IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 5.8.2010 Coram THE HONOURABLE MR.JUSTICE M. VENUGOPAL SECOND APPEAL No.940 of 1995 Natarajan ... Appellant/Defendant vs. 1.A.Marimuthu (deceased) 2.M.Nagaraj 3.M.Rajeswari 4.M.Lakshmi 5.M.Santhamani (Respondents 2 to 5 brought on record as Legal Representatives of the deceased sole respondent vide order of Court dated 18.8.2009 made in C.M.P.Nos.2017 to 2019 of 2006) ... Respondents/Plaintiff Appeal filed under Section 100 of the Civil Procedure Code against the judgment and Decree dated 29.04.1994 made in A.S.No.111 of 1992 on the file of the Learned II Additional Subordinate Judge, Coimbatore confirming the Judgment and Decree made in O.S.No.841 of 1988 dated 31.3.1992 on the file of the Principal District Munsif, Coimbatore. For Appellant : Mr.S.V.Jayaraman for Mr.S.Kadarkarai For Respondents 2 to 5 : Mr.B.Ramamoorthy https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT The Appellant/Respondent/Defendant has preferred this Second Appeal as against the judgment and decree dated 29.4.1994 in A.S.No.111 of 1992 made on the file of the Learned II Additional Subordinate Judge, Coimbatore. 2.The First Appellate Court viz., Learned II Additional Subordinate Judge, Coimbatore in the Judgment in A.S.No.111 of 1992 dated 29.4.1994 has among other things observed that 'admittedly construction by Veerammal was put up only in part of the property and not in the entire property, that too in the year 1981. No exclusive possession adverse and hostile to the interest of the plaintiff to his knowledge for the statutory partition of 12.5 years is established in the present case and in the absence of any such proof, the finding of the Trial Court that Veerammal has prescribed title by adverse possession is not legally sustainable. The mere non-participation of the plaintiff in the profits of the property and exclusive possession however by one co-owner long the period, without anything more will not be sufficient to claim adverse possession by later. The failure of the Trial Court to adhere to this legal position has resulted in an erroneous finding that Veerammal has perfected title to the suit property by adverse possession. As both the pleas raised by the defendants deserve to be negatived, the plaintiff being the joint owner of the suit property is entitled to the decree for partition and possession of his half share in the suit property and the dismissal of the suit by the Trial Court refusing to grant relief of partition is not totally unsustainable and resultantly allowed the appeal with costs' by the reversing Judgment and Decree dated 31.3.1992 of the Trial Court in O.S.No.841 1988. 3.Earlier, the Trial Court has framed two issues for determination. On the side of the Respondent/Appellant/Plaintiff (deceased) P.W.1 to 3 have been examined and Exs. A.1 to A.7 have been marked. On the side of the Appellant/Respondent/Defendant, D.W.1 and D.W.2 have been examined and Exs.B.1 to B.21 have been marked. 4.On an appreciation of oral and documentary evidence on record, the trial Court has come to a conclusion that the Respondent/Plaintiff has not established through the evidence of witnesses and documents that he is the person Marimuthu who has been described in Ex.A.1 sale deed (Xerox copy) dated 27.9.1961 and consequently dismissed the suit with costs. 5.Being aggrieved with the Judgment and decree dated 29.4.1994 https://hcservices.ecourts.gov.in/hcservices/ of the First Appellate Court viz., learned II Additional Subordinate Judge, Coimbatore made in A.S.No.111 of 1992, the Appellant/Respondent/Defendant has projected this Second Appeal before this Court. 6.At the time of admission of this Second Appeal, the following substantial question of law has been framed by this Court: "Whether the Judgment of the Lower Appellate Court is vitiated by its failure to consider the entire evidence on record and apply the corrected principles of law?" 7.THE CONTENTIONS, DISCUSSIONS AND FINDINGS ON THE SUBSTANTIAL QUESTION OF LAW: According to the learned counsel for the Appellant/Respondent/Defendant, the First Appellate Court viz., Learned II Additional Subordinate Judge, Coimbatore has committed an error in holding that Marimuthu who is referred to in the sale deed is the Respondent/Appellant/Plaintiff (deceased) though it is proved beyond the doubt that Marimuthu mentioned in Ex.A.1 sale deed dated 21.9.1967 is different person from that of the plaintiff. 8.It is the further contention on the side of the Appellant that the First Appellate Court has given too much importance to the description of the parties mentioned in Exs.A.1 and A.4 to A.7 and it will not prove the case of the plaintiff. 