IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.07.2008 CORAM THE HONOURABLE Mrs. JUSTICE R.BANUMATHI S.A. No.199 of 1998 1. Veerasekaran 2. Kadirvelu ... Appellants/Defendants Vs. Devarasu. ... Respondent/Plaintiff PRAYER: Second Appeal against the Judgment and Decree dated 29.08.1997 rendered in A.S.No. 44/1996 on the file of the Principal District Court, Villupuram, confirming the Decree and Judgment dated 31.1.1995 rendered in O.S.No.786/1990 on the file of the Principal District Munsif Court, Villpuram. For Appellants : Mr.N.Suresh For Respondent : Ms. J.Ranjanidevi for Mr.S.Palani Velayutham JUDGMENT This Second Appeal arises out of the concurrent findings of the Courts below granting declaration and Permanent Injunction in respect of 'A' schedule properties and recovery of possession in respect of 'B' schedule properties. Unsuccessful Defendants are the Appellants in the Second Appeal. For convenience, the parties are referred as per their array in the suit. 2. The suit 'A' schedule properties are (i) S.No.266/5 – 32 ½ cents out of 65 cents on the western side; (ii) S.No.41/9 – measuring east-west 30', north-south 120'; and suit 'B' schedule properties are (i) S.No.266/5 – 32 ½ cents out of 65 cents on the eastern side; and (ii) S.No.41/9 – measuring east-west 30' , north-south 120'. https://hcservices.ecourts.gov.in/hcservices/ 3. Parties are related as under:- Kuppu Udayar -------------------------------------------- | | Govindasamy Chinnasamy = Devaraju (son) = Alamelu ammal(wife) | | Sale to Narayanasamy Udayar Ex.B2 dated 29.09.1938 | Ariyaputhiri Udayar | Veerasekaran(D1) 4. Briefly stated case of the Plaintiff is as follows:- Suit properties originally belonged to the joint family of Govindasamy and Chinnasamy. Chinnasamy was mentally retarded and therefore, his half share extent was also being enjoyed by Govindasamy. Govindasamy had executed a sale deed in respect of half of the properties in favour of his father-in-law Rajamanickam on 05.02.1924. Thereafter, Rajamanickam's wife had executed a settlement deed on 07.10.1960 in favour of the Plaintiff in respect of eastern half of the properties. Plaintiff claims right in the entire properties and so far as half the extent is concerned, he claims adverse possession. Plaintiff claims that the defendants have trespassed into eastern half of the properties and he claims that he is in possession of half of the extent of the properties and in respect of other half viz., the 'B' schedule Plaintiff seeks for recovery of possession. 5. Denying the plaint averments, Defendants have filed written statement contending that Chinnasamy was not mentally retarded and he was hale and healthy. According to the Defendants, Chinnasamy and his wife Alamelu Ammal executed a sale deed in favour of Narayanasamy Udayar under Ex.B2 dated 29.09.1938. The sale deed was in respect of half the extent of property of Chinnasamy being the half owner of the entire properties. Narayanasamy Udayar's son was one Ariyaputhiri. Narayanasamy Udayar was in possession and enjoyment of the half the extent and after Narayanasamy Udayar, Ariyaputhiri came into possession and enjoyment and thereafter, 1st Defendant being the only son of Ariyaputhiri came into possession and enjoyment of https://hcservices.ecourts.gov.in/hcservices/ the property. The claim of adverse possession is denied and the claim of trespass is also denied. 6. On the above pleadings, relevant issues were framed. Upon consideration of oral and documentary evidence, trial court held that though Defendant's ancestor purchased the property under Ex.B2, trial court accepted Plaintiff's plea of adverse possession. Pointing out, that the Plaintiff had paid Kist for the property under Exs.A9 to A20 and paid house tax under Exs.A21 to A34, Courts below held that Plaintiff has proved long possession and prescribed title of 'B' schedule by adverse possession. In so far as, sale deed in favour of the defendants, Courts below upheld Ex.B2, but proceeded to observe if really the Defendants were in possession of the properties, first Defendant would have obtained Patta in his name and on those findings negatived the defence plea. On the basis of house tax receipts filed by the Plaintiff Exs.A21 to A34, trial court held that the Plaintiff is in possession and enjoyment of item No.2 house also and granted declaration and permanent injunction in respect of 'A' schedule properties and delivery of possession in respect of 'B' schedule properties. 