Anandaraj vs. Neelayadakshi

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated:- 06.08.2014

Coram:

The Hon'ble Mr. Justice T.RAJA

Second Appeal No.787 of 2012

1.Anandaraj

2.Muniappan

3.Ramkumar

4.Muniammal

5.Nallammal

6.Sulochana

7.Anjala

8.Lakshmi ...Appellants/Defendants

Neelayadakshi ...Respondent/Plaintiff

Second Appeal filed under Section 100 CPC., as against the judgment and decree, dated 28.02.2011, passed by the Additional District Judge, Fast Track Court No.1, Poonamallee, in A.S.No.41 of 2009, confirming the judgment and decree, dated 29.11.2008, passed in O.S.No.106 of 1999, by the Subordinate Judge, Poonamallee.

For Appellants : Mr.R.Bharathkumar

vs.

For Respondent : Mr.G.Dilipkumar

J U D G M E N T

The defendants in O.S.No.106 of 1999 on the file of the Subordinate Judge, Poonamallee, are the appellants, and the respondent was the plaintiff before the trial Court. The plaintiff/respondent herein filed a suit with a following prayer;

i. to declare the title of the plaintiff in the suit property; ii. to direct the defendants 1 and 2 to remove the superstructures thereon and deliver vacant possession of the suit property to the plaintiff ;

iii. to direct an enquiry into the

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question of future mesne profits from the date of plaint till the date of delivery of vacant possession or for 3 years from the date of decree whichever is earlier as contemplated under Order 20 Rule 12 CPC;

The suit was decreed by judgment and decree dated 29.11.2008, in O.S.No.106 of 1999, on the file of the Subordinate Judge, Poonamallee, and on appeal, the same was confirmed by the learned Additional District Judge, Fast Track Court No.1, Poonamallee, in A.S.No.41 of 2009, dated 28.02.2011. Aggrieved by the concurrent findings of the Courts below, the present second appeal has been filed. This Court, at the time of admission, framed the following substantial questions of law:

"i. Whether the judgment and decree of the Courts below is correct and justified in not framing an issue without discussion and finding regarding the defendants' entitlement of benefits under Section 51 of the Transfer of Property Act on the face of admission of plaintiff?

ii. Whether the judgment and decree of the Courts below are correct and justified when the plaintiff filed the suit 8 years after the cause of action arose for removing the encroachment and is the plaintiff acquiesced in the act of encroachment?

iii. When the First Appellate Court is bound to render judgment in accordance with Section 96 read with Order 41 Rule 31 of the Code of Civil Procedure, when the impugned judgment of the First Appellate Court rendered in violation

of the said provisions, is sustainable in law?" In this second appeal, the parties are referred according to their litigative status before the trial Court for the purpose of convenience.

2. Learned counsel appearing for the appellants / defendants submitted that the suit property is situated in S.No.628/2 of Poomphzhil Nagar, Kovilpathagai and that land is a poramboke land. The defendants have been possession and enjoyment of the said property from 1975 onwards, which has been fortified by the revenue authorities. While the first defendant occupied the property bearing Door No.13, Anna Street, Poompozhil Nagar, the second defendant occupied the property bearing Door No.12, Anna Street, Poomphozhil Nagar. While they were in occupation, they constructed pucca superstructures and for which, they have been paying the property tax without any default. Though the defendants claimed the property in S.No.628/2, the suit property is in S.No.630/16, hence, the plaintiff, by wrongly identifying the property, is trying to dispossess the defendants from their property, therefore, he pleaded, the plaintiff is not entitled for any declaration as prayed for.

3. Learned counsel further contended that if the suit property is found to be in Survey No.630/16, the defendants are entitled to get the benefits under the Transfer of Property Act, as they are in possession of their respective portion for long years and they have also put up pucca superstructures with the knowledge of the plaintiff, but, the Courts below have failed to frame an issue regarding the defendants' entitlement of benefits under Section 51 of the Transfer of Property Act, therefore, the failure of the Courts below in not discussing about this aspect would vitiate the judgments and decrees passed by them. It is further contended that after the judgment and decree of the learned trial Court, on appeal, learned first appellate Court ought to have framed a specific issue for determining the decision as per Order 41 Rule 31, but, as the said exercise has not been done by the learned first appellate Court, the repetition of the same reasoning given by the trial Court, will not satisfy the requirement as adumbrated in Order 41 Rule 31 of CPC.

4. Further, learned counsel for the appellants contended that even in the year 1991 itself, the plaintiff had knowledge about the defendants' occupation of the suit property, therefore, the cause of action for filing of the suit for removing the alleged encroachment arose in the year 1991, however, the plaintiff, after a lapse of 8 years, filed a suit, therefore, he is dis-entitled to the Court's discretionary relief of mandatory injunction for removal of encroachment. He further submitted that as bonafide holders of the suit property, the defendants made lot of improvements in the suit property, therefore, they are entitled for the benefits under Section 51 of the Transfer of Property Act, which states that a transferee of immovable property making any improvement therein, believing in good faith that he is absolutely entitled thereto, and he subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to him or to purchase his interest in the property at the then market value thereof. With this, he contended that the defendants are entitled to get at least mesne profits for the superstructures put up in the property in question.