9.Expatiating his arguments, the Learned Senior Counsel for the Appellant submits that the First Appellate Court has come to a wrong conclusion that the documents produced on the Appellant/Defendant's side are not sufficient to prove the possession adversed to Marimuthu and also that the Trial Court has incorrectly held that the construction put up by the Appellant/Defendant's mother is only on the part of the property. 10.Finally, it is the submission of the Learned Senior Counsel for the Appellant that the First Appellate Court has wrongly held that the Respondent/Plaintiff (deceased) is a joint owner of the suit property and therefore, he is entitled to the relief of partition. 11.Per contra, it is the contention of the Learned counsel for the Respondents 2 to 5 (Legal Representatives of the deceased Appellant/Respondent/Plaintiff) that the First Appellate Court has analysed the oral and documentary evidence available on record carefully and has come to the right conclusion in allowing the https://hcservices.ecourts.gov.in/hcservices/ appeal filed by the Respondent/Appellant/Plaintiff by holding that the deceased Respondent/Plaintiff is the joint owner of the suit property and therefore, he is entitled to the decree of partition and possession of his share in the suit property and hence at this stage of the second appeal, the judgment of the First Appellate Court may not be interfered with by this Court in the interest of justice. 12.It is useful to refer to the averments made by the Respondent/Appellant/Plaintiff in the plaint for better appreciation of the factual matters in issue. 13.In the plaint, the Respondent/Appellant/Plaintiff has among other things mentioned that 'he and the Appellant/Defendant's mother Veerammal jointly purchased the vacant land described in the schedule of the plaint as per the Registered Sale deed dated 27.9.1961 (Ex.A.1) and that both of them are entitled to equal share in the property and that they have been in joint possession and the enjoyment of same. 14.Also, the Respondent/Appellant/Plaintiff has pleaded in the plaint that Veerammal taking advantage of the absence of the Respondent/Appellant/Plaintiff (since deceased) attempted to raise a permanent building in the common property, to which the Respondent/Plaintiff (deceased) objected and also issued a notice dated 21.11.1987 to Veerammal objecting to her attitude and sought division of the suit property. After the demise of Veerammal on 28.11.1987, the Appellant/Respondent/Defendant as her Legal Representative is entitled to claim the property and since he has attempted the same attitude of his mother, the present suit has been filed praying for division of the suit property into two equal shares and put the Respondent/Plaintiff (since deceased) in possession one such share. 15.In the written statement, the Appellant/Respondent/Defendant has averred that the Respondent/Plaintiff (deceased) never purchased the suit property along with Veerammal and that the Respondent/Plaintiff (deceased) is the owner of Ayyavu who has been residing at Door No.83, Gangavar Street, Coimbatore at the time of sale deed in respect of the suit property which has come into existence and Marimuthu referred to in the sale deed dated Ex.A.1 27.9.1961 has been residing at Nagakinathu Street, Coimbatore at Rangasamy Boyar's house and that the Respondent/Plaintiff (deceased) is now trying to pose himself as the joint purchaser of the suit property taking advantage of the fact that the name referred to in Ex.A.1 sale deed is Marimuthu. https://hcservices.ecourts.gov.in/hcservices/ 16.A perusal of the written statement filed by the Appellant/Defendant shows that a plea has been taken that the Respondent/Plaintiff (deceased) was an educated person and that the Marimuthu mentioned in Ex.A.1 Sale deed is unadmitted and he died unmarried and after his demise entire property devolved upon Veerammal who has been the joint owner of the suit property. 17.The stand of the Appellant/Defendant is that the suit property has been mortgaged with one Subbammal wife of Nanja Boyan residing at Mettupalayam for a sum of Rs.5,000/- and that the mortgage itself has been created by Veerammal because she has been the only owner of the suit property and after the death of Veerammal, the Appellant/Defendant has enjoying the property to the knowledge of one and all and adverse to the interest of the plaintiff and therefore, the Appellant/Defendant has perfected his title by means of adverse possession. 18.According to the Appellant/Defendant, in the suit property the construction has been put up by Veerammal who retired from the Mill and after her retirement, she received an amount of Rs.42,000/- and put up a construction in the suit property and as such, the Respondent/Plaintiff (deceased) has no manner of right. 