IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:02.02.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.280 of 2010 and M.P.No.1 of 2010 Rayappan .. Appellant/Appellant/Defendant vs. 1. Jayaraman 2. Anjapuli 3. John 4. Kasinathan 5. Jaganathan 6. Lakshmi .. Respondents/Respondents Plaintiffs This second appeal is filed against the judgment and decree dated 24.07.2009 made in A.S.No.23 of 2008 on the file of the learned Subordinate Judge, Panruti confirming the judgment and decree dated 27.06.2008 made in O.S.No.92 of 1998 on the file of the learned District Munsif, Panruti. For Appellant : Mr.C.V.Vijayakumar For Respondents : Mr.K.Thilageswaran (For R2 to R6) J U D G M E N T This second appeal is focussed by the original defendant animadverting upon the judgement and decree dated 24.07.2009 passed in A.S.No.23 of 2008 by the learned Subordinate Judge, Panruti confirming the judgment and decree of the learned District Munsif, Panruti in O.S.No.92 of 1998. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. The factual matrix as stood exposited from the records could tersely and briefly be set out thus: (a) The plaintiffs filed the suit seeking the following reliefs: https://hcservices.ecourts.gov.in/hcservices/ "(a) To declare the plaintiffs title over the suit property as owners; (b) To direct the defendant to surrender vacant possession of the suit property to the plaintiffs failure upon which the delivery may be effected by court; and (c) To direct the defendant to pay mesne property from the date of the plaint till the date of delivery of vacant possession of the suit property." (extracted as such) (b) The defendant filed the written statement resisting the suit. (c) Whereupon issues were framed by the trial Court. (d) On the side of the plaintiffs one Mr.Kasinathan was examined as P.W1. and Exs.A1 to A3 were marked. The defendant/Rayappan examined himself as D.W.1 and Exs.B1 to B9 were marked. (e) Ultimately the trial Court decreed the suit, as against which appeal was filed for nothing but to be dismissed confirming the judgment and decree of the trial Court. 3. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been focussed mainly on the ground that both the Courts below fell into error in considering the fact that the defendant and his predecessor in title acquired prescriptive title over the suit property. The onus of proof was on the plaintiff, but they failed to adduce positive evidence but placed reliance on the documents of the defendant and his predecessor in title and thereby made a vain attempt to establish the alleged oral partition which was a non est one. However, both the Courts committed error in holding that there was oral partition of a total extent of nine cents and out of that 4-1/2 cents on the eastern portion was allotted to the ancestors of the plaintiffs, namely Thondagatti and the remaining 4-1/2 cents was allotted to the share of Motrikhan, the brother of the former. 4. In the memorandum of appeal the following proposed substantial questions of law are found set out: "(1) Whether the Courts below are right in decreeing the suit when the defendant has proved possession by producing the patta-Ex.B4 to mark the possession with respect to 9 cents of land? (2) Whether the Courts below are right in decreeing the suit when having found that there https://hcservices.ecourts.gov.in/hcservices/ are inconsistencies as to the actual possession by the plaintiffs and having failed to prove the possession of the claimed 4-1/2 cents of suit schedule property? (3) Whether the Courts below are right in decreeing the suit when there is a finding by the trial Court that the defendant perfected title by possessing the suit schedule property from 1973 onwards? (4) Whether the Courts below are right in decreeing the suit after having found that the plaintiffs were not able to prove their actual possession in the suit schedule property? (5) Whether the Courts below are right in decreeing the suit when there is no document to show the possession of the suit schedule property at the hands of the plaintiffs? (extracted as such) 5. Heard both sides. 6. At the outset, 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. A plain poring over and perusal of those decisions would highlight and spotlight the fact that the Second Appeal cannot be entertained by the High Court as per Section 100 of CPC unless there is any substantial question of law is made out from the available materials on record. Hence it has to be seen as to whether any substantial question of law is available for being formulated in this case. 7. The learned counsel for the appellant/defendant would put forth and set forth his arguments, which could tersely and briefly be set out thus: (a) The onus of proof is on the plaintiffs to prove positively by producing evidence that the suit property belongs to them and they cannot pick holes in the case of the defendant and try to achieve success in the litigative process. (b) Simply because one Kuppan is referred to as the person owning property to the east of the properties found mentioned in https://hcservices.ecourts.gov.in/hcservices/ Exs.A1 to A3, there is no presumption that the said Kuppan referred to therein happened to be the ancestor of the plaintiffs herein and they should have established by clinching evidence first of all the genealogy and also their entitlement to evict the defendant from the suit property. Accordingly, the learned counsel for the appellant/defendant prays for setting aside the judgments and decrees of the Courts below and for dismissing the original suit. 8. Whereas, by way of contradicting and refuting the arguments as put forth and set forth on the side of the appellant/defendant, the learned counsel for the respondents/plaintiffs would advance his arguments the gist and kernel of them would run thus: (a) The plaintiffs discharged their burden of proof by producing ancient documents and both the Courts below appropriately and appositely, correctly and convincingly placed reliance on those documents and decided that the suit property was allotted to the share of the ancestor of the plaintiffs in the oral partition and that was found referred to in Ex.A1 itself. (b) The documents, Exs.A1 to A3 are all registered documents, so to say ancient documents and in such a case, as against the finding of facts rendered by both the Courts below, by invoking Section 100 of CPC the High Court may not be interfering with such finding of facts. Accordingly the learned counsel for the respondents/plaintiffs prays for the dismissal of the Second Appeal. 