1. The plaintiff is the appellant. The suit is for eviction and possession of a small piece of land on which-the defendant has raised a wall. The plaintiff is a church represented by its Parish Priest. The defendant is the owner of the site and the building thereon on the South-western side of the church and its compound.
She got it from her father under a settlement deed, Ex. A-1, dated 10-1-1952. The father got it by a purchase from one Ami Narayanaswami Mudaliar under Ex. B-8, dated 23-11-1933. The original owner was one Agatheeswara Mudaliar and it was from him Ami Narayanaswami Mudaliar bought it in November 1933. The church and the defendant's building are all in Marshalls Road. The church property is comprised in T. S. No. 1423 and 1422/1. The defendant's building is comprised in T. S. No. 1422/2.
During the lifetime of the defendant's father he applied to the Corporation for sanction to demolish his building and to reconstruct on the same plot. Before the sanction he died. After the sanction the defendant demolished, to begin with, a wall on the eastern side which was clearly beyond the tap and the flush-out of the defendant's house and reconstructed it.
There is dispute as to when it was demolished and reconstructed. The plaintiff alleges that it was in November 1952 while the defendant asserts that was in April 1952. As the lower Court rightly finds it is immaterial as to when it was demolished, though the lower Court seems to accept the case of the defendant that it was built in April 1952. The plaintiff claims the space over which this wall has been built as his own. The plot is between 2 feet and 3 feet in width.
It is not disputed that there was a wall in the same place and it was that wall that was demolished by the defendant and a new one built. It is not also disputed that in the same place the present wall has been raised. The old wall and the space over which it stood are claimed by the plaintiff as his while the defendant claims title to the same by adverse possession.
2. The real question in this case is as to whom do this wall and the space beneath it belong and who was in possession of them.
3. At the time when the wall was demolished, the case of the plaintiff is that the defendant took the permission to demolish and reconstruct the wall at the defendant's cost. The defendant denies it and says that she wanted permission not to demolish and build the wall but to store her materials in the open space east of the wall. The lower Court in its appreciation of the evidence let in on both sides has rejected the evidence of the plaintiff's witnesses and has accepted the evidence of the defendant who has given evidence as D. W. 6. The learned Judge says:
'I find it difficult to accept the mere oral evidence of the plaintiff's witnesses whom I consider as partisan witnesses as regards the ownership or user of the wall by the Church. They struck me as so zealous in the interest of the church as to be prepared to go to any extent to swear for it if it could help the institution.'
Then referring to the defendant's evidence the learned Judge says:
'I prefer to accept the evidence of the defendant which had, in my opinion, the ring of truth about it.'
The appreciation of the evidence by the lower court is criticised and I am asked to take a different view of the evidence. Though it is open in first appeal to take a different view, still this Court has to give weight to the appreciation by the lower Court and unless it is perverse this Court will not differ from the appreciation by the lower Court.
After going through the evidence I am not prepared to say that the appreciation of the evidence y the lower Court is either perverse or such as to call for interference by this Court. If the evidence of D. W. 6, the defendant, is accepted then the permission that was sought was not for demolishing and reconstructing the wall but to store the materials in the open space cast of the wall.
If the plaintiff's case that the permission was sought even for demolishing the building is rejected and if the defendant's evidence is accepted, then, it follows that there was no protest by the plaintiff when the defendant demolished and reconstructed the wall. In fact, there could not have been any protest as the very discovery of the encroachment was only after obtaining the patta, Ex. A-4.
Till Ex. A-4 was obtained, the plaintiff also seems to have thought that the wall belonged to the defendant. The main objection of the plaintiff before the patta was obtained was to the defendant putting up the two storeyed building because the plaintiff and the parishioners of the church were of the opinion that the building would
'constitute a nuisance to the church and especially as the defendant was not entitled to any natural right whatsoever like air and light.'
The further objection is contained in para. 8 of the plaint. It is these two objections that were in the mind of the plaintiff and the encroachment was never present to them till the copy of the patta, Ex. A-4 was obtained and the measurements were taken. The defendant says that she was asked to give the building to the church as a charity or at least to sell it as a cheap price but she refused. It is thereafter that troubles arose between the two parties.
