IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 20.04.2009 Coram The Honourable Mr.Justice S.RAJESWARAN A.S.No.814 of 1995 1. Tmt.Lakshmi (died) W/o Krishnasamy 2. Palaniammal W/o nagalingam both residing at No.6, Vadakku Chinna Mariamman Koil Street, Karungalpalayam, Erode. 3. M.Shanmuga Vadivu, W/o K.R.Mani, 36, Lakshmi Nagar, 4th Street, Tirupur. 4. K.Kanjana W/o Kuppuraj 109, Arusilangan street, Karungalpalayam, Erode. 5. K.Jagathambal D/o Krishnasamy 14, Chinnamarriyamman Koil street, Karungalpalayam, Erode. 6. B. Saravanan S/o Balasundaram 14, Chinnamarriyamman Koil street, Karungalapalayam, Erode. 7. B. Anguraj S/o Balasundaram 44-A, Mullai street, Lakshmi Nagar, Tirupur. https://hcservices.ecourts.gov.in/hcservices/ 8. B.Balaji S/o Balasundaram 50, Kumarappapuram, IInd street, Rayapuram, Tirupur. (Appellants 3 to 8 brought on record as legal representatives of the deceased first appellant vide order of this court dt.23.6.2008 made in C.M.P.No.656 to 658/08) 9.Vijayalakshmi 10.Subramaniam ... Appellants/Plaintiffs (Appellants 9 and 10 brought on record as LRs. of the deceased first Appellant-Vide order of Court dt.14.11.2008 made in CMP 1843 to 1845/2008) Vs. 1. Saminathan (Deceased)(by LRs) 2. Sukumar S/o Saminathan 3. Sundaravadivel S/o Saminathan 4. Yuvaraj S/o Saminathan 5. Banumathi D/o Saminathan 6. Kalavathi D/o Saminathan 7. Selvi D/o Saminathan 8. Jamuna Rani D/o Saminathan ... Respondents/Defendants This Appeal has been filed under Sec.96 of C.P.C. against the judgment and decree passed by the I Addl. Subordinate Judge, Erode, in O.S.No.533 of 1988 dated 11.11.1993. For Appellants : M/s.Thiru S.V.Jeyaraman, Senior counsel for M/s.B.Kumarasamy & R.Babu https://hcservices.ecourts.gov.in/hcservices/ For respondents : M/s.Thiru V.R.Muthuswamy, Senior counsel for M/s.V.Kathiravan for R2 to R8 ***** JUDGMENT This Appeal is filed against the judgment and decree passed by the I Addl. Subordinate Judge, Erode, in O.S.No.533 of 1988 dated 11.11.1993. 2. The plaintiffs in O.S.No.533 of 1988 on the file of the Sub Court, Erode are the Appellants before this Court. 3. O.S.No.533 of 1988 was filed by the plaintiffs for a declaration to declare that the plaintiffs are the absolute owners of the suit properties, for a direction directing the defendants to vacate the suit premises and deliver vacant possession to the plaintiffs, for another direction directing the defendants to pay the damages for use and occupation at the rate of Rs.200/- per month from the date of the suit till delivery of possession and the same has to be regulated under Order XX Rule 12 C.P.C. and also for cost. 4. The case of the plaintiffs before the trial court is that, the suit properties are situated in Erode Town and by virtue of a decree in O.S.No.418 of 1935 of the District Munsif Court, Erode and in A.S.No.28 of 1937 on the file of the District Court, Erode, the plaintiffs became the absolute owners of the suit properties. The plaintiffs executed the decree arising out of O.S.No.418 of 1935, in EPR.No.454 of 1939 and obtained possession through Court. Ever since the date of taking possession, and delivery of the suit properties through Court, that is on 15.6.1939, the plaintiffs have been enjoying the suit properties and other properties as the absolute owners. 5. The first defendant (who died pending suit) is the elder brother of the plaintiffs (both the plaintiffs are sisters) and out of love and affection the plaintiffs permitted the first defendant to occupy the suit property. The first defendant has been living in the suit schedule property along with his sons who are defendants 2 and 4. Now, the plaintiffs wanted the suit property for their own use and therefore, they asked the first defendant to vacate the suit property and deliver vacant possession of the same to them. But, the first defendant was evading the same and therefore, the plaintiffs issued a notice to the first defendant on 30.8.1988 calling upon the first defendant to vacate the premises within 15 days from the date of receipt of the notice. The first defendant sent a reply dated 24.9.1988 denying the very ownership of the plaintiffs of the suit schedule properties. Further, the https://hcservices.ecourts.gov.in/hcservices/ first defendant stated that the plaintiffs sold the property to his wife Sundarammal and his wife Sundarammal has also constructed a house. The first defendant further claimed that his wife alone is in possession and enjoyment of the property in question. That apart, the first defendant went to the extent of claiming adverse possession by contending that by reason of her open, long, continuous and uninterrupted and exclusive possession of her ownership right over the statutory period, his wife had perfected her title. 