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Sri Arunachala Mudaliar Charities, Kanchipuram Represented by its Hereditary Managing Trustee V. Kuppusamy v/s Subburaya Mudaliar High School, Kanchipuram & Another

    S.A. No. 352 of 2014
    Decided On, 28 October 2020
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR. JUSTICE R. SUBRAMANIAN
    For the Appellant: P. Ilaya Rajakumar, Advocate, For the Respondents: Y.T. Aravind Gosh, Additional Government Pleader.


Judgment Text
(Prayer: Second Appeal filed under Section 100 of C.P.C, against the judgment and decree dated 09.11.2012 made in A.S.No. 79 of 2007 on the file of the Sub-ordinate Judge, Kanchipuram, confirming the judgment and decree dated 19.09.2007 made in O.S.No. 955 of 2004, on the file of the Principal District Munsif.)1. The plaintiff, whose suit for ejectment was dismissed by the Trial Court upon its confirmation by the lower Appellate Court has come up with this second appeal.2. According to the plaintiff, the suit property measuring about 1 acre 30 cents with a Vasantha Mandapam belonged to it and the same was dedicated to the plaintiff trust by the founder Late Arunachala Mudaliar by virtue of a Will dated 01.05.1896. A scheme was framed for administration of the plaintiff trust on 08.02.1973 in O.S.No. 24 of 1963 on the file of the Sub-Court, Chengulpet. While declaring the suit property as the property of the Trust, there was a direction for leasing out the property to the defendant school. The said proposal to lease was sanctioned by the scheme Court in I.A.No. 392 of 1972. The scheme Court fixed the monthly rent at Rs.30/- and the lease was for a period of 10 years from 01.11.1973.3. Pursuant to the said order, a lease deed came to be executed fixing the monthly rent at Rs.25/- for the period from 19.02.1974 to 18.02.1984. The plaintiff also claimed that the previous Trustees had acted to the deteriment of the Trust by entering into a lease deed for a rent lower than what was fixed by the scheme Court. Claiming that the Trust is entitled to rent at Rs.100/- per month from 04.12.1970 to 04.01.2004. The plaintiff also contended that it has terminated the lease by issuance of notice on 18.09.2003 and without replying to the said notice it is learnt that the defendant namely, District Educational Officer, Kanchipuram had written to the Head Master of the school requiring him to take steps for acquisition of the land from the Trust. Therefore, the plaintiff sued for ejectment and for arrears of rent for a period of three years.4. The suit was resisted by the defendant contending that the lease as sanctioned by the scheme Court is a permanent lease. It was further contended that if the plaintiff claims that the tenancy is void then the possession of the defendant is adverse to the interest of the plaintiff and since the possession is open, continuous and uninterrupted for more than the statutory period, the defendant has perfected title by adverse possession. Certain defects in the notice to quit were also pointed out as a defence to the claim of the plaintiff. An additional written statement was filed claiming that there was some discrepancy in the description of the property.5. At trial, the Trustee of the plaintiff trust one V.Kuppusamy was examined as P.W.1 and Exs.A1 to A9 were marked. Two witnesses were examined on the side of the defendants namely, one Rajendran and one Ellappan as D.W.1 and D.W.2. The said Rajendran is a Supervisor in the Office of the District Educational Officer, Kanchipuram and Ellappan was the Head Master of the school. Exs.B1 to B5 were marked on the side of the defendants. The learned Trial Judge, upon the pleadings, framed the following issues:-“i) Whether the notice dated 18.09.2003 is valid ?ii) Whether the plaintiff is entitled to a decree for ejectment ?iii) To what relief is the plaintiff entitled to ?”6. The learned Trial Judge even without framing an issue regarding the plea of adverse possession concluded that the defendant has perfected title by adverse possession solely on the ground that the plaintiff has not taken any action to claim rents from the defendant. Based on the said finding, the learned Trial Judge concluded that the notice to quit is not valid. The learned Trial Judge also took note of the fact that the suit property is being used as a play ground for the children in the school and therefore, the plaintiff is not entitled to a decree for possession. On the above conclusions, the learned Trial Judge dismissed the suit. Aggrieved, the plaintiff preferred an appeal in A.S.No. 79 of 2007. The learned Appellate Judge framed the following points for consideration in the appeal :-“i) Whether the decree and judgment passed by the Trial Court is to be interfered with?ii) Whether the appeal filed by the appellant is entitled to allow ? (sic)iii) Whether the suit is barred by limitation?iv) Whether the respondents are entitled to claim the suit property by adverse possession?v) Whether the terminatin notice issued by the appellant is valid ?vi) To what other reliefs the appellant is entitled to ?”7. The learned Appellate Judge reconsidered the evidence and concurred with the findings of the Trial Court on the question of adverse possession. On the said finding, the learned Appellate Judge confirmed the judgment and decree of the Trial Court. Aggrieved, the plaintiff has come up with this second appeal. The