7. Being aggrieved, Defendants have preferred appeal in A.S.No.44/1996. Observing that the Plaintiff had perfected title by adverse possession, lower Appellate court confirmed the findings of the trial court and dismissed the appeal preferred by the Defendants. 8. Challenging the concurrent findings of the Courts below, Defendants have preferred this Second Appeal. During the course of arguments the following substantial questions of law were formulated for determination in the Second Appeal: 1) Whether the finding of adverse title by prescription in favour of the plaintiff for 'B' schedule property when the suit had been filed for recovery of possession on any imaginary cause of action of trespass, not untenable. 2) Whether in the fact of transfer of title by a registered sale deed, the title vested under it could be defeated by failure to obtain exclusive Patta. 9. Challenging the concurrent findings of the Courts below, Mr.N.Suresh, learned counsel for the Appellants inter alia contended that Plaintiff claims right and title both by survivorship and adverse possession and plea of survivorship and adverse possession cannot go together. The learned counsel for the Appellants further submitted that when Chinnasamy had sold 'B' schedule properties to Narayanasamy Udayar under Ex.B2 sale https://hcservices.ecourts.gov.in/hcservices/ deed dated 29.09.1938, Plaintiff cannot seek for delivery of possession of 'B' schedule properties. The learned counsel for the Appellants would further submit that merely on the strength of Kist receipts, plea of adverse possession cannot be countenanced. The learned counsel would further submit that when the Courts below did not appreciate the oral and documentary evidence in a proper perspective, under Sec.100 C.P.C. High Court can certainly interfere with the concurrent findings of the Courts below. 10. Supporting the concurrent findings of the Courts below, Ms.J.Rajanidevi, the learned counsel for the Respondent contended that when the 1st defendant had not produced any document showing his possession and enjoyment or possession of Narayanasamy, Courts below rightly upheld the plea of adverse possession by the Plaintiff. The learned counsel would further submit that in the absence of Patta, Kist and other revenue documents, Defendants cannot be said to be in possession of the suit properties and the Courts below rightly granted the decree in favour of the Plaintiff. 11. 'A' schedule properties comprise western portion in two Survey numbers 266/5 – 65 cents and 41/9 – east-west 30', north- south 120' and the house thereon. 'B' schedule properties pertain to the same Survey numbers eastern portion. Plaintiff claims title to 'A' schedule properties through his father Govindasamy. According to the Plaintiff, his paternal uncle Chinnasamy was allotted 'B' schedule properties and Chinnasamy had no legal heirs and therefore Plaintiff's father Govindasamy was enjoying the entire properties. Plaintiff has further alleged that Defendants have trespassed into the 'B' schedule properties. 12. In his evidence, P.W.1/Plaintiff has stated that his father Govindasamy had executed a sale deed in respect of one half of the properties in favour of his father-in-law Rajamanickam on 05.02.19224. Rajamanickam's wife is said to have executed a settlement deed on 07.10.1960 in favour of the Plaintiff in respect of eastern half of the properties. Plaintiff had not produced the said sale deed and the settlement deed said to have been executed by Rajamanickam's wife. Courts below ignored this material aspect of non-production of documents on which the Plaintiff basis his claim. Had the document been produced, tracing of title and extent of property allegedly settled could have been known. But the Plaintiff has not chosen to produce the said sale deed in favour of his grand-father Rajamanickam dated 05.02.1924 nor the settlement deed. https://hcservices.ecourts.gov.in/hcservices/ 13. The case of the Plaintiff is that his paternal uncle Chinnasamy died issueless and therefore Plaintiff's father Govindasamy was enjoying the property of Chinnasamy and therefore, Plaintiff is also entitled to 'B' schedule properties. 