JUSTICE V. LAKSHMINARAYANAN Second Appeal No.735 of 2013 & M.P.No.1 of 2013 & CMP.No.8831 of 2024 The Pazhaverkadu Venkataswamy Gramani Trust represented by its Hereditary trustee S.Venkataraman … Appellant -Versus-
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 26.04.2024
PRONOUNCED ON : 14.06.2024
Coram
THE HON’BLE MR JUSTICE V. LAKSHMINARAYANAN
Second Appeal No.735 of 2013 & M.P.No.1 of 2013 &
CMP.No.8831 of 2024
The Pazhaverkadu Venkataswamy
Gramani Trust represented by its
Hereditary trustee S.Venkataraman … Appellant
-Versus-
1.S.Paul (Died)
2.S.Sundar
3.P.Usharani
4.P.Kumudgaralli
5.P.Janaki
6.P.Mohan Raj
7.P.Yuvarani
8.The District Collector,
Chennai … Respondents
(Respondents 3 to 7 brought on record as legal representatives of the deceased first respondent vide order of this Court dated
22.09.2022 made in
CMP.No.13865, 13867 & 13869 of 2022)
(Respondent 8 is suo motu impleaded vide court order dated
19.02.2024)
Appeal filed under Section 100 of C.P.C. against the judgement and decree dated 23.08.2011 made in A.S.No.79 of 2010 on the file of the IV Additional Judge, City Civil Court, Chennai in confirming the judgment and
Decree dated 17.10.2008 made in O.S.No.1803 of 2007 on the file of the XII Assistant Judge, City Civil Court, Chennai
For Appellant : Mr.M.S.Subramanian
For Respondents : Mr.P.Mohan Raj
2, 4 to 6
For Respondent 7 : Mr.P.Rajendran
For Respondent 8 : Mr.B.Tamil Nidhi,
Additional Government Pleader
JUDGEMENT
The present second appeal arises out of the judgment and decree of the court of IV Additional City Civil Judge at Chennai in A.S.No.79 of 2010 dated 23.08.2011 in confirming the judgment and decree of the court of XII Assistant City Civil Judge at Chennai in O.S.No.1803 of 2007 dated 17.10.2008.
2. For the sake of convenience, the parties will be referred to as per their
ranks in the suit.
3. O.S.No.1803 of 2007 is a suit filed by a public charitable trust. The case of the plaintiff is that it was formed by one Venkataswamy Gramani and is being administered pursuant to a scheme decree of this Court in CS.No.221 of 1951. The plaintiff is represented by its hereditary trustee. The trustee and the committee members have been appointed by the High Court, pursuant to the aforesaid decree.
4. The plaintiff trust has properties at Mylapore, Tondiarpet, Thiruvallur, Vembanur and Kadapakkam. It performs both Hindu and Muslim festivals. The plaintiff trust performs daily poojas at Valleeswarar Temple in Mylapore, and also Brahmotsavam at Veeraraghavaswamy Temple at Thiruvallur, and Allah Sami Peeligoondu Procession at Mannadi at Chennai.
5. It is the case of the plaintiff that the defendants are occupying land measuring 1125 sq.ft in survey number 3940/2 at Vaidhiyanadha Mudali Street in Tondiarpet. The entire extent of the land situated in S.No.3940/2 belongs to the plaintiff and it is about 45 grounds. The defendants, without obtaining any permission or consent from the plaintiff, had unauthorisedly and unlawfully occupied the property.
6. Since the occupation is unauthorized and unlawful, the plaintiff issued a notice on 23.09.2006 to the defendants calling upon them to enter into a lease agreement and to pay the land rent to the plaintiff trust. The defendants had received the letter, but did not issue any reply. They also did not come forward to execute a lease agreement. Thereafter, several oral and written requests were made by the plaintiff trust and they were of no use. Finally on 18.10.2006, a suit notice was issued by the plaintiff calling upon the defendants to surrender the land to the plaintiff trust. The defendants, on receipt of the notice, issued reply on 02.11.2006 refusing to surrender the said property and claiming that they are in peaceful and uninterrupted possession of the property. Being left with no other option, the plaintiff came forward with the suit for recovery of possession.
7. The defendants, on being served with the summons in the suit, filed a detailed written statement. They admitted that they are in occupation of the property. They would state that the property had been occupied by their grandfather, one Mr.Raghavan, and after his death, by the defendants’ father, R.Selvaraj, without interference from any third parties including the plaintiff trust. They submitted that at no point of time, they paid rent to anybody and they are not a tenant under the plaintiff or any other person. They pleaded that the plaintiff trust does not have right, title or interest over the property and in any event, if at all it had a right, it has lost the same by virtue of adverse possession of the property by the defendants. Though the plaintiff had not pleaded that there was a lease agreement between them, the defendants denied the existence of any relationship of landlord and tenant. They would plead that the trustee of the plaintiff trust had called upon them to enter into a lease agreement, but they had refused to do so. In light of the aforesaid
circumstances, they claimed for dismissal of the suit.
8. On these pleadings, the Trial Court framed the following issues:
“1.Whether the plaintiff has title to the suit property.
2. Whether the defendant is liable to deliver and surrender vacant possession of the suit property?
3. To what relief is the plaintiff entitled?”
9. On behalf of the plaintiff, one Venkatraman was examined as PW1
and he marked Ex.A1 to Ex.A27. On the side of the defendants, the defendants viz., S.Paul and S.Sundar, examined themselves as DW1 and D W2 and they marked Ex.B1 to Ex.B22.
10. The learned trial judge, after analysis, dismissed the suit holding that:
(i) the decree of this Court in the Scheme Suit will not bind a third party but only the parties to the suit proceedings; and
(ii) the judgments under Ex.A15 and Ex.A16 would not prove that the plaintiff trust is the owner of the property.
11. Aggrieved by the same, an appeal was preferred before the IV
Additional City Civil Court at Chennai. The learned IV Additional City Civil Judge came to the following conclusion:
(i) The suit property in CS.No.221 of 1951 deals with an extent of 2 and 1/4th cawnies, whereas the present suit schedule property deals only with respect to 1150 sq. ft. Therefore, he held the description of the suit property is different.
(ii) None of the tenants had been examined in order to come to a conclusion that the plaintiff trust is the owner of the property; and
(iii) The tax and revenue records placed by the defendants show that theyare in possession and since the plaintiff trust has failed to prove its title, the suit has to fail.
12. As against the concurrent findings of the courts below, the present second appeal has been filed.
13. This second appeal was admitted on the following substantial questions of law on 28.11.2013:
“1. When the plaintiff trust is formed under Scheme decree in O.S.No.221 of 1951 by the Hon’ble High Court, Chennai and when the defendants do not claim title in themselves, and portions of the same property has been leased by the plaintiff and eviction obtained against other tenants, is not the plaintiff entitled to eviction of the defendants?
