The defendants filed the written statement disputing the suit.

(c) Whereupon issues were framed by the trial Court.  

(d) The plaintiff examined himself as P.W.1 along with P.W.2/Ethiraj and Exs.A1 to A19 were marked.  On the side of the defendants, D.W.1 to D.W.3 were examined and  Exs.B1 to B43 were marked.

(e) Ultimately the trial Court decreed the suit, as against which appeal was filed  for nothing but to be dismissed confirming the judgment and decree of the trial Court.

3. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds  inter alia  to the effect that both the Courts fell into error in not considering the specific plea of the defendants that their propositus, namely Abdul Rasack acquired prescriptive title over the suit property warranting interference in the Second Appeal.

4. The following proposed substantial questions of law are found suggested in the memorandum of Second Appeal:

"(1) Is it not the judgment of Fast Track Court erroneous since it has not followed the Order 41 of CPC?

(2) Whether the suit is valid without terminating the alleged tenancy under Section 106 of Transfer of Property Act?

(3) Whether the suit filed by the respondent/plaintiff for recovery of possession is maintainable without any notice of termination of tenancy?

(4) Whether the Fast Track Court is right in confirming the judgment of the Trial Court without discussing the case on the basis of materials and whether the judgment of Trial court is proper consideration of the case?
(extracted as such)
5. My learned Predecessor framed the following substantial question of law:
"Whether the suit is valid without terminating the alleged tenancy under Section 106 of the Transfer of Property Act?"

6. After hearing both sides, I thought fit to frame the following additional substantial question of law:
"Whether there is any perversity or illegality in the judgments and decrees of both the Courts below in considering the evidence, both oral and documentary adduced on both sides while holding that the defendants' plea of prescription, was not proved?"

SUBSTANTIAL QUESTION OF LAW NO.1:

7. The learned counsel for the appellants/defendants would put forth and set forth his arguments thus, which could pithily and precisely be set out thus:

(a) The plaintiff having chosen to file the suit, treating the defendants as tenants, should have issued statutory termination notice under Section 106 of the Transfer of Property Act terminating the alleged tenancy of the defendants, but he had not been done so and accordingly, such factor should be treated as fatal to the filing of the suit itself.

(b) The plea of prescription was also not considered by the first appellate Court and simply affirmed the findings of the trial Court ignoring the mandates as contemplated under Order 41 Rule 31 of CPC.

8. By way of torpedoing and pulverising the arguments as put forth and set forth on the side of the defendants, the learned counsel for the respondent/plaintiff would advance his arguments, which could tersely and briefly be set out thus:

(a) The suit has not been filed simply on the ground that the defendants were the tenants occupying the suit property, but the suit has been framed by the plaintiff for declaration of title and for recovery of possession in view of the fact that in the pre litigation correspondences, Abdul Rasack, the propositus of the defendants' unambiguously and unequivocally came forward with a case that he was not occupying the suit property as a tenant and there was no landlord and tenant relationship.  Over and above that he had even gone to the extent of setting up prescriptive title in himself relating to the suit property.  Hence the suit filed was one for declaration of title and for recovery of possession and in such a case, the question of finding fault with the plaintiff for having not issued Section 106 notice would not arise at all. 

9. The very suit itself has been framed for getting the title of the plaintiff's declaration over the suit property and for recovery of possession of the same and in such a case this is not a simple suit for eviction filed by the landlord as against the erstwhile tenant.  For filing such bare eviction suit, naturally notice under Section 106 of the Transfer of Property Act is a must and in other words, issuance of such statutory notice under Section 106 of the Transfer of Property Act would be sine quo non for filing a suit by the landlord for evicting the erstwhile tenant.  The eviction suit simplicitor is different from title suit incorporating the prayer for declaration and for possession of the suit property.  Hence in this view of the matter, the first substantial question of law is decided to the effect that the institution of the suit is not bad for want of a prayer for issuance of statutory notice under Section 106 of the Transfer of Property Act.

SUBSTANTIAL QUESTION OF LAW NO.2:

10. The trial Court adverting to the oral and documentary evidence clearly and categorically, unambiguously and unequivocally held that the plaintiff established his title over the suit property by virtue of Ex.A1.  The defendants would come forward with the plea that the defendants' propositus, namely deceased Abdul Rasack acquired prescriptive title over the suit property, as he had been enjoying it as the owner over the statutory period.  

