Madras High Court
Ceceli vs Arpudasamy on 5 September, 2013
Author: S. Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.09.2013 CORAM THE HONOURABLE MR.JUSTICE S.TAMILVANAN S.A. No.1557 of 2010 and M.P.No.1 of 2010 Ceceli .. Appellant versus Arpudasamy ... Respondent Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the judgment and decree, dated 21.10.2010 made in A.S.No.310 of 2006 on the file of the Principal District Judge, Puducherry, confirming the judgment and decree, dated 21.07.2006 made in O.S.No.83 of 2000 on the file of the Principal Sub-Judge, Puducherry. For Appellant : Mr.V.Raghavachari For Respondent : Mr.T.P.Manoharan JUDGMENT
The second appeal has been preferred under Section 100 of the Code of Civil Procedure against the Judgment and Decree, dated 21.10.2010 passed in A.S.No.310 of 2006 on the file of the Principal District Judge, Puducherry, confirming the judgment and decree, dated 21.07.2006 made in O.S.No.83 of 2000 on the file of the Principal Sub-Judge, Puducherry.
2. The appellant herein is the defendant in the suit, which was filed by the respondent / plaintiff, seeking declaration of title, delivery of possession, mandatory injunction and other consequential reliefs. After the trial, the suit was decreed by the trial court, declaring the title in favour of the respondent / plaintiff with mandatory injunction and costs and it was observed by the trial court that the respondent / plaintiff could take separate proceeding under Order 20 Rule 12 CPC towards getting mesne profits. Aggrieved by the Judgment and Decree, the appellant herein preferred first appeal in A.S.No.310 of 2006, before the Principal District Judge, Puducherry and by Judgment and Decree, dated 21.10.2010, the said appellate court, confirmed the Judgment and Decree passed by the trial court and dismissed the appeal with costs. Aggrieved by which, this second appeal has been preferred.
3. In this second appeal, the following substantial questions of law have been raised by the appellant / defendant :
1. As stated by the appellant / defendant, whether the respondent / plaintiff had failed to prove his possession in respect of the suit property, either by himself or through his vendor, 12 years prior to his purchase. In the said circumstances, whether the courts below are justified in not applying the principle, as laid down under Section 27 of Limitation Act ?
2. As contended by the appellant, whether the Courts below have presumed that the plaintiff is the owner of the property, without any credible evidence or documents to substantiate the title in favour of the plaintiff ?
4. The case of the respondent / plaintiff is that he had purchased the "A" schedule property from his vendor Ubakara Marie @ Ubakarammal by virtue of a sale deed, dated 30.05.1995 and became the absolute owner of the said property, that the defendant being a distant relative of his vendor was a permissive occupier of a portion of the property, which is stated as "B" schedule property. It is stated that "B" schedule property is a part of "A" schedule property. The balance of "A" schedule property, except the portion stated as "B" schedule property was in the possession of his vendor and after the purchase, the respondent / plaintiff is in possession and enjoyment of "A" schedule property, except the "B" portion. In support of his contention, the respondent / plaintiff examined himself as P.W.1, apart from marking Exs.A.1 to A.7 before the trial court. The appellant / defendant was examined as D.W.1 and Exs.B.1 to B.16 were marked on the side of the appellant / defendant.
5. The respondent / plaintiff has claimed right by virtue of the sale deed, dated 30.03.1994, executed by his vendor, who owned the property. In the written statement, the appellant / defendant has stated that she was not a permissive occupier of "B" schedule property and according to her, she had put up a hut in the northern side of the property in the year 1975 and got electric service connection in the year 1979, by way of possession and enjoyment for the statutory period and according to her, she got title to the "B" schedule property. The appellant / defendant has stated that she got title only by way of adverse possession. Admittedly, the appellant / defendant has not purchased the "B" schedule property or inherited the same from any other person.
6. The appellant / defendant has also made a counter claim in her written statement and paid Court fee of Rs.30.50/- on the notional value of the property fixed at Rs.400/- under Section 25 (d) of the Pondicherry Court Fee and Suit Valuation Act, 1972. It is seen that the appellant / defendant has admitted in her proof affidavit that the property was owned by Ubakara Marie, the vendor of the respondent / plaintiff. According to the respondent / plaintiff, the appellant was only a permissive occupier and has no other right in the property, hence, he had demanded the appellant / defendant to vacate and hand over the possession. However, the appellant / defendant had failed to vacate and hand over the "B" schedule property, hence, the respondent / plaintiff filed the suit. The reliefs sought for in the plaint are as follows:
(i) Declaring that the plaintiff is the absolute owner of the suit "B" schedule mentioned property;
(ii) Directing the defendant to vacate and hand over the vacant possession of the suit "B" schedule mentioned property to the plaintiff;
(iii) Granting an order of mandatory injunction for demolition and removal of the superstructure put up in the "B" schedule mentioned suit property;
(iv) Directing the defendant to pay a sum of Rs.14,200/- towards the past mesne profit payable by the defendant for his illegal occupation from 1.4.1994 till filing of the suit at the rate of Rs.200/- per month and direct her to pay future mesne profit at the same rate till the defendant handing over the vacant possession of the "B" schedule mentioned suit property to the plaintiff; and costs.