following questions of law were framed at the time of admission :-“i) Whether the Courts below are right in dismissing the suit for delivery of possession holding that the defendants are entitled for the benefit of adverse possession to the said property ?ii) Whether the plea of adverse possession is sustainable when the original possession was pursuant to a lease which remains unrepudiated ?iii) Whether the Courts below are right in denying (returning) a finding of adverse possession when the defendants admitted the possession as a lessee and agreed to pay the rent ?iv) Whether the judgment and decree of the trial court dismissing the suit and the judgment and decree of the first appellate Court confirming the same is tenable on the findings of the plaintiff's claim is barred by limitation when no such plea of any adverse possession under Article 67 of the Limitation Act being claimed by the defendant (sic)?”8. Before going into the merits of the appeal, I would like to record certain happenings in the Court during the course of hearing of this appeal. The appeal was initially listed for arguments on 29.11.2019 and I had reserved orders on the said date. Subsequently, at the request of the learned Additional Advocate General who appeared for the respondents in the appeal, I had de-reserved the matter and posted it for hearing. The learned Additional Advocate General submitted that they would work out an amicable settlement by offering a reasonable rent for the land. Acting upon the said request, I had adjourned the matter to enable the District Collector, Kanchipuram to fix a reasonable rent for the property in question. Again, when the matter was listed on 09.07.2020, it was represented by the learned counsel for the appellant that the sentiments expressed by the learned Additional Advocate General were not reflected by the District Collector, Kanchipuram. Taking note of the said submission, I had required the District Collector, Kanchipuram to file an affidavit expressing the Government's intention to pay reasonable rent for the land that is in occupation of the School by 27.07.2020. Then the District Revenue Officer, Kanchipuram had filed an affidavit, since the District Collector had self-quarantined himself due to a Covid 19 infection, wherein the District Revenue Officer had stated that the rent could not be finalized due to lock down. Recording the said affidavit, I had directed the appeal to be listed on 21.09.2020. I had also indicated that the Authorities shall at least indicate the rent that they are willing to pay by the said date. When the matter was listed on 21.09.2020, the District Collector, Kanchipuram had filed an affidavit stating that the Public Works Department has fixed the rent for an extent of 27082 Sq.ft. of land at Rs.3,17,536/- per month. A statement is also added to the effect that minimum rent can be fixed for play ground of schools, as per the guidelines found in the Tamilnadu Public Works Department code. The affidavit also refers to the demand of the Trustee of the Appellant trust seeking a rent at Rs.25,000/- per month.9. After stating so, the District collector observed that the appellants have not produced the Patta or the title deeds to the suit property. He would also refer to the fact that the revenue records of the disputed land (emphasis supplied) stand in the name of one Neelakanda Mudaliyar, son of Kuppusamy Mudaliyar. Thus, the District Collector has for the first time from the date of filing of the suit, namely 27.07.2004, attempted to create a title dispute over the property which was admittedly taken by the School on lease from the appellant. The District Collector has expressed his willingness to fix the fair rent provided to appellant trust, furnishes title deeds and Patta for the land to him. I felt that the contents of the affidavit was not bonafide and an attempt was being made to give a colour of title dispute to the entire suit and avoid a payment of reasonable rent. I therefore, rejected the affidavit and heard the appeal on merits. Once again, I reserved orders on 28.09.2020. I am placing the above facts on record only to explain as to why the appeal was reopened after being reserved for judgment at an earlier date.10. I have heard Mr.P. Ilaya Rajakumar, learned counsel for the appellant and Mr. Y.T.Aravind Gosh, learned Additional Government Pleader for the respondents.11. Mr.P.Ilaya Rajakumar, learned counsel for the appellant would vehemently contend that the Courts below were not justified in concluding that the respondent has perfected title by adverse possession. He would submit that once they had taken the property on lease from the trust agreeing to pay rent and also paid rents for a specific period under Ex.B5, the Courts below were not right in accepting the plea of adverse possession. He would further contend that the essential ingredients of adverse possession have not been established. He would also draw my attention to the evidence of D.W.1 and D.W.2 which would go a long way to show that they did not have the required animus to possess the property adverse to the interest of the plaintiff trust so as to perfect title by adverse possession. He would also submit that having admitted the tenancy and having admitted their readiness to pay rent, the defendants cannot be said to have perfected title by adverse possession.12. He would also draw my attention to the letter