IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 30 - 6 – 2011 CORAM THE HON'BLE MR.JUSTICE R.S.RAMANATHAN S.A.No.889 of 1997 1.K.Gopalan ( died) 2.Subbulakshmi 3.G.Gurumurthy 4.G.Venkataraman *5.G.Balachandran ( appellants 2 to 5, brought on records, as legal representatives of the deceased/sole appellant vide order dated 24.07.2003 passed in C.M.P.No.11156 of 2002) ... Appellants/Plaintiff Vs. **1. Muthulakshmi(Deceased) 2. Thiyagarajan 3. Ravi R2 & R3 brought an Record as LRs of the Deceased sole Respondent vide order of the court dated 23.11.2011 made in CMP Nos.12917 &12918/2005 ...Respondent/Defendant Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree dated 31.1.1996, passed in A.S.No.98 of 1994, on the file of the Principal Subordinate Judge, Mayiladuthurai, in reversing the judgment and decree dated 06.09.1994, passed in O.S.No.28 of 1983, on the file of the Learned District Munsif, Mayiladuthurai. For Appellants : Mr.A.Muthukumar For Respondents : Mr.S.Sounthar JUDGMENT The plaintiff, who was successful in the the Trial Court and was unsuccessful in the First Appellate Court, is the appellant herein. 2. The appellant/plaintiff filed the suit in O.S.No.28 of 1993, for recovery of possession, stating that the property originally belonged to one Muthukumarasamy, and the appellant/plaintiff purchased the same from him under a registered sale deed dated 2.6.1969. After the purchase, the plaintiff has put up his house on the southern portion and there are three schedules to the sale. https://hcservices.ecourts.gov.in/hcservices/ There is a patta kanni running in between 'C' Schedule property and 'A' Schedule property and 'C' Schedule property is on the southern side of the Kauveri river and further south of 'C' Schedule property is patta kanni and further south is the 'A' Schedule property and the respondent/defendant has encroached upon 'C' Schedule property in the year 1982 and therefore, the suit for recovery of possession of the 'C' Schedule property was filed. 3. The respondent/defendant contested the suit stating that 'C' Schedule property was enjoyed by the respondent's husband Govindasamy and before him, her father-in-law and after the death of the respondent's husband in the year 1981, the respondent/defendant continued to be in possession of the property. The respondent/defendant is having a residential house on the eastern side of the suit 'C' Schedule property and the respondent's husband already perfected title to the suit property by adverse possession and they are in possession of the property to the knowledge of the plaintiff for more than 12 years. There was also a litigation between the plaintiff's predecessor in title and respondent's husband-Govindasamy in O.S.No.12 of 1960, in respect of the suit property and in that suit, the respondent's husband- Govindasamy pleaded adverse possession and that was upheld in the First Appeal and the same was confirmed in the Second Appeal in S.A.No.1800 of 1964. 4. Therefore, this Court has also upheld the title of the respondent in respect of the suit property and the plaintiff had no title to the suit 'C' schedule property at any point of time and the plaintiff never enjoyed the suit 'C' Schedule property and he has no ingress or egress to the suit property from his house and the claim of the plaintiff was also barred by limitation. 5. The Trial Court held that the plaintiff has proved his title to the suit property and the subject matter of the suit in O.S.No.12 of 1960, was not the suit property and it was a different property and therefore, the decree in O.S.No.12 of 1960 will not operate as res judicata and the respondent/defendant has not proved adverse possession in the manner known to law and decreed the suit, as prayed for. 6. The Lower Appellate Court, reversed the findings of the Trial Court and held that the respondent/defendant proved her possession for more than 12 years and even in Ex.A2, it has been stated that the plaintiff's predecessor in title allowed the defendant to encroach upon the suit property and the plaintiff purchased the property in the year 1964 and even prior to 1969, the defendant and her predecessor in title were in enjoyment of the suit property. The Commissioner's report would also prove that the plaintiff would not have enjoyed the suit property and it was in the possession of the defendant and further there was no access https://hcservices.ecourts.gov.in/hcservices/ from the patta kanni vaikal towards north to reach the suit 'C' Schedule property and therefore, the respondent/defendant has prescribed title to the suit property and dismissed the suit. 7. The Lower Appellate Court concurred with the findings of the Trial Court that the decree in O.S.No.12 of 1960, will not operate as res judicata as the suit properties are different properties in both the suits. Aggrieved by the same, the plaintiff has preferred the Second Appeal. 