C.S. NAGAMMA BAI Vs. THANGAVELU NAICKER

JUDGEMENT

(1.) This is a suit for a declaration of title to and for delivery of possession, after removing the superstructure thereon, of a plot of land measuring 6 grounds and 306 square feet in Thiagaraya Nagar, Mambalam, covered by Survey Nos. 7091/1 and 7091/2. Admittedly the suit property originally belonged to the Corporation of Madras, having been purchased as part of a huge block of land from one Vasu Naidu under exhibit P -1. According to the Plaintiff, the Corporation of Madras plotted out this land and subsequently the Plaintiff's mother, Kamala Bai purchased from the Corporation the said plot of land bearing No. 25 in block No. 19 covered by Survey Nos. 74/2 (part) and 86 (part) of an extent of 6 grounds and 306 square feet for a consideration of Rs. 2,469 under exhibit P -2. According to the Plaintiff, her mother Kamala Bai even during her life time got a fencing erected round the entire plot and a well dug in the western portion of the plot. Kamala Bai died on 9th June 1939 leaving a Will, dated 21st November 1938 which was probated by this Court in Original Petition No. 24 of 1942 under which the suit property amongst others was bequeathed to the Plaintiff. The further case of the Plaintiff is that the Defendant herein used to supply milk to the Plaintiff a family and in that connection he used to borrow money from the Plaintiff and her husband for the purpose of purchase of cattle and for other purposes connected therewith. While so, he requested the Plaintiff to grant him permission to occupy the land for the purpose of tying and keeping his milking cattle in the suit land and the permission was granted in about 1947. The further case of the Plaintiff is that subsequently the Defendant put up a hut at the northern end of the eastern half of the land occupying an extent of 200 square feet. Later according to the Plaintiff, the land was surveyed and it was given two Survey Numbers 7091/1 of an, extent of 3 grounds and 1147 square feet, and 7091/2 of an extent of 2 grounds and 2100 square feet, and, since the portion referable to Survey No. 7091/2 formed part of the Mambalam Zamin, the Plaintiff [was given patta therefore by order of the Final Settlement Enquiry Tahsildar, dated 29th November 1959 (exhibit P -21). The Plaintiff avers that a year prior to the filing of the suit the Defendant began to set up a hostile title and repudiate the title of the Plaintiff in the suit land and, further, claimed title by adverse possession; on 20th January 1962 the Plaintiff through her Advocate sent a notice to the Defendant setting forth the facts and determining the lease and licence to occupy the land given to the Defendant, and called upon the Defendant to deliver vacant possession of the suit land to her after removing the superstructure thereon and restoring the land to its original condition. The Plaintiff's further averment is that the hut put up by the Defendant in the northern end of the eastern portion of the land was demolished by him in or about July 1961, and he put up a hut for the; first time in the western portion of the suit land, i.e., on the land, bearing Survey No. 7091/1, without the knowledge or permission of the Plaintiff, and later on the Defendant also constructed a cattle shed of thatched materials on the suit land by the side of the hut. According to the Plaintiff, after the receipt of the notice, dated 20th January 1962, the Defendant, through his lawyer, Row and Reddy, sent a reply, dated 31st January 1962, whereby, inter alia, it was stated that the Plaintiff is not the owner of the entire extent of 6 grounds and 306 square feet, that a portion of the land formerly bearing Survey No. 74/2 situate in block No. 19, plot No. 28 of T. Nagar, belonged to one Sivasubramania Chettiar, son of Manicka Chettiar, that the Defendant has been in possession of this land for over twenty years continuously, that he claimed title by adverse possession, that the Plaintiff had no right, title or interest to this part of the property which measures 9 grounds and 2,000 square feet and corresponds to the present Survey No. 7091/1, that the remaining part of Survey No. 84 belonged to the Plaintiff and that the Plaintiff could take possession of the same. On receipt of this letter, the Plaintiff caused another letter to be written to the Defendant on 1st April 1962 calling upon him to deliver possession of that portion of the land which the Defendant admitted to belong to the Plaintiff and expressed readiness to hand over to her, while reserving the right to take appropriate proceedings against the Defendant to vindicate her rights to the rest of the land. But the Defendant failed to hand over possession of even that portion of the land. The Plaintiff has filed the suit contending that the Defendant was only a licencee under the Plaintiff, and the Defendant having been let into occupation of the land for the purpose aforesaid is estopped from denying the title of the Plaintiff. The Plaintiff contends that the Defendant haying denied the Plaintiff's right and title to the land and having claimed adverse title has, in any event, forfeited his right to occupy the suit land whether as a licensee or even as a tenant and hat become a trespasser. The Plaintiff, therefore, filed the suit for declaration of her title to the property and for recovery of possession from the Defendant after removal of the superstructure. She has also claimed that subsequent to the determination of the leave and licence granted to the Defendant, he was liable to pay damages for use and occupation of the suit land which the Plaintiff estimated at Rs. 60 per mensem. On this him she has also prayed for a decree against the Defendant to pay damages for use and occupation of the land at Rs. 60 per mensem from 1st February 1962 up to the date of delivery of possession.