14. When viewed in the light of Ex.B2 sale deed, foundation of Plaintiff's case crumbles. Ex.B2 is the sale deed in favour of Narayanasamy Udayar by Chinnasamy and his wife Alamelu ammal. Under Ex.B2 Chinnasamy sold the properties (i) S.No.18/9 – 71 cents out of 1.41 acres (western side); (ii) S.No.19/9A – 72 cents out of 1.46 acres (northern side); (iii) S.No.74/2 – 38 cents out of 76 cents (northern side) and (iv) S.No.242 – 47 cents out of 94 cents (northern side) with half share in the Well. It is amply made clear that the suit Survey number 266/5 house site (item No.1 of 'B' schedule) and house (item No.2 of 'B' schedule) were sold to Narayanasamy Udayar under Ex.B2. Thus 'B' schedule property had been sold to Narayanasamy Udayar by ancient document Ex.B2 dated 29.09.1938. 15. D.W.2 is related to the 2nd Defendant. D.W.3 is the mother of the 1st Defendant aged 86 years. D.W.4 is the Village Assistant of Azhiyur village. In their evidence D.Ws.2 to 4 have categorically stated that the Plaintiff is in enjoyment of western portion and eastern portion is in possession and enjoyment of the Defendants. D.Ws.2 and 3 have spoken about the eastern portion being allotted to Chinnasamy and that Chinnasamy had sold to Narayanasamy Udayar (father of the 1st Defendant) in 1938. D.W.2/2nd Defendant who has also married the sister of the Plaintiff had stated that the Plaintiff's family is residing on the western side of the house and 2nd Defendant is residing on the eastern side. The evidence of D.W.3 (mother of the 1st Defendant) would corroborate the evidence of D.W.2. In his evidence, D.W.4 who is the Village Assistant had also spoken about the mode of enjoyment of the suit properties by the Plaintiff and the 2nd Defendant. Evidence of D.Ws.2 to 4 coupled with Ex.B2 sale deed would clearly establish that Chinnasamy was allotted to 'B' schedule properties and the same was sold to Narayanasamy Udayar who is the father of the 1st Defendant. While so, the Courts below committed serious error in ignoring Ex.B2. Courts below diluted the evidentiary value of Ex.B2 on the flimsy ground by picking loop-holes in the oral evidence of D.Ws.2, 3 and 5. Courts below adopted erroneous approach ignoring Ex.B1. 16. The case of the Plaintiff is that Chinnasamy Udayar was mentally retarded and his mental faculties being affected. From the oral evidence, it is seen that Chinnasamy Udayar was transgender. Courts below fell in error in ignoring the same and not properly appreciating the oral evidence of defence witnesses. https://hcservices.ecourts.gov.in/hcservices/ In their evidence, D.Ws.2, 3 and 5 have stated that Chinnasamy Udayar was a transgender and married to Alamelu ammal. Some of the defence witnesses have stated that they did not attend the marriage of Chinnasamy Udayar. Ex.B2 sale deed is the clinching piece of document indicating that Alamelu ammal was the wife of Chinnasamy Udayar. While so, on flimsy ground, trial court brushed aside the oral evidence and erred in ignoring the weight of Ex.B2. 17. To uphold the Plaintiff's case that he is entitled to the entire extent of the suit properties, Courts below mainly relied upon Ex.A1 mortgage deed dated 12.09.1960. Ex.A1 mortgage deed was executed by the Plaintiff in favour of one Varadarajalu borrowing a sum of Rs.500/-. Under Ex.A1, the mortgaged properties are (i) S.No.266/5 – 65 cents; (ii) S.No.242 – 47 cents out of 94 cents (southern half side); (iii) S.No.72 – 73 cents out of 1.46 acres (southern half side); (iv) S.No.74/2 – 38 cents out of 76 cents (southern half side). By perusal of the above, it is seen that though the Plaintiff has stated that he is mortgaging the southern half for all items, for the suit S.No.266/5 alone, entire extent of 65 cents is said to have been mortgaged. It is not known how the Plaintiff claims to be in possession of entire extent in S.No.266/5 alone. It is relevant to note that the discharged mortgage deed was not filed by the Plaintiff. On the basis of Ex.A1 mortgage deed (dated 12.09.1960) the weight of ancient document Ex.B2 dated 29.09.1938 cannot be ignored. Further, Ex.A1 mortgage deed could only be a stray instance, on the basis of which Plaintiff cannot be said to have perfected title by way of adverse possession. 