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Secretary of State Vs. Muthukumara Pillai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1927Mad456; 101Ind.Cas.96
AppellantSecretary of State
RespondentMuthukumara Pillai
Cases ReferredKuthali Moothavar v. Kunharankutty A. I. R.
Excerpt:
- - a). the evidence both oral and documentary justifies the inference that the plaintiff and his coparceners as well as their ancestors have been in uninterrupted possession and enjoyment of the suit site with the shed thereon for over 60 years......for an injunction restraining the defendant from interfering with his peaceful enjoyment of the suit site. the case of the defendant is that the suit site forms part of natham poramboke which belongs to the government and that the plaintiff has not acquired a valid title to the suit site by adverse possession for 60 years as against the government. the lower appellate court, after a due consideration of the oral and documentary evidence in this case, has found that the plaintiff and his ancestors have been in continuous possession and enjoyment of the suit site for over 60 years and that the plaintiff has acquired an indefeasible right to the same.2. the subordinate judge has discussed the oral evidence in paragraph 4 of his judgment and taken into consideration the existence of a.....
Judgment:

Sundaram Chetty, J.

1. This appeal arises out of a suit brought by the plaintiff-respondent for a declaration of his title to a plot of land marked A in the plan which forms the middle portion measuring about 20 cents in the plot marked B C D E. F. Plaintiff's case is that he and his coparceners and their ancestors have been in absolute possession and enjoyment of this plot for over 65 years and have acquired a title to the same by adverse possession and that the Government had no right to institute eviction proceedings against him. He has also sought for an injunction restraining the defendant from interfering with his peaceful enjoyment of the suit site. The case of the defendant is that the suit site forms part of natham poramboke which belongs to the Government and that the plaintiff has not acquired a valid title to the suit site by adverse possession for 60 years as against the Government. The lower appellate Court, after a due consideration of the oral and documentary evidence in this case, has found that the plaintiff and his ancestors have been in continuous possession and enjoyment of the suit site for over 60 years and that the plaintiff has acquired an indefeasible right to the same.

2. The Subordinate Judge has discussed the oral evidence in paragraph 4 of his judgment and taken into consideration the existence of a shed on the suit site for a very long time and also the fact of the suit site having been enclosed by a. kalli fence all round and stated in paragraph 5 of his judgment that he had not the slightest hesitation in coming to the conclusion that the evidence of the plaintiff's witnesses, supported as it is by the evidence of the defendant's first witness, proved the possession of the plaintiff and his ancestors for more than 60 years. P. Ws. 2, 3 and 4 are men of advanced age who are competent to speak to the long enjoyment, That the shed on the suit site has been in existence for 60 years and more, and that the site has been enclosed all round by a kalli fence during this long period, is spoken to by P. W. 3. In that shed cattle used to be tethered and hay would be stored in it. It is admitted by D. W, 1 also that the thatched shed on the suit land was in existence when he became karnam in 1896 and that it continued to exist down to 1910. He says that the plaintiff's 'father and another were enjoying the shed. As regards the nature of the structure he says that the shed was supported on pucca beams and covered with varagu straw. In the survey plan of 1857 (Ex. D.) the land in question was numbered as 857 and the existence of a shed on it was also shown. In the account of 1858 (Ex. C) Sabapathi Pillai is mentioned as the person in occupation of the same. The plaintmentioned land with the shed thereon was treated as one of the items of family properties by the members of the plaintiff's family and divided into three shares as per the registered deed of 1884 (Ex. A). The evidence both oral and documentary justifies the inference that the plaintiff and his coparceners as well as their ancestors have been in uninterrupted possession and enjoyment of the suit site with the shed thereon for over 60 years. I have no hesitation in agreeing with the finding of the lower appellate Court on this point.