4. Now as regards the title to the space on which the old wall stood and the present wall is built, it seems to me that it undoubtedly vests in the plaintiff. Exhibit A-4 and the Commissioner's report will show how the plaintiff is entitled to 161 feet east to west on the southern side but that it is now only 159, if the wall is assigned to the defendant. This is further strengthened by the measurements given in the documents of title belonging to the defendant.
The settlement deed, Ex. A-1 dated 10-1-1952, the sale deed, Ex. B-8 by Arni Mudaliar to the father of the defendant, all give the measurements of the building of the defendant as 1280 sq. ft. (i.e., 40/32). Exhibit B-5 a proclamation of sale of this property in pursuance of the decree in O. S. No. 8/1900 also gives only 1280 sq. ft. i.e., 40 x 32 (40 east to west and 32 north to south).
Exhibit B-3 the block map maintained by the Corporation is said to correspond to Ex, A-4, which is a copy of the record in the Tahsildar's office. Though Ex. A-4 shows only 40--32 Ex. B-3 shows 42 feet east to west on the southern side. But this 42 feet is written after striking off 40. There is no knowing as to how this correction came in this document, though the evidence is that the Corporation records whatever the Tahsildar's office gives.
However, in view of Ex. A-4 and on account of the correction in Ex. B-3, I am afraid I cannot attach any weight to Ex. B-3, on which strong reliance was placed by the defendant. A consideration of these documents clearly establishes that the title to the small bit of land on which this wall is built vests in the plaintiff.
5. The next question is whether the defendant was in possession for over 12 years and has acquired title by adverse possession. It is admitted by the plaintiff that there was space between the defendant's building and the old demolished wall. According to the report of the Commissioner, the water tap and the flush-out are at a distance of half a foot and 11/2 feet in the defendant's property from the eastern wall.
From the evidence of P. W. 1 who says that there was a space of 6 feet between the compound wall and the church (here he means the present disputed wall) and the defendant's building which rested on her own wall and the report of the Commissioner which states that the distance of the tap and the flush-out from the eastern wall, the lower Court has come to the conclusion that the defendant enjoyed more than 40 feet, a space more than she was entitled to under the patta.
If there was a space between the main building and the eastern wall and if the tap and the flush-out were in that space and if the measurement of 40 feet as per the patta was only up to the wall of the building, then undoubtedly the space must have belonged to the defendant as the tap and the flush-out were there and they were separated from the open space in the church by the old wall, in which case the wall will be outside the 42 feet which does not appear to be the case of the defendant as I understand it, because it seems to me that the claim to 42 feet is inclusive of the wall.
However, the basis on which the defendant claims adverse possession is by the user of the wall and of being in possession of it for over 12 years.
6. So far as possession is concerned the plaintiff has not let in any evidence of possession. The defendant claims possession by user of it. This user consists in putting a zinc sheet which covers the flush-out near the wall in dispute. It is not merely an insertion of the sheet on the inside portion of the wall but putting it over the wall itself.
This sheet was put in 1936 when the flush-out was constructed. D. W. 3 who demolished the wall in April 1952 says that he 'took oif the zinc sheet on the wall.' This putting of the zinc sheet on the wall is contended as user in assertion of a right to the wall. There is no evidence as to whether there was any protest by the plaintiff's predecessor who was then the Parish Priest at the time when this zinc sheet was put over the wall.
Nor is there any satisfactory evidence that at the time when the flush-out was put up and when the zinc sheet was put on the wall, it was so done in assertion of the right to the wall. In the circumstances the mere putting of the zinc sheet over the wall though it is some evidence is not in my opinion sufficient to establish that the defendant did so in virtue of the possession of the wall, especially in the absence of any such evidence to that effect. As has been pointed out in -- 'Framji Cursetji v. Goculdas Madhowji', 16 Bom 338 (A), even the putting of a privy and sheds for cows on a small piece of land which is not of any immediate use to the owner would not be sufficient to give title to the land by adverse possession. I am not prepared to draw an inference from this slender piece of evidence of putting a sheet alone that the defendant was either in possession of the wall or that she exercised this right in assertion of her title.
In my opinion the question of title to this piece of land by adverse possession has not been satisfactorily made out. The net result is that the title undoubtedly vest with the plaintiff. If the suit is only for declaration of title the plaintiff in my opinion would be entitled to such a declaration but the suit is for possession as well.