dated 26.09.2003 by the District Education Officer to the Head Master of the defendant school requiring him to take steps to acquire the property from the trust to contend that the defendant never had the required animus to claim adverse possession. The learned counsel would also rely upon the judgments of the Hon'ble Supreme Court in Navaneethammal Vs. Arjuna Chetty reported in 1996 (6) SCC 166, Sevoke Properties Ltd. Vs. West Bengal State Electricity Distribution Company Ltd. reported in (2019) 4 MLJ 278, Nand Ram (Dead) through L.Rs and others Vs. Jagdish Prasad (Dead) through L.Rs reported in AIR 2020 SC 1884. Deva (Dead) through L.Rs Vs. Sajjan Kumar (Dead) by L.Rs reported in (2003) 7 SCC 481 and the judgment in Angalammal Vs. T.V.Nagappa Mudaliar. and Others reported in AIR 2020 Mad 175 in support of his submissions. Reliance is alsoplaced by the learned counsel on the Judgment of the Hon'ble Supreme Court in State of Haryana -Vs- Mukesh Kumar and others reported in 2011(10)SCC 404 to contend that the state cannot plead adverse possession. 12. Contending contra, the learned Additional Government Pleader would submit that the present Trustee of the plaintiff trust had even in the plaint pleaded that the lease deed dated 19.02.1974 is invalid and therefore the defendant must be deemed to have been in possession in its own right from the date of inception of the tenancy and therefore, they have perfected title by adverse possession. He would also point out that the claim of permanent tenancy has also been made by the defendant. I have considered the rival submissions.13. The plaintiff's suit is one for ejectment simplicitor. The plaintiff claims that the erstwhile Trustee had entered into a lease deed for an amount lesser than the amount fixed by the Court as rent and thereby acted against interest of the Trust. Though the claim is made that the lease deed is not valid, the plaintiff had chosen to issue a notice terminating the tenancy and had sought for recovery of possession along with a prayer for recovery of rents for a period of three years proceeding to suit. The defendant in its written statement would admit the tenancy and claim that in view of the order of the scheme Court made in I.A.No. 392 of 1972, a permanent tenancy was created in favour of the defendant. It was further contended that the defendant must be deemed to have been in possession in furtherance of a declared void transaction and therefore its possession must be held to be adverse to that of the plaintiff. It was also pleaded that the notice under Section 106 is not valid. An additional written statement was filed raising a dispute regarding the identity of the property. Therefore, from the pleadings, it could be seen that possession of the defendant could be traced only to the tenancy, at its inception therefore, it is incubant upon the defendant to show that it had continued in the possession of the property in denial of the title of the plaintiff so as to enable it to claim adverse possession.14. The theory, once a tenant is always a tenant would apply. Unless it is shown that the tenancy was terminated by an act of the landlord or that the tenant denied the tenancy and claimed to be in possession adverse to the interest of the landlord, the possession of a tenant cannot become adverse to that of the landlord so as to confer the ownership of the property on the tenant by adverse possession. In order to claim adverse possession, the person claiming adverse possession must prove that he has been in possession of the property for well over the statutory period to the knowledge of the owner in denial of the title of the owner and such possession had been peaceful. The ordinary classical requirement of adverse possession is that it should be nec vi, nec clam and nec precario i.e, it should be peaceful, open and continuous.15. In the case on hand, it is admitted that the defendant entered the property as a tenant therefore, the initial possession of the defendant was not in denial of the title of the plaintiff or adverse to that of the plaintiff. Hence, in order to claim adverse possession, the defendant in the case on hand must go one step further and prove that it had asserted its own right in the property adverse to that of the plaintiff for over the statutory period of twelve years. If we are to look at the evidence that is available in the case on hand, it has to be concluded that the defendant had not made out the said requirement. The animus to possess adverse to the title holder is an essential factor to be established by a person claiming adverse possession. The letter dated 26.09.2003 addressed by the Administrator of the defendant school namely, The District Educational Officer, in fact, concedes the title of the plaintiff to the suit property. There is a direction to the Head Master to take steps for acquisition of the property. This by itself would discredit the claim of adverse possession over the suit property by the defendant. The defendants themselves have marked Ex.B5 receipt issued by the Trustee of the plaintiff dated 20.02.1974 evidencing payment of rent of sum of Rs.300/- for the period between 04.12.1970 and 18.02.1974. Therefore, it is clear that the defendant had admitted the title of the plaintiff and had no intention to claim rights by adverse possession till 2004 when the suit was laid by the plaintiff.16. Neither the learned Trial