7. The appellant's / defendant's claim is only in respect of declaration of title of "B" schedule property, by way of her alleged title by way of adverse possession. As the appellant / defendant has claimed title by way of adverse possession against the owner of the property, she has to establish the claim that she has prescribed title by way of adverse possession, as per procedure known to law, by adducing legally acceptable evidence.
8. As per Ramanatha Iyer "Law Lexicon", referring Mithale Veetil Raman v. Puthulal Ambu, 24 IC 95, Black L.Dict; Bouvier L.Dict, it is stated that for the purpose of acquiring title by adverse possession, the nature of "animus possidendi" is a mandatory requirement and it has to be decided, based on the factum, whether the animus is based on real, false or pretended title to the property. The title acquired cannot be a better title, more than what it would be, if the pretence or falsehood were found to be true. It is well settled that for any person, to claim title by way of adverse possession, there must be adequate, uninterrupted hostile possession by him for the statutory period against the true owner of the property.
9. It is also not in dispute that for claiming adverse possession, the person claiming such title by prescription, must have animus possidendi, which should be adverse to the interest and title of the real owner, as if he / she enjoyed the property as that of the owner of the property, for a continuous period of 12 years, in case of a private property. However, the burden is heavily upon the person, who claims title by way of adverse possession against the true owner of the property. Therefore, a tenant or permissive occupier cannot claim adverse possession, based on the possession and enjoyment of the property for a longer period, since it is well settled that animus possidendi is the sine qua non for claiming adverse possession.
10. The appellant / defendant has stated that she was not a permissive occupier of the property. Though the suit was filed in the year 2000, she has produced xerox copy of her electricity bill and some originals relating to subsequent period, after filing of the suit and the electricity bill relating to the month, August 2001 as Ex.B.1. As found by the court below, the said document was subsequent to the filing of the suit and certain other documents were only xerox copies, hence, the same would not be sufficient for claiming adverse possession.
11. It is seen that the trial court, in its Judgment has discussed in detail on the validity and genuineness of the documents, which were marked as Exs.B.1 to B.16 by the appellant / defendant for the purpose of establishing her claim of adverse possession. Ex.B.1, electricity bill, as stated above is subsequent to the date of filing of the suit, since it relates to the year 2001. Though Ex.B.2, another electricity bill is for the year 1980, it was not a original bill, but only a photostat copy, hence, the trial court held that unless the original is produced, the Court could not come to a conclusion that the xerox copy was a valid and genuine document. The appellant / defendant had produced a radio license, Ex.B.5, which is of the year 1980, wherein the address is stated as No.162, Ponnambala Mudaliar Street, but the door number of the suit "B" schedule property was D.No.65 of the said street.
12. As per the finding of the trial court, Ex.B.5, would prove that the defendant was not in possession of the suit property, in D.No.65 during the year 1980 and further, held that Ex.B.2, photostat copy could have been created for the purpose of the case, by manipulating the address, by the defendant for claiming adverse possession. As held by the trial court, Ex.B.2, xerox copy cannot be relied upon. It being a photostat copy, using the technology, the address portion could have been changed, subject to the convenience of the party, for claiming title by way of adverse possession. Similarly, Ex.B.3 was issued by the Electricity Department, which does not contain the door number of the suit "B" schedule property. It is further seen that Ex.B.4 is the hospital slip, which does not have the Door No.65 of the suit property. As held by the Courts below, documents containing the street name alone without the door number, could not be construed as a proof to show that the appellant / defendant was in possession and enjoyment of the property for the statutory period.
13. A perusal of the Judgment rendered by the courts below and the documents, marked on both sides, it is clear that the appellant / defendant has not marked sufficient documents to establish her long hostile possession and enjoyment of the property to seek adverse possession. Apart from the other documents of the appellant already discussed, Ex.B.6 is only a carbon copy of voters slip, which cannot be relied on for deciding adverse possession and Ex.B.7 does not bear street name or door number. Ex.B.8 is the ration card of the year 2005, which is a subsequent document, after filing of the suit and Ex.B.9 is the Life Insurance policy, wherein the address is stated as 62, Ponnambalam Mudaliar street and not the suit "B" schedule property at Door No.65 of the said street. Similarly, Ex.B.10, bank pass book contains the address without the Door number. Ex.B.11 is also a photostat copy of the voters list.