19.It is the evidence of P.W.1 (Respondent/Plaintiff (since deceased) that he along with his uncle's daughter Veerammal has purchased the suit property as per Ex.A.1 sale deed dated 27.9.1967 and thereafter, Veerammal has expired and that the Defendant who is her son is entitled half share in the said property and in the year 1981, Veerammal has started constructing a house in the suit property for which he issued Ex.A.2 notice dated 21.11.1987 and that the returned cover is Ex.A.3 and thereafter, the said Veerammal has expired and he raised an objection before the Municipality, but no action has been taken and it is incorrect to state that he is not the person Marimuthu. 20.P.W.1 in his cross-examination has categorically stated that the total extent of the suit property is 6 cents and 192 sq.ft and Ex.A.5 is the Community Certificate dated 18.9.1969 issued to the Respondent/Plaintiff by the Tahsildhar, Coimbatore and his father-in-law has executed Ex.A.6 sale deed (xerox copy) dated 4.6.1967 in favour of his wife Mottammal, in which he has affixed his signature as a witness and Ex.A.7 is the xerox copy of the sale deed dated 31.12.1979 executed by his wife to one Piyari John, in which he has affixed his signature as a witness. 21.P.W.2 (son of P.W.1) in his evidence has stated that his father is the plaintiff and he has obtained the Community https://hcservices.ecourts.gov.in/hcservices/ Certificate dated 17.9.1969 and at that time, they were residing at Jamedhar Street. 22.P.W.3 in his evidence has deposed that he purchased the plaintiff's property in his wife name as per Ex.A.4 sale deed dated 18.2.1961 and he does not know about the plaintiff's family. 23.The evidence of D.W.1 (Appellant/Defendant) is to the effect that his mother's name is Veerammal and she has purchased the suit property on 27.9.1961 and that the suit property has been purchased by his uncle Marimuthu and others and the Respondent/Plaintiff (deceased) has not purchased the suit property and further, that the Respondent/Plaintiff (deceased) is not his relative. 24.It is the further evidence of D.W.1 that at the time of purchase of the suit property, it was the vacant one and his mother has been working in the Mill and in the year 1966, they have put up shed in the suit property and has been residing there and during the year 1981 a house has been constructed and that the Respondent/Plaintiff (deceased) has not come to the suit property. 25.D.W.1, in his cross-examination has deposed that the sale deed stands in the name of two persons and his mother has an half share in the sale deed and there is no mention about which half of the portion and the building is in one portion and at the time of construction of the house, the Respondent/Plaintiff (deceased) has not objected to. 26.D.W.2 in his evidence has stated that he knows about the Plaintiff and the Defendant and that the Defendant's mother name is Veerammal and he knows the Defendant's uncle Marimuthu and that the Respondent/Plaintiff (deceased) is the Paternal Uncle's son. 27.It is the contention of the learned counsel for the Respondents 2 to 5 (Legal Representatives of the deceased Respondent/Plaintiff) that the Appellant/Defendant, when he takes a plea of adverse possession, then he must admit the title of the Respondent/Plaintiff (deceased) and in the instant case, the Appellant/Defendant has denied the title of the Respondent/Plaintiff (deceased) in the suit property and as such the Appellant/Defendant is not entitled in law to plead adverse possession. 28.In support of the contention that the Appellant/Defendant is not entitled to take a plea of adverse possession, the learned counsel for the Respondents 2 to 5 (Legal Representatives of the deceased Respondent/Plaintiff) cites the decision of this Court in PAPPAYAMMAL V PALANISAMY AND OTHERS (2005 (3) CTC 292) wherein, it https://hcservices.ecourts.gov.in/hcservices/ is observed as follows: 31."According to the learned Senior Counsel for the appellant, even assuming that the alternative plea is permissible, the finding regarding adverse possession, rendered by both the Courts below, is wrong, as the main ingredients for proving the said plea have not been established. He would cite the following authorities, to substantiate the same: 1.