IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:24.02.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.238 of 2006 Rahimunnisabi .. Appellant/Plaintiff vs. 1. Subhan Sahib 2. Sahen 3. Pyara alias Aziz .. Respondents This second appeal is filed against the judgment and decree dated 29.06.2004 passed by the learned Principal Subordinate Judge, Villupuram in A.S.No.95 of 2003 confirming the judgment and decree dated 01.02.2002 passed by the learned II Additional District Munsif, Tirukoilur, Villupuram District in O.S.No.26 of 1998. For Appellant : Mr.M.V.Karunakaran For Respondents : Mr.V.Raghupathy J U D G M E N T This second appeal is focussed by the plaintiff, animadverting upon the judgement and decree dated 29.06.2004 passed by the learned Principal Subordinate Judge, Villupuram in A.S.No.95 of 2003 confirming the judgment and decree dated 01.02.2002 passed by the learned II Additional District Munsif, Tirukoilur, Villupuram District in O.S.No.26 of 1998. 2. The parties are referred to here under according to their litigative status and ranking before the trial Court. 3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: a] The plaintiff filed the suit for recovery of possession of the "B" Scheduled property found set out in the plaint. b] The third defendant filed the written statement resisting the suit and it was adopted by D1 and D2. c] Whereupon issues were framed. On the side of the plaintiff, the plaintiff examined herself as P.W.1 and Exs.A1 to A8 https://hcservices.ecourts.gov.in/hcservices/ were marked. The first defendant/Subhan Sahib examined himself as D.W.1 along with D.W2 and marked Exs.B1 to B17 and the Court documents Exs.C1 to C3. d] Ultimately the trial court dismissed the suit, as against which, appeal was filed by the plaintiff for nothing but to be dismissed by the appellate court confirming the judgment and decree of the trial court. 4. Being aggrieved by and dissatisfied with the judgments and decrees of both the Courts below, this Second Appeal has been filed by the plaintiff on various grounds inter alia to the effect that there was no enough evidence for invoking the concept adverse possession or prescriptive title. However, both the courts below erroneously held as though the defendants acquired prescriptive title by adverse possession over the B scheduled property based on certain tax receipts, which are not unerringly pointing out to the fact as to when the defendants raised construction in the 'B' scheduled property. 5. Accordingly, in the memorandum of second appeal, suggesting as many as six substantial questions of law, the plaintiff has filed this second appeal. Based on that, my learned predecessor at the time of admitting the second appeal, framed the following substantial questions of law. 1. Whether the courts below erred in law in adjudicating on the point of adverse possession in this case, especially when the lower appellate court having held that the disputed construction had been raised six years earlier, i.e., 6 years prior to the date of suit – 05.01.1998? 2. Whether the trial court erred in law in framing an additional issue as issue number six in the absence of such a plea by the defendants to that effect? 3. Whether the courts below erred in law in dismissing the suit while having found the title of the plaintiff in the A schedule property which covers the B schedule property also? 4. Whether under law, is it open to the defendants to plead adverse possession, having set up title in themselves in respect of B schedule property? (extracted as such) 6. Heard both sides. 7. The learned counsel for the plaintiff would advance his arguments, the gist and kernel of it would run thus: On the plaintiff's side positive evidence was let in to show that the concerned construction was made in the B scheduled property only during the year 1990. The tax receipts relied on by https://hcservices.ecourts.gov.in/hcservices/ both the courts below, by no stretch of imagination should be construed as documents evincing and evidencing that the defendants raised construction in the trespassed area during 1985-86 or even before that. There should have been positive evidence to display and demonstrate that over 12 years, the defendants were enjoying the suit property, openly, uninterruptedly and adverse to the interest of the plaintiff as owner but there is none. As such, in the absence of such evidence, the judgments passed by the courts below are liable to be set aside resulting in decreeing of the original suit in toto. 8. Piloting the arguments on the side of the defendants' side and in a bid to torpedo and pulverise the arguments as put forth and set forth by the learned counsel for the plaintiff, the learned counsel for the defendants would submit thus: a] There is absolutely no iota or shred, shard or minuscule, jot or molecule piece of evidence to show that the house was constructed by the defendants in piece meal. The property concerned was purchased by the defendants' relative Subhan in the year November 1982 as per Ex.B1 and the evidence of the Panchayat Officer DW2 would clearly clinch the issue that the tax receipts filed on the side of the defendants do relate to the suit property and the said building of the defendants were constructed in one stretch as the terrace is not in two parts and it constitutes one block of terrace and the alleged pathway in the trespassed area connects the terrace and in such a case, by no stretch of imagination it could be portrayed or made to believe as though that the said objectionable portion was constructed separately during the year 1990 or thereafter. At one and the same time, the terrace was put up and the stair case was constructed to have access to the terrace and all that happened during the year 1982. b] At any rate, the plaintiff having kept quite till the building was completed cannot after lapse of very many years simply approach the court for the demolition of the alleged objectionable building in the alleged trespassed area. c] If for any reason the court finds that there has been trespass, then in such a case equity can be worked out and instead of ordering demolition of the objectionable construction in the plaintiff's property, compensation can be quantified and awarded and that would meet the ends of justice. 9. All the four substantial questions of law are taken together for discussion as they are inter-linked and inter-woven with one another. 10. A mere poring over and perusal of the judgments of both the courts below as well as the oral and documentary evidence available on record, would exemplify and demonstrate, display and project that the plaintiff and the defendants are neighbours owning https://hcservices.ecourts.gov.in/hcservices/ plots adjacent to each other. Ex.B1- the sale deed emerged on 11.11.1982. A mere reading of the evidence of DW2 and the perusal of the tax receipts Exs.B6, B7, B8 and other tax receipts would all reveal that the house tax was paid by the defendants' relating to a structure in the property covered under the sale deed Ex.B1. 