PETITIONER:
NAVANEETHAMMAL
Vs.
RESPONDENT:
ARJUNA CHETTY
DATE OF JUDGMENT: 06/09/1996
BENCH:
N.P. SINGH, K. VENKATASWAMI
ACT
HEADNOTE
JUDGMENT
JUDGMENT
The plaintiff Who filed a suit on 13.6.1962 for declaration of her title to the suit property and for recovery of possession is the appellant herein. The suit property is an extent of 1.13 acre out of 3.39 acres in Survey No. 330/2 in Ulli Village, Gudiyatham Taluk. North Arcot District, Tamil Nadu. It was purchased by the plaintiff under registered sale deed dated 21.3.1957 from one Mohd. Ghouse. The respondent herein who was the defendent in the suit admittedly was let in to possession of the suit property along with the balance of above-mentioned Survey 330/2 as a tenant under a registered Lease deed dated 1.4.1935 The vendor of the plaintiff after the sale issued a notice to the defendant on 16.4.1957 intimating the fact of sale to the plaiantiff. The defendant in his reply dated 27.4.1957 denied his status as lessee and his liability to pay rent. He set up title in himself to the suit property. The plaintiff on his part issued a notice on 10.5.1957 intimating the defendant about her purchase and calling upon him to pay rent in future as a lessee. As defendant set up title in himself, the plaintiff was obliged to file the suit as stated above.
The suit was resisted on the ground resisted on the ground that after the expiry of the registered lease, he surrendered possession of the suit property to the then landlord and thereafter, since it was under nobody’s occupation, he entered possession in his own right and not as a lessee and he has not even paid rent to anybody after the after the expiration of lease. Further it was alleged that he has plaintiff’s suit for recovery of possession was barred by limitation. The Trial Court framed as many as six issues and after examining three witnesses on the side of the plaintiff and five witnesses on the side of the defendant and after perusing 13 documents filed on the side of the plaintiff and 21 documents filed on the side of the defendant, it found that the plea of surrender was not established and defendant did not prescribe title by adverse possession. Accepting the case of the plaintiff, the trial court decreed the suit declaring that the plaintiff was entitled to the suit property and directed the defendant to surrender possession without any let or hindrance.
The defendant aggrieved by the decree against him preferred an appeal to the learned Subordinate Judge, Tirupattur. Unfortunately, on account of certain lapses, The High Court was compelled to remand the matter to the Appellate Court on three occasions Finally the First Appellate court by it s detailed judgment on 9.9.1976 confirmed the decree of the Trial Court and dismissed the appeal preferred by the defendant.
Still aggrieved, the defendant preferred second appeal No. 1801/76 in the Madras High Court. The learned Single Judge of the Madras High Court found that the Court below failed to come to correct conclusion on the basis of the evidence both oral and documentary placed before them and in a way gone into the evidence onceover and reversed the findings rendered by the Court below and consequently allowed the Second Appeal. dismissed the suit filed by the plaintiff.
Aggrieved by the judgment of the High Court, the present appeal has been filed by the plaintiff appellant by Special Leave.
Mr. K. Rajendra Chowdary, learned counsel appearing for the appellant submitted that the High Court exceeded its jurisdiction under Section 100 CPC in reversing the concurrent findings of the Courts below. He also submitted that the High Court went wrong in placing the onus of proof regarding the character of possession of the suit land by the defendant, on the plaintiff when admittedly the defendant was let into the possession as a tenant under a registered lease deed of the year 1935. The High Court, according to the learned counsel ought not to have discussed the issue of adverse possession with reference to Article 139 of the old Limitation Act, 1908 as no such plea was taken in the written statement nor any issue was framed concerning that. He further invited our attention to the well founded reasoning and the concurrent findings supported by evidence, of the lower Appellate Court which did not call for any interference by the High Court while exercising the jurisdiction under section 100 C.P.C.
