IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.01.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA S.A.No.625 of 2003 & C.M.P.No.5858 of 2003 Visvanathan .. Appellant Vs. Parvathi .. Respondent Second Appeal against the judgment and decree dated 2.7.2002 in A.S.No.76 of 1997 on the file of the (Additional District Court,) Fast Track Court, Kancheepuram, against the judgment and decree dated 30.4.1997 in O.S.No.1104 of 1989 on the file of the Additional District Munsif Court, Kancheepuram. For appellant : Mr.P.B.Ramanujam For respondent : Mr.Y.Jyothish Chander for Mr.Y.Thyagarajan JUDGMENT The Second Appeal is filed by the defendant against the judgment and decree dated 2.7.2002 in A.S.No.76 of 1997 on the file of the Additional District Court, Fast Track Court, Kancheepuram, confirming the judgment and decree dated 30.4.1997 in O.S.No.1104 of 1989 on the file of the Additional District Munsif Court, Kancheepuram. 2. The averments in the plaint are as follows: The suit property originally belonged to one Nallandi Thanappa Gounder. It was succeeded by his son Nallandi Sappai @ Perumal Gounder and he became the absolute owner. Sappai @ Perumal Gounder executed a sale deed-cum-settlement dated 6.3.1918 in favour of his wife Mangaiammal and her two children Muniammal and Ponnusamy, in respect of 2-1/2 cents. They were in possession as absolute owners. Sappai @ Perumal Gounder died intestate leaving behind his wife Mangaiammal, son Ponnusamy and daughter Muniammal. They succeeded the remaining four cents and so, they are the absolute owners of the entire suit property. Mangaiammal also died intestate. Ponnusamy also died intestate without any marriage and so, Muniammal, the only heir, succeeded to the property. As the owner, she has been in exclusive possession and enjoyment for more than 50 years. So, she prescribed title by adverse possession. She put up two thatched huts and she has been now and then leasing to third parties, such https://hcservices.ecourts.gov.in/hcservices/ as Vengaiammal and others. Her son G.Velu married the defendant's sister at Uthiramerur and he was residing therein and managing the property. The plaintiff is the daughter of the said Muniammal and the said Muniammal, as the absolute owner of the suit property, while she was in a sound and disposing state of mind, voluntarily executed a Will, dated 26.10.1988, bequeathing the property in favour of her daughter, the plaintiff. It was duly executed and validly attested. Muniammal died on 21.5.1989. Then, the plaintiff became the absolute owner of the property. The plaintiff took Surveyor for sub-division and was preparing a plan for a pucca construction. The defendant objected to the sub- division, stating that he had two more feet of vacant site further east of his building, which is unjustified and without any basis. So, the plaintiff issued a notice on 14.6.1989, but the defendant was evading to receive the same. Once again, she issued notice on 21.7.1989, which was also returned and hence, the plaintiff has come forward with the suit for declaration of title to the suit property and for permanent injunction against the defendant, his men or agents from in any way interfering with the possession of the plaintiff. The plaintiff prayed for a decree. 3. The gist and essence of the written statement filed by the defendant are as follows: Neither the plaintiff nor her predecessors-in-title were in possession and enjoyment of the suit property. All of them are rank outsiders and neither Velu nor Muniammal or the plaintiff were ever in possession of the property, nor they enjoyed the same as alleged. They were never seen at Uthiramerur and they were living at Madras. Velu never lived in the suit property. Muniammal also never put up any thatched sheds and leased the same to third parties. The defendant's mother Janakiammal and his senior step mother Vengaiammal alone were living in the thatched shed. The Register also stands in their name. The property is in possession and enjoyment of the defendant and his predecessors- in-title. They were in possession for more than well over 80 years without interruption of anybody and they have prescribed title by adverse possession. Nallandi Sappai Gounder is not the only son of Nallandi Thanappa Gounder. Sappai Gounder had two brothers, Nallandi and Muruga Gounder. Sappai Gounder sold only 13' x 27' to Mangaiammal in 1918, who in turn sold the same to Chinnakolandai as early as in 1923. So, Mangaiammal has no right over the property after 1923. The property mentioned in the partition deed as well as the description of the property are different. Nallandi Thanappa Gounder had three sons, Nallandi