IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 31.10.2011 Coram The Hon’ble Mr.Justice R.S.RAMANATHAN Second Appeal No.436 of 2011 and M.P.No.1 of 2011 D.Arunachalam ...Appellant/Appellant/Plaintiff vs. 1. P.Ekambaram 2. S.Selvamuthukumar 3. R.M.Saravanan ...Respondents/Respondents/Defendants Prayer:- Second Appeal against the judgment and decree dated 29.1.2011 in A.S.No.81 of 2010 on the file of the Additional District Judge (Fast Track Court No.II), Cuddalore confirming the judgment and decree dated 5.10.2010 in O.S.No.100 of 2010 on the file of the II Additional Subordinate Judge, Cuddalore. For appellant : Mr.S.K.Raghunathan For R1 : Mr.Mr.N.Manoharan For R2 & R3 : No appearance. JUDGMENT The unsuccessful plaintiff is the appellant. 2. The plaintiff/appellant filed the suit for declaration declaring his title to the suit property and for injunction or in the alternative for recovery of possession of the suit property. The case of the appellant/plaintiff was that the property in T.S.No.1497/2 and 1498/2 and 1493/2 originally belonged to one Sundaramoorthy, father of the second defendant and he formed a lay out after getting approval from the Deputy Director of Town and Country Planning, Salem and appointed one R.Veeramani as general power agent and sold various plots to various persons and the plaintiff purchased the suit property under the registered sale deed https://hcservices.ecourts.gov.in/hcservices/ dated 21.7.1989 from Sundaramoorthy through his power agent Veeramani and eversince the date of purchase, he is in possession and enjoyment of the same and the second defendant is the son of Sundaramoorthy and the third defendant is his power agent and the first defendant claims to have purchased the suit property from the power agent of the second defendant under a sale deed dated 28.7.2008 and attempted to take forcible possession of the suit property and therefore, the suit was filed for declaration and injunction or in the alternative for recovery of possession. 3. The first respondent contested the suit stating that Sundaramoorthy was not the absolute owner of the property and the suit property and other properties originally belonged to one Kadirvel Nadar, father of Sundaramoorthy and he formed the lay out and Sundaramoorthy made a claim against his father with respect to those properties and therefore, the father Kathirvel Nadar filed a suit in O.S.No.226 of 1978 and in that suit, a compromise was entered into and based on that compromise, a decree was passed in that suit and Sundaramoorthy was given only life estate upon certain items of properties viz., T.S.Nos.1512/2 2.16 acres T.S.No.1500 0.93 acres T.S.No.1493/2 1.41 acres T.S.No.1497/2 0.7809 sqft T.S.No.1498/2 Ac 1.37375 sqft. Therefore, Sundaramoorthy had no power to sell the property and in the compromise, he was not given the absolute title over the suit property and therefore, any sale made by Sundaramoorthy through his power agent will not be valid after the lifetime of Sundaramoorthy and therefore, the appellant cannot claim any right under the sale deed in his favour executed by Sundaramoorthy. It was further contended that the first defendant purchased the property through the power agent of the second defendant, who is the absolute owner and therefore, the appellant/plaintiff cannot maintain a suit against the defendants as the second defendant was the owner of the property and by the sale deed, he conveyed valid title to the suit property to the first defendant. 4. Both the courts below dismissed the suit holding that Sundaramoorthy was having only life estate and no sale by Sundarmurthy will be valid after his lifetime and there was no proof that the appellant is in possession and enjoyment of the property from the date of sale as the suit property is a vacant site and it cannot be contended that the appellant is in possession of the property and the appellant has also not proved his adverse possession and hence, the appellant is not entitled to the relief https://hcservices.ecourts.gov.in/hcservices/ prayed for. 5. Mr.S.K.Raghunathan, learned counsel for the appellant submitted that, admittedly, the appellant purchased the property under a registered sale deed dated 21.7.1989 and even assuming that Sundaramoorthy was given life estate under the compromise decree, the said Sundaramamurthy died on 4.9.1989 and therefore, as per the provisions of explanation (b) to Article 65 of the Limitation Act, the appellant has perfected title by adverse possession for more than 15 years before filing of the suit and this was not properly appreciated by the courts below. He also relied upon the judgment reported in JAGAT RAM v. VARINDER PRAKASH (AIR 2006 SC 1786) and submitted that as per the above judgment, the possession of the title holder, after the death of life estate holder, became adverse to the knowledge of the true owner and therefore, the purchaser is entitled to declaration as he had perfected title by adverse possession. He further contended that when the sale deed specifically states that possession was handed over to the purchaser, the recital in the sale deed can be taken into consideration to draw a presumption that possession was handed over and relied upon KAMAKSHI AMMAL v. RAJALAKSHMI (AIR 1995 MADRAS 415). He further contended that the second defendant is a competent witness to speak about the possession of the property and he did not enter into the box and his power agent was examined to prove the possession and the power agent cannot be expected to give evidence regarding the matter which is within the personal knowledge of the principal and admittedly, the third defendant, power agent was appointed only on 7.4.1999 and therefore, he cannot speak about the possession of the owner viz., the second defendant and in the absence of any contra evidence by the second defendant, the court ought to have accepted the case of the appellant regarding adverse possession. He therefore, submitted that from the date of sale in the year 1989, the appellant is in possession of the property and therefore, he has perfected title by adverse possession and hence, he is entitled to the relief of declaration. 