Judge nor the Appellate Judge had gone into the question as to whether there is enough evidence to show that the defendant had perfected title by adverse possession. Unfortunately, both the Courts below have totally misdirected themselves and concluded that the inaction on part of the plaintiff in not demanding rent for several years would amount to perfection title by adverse possession in favour of the defendant. This in my considered opinion, is against the law of prescription of title by adverse possession where the defendant that too a defendant who had came into possession as a tenant claims adverse possession.Both the courts below have not adverted to the language of Article 67 of the Limitation Act 1963. It is for that defendant to prove by unimpeachable evidence that it had perfected title by adverse possession. Therefore, it is for that defendant to plead and prove the necessary requirements of adverse possession.17. The law is well settled that in order to prove adverse possession, the defendant who pleads adverse possession must plead the date on which its possession became adverse to that of the plaintiff so as to claim that it had perfected title by adverse possession. Neither in the written statement nor in the additional written statement filed by the defendants it is stated as to when its possession became adverse to that of the plaintiff. Unfortunately, as pointed out earlier, the Courts below have concluded that the defendants has perfected title by adverse possession solely on the ground that the plaintiff has not taken action for recovery of possession. Such an approach on the facts of the present case had led to their conclusions being perverse.18. A reading of the evidence of D.W.1 and D.W.2 would show that they have admitted the title of the plaintiff as well as the tenancy. D.W.1 in his evidence has deposed as follows:-“TAMIL”“Emphsis supplied)”19. D.W.2 in his evidence, even in chief-examination, has stated as follows:-“Emphsis supplied)”A reading of the above evidence would go to show that there was no intention or animus on the part of the defendants to possess the property adverse to the interest of the plaintiff trust. Neither the trial court nor the appellate court adverted to the above evidence. They conviniently ignored the evidence which would militate against their conclusions.20. The Hon'ble Supreme Court in Navaneethammal Vs. Arjuna Chetty reported in 1996 (6) SCC 166 has held that possession by the defendant after the expiry of the lease could only be permissive possession and therefore, there is no question of the defendant perfecting title by adverse possession. There is neither oral or documentary evidence to show that the defendant attempted to claim to be in possession of the property in its own right or adverse to the interest of the plaintiff at any point of time. In fact in Ex.A3, the title of the plaintiff is admitted and both D.W.1 and D.W.2 have specifically and expressely stated that they are willing to pay the rent for the suit property.21. The suit in question is based on determination of tenancy under Ex.A2. The learned Appellate Judge has found that Ex.A2 is not valid in view of Section 106 of Transfer of Property Act. The learned Appellate Judge had overlooked the fact that Section 106 of Transfer of Property Act came to be amended in 2002 and the amendment came into effect from 01.01.2003 wherein, the requirements of termination of tenancy with a specific date and the requirement of 15 days notice were dispensed with and Sub-section 3 was added which declared that a notice under Subsection 1 shall not be deemed to be invalid merely because the period mentioned therein falls short of the oeriod specified subsection 1 where the suit or proceeding filed after the expiry of the period mentioned in the subsection. The notice in question was issued on 18.09.2003 and a reply was also issued on 26.09.2003. The suit came to be filed only on 27.07.2004 that is months after the required period. The Appellate Court had overlooked the amendment of Section 106 of the Transfer of Property Act. This renders its conclusion that the notice issued under Ex.A2 is not valid notice to quit legally erroneous and unsustainable.22. Once the suit is laid on the basis of the determination of the tenancy by a notice to quit, the limitation for such suit is governed by Article 67 of the Limitation Act which runs from the date of termination of tenancy. It is not in doubt that the suit has been filed within 12 years from the date of the determination of tenancy. Even assuming that there was no such notice, the absence of notice is not fatal to the suit, since the defendant is continuing in possession after the expiry of the period of lease and is deemed to be a tenant in sufferance. The Hon'ble Supreme Court as in Sevoke Properties Ltd. Vs. West Bengal State Electricity Distribution Company Ltd. reported in (2019) 4 MLJ 278 held that if the tenant continues in possession after the expiry of the lease period, the tenant is in possession as a tenant in sufferance. In view of the above pronouncement of the Hon'ble Supreme Court, the conclusion of the learned Appellate Judge that the notice under Section 106 is defective is cannot be sustained.23. Adverting to the question of adverse possession, I have already extracted the evidence of the defendant. In both the oral and documentary evidence, the defendant had