Gounder, Sappai Gounder and Muruga Gounder. Sappai Gounder and Muruga Gounder died issueless. Nallandi Gounder had one son, by name Rangasamy Gounder. Rangasamy Gounder got two daughters and a son. The present defendant is the son of the said Rangasamy Gounder. Rangasamy Gounder purchased the share sold by Mangaiammal from Chinnakolandai orally in the year 1930. Rangasamy Gounder was in possession and enjoyment of the entire https://hcservices.ecourts.gov.in/hcservices/ property. After him, his two wives and the defendant are in possession and enjoyment of the same. The defendant's senior step mother Vengaiammal died. Though the property register stands in the name of his mother and senior step mother, he alone was paying the property tax on the date of filing of the suit. The plaintiff has no right, title or interest in the suit property. She was never in possession and enjoyment of the same. The defendant prayed for dismissal of the suit. 4. The trial Court, after considering the averments both in the plaint and in the written statement, framed five issues and considering the oral evidence of P.Ws.1 to 3 and D.W.1 and Exs.A-1 to A-15 and Exs.B-1 to B-16, granted declaration and injunction in respect of 2-1/2 cents and in other respects, the suit was dismissed. Against that, the defendant preferred appeal and the plaintiff filed cross appeal. The appeal was dismissed and the cross appeal was also dismissed, observing that the suit ought to have been decreed in entirety. Against that, the present Second Appeal has been preferred by the defendant. 5. At the time of admission of the Second Appeal, the following substantial question of law was framed for consideration: "Whether the lower appellate Court was right in decreeing the suit on the ground that the appellant is a co-owner and he cannot raise a plea of adverse possession?" Substantial question of law: 6. The respondent as plaintiff, filed the suit for declaration of title and injunction, stating that she succeeded to the property from her mother in respect of 2-1/2 cents and the remaining property also has been inherited by her as the sole heir of the deceased Muniammal. She is in possession and enjoyment of the same. The defendant, who is the adjacent property owner, attempted to interfere with the possession and hence, the plaintiff prayed for declaration and injunction. 7. The appellant-defendant resisted the suit stating that the property is owned by their forefather and as a legal heir, he inherited the entire property. The defendant and his predecessors-in-title were in possession and enjoyment of the same for the past 80 years and so, they have prescribed title by adverse possession. Hence, he prayed for dismissal of the suit. 8. The trial Court, after framing necessary issues and considering the oral and documentary evidence, granted decree in respect of 2-1/2 cents and dismissed the suit in respect of the remaining portion of the suit property. Against that, the defendant preferred appeal and the plaintiff also preferred cross appeal. The first appellate Court dismissed the appeal preferred by the defendant and the cross appeal preferred by the plaintiff, https://hcservices.ecourts.gov.in/hcservices/ was also dismissed observing that the suit ought to have been decreed in entirety. Against that, the present Second Appeal has been preferred by the defendant. 9. Learned counsel for the appellant-defendant would contend that the respondent-plaintiff is claiming title under Ex.A-8 Will. Ex.A-8 Will alleged to have been executed by the plaintiff's mother Muniammal, has not been proved and so, the respondent-plaintiff is not entitled to any decree. Both the Courts below have not considered the same. In the sale deed, it was mentioned as a partition deed and the partition has not been proved and no document has been filed to show that there was a partition. P.W.2 Velu, who is the son of Muniammal, has fairly conceded in his evidence that after 1960, he is not in possession of the suit property and so, the suit is barred by time. The plaintiff is also not residing there. Per contra, the appellant- defendant and his predecessors-in-title alone have been in possession and enjoyment of the same and inherited the property. He is one of the heirs of the deceased Nallandi Thanappa Gounder. He purchased the property in 2-1/2 cents from Chinnakolanthai in an oral sale and so, he is in possession of the entire property. The trial Court has failed to consider the same and hence, he prayed for allowing the Second Appeal. 