With these submissions, he prayed for setting aside the judgments and decrees passed by the Courts below.

5. Per contra, learned counsel for the respondent straight away brought to the notice of this Court an admission made by the defendants/appellants in paragraph 6 of written statement filed before the trail Court, wherein it is admitted categorically that they trespassed into the property and constructed the house and they were periodically repairing the houses, therefore, he contended,

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since they themselves admitted that they trespassed into the property, they have no locus-standi to claim the benefit under Section 51 of the Transfer of Property Act.

6. Learned counsel for the respondent further contended that the plaintiff purchased the suit property from M/s.Poonga and Company on 07.05.1965 and after purchasing the suit property, he fenced on all four sides of the plot and continued to remain in possession. Whileso, in the year 1999, the defendants filed a suit in O.S.Nos.1381 and 1382 of 1991 for permanent injunction, but, the said suits were dismissed, thereafter, the defendants trespassed into the suit property. He further submitted that the defendants and the then VAO have colluded and conspired among themselves to deprive the plaintiff's valuable right and created false and fabricated documents suggesting that the suit property is a poramboke land, hence, the plaintiff was constrained to file a suit for declaration of plaintiff's title to the suit property and recovery of possession, after removal of the superstructures of the defendants and future mesne profits. With these submissions, he prayed for dismissal of the second appeal.

7. Heard the learned counsel appearing on either side and perused the materials available on record.

8. While answering the first substantial question of law, as rightly pointed by the learned counsel for the respondent, the provision of Section 51 of the Transfer of Property Act provides the value of mesne on the superstructure put up by the transferee/defendants, in my considered view, the same cannot be espoused for the reason that the defendants themselves have admitted in their written statement filed before the trial Court that they are trespassers of the suit property, therefore, after trespassing into the suit property, it is not open to them to say that they are entitled to have value for the superstructures put up by them, since the mesne profits available only to the bonafide holders as adumbrated in Section 51 of the Transfer of Property Act. Accordingly, the first substantial question of law is answered against the defendants/appellants herein.

9. Further, it is also pertinent to note that, earlier, the defendants have filed two suits i.e. in O.S.Nos.1381 and 1382 of 1991, for permanent injunction against the plaintiff, but, the same were also dismissed on 16.10.1998, and after the dismissal of the said suits, the present suit came to be filed on 03.02.1999, therefore, the contention of the appellants that there was a huge delay of 8 years after the cause of action arose for removing the encroachment, is far from acceptance, inasmuch as both the parties to the suit have already filed a suit as stated above and after the dismissal of the said suits, admittedly, the defendants did not

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prefer any appeal nor came forward to surrender the possession. After waiting for a reasonable time, the plaintiff was constrained to file the present suit for declaration of title of the suit property and for recovery of possession after removal of the superstructures put up by the defendants and future mesne profits. Therefore, this Court finds no delay in filing the suit. Accordingly, the second substantial question of law is answered against the defendants/appellants herein.

10. In regard to the contention of the learned counsel for the appellants that the learned first appellate Court has committed a serious violation of Order 41 Rule 31 of CPC, it may be mentioned that the learned trial Court specifically answered two questions, eloborately namely, whether the plaintiff is entitled to claim adverse possession, as a result, whether he is entitled to get any declaration in her favour. It is true that as answered by the learned trial Court, learned first appellate Court has not framed any issues to reconsider the findings of the learned trial Court so as to give its seal of approval. However, learned first appellate Court, while going into the question of possession, perused the documents produced by the defendants such as, Ex.B1-patta relating to the year 1992, Ex.B2-demand for house property tax relating to the year 1995, Ex.B3-receipts of house tax property tax for the period from 1995 to 1996, and Exs.B4 to B6-receipts of municipal tax, dated 18.10.2007, and on perusing such documents, the learned first appellate Court came to the conclusion that the defendants have not submitted any document to prove that they are in possession from the year 1975 to 1991. Therefore, by rightly answering the fundamental principles of adverse possession, which is not in favour of the defendants, have ultimately affirmed the jdugment of the trail Court, therefore, this Court is not able to find any infirmity or flaw in the judgments of the Courts below. Accordingly, answering the last substantial question of law against the defendants/appellants herein, this Court is inclined to dismiss the second appeal and accordingly, it stands dismissed, by confirming the judgments and decrees of the Courts below. The defendants/appellants herein are granted two months time to vacate and handover the possession of the suit property to the plaintiff/respondent herein from the date of receipt of a copy of this judgment. No Costs.

Assistant Registrar(T&P)

Sd/-

//True Copy//

Sub Assistant Registrar

rkm