admitted its status as a tenant and had offerred to pay rents to the plaintiff that being so in the absence of any other evidence to show that the defendant had asserted a adverse right and claimed to have been in possession in denial of the title of the plaintiff, the defendant cannot claim title by adverse possession. The Hon'ble Supreme Court in Deva (Dead) through L.Rs Vs. Sajjan Kumar (Dead) by L.Rs reported in (2003) 7 SCC 481 had held that if the animus to hold the land adversely to the title of the true owner is absent mere long possession of the defendant for a period of more than 12 years without intention to possess the suit land adversely to the title of the plaintiff and to the laters knowledge cannot result into any acquisition of title by prescription. In doing so, the Hon'ble Supreme Court has observed as follows:-“9. In the above part of the deposition, the defendant admits that the dispute of encroachment concerning suit portion 70' X 20' came to his knowledge only after filing of the suit. The defendant has described suit land 70' X 20' to be part of his Survey No. 453. But all the courts have come to a concurrent finding that suit land to the extent of 70' X 20' is part of Survey No. 452 belonging to the plaintiff.10. From the deposition of the defendant, it appears that he had encircled by a compound suit land 70' X 20' by treating it to be a part of his adjoining Survey No. 453.11. The deposition extracted above, in any case, negatives the defendant's case of having prescribed title by adverse possession from the year 1940. The animus to hold the land adversely to the title of the true owner can be said to have started only when the defendant derived knowledge that his possession over the suit land had been alleged to be an act of encroachment - on plaintiff's survey number.12. The above-quoted admission contained in the defendant's deposition, does not make out a case in his favour of having acquired title by adverse possession. Mere long possession of defendant for a period of more than 12 year without intention to possess the suit land adversely to the title of the plaintiff and to latter's knowledge cannot result in acquisition of title by the defendant to the encroached suit land.13. The plaintiff's suit is not merely based on his prior possession and subsequent dispossession but also on the basis of his title to Survey No. 452. The limitation for such a suit is governed by Article 65 of the Limitation Act of 1963. The plaintiff's title over the encroached land could not get extinguished unless the defendant had prescribed title by remaining in adverse possession for a continuous period of 12 years.14. The High Court, therefore, was right in upsetting the judgments of two courts below on the question of adverse possession and limitation while granting decree of posse

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ssion in favour of the plaintiff.” In the very same judgment, the Hon'ble Supreme Court has also held that the even concurrent findings on fact could be interfered with if the Courts below have overlooked a very important piece of evidence in the nature of an admission by the defendant.24. As already pointed out, both the Courts below have not approached the issue in the proper perspective. They have concluded that the defendant had perfected title by adverse possession solely because the plaintiff has not taken any action for recovery of possession or for recovery of rents for a considerable period. That by itself cannot be a ground to conclude that the defendant has perfected title by adverse possession more so when the defendants admits having entered possession of the property as a tenant under the plaintiff.25. It will not be out of place to point out that the 1st respondent is a aidded school under the control of the Education Department of the State. The Hon'ble Supreme court in State of Haryana -Vs- Mukesh Kumar and others reported in 2011(10)SCC 404 has held that the state cannot plead adverse possession. While doing so the Hon'ble Supreme Court has observed as follows“If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country. It is indeed a very disturbing and dangerous trend. In our considered view, it must be arrested without further loss of time in the larger public interest. No Government Department, Public Undertaking, and much less the Police Department should be permitted to perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens in the manner that has been done in this case.” The action of the respondents in the case on hand is nothing but an attempt by the state to grab the lands of the appellant trust. The findings of both the trial court and the appellate court are a result of total misunderstanding of the law relating to adverse possession and as such they are liable to be set aside.26. I am of the considered opinon that the subtantial questions of law raised in the appeal have to be answered in favour of the appellant and they are answered in favour of the appellant. The second appeal is allowed, the judgment and decree of the Courts below are set aside, the suit is decreed as prayed for with costs through out. Considerring the attitude of the district administration in attempting to creat a title dispute I impose costs of RS. 1,00,000/- payable by the District Collector, Kanchipuram to the appellant trust.
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