TMI Blog2007 (12) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... year 1961 and who was claimed to be in possession and enjoyment of the suit property wherein she had put up a thatched shed and was residing for more than 30 years. It is claimed that after Karuapyee her foster son who was none else but his sister's son obtained the possession and enjoyed the said suit property. Before this sale deed dated 10.10.1980, he had executed a Mortgage Deed in respect of the suit property in favour of the plaintiff Muthuswami Gounder dated 15.6.1980. It was further claimed that Doraiswamy was permitted to occupy the suit property as tenant on monthly rent of ₹ 50/-. It was further asserted that defendants 1 to 7, i.e., the present appellants had also wanted to purchase the property from Doraiswamy but having failed, they were falsely claiming certain rights in the suit property by creating some false documents and that they had no right, title or possession. It was claimed that the plaintiff and his predecessor, namely, Doraiswamy had acquired the title by adverse possession for more than 60 years. It is on this basis that Muthuswamy Gounder claimed a decree for declaration of his ownership as also for the injunction against the present appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who were the legal heirs of Doraiswamy. It must be stated here that Doraiswamy had by then expired. This was also a suit for declaration of title of Dharamrajan. In this suit it was claimed that the property originally belonged to the father of Krishnasamy Iyer, Kandsamy Iyer and the father of one Vengugopala Iyer. In the family arrangement the suit property was allotted to the father of Kandasamy Iyer and Venkatasubramania Iyer, the son of Krishnasamy Iyer and the first appellant Dharamarajan had purchased the suit property from Venkataramana Iyer on 15.7.1990 who was none else but the son of Krishnaswami Iyer, both of whom were the heirs of Kandasamy Iyer. An injunction was also claimed against the defendants. Valliammal and Palaniammal firstly claimed that one suit was already filed against Doraiswamy being OS No.531 of 1981 and the said suit was dismissed. Doraiswamy had expired on 18.5.1981 and since Valliammal and Palaniammal were the legal heirs of Doraiswamy, the suit was not maintainable against them. Both these ladies claimed that they were in possession of the suit property as the tenants under Muthuswami Gounder, the plaintiff in OS No.555 of 1981. They denied the owne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court had re-appreciated the evidence and had upset the well considered judgment of the appellate court. Secondly, the learned counsel urged that an entirely new case which was not even pleaded by the plaintiff in Suit No.555 of 1981 was found out by the High Court and on that basis chose to decree the said suit which was dismissed by the appellate court. It was further pointed out that the sole plea raised in the plaint was that the plaintiff had derived his title vide a Sale Deed from Doraiswamy who himself had continued to be in adverse possession after Karupayee Ammal. In short the basis of the plea of plaintiff was his valid title. Learned counsel was at pains to point out that the case regarding adverse possession was very rightly held not proved by the appellate court and indeed there could not be any adverse possession since the adverse nature of possession was not proved at all. Learned counsel pointed out that the plea regarding adverse possession was a confused plea inasmuch as it was not even pleaded as to against whom was the possession of Karupayee Ammal and Doraiswamy adverse. Learned counsel, therefore, pleaded that once that plea was rejected, there was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff. Karupayee Ammal's possession, even if presumed to be in a valid possession in law, could not be said to be adverse possession as throughout it was the case of the appellant Dharmarajan that it was a permissive possession and that she was permitted to stay on the land belonging to the members of the Iyer family. Secondly it has nowhere come as to against whom was her possession adverse. Was it adverse against the Government or against the Iyer family? In order to substantiate the plea of adverse possession, the possession has to be open and adverse to the owner of the property in question. The evidence did not show this openness and adverse nature because it is not even certain as to against whom the adverse possession was pleaded on the part of Karupayee Ammal. Further even the legal relationship of Doraiswamy and Karupayee Ammal is not pleaded or proved. All that is pleaded is that after Karupayee Ammal's demise Doraiswamy as her foster son continued in the thatched shed allegedly constructed by Karupayee Ammal. There was no question of the tacking of possession as there is ample evidence on record to suggest that Doraiswamy also was in the service of Iyer family and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that Karupayee Ammal was in possession of the land for 50 years or so and thereafter her foster son Doraiswamy continued and, therefore, the possession of Karupayee Ammal and Doraiswamy could be tacked together and that the appellate court was wrong in treating the possession of Karupayee Ammal and subsequently by Doraiswamy as distinct and separate. All these findings are of no use whatsoever for the simple reason that the theory of adverse possession had already failed. Even the High Court has observed that it is not as if the plaintiff is claiming the right only by adverse possession. Further the High Court found out that the property was a village Natham and, therefore, the person who first occupied the same and was residing therein is entitled to title. The High Court has, from nowhere, found out that it was an unoccupied Natham and Karupayee Ammal has entered the possession and was residing there by putting up a house and fencing the property and that she would be entitled to declaration of her occupancy rights or title because the Government is not claiming it as a poramboke or its vesting with the Government. We fail to follow any basis for this finding of the High Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o see is that there is a mention of the property in the suit in this litigation. The High Court ultimately gave a finding that the suit property was not the subject matter as it was lying South of Kattabomman Street and this property was not, therefore, partitioned in the said suit. In its enthusiasm the High Court has given a finding that the house was extended further south to the East West Kattabomman Street and, therefore, the vendors of the defendants (Dharamrajan and others) had not chosen to deal with suit property even as early as 1957. Ultimately the High Court has given a finding that the suit property was not the subject matter of Exhibit A-11 partitioned in the year 1957. 11. It was pointed out by the learned counsel appearing on behalf of the appellant that there is a definite mention in Suit OS No.49 of 1963 of the suit property. As if this was not sufficient, the learned counsel has also pointed out that the suit property was registered in the name of Venugopala Iyer in Kavundapadi Panchayat and he has also paid house tax to the Panchayat for the suit property. There is a receipt (Exhibit B-3) on record of the house tax paid by the Iyer family which is long prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. On the other hand the appellate court has rightly relied on the tax receipts and the entry in the name of Venugopala Iyer in respect of the suit land in Survey No.324 Ward No.4. The appellte court had also correctly held that the suit property was mentioned in Exhibits B-6 and B-7 as also in the decree in OS 49 of 1963 in Item No.1 of Schedule C property which was not divided. All the lengthy discussion by the High Court over that issue was not only uncalled for but the High Court has gravely erred in setting aside the finding of the appellate court that the suit property was the property of Item No.I of Schedule C in Exhibit B-7. 14. This Court has, time and again, explained the scope of Section 100 CPC, more particularly in Gurudev Kaur Others vs. Kaki and Others [(2007) 1 SCC 546] where it was held that even before the 1976 amendment the scope of such interference under Section 100 drastically curtailed and narrowed down. It is specifically held that the High Court would have jurisdiction of interfering only in a case where substantial questions of law are involved and those questions are clearly formulated in the Memorandum of Appeal. We have already shown that the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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