(i)Neelaka Pillai alias Sarojiniamma v. K.Velu Pillai and Others, 2002 (3) M.L.J.728; (ii) Pushpam and Others v. K.M.Meeran and Other, 2004 (3) L.W.566 (iii) Ponnaiyan vs. Munian (Died) and Others, 1995 (1) L.W. 680; (iv) Sadasiva Gounder and another v. Purushothaman, 2000 (3) M.L.J. 785; (v) Muhammad Kaliba Rowther v. Muhammad Abdullah Rowther, AIR 1963 Mad. 84; (vi) Deva (Dead) through LRs. v. SajjanKumar (Dead) by LRs., 2003 (7) SCC 481; (vii) Janaki Pandyani v. Ganeshwar Panda (Dead) by LRs. And another, 2001 (1) CTC 109; (viii) Darshan Singh and ors. v. Gujjar Singh (Dead) by Lrs and ors., 2002 (1) CTC 240; (ix) V. Rajeshwari (Smt.) v. T.C. Saravanabava, 2004 (1) SCC 551; (x) Balkrishnan v. Satyaprakash and others, 2001 (2) SCC 498; (xi) Md. Mohammad Ali (Dead) by L.Rs. v. Jagadish Kalita and others, 2004 (1) SCC 271; (xii) Amrendra Pratap Singh v. Tej Bahadur Prajapati & others., 2004 (2) L.W.623; (xiii) P. Chelliah v. Mottayandi Thevar (Died ) & others, 2002 (4) L.W. 780 (xiv) Kannappan v. Pargunan and 9 Others, 2000 (2) CTC 219; (xv) Tayub Khan alias Tayub Sultan v. Hairunnissa Beevi and others, 2003 (3) M.L.J. 103; (xvi) S.Subba Reddiar (Died) and others v. Bhagyalakshmi Ammal alias Guruvachi Ammal Anand another, 1996 (2) L.W. 31: (xvii) Lakshiammal and another v. C.P. Nanjappan and two others, 2000 (3) CTC 29; (xviii) Nagarajan v. Rajamani Aiyar and seven others, 1999 (1) CTC 428; (xix) Raman and another v. Dakshnamurthy, 1996 (2) L.W.811; (xx) Marappa Gounder (Deceased) & others v. Ramalingam (Deceased) & others 2002 (4) L.W. 300; (xxi) S.M.Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254. 32.The following are the important principles, laid down in the above decisions of this Court as well as the Supreme Court; i)A party can plead adverse possession only when he admits that another person has got title. ii)In the case of a co-owner, mere possession, however long it might be, would not constitute https://hcservices.ecourts.gov.in/hcservices/ adverse possession. The possession must be over the statutory period and there must be the clear ouster to the knowledge of the co-owner against whom the adverse possession is pleaded. iii)As between the co-owners, there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment of one of them to the knowledge of the other, so as to constitute the ouster. The burden of making out ouster is on the person, claiming to displace the lawful title of the co-owner, by his adverse possession. iv)The party pleading adverse possession must state with sufficient clarity as to from when his adverse possession commences and the nature of his possession. v)When the co-owners are close relations, something more is to be proved, to prescribe title by adverse possession, than a case between two strangers. vi)It would not be sufficient to show that one co-owner was in separate possession of the property and another co-owner was out of possession. vii)A single circumstance of payment of tax or mutation of records would not, by itself, establish ouster or adverse possession as against the co-owner. 29.He also relies on the decision of the Hon'ble Supreme Court in ANNAKILI V VEDANAYAGAM AND OTHERS (2008 (1) CTC 329) wherein, it is held hereunder: "Claim by adverse possession has two elements (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite https://hcservices.ecourts.gov.in/hcservices/ for a period of more than 12 years without anything more do not ripen into a title". 30.On the side of the Respondents 2 to 5, yet another decision of the Hon'ble Supreme Court in DES RAJ AND OTHERS V BHAGAT RAM (DEAD) BY LRs AND OTHERS (2007 (2) CTC 838) is relied on to the effect that 'Onus of proving adverse possession is on person claiming it etc." 31.It is also the contention on the side of the Respondents 2 to 5 that the Respondent/Plaintiff (deceased) is the co-owner of the suit property and there is no 'ouster' in the present case on hand. 32.The Respondent/Plaintiff during his life time has caused a Lawyer's Notice Ex.A.2 dated 21.11.1987 to Veerammal (Appellant/Defendant's mother) wherein, it is stated that Veerammal and the Respondent/Plaintiff (since deceased) have jointly purchased the property mentioned in the notice as per Ex.A.2 sale deed document No.5729 of 1961 and that the property has been in joint possession and enjoyment and further, that recently she seems to raise a building in part of the property without authority of the plaintiff and since it has not been safe to continue joint possession, the Respondent/Plaintiff has called upon the said Veerammal to effect a division of the property into two like shares and put him in possession of one such share etc. 33.Ex.A.5 is the Community Certificate issued in favour of P.W.2 (son of P.W.1/Plaintiff)by the Tashildar, Coimbatore, dated 18.9.1989. In this, it is clearly mentioned that P.W.2s father's name is A.Marimuthu residing at N.H.Road, Jamedhar Lane, No.15/10 in Coimbatore Village and Coimbatore Taluk. It is seen from Ex.A.5 that P.W.2 (son of P.W.1/Plaintiff) belongs to 'Boya' community as stated by the Headman and also in the Community Certificate issued by the Tashildhar, Coimbatore. 34.The Appellant/Defendant takes a stand that the Respondent/Plaintiff (deceased) is not a person who purchased the suit property along with his mother Veerammal and that the Respondent/Plaintiff (deceased) has posed himself as the purchaser of the suit property, taking advantage of the fact that the name mentioned in Ex.A.1 Sale deed dated 27.9.1961 is Marimuthu. 