18. Courts below seems to have substantially weighed that number of Kist receipts filed by the Plaintiff. Ex.A2 is the Patta pass book and Ex.A7 is the Patta stand in the name of the Plaintiff for the suit S.No.266/5 – 0.26.5H. Ex.A9 to Ex.A20 are the Kist receipts paid by the Plaintiff for the suit properties. Exs.A21 to A34 are the house tax receipts paid by the Plaintiff. May be that the Plaintiff had paid the Kist and house tax. Possession however long, it cannot amount to adverse possession. In his evidence D.W.1 has stated that he has also raised objection for issusance of Patta in the name of the Plaintiff for suit S.No.266/5. When that being so, based on Ex.A7 Patta (dated 27.5.1985), it cannot be held that the Plaintiff has derived title to the entire extent in S.No.266/5. It is fairly well settled that Patta cannot confer any title. 19. Courts below disbelieved the defence plea mainly on the ground that after Ex.B2 sale deed, Defendant's father has not chosen to obtain Patta nor produced Kist receipt. It is no doubt true that the Defendants have produced only one Kist receipt https://hcservices.ecourts.gov.in/hcservices/ Ex.B3 dated 06.07.1978. Defendants have produced number of electricity bills (Exs.B4 to B26). Defendants have also produced house tax receipts (Exs.B27 to B30). When the Defendants have also produced documents, defence plea cannot be discarded on the ground that the defendants and Narayanasamy Udayar have not obtained Patta. Courts below erred in drawing adverse inference against the Defendants for not obtaining Patta for the suit Survey Number 266/5. 20. As seen from Ex.B1, earlier Plaintiff has filed suit in O.S.No.787/1987 against the Defendants. In the said suit the Plaintiff has alleged that he is in possession of entire extent of suit S.No.266/5 and sought for declaration, Permanent Injunction and for possession. Insofar as, house site and house thereon in S.No.41/9 (present suit 2nd item) measuring east-west 60', north-south 124', Plaintiff had sought for recovery of possession. Later Plaintiff had withdrawn the said suit O.S.N.787/1987. Plaintiff has stated that with the intervention of Panchayatdars, he had withdrawn the said suit O.S.No.787/1987. Filing of earlier suit for declaration and injunction in respect of suit S.No.266/5 and for possession in respect of house property and withdrawal of the earlier suit is a strong militating circumstance against the Plaintiff. 21. Courts below committed a serious and substantial error in ignoring withdrawal of the earlier suit O.S.No.787/1987. It is relevant to note that though in the earlier suit Plaintiff has stated that he is in possession of the entire extent in S.No.266/5, in the present suit Plaintiff has alleged that the Defendants have trespassed into eastern portion of S.No.266/5. Like wise, in the earlier suit, Plaintiff has sought for possession of entire item No.2. But in the present case Plaintiff has sought for delivery of possession of item No.2 only in respect of eastern portion. Plaintiff has not come out with a definite case as to how and when the Defendants came to be in possession of eastern portion of S.No.266/5. There is also lack of clarity as to how the Plaintiff now seeks for possession of only eastern portion in the house. The case of the Plaintiff is beset with vagueness which cannot be reconciled with. 22. Plaintiff claims title of 'B' schedule both by way of survivorship and also by adverse possession. As rightly pointed out by the learned counsel for the Appellants, plea of survivorship and adverse possession cannot go together. Plea of survivorship would mean that the Plaintiff claims right in the properties by lawful title whereas the plea regarding adverse possession would mean he admits title of other person claiming to be in possession of the properties of other person adversed to the interest of other party. https://hcservices.ecourts.gov.in/hcservices/ 23. To base a claim of adverse possession, it is not enough to allege that one is in possession of the land. Ingredients of adverse possession must be established. In order to establish the plea of adverse possession, the persons claiming adverse possession are required to show firstly as to when they and/or their predecessor dispossessed either the real owner or his predecessor in-interest which could be the starting point for reckoning the period of 12 years and are further required to establish by cogent, unimpeachable as well as trustworthy evidence the factum of their having remained in continuous, open and hostile possession of the suit property that too with the knowledge as well as exclusion of the real owner. 