14. The trial court, discussing all the documents marked on both sides has held that the respondent / plaintiff has proved his suit claim and the appellant / defendant has not established her claim of adverse possession by way of supporting evidence. The appellant / defendant alone was examined on the side as D.W.1 and there was no revenue records to establish that the appellant has enjoyed the property for the statutory period, as if it was her own property, in order to prove the animus possidendi and hostile enjoyment by the appellant / defendant.
15. It is a well settled proposition of law that adverse possession is recognised as a legal right to claim title to the property belonged to some other person, if there is continuous, uninterrupted possession, having animus possidendi and hostile possession, for more than the required statutory period. Merely by producing certain xerox copies of the bill and electricity consumption card and other documents, having some other door number and not the door number of the "B" schedule of the property and producing other documents obtained, after date of filing of the suit, the appellant / defendant cannot establish her claim of title by way of adverse possession. Had the documents filed by the appellant / defendant are true and genuine to establish the appellant's / defendant's animus possidendi for the statutory period, she could have produced and marked the required supporting documents obtained from revenue department or other statutory authority and also from the electricity department and could have examined the concerned officials, in order to prove that the property was being enjoyed by her, as if her own property, adverse to the title and interest of the true owner.
16. It cannot be disputed that there is every possibility for a permissive occupier to show the address of the property in the radio license, voters slip, LIC certificate, bank pass book etc., that would not create any legal presumption that the possession and enjoyment was adverse to the rights of the true owner of the property, as it is possible for any permissive occupier or tenant to get such documents, showing the residential address, hence, that would not show the legal requirement of animus possidendi and the hostile possession, so as to create a legal presumption that such occupier was in possession, adverse to the rights and title of the owner of the property, in order to confer title to the person, who is in possession and enjoyment of property.
17. In the instant case, as found by the Courts below, some of the documents are xerox copies of electricity consumption bills and some other documents were obtained subsequent to the filing of the suit, which would not establish the 'hostile possession', adverse to the true owner of the property, for the statutory period.
18. It is also pertinent to note that the appellant / defendant had filed an earlier suit in O.S.No.722 of 1997, on the file of the II Additional District Munsif, Pondicherry, seeking bare injunction against the respondent / plaintiff herein, not to evict the appellant / defendant, except under due process of law. Had the appellant / defendant got title by way of adverse possession, she could have filed the suit, seeking declaration of title, by way of adverse possession and permanent injunction in respect of her possession and enjoyment of the property in the suit in O.S.No.722 of 1997 and hence, there could be no animus possidendi in favour of the appellant, on the date of filing of the said suit in O.S.No.722 of 1997 in the year 1997. She filed the suit, seeking bare injunction not to evict her, except under due process of law. Hence, the appellant / defendant is estopped from raising a plea, contrary to her plea in her earlier suit, stating that she got title by way of adverse possession, in her written statement and make a counter claim in the present suit.
19. Learned counsel for the appellant has raised the first substantial question of law with reference to Section 27 of the Limitation Act. It is seen that Section 27 of the Limitation Act, 1963 reads as follows:
"27.Extinguishment of right to property At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."
20. It is seen that Section 27 of Limitation Act, 1963, deals with extinguishment of right to property, wherein it specifies that at the determination of the period of limitation, any person for instituting a suit for possession of any property, the pendency of the earlier suit by the defendant, which was ultimately dismissed, would not arrest running of limitation during the pendency of the suit for the purpose of adverse possession of the defendants for over 12 years, as decided in Rajendra Singh v. Santa Singh, AIR 1973 SC 2537.
21. It is well settled proposition of law that for seeking adverse possession, the intention of the possession of the appellant / defendant, who seeks title by way of adverse possession must be of enjoying the property of her own, otherwise known as animus possidendi and also hostile to the title and rights of the true owner. In order to claim title by way of adverse possession, the person who claims such a right must establish his / her animus possidendi and hostile possession for the statutory period of 12 years or more, which is a mandatory requirement. The legal requirements for establishing title by way of adverse possession are : (1) the person claiming adverse possession could have been in possession and enjoyment of the property with animus possidendi, the intention of possessing the same as that of his property (2) such possession must be hostile to the rights and title of the true owner (3) the possession must be for the statutory period or more (4) the burden of proving title by way of adverse possession lies on the person claiming such right over the property.
22. In this regard, the earlier suit filed by the appellant / defendant is also relevant. Admittedly the said suit was filed in the year 1997, by the appellant, wherein the appellant / defendant had sought only permanent injunction against the respondent / plaintiff herein, not to evict her, except under due process of law, whereby the appellant / defendant had not sought declaration of title, by way of adverse possession, for reasons best known to her. Hence, she was not certain about her animus possidendi, on the date of filing the suit in the year 1997.