9. A 'resume' of facts absolutely necessary for the disposal of this Second Appeal would run thus: The plaintiffs in fact filed the suit on the main ground that an extent of nine cents of land in S.No.276/3 belong to two brothers namely Motrikhan and Thondagatti and there emerged an oral partition between them, in which Motrikhan was allotted the western half measuring an extent of 4-1/2 cents and the remaining 4-1/2 cents was allotted in favour of Thondagatti. Now the said share of 4/1- 2 cents of Thondagatti, constitutes the suit property. It is also the contention of the plaintiffs that as per Ex.A1, the registered sale deed dated 19.04.1926 Ammakannu Ammal wife of Motrikhan and her minor son sold the said 4-1/2 cents on the western side allotted to Motrikhan to one Arokiyasamy and in that the share of Thondagatti had been clearly found mentioned as the eastern boundary. Both the Courts below after analysing the oral and the documentary evidence held that Kuppan who was referred to as the one owning the property to the east of the property referred to in Ex.A1, was the son of that Thondagatti. Relating to the relationship is concerned, in the written statement there is no denial. https://hcservices.ecourts.gov.in/hcservices/ 10. At this juncture, I recollect the following maxims: Principiis obsta – Withstand beginning; oppose a thing in its early stages, if you would do so with success; Qui non negat fatetur – He who does not deny, admits. 11. After Ex.A1, Ex.A2 emerged so to say the registered settlement deed dated 26.07.1943, executed by Periyanayagam Ammal wife of the said Arokiyasamy,who was the vendor referred to in Ex.A1, in favour of Arokiyasamy Padayachi the same 4-1/2 cents referred to in Ex.A1. Subsequently, Ex.A3-the sale deed dated 12.07.1950 was executed by Sussi Rathina Padayachi son of the said Arokiyasamy Padayachi, the vendee in Ex.A2, in favour of Santhana Padayachi, transferring the same property referred to in Exs.A1 and A2. As such those deeds clinchingly establish the oral partition, because in those deeds the share of the plaintiffs' ancestors situated on the eastern side of the property mentioned in Exs.A1 to A3, is found recognised. The whole problem arose only when the said Santhana Padayachi, the vendee under Ex.A3 executed the sale deed Ex.B1 dated 07.02.1973 in favour of the defendant herein. Instead of specifying the extent of 4-1/2 cents, so to say the same description of property as found in Exs.A1 to A3, he holus bolus and that too baselessly and arbitrarily specified the extent as nine cents as though Santhana Padayachi had title over nine cents when in fact he acquired title over 4-1/2 cents only as per Ex.A3. The defendant would try to unjustifiably capitalise such description in Ex.B1 by claiming right over the suit property which constitute the eastern half of the entire nine cents of land which originally belonged to, as described supra, Motrikhan and Thondagatti. The defendant tried his level best to buttress and fortify his case as though Santhana Padayachi himself acquired prescriptive title over the suit property and hence he along with the said 4-1/2 cents which he acquired under Ex.A3, sold the eastern 4-1/2 cents also. 12. At this juncture I would like to refer to the decision of the Hon'ble Apex Court 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 https://hcservices.ecourts.gov.in/hcservices/ (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". 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. https://hcservices.ecourts.gov.in/hcservices/ * * * 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". 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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." 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) https://hcservices.ecourts.gov.in/hcservices/ '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) '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.'" A mere perusal of the aforesaid extract would clearly show that the law is now well settled that plea of prescription has to be proved by the person pleads it. Even if a person is in possession and enjoyment of a property for over hundred years, he cannot simply based on that fact alone claim prescriptive title unless he could concisely and precisely by adducing clinching evidence establish that he over the statutory period enjoyed the property concerned as owner openly and uninterruptedly. 13. At this juncture I recollect the following maxim: Nec vi Nec clam Nec precario : Not by violence, stealth or permission (In order that a person may acquire title to land by adverse possession, his possession has to be characterised by these attributes) As such both the Courts below au fait with law and au courant with facts analysed the available facts and held that the Ex.B4 dated 27.01.1994 - patta in the name of Rayappan (defendant), Ex.B5 dated 05.08.1997 - Water Bill, Ex.B6 dated 05.08.1997 – House Receipt, Ex.B7 dated 19.09.2003 – E.B.Card with letter, Ex.B8 dated https://hcservices.ecourts.gov.in/hcservices/ 22.11.2004 – Patta given by Tahsildar and Ex.B9 dated 12.05.2008 – E.B. Receipt in no way would establish the alleged plea of prescription acquired by the defendant and his vendor. 14. I also recollect the maxim: Jus superveniens auctori accrescit successori : A right accruing to the one in possession continues in favour of his successor. But in this case there is no evidence to show that Santhana Padayachi himself enjoyed an extent of property over and above 4- 1/2 cents covered under Ex.A3 and thereby acquired prescriptive title over the suit property. Absolutely there is no iota or shred, shard or miniscule, pint or jot of evidence to prove the plea of prescriptive title. Both the Courts below correctly appreciated the facts in the light of the aforesaid propositions of law and gave a finding of fact that the defendant had not proved the plea of prescription also. Hence, taking into consideration the over all circumstances and the judgments of both the Courts below, I am of the considered view that there is no question of law much less substantial question of law is involved in this Second Appeal warranting interference. Accordingly, the Second Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Gms Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Subordinate Judge, Panruti. 2. The District Munsif, Panruti. + 1 cc to Mr. K. Thilageswaran, Advocate SR No.7943 + 1 cc to Mr. T.R. Rajaraman, Advocate SR No.7914 PUR(CO) SR/24.3.2011 S.A.No.280 of 2010 https://hcservices.ecourts.gov.in/hcservices/