3. It is contended by the learned Government Pleader that the suit land forming part of natham poramboke as shown by unimpeachable documentary evidence, it should be deemed to be the property of the Government and the onus of proving that the acts of enjoyment are such as would constitute adverse possession in law, and that such possession has lasted for over 60 years before suit lies on the plaintiff in order to get the declaration sought for by him. As I have stated above, the plaintiff has proved continuous possession and enjoyment for over 60 years. The question now for consideration is whether the possession would amount in law to adverse possession against the Government. Reliance is placed by the learned Government Pleader on the decision in Taluk Board, Dindigul v. Venkatramier A. I. R. 1924 Mad. 197 as also the decision in Framji Cursetji v. Goculdas Madhowji [1892] 16 Bom. 338 and Chokkalinga Naicken v. Muthusami Naicken [1898] 21 Mad. 53 In the first case the kinds of user proved to have been resorted to by the villagers in a portion of the village site or natham poramboke were found to be too fugitive and patently permissive and could not be deemed to constitute adverse possession or enjoyment as of right as against the Government. In the absence of evidence of open and continuous enjoyment as of right, it was held that no right by prescription could be acquired. In Framji Cursetji v. Goculdas Madhowji [1892] 16 Bom. 338 a small piece of land which was not of use to the owner was however made use of by his neighbour in various ways without objection for more than 12 years. The question was whether such user was sufficient to constitute adverse possession. It was sought to be proved in that case that some temporary structures such as a privy and a cattle-shed, etc. were also put up on the site in order to show the nature of the possession, but the trial Judge, who heard the evidence and saw the witnesses, disbelieved the story as to the existence of these various structures. This is clear from the observations of Sir Charles Sargent, C. J., at p. 341.

4. Acts of user such as throwing rubbish on the land and placing thereon pieces of furniture, etc., were considered to be insufficient to connote adverse possession. This decision was followed in Chockalinga Naicken Muthusami Naicken (3) where the use of a small piece of land by the defendant as a back yard was considered to be insufficient to constitute adverse possession as against the owner of that site who was his own brother. It is however observed that the character of the possession would change when the defendant began to build on that site. In the case reported in Moothavar v. Kunharan Kutty A. I. R. 1922 P. C. 181 their Lordships of the Privy Council have considered this question and observed that possession should be adequate in continuity, in publicity and in extent, in order to constitute adverse possession. In the present case, the existence of a pucca thatched building on the suit site for a period of over 60 years which has been used by the plaintiff and his coparceners and openly for the purpose of tethering cattle and storing hay, etc, and the fact of the enclosure of the site by a kalli fence all round throw a flood of light on the character of the possession and enjoyment set up by the plaintiff and indicate that the enjoyment has been open and continuous and as of right. The acts of user proved in the cases referred to above by their very nature are inadequate to constitute adverse possession and therefore the present case is distinguishable from those cases. I cannot accede to the contention of the learned Government Pleader that the ingredients necessary to constitute adverse possession in law are wanting in the present case.

5. Stress has been laid on the circumstance that the Government has issued patta for some trees standing on the suit site and has levied assessment on those trees for some years past from the plaintiff. It is argued that the levy of tree tax in respect of trees standing on the suit site is an exercise of an act of user on the part of Government which would affect the exclusiveness of the plaintiff's possession. On a careful perusal of the decision of the Privy Council in Kuthali Moothavar v. Kunharankutty A. I. R. 1922 P. C. 181 I am inclined to hold that the facts established in that case have no close analogy to the circumstances of the present case. It is too much to contend that, by reason of levying assessment upon some scattered trees on the suit site, the possession of the site by the plaintiff would become what may be called mixed possession instead of exclusive possession. So far as the suit site is concerned I am of opinion that the character of the possession held by the plaintiff and his ancestors is such as would amount in law to adverse possession and that such possession has been shown to have existed for over 60 years before suit. Of course the plaintiff could have no right to the trees on the site and to make this point clear, I would confirm the decree of the lower appellate Court with this qualification, namely that the plaintiff is not entitled to the trees standing on the suit site except under the tree patta granted to him by the Government. The appellant should pay the costs of the respondent in this appeal. Three months time is allowed for payment.


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