Madras High Court
Ramizabi vs Mohammed Yassin on 26 February, 2010
Author: R. Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.02.2010 CORAM THE HONOURABLE MS. JUSTICE R. MALA S.A.Nos.1106 & 1107 of 1999 Ramizabi .. Appellant in S.A.No.1106 of 1999 1. Abdul Rahman (died) 2. A. Kainuisa 3. A. Haja Mohideen 4. A. Noorjahan Bivi .. Appellants in S.A.No.1107 of 1999 Vs Mohammed Yassin .. Respondent PRAYER: Second appeals filed under Section 100 of Cr.P.C. against the judgments and decrees dated 17.6.99 made in A.S.Nos.20 and 21 of 1999 on the file of III Additional District Judge, Pondicherry in confirming the judgments and decrees dated 24.6.1998 made in O.S.Nos. 760 and 761 of 1996. For Appellants in S.A.1106 & 1107 of 1999: Mr.G.Ethirajulu & Mr. R.Govindaraj For Respondent : Mr. T.R.Rajaraman COMMON JUDGMENT
These second appeals have been preferred against the the judgments and decrees dated 17.6.99 made in A.S.Nos.20 and 21 of 1999 on the file of III Additional District Judge, Pondicherry in confirming the judgments and decrees dated 24.6.1998 made in O.S.Nos. 760 and 761 of 1996.
2. The defendant in O.S.No.760 of 1996 is the appellant in S.A.No.1106 of 1999 and the plaintiff is the respondent. The appellants in S.A.No.1107 of 1996 are the defendants in O.S.No.761 of 1996.
3. The averments made in the plaint O.S.No.760 of 1999 are as follows:-
(a) The plaintiff's grand father Yusuff Sahib donated a portion of the suit property to his wife Kadar Bi and another portion to his son Haniff Sahib under a registered donation deed dated 12.6.1934. From the date of gift, both were in possession and enjoyment of their respective shares. After the death of Haniff Sahib, his son the plaintiff herein inherited the property and also he has a share in the grand mother's property. The defendant colluded with one tenant Abdul Aziz filed suit in O.S.No.295 of 1981 for declaration of title to the suit property and the suit has been dismissed. The defendant preferred appeal in A.S.No.65 of 1983 which was also dismissed. She has not preferred any second appeal. Hence the judgment is final and conclusive and binding the parties.
(b) The plaintiff herein filed O.S.No.551 of 1983 for eviction of the persons namely Abdul Aziz, Shaffia bi, Ibrahim and Muthu. The suit was dismissed. Against the dismissal of the suit, he preferred an appeal in A.S.183 of 1990 which was allowed. Against the appeal suit this defendant and one Abdul Aziz have preferred second appeal in S.A.No.1854 of 1981 which was dismissed at the stage of admission itself. So the plaintiff filed E.P.No.8 of 1992 which was pending.
(c) The defendant shifted her residence from the Kaderbi property to Hanif Sahib's property on 5.1.1990 when the plaintiff was out of station. The defendant is a tress passer and unauthorised occupier of the plaintiff's property. The co-sharer of the suit property executed a release deed in favour of the plaintiff. So the plaintiff alone is having exclusive and absolute title over the suit property. The defendant is trying to obtain electricity service connection in her name by furnishing false information to the Electricity Department. The plaintiff took possession of the house from Abdul Aziz, Shaffia Bi, Ibrahim and Muthu.
(d) The plaintiff issued legal notice on 20.6.1994 for delivery of possession. The defendant received the notice and gave a belated reply with false allegation. Hence the plaintiff has come forward with the suit for declaration of title to the suit property and recovery of possession and prayed for a decree.
4. The gist and essence of the written statement filed by the defendant in O.S.No.760 of 1999 are as follows.
(a) The plaintiff has to prove his title to this suit property and his predecessor in title. The defendant along with 5 others filed a suit in O.S.No.295 of 1981 against the plaintiff and 4 others. The suit is bad for non joinder of necessary parties. The plaintiff filed O.S.No.551 of 1988 since the defendant is not party, it is not binding on him. The defendant never shifted his residence from Kader Bi's property to Haniff Sahib's property on 5.1.1990. She is in possession and enjoyment of the property measuring 12 X 15 feet from 16.3.1960. She is in possession and enjoyment of the above said property openly, continuously, peacefully, and without any interruption from anybody and this fact is very well known to this plaintiff herein and the children of this defendant were born at the place where she is now residing. Thereby she is in possession and enjoyment of the property more than 35 years and has perfected title by adverse possession. The suit is not maintainable.
5. The averments made in the plaint filed in O.S.No.761 of 1999 are as follows:
(a) The plaintiff's grand father Yusuff Sahib donated a portion of the suit property to his wife Kadar Bi and another portion to his son Haniff Sahib under a registered donation deed dated 12.6.1934. From the date of gift, both were in possession and enjoyment of their respective shares. After the death of Haniff Sahib, his son, the plaintiff herein inherited the property and also he has a share in the grand mother's property. The defendant colluded with one tenant Abdul Aziz filed suit in O.S.No.295 of 1981 for declaration of title to the suit property and the suit has been dismissed. The defendant preferred appeal in A.S.No.65 of 1983 which was also dismissed. He has not preferred any second appeal. Hence the judgment is final and conclusive and binding the parties.
(b) The plaintiff herein filed O.S.No.551 of 1983 for eviction of the persons namely Abdul Aziz, Shaffia bi, Ibrahim and Muthu. The suit was dismissed. Against the dismissal of the suit, he preferred an appeal in A.S.183 of 1990 which was allowed. Against the appeal suit this defendant and one Abdul Aziz have preferred second appeal in S.A.No.1854 of 1981 which was dismissed at the stage of admission itself. So the plaintiff filed E.P.No.8 of 1992 which was pending.
(c) The defendant shifted his residence from the Kaderbi's property to Hanif Sahib's property on 5.1.1990 when the plaintiff was out of station. The defendant is a tress passer and unauthorised occupier of the plaintiff's property. The co-sharer of the suit property executed a release deed in favour of the plaintiff. So the plaintiff alone is having exclusive and absolute title over the suit property. The defendant is trying to obtain electricity service connection in his name by furnishing false information to the Electricity Department. The plaintiff took possession of the house from Abdul Aziz, Shaffia Bi, Ibrahim and Muthu.
