In a second appeal regarding a property dispute, the High Court upheld the lower courts' findings that the respondent acquired title through adverse possession, dismissing the appeal against the decree for declaration and injunction despite allegations of inconsistent pleas and evidentiary defects.
The Second Appeal is dismissed. No costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
S.A.No.1958 of 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.12.2024
CORAM
THE HONOURABLE Mr.JUSTICE C.KUMARAPPAN
S.A.No.1958 of 2004
... Appellants
Vs.
Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code to allow the above appeal with costs throughout, set aside the judgement and decree dated 25.10.2002 made in A.S.No.16 of 2002 on the file of the Fast Track Court-3, (Addl. District Court) Namakkal and also set aside the judgement and decree dated 15.03.1993 made in O.S.No.119 of 1987 on the file of the District Munsif Court, Rasipuram.
For Appellants : Mr. C.P.Sivamohan
S.A.No.1958 of 2004
For Respondents : Mr. K.Vasuvenkat *****
JUDGEMENT
The defendants are the appellants herein. The first respondent (since deceased) is the plaintiff before the Trial Court.
her father-in-law, and she has been in continuous possession of the same for more than 40 years. The defendants, who are residents in D.No.87(A), are not concerned with the suit property, and have been doing weaving business. Only to take vengeance, they have attempted to interfere with the possession
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of the property and interfered in the plaintiff's avocation of manufacturing pottery. Hence, the plaintiff came forward with the suit for declaration and injunction.
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statement, wherein she disputes the ownership of her father-in-law. On the other hand, it was stated that the suit property was a Sreethana property of her mother-in-law, and that her father-in-law had no right or title over the suit property, to execute any sale deed. Even if there is any sale deed in the name of the defendants, through which the defendants could not derive any title. Thus, it is her specific submission that she has been in possession and enjoyment of the suit property for more than 40 years. Hence, she had reiterated that, she is entitled to have declaration and injunction.
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Appeal in A.S.No.16 of 2002 before the Fast Track Court-3 (Additional District Judge), Namakkal. However, the Appellate Court, vide order dated 25.10.2002, has concurred with the findings of the Trial Court and ultimately dismissed the appeal.
Court has formulated the following substantial questions of law:-
“1. Whether the findings of the Trial Court that the respondent/plaintiff has got title by adverse possession is erroneous in the eye of law and perverse against the evidence on record?
2. Whether the claim of the plaintiff is that he got title by adverse possession as well as by inheritance is legally maintainable?
3. To what relief?
appellants and Mr. K.Vasuvenkat, the learned counsel for the respondents.
S.A.No.1958 of 2004
S.A.No.1958 of 2004
J.Kamala and others , reported in 2020 (6) CTC 320.
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learned counsel for the appellants in Nazir Mohamed Vs. J.Kamala and others , reported in 2020 (6) CTC 320 . The Hon'ble Supreme Court of India
has categorically held that, the substantial questions of law must be debatable, not previously settled by the law of the land, or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way. In paragraph 33 of the said judgment, the Hon'ble Supreme Court of India dealt with what constitutes a question of law. For ready reference, it is appropriate to extract the relevant portions of the judgment of the Hon'ble Supreme Court of India in Nazir Mohamed's case (cited supra), which reads as follows:-
“33. To be a Question of Law “involved in the case”, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that Question of Law for a just and property decision of the case.
34. Where no such Question of Law, nor even a mixed Question of Law and fact was urged before the Trial Court or that First Appellate Court, as in this case, a Second Appeal cannot be entertained, as held by this Court in Panchagopal Barua Vs. Vinesh Chandra Goswami , AIR 1997 SC 1047.”
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“37. The principles relating to Section 100, C.P.C. relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a Question of Law. Construction of a document, involving the application of any principle of law, is also a Question of Law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a Question of Law.
(ii) The High Court should be satisfied that the case involves a Substantial Question of Law, and not a mere Question of Law. A Question of Law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the Suit) will be a Substantial Question of Law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
(iii) A Substantial Question of Law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents,
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but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the Substantial Question of Law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”
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burden of proof. With this in mind, let us proceed with the factual position of the instant appeal. The first point urged by the learned counsel for the appellants is that the plaintiff has taken inconsistence defence of, ownership on the one hand and perfecting title by adverse possession on the other hand. According to the appellants, the above defence will not go together.
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plaintiff would rely upon the findings rendered by the Trial Court, wherein the Trial Court, in paragraph 12, had referred to the fact that the appellants' predecessor-in-title had admitted to the effect that the plaintiff has been in possession since 1967. In this regard, the learned counsel for the plaintiff would invite the attention of this Court to the admission made by the defendants' predecessor in title qua DW2. According to him, the plaintiff has been in possession even while the suit property was purchased by the defendants through Ex.B1. He would also admit that, since 1967, the plaintiff has been in the possession of the suit property. However, this contention was strongly objected to by the learned counsel for the defendants and to contradict this observation relied upon the certified copy of DW2's deposition. Based upon the said deposition, the learned counsel would submit that the evidence of DW2 refers only the year 1976.
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had admitted the plaintiff's possession since 1967. In view of the above categorical findings of fact rendered by both the Courts below, this Court is not in a position to concur with the submission made by the learned counsel for the defendants. Further, curiously no grounds of appeal raised on the above point, either before the First Appellate Court or before this Court. Therefore, this Court is of the view that the findings of fact rendered by both the Courts below, that the plaintiff had been in possession since 1967 onwards, has to be upheld.
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distinguishable.
13.12.2024
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S.A.No.1958 of 2004
Index : Yes/No Speaking order /Non Speaking Order Neutral Citation : Yes/No
To
S.A.No.1958 of 2004
C.KUMARAPPAN, J.
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S.A.No.1958 of 2004
13.12.2024
3 issues framed by the court
Whether the findings of the Trial Court that the respondent has title by adverse possession are erroneous or perverse?
Whether the plaintiff's claim of title by adverse possession as well as inheritance is legally maintainable?
Whether the High Court should interfere with the concurrent findings of the lower courts on the facts of possession?
Colour shows how this judgement treated each authority
Nazir Mohamed Vs. J.Kamala and othersReferred¶50
Nazir Mohamed Vs. J.Kamala and others, reported in 2020 (6) CTC 320
Panchagopal Barua Vs. Vinesh Chandra GoswamiExplained¶62
Panchagopal Barua Vs. Vinesh Chandra Goswami, AIR 1997 SC 1047 · Who else cites this
Brijesh Kumar Vs. Shardabai (Dead) by L.RsDistinguished¶87
Brijesh Kumar Vs. Shardabai (Dead) by L.Rs, reported in 2021 (1) CTC 123
Karnataka Board of Wakf Vs. Govt. of IndiaDistinguished¶91
Karnataka Board of Wakf Vs. Govt. of India, reported in (2004) 10 SCC 779 · Who else cites this
1 provisions across 1 enactments
Palanivel
Selvarathinam
Kuppusamy
Lakshmi
Rajammal
C. KUMARAPPAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
