Dismissed

Kannan v. Muthaiyan

Madras HC25 Jun 2021SA/801/2008

Case brief

AI extract

What is this about?

This second appeal challenges a decree for recovery of possession granted to the plaintiff over a Natham land. The court held that revenue records (patta and kist receipts) proved the respondent's possession and title, dismissing the appellants' claim of ownership.

What did the court decide?

The suit for recovery of possession was decreed; the second appeal was dismissed with consequences confined to the parties.

What the court decided

AI extract

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED : 25.06.2021

¶3

CORAM:

¶4

THE HONOURABLE MS.JUSTICE P.T.ASHA

¶5

S.A.No.801 of 2008
and

¶6

CMP.No.6354 of 2019 and MP.Nos.1 of 2008,
1 of 2010 and 1 of 2012

¶7

1.Kannan

¶8

2.Venkatesan

¶9

3.Mani ...Appellants 1 to 3 / Respondents 1 to 3 /
Defendants 1 to 3

¶10

versus

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1.Muthaiyan @ Muthaiyaa Pillai ...1^st Respondent / Appellant / Plaintiff

¶12

2.Ganeshan

Kannan Vs Muthaiyan — Property and Title | Madras HC (2021)

¶16

Second Appeal filed against the judgment and decree dated
10.10.2007 made in A.S.No.112 of 2005 on the file of the Sub-
Court, Gingee, reversing the decree and judgment dated
30.09.2004 made in O.S.No.167 of 1998 on the file of Additional
District Munsif Court, Gingee.

¶25

3.1. The first respondent herein had filed the above suit
for a declaration and permanent injunction in respect of the
suit property. Thereafter, the suit was amended to include the
relief of recovery of possession, if the courts were to come to
the conclusion that defendants had encroached into the suit
property. The suit was filed against the appellants herein and
respondents 2 to 4 herein.

¶27

4.1. The suit properties belonged to his father Muttaiya
Pillai and the old patta number for the same was 87. Muttaiya
Pillai was in possession and enjoyment of the property till his
death in the year 1986. The first respondent being the sole
legal heir had inherited the same and has been in possession and
enjoyment of the properties. The natham patta was also issued in
the name of the first respondent and the new Patta Number was
120.

¶28

4.2. The first respondent contended that he and his
predecessor in title being in open and continuous possession of
the suit property for over a period of 12 years had therefore
perfected the title to the same by adverse possession.

¶29

4.3. The defendants who have no semblance of right, title
or interest to the suit property have been interfering with the
first respondent's peaceful possession and enjoyment of the suit
property thereby constraining the first respondent to file the
suit.

¶31

4.4. The first appellant herein as first defendant had
filed a written statement which was adopted by the other
defendants and respondents 2 to 4. In their defense they had
denied the entire contentions of the first respondent and had
stated that the suit property never belonged to Muttaiya Pillai,
the first respondent's father.

¶32

4.5. The first appellant further contended that the
Advocate Commissioner who had been appointed in the above suit
has submitted a report stating that there is a house existing in
the suit property which is very old and the first respondent had
not taken any steps to show the house in the schedule of
properties. The appellant and his ancestors have been enjoying
the suit property for well over 60 years by paying the revenue
charges and having electricity service connection to the said
house. The first appellant had further contended that the old

¶36

4.6. The first appellant had also filed an Additional
written statement, which was once again adopted by the other
appellants and respondents 2 to 4 herein, contending that the
plaintiff had not filed the suit for recovery of possession
despite the fact that he had stated that the appellants herein
and respondents 2 to 4 had encroached into the suit property.
Therefore, the suit was barred by limitation.

¶39

4.7. The appellants 1 and 2 had filed O.S.Nos.67 of 1997
and 68 of 1997 for declaration of the plaintiffs' possessory
title to the suit property and for a permanent injunction in
both the suits.

¶51

5.3. Considering the fact that the subject matter of the
suits and the parties were same, joint trail of the suits
O.S.Nos.67 and 68 of 1997 and O.S.No.167 of 1998 was ordered on
the basis of a memo.

¶53

5.4. The witnesses were examined and exhibits were marked
in O.S.No.67 of 1997. The first respondent was referred to as
the defendant and appellants 1 and 2 were referred to as the
plaintiffs. The first and second appellants had examined
themselves as P.W.1 and P.W.2 and examined Mahalingam,
Kamapillai and Gandhi as P.W.3, P.W.4 and P.W.5 and marked Exs.
A1 to A39. The respondent had examined himself as D.W.1 and had
marked Exs.B1 to B8.