10. Per contra, learned counsel for the respondent-plaintiff would contend that originally the property belongs to the plaintiff's grandfather Sappai @ Perumal Gounder and he got the property by way of partition deed out of 6 cents and he executed the sale deed in respect of 2-1/2 cents in favour of his wife and son under Ex.A-1 on 6.3.1918. The plaintiff's grandmother Mangaiammal sold 1 cents out of 2-1/2 cents to one Chinnakolandai under Ex.A-2 on 27.10.1923 and later, Mangaiammal purchased the same under the sale deed Ex.A-3 on 11.10.1926 and so she is the owner of 2-1/2 cents. Subsequently, on the death of her husband, Mangaiammal inherited the property. Mangaiammal is having son by name Ponnusamy and daughter, by name Muniammal and they were in possession and enjoyment of the same. They put up hut and residing there. Ponnusamy died intestate without marriage. Mangaiammal also died. Muniammal alone succeeded to the property. She executed Ex.A-8 Will in favour of the respondent-plaintiff. After the death of Muniammal, the plaintiff is in possession and enjoyment of the same, and she leased out the property and hence, she is in possession and enjoyment. The trial Court and the first appellate Court have considered all the aspects in proper perspective and hence, he prayed for dismissal of the Second Appeal. He relied upon the decision of Madurai Bench of this Court reported in 2009 (2) T.L.N.J. 226 (Civil) (M.K.A.K.Bowsiya Begum Vs. Mariam Beevi and another) and urged that both the Courts below have given concurrent findings and it is not open to the appellant to re-argue the matter before this Court. The substantial question of law raised is nothing but an attempt to re-argue and re-agitate the matter. Learned counsel for the respondent-plaintiff further urged that the appellant-defendant https://hcservices.ecourts.gov.in/hcservices/ is claiming title by adverse possession, but they are not mentioning that they are enjoying the property adverse to the interest of the real owner, with the knowledge of the real owner, openly, continuously and uninterruptedly for more than the statutory period, and the same has not been pleaded. But they are pleading in paragraph 9 of the written statement that they succeeded to the property by succession and they are in possession and enjoyment and so, the defendant prescribed title by adverse possession. Mere possession is not sufficient to prescribe title by adverse possession. "Animus possidendi" is necessary. So, the "animus-possidendi" is necessary and to substantiate the same, he relied upon the decisions of the Supreme Court reported in 2008 (1) C.T.C. 329 (Annakilli Vs. A.Vedanayagam) and 2007 (6) SCC 59 (P.T.Munichikkanna Reddy Vs. Revamma) and prayed for dismissal of the Second Appeal. 11. The suit property is in Gram Natham in S.No.878 of 208 measuring 22'x140'. The case of the respondent-plaintiff is that originally, the property has been owned by one Nallandi Thanappa Gounder and his son is the plaintiff's grandfather Nallandi Sappai @ Perumal Gounder. Nallandi Sappai @ Perumal Gounder executed a sale deed in favour of his wife Mangaiammal on 6.3.1918 under Ex.B-1 original sale deed, the registration copy of the same is Ex.A-1. Mangaiammal was in possession and enjoyment of the same. She executed Ex.A-2 = Ex.B-2 sale deed in favour of one Chinnakolanthai in respect of 1 cents out of 2-1/2 cents, purchased under Ex.A-1. Subsequently, Mangaiammal purchased the same under Ex.A-3 on 11.10.1926. So, Mangaiammal is having entire share of 2-1/2 cents and she is the owner of the same. There was a partition deed between Nallandi Thanappa Gounder, S/o Venkatesa Gounder and Narayanasamy Gounder, S/o Govinda Gounder on 25.10.1920 under Ex.A-5, in which, 'A' schedule property has been allotted to Nallandi Thanappa Gounder and 'B' schedule property has been allotted to Narayanasamy Gounder. In 'A' schedule property, 6-1/4 cents have been given to Nallandi Thanappa Gounder and 2-3/4 cents have been given to Narayanasamy Gounder. Nallandi Thanappa Gounder has been enjoying 6-1/4 cents. The appellant-defendant Viswanathan stated that Nallandi Thanappa Gounder had 3 sons and they are: Sappai alias Perumal Gounder, i.e., the grandfather of the respondent- plaintiff, Muruga Gounder and Nallandi Gounder. Learned counsel for the appellant-defendant would rely upon Ex.A-1 = Ex.B-1 stating that the boundaries have been clearly mentioned and there are 3 sons for the deceased Nallandi Thanappa Gounder. In Ex.B-1, it was mentioned that, @fPHz;il gf;fk; vd; jk;gp ghfk; nghf nkyz;il gf;fk; vd; jikad; KUf ft[z;ld; ghhpahs; ts;spak;khs; fpiwak; th';fp ,Uf;fpw ///// fPHz;il eLghfk;/////@ and argued that it would show that the grandfather of the respondent-plaintiff was having one elder brother and one younger brother. 