11. The learned counsel for the plaintiff would appropriately and appositely, correctly and convincingly and that too legally raise the point that there is no legal compulsion that simply because those tax receipts refer to a structure, it should be presumed or assumed that those tax receipts are referred to the structure now in existence there on the spot. Further more, there is also nothing to display and indicate that the objectionable portion of the building was constructed only anterior to 1986 so as to attract the 12 years' period of prescription as contemplated under law. 12. At this juncture, I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court. (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL (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 (iv) (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 pronoucements. 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 taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread." https://hcservices.ecourts.gov.in/hcservices/ 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. 13. Trite the proposition of law is that in matters of this nature, oral evidence as on each side would be adduced by examining the interested witness and they would simply depose certain facts in support of their own interested persons. The burden is on the defendants to produce evidence in order to buttress and fortify their plea that they acquired prescriptive title by adverse possession since 1982 over the area on which the said structure is in existence. 14. Ex.B1the sale deed would not refer to any structure at all, but only to a vacant site. In this context, the learned counsel for the defendants would convincingly submit that normally in villages, if there is an insignificant structure in existence over a plot, they would simply ignore it and as such the structure would not get reflected in the sale deed and if that be so, as a sequela, the tax receipts starting from Ex.B6 cannot be construed as though they are relating to the present structure in the suit property and they might even be relating to some other old insignificant structure for which also tax might have been paid. As such, when there is some improbabilities, then certainly the plea of prescription would not get attracted, in view of the decision of the Hon'ble Apex Court judgment 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". https://hcservices.ecourts.gov.in/hcservices/ 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 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". https://hcservices.ecourts.gov.in/hcservices/ (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 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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) https://hcservices.ecourts.gov.in/hcservices/ '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 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) A mere perusal of that judgment would highlight and spotlight that the plea of prescription by adverse possession cannot be presumed from the mere evidence that a particular person being in occupation of an area over the period of limitation. The maxim nec vi, nec clam, nec precario is also found referred to in the Apex Court's judgment, which would clearly exemplify and convey that the possession should be for over the statutory period, openly, uninterruptedly as owner and that too hostile to the interest of the real owner and the burden of proof is on the defendant, who pleads so. 15. My discussion supra would reveal that in this case, to establish the same, there is no clinching evidence available. Even then the trial court as well as the first appellate court, was very much carried away by the vague tax receipts, which axiomatically and obviously did not refer to any details or particulars about the structure concerned and simply held as though the defendants acquired prescriptive title by adverse possession over the area specified by the Advocate Commissioner as the encroached area in the plaintiff's plot. In fact, the commissioners report and the sketch Ex.C1 and Ex.C2 would reveal and project that it is not as though the defendants encroached in to the entire B schedule property, but only into a triangular shaped area measuring an extent of 130 sq.ft in the plaintiff's plot. 16. Simply because, at one point of time, the plaintiff who was not successful in preventing the defendants from raising construction in that triangular shaped area that it does not mean that the plaintiff should be deprived of her right. Here, one other fact also should be taken note of. Ex.A4 the plaintiff's notice dated 04.12.1996 would constitute interdiction in the https://hcservices.ecourts.gov.in/hcservices/ running of the period of prescription. The trial court as well as the first appellate court virtually based on Ex.B6 and other subsequent tax receipts jumped to the conclusion as though the version of the defendants that they constructed the house in the year 1982 covering the trespassed area also, was true and correct. 17. My discussion supra would indicate and establish that how they were totally erroneous in jumping to the conclusion and that too in the wake of the law, which imposes heavy burden on the defendants who plead prescription of adverse possession, to prove the same. Doctrine of acquiescence has wrongly been invoked by the trial court as the plaintiff being the neighbour of the defendants cannot be expected to swing into legal action immediately. 18. Unless there is evidence to establish that consciously the aggrieved party acquiesced to a certain fact, the question of acquiescence would not arise. As such, in this case, my discussion supra would reveal that based on the tenuous, weak, meek and bleak evidence, the courts below were not justified in holding that the defendants acquired prescriptive title over the property. 19. However, the alternative argument as put forth on the side of the defendants deserves consideration and further probe. 20. The learned counsel for the defendants has made an alternative argument that by demolishing the portion of the present structure in that triangular shaped area, no fruitful purpose would be achieved. Whereas the learned counsel for the plaintiff would submit that the plaintiff wants that triangular area for her own convenient enjoyment after getting demolished the illegal structure thereon. 21. Hence, in such a case, since there is no consensus between the parties it would not be proper for the second appellate court while exercising its power under Section 100 CPC simply to invoke equity and decide in one way or other the matter, which requires further evidence and deep consideration on the question of demolition or compensation. 22. In such view of the matter, I am of the considered opinion that while setting aside the judgments and decrees of both the courts below, the matter should be remanded back to the first appellate court only to decide the point as to "whether the structure in the said triangular shaped portion belonging to the plaintiff as specified in the commissioner's report should be demolished or on equitable basis, compensation should be quantified and awarded in favour of the plaintiff payable by the defendants" and to that effect both sides shall adduce evidence. After hearing both sides, the matter shall be disposed of finally within four months from the date of receipt of a copy of this order. The first appellate court is expected to decide that issue untrammelled and uninfluenced by any of the observations made by https://hcservices.ecourts.gov.in/hcservices/ this court in this judgment. Both parties shall appear before the first appellate court on 21.03.2011. 23. In the result, (i) the substantial question of law Nos.1, 3 and 4 are decided to the effect that both the courts below were