IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:26.02.2010 CORAM THE HONOURABLE MS. JUSTICE R. MALA S.A.Nos.1106 & 1107 of 1999 Ramizabi .. Appellant in SA.1106/99 1. Abdul Rahman (died) 2. A. Kainuisa 3. A. Haja Mohideen 4. Mohamed Ibrahim 5. A. Noorjahan Bivi .. Appellants in SA.1107/99 (Appellants 2 to 5 are brought on record as LRs of deceased sole appellant vide order of Court dated.5.10.09 made in CMP.No.1318/09 in SA.1107/99) Vs Mohammed Yassin .. Respondent PRAYER: Second appeals filed under Section 100 of Cr.P.C. against the judgments and decrees dated 17.6.99 made in A.S.Nos.20 and 21 of 1999 on the file of III Additional District Judge, Pondicherry in confirming the judgments and decrees dated 24.6.1998 made in O.S.Nos. 760 and 761 of 1996 on the file of Additional Sub Judge, Pondicherry. For Appellants in S.A.1106 & 1107 of 1999: Mr.G.Ethirajulu & Mr. R.Govindaraj For Respondent : Mr. T.R.Rajaraman COMMON JUDGMENT These second appeals have been preferred against the the judgments and decrees dated 17.6.99 made in A.S.Nos.20 and 21 of 1999 on the file of III Additional District Judge, Pondicherry in confirming the judgments and decrees dated 24.6.1998 made in O.S.Nos. 760 and 761 of 1996. 2. The defendant in O.S.No.760 of 1996 is the appellant in S.A.No.1106 of 1999 and the plaintiff is the respondent. The appellants in S.A.No.1107 of 1996 are the defendants in O.S.No.761 of 1996. https://hcservices.ecourts.gov.in/hcservices/ 3. The averments made in the plaint O.S.No.760 of 1999 are as follows:- (a) The plaintiff's grand father Yusuff Sahib donated a portion of the suit property to his wife Kadar Bi and another portion to his son Haniff Sahib under a registered donation deed dated 12.6.1934. From the date of gift, both were in possession and enjoyment of their respective shares. After the death of Haniff Sahib, his son the plaintiff herein inherited the property and also he has a share in the grand mother's property. The defendant colluded with one tenant Abdul Aziz filed suit in O.S.No.295 of 1981 for declaration of title to the suit property and the suit has been dismissed. The defendant preferred appeal in A.S.No.65 of 1983 which was also dismissed. She has not preferred any second appeal. Hence the judgment is final and conclusive and binding the parties. (b) The plaintiff herein filed O.S.No.551 of 1983 for eviction of the persons namely Abdul Aziz, Shaffia bi, Ibrahim and Muthu. The suit was dismissed. Against the dismissal of the suit, he preferred an appeal in A.S.183 of 1990 which was allowed. Against the appeal suit this defendant and one Abdul Aziz have preferred second appeal in S.A.No.1854 of 1981 which was dismissed at the stage of admission itself. So the plaintiff filed E.P.No.8 of 1992 which was pending. (c) The defendant shifted her residence from the Kaderbi property to Hanif Sahib's property on 5.1.1990 when the plaintiff was out of station. The defendant is a tress passer and unauthorised occupier of the plaintiff's property. The co- sharer of the suit property executed a release deed in favour of the plaintiff. So the plaintiff alone is having exclusive and absolute title over the suit property. The defendant is trying to obtain electricity service connection in her name by furnishing false information to the Electricity Department. The plaintiff took possession of the house from Abdul Aziz, Shaffia Bi, Ibrahim and Muthu. (d) The plaintiff issued legal notice on 20.6.1994 for delivery of possession. The defendant received the notice and gave a belated reply with false allegation. Hence the plaintiff has come forward with the suit for declaration of title to the suit property and recovery of possession and prayed for a decree. 4. The gist and essence of the written statement filed by the defendant in O.S.No.760 of 1999 are as follows. (a) The plaintiff has to prove his title to this suit property and his predecessor in title. The defendant along with 5 others filed a suit in O.S.No.295 of 1981 against the plaintiff and 4 others. The suit is bad for non joinder of necessary https://hcservices.ecourts.gov.in/hcservices/ parties. The plaintiff filed O.S.No.551 of 1988 since the defendant is not party, it is not binding on him. The defendant never shifted his residence from Kader Bi's property to Haniff Sahib's property on 5.1.1990. She is in possession and enjoyment of the property measuring 12 X 15 feet from 16.3.1960. She is in possession and enjoyment of the above said property openly, continuously, peacefully, and without any interruption from anybody and this fact is very well known to this plaintiff herein and the children of this defendant were born at the place where she is now residing. Thereby she is in possession and enjoyment of the property more than 35 years and has perfected title by adverse possession. The suit is not maintainable. 