IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23.03.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.557 of 2010 and M.P.No.1 of 2010 1. Pattammal 2. Kumar .. Appellants/Defendants 2 and 6 vs. 1. Achudananda Pillai .. 1st Respondent/Plaintiff 2. The Tahsildar Office of the Tahsildar Polur, Tiruvannamalai 3. State of Tamil Nadu rep.by the Collector Tiruvannamalai 4. The Registrar Sub Registrar Office Polur Town, Tiruvannamalai .. Respondents 2 to 4/ Defendants 3 to 5 This second appeal is filed against the judgment and decree dated 12.01.2010 passed by the learned Subordinate Judge, Arani, Tiruvannamalai in A.S.No.3 of 2008 confirming the judgment and decree dated 12.10.2007 passed by the learned District Munsif, Polur, Tiruvannamalai in O.S.No.158 of 2000. For Appellant : Mr.M.Sriram For Respondents : Mr.T.R.Rajaraman for R1 Mrs.Shanthi Rakkappan Additional Government Pleader (CS) for RR2 to 4 J U D G M E N T This second appeal is focussed by D2 and D6 animadverting upon the judgement and decree dated 12.01.2010 passed by the learned Subordinate Judge, Arani, Tiruvannamalai in A.S.No.3 of 2008 confirming the judgment and decree dated 12.10.2007 passed by the https://hcservices.ecourts.gov.in/hcservices/ learned District Munsif, Polur, Tiruvannamalai in O.S.No.158 of 2000. 2. The parties are referred to here under according to their litigative status and ranking before the trial Court. 3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: a] The plaintiff filed the suit seeking the following reliefs: - to declare the plaintiff's right, title to the suit properties and directing the defendants 1 and 2 to deliver vacant peaceful possession and enjoyment of the suit properties. - to account the past mesne profits for 3 years and for further mesne profits title the property are delivered to the plaintiff by the defendants 1 and 2 to be paid to the plaintiff by the defendants 1 and 2. - to grant a permanent injunction against the defendants 1 and 2 restraining them from in any manner alienating or encumbering the suit properties. - to direct the third defendant to transfer the patta of the suit properties in the name of plaintiff. - to direct the defendants 1 and 2 to pay the plaintiff cost of the suit. (extracted as such) b] Subsequently, D1 died and his legal heir D6 was brought on record. D6 filed the written statement, which was adapted by D2, resisting the suit. c] Whereupon issues were framed. On the side of the plaintiff, he examined himself as P.W.1 along with P.Ws.2 and 3 Exs.A1 to A4 were marked. The sixth defendant examined himself as D.W.1 along with D.Ws.2 to 5 and marked Exs.B1 to B4 and the exhibit of the witness Kasi (DW5), viz., X1 was also marked. d] Ultimately the trial court decreed the suit, as against which, appeal was filed by the D2 and D6 for nothing but to be dismissed by the appellate court confirming the judgment and decree of the trial court. 4. Challenging and impugning the judgements and decrees of both the Courts below, this Second Appeal has been filed by D2 and D6 on various grounds, suggesting the following substantial questions of law. https://hcservices.ecourts.gov.in/hcservices/ 1. Whether the courts below are justified in not appointing the evidence and the document which resulted in granting decree to the plaintiff? 2. Whether the courts below are right in holding the appellants possession is not adverse because of the Sale certificate stands in the name of the plaintiff but not possession, contrary to the evidence? 3. Whether the courts below are right to rejecting the plea of res-judicata based on the judgment without any documents and evidence and in the absence of issue framed to that effect? 4. Whether the courts below are right to granting decree for injunction when the possession of the appellant was admitted by the plaintiff on the date of filing of the suit? 5. Whether the courts below are right in granting mandatory injunction against the same 3rd and 4th defendant in the absence of any document and evidence against the statutory authority? 6. Whether the Civil Courts can assume the power of Statutory body by exceeding the jurisdiction? 7. Whether there is any cause of action survives on the date of filing of the suit? 8. Whether the court below are justified in rendering finding contrary to the pleadings and evidence? 9. Whether the lower court disposed the appeal as per the civil procedure court and Order 41? 5. Heard both sides. 6. The gist and kernel of the argument of the learned counsel for D2 and D6 could pithily and precisely be set out thus: a] Even though the plaintiff would try to set forth in the cause of action para that delivery was taken through court even as early as in the year 1978, there is nothing to indicate that such delivery was actually given and possession was physically taken by the plaintiff. b] Adding fuel to the fire, the plaintiff did choose to file one other suit for delivery of possession and also for injunction and that was also decreed but he would claim falsely as though possession was taken and that thereafter, the defendants once again https://hcservices.ecourts.gov.in/hcservices/ trespassed into the suit property; complaining the same he filed another suit for delivery of possession and for other reliefs. As such, even as per the plaintiff, the defendants (D2 and D6) have acquired prescriptive title over the suit property by adverse possession and the suit was also barred by res judicata. c] Without considering the pros and cons of the matter, both the courts below, simply accepted the case of the plaintiff and decreed the suit, warranting interference in second appeal. 