(d) The plaintiff issued legal notice on 20.6.1994 for delivery of possession. The defendant received the notice and gave a belated reply with false allegation. Hence the plaintiff has come forward with the suit for declaration of title to the suit property and recovery of possession and prayed for a decree.
6. The gist and essence of Written Statement filed by the defendant in O.S.No.761 of 1999 are as follows:
(a) The plaintiff has to prove his title to this suit property and his predecessor in title. The defendant along with 5 others filed a suit in O.S.No.295 of 1981 against the plaintiff and 4 others. The suit is bad for non joinder of necessary parties. The plaintiff filed O.S.No.551 of 1988 since the defendant is not party, it is not binding on him. The defendant never shifted his residence from Kader Bi's property to Haniff Sahib's property on 5.1.1990. He is in possession and enjoyment of the property measuring 20 X 40 feet from the year 15.3.1959. He is in possession and enjoyment of the above said property openly, continuously, peacefully, and without any interruption from anybody and this fact is very well known to this plaintiff herein and the children of this defendant were born at the place where he is now residing. Thereby he is in possession and enjoyment of the property more than 35 years and has perfected title by adverse possession. The suit is not maintainable.
7. The learned trial court after considering the averments contained in both plaint and written statement in both the suits ordered for joint trial and framed 7 issues in O.S.No.760 of 1999 and six issues in O.S.No.761 of 1999 and considering the oral evidence of P.W.1, D.W.1 and D.W.2, Ex.A.1 to Ex.A.5 and Ex.B.1 to Ex.B.13 decreed the suit in favour of the plaintiff as prayed for in the plaint. Aggrieved against the judgments and decrees of the trial court , the defendant in O.S.No. 760 of 1996 preferred appeal in A.S.No.20 of 1999 and the defendants in O.S.No. 761 of 1996 preferred appeal in A.S.No.21 of 1999.
8. The learned first appellate court after considering the arguments, framed necessary points for determination and concur with the findings of the trial court and dismissed both the appeals . Aggrieved over the judgments and decrees of the first appellate court, the present second appeals S.A.No.1106 of 1999 and S.A.No.1107 of 1999 have been preferred by defendant(s) in O.S.No.760 of 1996 and O.S.No.761 of 1996 respectively.
9. At the time of admission of the above second appeals, the following substantial question of law arose for consideration.
"Have not the courts below committed an error of law in decreeing the plaintiff's suit when by overwhelming documentary evidence (which have not been considered at all by the courts below), the defendants have established adverse possession?"
10. The respondent as plaintiff filed a suit for declaration of title and recovery of possession stating that the defendant is a tress passer. His right and title has been delivered by previous proceedings. The trial court and first appellate court have granted decree in favour of the Plaintiff and against the judgment and decree of both the courts below, the present second appeals have been preferred by this defendants/appellants.
11. The learned counsel for the appellants would contend that the trial court has failed to consider that the appellants are in possession of the suit property for more than a period of 35 years. Hence they prescribed title by adverse possession. Even though they have pleaded that appeal in A.S.No.65 of 1983 has been dismissed on 30.3.1984, even then they are in possession and enjoyment of the suit property. After the plaintiff obtained decree in O.S.No.551 of 1983, he filed E.P. No.8 of 1993. But in suit O.S.No.551 of 1983, the defendant/appellant herein was not impleaded as party. So his possession from the year 1983 till the present suit is adverse to the interest of the true owner. Hence he prescribed title by adverse possession.
12. His first limb of argument is that the first appellate court has considered the argument and came to the conclusion that as per the French Code (Civil) , the limitation period is 30 years, but as per the decision reported by this Court in 2003 2 L.W. Page 98, (Suryagandhi Vs. Lourduswamy) Indian Limitation Act is applicable to this Pondicherry territory. So 12 years period of limitation is sufficient for adverse possession. From 30.3.1984 the period of limitation starts. The appellants have filed the suit on 5.9.1996, so they have prescribed title by adverse possession.
13. To substantiate his argument, he relied upon the various decisions and further he culled out the evidence of both the parties and submits that the appellants are in possession of the suit property openly, continuously and uninterruptedly with the knowledge of the true owner adverse to his interest for more than a statutory period, hence they prescribed title by adverse possession. But both the courts below have not considered this aspect in a proper perspective and hence he prayed for allowing of this appeal and setting aside the decrees and judgments passed by the courts below.
14. Per contra, the learned counsel for the respondent would contend that while perusing the evidence of D.W.1, no evidence is available to show that they are in possession of the suit property with the knowledge of true owner adverse to the interest of the true owner. That Ramizabi (appellant in S.A.No.1106 of 1999) is in possession of the property and only on permission, he relied upon the decisions and submits that mere open and continuous possession of the property is not sufficient, but there must be animus possidendi by the appellant that he is in possession of the property for more than a statutory period with the knowledge of true owner adverse to the interest of true owner is essential. But the evidence of the appellant has not proved that their possession is adverse to the interest of the true owner with the knowledge of the true owner. Hence both the courts have came to the correct conclusion that the appellant is not entitled for declaration of title by prescribing title by adverse possession. So he prayed for dismissal of this appeal.
15. It is a well settled principle of law, a person who claiming title by adverse possession, pleaded in his written statement must prove the same. Before going into the evidence and facts of this case, it is appropriate to consider the decision relied upon by both the counsel.
16. The learned counsel for the appellants would contend that the trial court has committed an error in coming to the conclusion that the period of limitation for prescribing title by adverse possession is 30 years as per the Civil Code prevailing in Pondicherry Territory. He further submits that as per the decision of this court reported in 2005 3 TNLJ, page 251 (Kaliaperumal Vs. Vedavalliammal) it was held that only the Limitation Act is applicable to Pondicherry Territory. So as per Article 64 of Limitation Act, for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed, the period of limitation is twelve years from the date of possession.
17. Here the respondent filed the suit for declaration of title and recovery of possession on the basis of the documents alleged to be executed by his grand father in favour of his father, donation deed in favour of his father and his grand mother Kadarbi and also after the death of Kadar bi, the legal representatives of Kadarbi have executed a release deed i.e. on the basis of Ex.A.5.