5. The averments made in the plaint filed in O.S.No.761 of 1999 are as follows: (a) The plaintiff's grand father Yusuff Sahib donated a portion of the suit property to his wife Kadar Bi and another portion to his son Haniff Sahib under a registered donation deed dated 12.6.1934. From the date of gift, both were in possession and enjoyment of their respective shares. After the death of Haniff Sahib, his son, the plaintiff herein inherited the property and also he has a share in the grand mother's property. The defendant colluded with one tenant Abdul Aziz filed suit in O.S.No.295 of 1981 for declaration of title to the suit property and the suit has been dismissed. The defendant preferred appeal in A.S.No.65 of 1983 which was also dismissed. He has not preferred any second appeal. Hence the judgment is final and conclusive and binding the parties. (b) The plaintiff herein filed O.S.No.551 of 1983 for eviction of the persons namely Abdul Aziz, Shaffia bi, Ibrahim and Muthu. The suit was dismissed. Against the dismissal of the suit, he preferred an appeal in A.S.183 of 1990 which was allowed. Against the appeal suit this defendant and one Abdul Aziz have preferred second appeal in S.A.No.1854 of 1981 which was dismissed at the stage of admission itself. So the plaintiff filed E.P.No.8 of 1992 which was pending. (c) The defendant shifted his residence from the Kaderbi's property to Hanif Sahib's property on 5.1.1990 when the plaintiff was out of station. The defendant is a tress passer and unauthorised occupier of the plaintiff's property. The co- sharer of the suit property executed a release deed in favour of the plaintiff. So the plaintiff alone is having exclusive and absolute title over the suit property. The defendant is trying to obtain electricity service connection in his name by furnishing false information to the Electricity Department. The plaintiff took possession of the house from Abdul Aziz, Shaffia Bi, Ibrahim and Muthu. https://hcservices.ecourts.gov.in/hcservices/ (d) The plaintiff issued legal notice on 20.6.1994 for delivery of possession. The defendant received the notice and gave a belated reply with false allegation. Hence the plaintiff has come forward with the suit for declaration of title to the suit property and recovery of possession and prayed for a decree. 6. The gist and essence of Written Statement filed by the defendant in O.S.No.761 of 1999 are as follows: (a) The plaintiff has to prove his title to this suit property and his predecessor in title. The defendant along with 5 others filed a suit in O.S.No.295 of 1981 against the plaintiff and 4 others. The suit is bad for non joinder of necessary parties. The plaintiff filed O.S.No.551 of 1988 since the defendant is not party, it is not binding on him. The defendant never shifted his residence from Kader Bi's property to Haniff Sahib's property on 5.1.1990. He is in possession and enjoyment of the property measuring 20 X 40 feet from the year 15.3.1959. He is in possession and enjoyment of the above said property openly, continuously, peacefully, and without any interruption from anybody and this fact is very well known to this plaintiff herein and the children of this defendant were born at the place where he is now residing. Thereby he is in possession and enjoyment of the property more than 35 years and has perfected title by adverse possession. The suit is not maintainable. 7. The learned trial court after considering the averments contained in both plaint and written statement in both the suits ordered for joint trial and framed 7 issues in O.S.No.760 of 1999 and six issues in O.S.No.761 of 1999 and considering the oral evidence of P.W.1, D.W.1 and D.W.2, Ex.A.1 to Ex.A.5 and Ex.B.1 to Ex.B.13 decreed the suit in favour of the plaintiff as prayed for in the plaint. Aggrieved against the judgments and decrees of the trial court , the defendant in O.S.No. 760 of 1996 preferred appeal in A.S.No.20 of 1999 and the defendants in O.S.No. 761 of 1996 preferred appeal in A.S.No.21 of 1999. 8. The learned first appellate court after considering the arguments, framed necessary points for determination and concur with the findings of the trial court and dismissed both the appeals . Aggrieved over the judgments and decrees of the first appellate court, the present second appeals S.A.No.1106 of 1999 and S.A.No.1107 of 1999 have been preferred by defendant(s) in O.S.No.760 of 1996 and O.S.No.761 of 1996 respectively. 