As pointed out by the Full Bench in -- 'Official Receiver, East Godavari v. Chava Govindaraju AIR 1940 Mad 798 (FB) (B), in suits for ejectment where the plaintiff sues for possession of immoveable property in the occupation of another, the plaintiff cannot rest his case on title alone: Article 142, Limitation Act applies to such suits and the plaintiff must show that he has exercised rights of ownership by being in possession within 12 years of suit.
The plaintiff has, therefore, in this suit which is for eviction and possession must not only prove his title but also show and prove that he has exercised rights of ownership and that he was in possession within 12 years of suit. There is not even an allegation in the plaint about the plaintiff's possession of this piece of land at any time within 12 years prior to the suit; and there is no evidence either in support of the necessary element to be proved in such a suit.
It is therefore contended by the learned advocate for the respondent that this suit has to be dismissed in limine. Though I am generally reluctant to dismiss a suit of this nature when title has been clearly established, on the ground of absence of proof of possession within 12 years, I have no other alternative but to do so as the above decision is a decision by a Full Bench of this Court and it is binding on me.
It is regrettable that in a plaint when claiming the reliefs for possession such an important allegation should have been omitted to be mentioned and that no evidence of it has been given in support of the possession within 12 years. In any event, P. W. 1 has been the Parish Priest only from 1951. His predecessor was one Mr. Paul. He appears to have been a Parish Priest from 1936 to 1951.
This is not in evidence but on my enquiry Mr. Bhashyam stated so from the Bar and this fact is not disputed. It is further stated by Mr. Bhashyam that this Paul is quite alive, hale and healthy and is still in the City of Madras, The proper person, if any, to prove possession would be Mr. Paul and be has not been called as a witness for the plaintiff and no satisfactory explanation has been given on the appellant's side for not examining him.
The other witnesses examined on the plaintiff's side as already stated have been disbelieved. In the circumstances the plaintiff has not proved his possession within 12 years prior to the suit and according to the decision of the Full Bench which is binding on me the suit is liable to be dismissed on this point.
7. Mr. Bhashyam contended that the suit for eviction carries with it the implication of possession and the omission to mention possession in the plaint is only a technical one, and therefore it may be sent back to the lower Court for amendment of the plaint and for further evidence on that point. I am not inclined to agree with this contention to send it back for the reason that the witnesses who have spoken on the plaintiff's side have been disbelieved by the lower Court, with which I have agreed.
To send it back to allow the plaint to be amended on this point and evidence to be taken in my opinion hereafter would only open the door to perjury. I am therefore not inclined to send the case back to the lower Court for the purpose of amending the plaint and taking evidence.
8. One other point which Mr. K. Krishnaswami Aiyangar appearing for the respondent raised was that this is a fit case, if at all, for damages and not for an injunction. Though it is true that in cases where compensation could be awarded injunction need not be granted, yet it cannot he said as a matter of maxim that in all cases where there is encroachment by the defendant the plaintiff can only be compensated in damages; it would then put a premium upon eneroachers.
But in this case there is one circumstance a consideration of which favours the contention of the defendant-respondent herein; and that is this: I have already stated that at the lime of the demolition of the wall and reconstruction of it, the case of the plaintiff that the defendant obtained the permission of the plaintiff to do so had been rejected; and the case of the defendant that she sought permission only to stock the materials in the open space and not for demolishing and reconstructing the wall had been accepted.
As I nave already stated, at the time of the demolition and rebuilding of the wall there was no protest by the plaintiff-church as its very discovery of the encroachment was only after obtaining Ex. A-4, a copy of the patta. It is not as if the plaintiff was not aware of the demolition and the putting up of the wall. According to the evidence, the plaintiff was quite aware of it and at that time believed undoubtedly though erroneously that the wall was on the plot belonging to the defendant and the wall itself belonged to the defendant.
The plaintiff's failure to protest and in allowing the defendant to build a wall at the time, being under the impression that the space beneath belonged' to the defendant is a strong circumstance in favour of the defendant and in the circumstances, this is a case, if at all, more for damages rather than for injunction against the defendant. But the suit was not for damages, nor is it claimed.
Therefore, I do not think it necessary to send it back to the lower Court to assess the damages particularly in view of the fact that the suit is to be dismissed on the other point which is stated in the penultimate paragraph.
9. The suit was therefore rightly dismissed. The appeal fails and is dismissed with costs.