18. In such circumstances, article 65 will be applicable here.
Article 65 reads as follows:
"65. For possession for immovable property or any interest therein based on title - period of limitation - twelve years- when the possession of the defendant becomes adverse to the plaintiff."
So the period of limitation is only 12 years.
19. The learned counsel for the appellants relied upon the following decisions reported in (1) 2001 (2) SCC page 498 (Balakrishnan Vs. Sathyaprakash) in para 7, it is held as follows:
..." 7. The law with regard to perfecting title by adverse possession is well settled. A person claiming title by adverse possession has to prove three nec nec vi, nec clam and nec precario. In other words, must show that his possession is adequate in continuity, in publicity and in extent. In S.M.Karim v. Bibi sakina speaking for this Court Hidayathulah, J. (as he then was )observed thus:
" Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the last to show when possession becomes adverse so that the starting point of limitation against the party affected can be found "
ii).2003-2- L.W.,page 98 (Suryagandhi V. Lourduswamy) in para 38, it is held as follows:
"38. The Pondicherry Limitation (Repeal of local laws) Act, 1994 is being relied upon by the counsel for the plaintiff to save the limitation period. Section 3 of the said Act provides that all local laws in force in the Union Territory of Pondicherry or any area thereof corresponding to the limitation Act, 1963 shall stand repealed as from the date of coming into force of the Pondicherry Limitation (Repeal of Local Laws) Act. 1994. The said Repeal of Local Laws Act, 1994 received the assent of The President on 3.1.1995 and published in the Pondicherry Gazette 24.1.1995 . Section 4 of The Pondicherry Limitation (Repeal of Local Laws) Act, 1994 provides that notwithstanding anything contained in the Repeal Act, any suit for which the period of limitation prescribed in the Limitation Act is shorter than the period of limitation prescribed by the local laws, such suit could be instituted within one year next after the commencement of the Pondicherry Limitation (Repeal of Local Laws) Act, 1994. The suit in the present case has been instituted during 1989 and therefore the reliance placed on The Pondicherry Limitation (Repeal of Local Laws) Act, 1994 is of no consequence."
and (iii) 2005 ( 3 ) TNLJ (Civil) 251 (D. Kaliaperumal Vs. Vedavalliammal), wherein it is held as follows..
......"the Hon'ble Supreme court has held that the Indian Limitation Act alone would govern the parties, because the Limitation Act is later that the Portuguese Civil Code.
7. Our High Court while following the above judgement of the Supreme Court in the case of Suryagandhi vs. Lourdswamy, reported in 2002 (4) CTC 31, has held as follows:-
"33. the learned counsel for the appellant filed upon a recent pronouncement of the Apex Court in Syndicate Bank Vs. Prabha D.Naik and another reported in 2001 (4) SCC 713 and contended that Limitation Act, 1963 is the general law of Limitation for the whole of India and provision regarding the remedy as provided in the Civil code is deemed to be replaced by implication. The learned counsel relied upon the said Pronouncement where the Apex Court held thus:-
"21.Needless to record that our concurrence to the observations of the High Court in regard to a special Law of Limitation is provided for enforcement of the rights arising under that Code itself, is by reason of the fact that Law of Limitation is a procedural law and the provisions existing on the date of the suit apply to it (reference may be made to the decision of this court in C.Beepathurna V. Velasari Shankaranarayana kadambolithaya).
22. Admittedly, the Limitation Act is a statute enacting the provisions in general terms applicable to the entire country excepting the exception as mentioned in the statute itself. It is a later statute of the year 1963 only that Portuguese Civil Code assuming had its application in the State of Goa, Daman and Diu and an earlier statute thus stands altered, as the latter is expressed in affirmative language, more so by reason of specific application of the Negotiable Instruments Act and Indian Contract Act: It thus cannot but be said to be repealing by implication "affirmative statute introductive of a new law do imply a negative" (Harcourt v.Fox).
23. As regards the doctrine of implied repeal, another aspect of the matter ought to be noticed vis-a-vis the Civil Code. The issue of limitation being a mixed issue of law and fact under the Limitation Act, the Court in spite of plea not being raised by the defence, can go into the same suo motu but there is a specific bar under Article 515 of the Civil Code which records that the Court cannot suo motu cognizance of description (sic prescription) unless it is specifically pleaded by the parties. It is a bar to jurisdiction of Court. The repugnancy and incongruity arise by reason of the fact that Parliament by law viz. The High Court at Bombay: (extension of jurisdiction to Goa, Daman and Diu) Act, 1981 extended the jurisdiction of the High Court of Judicature at Bombay to the Union Territory of Goa. Daman and Diu from the appointed day and the Court of judicial commissioner was abolished. Section 9 of the statute [(Act of 1981) (supra)] provides that there shall be, on and from the appointed day, established a permanent Bench of the High Court of Bombay at Panaji and some Judges of the High Court at Bombay being not less than two in number or as may be nominated by the Chief Justice of the High Court from time to time shall sit at Panaji, in order to exercise the jurisdiction and power for the time being vested in the High Court in respect of cases arising in this Union Territory. The authority and jurisdiction of the High Court of Bombay, to take cognizance of an action being barred by limitation, thus stands negated conceptually even a difficult situation to conceive that the same High Court will have two different spheres of jurisdiction while dealing with matters. At the cost of repetition we say that while implied repeal is not to be readily inferred but in the contextual facts, upon scrutiny, we cannot but hold that in the wake of the factum of the Limitation Act coming into existence from 1.1.1964, Article 535 of the Portuguese Civil Code cannot but be termed to be impliedly repealed and it is on this score that the decision of this Court in justiniano case1 stands overruled. There is one general law of Limitation for the entire country, being the Act of 1963 and the Portuguese Civil law cannot be termed to be a local law or a special law applicable to the State of Goa, Daman and diu prescribing a different period of limitation within the meaning of Section 29(2) of the Limitation Act and in any event, question of saving of local law under the Limitation Act of 1963 does not and cannot arise. The submission that without there being a specific men of repealing statute (since the 1963 Act of Limitation does not record express repeal of any other law excepting the Limitation Act of 1908), question of the Portuguese Civil Code being repealed does not arise, cannot hold good by reason of the doctrine of implied repeal as noticed above. In the premises aforesaid, these appeals fail and are dismissed without however any order as to costs"
This pronouncement is against the plaintiff and the view of the first appellate Court is not sustainable in any view"
8. In 2001 (1) MLJ 225 Arumugam Vs. Herniette Sandjivy and others) in an Appeal Suit against the decree of the suit filed on the strength of the Promissory Note, exactly a similar defence was taken and this court has held that French Civil Code is not applicable and only the Indian Limitation Act, 1963 is applicable and thus dismissed the suit."