Mr. R. Sundarvardhan, Sr. Counsel appearing for the defendant-respondent strongly supported the judgment of the High Court mainly on the basis of Article 139 of the old Limitation Act which corresponds to Article 67 of the new Limitation Act, 1963. According to the learned Sr. Counsel, it is an admitted fact that after the expiry of the lease in the year 1938, the defendant never paid any rent for his continued possession in the suit property and in the absence of any exercise of ownership by the landlord for a continuous period of over twelve years, the defendant prescribed title by adverse possession. He also placed reliance on the fact of payment of kists (land revenue) to the suit land by the defendant. He submitted that the High Court has given good reasons for interfering under section 100 CPC stating that the findings rendered by the Court below were not based on materials to sustain those findings and therefore, it must be taken that the findings were rendered by court below based on no evidence. According to the learned counsel on the admitted facts of this case, namely, that neither the lessor nor his legal representative having not claimed any rent continuously for a period of twelve years after the expiry of the lease, Section 116 of the Transfer of Property Act would not come to the aid of the lessor or his successors in interest when the tenant invokes the aid of Article 139 of the old Limitation Act. He wants the Court to look into Article 139 of the old Limitation Act alone for counting the period of limitation imply from the expiry of the date of the lease ignoring the hard fact that the defendant continued after the expiry of lease either as tenant holding over or as a tenant by sufferance.
Mr. Rajendra Chowdary, learned counsel for the appellant in reply submitted that in terms of the registered lease deed, the lessee/defendant/respondent herein was bound to pay the kists for the suit land and therefore, the payment of kists after the expiry of the lease will not make any difference in the case. He also contended that the defendant for the first time set up hostile title in himself only on 27.4.1957 in his reply notice. The suit filed in 1962 is well within time.
We have considered the rival submission.
Before discussing the merits of respective rival submission, it is necessary to bear in mind that the case set up by the defendant in the Trial Court was prescription of title by adverse possession after surrendering the suit land and again re-entering the same. No plea contending that the suit was barred under Article 139 of the old Limitation Act was taken by the defendant in the trial court. Therefore, there was no necessity for framing any issue or letting in oral evidence on that aspect. This aspect assumes importance in considering the evidence.
This Court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciating the evidence just to replace the findings for the lower courts.
Let us see whether the High Court on the facts of his case has exceeded its jurisdiction in reversing the findings of the lower Appellate Court by re-appreciating the evidence.
Before the Trial Court, the crucial issue was regarding adverse possession. On that issue, the Trial Court found that as the tenant/defendant came into possession of the land only in pursuance of the lease deed, his possession was merely a permissive one. It was further found that there was no evidence before the Trial Court to show that prior to the date of Exbt. A-6 (reply by defendant) he had never claimed independent title to the suit property and had brought that animus to the notices to the land-lord or the successors in title. The Trial Court also noticed an important fact and observed as follows:
"In the writte statement, it is
stated that after the expiry of the
lease period mentioned under Exbt.
A-3, he had surrendered possession
of the land and that he again got
the possession of the land in his
own independant right and from that
date onwards, he has been in
possession of the land continuously
uninterruptedly as the owner of the
lands. This claim has been given a
go-by by him in his deposition."
The Trial Court also found that in as much as the defendant asserted his independant right in the land in himself only under Ext. A-6 dated 27.4.1957, his possession was not adverse to the owners of the land as the suit came to be filed within five years thereafter.
The First Appellate Court framed the question for consideration on ramand as follows:
"Whether, having regard to the
evidence, oral or documentary and
the probabilities of the case,
there could be an inference of
implied assent by the land-lord to
the continuance in possession by
the tenant after the termination of
the term under Exbt. A-3".