2. When the scheme decree mentions that the suit property belongs to the plaintiff, is it open to the defendants to set up or assert a right in conflict with the trust?”
14. As the questions of law are intertwined, they were taken up together
and heard for the disposal of the appeal. Each of the questions are answered under separate sub-headings.
15. I heard Mr. M.S.Subramanian for the appellant and Mr. P.Mohan Raj for the respondents.
16. Pending the second appeal, since the trust is managed by this Court, I impleaded the District Collector as a party to the proceedings to produce the necessary records. I also called upon the Registry (Original side) of this court to produce the original decree and the documents that had been filed in C.S.No.221 of 1951.
17. Mr. M.S.Subramanian, learned counsel for the appellant would submit that the scheme decree is a decree in rem and the finding of the courts below that the same was not binding on parties other than those who were the parties to the scheme suit is an erroneous appreciation of law. He further submits that a perusal of the decree passed by this court in CS.No.221 of 1951 would show that the suit schedule mentioned property has been shown as item 3 and as belonging to the trust. Finally, he would state that the defendants, having pleaded adverse possession, admitted to the title of the plaintiff trust and therefore, the question of proving the title independently by the plaintiff trust does not arise.
18. Mr.Mohan Raj would submit that the plaintiff trust has not established its title in the manner known to law. He would state that the scheme related to the removal of the administrator and the details as to how and when the property was endowed to the trust are not mentioned therein. He would submit that the plaintiff would have to establish that this property is covered under the scheme decree. Drawing my attention to the scheme decree under Ex.A1, he would submit that the extent of the property is not mentioned and there is no discussion on the title of the suit property. He would plead that the declaration of title had not been sought and therefore, it is fatal to the suit. He would state that this court should not exercise parens patriae jurisdiction and would rely upon the judgment of the Supreme Court in Shafin Jahan vs. Asokan K.M. and Others, (2018) 16 SCC 368 to substantiate his point. On the plea of adverse possession, he would submit that the defendants are giving up that plea and therefore, the said issue need not be gone into by the court.
19. In response, Mr. M.S.Subramanian would submit that a perusal of the scheme decree shows the entire property in S.No.3940/2 belongs to the trust. He would state that the disputed portion of 1125 sq.ft is a part of the larger portion and that the defendants had never stated that the property falls outside the scope of S.No.3940/2. He would state that as per the judgment of the Supreme Court in Anathula Sudhakar vs. P.Buchi Reddy, (2008) 4 SCC 594,
it is not in all cases that the plaintiff should seek declaration of title and in this case, as the defendants had not thrown “cloud over title” of the plaintiff, the mere denial of the title does not mean that the plaintiff has to resort to the expensive measure of seeking a declaration.
20. I have heard the arguments and carefully perused the records including the original records summoned from the Original side of this Court in CS.No.221 of 1951.
21. After I reserved the orders in the second appeal on 23.06.2024, an application was filed by the appellant in order to receive the sale deeds filed under Ex.P2, Ex.P3, and Ex.P5 in CS.No.221 of 1951 as additional documents in this appeal. As already pointed out by me, I had gone through the said exhibits while hearing the appeal. Since a petition had been filed to receive the records maintained by this Court, I directed the issuance of notice to the learned counsel appearing for the respondents.
22 Learned counsel appearing for the respondents filed a counter on 25.04.2024 after having been served with the documents as well as the affidavit and the petition filed in support thereof.
23. Yet again, I heard the arguments in the appeal regarding the filing of additional documents on 26.04.2024 and reserved the orders.
The nature, scope and application of Order XLI Rule 27 of CPC 24.
I now have to deal with the scope of Order XLI Rule 27 of the Code of Civil
Procedure. The power of this court to deal with an application under Order XLI Rule 27 is no longer res integra. However, it becomes necessary for the purpose of disposal of this petition that I deal with relevant case law.
25. An early authority dealing with the scope of Order XLI Rule 27 can be found in the decision of the Privy Council in the case of Parsotim vs. Lal
Mohar, AIR 1931 PC 143, wherein it was held that:
“Under r. 27 (1.) (b) it is only where the appellate Court “requires” it (i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but “when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent.” This is laid down in the most positive terms by Lord Robertson in Kessowji Issur v. Great Indian Peninsular Ry. Co. He was dealing with the words of s. 568 of the Code of 1882, but they are substantially the same as those of Order XLI., r. 27, of the present Code. It may well be that the defect may be pointed out by a party, or that a party may, move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands.”
26. After nearly 4 decades of the aforesaid judgment, the Supreme Court
dealt with this provision in K.Venkataramiah vs. A.Seetharama Reddy, AIR 1963 SC 1526. A situation arose before that court to restate the position of law under Order 41 Rule 27 read with Section 107 of CPC. The relevant portions of the judgment are extracted hereunder:
“16. The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable “us” to pronounce judgment. Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence “to enable it to pronounce judgment” but also for “any other substantial cause”. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence “be enable it to pronounce judgment”, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence “for any other substantial cause” under Rule 27(1)(b) of the Code.”
27. Recently, in 2015, dealing with the provision, the Honourable Mr.
Justice S.Nagamuthu was pleased to hold in N.Natarajan vs. The Executive
Officer, Chitlapakkam Town Panchayat, (2015) 2 LW 531 as follows:
“28. In my considered view, there can be no doubt that clause 1(b) controls clauses 1(a) and 1(aa), but at the same time, at no stretch of imagination, it can be stated that clause 1(b) will not have its independent existence so as to empower the Court to receive any additional evidence either oral or documentary at the appellate stage. In other words, even if the conditions enumerated in Sub-Rules 1(a) and 1(aa) are not satisfied and even if no party seeks to produce additional evidence, in order to enable itself to pronounce judgment satisfactorily or for any other substantial cause as enshrined in Sub-Rule 1(b), the Appellate Court can suo motu require such document to be received in evidence and witnesses to be examined. This is the impression, both initial and final, one gets by closely reading Sub-Rule 1(b) along with Sub-Rule 1(a) and 1(aa).
…
30. Thus, so far as the phrase “to enable it to pronounce judgment” as expressed in Sub-Rule 1(b) of C.P.C. is concerned, the true test is as to whether in the absence of the additional evidence sought to be adduced whether the Court would be in a position to pronounce judgment from the other materials already available on record or not. If the Court finds that in the absence of the additional evidence sought to be produced (either oral or documentary), the Court could effectively and satisfactorily adjudicate upon the issues so as to pronounce a satisfactory judgment then, the Appellate Court shall not receive additional evidence either oral or documentary.