As per the decision, Indian Limitation Act is applicable to Union Territory of Pondicherry.
20. Learned counsel for the respondent would relied upon the following decisions reported in (i) 1989 LW, page 71 (Bhagavathy Pillai and another V. Savarimuthu and another) in para 13 it is held as follows "13. As already indicated, the contention of the learned counsel for the respondents is that the tile of the Plaintiffs were lost by adverse possession over the state Juy period prior to the Limitation Act, 1963, coming into force. On this aspect, I have already indicated,there is no evidence placed by the respondents. The learned counsel for the respondents contended that the burden of proving adverse possession cannot be thrown on the respondents. The present suit having been filed after the Limitation Act, 1963, came into force, the law enacted therein would apply to suits filed thereafter. In the case of a suit for possession based on title, the plaintiff has no longer to prove that he was in possession of the property for a period of 12 years. It is for the defendant now to establish that his possession has been adverse for the requisite period of 12 years. This has not been done in the present case. In fact, learned coupes for the respondents is seeking to rely on the evidence of P.W.1 in which he had stated that the ancestor of defendants 1 to 8 was one Maria arulappan, who happened to live in the suit property as a Kuppa Kacha Kuzhi Kidappu Karan and that he came there under the permission of Velayudhan Narayanan in the year 1087 M.E., which corresponds to 1912. the defendants cannot seek to rely on one part of the evidence of P.W.1 viz, of possession from 1087 M.E. And reject the other part viz, of possession. If P.W.1's evidence as regards the starting point of the possession of the defendants ancestors of the year 1087 is to be relied on by him, then he cannot turn round and say that at the said starting point possession was not permissive, and, therefore , adverse. Even the case set up by the respondents counsel before me of adverse possession, which was not in fact taken in the written statement, cannot thus be accepted."
(ii) 1995-1-LW.680 (Ponnaiyan V. Munian (died) and others), it is held as follows:
"8. There is not statutory definition of adverse possession. Adverse possession refers to actual and exclusive possession coupled with intention to hold exclusive possession coupled with intention to hold as owner. Adverse possession becomes hostile to rightful owner, when a person openly and continuously possess a land under a claim of right adverse to the title of the true owner for the statutory period. Adverse possession means a hostile possession which is express or implied on denial of the title of the true owner. Such possession must be actual and exclusive, under a claim of right, adequate in continuity in publicity and in extent so as to show that it is adverse t the true owner must be peaceful, open and continuous. Merge possession without a claim of right for over a long time is not sufficient to create adverse possession. A mere user of property cannot be taken as a definite assertion of proprietary right, there must be some definite quality in the possession before it can be called adverse and there must be some fact of unequivocal character which may put the owner on guard. There can be no adverse possession if the person claims land. He must have the intention of using the property adversely against the another having an interest init. To summarise it, a person by holding possession of the property for the statutory period can acquire title only when his possession is 1) under the claim of title 2) hostile to the true owner and 3) actual, open, uninterrupted, continuous and exclusive.
9. It is well established that a person who claims title to the property by adverse possession must definitely allege and prove how and when adverse possession commences and what was the nature of his possession. A Division Bench of this Court in Rangappa V. Rangaswami, A.I.R. 1925 Mad. 1005 has held as follows:
"...the question whether possession in any given case has been adverse or not being a question of fact, the requirement of the law is strict and imperative that any plaintiff who seeks to rely upon the acquisition of title by adverse possession, should expressly plead it in his plaint..."
10. In Ganda Singh V. Ram Narain (A.I.R. 1959 Punjab 147) a Full Bench of the Punjab High Court has, while considering the proof required in a claim for adverse possession, observed as follows:
"In order to succeed on the plea of adverse possession, several facts have to be stated and substantiated by the party basing his title on this plea. Burden of proving all the elements of adverse possession is on the party setting up such title. The plaintiffs in this case, in order to succeed, has to allege and establish, that their possession was actual, adverse, exclusive, peaceful, continuous, unbroken, open, notorious, visible, distinct, unequivocal and hostile under a colour of title, or claim of right. He must further prove the date of commencement, the territorial extent and the length of his adverse possession."
11. In S.M. Karim V. Mst.Bibi Sakina, A.I.R. 1964 S.C. 1254 = 1964 (2) S.C.J. 224, the Supreme Court has held as follows:
" Adverse possession must be adequate in continuity in publicity and extent and a plea is required at the least to show when a possession becomes adverse so that the starting point of Limitation against the party affected can be found....... 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".
12. In another decision reported in karmega Kone V. Udayar Kone, 1979, (1) M.L.J. 419 = 92 L.W. 299, T.Ramaprasada Rao, C.J. Has held as follows:
"The plea of adverse possession is an essential question based upon provable facts and cannot rest upon mere surmises and stories weaved out in the course of the trial and in the witnes box. The plea of adverse possession stand son the same footing as sthe plea of estoppel. It has been the consistent view of Courts that a plea of estoppel has to be pleaded and not only pleaded but also proved. So also a plea of adverse possession, which again rests upon proof of positive and essential facts, has to be pleaded, so that the adversary might to able to meet the specific case of the party, who unjustly wishes to wrest the property belonging to another and claim title in himself on the plea of adverse possession. A plea of adverse possession essentially implies that the person claiming title a property on that basis does not own it. He wishes to snatch it from the real owner on the bare ground that he was continuously, pubicly and openly in possession of the property of the adversary tio the knowledge of the adversary and without any objection or intervention on the part of the real owner. These are essential facts which form the rocky foundation of the plea of the adverse possession. The law requires an express pleading on that question..."
13. In a recent judgmentof the Supreme Csourt in Parsinni (dead) by LRs. and others V. Sukhi and others, 1993 (4) S.C.C. 375, in para 5 of the judgment has observed as follows:
"...The burden undoubtedly lies on them to plead and prove that they remained in possession in their own right adverse to the respondents. The party claiming adverse possession must prove that his possession must be 'nec vi, nec clam, nec precario' i.e., peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner."