In discussing the oral evidence, the first appellate court held as follows:
"Before advertising to the
arguments of counsel appear for
both parties. I would like to refer
to the oral evidence in this case,
plaintiff’s vendor Mohamed Ghouse
Sahib was examined as P.W.I. He is
a retired Post Master and is aged
about 70 years. His definite
testimony is that after the demise
of Samad Sahib, he (P.W.I) and
Khader Sahib were collecting rents,
that the there were rent arrears
to the extent of Rs.200/- or
Rs.250/-, that they gave notice to
the defendant and that after
receipt of the notice, the
defendant was paying some amounts
in instalments. he denied that
after the expiry of the lease
period in Ex. A-3, the defendant
surrendered possession of the
property and that because the
property remained unoccupied, the
defendant trespassed upon the lands
As rightly pointed out by the
learned counsel for the plaintiff,
the evidence of P.W. 1 with regard
to the collection of rents by him
and Khader Sahib and payment of
some amount by the defendant in
instalment was not challenged at
all in cross-examination. In this
connection. I may point out the
admission of the defendant as D.W.2
that there is no enmity between him
and P.W.1. In the absence of any
motive. I do not understand as to
why P.W.1 who is a respectable
witness should come and make false
statement in Court so far as this
aspect of the case is concerned. I
see no valid reason to disbelieve
him in this respect."
Again in para 12, the lower Appellate Court held as follows:
"No doubt, the defendant as D.W.2
would say that there is enmity
between him and P.W.2. But on this
ground alone, the evidence of P.W.2
that he had seen P.W.1 and Khader
Sahib at the village when coming to
collect rents(elicited during
cross-examination) cannot be
rejected as false. His evidence
when considered alongwith the other
circumstance in this case appears
to me quite probable and
acceptable. P.W.3, Veeraraghava
Pillai is the husband of the
plaintiff and karnam of Ulli
village for more than 30 years. His
definite testimony is that the
defendant was a tenant holding
over of this land."
On a perusal of the lower Appellate Court judgment, we find hat findings rendered by the lower Appellate court were very well based on materials placed before it and the contrary conclusion reached by the High Court is not sustainable. The lower Appellate court in its judgment has appreciated all relevant oral and documentary evidence and observed as follows:
"On the side of the defendant, we
have the evidence of D.Ws. 1 to 5
of them D.W.1 is the Hand Writing
Expert He was examined with
reference to Ex. A-4. His evidence
is not relevant for our present
limited enquiry. D.W. 3 Ramakrishan
is a resident of Ulli village.
D.W.4 Mahadevan is a resident of
Gopampatti. D.W. 5 Karunagaran is a
contractor by profession at
Gudiyatham. There three witnesses
claim to own lands near the suit
property. They would say that the
defendant has been in possession
and enjoyment of the suit land for
the last 32 to 35 years. But they
are not in a position to say as to
in what capacity the defendant
entered into possession of this
property. Their evidence that the
defendant is in continuous
possession and enjoyment of the
suit lands is of no significance
because the admitted case of the
plaintiff is that the defendant is
in possession from 1935 but as a
tenant holding over. The evidence
of defendant as D.W.2 would
certainly throw some light in
deciding the issue before us. For
better appreciation I would prefer
to extract the relevant on by the
plaintiff.
"One Sahib leased out the property
to me for three years under a
registered lease deed. I cultivated
the land for tow years. I the third
year the Sahib took me to P.W.3’s
house. My father accompanied me.
P.W.3’s father told me that the
Sahib would not come thereafter
and the lease deed was cancelled
and that thereafter I could enjoy
the land and I need not worry since
the former’s son. P.W.3 was the
village karnam. Thereafter, I was
enjoying the land without any
interruption. The lessor, my
father and P.W. 3’s father went to
P.W.3 fathers’s house. At that time
P.W.3 was the village karnam. I was
sent for about for or five hours
later. P.W. 3 was not present at
the time. His father told that
they had decided that the lease
period had expired and that
thereafter I could enjoy the land
as my own without paying rent to
anybody and I should pay the kists
my self. At that time, including me
only four ’ persons were present.
The Sahib was then present. The
incident took place at the
beginning of the third lease year.