…
35. A deep reading of all the above judgments and the relevant provisions of the Code of Civil Procedure would leave no doubt that additional evidence, whether oral or documentary, can be received by the appellate Court either at the instance of the parties as provided in Sub-Rules (1)(a) and (1)(aa) or suo motu by the Court as provided in SubRule (1)(b) provided any one of the contingencies enumerated in Sub-Rule 1(b) exists impelling the Appellate Court to receive such additional evidence both oral and documentary. To exercise the power to receive additional evidence under Sub-Rule (1)(b) it is not at all necessary that a party to the appeal should make an application. What all that is required is the satisfaction of the Appellate Court that the additional evidence is required either for pronouncing the judgment satisfactorily or for any other substantial cause.
…
47. After the amendment of Section 100 of CPC in the year 1976, these judgements were later on considered by a Division Bench of Andhra Pradesh High Court in Chapala Chinnabbayi and others v. Naralasetti Anusuyam [AIR 2006
AP 142 ] wherein agreeing with the Division Bench of this Court in Goddam Paramasivudu’s case the Division Bench of Andhra Pradesh held thus “If the High Court considers necessary and appropriate to receive further evidence at the stage of second appeal and in the interest of justice and both parties, it may permit the additional evidence to be adduced by invoking Order 42 C.P.C. and by taking the aid of Order
41 Rule 27 C.P.C.” ….
48. Thus, it is crystal clear from the above judgment of the Hon’ble Supreme Court and other judgments referred to therein that there is no prohibition for this Court to go into the question of facts provided, the Court is satisfied that the findings of the Courts below were vitiated by nonconsideration of relevant evidence or by showing erroneous approach to the matter and findings recorded by the Court below are perverse.”
28. In line with the view taken by these authorities, a very recent judgment of the Supreme Court in Sanjay Kumar Singh vs. State of Jharkhand, 2022 (7) SCC 247 held as follows:
“7. It is true that the general principle is that the
appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.
8. As observed and held by this Court in A. Andisamy Chettiar v. A. Subburaj Chettiar [A. Andisamy Chettiar v. A.
Subburaj Chettiar, (2015) 17 SCC 713 : (2017) 5 SCC (Civ) 514] , the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.”
29. The law laid down by the Supreme Court and this Court is clear and categorical. When the court finds that the documents that have been presented are essential for disposal of appeal, the court has the power to receive them. There is stark difference between Order XLI Rule 27(1)(a) and Rule 27(1)(b). The objection of Mr.Mohan Raj might become relevant if the application fell under Rule 27(1)(a) and Rule 27(1)(aa). However as already discussed, I am admitting the matter under Rule 27(1)(b) and in compliance with Order XLI Rule 27(2), I have also given the reasons why I am receiving the same. The application filed by the appellant in the present case only serves as a remainder to this court to exercise power under Order XLI Rule 27(1)(b).
30. In the light of the above clear and categorical views expressed by the Supreme Court and this Court, the conclusion that I come to is that I am entitled to admit the documents in appeal if I find that the same to be necessary for the purpose of pronouncement of judgment or for any other substantial cause.
31. In this particular case, when I pointed out this position to Mr. Mohan Raj, he would state that the documents are not at all relevant for the purpose of adjudication of this case because they are not connected to the suit property. He would further state that the said documents are related to different areas and not to the subject property. He would add that the survey numbers are different, and therefore they should not be received as additional evidence.
32. However when I pointedly asked Mr.Mohan Raj, as to whether he questioned the veracity of the documents, he agreed that since they are the certified copies of the records that have been filed before this Court 60 years ago, he is not disputing the veracity of the records. He would only argue that they are irrelevant to this case and belated to be received.
33. Ex.P2 that had been filed in CS.No.221 of 1951 is an “Award” dated
24.10.1891. Similarly Ex.P3 is a “Will” dated 27.01.1898 of Pazhaverkadu Venkataswamy Gramani.
34. On going through the aforesaid deeds, the submission of Mr.Mohan
Raj that they do not relate to the suit property is incorrect.
35. Ex.P3, which is in document No.2 of 1898 dated 27.01.1898 relates to the suit schedule mentioned property. The relevant portion of that document is extracted as hereunder:
“nkwg;o jz;ilahh; ngl;ilapy; itjj;paehj Kjyp bjUtpy; 3190 tJ ba/ghuk; rh;ogpnfl;od; bjd;g[uk; JzLf; ;F fpHf;Fk; bjw;Fk; 3584 tJ ghuk; rh;ogpnfl;od; epyj;Jf;F nkw;F bjUt[f;F tlf;F apjd; kj;jpapy; 3217 tJ rh;ntapy; rk;ge;jg;gl;l 233 tJ rh;l;gpof;loy; ml’;fpa kid 1 Fhp 7 ½ cs;s njhll; epyKk; nkw;go itj;jpaehj Kjypa bjUt[f;F tlf;F nrzpak;kd; nfhtpy; bjUt[f;F nkw;F nrhiyag;g fpuhkzp re;Jf;F bjw;F nkw;goah; njhl;lj;Jf;Fk; g{ rghgjp jk;gpuhd; njhl;l epyj;Jf;Fk; fpHf;F apjd; kj;jpapy; kzy; njhl;lk; 1/apvrpfhud; njhl;lk; 1. Mf njhll;k; 2 fF; fhzp 2 css; bjd;dej; njhl;l epyKk/;”
36. Mr.Mohan Raj would argue that the survey number given in the aforesaid deeds is S.No.3217, whereas the survey number involved in this matter is S.No.3940/2. Therefore, I necessarily have to compare this with the original decree filed as Ex.A1 i.e., the decree in CS.No.221 of 1951. Ex.A1 is the scheme decree passed by this Court vis-a-vis the Pazhaverkadu Venkataswamy Gramani Trust. Item 3 in the schedule of the property forming a part of Ex.A1 reads as follows:
“ The coconut garden site situate on the western row of Sheniamman Koil Street, Tondiarpet, Madras, within the jurisdiction of the Sub Registration District of North Madras, bounded on the North by a water course, on the
East by the said street, on the South by Vythianatha Mudali Street and on the West by the gardens belonging to
Sabapathy Thambiran, and Raju Gramani, being old survey
No.3217, Re survey No.3940/2 and Collector’s Certificate
No.3594 measuring 2 cawnies and a quarter.”
37. Therefore, I am of the clear view that Ex.P2 and Ex.P3 filed in CS.No.221 of 1951 are essential documents which would enable me to pronounce the judgment in this appeal.
38. By virtue of these two documents, the plaintiff trust has been able to trace its title to 2 cawnies and a quarter, of which the suit schedule mentioned property is a portion thereof. Hence , these documents are received in appeal as evidence. As these documents are certified copies of the records which have been maintained in the custody of this Court, I have no necessity to doubt the veracity of those documents.
39. In view of the above, the civil miscellaneous petition in
CMP.No.8831 of 2021 is ordered.
Should the plaintiff had amended the plaint for declaration of title?