12. The genealogy between the parties is as follows: https://hcservices.ecourts.gov.in/hcservices/ Nallandi Thanappa Gounder | | -------------------------------------- | | | | | | Sappai @ Muruga Gounder Nallandi Gounder Perumal Gounder | | = Mangaiammal(wife) | Rangasamy | | | |-------------------| | |------------| Muniammal Ponnusamy | | | | | Vengammal Janakiammal -------------------- | Wife 1 Wife 2 | | | | | Parvathi Sakuntala Velu | | (plaintiff) | Viswanathan Valliammal (wife) (defendant) 13. It is true that Viswanathan, the appellant-defendant is the grandson of Nallandi Gounder, who is the son of Nallandi Thanappa Gounder. The respondent-plaintiff is the grand-daughter of Sappai @ Perumal Gounder. Sappai @ Perumal Gounder executed a sale deed as per Ex.B-1 in favour of Mangaiammal and till her lifetime, she was in possession and enjoyment of the property. Mangaiammal is having son Ponnusamy and he died issueless and daughter Muniammal, who also died on 21.5.1989, which is evidenced by Ex.A-4 Death Certificate. The said Muniammal is having daughters Parvathi, the plaintiff, Sakuntala and son Velu. Velu was examined as P.W.2. He married the appellant-defendant's sister. So, the respondent-plaintiff has proved that as per Exs.A-1 to A-3, her grandmother Mangaiammal is the absolute owner of the property and after her death, her daughter Muniammal succeeded to the property and Muniammal executed a Will as per Ex.A-8. To prove Ex.A-8 Will, her brother Velu has been examined as P.W.2, who is one of the attestors to Ex.A-8 Will. He is also the brother-in-law of the appellant-defendant. Even though in Ex.A-8 Will, it was mentioned as 6-1/4 cents, there is no evidence to show as to how Muniammal got remaining 4 cents. Merely because the Will mentions 6-1/4 cents, it will not confer title to the appellant. The Will has been proved by examining P.W.2 Velu. But as per the Will, the respondent-plaintiff has succeeded to only 2-1/4 cents and for the remaining 4 cents, no evidence has been let in as to how Muniammal got the property. 14. Per contra, the appellant-defendant has filed Ex.B-11 sale deed executed in favour of Rangasamy Gounder by Raja Gounder. But it is different property and Ex.B-11 related to S.No.585/2B. But the case of the appellant-defendant is that he is in possession and enjoyment for more than 80 years and so, he has prescribed title by adverse possession. Learned counsel for the appellant-defendant would rely upon a portion of the evidence of P.W.2, stating that after 1960, the respondent-plaintiff is https://hcservices.ecourts.gov.in/hcservices/ not residing in the suit property and so, the appellant-defendant has put forth a case that he is entitled to adverse possession. But the first appellate Court has come to the conclusion that since they are co-owners, the appellant-defendant has not prescribed title by adverse possession without proper pleading of ouster. Besides that, it was not stated as to from when the appellant has been enjoying the property adverse to the interest of the co-owner, with the knowledge of the co-owner and he prescribed title by adverse possession by ouster. 15. At this juncture, it is appropriate to consider the written statement filed by the appellant-defendant. In paragraph 9 of the written statement, the appellant-defendant has stated that he is in possession and enjoyment of the property for more than 80 years. The appellant-defendant never stated that he has prescribed title by adverse possession by ouster. In paragraph 12 of the written statement, the appellant-defendant stated that his father Rangasamy Gounder purchased the share sold by Mangaiammal from Chinnakolandai orally and the same is in respect of 1 cents sold by Mangaiammal to Chinnakolanthai, as per Ex.A-2. But the above averment in the written statement does not hold good, because, after Ex.A-2, Mangaiammal purchased the same under Ex.A- 3 on 11.10.1926. So, the oral purchase alleged by the appellant- defendant is unacceptable one. The trial Court rightly came to the conclusion that the appellant-defendant is not the owner of the property. 16. While considering Ex.A-1/Ex.B-1 and Ex.B-3, Muruga Gounder executed the sale deed in favour of his wife Valliammal as per Ex.B-3. In that, he has stated that Nallandi Thanappa Gounder's son is Muruga Gounder. In Ex.A-1, it is stated that, @//// ey;yhz;o jhdg;g ft[z;lh; Fkhud; ey;yhz;o rg;ig vd;fpw bgUkhs; ft[z;lh; ///@ So, Muruga Gounder and Sappai Gounder are own brothers. In such circumstances, merely because the appellant-defendant is in possession of the property, it will not confer any title. The appellant-defendant has also filed house tax receipts Exs.B-4 to B-6 from 1972 to 1996. But the respondent-plaintiff has succeeded to the property only after the death of Muniammal on 21.5.1989. The suit has been filed in the year 1989. So, there is no document to show that the appellant-defendant is in possession and enjoyment of the respondent's 2-1/4 cents in the suit property. 