IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.06.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.784 of 2011 and M.P.No.1 of 2011 T.K.Pappannan ... Appellant/ Plaintiff vs. 1. N.Nagaraj 2. N.Masammal alias Masakkal ... Respondents/ Defendants This Second Appeal is focussed as against the judgment and decree dated 7.8.2008 passed by the Principal Subordinate Judge, Coimbatore, in A.S.No.17 of 2008 confirming the judgment and decree dated 19.12.2005 passed by the District Munsif, Mettupalayam, in O.S.No.59 of 2004. For appellant : Mr.V.Nicholas JUDGMENT This Second appeal is focussed by the defendants, animadverting upon the judgment and decree dated 7.8.2008 passed by the Principal Subordinate Judge, Coimbatore, in A.S.No.17 of 2008 confirming the judgment and decree dated 19.12.2005 passed by the District Munsif, Mettupalayam, in O.S.No.59 of 2004, which was filed for declaration of title and for prohibitory and mandatory injunctions. 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The appellant herein, as plaintiff, filed the suit seeking the following reliefs: https://hcservices.ecourts.gov.in/hcservices/ "a.pass a decree declaring the plaintiff's title to the suit property on the ground of his having perfected the same by adverse possession; b. consequent upon such a declaration, restrain the defendants, their agents and men from in any way interfering with the plaintiff's peaceful possession and enjoyment of the same; c.direct the defendants by means of mandatory injunction to remove the superstructure illegally put up by them in the schedule of property; d. grant to the plaintiff the costs of the suit." (extracted as such) (b) Traversing and gainsaying the plaintiff's case, the defendants filed the common written statement resisting the suit. (c) Whereupon the trial Court framed the issues. The plaintiff examined himself as P.W.1 along with P.Ws.2 and 3 and Exs.A1 to A29 were marked. The first defendant examined himself as D.W.1 and Exs.B1 and B7 were marked. Exs.C1 and C2 were marked as Court documents. (e) Ultimately the trial Court dismissed the suit, as against which, the appeal was filed for nothing but to be dismissed by the first appellate Court confirming the judgment and decree of the trial Court. 4. Being aggrieved by and dissatisfied with the said judgments and decrees of both the Courts below, this seconds appeal has been filed by the plaintiff on various grounds and also suggesting the following substantial question of law: "When the evidence on record clearly established that the plaintiff is in possession of the suit property from 1974 onwards openly, peacefully, continuously and without any interruption from any one including his brother Thiruvenkitasamy and enjoying it adverse to his interest and thereby perfected title by adverse possession, whether the courts below are correct in negativing the claim of the plaintiff which is contrary to the materials on record." (extracted as such) 5. At the outset itself I fumigate my mind with the principles as found embodied in the following judgments of the Honourable Apex Court: https://hcservices.ecourts.gov.in/hcservices/ (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL; "24. ........(iii) The general rule is that the 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." and the other precedents emerged in this regard. (ii) (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. (iii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iv) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYA: 6. A mere poring over and perusal of those excerpts including the whole judgments would reveal that unless there is any perversity or illegality in the findings of the Courts or failing to apply correct law, or misreading or non reading of the evidence, interference in the second appeal does not arise. 7. The learned counsel for the appellant/plaintiff in all fairness, placing reliance on the records, would detail and delineate the following facts: https://hcservices.ecourts.gov.in/hcservices/ (i) The plaintiff and his brother Thiruvenkitasamy got effected a partition, as per Ex.A3 dated 10.6.1971, and in that the suit property was allotted to the share of his brother. (ii) It is the contention of the plaintiff that even though the suit property was notionally allotted to the share of his brother, in stricto sensu and in reality, the plaintiff alone has been in possession and enjoyment of the suit property; whereas, his brother, during the year 1995, as per Ex.B1-the sale deed dated 21.3.1995, sold the suit property in favour of the second defendant, who is the wife of D1. (iii) As per Ex.B2-the approved building plan dated 24.12.1996, D2 obtained permission for raising construction; whereas, the plaintiff would claim that he acquired title by adverse possession. 8. The Courts below gave a concurrent finding to the effect that absolutely there is no shard or shred, molecular or jot extent of evidence to show that the plaintiff was in continuous possession and enjoyment of the suit property adverse to the interest of his brother-the vendor of D2. Such a finding of fact is not suffering from any perversity or illegality. 