14. On the question of animus of the person in possession, this Court has held in Anantha Pillai V. Rathnasabapathy Mudaliar, 1968 (2) M.L.J. 574 = 82 L.W.5 as follows:
"The concept of adverse possession contemplates a hostile possession, ie., possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights, but denies them."
For deciding whether the alleged act of a person contributed adverse possession, the animus of the person doing those acts is the most crucial factor.
15. In Ejaz Ali Qidwai V. The Special Manger, Court of Wards, Barhampur Estate, (1935) 68 M.L.J. 397 = A.I.R. 1935 P.C. 53 0 41 L.W. 242, the Privy Council has held as follows:
"The principle of law is firmly established that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed."
Thus, for deciding whether the alleged acts of a person constitute adverse possession, the animus of the person doing those acts is the most crucial factor.
(iii) AIR 1995 SC 73 (Thakur Kishan Singh V. Arvind kumar) in para 5, it is held as follows:
"...5. As regards adverse possession, it was not disputed even by the trial Court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-klin. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession."
(iv) 1998 1 SCC, 614 ( Indira V. Arumugam) it is held as follows:
"...4. The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the Plaintiff who based his case on title had to prove not only title but also possession within 12years of the date of the suit. The said provision of law has undergone a metamorphic sea change as we find under the Limitation Act, 1963 Article 65 which reads as under:
S.No. Description of suit Period of limitation.
Time from which period begins to run 65 For Possession of immovable property or any interest therein based on title Twelve years When the possession of the defendant becomes adverse to the plaintiff.
5. It is therefore, obvious that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the perspective period, the plaintiff cannot be non-suited. Unfortunately, this aspect of the matter was missed by the learned Judge and, therefore the entire reasoning for disposing of the second appeal has got vitiated. "
(v)(2007) 3 SCC page 114 (M. Durai vs. Muthu and others ) in para 7 it is held as follows;
"7. The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis-a-vis the Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the old Limitation Act, the Plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected hs title by adverse possession. "
(vi) 2007 (6) SCC page 59 ( P.T. Munichikkanna Reddy and others Vs. Revamma and others) it is held as follows "...5. 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 person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See downing V. Bird; Arkansas Commemorative Commission V. City of Little Rock; Monnot V. Murphy; City of Rock Spirings V. Sturm)
6.Efficacy of adverse possession law in most jurisdiction depends on strong limitation statutes by operation of which right to access the Court expires through efflux of time. As against rights of the paper-owner, in the context of 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. (See American Jurisprudence, Vol.3, 2d,p.81.) it is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statues, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim.
7. To understand the true nature of adverse possession, Fairweather V.St.Marylebone Property Co. Can be considered where House of Lords referring to Taylor V. Twinberrow termed adverse possession as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation of law: (fair weather cases, All ER pp.291 G-292 C) "In my opinion this principle has been settled law since the date of that decision. It formed the basis of the later decision of the Divisional Court in Taylor V. Twinberrow in which it was most clearly explained by Scrutton, L.J. That it was a misunderstanding of the legal effect of twelve years adverse possession under the Limitation Acts to treat it as if it gave a title whereas its effect is 'merely negative' and where the possession had been against a tenant, its only operation was to bar his right to claim against the man in possession (see loc. Cit. p.23). It think that this statement needs only one qualification: a squatter does in the end get a title by his possession and the indirect operation of the Act and he can convey a fee simple.
If this principle is applied, as it must be, to the appellant's situation it appears that the adverse possession completed in 1932 against the lessee of No.315 did not transfer to him either the lessee's term or his rights against or his obligations to the landlord who held the reversion. The appellant claims to be entitled to keep the landlord at bay until the expiration of the term by effluxion of time in 1992: but, if he is , it cannot be because he is the term by effluxion of time in 1992: but, if he is , it cannot be because he is the transferee or holder of the term which was granted to the lessee. He is in possession by his own right, so far as it is a right: and it is a right so far as the statutes of limitation which govern the matter prescribe both when the rights to dispossess him are to be treated as accruing and when, having accrued, they are thereafter to be treated as barred. In other wards a squatter has as much protection as but no more protection than the statutes allow: but he has not the title or estate of the owner or owners whom he has dispossessed nor has he in any relevant sense an estate, 'commensurate with' the estate of the dispossessed. All that this misleading phrase can mean is that, since his possession only defeats the right of those to whom it has been adverse, there may be rights not prescribed against, such, for instance, as equitable easements, which are no less enforceable against him in respect of the land than they would have been against the owners he has dispossessed."
Also see privy Council's decision in Chung Ping Kwan V. Lam Island Development Co.Ltd. In this regard.
8. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially "wilful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
2.Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.
9. It is interesting to see the development of adverse possession law in the backdrop of the status of right to property in the 21st century. The aspect of stronger property rights regime in general, coupled with efficient legal regimes furthering the rule of law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg court. Growth of human rights jurisprudence in recent times has also palpably affected the development in this regard.
New consideration in adverse possession law.
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 lbe barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation period 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.
1.Postive intention.
12. The aspect of positive intention is weakened in this case by the sale deeds dated 11.4.1934 and 5.7.1936. intention is a mental element which is proved and disproved thorugh positive acts. Existence of some events can go a long way to weaken the presumption of intention to dispossess which might have painstakingly grown out of long possession which otherwise would have sufficed in a standard adverse possession case. The fact of possession is important in more than one ways; firstly, due compliance on this count attracts the Limitation Act and it also assists the Court to unearth as the intention to dispossess.
13. At this juncture it would be in the fitness of circumstances to discuss intention to dispossess vis-a-vis intention to possess. This distinction can be marked very distinctively in the present circumstances.
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 cases the intention element is not of the variety and degree which is required for adverse possession to materialise.
15. The High Court observed:
"it is seen from the pleadings as well in evidence that the plaintiff came to know about the right of the defendants, only when disturbances were sought to be made to his possession."
16. In similar circumstances in Thakur kishan singh V. Arvind Kumar this court held: (Scc p.594, para 5) "5. As regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-Kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession to co-owner or of a licence or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession. Apart from it, the appellate court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not adverse (emphasis supplied)
17. The present case is one of the few ones where even an unusually long undisturbed possession does not go on to prove the intention of the adverse possessor. This is a rate circumstance, which Clarke, L.J. In Lambeth London Borough Council v. Blackburn refers to.