6. On the other hand, the learned counsel for the respondent submitted that explanation (b) to Article 65 of the Limitation Act cannot be applied to the facts of this case and even according to the appellant, he came into possession of the property as owner and he continued to be in possession in the capacity as owner and he also cannot claim adverse possession when he is not in possession of the property and relied upon the judgment in P.T.MUNICHIKKANNA REDDY v. REVAMMA ((2007) 6 SCC 59), ROOP SINGH v. RAM SINGH ((2000) 3 SCC 708) and RAMA KANTA JAIN v. M.S.JAIN (AIR 1999 Delhi 281). https://hcservices.ecourts.gov.in/hcservices/ 7. On the basis of the above submissions, the following substantial questions of law are framed for consideration:- "1. Whether the appellant has perfected title by adverse possession? 2. Whether the possession of the appellant from the date of death of the life estate holder Sundaramoorthy viz., 4.9.1989 can be deemed to be adverse possession against the true owner? 8. Both the courts below, on the basis of Ex.B4, the compromise memo filed in O.S.No.226 of 1978, held that under the compromise entered into between Sundaramoorthy and his father in O.S.No.226 of 1978, Sundaramoorthy has got only life estate and his male issues were given vested reminder and under the compromise, Sundaramoorthy had no right to sell the property and his male issues are entitled to enjoy the property absolutely. Therefore, Sundaramoorthy, the vendor of the appellant was having only life estate and the purchase by the appellant from Sundaramoorthy also will not enure beyond the lifetime of Sundaramoorthy. Admittedly, Sundaramoorthy died on 4.9.1989 and therefore, after 4.9.1989, the appellant cannot claim title to the suit property. 9. The next question that arises for consideration is whether the possession of the appellant from 4.9.1989 would be considered as adverse possession as he claims to be in possession of the property till the date of filing the suit for more than the statutory period. In other words, whether the plaintiff can claim that he has perfected title by adverse possession by enjoying the property from 4.9.1989, the date of death of his life estate holder for more than the statutory period. 10. The law of adverse possession has been thoroughly discussed in the judgment reported in VEERASEKARAN AND ANOTHER v. DEVARASU ((2008) 7 MLJ 275) and after quoting various judgments of the Honourable Supreme Court, it was held as follows:- ""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 https://hcservices.ecourts.gov.in/hcservices/ possession of the land. Ingredients of adverse possession must be established." 16. In a judgment reported in (2006) 7 SCC 570 in the case of (T.Anjanappa and others Vs. Somalingappa and another) the Hon'ble Supreme Court has held as 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 adverse 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 CTC 219 (supra) this Court has held that a party can contend adverse possession 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. https://hcservices.ecourts.gov.in/hcservices/ Further, in the judgment reported in (2004) 10 SCC 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 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" 18. In the judgment reported in (2009) 13 SCC HSC 229 in the case of (L.N.Aswathama and another 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 please 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." https://hcservices.ecourts.gov.in/hcservices/ 19. In the judgment reported in (2007) 6 SCC 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 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" 20. In the judgment reported in (2005) 8 SCC 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." 11. Quoting the above judgments I held in K.GOPALAN (DIED) AND https://hcservices.ecourts.gov.in/hcservices/ OTHERS v. MUTHULAKSHMI (2011-3-TLNJ 489) in para 25 as follows:- "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." 12. Therefore, it is not the length of time that would be determining whether the person has perfected title by adverse possession and it is the conduct of the person which would determine whether the person was enjoying the property with the intention of perfecting his title by adverse possession over a statutory period. Admittedly, the appellant/plaintiff has stated that he is in enjoyment of the property as absolute owner and his initial possession was traceable to title under the sale deed. Therefore, when the initial possession was lawful, it is antithesis to adverse possession. In adverse possession, the initial possession must be an illegal one which later ripens into lawful title by continuous possession for more than 12 years with the intention of holding the property hostile to the knowledge of the true owner. As the appellant claims possession under a lawful title viz., the sale deed from the lawful estate holder, it cannot be stated that he was holding the property adverse to the knowledge of the real owner after the death of the life estate holder. Further, the appellant cannot take advantage