I was not asked to give any amount
in pursuance of the decision. The
entire land is wet land. Even at
that time the land was worth two
thousand rupees. I so not know
whether my father gave any amount
in pursuance of the decision. I
did not ask him about it. I did
not give the rent for the third
year. From the date of the
registered lease deed I am in
continuous possession and
enjoyment of the land. Due to
forget fulness I have not stated
the above incident in my written
statement and also to my counsel
who gave the reply notice: I did
not tell him that I had surrendered
possession of the land and
thereafter the land was in nobody’s
possession for some time and that I
again got into possession of the
land"
Again in paragraph 18, the learned Subordinate Judge held as follows:
" As already stated, in the reply
notice Ex. A-6 the defendant is
silent about his induction into
possession of the suit property at
any time as a lessee, any alleged
surrender or his occupation finding
the property lying unoccupied. In
his written statement his specific
case is that at the end of term
under Ex.A-3 he surrendered
possession of the suit property and
that thereafter he was in
possession of the property in his
own right. A third case was put
forward during the trial through
the mouth of the defendant as
D.W.2, I have already adverted to
his evidence in this respect. That
would show that even at the end of
the second year i.e. in the year
1937 and before the commencement of
the third year, he was taken to
P.W. 3’s father’s house by some
Sahib that his father was also
present and that he was informed
that the lease was cancelled and
that he could enjoy the land as he
liked. It has to be noted that
even according to D.W.2 this
property was worth Rs.2000/- at
that time. It is highly unlikely
that no prudent man would have
given up his right in such a
valuable property in favour of
another person without any
consideration. It is not the case
of the defendant that he had done
some services to the family of the
original owners of this property or
that he paid some consideration
towards the value of this property
and that because of such
consideration, he was orally asked
by the Sahib to enjoy the land as
his own. When in the year 1935,
the defendant and Samad Sahib have
taken the precaution of getting
lease deed registered, it is
unlikely that the defendant would
have failed to obtain something in
writing when as alleged by him
(D.W.2. the Sahib asked him to
enjoy the land as he liked saying
that the lease was cancelled. As
already stated the case set out by
the defendant in his reply notice
is that the property remained
unoccupied and that so he entered
into possession and occupied it.
Having regard to these facts and
having regard to the evidence of
P.Ws. 1 to 3 with regard to the
collection of rents and the
property as a tenant and also
having regard to the probabilities
and circumstances of this case, I
find no difficulty in coming to the
conclusion that there should have
been an implied assent by the
landlord to the continuance in
possession by the defendant after
termination of the term under Ex.
A-3".
In the light of these findings of the courts below, the High Court on re-appreciation of evidence found as follows:
"Thus there is nothing as and by
way of evidence which can be taken
to support the contention of the
respondent that there was a tenancy
after the expiry of the original
tenancy in the year 1938"
"I have discussed the facts to show
that there are no materials to
support the findings of the lower
Appellate Court that there was a
continuation of tenancy after the
expiry of the original lease."
"That there must be some act which
evidence the lessor being agreeable
to the tenant being in possession
of the property leased so as to
infer an assent. In the absence of
such a conduct in the present, it
is not possible to draw the
inference that there was any assent
on the part of the plaintiff to the
defendant continuing in possession
of the property."
In our considered view the lower Appellate Court has fairly appreciated the evidence in the above background and has reached the conclusion that the suit was not barred by Limitation. Even assuming that another view is possible on a re-appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the First Appellate Court was based on no material.
Article 139 of the old Limitation Act reads as follows: Article 139 ------------------------------------------------------ Description of Period of Time from which suit limitation period begins to
run ------------------------------------------------------ By a landlord Twelve years When a tenancy is to recover determined. possession from a tenant ------------------------------------------------------
The date on which the tenancy is determined will be the date from which the period of limitation would begin to run for the purpose of Article 139 of the old Limitation Act.
One mode of determining tenancy under Transfer of Property Act is by way of surrender by the tenant. We have seen on facts that an attempt was made by the defendantrespondent that he had surrendered the suit property after the expiry of the lease and thereafter re-entered the suit land and continued in possession in his own right. However, this case was not accepted by the trial court as well as by the appellate court for well-founded reasons as noticed above. That being the position the possession by the defendant on the fact as found by the First Appellate Court, in this case, after the expiry of the lease further continuance was only permissive and will not give cause for prescribing title by adverse possession. Further, for the first time, while replying to the notice by the vendor of the plaintiff, the defendant openly set up a hostile title and the suit having been filed within five years therefrom is not barred by limitation.
In the circumstances, we are satisfied that the High Court was not justified in interfering with the judgments of the courts below. Consequently, the appeal is allowed. There will be no order as to costs.