9. At the time of admission of the above second appeals, the following substantial question of law arose for consideration. "Have not the courts below committed an error of law in decreeing the plaintiff's suit when by overwhelming documentary evidence (which have not been considered https://hcservices.ecourts.gov.in/hcservices/ at all by the courts below), the defendants have established adverse possession?" 10. The respondent as plaintiff filed a suit for declaration of title and recovery of possession stating that the defendant is a tress passer. His right and title has been delivered by previous proceedings. The trial court and first appellate court have granted decree in favour of the Plaintiff and against the judgment and decree of both the courts below, the present second appeals have been preferred by this defendants/appellants. 11. The learned counsel for the appellants would contend that the trial court has failed to consider that the appellants are in possession of the suit property for more than a period of 35 years. Hence they prescribed title by adverse possession. Even though they have pleaded that appeal in A.S.No.65 of 1983 has been dismissed on 30.3.1984, even then they are in possession and enjoyment of the suit property. After the plaintiff obtained decree in O.S.No.551 of 1983, he filed E.P. No.8 of 1993. But in suit O.S.No.551 of 1983, the defendant/appellant herein was not impleaded as party. So his possession from the year 1983 till the present suit is adverse to the interest of the true owner. Hence he prescribed title by adverse possession. 12. His first limb of argument is that the first appellate court has considered the argument and came to the conclusion that as per the French Code (Civil) , the limitation period is 30 years, but as per the decision reported by this Court in 2003 2 L.W. Page 98, (Suryagandhi Vs. Lourduswamy) Indian Limitation Act is applicable to this Pondicherry territory. So 12 years period of limitation is sufficient for adverse possession. From 30.3.1984 the period of limitation starts. The appellants have filed the suit on 5.9.1996, so they have prescribed title by adverse possession. 13. To substantiate his argument, he relied upon the various decisions and further he culled out the evidence of both the parties and submits that the appellants are in possession of the suit property openly, continuously and uninterruptedly with the knowledge of the true owner adverse to his interest for more than a statutory period, hence they prescribed title by adverse possession. But both the courts below have not considered this aspect in a proper perspective and hence he prayed for allowing of this appeal and setting aside the decrees and judgments passed by the courts below. 14. Per contra, the learned counsel for the respondent would contend that while perusing the evidence of D.W.1, no evidence is available to show that they are in possession of the suit property with the knowledge of true owner adverse to the interest of the true owner. That Ramizabi (appellant in https://hcservices.ecourts.gov.in/hcservices/ S.A.No.1106 of 1999) is in possession of the property and only on permission, he relied upon the decisions and submits that mere open and continuous possession of the property is not sufficient, but there must be animus possidendi by the appellant that he is in possession of the property for more than a statutory period with the knowledge of true owner adverse to the interest of true owner is essential. But the evidence of the appellant has not proved that their possession is adverse to the interest of the true owner with the knowledge of the true owner. Hence both the courts have came to the correct conclusion that the appellant is not entitled for declaration of title by prescribing title by adverse possession. So he prayed for dismissal of this appeal. 15. It is a well settled principle of law, a person who claiming title by adverse possession, pleaded in his written statement must prove the same. Before going into the evidence and facts of this case, it is appropriate to consider the decision relied upon by both the counsel. 16. The learned counsel for the appellants would contend that the trial court has committed an error in coming to the conclusion that the period of limitation for prescribing title by adverse possession is 30 years as per the Civil Code prevailing in Pondicherry Territory. He further submits that as per the decision of this court reported in 2005 3 TNLJ, page 251 (Kaliaperumal Vs. Vedavalliammal) it was held that only the Limitation Act is applicable to Pondicherry Territory. So as per Article 64 of Limitation Act, for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed, the period of limitation is twelve years from the date of possession. 