M PARTHASARATHY Vs. ADILAKSHMIAMMAL

JUDGEMENT

(1.) THIS Second Appeal has arisen from the judgment and decree of the learned III Additional City Civil Judge, Madras setting aside the judgment and decree of the learned II Assistant City Civil Judge, Madras and granting a decree in favour of the plaintiffs.

(2.) THE plaintiffs are the respondents herein. THE plaintiffs alleged in the plaint as follows: One late Baggiammal, wife of late Arumuga Naicker purchased the suit property on 5.5.1937. She was also known as Angammal. Though the said couple had a happy married life, they were issueless. After the death of Baggiammal, the property devolved upon her husband Arumuga Naicker. Arumuga Naicker made a settlement deed dated 7.8.1954. THE said settlement has several covenants. Before the plaintiffs could proceed with these covenants, it is submitted that it was necessitated to have a settlement of this nature to the settlee because the defendant was the only male member available to the family of Arumuga Naicker as well as Munusamy Naicker. One Dedammal, mother of the defendant and the first plaintiff was none else than the sister of the settlee Arumuga Naicker. THE stipulation made in the settlement has got a special feature. Under the settlement deed the suit property was valued to the extent of Rs. 1,000/-, and the defendant was directed to pay Rs. 500/- to each of his sisters viz. the first plaintiff Amirthavalli Thayarammal and Pushpavalli Ammal. THE settlement was created by the person during his last days by imposing such a pious obligation on the part of the defendant. THE defendant not only failed in paying the amount to the first plaintiff, but also expressed that the suit property can be managed and enjoyed by the first plaintiff herein. THE defendant was also not interested in the property in view of his burden to pay money and also due to his continuous stay at Bangalore. Since the defendant did not pay the money, the plaintiffs started enjoying the suit property as that of their own, without any interruption of any one. THE suit properties were the house plots adjacent to the plaintiffs' property. THE plaintiffs used to enjoy the property at least from 7.8.1954. THE plaintiffs were in complete enjoyment of the suit property for more than the statutory period prescribed so as to acquire the property by adverse possession. THEy utilised the schedule mentioned property for the purpose of their business for more than thirty years. Apart from that, it was made use by the third plaintiff to keep his raw materials at the suit property by making a pucca shed. A permanent watchman was also posted at the site. THEre was a fencing and thatched shed. THEy were in complete control and enjoyment of the suit property. As the defendant failed to pay the money as per the settlement deed, the plaintiffs continued to enjoy the suit property for the past 30 years. THE plaintiffs were paying the connected taxes for the suit property. Since the defendant started interfering with the enjoyment of the property by the plaintiffs, there arose a necessity to file a suit.

(3.) ARGUING for the appellant, the learned Senior Counsel Mr. T.R. Rajagopalan would submit that the first appellate court was not correct in holding that the plaintiffs have acquired title by adverse possession, since there was no proof in that regard; that it is pertinent to note that the trial court has agreed with the appellant's case that under Ex.B1 the defendant has acquired valid title to the suit property and has acted as per the directions given in the settlement deed by paying Rs. 500/- to his sisters under Exs.B2 to B4, and hence under such circumstances, the first appellate court should not have held that the defendant lost his title by adverse possession; that the appellant has well established the payment of urban land tax and property tax as per Exs.B15 to B39 from 7.6.1960, which would indicate that he was always exercising his right of ownership over the property; that it has to be borne in mind that the suit property was a vacant site, and hence possession would follow title; that the first appellate court has made an unwarranted and unsustainable criticism over the decision of the trial court stating that the trial court decided the matter without giving an opportunity to the plaintiffs; that a statement in the judgment as to what had taken place in the court was conclusive and should not be allowed to be contraverted by an affidavit or otherwise, and the party who was aggrieved by what he considered a wrong statement in a judgment should apply to the very same court by way of a review; that in the present case, the respondents/plaintiffs have not followed the above procedure, and therefore, the first appellate court was not correct in considering the said objection in the appeal, especially when the judgment has specifically stated that the arguments of both the plaintiffs and defendant were heard by the court; that it is not correct to state that the appellant has not proved the contents of the documents and their execution; that in the course of Exs.B9 to B14 and B40 letters written by the plaintiffs 2 and 5, they have admitted the title of the defendant to the suit property; that the defendant has produced those letters and has given clear evidence that they were written by the plaintiffs 2 and 5; that it is pertinent to note that those letters or the handwritings of the plaintiffs 2 and 5 was not denied by the plaintiffs, and under such circumstances, the first appellate court was not correct in drawing an adverse inference against the defendant for not examining the plaintiffs 2 and 5 to prove the document; that there arose no necessity to examine the plaintiffs 2 and 5 on the side of the defendant, since the plaintiffs never disputed the title of the defendant; that the respondents did not raise any objection as to the proof of the contents of those letters either in the course of the trial or no ground was raised even in the memorandum of the first appeal; that it has to be pointed out that there was absolutely no dispute raised by the plaintiffs either at the time of marking of those documents or at later point of time; and that the first appellate court should not have relied on the decisions reported in 1975 Madras 257= (1974) 87 L.W. 771 and 1978 Madras 78 = (1978) 91 L.W. 28 as the facts in those cases clearly disclose that they have no application to the facts of the present case.