(2.) In the written statement filed by the Defendant he contends that the land bearing block No. 19, plot No. 28 and Survey No. 74/2, measuring about 3 grounds and 2,000 square feet belonged to one M. Sivasubramania Chettiar, he having purchased the same under a document, dated 4th Jane 1938 from the Corporation of Madras in or about 1942 the said Sivasubramania Chettiar handed over possession of the suit property measuring 3 grounds and 2,000 square feet in block No. 19, plot No. 28, of T. Nagar, and corresponding to Survey No. 7091/1, to the Defendant and ever since that date, i.e., the year 1942, the Defendant has been in possession of this portion of the property absolutely as owner and has been paying ground rent, property tax, etc., in respect of the suit land and hence the Defendant has perfected title to the suit property by adverse possession. The Defendant had put up valuable structures in the suit property ever since 1942 as owner. The case of the Defendant with regard to Survey No. 7091/2 was that he acknowledged the title of the Plaintiff to the said property, but claimed that he had been a tenant of the Plaintiff in respect of the said plot. In that capacity he claimed that he was entitled to the rights conferred on a tenant under the Madras City Tenants' Protection Act, 1922, as amended by Act XIX of 1955. He denied the case of the Plaintiff that the hut put up by him in the eastern portion of the property was demolished by him in July 1961, and, on the other hand contended that be had put up valuable structures as cattle shed, and that superstructure continued. He denied the other claims of the Plaintiff in detail in his written statement.

(3.) For the purpose of completing the events that have taken place, I must also refer to one or two other facts even at this stage itself, since they happened during the pendency of the suit. I have already referred to the fact that the Plaintiff has claimed in the, plaint that the Pinal Settlement Enquiry Tahsildar on 29th November 1959 had granted patta to the Plaintiff in respect of Survey No. 7091/2. That order of the Tahsildar has been marked as exhibit P -21. In that order the Tahsildar had stated that Survey No. 7091/1 was a land acquired by the Government for the Corporation under the Land Acquisition Act and patta for the acquired land had been already issued by the Revenue Department and that patta was then being issued only for Survey No. 7091/2. In view of this order of the Tahsildar, on 22nd July 1961, the Plaintiff's husband addressed the Tahsildar, South Madras Division, for the purpose of grant of patta for Survey No. 7091/1 (exhibit P -23). In reply to this application, the Tahsildar on 4th November 1961 stated that the land bearing Survey No. 7091/1 with an extent of 3 grounds and 1147 square feet, stood registered in the name of Sivasubramania Chettiar, and called upon the Plaintiff's husband to produce documentary link connecting the registered holder with the vendor in this document, and he also pointed out that it was reported t hat the Plaintiff was not in possession of the property, that one Thangavelu Naicker (Defendant) was living in the land for the last twenty years without paying rent to any one and that, in those circumstances, the transfer of registry applied for by the Plaintiff's husband could not be complied with. A copy of this communication was sent to the Defendant with reference to his objection petition, dated 26th September 1961. On 16th April 1962 the Tahsildar sent a notice to the Plaintiff asking her to produce evidence to show that she was the owner of the land and this notice has been marked as exhibit P -29. The Plaintiff's husband appeared before the Tahsildar on 21st April 1962 and gave a statement by the Plaintiff stating her case with regard to the title to Survey No. 7091/1 and this statement has been marked as exhibit P -30. Afterwards by a communication, dated 28th June 1962 (exhibit P -34) the Special Tahsildar for Urban Taxation, intimated to the Plaintiff that the land covered by Survey No. 7C91/1 of block No 115 had been registered in the, name of the Plaintiff and, if she so desired, an extract from the T.S. Land Register would be furnished to her on payment of Re. 1 into the Taluk Treasury, and the extract granted to her, dated 9th July 1962 is marked as exhibit 1(sic)35. Against this order of the Tahsildar the Defendant herein preferred an appeal to the Collector of Madras on 11th July 1962 and the Plaintiff received a notice, dated 29th August 1962 marked as (exhibit P -36) of this appeal. The Plaintiff in reply to the appeal set out her case in a statement which has been marked as exhibit P -37. Ultimately, since the suit has been filed before the authorities could complete their enquiry an intimation dated 2nd December 1963 was sent to the Defendant stating that he might renew his petition for the transit of the registry in respect of the abate field, i.e. Survey No. 7091/1 after establishing his claim in a Court of law, and this communication which is found in the file summoned from the office of the Collector has been marked as exhibit D -15.