40. A suit for declaration of title would be necessary if the defendants had created some “cloud” over the title of the plaintiff. In this case, a perusal of the written statement shows that the defendants had merely denied the title of the plaintiff, but did not throw a cloud. They neither set up a title in themselves nor set up a title in favour of some third party. As held in Anathula Sudhakar case, a plaintiff would have to resort to the expensive relief of declaration of title only when the defendant is able to demonstrate some blemish on the title of the plaintiff. In this case, no such blemish had been shown.
41. The position of law post the judgment in Anathula Sudakar case has been succinctly explained by my brother Hon’ble Mr.Justice N.Seshasayee in Arulmigu Velukkai Sri Azhagiya Singaperumal Devasthanam v. G.K. Kannan, (2020) 2 LW 317. I would respectfully apply the judgment of my
brother Judge to the facts of this case and reject the plea that the suit should fail for the want of declaration. Having found that the suit is maintainable, I now proceed to discuss the merits of the case.
Decree as an assertion of right under Section 11(2) read with Section 13 of
the Evidence Act
42. Apart from these aforesaid principles, one principle that is clear from Section 13 of the Indian Evidence Act is that the court can look into a decree for the purpose of coming to the conclusion that there has been an assertion of right by the trust by virtue of a scheme decree.
43. In terms of Section 13, a decree which has been passed previously in the scheme suit would operate as a transaction with respect to the said property. In Rangayyan vs. Innasimuthu Mudali, AIR 1956 Mad 226, this Court was pleased to hold that “transaction”, in the ordinary sense of the word, is some business or dealing which is carried on, or transaction between two or more persons. A transaction is something which has been concluded between the persons by cross or reciprocal action or in a larger sense, that which has been done.
44. Stephen in his Digest would say as follows:
“Transaction is a group of acts so connected together as to be referred to by a single legal name as a crime, contract, a wrong or any other subject matter of enquiry which were in issue. Every fact which is part of the same transaction as the fact in issue, is deemed to be relevant to the facts in issue, although it may not be actually in issue and although if it were not part of the same transaction it might be excluded as hearsay. Whether any particular fact or is not part of the same transaction, as the fact in issue, is a question of law upon which no principle has been stated by authority and on which single judges have different decisions.”
45. In Gobinda Narayan vs. Shyam Lal, AIR 1931 PC 89, the Privy Council held as follows:
“They think that the judgment in question is only admissible under the provisions of Section 13 and 43 of the Indian Evidence Act as establishing a particular transaction in which partibility of the Pandora Estate was asserted and recognised – namely, the partition resulting in 1973 suit. The reasons upon which the judgment is founded are not part of the transaction and cannot be regarded, nor can any finding of fact there come to, other than the transaction itself, by relevant in the present case. The judgment, therefore, is no evidence that Thakur Sib Singh got the Achra Villages by Partition. It is at most evidence that he might have done so.”
46. The position of law has been laid clearly and succinctly in Shrinivas Krishnarao Kango vs. Narayan Devji Kango And Others, AIR 1954 SC 379 and it was observed as follows:
“The argument of the appellant is that these judgments are admissible under Section 13 of the Evidence Act as instances in which there was an assertion that the suit properties belonged to the joint family. For the respondents, it is contended that the dispute between the parties in those litigations was only about the quantum of maintenance to be awarded, that no question of title to the properties was directly involved, and that Section 13 was inapplicable. We are unable to accept this contention. The amount of maintenance to be awarded would depend on the extent of the joint family properties, and an issue was actually framed on that question. Moreover, there was a prayer that the maintenance should be charged on the family properties, and the same was granted. We are of the opinion that the judgments are admissible under Section 13 of the Evidence Act as assertions of Rukminibai that the properties now in dispute belonged to the joint family.”
Also see, Tirumala Tirupati Devasthanams v. K.M. Krishnaiah, (1998) 3
SCC 331
47. Applying these laws to the facts of the present case, it is clear from Ex.A1 that the trustees were appointed for the purpose of management of the trust properties which were pre-existing to the grant of the decree in CS.No.221 of 1951 dated 10.11.1954. They had, in pursuance to Ex.A1, had approached the court and obtained a decree in assertion of the title as is clear from Exs.A15 to A17 and Exs.A22 to A25.
48. A perusal of Ex.A1 shows that two reliefs were sought, the first relief being that the then existing trustees should be removed from the office of trusteeship of the properties endowed by the deceased Venkataswamy Gramani. This would show that as early as 1951, the trust had asserted its right over the property. It was on account of this assertion that Ex.P2, Ex.P3 and Ex.P5 were filed before the court. The decree also contains several properties, and the one under item three of the decree belongs specifically with the suit schedule mentioned property. This points out not only the assertion of title to a larger extent of property, of which the suit schedule property is a part thereof, but also legal possession prior to the suit. Hence, reading Section 11(2) with Section 13 of the Indian Evidence Act, the documents that have been presented become relevant for the purpose of coming to the conclusion that the plaintiff Trust for a period of 100 years has asserted title to the property and that has been accepted by the courts in previous proceedings.
Reading scheme decree like a statute
49. Moving forward, I have to see from the questions of law that have been framed, what is the position of interpretation when a scheme decree governs a matter.
50. As early as 1923, in M. Ranganadha Thathachari vs. Krishnaswamy Thathachariar, (1923) 18 LW 237, dealing with the famous Kancheepuram Temple scheme, a Division Bench of this Court pithily held that the scheme decree would have to be given the same status and interpretation as a statute. The relevant portion is extracted hereunder:
“The test to be applied has been considered fully in a recent decision, Ramaswami Goundan v. Muthu Velappa Goundan, which was followed in Venkatarama
Iyer v. Janab V. Hamid Sultan Maracayar, and there is no necessity to add anything to that statement of the law, except that no distinction can be drawn between the interpretation of an Act, which was then in question and that of the scheme before us. There is accordingly first the consideration that, as the procedure, to be followed in the Court’s exercise of the power conferred by the scheme, is not specified therein, the applicability both of its ordinary and judicial procedure must be presumed and also, as follows from National Telephone Co., Ltd., v. Post-MasterGeneral, of the law relating to appeals from its ordinary decisions. And next when in accordance with the course taken by the Privy Council in Balakrishna Udayar v. Vasudeva Ayyar, we refer to the position occupied by the Court under clauses of the scheme, other than that now under construction, for instance Cls. 13, 48 and 61, and find that its functions thereunder are clearly judicial, we must take the same view of the function, with which we are now concerned.”
51. The view taken by the Court in the aforesaid case was adopted by the learned Single Judge of this Court in A.M. Shamsudeen and Ors v. The District Judge and Ors, 1990 (2) MLJ 461. Thereafter, another Division Bench approved the said position in A.M. Shamsudeen v. A.M. Mohamed Salihu, (2003) 2 MLJ 526. Therefore, if a scheme decree shows the property, found in its schedule, as belonging to the trust, I have to interpret it as if it is a declaration by a statute and give it the same respect as must be given to the schedule to the statute.