¶54

5.5. The Trail Court rendered a finding that none of the
plaintiffs have proved their case and therefore dismissed all
the three suits. Challenging the said judgment and decree, only
the respondent herein had filed A.S.No.112 of 2005 on the file
of the Sub Court, Ginjee. The appellants 1 and 2 did not file
any appeal, as a result, the findings and the decision in their
suits O.S.Nos.67 and 68 of 1997 respectively had attained
finality.

¶56

6.1. The learned Subordinate Judge had considered the
evidence on record, both oral and documentary as well as the
Advocate Commissioner's report and plan which had been marked as
Exs.C1 and C2 and returned a finding that the plaintiff had
proved possession and considering the evidence and the
Commissioner's report it was clear that the construction had
been put up only after the suit and therefore also decreed the
suit for the relief of recovery of possession.

¶57

6.2. Aggrieved by this reversing judgment and decree, the
appellants 1 to 3 alone have filed this Second Appeal and
defendants 2 to 4 have not challenged the judgment and decree
and therefore the same has attained finality insofar as they are
concerned.

¶59

7.1. Mr. P. Srinivas, learned counsel appearing on behalf
of the appellants would contend that that the Appellate Court
has failed to appreciate that the first respondent has not come
forward with a clear description of the property, subject matter
of the suit. It is his contention that the first respondent had
come forward with a case that the suit properties were vacant
sites and after the visit of the Advocate Commissioner he has
amended the plaint to include the relief of recovery of
possession.

¶60

7.2. He would submit that the perusal of the Advocate
Commissioner's report would clearly demonstrate the existence of
appellants' house, which the Advocate Commissioner has described
as being very old, and which is stated to be situate in the suit
schedule property.

¶63

7.4. He would further submit that the first respondent has
come forward with a specific case that the property is a vacant
site however the Advocate Commissioner's report would demolish
this contention of the first respondent. It is his case that the
Appellate Court has not considered the evidence from its proper
perspective and this has resulted in an erroneous judgment.

¶64

7.5. Ms. Gayatri, learned counsel appearing on behalf of
Mr. P.B. Balaji, leaned counsel for the first respondent would
contend that the appellants cannot challenge the judgment and
decree of the Appellate Court since they have not filed any
appeal. challenging the dismissal of their suits, which was
filed for declaration and injunction.

¶65

7.6. She would further contend that the property in
question is a natham land. It is only the patta which is proof
of possession and being a natham land possession would
presuppose title as natham lands are house sites in which the
person in possession is presumed to be the owner, unless there
is a contrary evidence. She would further argue that the first
respondent has produced the patta and kist receipts right from
the year 1958 which would clearly disprove the case of the
appellants that they are in possession of the suit property.

¶68

9.1. Admittedly the appellants have not challenged the
decree of the Trail Court which went against them. It is only
the first respondent herein who had filed an Appeal. The first
respondent had filed Ex.B1 which is the patta issued to the
first respondent as early as in the year 1992 which is prior to
the dispute coming into existence. He has also filed the kist
receipts standing in the name of his father which are of the
years 1957 and 1958. After the demise of his father, he has
filed the kist receipts standing in his name. The Advocate
Commissioner has found the respondent being in possession of the
property and the Appellate Court had relied on this report of
the Advocate Commissioner as one of the pieces of evidence to
show that the property is in possession of the first respondent.

¶69

9.2. The Appellate Court has also relied on the evidence to
come to the conclusion that the constructions/encroachments were
of a very recent origin and therefore the first respondent was
entitled to the relief of recovery of possession.

¶71

9.3. The appellants have not been able to disprove the
documents filed on the side of the first respondent. The Trail
Court has clearly opined that the documents filed on the side of
the appellants namely the house tax receipts do not indicate
that it relates to the suit property. On the other hand the
first respondent's documents are with reference to the suit
survey numbers. As already observed the suit property is a
Natham land, where ownership is determined by possession. The
revenue records are proof of such possession. The first
respondent having produced these documents, the Trial Court has
rightly come to the conclusion that the property belongs to the
first respondent. Therefore, the substantial questions of law
are answered against the appellants and the Second Appeal stands
dismissed and the judgment and decree of the Subordinate Court,
Ginjee in A.S.No112 of 2005 is confirmed. Consequently connected
Petitions are closed. No costs.

Kannan v. Muthaiyan

Case brief

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What the court decided

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Case details

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Kannan v. Muthaiyan

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Case details

Similar cases

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