11. At this juncture, I recollect the following maxim:
Nec vi Nec clam Nec precario : Not by violence, stealth or permission (In order that a person may acquire title to land by adverse possession, his possession has to be characterised by these attributes)
and also the maxim:
Jus superveniens auctori accrescit successori : A right accruing to the one in possession continues in favour of his successor.

12. Before discussing further, I would like to recollect the following decision of the Hon'ble Apex Court:

(2007) 6 SCC 59 (P.T.Munichikkanna Reddy and others vs. Revamma and others).  An excerpt of it would run thus:

"20.  While dealing with the aspect of intention in the adverse possession law, it is important to understand its nuances from varied angles.
22. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario  has been noticed by this Court in Karnataka Board of Wakf Vs. Govt. Of India in the following terms: (SCC p.785, para 11)

"Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
23. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner.

31. Inquiry into the starting point of adverse possession i.e dates as to when the paper-owner got dispossessed is an important aspect to be considered. In the instant case the starting point of adverse possession and other facts such as the manner in which the possession operationalised, nature of possession: whether open, continuous, uninterrupted or hostile possession, have not been disclosed. An observation has been made in this regard in S.M.Karim Vs. Bibi Sakina: (AIR p.1256, para 5)

"Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for 'several 12 years' or that the plaintiff had acquired 'an absolute title' was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea." 


32.  Also mention as to the real owner of the property must be specifically made in an adverse possession claim.

33.In Karnataka Wakf Board it is stated: (SCC pp.785-86, para 

12)  "A plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. In P.Periasami V. P.Periathambi this Court ruled that: (SCC p.527, para 5)

'Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.'

The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal V. Mirza Abdul Gaffar that is similar to the case in hand, this Court held: (SCC pp.640-41, para 4)
'4.As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e up to completing the period his title by prescription  nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53 A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."

A mere perusal of the said judgment would highlight and spotlight the fact that there is a sea change in the law relating to prescription.  Even 100 years possession over the suit property by an individual would not enure to his benefit to claim title over it on the ground of prescription, unless he could prove that from a particular period he started enjoying it as absolute owner openly and uninterruptedly over the statutory period.  Hence it has to be seen as to whether the defendants discharged their burden of proof in proving their plea of prescription.  The trial Court in paragraph No.13 of its judgment after elaborately discussing in the previous paragraphs the title of the plaintiff, proceeded to discuss the plea of the defendants and found that absolutely there was no iota or shred, shard or molecular extent of evidence to prove that the said Abdul Rasack acquired prescriptive title over the suit property.  

13. The learned counsel for the plaintiff would develop his argument inviting the attention of this Court to Ex.A13, the sale deed dated 26.11.1956 in favour of the said Abdul Rasack who is admittedly owning the property adjacent to the suit property, that the southern boundary of his property is referred to as the property of the plaintiff's vendor.  It is therefore just and necessary to extract hereunder the  relevant portion of the said sale deed:



VERNACULAR (TAMIL) PORTION DELETED


14. It is pellucidly and palpably highlighted that during the year 1956 when the said Abdul Rasack, the propositus of the defendants purchased a portion to the north of the suit property, he admitted that the plaintiff's vendor was the owner of the property situated to the south of the property which Abdul Rasack purchased.  Hence, in such a case there should be some evidence to indicate and establish  that subsequent to 1956, Abdul Rasack started enjoying the said adjacent property, namely the suit property, in his capacity as owner.  

15. The learned counsel for the defendants would invite the attention of this Court to Exs.B41 to B43-the revenue records and  develop his argument that during re-survey conducted around the year 1960, the Revenue Department recognised Abdul Rasack as the owner of the suit property and in such a case, it would not lie in the mouth of the plaintiff to contend otherwise.  

16. When this Court raised the querry as to whether there is any evidence to prove as to when actually the re-survey was conducted and when the name of Abdul Rasack was incorporated in the revenue records, the learned counsel on the side of the defendants could not draw my attention to any evidence highlighting the same.  