8. The following Substantial Questions of Law were framed at the time of admission of the Second Appeal:- i)Whether the Lower Appellate Court erred in law in holding that the defendant had perfected title to the suit property by adverse possession merely on the oral testimony of the defendant in the absence of any acceptable, clear and unequivocal evidence? ii)Whether the Lower Appellate Court has erred in law in holding that the defendant was in possession of the suit property for a period over 12 years by over looking the contradictions in her written statement and oral testimony of the defendant with regard to letting out the suit property for running a toddy shop?" 9. Mr.A.Muthukumar, the learned counsel appearing for the appellant submitted that the Lower Appellate Court without properly appreciating the law of adverse possession, erroneously reversed the findings of the Trial Court and allowed the appeal and having regard to the specific pleading and evidence let in by the defendant, the respondent/defendant has not proved adverse possession, as the respondent/defendant has also claimed title to the suit property. Therefore, the possession of the respondent/defendant cannot be stated to be adverse possession. In support of his contention, the learned counsel relied upon the judgments reported in (2004) 10 S.C.C. 779 in the case of ( Karnataka Board of Wakf Vs. Government of India and others) (2000) II C.T.C. 219 in the case of ( Kannappan Vs. Pargunand and others) (2008) 7 M.L.J 275 in the case of ( Veerasekaran and another Vs. Devarasu) and (2002) 5 C.T.C. 147 in the case of ( Chinnaponnu (died) and another Vs. Lakshmana Naidu and others) . 10. Mr.S.Sounthar, the learned counsel appearing for the respondent submitted that the Lower Appellate Court after appreciating the oral and documentary evidence and having regard to the specific admission of the appellant/plaintiff in Ex.A2, a notice, wherein the appellant/plaintiff has stated that the defendant was in possession of the property even prior to the purchase of the property by the plaintiff and the plaintiff purchased the suit property in the year 1969 and the suit was filed in the year 1983. Therefore, possession of the defendant was known https://hcservices.ecourts.gov.in/hcservices/ to the plaintiff and the defendant was admittedly in possession of the property even prior to 1969 and therefore, in the year 1983, when the suit was filed, the title of the appellant/plaintiff was extinguished by adverse possession. 11. It was his further submission that the Commissioner's report would also confirm that the plaintiff would not have enjoyed the property after his purchase in the year 1969, as there was no access from his house to the suit property, which is situated north of his house and after completely and thoroughly analyzing the oral evidence of the plaintiff and the defendant, the Lower Appellate Court has rightly held that the respondent/defendant was in possession of the property for more than 12 years and that was known to the plaintiff. Therefore, the defendant has prescribed the title to the suit property by adverse possession and rightly dismissed the suit. 12. Heard both the counsel. 13. It is true that the Lower Appellate Court has elaborately dealt with the evidence of the plaintiff and the defendant and came to the conclusion that the defendant was found to be in possession of the property for more than 12 years. But the Lower Appellate Court failed to appreciate the essential ingredients for establishing title by adverse possession. No doubt, as rightly held by the Lower Appellate Court, the defendant was found to be in possession of the property for more than 12 years. Whether such a long possession can be construed as adverse possession is a question which was not properly appreciated by the Lower Appellate Court. 14. In a suit for recovery of possession based on title, once the plaintiff' proves his title to the suit property, he is entitled to the decree and recovery possession, unless the defendant pleads and proves adverse possession. Once the plaintiff establishes his title a duty is cast upon the defendant to prove that he has prescribed title by adverse possession over the suit property. To prove adverse possession, the conduct of the defendant and the treatment of the suit property by the defendant are important. If the defendant has enjoyed the suit property as owner of the suit property, he cannot claim adverse possession. Similarly, if the defendant is enjoying the suit property for more than a statutory period, but did not enjoy the property to the knowledge of the true owner, in that case also, he cannot claim adverse possession. 15. The law of adverse possession has been thoroughly discussed in the judgment reported in (2008) 7 M.L.J. 275 ( supra) wherein the Learned Judge, after quoting various judgments of the Hon'ble Supreme Court has held as follows:- https://hcservices.ecourts.gov.in/hcservices/ " A person who claims title to the property by adverse possession must definitely allege and prove:- (I) how and when adverse possession commenced. (II) What was the nature of his possession and (III) Whether the fact of his adverse possession was known to the real owner ." The Learned Judge also held as follows:- “ To base a claim of adverse possession, it is not enough to allege that one is in possession of the land. Ingredients of adverse possession must be established." 16. In a judgment reported in ( 2006) 7 S.C.C. 570 in the case of (T.Anjanappa and others Vs. Somalingappa and another) the Hon'ble Supreme Court has held has follows:- " ... " Adverse possession" means a hostile possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively. A person, who bases his title on adverse possession, must show by clear and unequivocal evidence i.e., possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e., possession was hostile to the real owner and amounted to a denial of his title to the property claimed. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that, a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession averse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title, by pretending that he had no title at all" 17. In the judgment reported in (2000) II C.T.C. 219 ( supra) this Court has held that a party can contend adverse possession https://hcservices.ecourts.gov.in/hcservices/ only when he admits that another person has got title and that person cannot claim adverse possession, when he also claims title to the suit property. Further, in the judgment reported in ( 2004) 10 S.C.C. 779 in the case of (Karnataka Board of Wakf Vs. Government of India ) the Hon'ble Supreme Court has held as hereunder:- " 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 advisee 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" 18. In the judgment reported in (2009) 13 S.C.C. H.S.C. 229 in the case of (L.N.Aswathama and antoerh Vs. P.Prakash) the Hon'ble Supreme Court has held as hereunder:- " The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possession the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence." 19. In the judgment reported in (2007) 6 S.C.C. 59 in the case of (P.T.Munichikkanna Reddy Vs. Revamma) the Hon'ble Supreme Court has held as follows:- "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 get communicated to the paper-owner of the property. This is where the law gives important to https://hcservices.ecourts.gov.in/hcservices/ hostility and openess 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" 20. In the judgment reported in (2005) 8 S.C.C. 330 in the case of (Saroop Singh Vs. Banto and others) the Hon'ble Supreme Court has held as follows:- " In terms of Article 65, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. "Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus." 21. Therefore, as per the law laid down by the Hon'ble Supreme Court and our High Court that long possession will not become adverse possession and a duty is cast upon the person, who claims adverse possession to prove that his possession became adverse to the knowledge of the true owner and the person was enjoying the property with the knowledge that he was not the owner and others were the owners and he was enjoying the property to the knowledge of such other person. 22. In this case, no doubt, in Ex.A2, the notice sent by the appellant/plaintiff it was stated that the plaintiff's vendor allowed the defendant to encroach upon the plaintiff's property over an extent of 29 feet and 25 feet south and west respectively. It was further contended by the learned counsel for the respondent that the plaintiff purchased the property in the year 1969 and therefore, the plaintiff's vendor must have allowed the defendant to encroach upon the portion earlier to that and even from the year 1969, the plaintiff admitted that the defendant was in possession of the property for more than a statutory period and therefore, plaintiff has lost his title to the suit property. 23. As stated supra, it is not the length of possession by the defendant that will entitle him to claimed the title by adverse possession. The possession must be hostile to the knowledge of the true owner and the person, who claims adverse possession must also plead and prove that possession was to the knowledge of the true owner and he was enjoying the property belonging to the other person. https://hcservices.ecourts.gov.in/hcservices/ 24. In the reply notice sent by the defendant viz., Ex.B6, the respondent/defendant claimed title to the suit property. It has been stated that the property was originally the property of the defendant's husband and his father and after the death of her husband, the defendant succeeded to the properties. Therefore, the claim of the respondent/defendant was that she and her predecessor in title were owners of the suit property and in the written statement, she did not admit the title of the plaintiff to the suit property, whereas, she disputed the title of the plaintiff to the suit property. In evidence D.W.1. has specifically stated in cross that the suit property belonged to her and it was her ancestral property. Therefore, when the defendant claimed title to the suit property, she cannot claim adverse possession to the suit property and in the absence of any evidence that the plaintiff was aware of the hostile possession of the defendant, it cannot be stated that the defendant's possession became adverse to the plaintiff. 25. As stated supra, the conduct and attitude of a person in treating the property would conclusively prove whether the property was enjoyed by that person, with the intention and knowledge that he is enjoying to the property belonging to others, with the knowledge of the true owner. In this case, that element is absent and there is no pleading to the effect that the defendant was enjoying the property to the knowledge of the plaintiff and when the defendant has let in evidence and also pleaded that the property belongs to her, she is not entitled to claim right to the property by adverse possession. 26. Hence, the Substantial Questions of Law are answered in favour of the appellants, the judgment and decree of the Lower Appellate Court is set aside and that of the Trial Court is restored and the suit is decreed. In the result, the Second Appeal is allowed. However, there shall be no order, as to costs. sd Sd/- Asst. Registrar 23.8.2011, 23.11.11 *Corrected order to be issued. **Corrected as per the order of this Court dated 23.11.2011 Sd/- Asst Registrar 31.10.2011, 01.12.11 //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Principal Subordinate Judge, Mayiladuthurai, To be subsituted to the order 2. The District Munsif, Mayiladuthurai. already despatched on 7.9.2011 & 1.11.2011 + 1 cc to Mr. S. Sounthar, Advocate SR No.38572 + 1 cc to Mr. A. Muthukumar, Advocate **SR No.71650 S.A.No.889 of 1997 KK(CO) SR/24.8.2011 1.11.2011 EU 1.12.11 https://hcservices.ecourts.gov.in/hcservices/