52. Therefore , the question of law that had been framed in this case that if a suit property is found in the scheme decree, the same would have to be treated as belonging to the trust is answered in favour of the appellant and against the respondents.
53. I do not want to rest my findings only on this legal principal. Hence, I would be discussing later the legal proposition as to “whether the trust has better title to the subject property than the defendant?”.
Scheme Decree is one in rem
54. To understand if the trust has a better title to the property, it is only proper that I examine the nature of the scheme decree first. The learned Trial Judge as well as the lower Appellate Judge were of the view that the scheme decree is not a judgment in rem. I need not spend much time on this issue because this position has been settled by the judgment of the Supreme Court in Ahmad Adam Sait vs. M.E.Makhri, AIR 1964 SC 107. The ratio of the said decision is reproduced below:
“16. ….Where a representative suit is brought under Section 92 and a decree is passed in such a suit, law assumes that all persons who have the same interest as the plaintiffs in the representative suit were represented by the said plaintiffs and, therefore, are constructively barred by res judicata from reagitating the matters directly and substantially in issue in the said earlier suit.”
When the ratio of the aforesaid judgment is read with explanation VI to Section
11 of the Civil Procedure Code, it becomes clear that the suit filed under Section 92, being a suit instituted in the interest of public at large, they are deemed to be doing so on behalf of all persons claiming under the persons so litigating
55. Therefore, respectfully following this judgment, I must acknowledge
the uncontraverted position of law that the scheme decree is a decree in rem and therefore, will bind not only the parties to the suit but also those who are not parties to the suit.
56. The courts below have come to the conclusion that Ex.A1, namely the scheme decree, in CS.No.221 of 1951 does not point out to the title of the plaintiff. As seen from the extract above, the scheme suit of this court dealt exactly with the very property. Therefore, the same would establish the title of the plaintiff trust in the property.
Private claims against a property included in the scheme decree
57. Let us now see what is the position of law with respect to the cases where schemes have been settled by the court and private claims are made against the property in such schemes. This position has been dealt with by a Division Bench of this Court as early as in 1913.
58. In V.Ramados vs. K.Hanumantha Rao, ILR (1913) 36 Mad 364, the court was pleased to hold as follows:
“Page 368: Then arises the further question whether the decree under Section 539 takes away the plaintiff’s right to bring a suit which he could certainly have brought before such a scheme was framed. It is contended for the appellants that the scheme framed under Section 539 is binding on the world or at least on all worshippers of the plaint temple. If by ‘worshippers’ we mean all persons who may happen to worship in the plaint temple then the term will include not only the regular worshippers but a large number of outsiders who profess the same religion. If the scheme is binding on all worshippers it practically means that It is binding on the world. Can it be said that decrees under Section 539 have that effect? Reference has been made to the English law on the subject and we were at first doubtful whether that law could be applied to suits under Section 539, but in Prayag Dass Ji Varu Mahant v. Tirumala Srirangacharlavaru [ILR (1905) 28 Mad 319 at p. 324] , we find the following observations:“The enactment of Section 539 … was long after the passing of the English Trustees Act of 1850. Presumably, therefore, that Section may be taken as intended to confer upon the Courts in this country the same power that the Courts in England possessed at the time of its enactment … That the High Court and the District Courts in this country to which the jurisdiction is confirmed possess the same practically unlimited jurisdiction as the Court of Chancery in matters relating to the administration of public charities, religious or otherwise was taken for granted in Chintaman Baiaji Dev v. Dhondo Ganesh Dev [ILR (1891) 15 Bom 612] and Annaji v. Narayan [ILR (1897) 21
Bom 556] …” This case went upon appeal to the Privy
Council [see Prayag Doss Ji Varu v. Tirumala Sriramaiharla Varu [ILR (1907) 30 Mad 138 (PC)] ], and no exception was taken to the above remarks in Their Lordships’ judgments. We may take it therefore that Courts in India have the powers possessed by the Court of Chancery and we may apply the principles of English law in this case. In Attorney-General v. Worcester {Bishop) [(1851) 9 Hare, 328] it was held that schemes, settled by Court are not altered except upon substantial, grounds and in In re Betton’s Charity [(1908) 77 LJ Ch 193] , it was held that a scheme remains in force only until further order or the establishment of a new scheme. Provisions in schemes may also be varied such as the number of Governors [Re Browna’s Hospital v. Stamford [(1889) 60 LT 288] ] and in In re Sekeford’s Charity [(1861) 5 LT 488] it was held that a Court will not, upon the motion of one of the interested parties, alter a scheme which it has settled with the approval of the Attorney-General. The principle adopted is apparently that a scheme once settled by Court cannot be altered except by the Court and then only on substantial grounds. This would seem to preclude suits between parties to establish a private right which if established would interfere with a charitable scheme settled by Court. No doubt it seems a hardship that the plaintiff shall be precluded from seeking to establish his private right, for ordinarily every person can be granted the relief to which he is entitled but this principle cannot override the claims of the public and a charitable scheme settled by Court must be Considered to have been settled for the benefit of the public. We must hold therefore that the plaintiff cannot maintain the present suit against the trustees appointed under the scheme.”
59. This view held the fort for nearly four decades before an attempt was made to unsettle it. An argument was placed before another Division Bench of this court that the law laid down in the V.Ramados case requires review.
60. Rejecting the said contention, the Bench in Khaja Hassanulla Khan vs. Royal Mosque Trust Board, 1947 (60) LW 438 held as follows:
“Page 440: Since the decision in Ramados’s case, which, as stated, was given some 36 years ago, it has been referred to with approval and followed not only in this Court but also in two other High Courts, Bombay and Allahabad. No authority was cited in which the correctness of that decision has been challenged and wherever cited it would appear to have been accepted as correct. After the time which has elapsed since the principles were enunciated in Ramados’s case, and in the light of the decision being followed wherever cited, it seems too late now to question its correctness.
Page 440: In my view, therefore, it should be followed in the present instance; and applying that case to the appeal now before us, it follows that the appellant is not entitled, by the suit out of which this appeal arises, to assert the claims which he makes. The learned Judge in the Court below was correct in dismissing the proceedings before him. This appeal must be dismissed with costs.”
61. A reading of the facts leading to the Royal Mosque case would throw much light. There exists an institution in the State of Andhra Pradesh called “Royal Mosque”. In order to protect the institution, a scheme suit was filed. A scheme decree was also framed by the Court in terms of Section 92 of the Code of Civil Procedure. When the board of trustees, who were appointed pursuant to such a scheme decree, attempted to take possession of the property, they were obstructed by one Khaja Hassanulla Khan. The said Khaja Hassanulla Khan claimed that he is entitled to the properties as he is the hereditary Khaji and Sajjda-Nishin of the mosque. He also staked a claim by filing a suit to that effect. The suit was dismissed holding that the scheme suit being decreed in rem, it binds all unless and until it is set aside or modified by the Scheme Court. The decision of Trial Court was also approved by this Court in the appeal.