17.  At this juncture, I also recollect the following decision:
1998 (I) CTC 630 in Srinivasan and six others Vs. Sri Madhyarjuneswaraswami, Pattavaithalai, Tiruchirapally District by its Executive Officer at Pattavaithalai Devasthanam and five others.  An excerpt from it would run thus:

"The Supreme Court in the decision reported in State of Tamil Nadu Vs. Ramalinga Swamigal Madam, AIR 1986 SC 794 observed that the powers of the statutory authority constituted under the Act are exercised in a summary manner and the claims of occupants comes to be determined only incidentally and they cannot be equated with the Civil Courts in respect of what they could do or the nature of relief that they could grant. A careful analysis of the scheme underlying these abolition laws would go to show that the vesting on abolition under everyone of these legislations are subject to the pre-existing rights of the occupants, except in respect of what are known as public or communal properties, meant for common use and the grant of patta has been always considered and held to be in recognition of their pre-existing rights. The provisions relating to abolition and vesting of the properties do not have the effect of obliterating or destroying such pre-existing rights, if any, except in respect of public or communal properties and the rights which inhere are the basis and fundamental rights which entitle a person to preferentially get patta under these legislations and the same could not be equated to the grant of patta by way of assignment under the Revenue Standing Orders or under rules of assignment outside the scope of the statutory enactments. Similarly, a meticulous analysis of the scheme underlying the provisions of the Act dealing with the nature of rights dealt with by the various authorities, the manner in which such authorities adjudicate such rights and the consequences of such adjudication, disclose that they do not mean and even intended to be a substitute or alternate mode of resolution of the ordinary civil right of a citizen or for that matter persons asserting competing claim, in their attempt to project a claim for patta. Consequently, in our view, the ratio of the decisions of the Apex Court reported in State of Tamil Nadu Vs. Ramalinga Swamigal Madam, AIR 1986 SC 794, R.Manicka Naicker Vs. E.Elumalai Naicker, 1995 (4) SCC 156 and Sayyed Ali Vs. A.P.Wakf Board, Hyderabad, 1998(2) SCC 642 and that of a Division Bench of this Court in Ramanujam Kavirayar, T.K. Vs. Sri-La-Sri Sivaprakasa Pandara Sannathi Avargal, 1988 (2) L.W. 513 and of a learned single Judge of this Court in Samsuddin Rowther and another Vs. Avvammal and 2 Others, 1992 (1) L.W. 207 would squarely apply and govern the case and consequently, it has to be necessarily held that the jurisdiction of the Civil Courts cannot be held to have been completely ousted or barred at any rate in respect of adjudication of claims of title and questions or issues which are not obliged or required to be adjudicated for the purposes of enforcement of these laws which has, as their objection and aim, to implement ryotwari settlement in the areas governed by them.
15.Further, the mere fact that the orders passed or decisions rendered under these Acts were given finality for the purposes of those Acts or that the issues, which they are obliged or required to be decided, when so decided are ordained to bind the parties to the proceedings  or their privies and successors-in-interest applying the principles of res judicata, does not have the effect of ousting the jurisdiction of the Civil Court once and for all. It is by now well settled that even in cases where finality is accorded to any decision or order, there are certain well settled exceptions and proved and existence of such exceptional factors, the Civil Court is entitled to nullify any or all such decisions. Similarly, even in cases where the principles of res judicata are rendered applicable, the jurisdiction of the competent Civil Court to go into the question and find out whether the necessary ingredients to apply the principles of res judicata exist in a given case or not cannot be denied to the Civil Courts and from the mere fact of according finality to the orders or decisions rendered under the Act or the application of the principles of res judicata, a total or complete bar or ouster of the jurisdiction of the Civil Courts for all and any purpose cannot be automatically inferred or implied. Before a plea of res judicata can be given effect to, it must be sufficiently pleaded and established that the litigating parties must be the same, that the subject matter of the suit and the other proceedings also are identical, that the questions arising in the suit and the other proceedings were directly and substantially in issue and the same was finally decided and that too by an authority or Court of competent jurisdiction.
16.On coming to know of the existence of an unreported decision of the Apex Court rendered by a Bench consisting of three of their Lordships, efforts were made to secure the same when the judgment in this case was under preparation and it was ascertained that in Sri-La-Sri Sivaprakasa Pandara Sannadhi Avargal Vs. Smt.T.Parvathi Ammal & Ors., 1998 (I) CTC 585. Their Lordships of the Apex Court by a judgment dated 20.02.1996, not only approved the earlier decision of the Apex Court reported in R.Manicka Naicker Vs. E.Elumalai Naicker, 1995(4) SCC 156 and set their seal of approval to the principles laid down therein, but has categorically held in unmistakable terms with the decision in Vatticherukuru Village Panchayat Vs. Nori Venkatarama Deekshithulu, 1991 Supp (2) SCC 228 has no application to the provisions or in respect of claims arising under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. Their Lordships of the Apex Court in coming to such a conclusion, held as follows:
"The only question for decision relates to the jurisdiction of the Civil Court to entertain the suit which was filed by the respondents. The trial Court decreed the suit. The First appellate Court set aside the decree taking the view that the Civil Court's jurisdiction was barred. In the second appeal filed by the present respondents, the High Court has restored the judgment and decree of the trial Court taking the view that the Civil Court's jurisdiction was not barred.