6. According to the plaintiffs, the above claim of the first defendant is nothing but false as the first defendant and his family members are occupying the suit property on the leave and licence of the plaintiffs. Since the first defendant is setting up title in the name of his wife Sudnarammal, who is no more now, the defendants 2 to 6 were added as parties to the suit for proper adjudication. Hence, they filed O.S.No.553 of 1988 for the aforesaid reliefs. 7. A written statement was filed on behalf of the third defendant which was adopted by the defendants 2, 4 to 7. In the written statement it was stated that the first defendant was born and brought up in the suit house as owner. He had sold the property under a registered sale deed dated 5.7.1969 to his wife Sundarammal. Tmt. Sundarammal constructed a house in the said portion. Thereafter, she was alone in possession and enjoyment of the suit house and after her death, her legal heirs are in possession and enjoyment of the suit property in their own right. It is further stated by the third defendant that by reason of her open, long, continuous, uninterrupted and exclusive possession in her own right over the statutory period, the said Sundarammal had perfected her title by adverse possession in any event. 8. According to the third defendant, the first defendant is the grandson of Subburaya Pillai who is the original owner of the property in question and the first defendant alone is entitled to succeed to the property of Subburaya Pillai. 9. In fact, it is the first defendant who permitted the plaintiffs to occupy a portion of the house as the plaintiffs are his sisters. Since the first defendant demanded the plaintiffs to vacate the house in the month of July 1988, the plaintiffs have filed this vexatious suit. Hence, they prayed for the dismissal of the suit. 10. With the above pleadings, the trial court framed the following issues: 1. Whether the defendants are entitled to the suit schedule property by way of adverse possession ? 2. Whether there is proper cause of action for the suit? https://hcservices.ecourts.gov.in/hcservices/ 3. Whether the plaintiffs are entitled to the decree of declaration as prayed for ? 4. Whether the plaintiffs are entitled to get delivery of possession of the suit schedule properties ? 5. Whether the parties are entitled to any other reliefs? 11. The daughter of the first plaintiff was examined as P.W.1 and Thiru Agnilingam was examined as P.W.2 and Exhibits A1 to A8 were marked on behalf of the plaintiffs. Similarly, the second defendant was examined himself as D.W.1 and Exhibits B1 to B21 were marked on behalf of the defendants. 12. While answering Issue No.1, 3 and 4, the trial court adverted to the fact that P.W.1 is the daughter of the first plaintiff and P.W.2 is a relative of the plaintiffs and none of the plaintiffs came forward to examine themselves as witnesses. The trial court has also found that no evidence was let in on behalf of the defendants to prove that the suit schedule property is their hereditary property. On the other hand, the trial Court found that the plaintiffs proved their case with regard to their claim of taking possession of the property through court auction as is evident from Ex.A3 (decree of the District Munsif Court, Erode in O.S.No.418 of 1935) and Ex.A4 (possession receipt made in E.P.No.457 of 1939, in O.S.No.418 of 1935). Thus, the trial court on the basis of the above evidence found that the plaintiffs are the owners of the suit schedule property. But, the trial court did not accept the oral evidence of P.W.1 and P.W.2. As none of the plaintiffs came forward to depose that they gave permission to the first defendant and no documents were filed to prove that the first defendant was given permission to occupy the property, the trial court came to the conclusion that the plaintiffs did not prove their case that they permitted the first defendant to occupy the suit schedule property. 13. While appreciating the evidence of the defendants, the trial court found that the defendants have been in occupation of the suit schedule property for more than thirty years. Further, it was found that property tax was paid by the plaintiffs only from 1978 onwards, whereas it was the first defendant who paid the property tax from 1941 to 1957. From the tax receipts, the trial court came to the conclusion that the first defendant occupied the property even before the year 1941 and therefore, it was proved that the defendants are entitled to the suit property by way of adverse possession. 