62. In order to complete the narration, I necessarily have to refer to the judgment of the Supreme Court in Ahmad Adam Sait vs. M.E.Makhri, AIR 1964 SC 107. In the said case, the Supreme Court consulted the judgments in
V.Ramados case as well as Royal Mosque case to expound the scope of Section 92 of CPC. After having referred to the judgments, the Supreme Court was pleased to hold as follows
“16. In assessing the validity of this argument, it is necessary to consider the basis of the decisions that a decree passed in a suit under Section 92 binds all parties. The basis of this view is that a suit under Section 92 is a representative suit and is brought with the necessary sanction required by it on behalf of all the beneficiaries interested in the Trust. The said Section authorises two or more persons having an interest in the trust to file a suit for claiming one or more of the reliefs specified in clauses (a) to (h) of sub-Section (1) after consent in writing there prescribed has been obtained. Thus, when a suit is brought under Section 92, it is brought by two or more persons interested in the trust who have taken upon themselves the responsibility of representing all the beneficiaries of the Trust. In such a suit, though all the beneficiaries may not be expressly impleaded, the action is instituted on their behalf and relief is claimed in a representative character. This position immediately attracts the provisions of Explanation VI to Section 11 of the Code. Explanation VI provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this Section, be deemed to claim under the persons so litigating. It is clear that Section 11 read with its Explanation VI leads to the result that a decree passed in suit instituted by persons to which Explanation VI applies will bar further claims by persons interested in the same right in respect of which the prior suit had been instituted. Explanation VI thus illustrates one aspect of constructive res judicata. Where a representative suit is brought under Section 92 and a decree is passed in such a suit, law assumes that all persons who have the same interest as the plaintiffs in the representative suit were represented by the said plaintiffs and, therefore, are constructively barred by res judicata from reagitating the matters directly and substantially in issue in the said earlier suit.”
63. The judgment in Ahmad Adam Sait case was yet again considered by a recent judgment of the Supreme Court in Jamia Masjid vs. K.V.Rudrappa, (2022) 9 SCC 225. A three Judge Bench of the Supreme Court approved the aforesaid position of law.
64. There is no dispute that insofar as the suit schedule mentioned property is concerned, it is the subject matter of scheme in CS.No.221 of 1951. A scheme suit is always deemed to be pending. Therefore when a decree has been passed in a representative suit and the decree has been held to be governing the suit schedule mentioned property, I have to conclude no suit would lie to establish a private right or a defence taken in a suit to enforce the duties placed on a trustee by a scheme decree, which if established will interfere with a scheme settled by the Court. I have to add if the property goes out of the schedule to the scheme, by the dismissal of this suit, it will interfere with the management of the trust and hence, the operation of the scheme.
65. Having come to the conclusion that a private right cannot be agitated independently when a scheme suit is pending, I necessarily have to give solution to the case where private right is involved.
66. As seen from the V.Ramados case and the Royal Mosque case, a solution was suggested to convince the Advocate General to move an application in the scheme suit. By virtue of the amendment to the Code of Civil Procedure, a party need not rely upon the good and eminent office of the Advocate General to move such applications. It is always open to a party to move an application before the Scheme Court pleading that the property had been wrongly included in the scheme decree. If a party is able to convince the Scheme Court, then the said property will automatically be deleted. This, I, feel would strike a balance between the rights of the private parties and those benefited by the scheme decree when they fear interference in the said rights and also an interference with the implementation of the scheme.
67. In the present case, it is not in dispute that the scheme decree covers a larger extent of the suit schedule mentioned property. The defendants in this case have not projected a better title, but on the contrary, they had pleaded that they have “occupied the vacant land”. This defence states that they do not have title to the property, but are only encroachers of the property. Therefore, arises the issue as to what is the test one must follow in such kind of litigations. “Better title” and mere possession
68. Right from the time when the Roman law was applicable, the principle of law: “Possessio contra omnes valet praeter eur cui ius sit possessionis – He that hath possession hath right against all but him that hath the very right” has been in vogue. This principle of Roman law was recognised in English common law which was then imported into Indian jurisprudence.
69. The position of law is this: mere possession may be a good defence against the entire world than the true owner. From this arose the corollary that an injunction can be granted against the entire world but not against the true owner. Ownership gives absolute right in the property. Possession, as the Romans are said to have held, is nine points in law. When a person is in possession of the property, he can exclude the entire world other than the true owner from occupying the said property. When the true owner brings forth a suit to recover the possession, the factum that the defendants were in possession of the property is not a defence against him. This is, of course, subject to the laws of limitation. Under the present regime, it is covered under
Article 64 and Article 65 of the Limitation Act.
70. In case the defendants are able to prove that they have been in possession of the property over the statutory period in an open, hostile, and continuous manner, then it results in the loss of the right of enforcement of recovery of possession for the plaintiff and might result in a creation of prescriptive title in favour of the defendants. This is because a title can never be in a vacuum. I might have had to explain this position further if not for the classic judgment of the eminent jurist Vivian Bose, J. in Pannalal Bhagirath Marwadi vs. Bhaiyalal Bindraban Pardeshi Teli, AIR 1937 Nag 281 wherein his lordship (as he then was) held as follows:
“7 .. that a plaintiff must succeed on the strength of his own title and not on the weakness of the defendant’s; that a defendant in possession can set up a jus tertii. With respect to the first rule it is to be observed that it says nothing about the nature of the title which must be shown. As between a trespasser who enters peaceably and another who wrongfully dispossesses him, the title of the former is superior on two grounds: first because it is prior in point of time and next because it is a peaceful title as opposed to a forcible one in the sense that it involves a wrongful dispossession of the previous occupier. For, as Cockburn, C.J. says in (1866) 1 QB 1, [Asher v. Whitlock, (1866) 1 QB
1 : 35 LJ QB 17 : 11 Jur (NS) 925 : 13 LT 254 : 14 WR 26.]
“all trespass implies force in the eye of the law”. As regards
the second rule it applies when the plaintiff has never been in actual possession or having had possession has been peaceably dispossessed or dispossessed by lawful process, or when the defendant has been placed in possession by the rightful owner either under a good or an imperfect title.”
The discussion, therefore, is if a person is able to show better title than the defendant, then he is entitled to recover possession through the process of Court.
71. The issue of “better title” was again the subject matter of discussion in Kuttan Narayanan vs. Thomman Mathayi, AIR 1966 Ker 179. In the said judgment, Honourable Mr. Justice T.S.Krishnamoorthy Iyer held as follows:
“5. Possession by itself is a substantive right recognised by law and has legal incidents attached to it apart from ownership. Even before the acquisition of statutory title by-adverse possession for the requisite period under the Limitation Act, the possessory owner has well defined rights in property. It is now settled beyond all dispute that this interest, is heritable, devisable and transferable this interest is referred to as possessory title as distinct from proprietary title. A person having such interest must be allowed to enforce those rights against all the world except those who have a better title or better right than himself.