The plea of exclusion of the Civil Court's jurisdiction to adjudicate the title of the parties in the present case is based on the provisions of the Tamil Nadu Minor Inam (Abolition and Conversion into Ryotwari) Act, 1963. This Court in a recent decision in R.Manickanaicker Vs. E.Elumalainaicker, 1995(4) SCC 156, has clearly held that the Civil Court's jurisdiction to adjudicate title of the parties, is not barred by virtue of the provisions of the said Act. This is a direct decision of this Court on the provisions of the Act with which we are concerned for the appellant placed reliance on the decision in Vatticherukuru Village Panchayat Vs. Nori Venkatarama Deekshithulu and Ors., 1991 (Supp.) 2 SCC 228. It is sufficient to observe that this decision relates to the provisions under a different Act of Andhra Pradesh. Moreover, in R.Manickanaicker, this decision relating to the provisions in the Andhra Pradesh Act was considered and distinguished. In view of the direct decision of this Court in R.Manickanaicker, there is no merit in this appeal. The appeal and the contempt petition are dismissed."
17.In view of the above unreported decision of the Supreme Court, the decision in A.Vanathan Muthuraja Vs. Ramalingam, 1997 (6) SCC 143, rendered without even referring to the earlier reported decision of the very same Court in R.Manicka Naicker Vs. E.Elumalai Naicker, 1995 (4) SCC 156 and the unreported decision of even a larger Bench directly arising under the Tamil Nadu Act 30 of 1963, cannot be said to lay down or declare the correct position of law or constitute a binding precedent.
18.For all the reasons stated above, we answer the question referred to the Full Bench in the negative by holding that the jurisdiction of the Civil Court to entertain a suit for declaration of title and injunction is not barred by reason of the grant of patta under the provisions of Tamil Nadu Act 30 of 1963." 


By merely placing reliance on the revenue records, a party cannot claim title over it.  No doubt, as correctly pointed out by the learned counsel for the defendants, the revenue records could be relied upon to prove possession.  Here the plaintiff admits the possession of the defendants and their propositus, namely deceased Abdul Rasack and in such a case, it has to be found as to whether Abdul Rasack enjoyed the suit property as the owner of it and for which there is no direct answer or clinching evidence from the defendants' side.  In such a case, I am of the considered view that the trial Court by referring to the entire oral and documentary evidence gave the finding of fact that the plaintiff is the owner of the suit property and the defendants could not prove their alleged prescriptive title over it.  Over and above that, the appellate Court confirmed the judgment and decree of the trial Court relating to such finding of fact.  No doubt, the appellate Court in its short judgment confirmed the judgment of the trial Court.  Since it was a judgment confirming the trial Court's judgment, much pain was not taken by the first appellate Court in discussing the evidence threadbare.  Be that as it may, in no way that vitiates the very ultimate dismissal of the appeal and such finding of fact warranting no interference by this Court. Hence in this view of the matter, the second substantial question of law is decided to the effect that both the Courts below correctly held that the defendants had not proved their alleged prescriptive title over the suit property, whereas the plaintiff has proved his title to it.   I could see no perversity or illegality in the judgments and decrees of  passed by both the Courts below.  Accordingly, this Second Appeal is dismissed. No costs.

18. In this factual matrix, taking into consideration that the defendants have to vacate the suit property and hand over possession to the plaintiff, I hereby grant six months' time subject to filing of affidavit of undertaking by the defendants concerned in two weeks.








Gms

To

1. The  Additional District and Sessions Judge, 
   (Fast Track Court-II, Ranipet, Vellore District).

2.  The  District Munsif Court, 
    Arakkonam

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