17. Here the respondent filed the suit for declaration of title and recovery of possession on the basis of the documents alleged to be executed by his grand father in favour of his father, donation deed in favour of his father and his grand mother Kadarbi and also after the death of Kadar bi, the legal representatives of Kadarbi have executed a release deed i.e. on the basis of Ex.A.5. 18. In such circumstances, article 65 will be applicable here. Article 65 reads as follows: "65. For possession for immovable property or any interest therein based on title - period of limitation - twelve years- when the possession of the defendant becomes adverse to the plaintiff." So the period of limitation is only 12 years. 19. The learned counsel for the appellants relied upon the following decisions reported in (1) 2001 (2) SCC page 498 https://hcservices.ecourts.gov.in/hcservices/ (Balakrishnan Vs. Sathyaprakash) in para 7, it is held as follows: ..." 7. The law with regard to perfecting title by adverse possession is well settled. A person claiming title by adverse possession has to prove three nec nec vi, nec clam and nec precario. In other words, must show that his possession is adequate in continuity, in publicity and in extent. In S.M.Karim v. Bibi sakina speaking for this Court Hidayathulah, J. (as he then was )observed thus: " Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the last to show when possession becomes adverse so that the starting point of limitation against the party affected can be found " ii).2003-2- L.W.,page 98 (Suryagandhi V. Lourduswamy) in para 38, it is held as follows: "38. The Pondicherry Limitation (Repeal of local laws) Act, 1994 is being relied upon by the counsel for the plaintiff to save the limitation period. Section 3 of the said Act provides that all local laws in force in the Union Territory of Pondicherry or any area thereof corresponding to the limitation Act, 1963 shall stand repealed as from the date of coming into force of the Pondicherry Limitation (Repeal of Local Laws) Act. 1994. The said Repeal of Local Laws Act, 1994 received the assent of The President on 3.1.1995 and published in the Pondicherry Gazette 24.1.1995 . Section 4 of The Pondicherry Limitation (Repeal of Local Laws) Act, 1994 provides that notwithstanding anything contained in the Repeal Act, any suit for which the period of limitation prescribed in the Limitation Act is shorter than the period of limitation prescribed by the local laws, such suit could be instituted within one year next after the commencement of the Pondicherry Limitation (Repeal of Local Laws) Act, 1994. The suit in the present case has been instituted during 1989 and therefore the reliance placed on The Pondicherry Limitation (Repeal of Local Laws) Act, 1994 is of no consequence." and (iii) 2005 ( 3 ) TNLJ (Civil) 251 (D. Kaliaperumal Vs. Vedavalliammal), wherein it is held as follows.. ......"the Hon'ble Supreme court has held that the Indian Limitation Act alone would govern the parties, because the Limitation Act is later that the Portuguese Civil Code. 7. Our High Court while following the above judgement of the Supreme Court in the case of Suryagandhi vs. Lourdswamy, reported in 2002 (4) CTC 31, https://hcservices.ecourts.gov.in/hcservices/ has held as follows:- "33. the learned counsel for the appellant filed upon a recent pronouncement of the Apex Court in Syndicate Bank Vs. Prabha D.Naik and another reported in 2001 (4) SCC 713 and contended that Limitation Act, 1963 is the general law of Limitation for the whole of India and provision regarding the remedy as provided in the Civil code is deemed to be replaced by implication. The learned counsel relied upon the said Pronouncement where the Apex Court held thus:- "21.Needless to record that our concurrence to the observations of the High Court in regard to a special Law of Limitation is provided for enforcement of the rights arising under that Code itself, is by reason of the fact that Law of Limitation is a procedural law and the provisions existing on the date of the suit apply to it (reference may be made to the decision of this court in C.Beepathurna V. Velasari Shankaranarayana kadambolithaya). 22. Admittedly, the Limitation Act is a statute enacting the provisions in general terms applicable to the entire country excepting the exception as mentioned in the statute itself. It is a later statute of the year 1963 only that Portuguese Civil Code assuming had its application in the State of Goa, Daman and Diu and an earlier statute thus stands altered, as the latter is expressed in affirmative language, more so by reason of specific application of the Negotiable Instruments Act and Indian Contract Act: It thus cannot but be said to be repealing by implication – "affirmative statute introductive of a new law do imply a negative" (Harcourt v.Fox). 