…
13. We are therefore of the view that a person in juridical possession, if dispossessed by a trespasser without title, can recover possession on the sole ground of his prior possession even beyond six months from the date of dispossession and this is enough to dispose of the second appeal.”
This makes it clear that a person in possession is entitled to recover possession from the person who dispossessed him. However, the person in prior possession can be lawfully dispossessed by the true owner of the property.
72. The principles, laid down in the aforesaid two judgments, find acceptance in the classic judgment of the Supreme Court in Nair Service Society Ltd. v. Rev. Father K.C. Alexander, (1968) 3 SCR 163. After a detailed discussion on the position of law, Chief Justice Hidayatullah held as follows:
“ 19. To express our meaning we may begin by reading Perry v. Clissold to discover if the principle that possession is Prior possession is a good title of ownership against all who cannot show a better good against all but the true owner has in any way been departed from. Perry v. Clissold reaffirmed the principle by stating quite clearly:
“It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title.”
20. Indeed Asher v. Whitlock, (1885) 1 Q.B. 1 goes much further. It laid down as the head-note correctly summarizes : “A person in possession of land without other title has a devisable interest, and the heir of his devisee can maintain ejectment against a person who had entered upon the land and cannot show title or possession in any one prior to the testator” … The effect of the two cases is that between two claimants, neither of whom has title in himself the plaintiff if dispossessed is entitled to recover possession subject of course to the law of limitation. If he proves that he was dispossessed within 12 years he can maintain his action.
…
22. To summarize, the difference between Asher v. Whitlock and Doe v. Bamard is this :
In Doe v. Barnard the principle settled was that it is quite open to the defendant to rebut the presumption that the prior possessor has title i.e. seisin. This he can do by showing that the title is in himself; if he cannot do this he can show that the title is in some third person. Asher v. Whitlock lays down that a person in possession of land has a good title against all the world except the true owner and it is wrong in principle for any one without title or authority of the true owner to dispossess him and relying on his position as defendant in ejectment to remain in possession. As Loft in his Maxim No. 265 puts it Possessio contra omnes valet praeter eur cui ius sit possessionis ( He that hath possession hath right against all but him that hath the very right : see Smith v. Oxenden, 1 Chapter Ca 25. A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff’s and thus be able to raise a presumption prior in time. It is to be noticed that Ames (Harvard Law Review Vol. III p. 313 at 37); Carson (Real Property Statutes 2nd Edn. p. 180); Halsbury
[Laws of England, Vol. 24, 3rd Edn. p. 255 f.n.(o)];
Leake (Property in Land, 2nd Edn. p. 4, 40); Lightwood (Time Limit on Actions pp. 120-133); Maitland, Newell (Action in Ejectment, American Edn. pp. 433-434);
Pollock (Law of Torts, 15th Edn. P. 279); Salmond Law of Torts; and William and Yates (Law of Ejectment, 2nd Edn. pp. 218, 250) hold that Doe v. Barnard does not represent true law. Winer (to whom I am indebted for much of the information) gives a list of other writers who adhere still to the view that jus tertii can be pleaded.
…
24. The cases of the Judicial Committee are not binding on us but we approve of the dictum in Perry v. Clissold. No subsequent case has been brought to our notice departing from that view. No doubt a great controversy exists over the two cases of Deo v. Barnard and Asher v. Whitlock but it must be taken to be finally resolved by Perry v. Clissold. A similar view has been consistently taken in India and the amendment of the Indian Limitation Act has given approval to the proposition accepted in Perry v. Clissold and may be taken to be declaratory of the law in India. We hold that the suit was maintainable.”
73. It now falls on me to apply the law that has been laid down by these eminent jurists to the facts of the present case.
74. I am presented with a case where a registered Will, an award, a decree issued by this Court in exercise of power vested under Section 92 of CPC, several proceedings of jurisdictional courts granting eviction against the tenants are pitted and registered lease deeds are available against mere possession. Should I confirm the judgments of the courts below ignoring all these documents which point to assertion of title by the plaintiff and give precedence to the receipts issued for services rendered by municipal authorities. I think not. The rule of preponderance of probability suggest that the plaintiff is the title holder.
75. From the position of law discussed above, I am able to arrive at the following conclusion that:
(i) mere prior possession is sufficient to recover possession from a person who has forcibly dispossessed the prior possessor.
(ii) settled possession is sufficient to keep the entire world away except the true owner.
(iii) when a person who has better title demands possession through the court, the person who is in possession should cede to such a claim.
76. It is seen from Ex.P2 and Ex.P3 which have been received as additional evidence in this case that the suit schedule mentioned property belongs to the plaintiff. Furthermore, from Exs.A7, A8, A18 to A21, A26 and A27, it is clear that the plaintiff trust, in exercise of Ex.A1, had entered into registered lease agreements with the tenants in occupation of the property. This shows that the trust has not only exercised ownership over the property covered under Ex.A1, but has, in exercise of that ownership, permitted persons to be in possession of that property as tenants.
77. This is fortified by Exs.A15 to A17 and Exs.A22 to A25 where prior proceedings have been initiated by the trust for ejectment and the trust has been successful in the same. In an ejectment suit, as in the present case, matters of title have been gone into and the trust has been found as entitled to the relief of ejectment. These documents have not been looked into in the correct perspective by the courts below. This renders their judgments perverse.
Therefore, they have to necessarily be interfered with by this Court.
The plea of adverse possession
78. Being a vacant land, it was occupied by the defendants. Therefore,when the plaintiff seeks possession, unless and until the adverse possession is proved, the defendants’ possession of the property does not help them. In fact, it cannot help them because the suit itself is one for recovery of possession. The plaintiff having proved better title to the property, the possession of the defendants would have to necessarily give way.
79. At the time of hearing the appeal, I invited the attention of Mr.Mohan Raj, learned counsel appearing for the defendants, having taken the plea of adverse possession in the reply notice under Ex.A6 & written statement, it amounts to admission of title of the plaintiff. Mr.Mohan Raj, at this stage, said he is withdrawing the plea of adverse possession. When going through the written statement, it is clear that the case of the defendants is that the plaintiff had lost the title to the property by virtue of adverse possession of the defendants. If that defence is taken away from the written statement, all that remains are:
(a) Occupation of the property by the grandfather of the defendants;
(b) Bald denial of title of the plaintiff; and
(c) Lack of landlord and tenant relationship between the plaintiff and the defendants.