7. Pulverising the arguments as put forth and set forth on the side of the appellants/D2 and D6, the learned counsel for the plaintiff/R1 would narrate and detail the facts, which could pithily and precisely be set out thus: i) Ever since 1978, D2 and D6 are off and on giving trouble and thereby depriving at intermittent intervals the plaintiff from enjoying the suit property, warranting the filing of such suit after suit. D2 and D6, who were bound by the judgments and decrees of the lower courts in the previous proceedings flouted those orders and still they would contend as though they acquired prescriptive title by adverse possession. The suit is not barred by res judicata. Accordingly, the learned counsel for the plaintiff prays for the dismissal of the second appeal. 8. I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court: (i) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus: "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. 23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been https://hcservices.ecourts.gov.in/hcservices/ taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread." and the following principles are found enunciated in the decision reported in (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL 24. . . . (iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." (ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL It is therefore crystal clear from the mere poring over and perusal of the aforesaid precedents that unless there is any perversity or illegality in the rendering of the finding of facts by both the courts below, the question of interfering by the High Court under Section 100 of the Code of Civil Procedure would not arise. 9. The narration of facts as found exemplified from the records as well as from the judgments of both the courts below would run thus: The plaintiff being the decree holder in O.S.No.324 of 1978 filed O.E.P.No.17 of 1979 and brought the suit property for sale and with the permission of the court, he participated in the court auction sale and he was the successful bidder and ultimately, he took possession of the suit property. Subsequently, the defendants 2 and 6 trespassed into the suit property, which necessitated the plaintiff herein to file the suit O.S.No.984 of 1982 seeking the reliefs of delivery of possession and injunction and the said suit was decreed and possession was also handed over to the plaintiff. Even thereafter, the D2 and D6 barged into the suit property; whereupon the present suit O.S.No.158 of 2000 was necessitated to be filed seeking the reliefs set out supra. https://hcservices.ecourts.gov.in/hcservices/ 10. However, the learned counsel for the appellants/D2 and D6 while admitting the court proceedings would venture to argue that those alleged deliveries referred to in the plaint as well as in the evidence of plaintiff are paper deliveries and actually physical possession was not given and at no point of time, D2 and D6 were removed from the suit property and physical delivery of possession was handed over to the plaintiff and that in such a case, both the courts were enjoined to hold that D2 and D6 acquired prescriptive title over the suit property. 11. Not even for a moment, this court could tolerate and bear such an argument forthcoming from D2 and D6. The proposition nec vi, nec clam and nec precario, would connote and denote that if at all a person is in possession of a property, openly, uninterruptedly and continuously as owner and that too adverse to the interest of the real owner, the question of acquiring prescriptive title by adverse possession would arise. 12. I harp back to the following precedent of the Hon'ble Apex Court reported in 2007) 6 SCC 59 (P.T.Munichikkanna Reddy and others vs. Revamma and others). An excerpt of it would run thus: "10. In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom wherein the European Court of Human Rights while referring to the Court of Appeal judgment JA Pye (Oxford) Ltd. v.Graham made the following reference: "Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the Courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol". 11. This brings us to the issue of mental element in adverse possession cases – intention. ................... 14. Importantly, intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. The factum of https://hcservices.ecourts.gov.in/hcservices/ possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialise. 18. On intention, Powell v.McFarlane is quite illustrative and categorical, holding in the following terms: "If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')" * * * If his acts are open to more than one interpretation and he has not made in perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner. * * * In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner. * * * What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow". (emphasis supplied) 19. Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and the plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of waiving (wilful) or https://hcservices.ecourts.gov.in/hcservices/ omission (negligent or otherwise) of the right to defend or care for the integrity of property on the part of the paper-owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. 20. While dealing with the aspect of intention in the adverse possession law, it is important to understand its nuances from varied angles. 22. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf Vs. Govt. Of India in the following terms: (SCC p.785, para 11) "Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession." 23. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner. 31. Inquiry into the starting point of adverse possession i.e dates as to when the paper-owner got dispossessed is an important aspect to be considered. In the instant case the starting point of adverse possession https://hcservices.ecourts.gov.in/hcservices/ and other facts such as the manner in which the possession operationalised, nature of possession: whether open, continuous, uninterrupted or hostile possession, have not been disclosed. An observation has been made in this regard in S.M.Karim Vs. Bibi Sakina: (AIR p.1256, para 5) "Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for 'several 12 years' or that the plaintiff had acquired 'an absolute title' was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea." (emphasis supplied) 32. Also mention as to the real owner of the property must be specifically made in an adverse possession claim. 33.In Karnataka Wakf Board it is stated: (SCC pp.785-86, para 12) "A plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. In P.Periasami V. P.Periathambi this Court ruled that: (SCC p.527, para 5) 'Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.' The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal V. Mirza Abdul Gaffar that is similar to the case in hand, this Court held: (SCC pp.640-41, para 4) '4.As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and https://hcservices.ecourts.gov.in/hcservices/ prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53 A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.'" (emphasis supplied) Here D2 and D6, who are bound to adhere to the orders passed by the court ever since 1978, flouted those orders and still without having any sense of repentance or contrition, are going on taking untenable pleas after pleas and resisting the plaintiff's enjoyment of the suit property. The court order passed in the year 1978 would operate as interdiction as against the possession of the defendants. 13. At this juncture, the decision of this court reported in (2009) 3 MLJ (Crl.) 972 [ K.Shajahan vs. Subramani Gounder and others] could fruitfully be cited: "8. ....................................Once there is a valid Court order, whereupon there emerged the record of delivery, evidencing actual delivery of the property, on 30.8.2001. It is not open for the accused, who is bound by such Court order, to veer round and take a plea before the criminal Court as though the property delivered was only a paper delivery; that the accused continued to be in possession and that in such a case, he should not be treated as a trespasser. If at all the accused was aggrieved by such alleged paper delivery and recording of such paper delivery, he ought to have taken action to get such order of Court set aside. It is a common or garden principle that in the execution proceedings, after delivery, the matter has to be reported to the Court, whereupon the Court would be recording the delivery. 9. In this case, that process was over and there is nothing to show that the executing Court itself has not recorded the actual delivery. Once the Magistrate himself got satisfied that record wise delivery was handed over to P.W.1, he ought not to have entertained https://hcservices.ecourts.gov.in/hcservices/ the contrary version, which was made to be put forth through the mouth of P.W.7. ......................................................... ........................ 10. ............................If this sort of pleas and evidence are allowed to be entertained, certainly, the Court process would be set at naught and it would be mockery of justice. At this juncture, I would like to highlight and spotlight the fact that there is a legal defence 'paper delivery' which could be put forth by a third party to execution proceedings not by the judgement debtor himself, who supinely and passively accepted the recording of delivery by the executing Court. " 14. Here the pertinent point to be noted is that D2 and D6 are not third parties to the proceedings and they are the defendants in all the proceedings. In such a case, I am at a loss to understand, how they can venture to argue before the court that they are not bound by the orders of the court and that the court orders will not constitute interdiction regarding their possession of the suit property. 15. The learned counsel for the appellants/D2 and D6 would submit that revenue records are standing only in the name of the defendants and there was no mutation of revenue records. 16. I would like to point out that revenue records cannot be relied on or pitted against the judgments of the courts. If the argument as put forth on the side of the appellants/D2 and D6 has to be accepted, then it would amount to throwing to winds the court orders and honouring the revenue officials inaction according to the plaintiff in mutating the revenue records. 17. As such, the pleas as put forth on the side of the appellants/D2 and D6 even in the written statement as well as during the trial are all ex facie and prima facie untenable and niggard and bereft of truth and liable to be rejected and appropriately, both the courts below, rejected the same. 18. The learned counsel for the appellants/D2 and D6 would submit that the present suit over which the second appeal has arisen is barred by res judicata as the prayer in the previous suit as well as in the present suit are one and the same. 19. I would like to recollect and call up the following maxims: (i) nul prendra advantage de son tort demesne – No one shall take advantage of his own wrong. (ii) Nullus commodum capere potest de injuria sua propria – No one can obtain an advantage by his own wrong. https://hcservices.ecourts.gov.in/hcservices/ The defendants 2 and 6 after driving the plaintiff to run from pillar to post in pursuit of justice for the purpose of taking possession of the suit property, cannot pit against him the plea of res judicata. No man having head over shoulders and much less in this case, the plaintiff would ever venture to