of the provisions of explanation (b) to Article 65 of the Limitation Act. As per explanation (b) to Article 65 of the Limitation Act, where a suit was filed by Hindu or Muslim entitled to the possession of immovable property on the death of Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies. Therefore, for invoking the explanation (b) to Article 65, of the Limitation Act there are three conditions to be satisfied: (i) the suit must have been filed by Hindu/Muslim for possession of the property on the death of the Hindu/Muslim female; (ii) the person in possession of the property must be inducted into possession by a female who does not have any absolute title and she was having only a life estate; and (iii) the suit must have been filed within twelve years from the date of death of the female. This was made clear in the judgment reported in AIR 2006 SC 1786 (cited supra) relied upon by the learned counsel for the appellant wherein it has been held as follows:- "In our view, the High Court was right in holding that the suit was barred by limitation. Article 65 of the Limitation Act, 1963 https://hcservices.ecourts.gov.in/hcservices/ prescribes the period of limitation for possession of immovable property or any interest based on title where the suit is by a Hindu or Muslim entitled to possession of immovable property on the death of a Hindu or Muslim female. Article 65(b) in express terms provides that "the possession of the defendant shall be deemed to become adverse only when female dies". The limitation prescribed is 12 years beginning from the date when the possession of the defendant becomes adverse to the plaintiff. Learned counsel submitted that in view of Article 65 of the Limitation Act, 1963 the suit had to be filed within 12 years from the date on which the possession of the defendant became adverse and, therefore, it was immaterial as to when the Hindu female died. It is not possible to sustain the contention because the Article itself provides that the possession of the defendant shall be deemed to become adverse only when the female dies. Thus, there is no scope for the argument that limitation does not run from the date on which the Hindu female died and that it would start running from some other date. In our view, the High Court has rightly held that the suit should have been filed by the plaintiff within 12 years of the death of the Hindu female, namely Smt.Kirpi, and the same having not been filed within 12 years was barred by limitation. Much was sought to be made of the pending litigation relating to the adoption and gift deed executed in favour of the defendant. It was contended before us that since the matter was still pending and though the plaintiff's suit had been decreed on 16.1.1960, the plaintiff could not have filed the instant suit till such time as the Letters Patent Appeal was not dismissed by the High Court i.e. till 18.11.1981. The submission has no substance because in the litigation which was pending before the High Court the plaintiff had not claimed possession of the suit land. The High Court has rightly pointed out that even if the plaintiff had sought amendment of the pleadings in the pending matter and claimed decree for possession, the legal position would have been https://hcservices.ecourts.gov.in/hcservices/ different. He having not done so, he should have filed the suit for possession of the suit land within 12 years of the death of Smt.Kirpi, which he failed to do." 13. In this case, no suit was filed by the defendant for recovery of possession and there was no female heir given life estate and from whom, the person got possession and admittedly, the appellant got possession from Sundaramoorthy who was having life estate. Therefore, statutory presumption as per the explanation (b) to Article 65 of the Limitation Act cannot be taken by the appellant. As the appellant failed to prove the fact that he perfected title by adverse possession, he is not entitled to the decree prayed for. Further, having regard to the nature of the property viz., vacant site, in the absence of any payment of kist or any tax paid by the appellant to prove his possession, it cannot be presumed that the appellant is in possession of the property and enjoying the property hostile to the knowledge of the true owner. 14. Though as per the judgment reported in AIR 1995 MADRAS 415 cited supra, the recitals in the document about the possession handed over under the document will prima facie prove possession given to the purchaser, having regard to the nature of the property being a vacant site, in the absence of any proof of possession, it cannot be stated that the appellant perfected title by adverse possession. Hence, the substantial questions of law are answered against the appellant and I hold that the appellant has not proved that he has perfected title by adverse possession and he has not satisfied the conditions to invoke Article 65 of the Limitation Act and both the courts below have rightly considered the law and dismissed the suit. I do not find any reason to interfere with the judgment and decree of the courts below. In the result, the second appeal is dismissed. The judgment and decree of the courts below are confirmed. No costs. The connected miscellaneous petition is also dismissed. ssk. Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional District Judge (Fast Track Court No.II), Cuddalore. 2. The II Additional Subordinate Judge, Cuddalore. + 1 cc to Mr. S.K.Rakhunathan, Advocate SR No.65733 + 1 cc to Mr. N. Manokaran, Advocate SR No.65923 BS(CO) SR/12.12.2011 JUDGMENT IN S.A.No.436 of 2011 https://hcservices.ecourts.gov.in/hcservices/