" I would not for my part think it appropriate to strain to hold that a trespasser who had established factual possession of the property for the necessary 12 years did not have the animus possidendi identified in the cases. I express that view for two reasons. The first is that the requirement that the be a sufficient manifestation of the intention provides protection for landowners and the second is that once it is held that the trespasser has factual possession it will very often be the case that he can establish the manifested intention. Indeed it is difficult to find a case in which there has been a clear finding of factual possession in which the claim to adverse possession has failed for lack of intention."
(emphasis supplied)
18. On intention, Powell, V. Mc. Farlane 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 it 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 consequentially 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 trespassed, 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 and intention on his part to claim the land as his own and exclude the true owner.
* * * * 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." (emphasis supplied)
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 the 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 angels.
21. Intention implied knowledge on the part of adverse possessor. The case of Saroop singh V. Banto in that context held: (SCC p.340,paras 29-30) "29. In terms of Article 65 the straight point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date of defendant's possession becomes adverse (See Vasantiben Prahladji Nayak V. Somnath Muljibhai Nayak)
30. 'Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the lands has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus (See. Mohd.Mohd.Ali V. Jagadish Kalita, SCC Para 21.)"
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 V. 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 facts 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 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 not 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."
23. 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.
24.In Narne Rama Murthy V. Ravula Somasundaram this Court held: (SCC p. 615 para 5) " However in cases where the question of limitations a mixed question of fact and law and the suit does not appear to be barred by limitation of the fact of it, then the facts necessary to prove limitation must be pleaded, an issue raised and then proved. In this case the question of limitation is intricately linked with the question whether the agreement to sell was entered into on behalf of all and whether possession was on behalf of all. It is also linked with the plea of adverse possession. Once on facts it has been found that the purchase was on behalf of any open, hostile and overt act, there can be no adverse possession and the suit would also not be barred by limitation. The only hostile act which could be shown was the advertisement issued in 1989. The suit filed almost immediately thereafter". (emphasis supplied)
25. The test is, as has been held in R. v. Oxforshire County Council: (All ER p.393d-e) "....Bright v. Walker, CM&R at 211, 219 , 'openly and in the manner that a person rightfully entitled would have used it ....' The presumption arises, as Fry, J. Said of prescription generally in Dalton v. Henry Angus & Co., App Cas at 773, from acquiescence."
26. The case concerned (at All ER p.388e) interpretation of Section 22(1) of the Commons Registration Act, 1965. Section 22(1) defined "town or village green" as including:
land ..... on which the inhabitants of any locality have indulged in lawful sports and pastimes as of right for not less than 20 years.
27.It was observed that the inhabitants' use of the land for sports and pastimes did not constitute the use "as of right". The belief that they had the right to do so was found to be lacking. The House held that they did not have to have a personal belief in their right to use the land. The Court observed. (All ER p.395e-f) "....(the words 'as of right') import the absence of any of the three characteristics of compulsion, secrecy, or licence - 'nec vi,nec clam, nec precario', phraseology borrowed from the law of easements........."
28. Later in Beresford, R (on the application of) V. City of Sunderland same test was referred to.
29.Thus the test of nec vi, nec clam, nec precario i.e. "not by force, nor stealth, nor the licence of the owner" has been an established notion in law relating to the whole range of similarly situated concepts such as easement, prescription, public dedication, limitation and adverse possession.
30.In Karnataka Wakf Board the law was stated, thus: (SCC p.785, para 11) "11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period (See S.M. Karim v. Bibi sakina, Parsinni v. Sukhi and d.N. Venkatarayappa V. State of Karnataka.) 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 important factors that are not a pure question of law but a blended one fo fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
2.Inquiry into the particulars of adverse possession.
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 v. 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." (emphasis supplied)
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) "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) '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.' "
(emphasis supplied)
3. New paradigm to the Limitation Act.
34.The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned; once a party proves it title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in s.M. Karim v. Bibi Sakina in the following terms : (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."
(See also M. Durai v. Muthu.)
35.The aforementioned principle has been reiterated by this Court in Saroop Singh v. Banto stating : (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)
30. 'Animus possidendi' is one of the ingredients of adverse possession. Unless the person possession the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita, SCC para 21.)"
36.In Mohammadbhai Kasambhai Ssheikh v. Abdulla Kasambhai Sheikh this court held: (SCC p. 386, para 4) "But as has been held in Mahomedally tyebally v. Safiabai the heirs of Mohammedans (which the parties before us are) succeed to the estate in specific shares as tenants-in-common and a suit by an heir for his/her share was governed, as regards immovable property, by Article 144 of the Limitation act, 1908. Article 144 of the Limitation Act, 1908 has been materially re-enacted as Article 65 of the Limitation Act, 1963 and provides that the suit for possession of immovable property or any interest therein based on title must be filed within a period of 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. Therefore, unless the defendant raises the defence of adverse possession to a claim for a share by an heir to ancestral property, he cannot also raise an issue relating to the limitation of the plaintiff's claim."
37.The question has been considered at some length recently in T. Anjanappa v. Somalingappa wherein it was opined: (SCC p.577, para 21) "21. The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court's Judgment is clearly unsustainable."
and (v) 2008 (1) CTC page 329 (Annakili Vs. A. Vedanayagam and others ) it is held as follows:
"22. Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title.
23. In Saroop Singh v. Banto & Ors. 2005(8) SCC 330, in which one of us was a member, this court held:
"29. In terms of Article 65 of 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).
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 that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita, Para 21)."
24. The said statement of law was reiterated in T. Anjanappa & Ors. V. Somalingappa & Anr., 2006 (5) CTC 378: 2006 (8) SCALE 624: 2006(&) SCC 570, stating:
"It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession, the possession prove must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the formers hostile action."
25. Yet recently, in P.T. Munichikkanna Reddy & Ors. V. Revamma & Ors., 2007(6) SCC 59, this court noticed the recent development of law in other jurisdiction in the context of property as a human right to opine:
"Therefore, it will have to be kept in mind the Courts around the world are taking an unkind view towards statutes of limitation overriding property rights."