14. While considering the Issue No.2, the trial court found that issue in favour of the plaintiffs and while considering the issue No.5, the trial court granted a decree of declaration with regard to the property which is in the possession of the plaintiffs https://hcservices.ecourts.gov.in/hcservices/ and accordingly, the suit was partly decreed with regard to the declaratory relief. With regard to the other reliefs, the suit was dismissed. 15. Aggrieved by the judgment and decree dated 11.11.1993, the plaintiffs filed the above appeal before this court. 16. Heard Thiru S.V.Jeyaraman, the learned Senior counsel for the Appellants and Thiru V.K.Muthuswamy, the learned Senior counsel for the respondents. I have also gone through the documents including the judgment of the Court below. 17. The learned Senior counsel for the appellants/ plaintiffs submits that the trial court has totally misconceived the issue with regard to adverse possession and if the pleadings and the evidence let in on behalf of the defendants are properly appreciated and evaluated, it will certainly prove that the defendants have miserably failed to prove their title to the property by way of adverse possession. The learned Senior counsel further submits that once it is established that the defendants are not entitled to claim the property by way of adverse possession, then their possession is only permissive and therefore, the plaintiffs are entitled to the relief of declaration as well as recovery of possession. 18. In support of his submission, the learned Senior counsel has very much relied on the decision of the Hon'ble Supreme Court reported in A.I.R. 2008(41) SCW 6996 (Hemaji Waghaji Jat Vs Bhikhabhai Khengarbhai Harijan & others). 19. Per contra, the learned Senior counsel for the defendants submits that as none of the plaintiffs came forward to examine themselves as witnesses, an adverse inference has to be drawn against them and their claim that they permitted the first defendant to occupy the property. That apart, the learned Senior counsel submits that the property tax receipts would definitely prove that the defendants are entitled to the property by way of adverse possession. He further submitted that originally the property was only a vacant land and it was the first defendant and his wife who put up the construction with the knowledge of the plaintiffs and therefore, the defendants have proved their case of adverse possession. Once adverse possession is proved, there is nothing in this appeal and the judgment and decree of the trial court is only to be confirmed. In support of his submissions, the learned Senior counsel relied on the following decisions: 1. A.I.R. (30) 1943 MAD 425 (Fatima Bibi and another Vs A.Hajee Muhammad Usman Sahib (died) 2. 1938(1) M.L.J. 190 (Makina Atchayya Patrudu Vs Jalaluddin Sahib and others) https://hcservices.ecourts.gov.in/hcservices/ 3. A.I.R. 1965 A.P. 163 (Srirangam Venkatataratnam and others Vs Perambadur Bullemma and another) 4. 1975(2) M.L.J. 482 (N.E.Vedammal Vs S.R.Krishnamoorthy Iyer) 5. A.I.R. 1980 GAU 70 (Sailala Vs Smt. Ngurtaiveli) 6. A.I.R. 1995 SC 895 (Annasaheb Bapusaheb Patil Vs Balwant Babusaheb Patil) 7. A.I.R. 1995 SC 73 (Thakur Kishan Singh (dead) Vs Arvind Kumar) 8. A.I.R. 1999 SCW 1129 (Vidhyadhar Vs Manikhrao and another) 9. 2007(3) C.T.C. 59 (T.Tamilarasan Vs Arokkiasamy and others) 20. I have considered the rival submissions carefully with regard to facts and citations. 21. For the sake of convenience, the parties are referred to as per their rankings in the suit. 22. In the light of the above pleadings and the judgment of the trial court, the following issues are arising for consideration in this first appeal. 1. Whether the claim of adverse possession put up by the defendants have been proved as upheld by the trial court? 2. Whether the plaintiffs are entitled to the decree of declaration with regard to the entire suit schedule property ? 3. Whether the plaintiffs are entitled to the relief of delivery of possession ? 4. Whether the plaintiffs are entitled to a damages for use and occupation as prayed for by the plaintiffs ? 