24. 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. 25. In AIR 2005 SC 4407 (Saroop Singh v. Banto and others), the Apex Court, reiterated the legal position that in a suit for possession, based on title, the plaintiff, already having proved the title, in an earlier suit, the onus to prove the acquisition, by adverse possession, lies on the defendant. The Honourable Apex Court, elaborately analysing Articles 64 and 65 of the Limitation Act and considering the changes made in the old Limitation Act as well as new Limitation Act, held: "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.(See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak AIR 2004 SC 1893: 2004 (3) SCC 376)" In the same decision, the view taken previously in Karnataka Board of Wakf v. Government of India 2004 (10) SCC 779, was also affirmed. The Supreme Court further held:- "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 https://hcservices.ecourts.gov.in/hcservices/ 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." Referring to the above decisions in (2006) 3 M.L.J. 465 (A.Vedanayagam (Tmt) and others v. Annakili and others), the Division Bench of this Court held as under:- "From the above cases, one thing is certain, that the law requires 'animus' to extinguish the title of the true owner, then to confer title upon the squatter, by adverse possession, whatever may be the length of possession. In view of the recent decisions of the Apex Court, as well as the settled position, regarding the law and adverse possession, we fell it may not be necessary for us to quote all the judgments, relied on by either side, unnecessarily loading this judgment and the above rulings would suffice, to settle the dispute between the parties, based on facts". 26. Observing that where possession could be referred to a lawful title, it will not be considered to be adverse, in 2006 (5) CTC 378 (T.Anjanappa and others v. Somalingappa and another), the Hon'ble Supreme Court has held as follows:- "15. "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 https://hcservices.ecourts.gov.in/hcservices/ hostile to the real owner and amounted to a denial of his title to the property claimed. 16. 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." 27. Question of adverse possession is a question of fact. Thus a person who claims title on the basis of adverse possession must establish the same by unequivocal evidence. 28. In AIR 2003 SC 3907 (Deva (dead) through LRs. v. Sajjan Kumar (dead) by Lrs.), the Supreme Court, had an occasion, once again, to consider adverse possession, preceded by animus possidendi, wherein it is held: "Mere long possession of the defendant for a period of more than twelve years without intention to possess the suit land adversely to the title of the plaintiff and to the latter's knowledge cannot result in acquisition of title by prescription." 29. Elaborately considering the essentials of adverse possession in (2007) 4 MLJ 912 (SC), (P.T.Munichikkanna Reddy and others v. Revamma and others) the Hon'ble Supreme Court has held as follows:- "30.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 operationalized, 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 v. Mst. Bibi Sakina AIR 1964 SC 1254: https://hcservices.ecourts.gov.in/hcservices/ " 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." Viewed in the light of the above decisions, absolutely there is no evidence to show when possession became adverse. Long possession is not necessarily adverse possession. Alleging that the Plaintiff is in possession of the entire extent in S.No.266/5, Plaintiff has filed suit in O.S.No.787/87 for declaration, permanent injunction and for possession. Thereafter, the present suit was filed in 1990. Absolutely there is no evidence to show as to when the Defendants have trespassed into 'B' schedule properties and what was the immediate action taken by the Plaintiff. Plaintiff has also not established when his possession became adverse. Courts below committed serious error in accepting the plea of adverse possession merely on the basis