26.We may also notice that this Court in M. Durai v. Muthu & Ors., 2007(d) CTC 691: 2007(3) SCC 114, noticed the changes brought about by Limitation Act, 1963, vis-a-vis, old Limitation Act, holding:
"The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis-a-vis the Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession."
21. Admittedly the suit property is owned by Yusuf Sahib and his wife is Kaderbi. They are having two sons viz Mohammed Haniff-1, Mohammed Ibrahim-2 and two daughters Fatimabibi-3 and Sarambi-Sali-4. Mohammed Haniff is having three sons namely, 1) Mohammed Yassin, the plaintiff herein, 2) Gouse and 3) Yacob .
22. On 12.6.1934 Yusuff Sahib donated a portion of his property to his wife Kather Bi and Haniff Sahib namely his son and wife along with other son and daughters. But the donation deed has been marked in another suit O.S.No. 768 of 1996 related to S.A.No.1108 of 1999 as Ex.A.1. Then the other heirs have executed release deed in favour of the respondent herein under Ex.A.5 on 3.3.1994.
23. It is pertinent to note that the property has been in possession of some of the third parties . They have filed suit including the appellants in both appeals of S.A.No.1106 and 1107 of 1999 as plaintiff P.5 Abdul Rahman and P.6- Ramiza Bi filed suit O.S.No.295 of 1981 before Principal District Munsif, Pondicherry for declaration as owner of the suit property by virtue of peaceful possession and for injunction restraining the defendants , i.e. the present respondent - Mohammed Yassin and others. The suit was dismissed negativating their plea of adverse possession and the learned Principal District Munsif has came to the conclusion that the 6th plaintiff Ramizabi, the appellant in S.A.1106 of 1999 was a permissive licencee under the second defendant Abdul Gaffour and dismissed the suit which was evidenced by Ex.A.1.
24. The Decree copy of the suit O.S.No.295 of 1981 has been marked as Ex.A.2. Against the decree and judgement of learned Principal District Munsif, Pondicherry, they preferred appeal in A.S.No.65 of 1983. The appeal was also dismissed which was evidenced by Ex.A.3. The decree copy of the appeal suit has been marked as Ex.A.4.
25. In that in paragraph 8 of the judgment it was held as follows: ...
"There is no proof that they have been occupying the suit property as owners for more than 30 years by adverse possession as contemplated in Article 2262 of French Code Civil".....
So the suit and appeal have been dismissed . Therefore the declaration of title to the suit property has been negativated.
26. Admittedly, the respondent herein has also filed another suit O.S.No.551 of 1983. It is admitted by both sides that subsequently, when the respondent herein filed O.S.No.551 of 1983 for evicting Abdul Aziz, Shafiabi, Ibrahim and Muthu, but Abdul Rahman and Ramzan Bi were not impleaded as a party to that suit O.S.No.551 of 1983. The suit has been dismissed on 31.10.1988. Against the dismissal of the suit, he preferred an appeal in A.S.No.183 of 1990 which was allowed on 26.8.91. Against the decree and judgment of the appeal, the defendants in O.S.No.551of 1983 preferred S.A. 1854/1997 which was dismissed by High Court at the admission stage itself. Then only the respondent filed E.P.No.8 of 1994.
27. At this juncture it is appropriate to consider the oral evidence of P.W.1. the learned counsel for the appellant would contend that after the dismissal of the appeal in A.S. 65/1983 these present appellants are in possession and enjoyment of the suit property. So their possession is adverse to the interest of the true owner. From their possession the limitation starts running from 3o.3.1984. The present suit O.S.No.760 of 1996 was presented on 5.9.1996. So the appellants prescribed title by adverse possession. So they prescribed title by adverse possession.
28. Now this court has to consider whether the appellant in S.A.1106/1999-Ramzan bi has proved that she has prescribed title by adverse possession. As per Ex.A.1, Ex.A2, Ex.A.3 and Ex.A4, in previous suit, she is a sixth plaintiff and sixth appellant. In the trial court judgment in Ex.A1 it was stated as follows:
...... " The plaintiff's have not adduced any valid evidence to show that they have prescriptive title to the suit property by continuous possession. On the other hand it is proved that the first plaintiff is the tenant under the first defendant and the sixth plaintiff is the licencee under the second defendant" .....
29. In Ex.A3 appeal judgment in para 8, it was held as follows.....
"......D.W.1 deposed that he is grand son of Md. Yussouf and that the other defendants are the rightful owners of the suit property along with him. The plaintiffs have only paid Municipal tax for the superstructures recently. There is no proof that they have been occupying the suit property as owners for more than 30 years by adverse possession as contemplated in the article 2262 of French Code Civil. Their claim has to be rejected".....
30. In the plaint (O.S.760/99) paragraph 2, it is stated as follows....
"The plaintiff herein filed suit to evict the persons namely Abdul Aziz, Shaffia bi, Ibrahim and Muthu in O.s.No.551/1983 before the III Addl. District Munsiff. The suit was dismissed. On appeal preferred against the judgment , the learned 1st Addl. District Judge allowed the appeal No.183/90. Abdul Aziz and the defendant preferred second appeal A.S.No.1854/91 to the High Court. His Lord ship Mizra did not admit the appeal and dismissed the same. The plaintiff filed E.P. No. 8/92 and took delivery through court and when the suit was pending the defendant shifted her residence to Kaderbi property to Hanif Sahib property on 5.1.1990 when the plaintiff was out of station."
But in her written statement, in para 5, she has stated as follows...
"5. This defendant humbly submits before this Hon'ble Court that he is not a party in the suit O.S.No.551 of 1988 filed by the plaintiff herein and the judgment and decree passed in the said suit is not binding on him and this defendant denies specifically the allegation that this defendant shifted his residence from Kader Bi property to Haniff Sahib property on 5.1.1990 when the plaintiff was out of station."
31. So in such circumstances it is the duty of the respondent to prove that she has shifted her residence to this present suit property. Admittedly the appellant was examined as P.W.1. In his evidence in chief examination he has stated as follows:
"....I deny that the area under the occupation of Ramiza bee is not my property. I deny that defendants are in their respective properties for more than 30 (Thirty) years, I deny that from 16.3.1960 onwards Rameezabee has been in possession and enjoyment of the suit property....."
He has also deposed as follows:......
I deny that Rameeza bee is occupying 12' X 15' I deny that Rahiman is in occupation of 20' X 40'."