23. Issue No.1: According to the plaintiffs, they are the absolute owners of the suit schedule properties having obtained possession through Court by filing E.R.P.No.454 of 1939 and they only permitted their brother, the first defendant to occupy the suit property out of love and affection. This was sought to be resisted by the first defendant by contending that he sold the property under a registered sale deed dated 5.7.1969 to his wife Sundarammal and she was alone in possession and enjoyment of the suit house and after her death, her legal heirs are in possession and enjoyment of the suit property in their own right. Conversely, it was contended by the defendants that by reason of her open, long, continuous, uninterrupted and exclusive possession in her own right over the https://hcservices.ecourts.gov.in/hcservices/ statutory period, the said Sundarammal perfected her title by adverse possession. 24. In this context, the initial burden of proving the title to the suit schedule property is on the shoulders of the plaintiffs and accordingly, to prove their case that they are the absolute owners of the suit schedule property, the plaintiffs marked Ex.A3 and Ex.A4. Ex.A3 is a certified copy of the decree dated 10.8.1936 in O.S.No.418/35 filed by the plaintiffs herein when they were minors represented by their next friend Thirugnanasambanda Gounder. The suit in O.S.No.418 of 1935 was filed for recovery of possession of the plaint mentioned property with further rent from defendants 2 and 3 and for the cost of the suit from the second defendant and the other contesting defendants. The case of the plaintiffs in O.S.No.418 of 1935 on the file of the District Munsif, Erode is that the plaintiffs are the lawful owners of the plaint mentioned house and that the second defendant, A.Subbiah Pillai tresspassed into the house and he is occupying it unlawfully. The District Munsif Court by decree dated 10.8.1936 declared that the plaintiffs are entitled to the suit house property and the defendants two and three shall put the plaintiffs in possession of the suit property. 25. Ex.A4 is the possession receipt showing that to execute the decree passed in O.S.No.418 of 1935, the plaintiffs herein filed E.R.P.No.457 of 1939 and obtained delivery of possession. Therefore, Ex.A3 and Ex.A4 proved the case of the plaintiffs as stated in the plaint and in fact, the trial court has also adverted to the two documents and found that the plaintiffs are the owners of the suit properties. In such circumstances, now, the onus is shifted to the defendants to prove that: 1) they are the owners of the properties and 2) conversely they perfected the title to the suit schedule property by way of adverse possession. 26. It is an admitted fact that the defendants did not let in any evidence to prove that they are the owners of the suit schedule properties as contended by them in the written statement. Once the defendants were not able to establish their lawful title to the suit schedule house, now, the onus is heavily on the shoulders of the defendants to prove that how they perfected the title to the suit properties by way of adverse possession. It is settled law that the person who pleads adverse possession has to prove the same with unimpeachable and cogent evidence. Before proceeding to find out whether the defendants have proved their pleadings of adverse possession, let me consider the judgment cited by both the learned Senior counsel in this regard. 27. In A.I.R. 2008(41) SCW 6996 (cited supra), the Hon'ble Supreme Court after discussing the question of adverse possession https://hcservices.ecourts.gov.in/hcservices/ that was pleaded in that case and after referring to a number of previous judgments, observed as under: "32. Reverting to the facts of this case, admittedly, the appellants at no stage had set up the case of adverse possession, there was no pleading to that effect, no issues were framed, but even then the trial court decreed the suit on the ground of adverse possession. The trial court judgment being erroneous and unsustainable was set aside by the first appellate Court. Both the first appellate Court and the High Courts have categorically held that the appellant has miserably failed to establish title to the suit land, therefore, he is not entitled to the ownership. We endorse the findings of the first appellate Court upheld by the High Court. 34. Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner." 28. In the judgments referred to by the Hon'ble Supreme Court in the above decision, the following principles of law have emerged with regard to a plea of adverse possession. a) A plea of adverse possession is not a pure question of law, but, a blended one of fact and law. b) A person who claims adverse possession should show: i) On what date he came into possession ? ii) What was the nature of his possession ? iii) Whether the factum of possession is known to the other party ? iv) How long his possession has continued ? v) His possession was open and undisturbed ? c) A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner. https://hcservices.ecourts.gov.in/hcservices/ d) It is settled rule of law that between co-heirs, there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. e) Adverse possession must be adequate in continuity, in publicity and extent and a plea is required atleast to show when possession became adverse so that the starting point of limitation against the party affected can be found. f) Long possession is not necessarily adverse possession. g) For the purpose of proving adverse possession, the defendant must also prove animous possidendi. h) In the eye of law, a owner would be deemed to be in possession of a property so long as there is no intrusion. i) Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. j) 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 when the defendant's possession becomes adverse. k) Adverse possession is based on the theory that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. 29. Citing the above principles, the learned Senior counsel for the appellants submits that if these settled principles with regard to the plea of adverse possession are applied to the facts of the present case, it will clearly establish that the defendants have miserably failed to establish their case that they perfected their title to the suit house property by way of adverse possession. 30. In A.I.R.(30) 1943 MAD 425 (cited supra), a Division Bench of this Court observed as under: "The Court was not considering the question now under discussion, but the concluding portions of the judgment in the Full Bench case when read together indicate that if a suit is filed before the 12 years period of limitation has expired the Court is entitled to decalre the rights of the parties at the date of the suit. In 11 M.L.. 344, A prescriptive right had been acquired before the https://hcservices.ecourts.gov.in/hcservices/ institution of the suit which was also the case in 49 M.L.J. 656. A decree-holder whose attachment has been raised is given by the statute the right to institute a suit for a declaration must have regard to the rights of the parties at the date of the institution of the suit. It would be a negation of the right given by O.21 R.63 to hold that when the suit has been filed in time, the person wrongly in possession of the property can get a title by adverse possession after the institution of the suit. In our opinion, the institution of the suit arrests the running of time in favour of defendant 1. This means that the plaintiff-appellants are entitled to a declaration of their right to attach seven-eights of the property in suit." 31. In 1938(1) M.L.J. 190 (cited supra), a Division Bench of this Court held as under: "On both these points it seems to us that the plaintiff is bound to succeed. First turning to the question of adverse possession, the acts relied upon are these: that an Arabic school was being conducted in a shed constructed on the site, that lectures were being delivered there and that meetings were being held. There can be no doubt on the evidence, that such sheds as there were, were temporary ones built of thatch. Granting that these acts have been fully prove, do they constitute evidence of adverse possession ? The possession of the wrongdoer to avail him must be adverse in its character, importing a denial of the owner's title in the property claimed. It is settled law, that possession cannot be adverse unless it is held in such circumstances as are capable in their nature of notifying mankind that the party is on the land, claiming it as his own, openly and exclusively (see Rustomji on Limitation, 1922 Ed., page 604). There ought to be nothing equivocal in a possession which is relied upon as a bar (ibid., page 600). Possession cannot be adverse unless the owner is in denial of his title excluded from enjoyment. In other words, the test is, are the acts of the person in possession such, as to be irreconcilable with the rights of the true owner ? Possession to be adverse must be notorious, exclusive and hostile and we agree with the Subordinate Judge that the acts relied on here are not sufficient to constitute adverse possession. https://hcservices.ecourts.gov.in/hcservices/ Then as regards the second point, namely whether the plaintiff has been in possession within 12 years of the suit, the question is, what is the nature of the possession of which this particular property is capable ? The kind of possession which will be sufficient in one may not be sufficient