23. As regards the doctrine of implied repeal, another aspect of the matter ought to be noticed vis-a- vis the Civil Code. The issue of limitation being a mixed issue of law and fact under the Limitation Act, the Court in spite of plea not being raised by the defence, can go into the same suo motu but there is a specific bar under Article 515 of the Civil Code which records that the Court cannot suo motu cognizance of description (sic prescription) unless it is specifically pleaded by the parties. It is a bar to jurisdiction of Court. The repugnancy and incongruity arise by reason of the fact that Parliament by law viz. The High Court at Bombay: (extension of jurisdiction to Goa, Daman and Diu) Act, 1981 extended the jurisdiction of the High Court of Judicature at Bombay to the Union Territory of Goa. Daman and Diu from the appointed day and the Court of judicial commissioner was abolished. Section 9 of the statute [(Act of 1981) (supra)] provides that there shall https://hcservices.ecourts.gov.in/hcservices/ be, on and from the appointed day, established a permanent Bench of the High Court of Bombay at Panaji and some Judges of the High Court at Bombay being not less than two in number or as may be nominated by the Chief Justice of the High Court from time to time shall sit at Panaji, in order to exercise the jurisdiction and power for the time being vested in the High Court in respect of cases arising in this Union Territory. The authority and jurisdiction of the High Court of Bombay, to take cognizance of an action being barred by limitation, thus stands negated – conceptually even a difficult situation to conceive that the same High Court will have two different spheres of jurisdiction while dealing with matters. At the cost of repetition we say that while implied repeal is not to be readily inferred but in the contextual facts, upon scrutiny, we cannot but hold that in the wake of the factum of the Limitation Act coming into existence from 1.1.1964, Article 535 of the Portuguese Civil Code cannot but be termed to be impliedly repealed and it is on this score that the decision of this Court in justiniano case1 stands overruled. There is one general law of Limitation for the entire country, being the Act of 1963 and the Portuguese Civil law cannot be termed to be a local law or a special law applicable to the State of Goa, Daman and diu prescribing a different period of limitation within the meaning of Section 29(2) of the Limitation Act and in any event, question of saving of local law under the Limitation Act of 1963 does not and cannot arise. The submission that without there being a specific men of repealing statute (since the 1963 Act of Limitation does not record express repeal of any other law excepting the Limitation Act of 1908), question of the Portuguese Civil Code being repealed does not arise, cannot hold good by reason of the doctrine of implied repeal as noticed above. In the premises aforesaid, these appeals fail and are dismissed without however any order as to costs" This pronouncement is against the plaintiff and the view of the first appellate Court is not sustainable in any view" 8. In 2001 (1) MLJ 225 Arumugam Vs. Herniette Sandjivy and others) in an Appeal Suit against the decree of the suit filed on the strength of the Promissory Note, exactly a similar defence was taken and this court has held that French Civil Code is not applicable and only the Indian Limitation Act, 1963 is applicable and thus dismissed the suit." As per the decision, Indian Limitation Act is applicable to Union Territory of Pondicherry. https://hcservices.ecourts.gov.in/hcservices/ 20. Learned counsel for the respondent would relied upon the following decisions reported in (i) 1989 LW, page 71 (Bhagavathy Pillai and another V. Savarimuthu and another) in para 13 it is held as follows "13. As already indicated, the contention of the learned counsel for the respondents is that the tile of the Plaintiffs were lost by adverse possession over the state Juy period prior to the Limitation Act, 1963, coming into force. On this aspect, I have already indicated,there is no evidence placed by the respondents. The learned counsel for the respondents contended that the burden of proving adverse possession cannot be thrown on the respondents. The present suit having been filed after the Limitation Act, 1963, came into force, the law enacted therein would apply to suits filed thereafter. In the case of a suit for possession based on title, the plaintiff has no longer to prove that he was in possession of the property for a period of 12 years. It is for the defendant now to establish that his possession has been adverse for the requisite period of 12 years. This has not been done in the present case. In fact, learned coupes for the respondents is seeking to rely