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PETITIONER:

NAVANEETHAMMAL

Vs.

RESPONDENT:

ARJUNA CHETTY

DATE OF JUDGMENT: 06/09/1996

BENCH:

N.P. SINGH, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

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

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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

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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

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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

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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

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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

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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."

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"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 defendant-

respondent 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.