32. Except P.W.1, no one has been examined. Ramiza bi has been examined as D.W.1 and in her evidence she has stated as follows...."I deny that I trespassed into the property in the year 1990"..... So I am of the view that there is no evidence to show that after the disposal of second appeal, only in 1990 the appellants have trespassed into the suit property. At this juncture it is appropriate to consider whether the appellants have proved that they are in possession of the property.
33. The documents filed are Ex.B.1 to Ex.B.10 which are related to Abdul Rahaman who is the appellant in S.A.1107/99. But admittedly he is possession of the property. In such circumstances after the appeal(A.S.65/1983) has been dismissed, his possession is adverse to the interest of this respondent herein. Even though the respondent herein has pleaded that appellant is only a licencee, she is occupying the same on permission from the father of P.W.1, but after dismissal of appeal on 30.3.1984 she is in continuos possession. So limitation starts from the date of dismissal of this appeal A.S.65/1983. But respondent herein has filed O.S.No.551/1983 and in that suit this present appellant is not party to the proceedings. The present suit has been filed only on 5.9.1996 . From the year 1983 to 1996 she is in possession of the property for more than 12 years with the knowledge of this respondent. So she prescribed title by adverse possession. Even though the respondent in his plaint has stated the appellants have shifted their residence on 5.1.1996 but there is no evidence to show that she has shifted her residence. In such circumstances I am of the opinion as per the decision of the Apex Court, from dismissal of the appeal 169/1983, her possession is adverse to the interest of this respondent and she is in open, continuous and uninterrupted possession, so she prescribed title by adverse possession. Even though she has claimed adverse possession from the date of 16.3.1960, but she has filed a suit for declaration that they prescribed title by adverse possession and for injunction and the same has been dismissed and the appeal was also dismissed on 30.3.1984.
34. Moreover in that earlier proceedings it was decided that Ramzan bi is in a permissive possession and she is only a licencee. As soon as the appeal has been disposed of, her possession become adverse to the interest of the true owner. Since Limitation act is applicable for the Pondicherry Territory the appellant is in possession and enjoyment for more than a statutory period with the knowledge of this respondent. Hence she prescribed possession of title by adverse possession.
35. One more adding point is that after the dismissal of A.S.65/1983 on 30.3.1984, the respondent herein has filed O.S.No.551/1983 against Abdul Azis, Shafya bi, Ibrahim and Muthu and not against these appellants in S.A. 1106 and 1107 of 1999. Hence she is enjoying this property with the knowledge of the true owner openly, continuously without interruption for more than a statutory period. So there is animus possidendi since she is claiming adverse possession in the earlier suit. Even though it was decided in earlier suit that it is permissive possession, but the respondent has not filed any suit against her for recovery of possession.
36. Hence in such circumstance I am of the opinion the appellant has prescribed title by adverse possession. Hence the substantial question of law is answered accordingly. Therefore the appellant has prescribed title by adverse possession.
37. In respect of the appellant in S.A.No.1107 of 99 in earlier suit he was arrayed as 5th plaintiff. He also filed suit O.S.No.295 of 1981 for declaration of title for adverse possession and also for Injunction. The 2nd defendant raised the plea. In that it was stated as follows.....
"the other plaintiffs are living in other portions of the suit property with the leave and licence of other sharers and the suit without impleading them is invalid".
But in trial court in Ex.A.1 it was decided as follows.....
"the plaintiffs are tenants under the defendants and cannot prescribe title to the suit property".
Against the dismissal of the suit, the plaintiffs preferred an appeal and in that appeal judgement-Ex.A.3 it was held as follows.....
"......There is no proof that they have been occupying the suit property as owners for more than 30 years by adverse possession as contemplated in Article 2266 of French Code Civil. Their claim has to be rejected. "........
38. So on the date of disposal of this appeal on 30.3.1984 their possession is adverse to the interest of the true owner. Here the respondent herein in his claim has stated that he has shifted the residence only on 5.1.1990 into the present suit property. Therefore he has not prescribed any title by adverse possession. But while considering the document filed Ex.B.1 to B.10, which shows that he is residing only in the suit property even from the year 1976 onwards.
39. Even though the respondent herein has pleaded that he has shifted his residence only in the year 1990 to the suit property but except his ipsi-dixit no one has been examined. Per contra the appellant herein has marked the document to show that he is residing in the suit property.
40. In such circumstances the plea of that appellant has shifted his residence is not proved by the respondent herein. As per Ex.B.1 to B.11, I am of the opinion from 25.5.1973 onwards he is in possession but the adverse possession starts only on the dismissal of appeal A.S.65 of 1983 on 30.3.1984. The present suit is presented only in the year 1996 i.e. 5.9.1996 and the Limitation Act is applicable to the territory of Pondicherry so the appellant is in possession of the property openly, continuously and uninterruptedly for more than a statutory period with this knowledge of this true owner and the adverse to the interest of the true owner. So he is having animus possidendi and his possession is adverse to the interest of the true owner. Hence the appellant in S.A.No.1107 of 1999 herein has prescribed title by adverse possession. So substantial question of law is answered accordingly.
41. It is true that both the Courts below have concurrently decreed the suit . But the question of law involved is whether the appellants have prescribed title by adverse possession. The first appellate court is the last fact finding court. If the last fact finding court has not considered the material evidence, then the second appellate court will have the jurisdiction to re-appreciate the evidence and interfere with the findings of both the Courts below. On the basis of the decision relied upon by both the parities and their oral and documentary evidence, it has been clearly proved that the adverse possession starts only on the date of dismissal of A.S.NO.65 of 1983 on 30.3.1984. The suit has been filed in the year 5.9.1996, so for about 12 = years the appellants have been enjoying the property with the knowledge of this true owner, adverse to the interest of this respondent, for more than statutory period. Hence they prescribed title by adverse possession. So I am of the opinion that both the courts have not considered this aspect in a proper perspective. The judgements and decrees of both the courts below are liable to be set aside and the second appeal is liable to be allowed.
42. In fine, The Second appeal is allowed.
The Judgments and decrees of both the courts below are set aside.
In trial court the suit O.S.No.760 of 1996 and 761 of 1996 are dismissed.
No costs.
msr To
1.Addl. District Judge, Pondicherry.
2.Addl. Sub Judge, Pondicherry