9. On the plaintiff's side even though as many as 29 documents were marked as Exs.A1 to A29, none of those documents are sufficient to buttress and fortify the contention of the plaintiff that he acquired prescriptive title over the said vacant land, which is the suit property herein. 10. The popular adage is that 'possession follows title in respect of vacant plots.' Here, even though there may not be direct evidence to the effect that consequent upon the partition deed-Ex.A3 dated 10.6.1971, the D2's vendor, so to say, the brother of the plaintiff did anything amelioratively to prove that he had been enjoying the property, yet, as per the above said principle, his ownership cannot be held to have got severed from the suit property. Moreover, the onus of proof is on the plaintiff to prove his case. 11. At this juncture, I recollect and call up the following maxims: (i) Affirmatis est probare – He who affirms must prove. (ii) Affirmanti, non neganti incumbit probatio – The burden of proof lies upon him who affirms, not upon one who denies. https://hcservices.ecourts.gov.in/hcservices/ 12. It is the duty of the person who affirms a particular fact to prove it and he cannot call upon the other side to prove the negative aspect. 13. Accordingly, if viewed, the plaintiff who pleaded adverse possession should have clinchingly adduced evidence to prove his case but he failed to do so. The Courts below analysed the facts and found that the contention of the plaintiff was untenable. 14. My kind is redolent and reminiscent of the following precedent. 2007 (4) MLJ 912 (SC) (P.T.Munichikkanna Reddy and others vs. Revamma and others) – certain excerpts from it would run thus: "5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird; Arkansas Commemorative Commission v. City of Little Rock; Monnot v. Murphy; City of Rock Springs v. Sturm.) 6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper- owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one’s right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p.81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim. https://hcservices.ecourts.gov.in/hcservices/ 8. Also See Privy Council's decision in Chung Ping Kwan and Others v. Lam Island Development Company Limited (Hong Kong) (1997) Ac 38 in this regard. 9. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required: 1. Application of limitation provision thereby jurisprudentially “wilful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. 2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property. 10. It is interesting to see the development of adverse possession law in the backdrop of the status of right to property in the 21st century. The aspect of stronger property rights regime in general, coupled with efficient legal regimes furthering the rule of law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of human rights jurisprudence in recent times has also palpably affected the developments in this regard. New consideration in adverse possession law 11. 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 https://hcservices.ecourts.gov.in/hcservices/ 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.” 14. Importantly, intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. The factum of 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. 21. 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 v. 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.” https://hcservices.ecourts.gov.in/hcservices/ 22. 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. 32. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Bibi Sakina in the following terms: (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."(emphasis supplied) A bare and plain reading of the above excerpts would indicate and show that the plea of adverse possession cannot be assumed and presumed unless there are clinching evidence to prove the same. 15. It is crystal clear that the party who pleads adverse possession admits that the party as against whom adverse possession is pleaded happens to be the owner of the property; the onus of proof is on the person who tries to press into service the plea of adverse possession. 16. As such, applying the dictum as found embodied in the decision of the Honourable Apex Court, if the facts are analysed, it is glaringly clear that the Courts below au fait with law analysed the facts and evidence and arrived at a just conclusion, warranting no interference in second appeal. https://hcservices.ecourts.gov.in/hcservices/ 17. In the result, there is no question of law much less substantial question of law is involved in this second appeal and accordingly, the second appeal is dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is dismissed. Sd/- Deputy Registrar. /true copy/ Sub Asst.Registrar. Msk To 1. The Principal Subordinate Judge, Coimbatore 2. The District Munsif, Mettupalayam, 1 cc to Mr.V.Nicholas, Advocate, Sr. 38012 S.A.No.784 of 2011 SJ (CO) kk 27/7 https://hcservices.ecourts.gov.in/hcservices/