80. With respect to long possession as discussed in the other portion of the judgment, it is not sufficient to defeat the title of the plaintiff. Long possession, if it crystallises into title, defeats the title of the plaintiff. There is no plea as required under Section 27 of the Limitation Act that the defendants have prescribed title to the property. With respect to the denial of the title, the defendants have not set up title in themselves nor have they set up title in a third party. Therefore, the plaintiff need not resort to the expensive relief of declaration as detailed in the other portion of the judgment. Lastly with respect to landlord and tenant relationship, a perusal of the plaint, in particular paragraph 7, would show that the plaintiff called upon the defendants to enter into a lease agreement in order to regularise the unauthorized and unlawful occupation. The plaintiff nowhere pleaded that there existed a relationship of landlord and tenant between the parties to the suit. With all the three pleas failing, I will now look into the documents produced by the defendants and the cross examination of the defendants.
81. When I perused the aforesaid documents and cross examination, I am not able to find any evidence to substantiate the plea of adverse possession.
The evidence let in by the defendants to show that they have been in possession of the property are the receipts of payment paid to various governmental authorities for services rendered, but other than that they have not been able to show that this long possession was to the knowledge of the trustees and was open, hostile, and continuous. In this regard, it is pertinent to extract certain passages from the cross examination of DW1 and DW2.
82. DW1 in his cross examination has stated as follows:
“/// 79-1y; vd; mz;zd; jdghy; FoapUe;j tpguk; vdf;F bjhpa[k; vd;whYk; me;j brhj;J bt’;flrhkp fpuhkzp ou!;l;f;F brhe;jkhdJ vd;gJk; vdf;F bjhpa[k; vd;why; mJ gww;p vdf;F bjhpahJ/ //// khefuhl;rpapy; mDkjp th’;fhky; tPL fl;ondd;/ /// 2006y; bt’;flrhkp fpuhkzp ou!;l; vd;id thlifjhuuhf ,Ug;gjw;F thlif nfl;lhh;fs;/ mjw;F ehd; eP’;fs; ahh; vd;W bjhpahJ/ mjdhy; thlif bfhLf;f KoahJ vd;W brhd;ndd;/ jhthr; brhj;J ou!;l;f;F brhe;jk; vd;W brhd;dhy; rhpay;y/ jhth ,lk; ou!;l;f;F brhe;jk; vd;W cah;ePjpkd;wk; jPh;g;g[ mspj;Js;sJ vd;W brhd;dhy; mijg; gw;wp vdf;F bjhpahJ/”
83. DW2 in his cross examination has states as follows:
“rh;nt vz;/3940/2d; bkhj;j tp!;jPuzk; 45 fput[z;l; vdw;hy; bjhpahJ/ me;j bkhj;j brhj;Jk; gHntw;fhL bt’;flrhkp fpuhkzp ou!;l;f;F brhe;jk; vd;why; rhpay;y. Jhthr; brhj;J mnj ou!;l;f;F brhe;jk; vd;why; rhpay;y/ bt’;flrhkp fpuhkzp ou!;l;f;F brhe;jkhf brhj;J vd;W bjhpe;J me;j ou!;Lf;F tpnuhjkhf eh’;fs; jhthr; brhj;ij mDgtpj;J tUfpnwhkh vd;why; bt’;flrhkp fpuhkzp ahh; vd;nw vdf;F bjhpahJ/ v’;fSila brhj;J vd;w Kiwapy; jhd; mDgtpj;J tUfpnwhk;/ jhthr; brhj;J clg;o me;j rh;nt ek;ghpy; cs;s 45 fput[z;l; epyKk; me;j ou!;Lf;F jhd; brhe;jk; vd;W cah;ePjpkd;wj;jpy; jPh;g;ghfpapUf;fpwJ vd;why; bjhpahJ me;j tpguk; vdf;F bjhpa[k; vd;why; rhpay;y/”
84. From these statements, it is clear that the defendants were not even aware that the plaintiff was the owner, let alone being in possession of the property to the knowledge of the owner. As against the documents proving “better title” and prior possession of the plaintiff, the defendants have only filed driving licence and payments made to authorities who are entitled to charge monies for services rendered including phone bills, water, sewage and electricity payments. These may point out to possession, but are irrelevant to a person projecting title. This aspect has been discussed in detail in other portion of the judgment. Therefore, even on that ground the plea of plaintiff has to succeed and that of the defendants has to fail.
Authorities cities by defendants/respondents
85. The judgment referred to by Mr.Mohan Raj in Shafin Jahan vs.
Asokan K.M. and Others, (2018) 16 SCC 368 is absolutely irrelevant to the facts of the present situation. That was a case where the High Court in exercise of jurisdiction under Article 226 of the Constitution of India had gone ahead and exercised parens patriae jurisdiction over a major female. It was in those circumstances, the Supreme Court held that the parens patriae jurisdiction should not be lightly exercised by the court. I do not understand how the said judgment is applicable to the present case.
86. Similarly the judgment referred to by Mr.Mohan Raj which is rendered by my sister Justice P.T.Asha in The Pazhaverkadu Venkatasami Gramani Trust vs. John Basha and another in S.A.No.2281 of 2003 and S.A.No.197 of 2007 dated 02.02.2023 is not applicable to the facts of the present case. First, none of the issues involved here arose for consideration in that case. Secondly that was not a suit for ejectment based on title, but on the basis that there existed a relationship of landlord and tenant. Justice P.T.Asha was pleased to hold that the relationship between the landlord and tenant had not been proved, and hence the suit had to fail. But this is a situtation where the suit has been presented on the basis of superior title to the property. I cannot compare a suit based on superior title with a suit founded on landlord and tenant relationship.
Decision
87. In the light of the above discussion, the questions of law are answered in favour of the appellant and as against the respondents. I come to the clear and categorical conclusion that the plaintiff trust is the owner of a larger extent of property measuring 51 grounds in S.No.3217 and resurvey number 3940/2 of Sheniamman Koil Street, Tondiarpet, Chennai. The
conclusion is that the claim of the defendants, not having disputed the identity of the property and that it is situated in R.S.No.3940/2 and having failed to prove title in themselves or title in any other persons, would necessarily have to yield to the superior title of the plaintiff trust.
88. In view of the above discussion, the judgement and decree of the IV Additional Judge, City Civil Court, Chennai in A.S.No.79 of 2010 dated
23.08.2011 in confirming the judgment and decree of the XII Assistant Judge, City Civil Court, Chennai in O.S.No.1803 of 2007 dated 17.10.2008 is set aside. The suit is decreed as prayed for. The second appeal is allowed. Time for eviction is 3 months. Costs throughout. Consequently, the connected miscellaneous petition is closed.
14.06.2024 nl
Index : yes / no
Neutral Citation : yes / no
Speaking / Non Speaking Order
To
1.The IV Additional Judge, City Civil Court, Chennai
2.The XII Assistant Judge, City Civil Court, Chennai
V.LAKSHMINARAYANAN, J. nl
Pre Delivery judgment in
S.A.No.735 of 2013
14.06.2024