35.It is a well settled principle in law that the burden is upon an individual making the affirmative averment. A party who avers a title must establish the same onus is on an individual who asserts a proposition or fact it is not a self evident. When a case https://hcservices.ecourts.gov.in/hcservices/ proceeds, the burden shifts from time to time. In fact, a Court of Law ought not to be blind to the facts proved before it. In majority of the cases 'the burden of proof' is defined. The individual on whom the burden of proving lies in the first place may shift it to other by proving the facts giving right to a presumption in his favour. As a matter of fact, Section 102 of the Indian Evidence Act speaks of the initial burden which is always on the Plaintiff and if he discharges that onus and makes out a case which entitles him to the relief, then the burden shifts on to the defendant to prove those circumstances, if any, which will disentitle the plaintiff to the same. It is wholly wrong to permit the onus of proof to be shifted by a surplusage amount in the pleading or by an incautious acceptance of an issue framed upon that averment. The amount of evidence requires to shift the onus of proof depends upon the facts and circumstances of the case as opined by this Court. 36.As a matter of fact, initial burden prescribed under Section 101 or 102 of the Indian Evidence Act cannot be shifted by employing the ingredient of Section 106 of the Act. Even if a fact within the knowledge of a particular person be a negative one, it is for him to prove it in the considered opinion of this Court. 37.The Trial Court in its judgment in the suit in paragraph 11 has inter-alia observed that the Plaintiff has not established that he enjoyed the suit property along with Veerammal through documents and evidence of witnesses and also further, opined that for the past 26 years the Respondent/Plaintiff (since deceased) has not established any right in the suit property, which cannot be accepted and moreover, if it is to be construed that the plaintiff is the said Marimuthu who has purchased the property along with the Appellant/Defendant's mother Veerammal, then in that event also the defendant's mother has acquired adverse possession over the suit property. 38.It is not out of place for this Court to point out that a reading of the Trial Court's Judgment in the suit points out that it has not dealt with the documents filed by the Respondent/Plaintiff namely Ex.A.1 sale deed dated 27.9.1967. Ex.A.2 Plaintiff lawyer's notice dated 21.11.1987 to Veerammal, Ex.A.3 returned Registered cover, Ex.A.4 Xerox copy of sale deed dated 18.2.1961 executed by the Plaintiff, Ex.A.5 Community Certificate issued to the Plaintiff viz., P.W.2 dated 18.9.1989, Ex.A.6 sale deed dated 4.6.1967 executed in favour of the Respondent/Plaintiff's wife Mottammal by one Rangasamy and Ex.A.7 sale deed dated 31.12.1979 executed in favour of the Respondent's wife Mottammal by one Pyari John and the grossly omission in this regard has resulted in miscarriage of justice, as opined by this https://hcservices.ecourts.gov.in/hcservices/ Court. Suffice for this Court to point out that Exs.A.1 to A.7 coupled with the oral testimony of P.W.1 to 3 clinchingly in a cogent and coherent and connecting fashion go to prove that the Respondent/Plaintiff has established his case in the manner known to law and the considered finding rendered by the Trial Court in this regard is not legally sustainable in the eye of law. 39.Coming to the aspect of plea of adverse possession taken by the Appellant/Defendant, it is to be pointed out that the Appellant/Defendant has not admitted the half right of the Respondent/Plaintiff (deceased) in the suit property and in law only when he admits the title of the Respondent/Plaintiff he can plead adverse possession and as such the plea of adverse possession taken by the Appellant is not accepted by this Court. 40.Further, the Respondent/Plaintiff (deceased) has half share in the suit property as per Ex.A.1 sale deed dated 27.9.1961 (vacant site) and since he is a co-owner and after his demise his Legal Representatives viz., the Respondents 2 to 5 have got half right in the suit property and in any event, Exs.B.2, B.5 to B.16 property tax receipts etc. cannot come to the aid of the Appellant/Defendant to claim the relief of adverse possession and the share of the Respondent/Plaintiff (since deceased) cannot take advantage of either by Veerammal or by his son viz., the Appellant/Defendant and viewed in that perspective, the plea of adverse possession taken on the side of the Appellant/Defendant is not accepted by this Court and bearing in mind a vital fact that the Respondent/Plaintiff (deceased) as a joint owner of the property has a half share in the suit property as