17. As already stated, both the Courts below have come to the correct conclusion that Ex.A-8 has mentioned 6-1/4 cents, but there is no title or document to show that Muniammal is having title over the entire 6-1/4 cents in S.No.878/208. But the respondent-plaintiff proved title in respect of 2-1/2 cents right from 1918. Likewise, Nallandi Thanappa Gounder's another son Muruga Gounder has executed a sale deed in favour of his wife Valliammal on 15.5.1917 in respect of 2-1/2 cents alone. So, the respondent-plaintiff is entitled to declaration and injunction in https://hcservices.ecourts.gov.in/hcservices/ respect of 2-1/2 cents as per Exs.A-1 to A-3. Even though the appellant-defendant is claiming adverse possession, he has not filed any document to show as to who is the owner of the property and he has been enjoying the property adverse to the true owner and hence, the trial Court has considered this aspect and came to the correct conclusion that the appellant-defendant has not prescribed title by adverse possession. 18. Even though the appellant-defendant has stated that he is the great grandson of Nallandi Thanappa Gounder through his father Rangasamy, but there is no contra evidence. Moreover, since he is claiming adverse possession, where the defendant claims adverse possession by ouster of co-owner, the burden is upon him to prove such ouster. Exclusive possession of the co- parcener cannot amount to adverse possession against the other co-parcener, unless the latter has been ousted. Mere possession of the property for more than the statutory period is not sufficient. "Animus possidendi" plays vital role that he is in possession of the property with the knowledge of the true owner, against the interest of the true owner, openly, continuously and uninterruptedly for more than the statutory period. But here, the appellant-defendant is claiming possession on the basis of the oral sale, which has not been proved. Per contra, the respondent- plaintiff has proved that her grandmother has purchased the property even in 1926 under registered sale deed Ex.A-3, dated 11.10.1926. 19. In such circumstances, even if the Court comes to the conclusion that the appellant is in possession of the property, it is only on the basis of the oral sale and not against the true owner. In such circumstances, it is the duty of the appellant- defendant to prove as to from when, he entered the possession against the interest of the true owner of the property. There must be an intention to dispossess and it needs to be open and hostile enough and bring the same to the knowledge and the plaintiff has an opportunity to object. After all, the adverse possession right is not a substantive right. It is a result of the waiving of the right of defect or care for the integrity of the property on the part of the paper owner of the land. The intention implies knowledge on the part of the adverse possessor. Here, on the basis of oral sale in 1930, the appellant-defendant is claiming title by adverse possession. So, there is no "animus possidendi". Hence, he has not prescribed title by adverse possession. 20. Learned counsel for the respondent-plaintiff relied upon the decision of the Supreme Court reported in 2007 (6) SCC 59 (cited supra), wherein, the Supreme Court held as follows: "Adverse possession in one sense is based on the theory or presumption 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 https://hcservices.ecourts.gov.in/hcservices/ person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile." "Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the Court expires through efflux of time. Adverse possession has been termed as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation of law. As against rights of the owner of the property on paper, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. The argument for a more intrusive inquiry for adverse possession must not be taken to be against the law of limitation. Limitation statutes as statutes of repose have utility and convenience as their purpose. Nevertheless, there has been change on this front as well." "21. Intention implies knowledge on the part of adverse possessor. The case of Saroop Singh v. Banto (2005 (8) SCC 330) in that context held: (SCC. p.340, paras 29-30) "29. 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 (2004 (3) SCC 376). 30. '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