23. Had there been animus possidendi, for the appellant to claim title by adverse possession, on account of her hostile possession and enjoyment, for the statutory period, she could have filed her earlier suit in O.S.No.772 of 1997, seeking declaration of title, by way of adverse possession and consequential relief of injunction and further, the suit was resisted by the respondent herein. The present suit was filed in the year 2000, wherein the appellant / defendant filed her written statement on 17.08.2000, seeking title by way of adverse possession. After the filing of the earlier suit in the year 1997, the appellant / defendant cannot raise a plea that she was enjoying the property, hostile to the title and interest of the true owner, for more than 12 years in the year 2000, such a plea is against her prayer in the earlier suit, seeking injunction against the respondent / plaintiff, not to dispossess her, except under due process of law.
24. On the available facts and circumstances, this Court is of the view that Section 27 of Limitation Act, 1963 has no relevancy to decide the adverse possession claimed by the appellant / defendant herein. As per Section 5 of the Transfer of Property Act, 1882, "Transfer of Property" has been defined as an act, by which a living person conveys property in present or in future to one or more other living persons. It is further stated that "living person" includes a company or association or body of individuals, whether incorporated or not. It is not in dispute that transfer of property could be possible, by way of executing sale deed for consideration, executing gift settlement deed, out of love and affection to kith and kin by a person, who has title to the property and similarly, exchange deed, by way of getting another property. After the death of the person, who owned the property, based on the law of succession, his legal heirs would be entitled to inherit the same. Gift settlement deed could also be executed by any person having transferable right for transferring the property for any public cause. Considering all those mode of transfer of property, seeking title by way of adverse possession is entirely different and it would be a deviation for seeking title, whereby any third party, who is in hostile possession and enjoyment, adverse to the title and interest of the true owner for a statutory period is entitled to claim such a right.
25. In P.T.Munichikkanna Reddy and Ors. v. Revamma and Ors., reported in 2007 (6) SCC 59, the Hon'ble Supreme Court has held thus:
"It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner."
26. It has been made clear by the Hon'ble Supreme Court that for seeking adverse possession, one should have possession, which must be hostile, to give rise to a reasonable notice and opportunity to the owner of the property for the statutory period.
27. In Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale & Ors. reported in (2009) INSC 601, the Hon'ble Apex Court has held that for claiming adverse possession, there should be a peaceful, open and continuous possession, being the ingredients of the principle of adverse possession as contained in the maxim nec vi, nec clam, nec precario, hence, possession of a property for a longer period itself would not be sufficient to prove the adverse possession for claiming title.
28. In Balakrishan vs. Satyaprakash & Ors., reported in (2001) INSC 32, the Hon'ble Supreme Court has held as follows :
"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, he must show that his possession is adequate in Mst. Bibi Sakina (1964) INSC 35 ; AIR 1964 SC 1254 speaking for this Court Hidayatullah, 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 least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found."
29. It has been made crystal clear by the Hon'ble Apex Court in the decision referred to above, that for seeking adverse possession, the person claiming adverse possession has to prove three aspects for nec-nec vi, nec clam and nec precario. Accordingly, (1) the possession must be adequate in continuity for the said period, (2) the possession must be open and public and extend at least to show as to when the possession became adverse to the party affected and (3) the possession must be for the statutory period. Mere possession for 12 years or more would not confer title by adverse possession, unless the person claiming adverse possession could prove his animus possidendi and hostile possession and enjoyment of the property against the person or persons, who owned the property, for the statutory period.
30. It is also a settled proposition of law that for claiming adverse possession, there must be specific pleadings by the person claiming adverse possession, which should be supported by evidence and it has to be established by the person, who is claiming title by way of adverse possession against the real owner. Simply by producing certain xerox copies or subsequent originals, such as E.B bill, voters list or having bank pass book to the address, in the name of the person, who is in possession and enjoyment of the property would not establish adverse possession, since the same would not create a hostile possession and enjoyment for the statutory period. Any person, who is in possession and enjoyment of the property, as a tenant, permissive occupier or person having leasehold right could easily open bank account, obtain driving license, take LIC policy etc., by giving his residential address relating to the property, however, which would not be sufficient to presume animus possidendi and the hostile possession and enjoyment against the true owner. Such documents could be obtained behind the back of the owner of the property by any tenant or permissive occupier, hence, which would not draw the inference of animus possidendi or hostile possession against the true owner as ruled by the Hon'ble Apex Court in the decisions referred to above.
31. In the instant case, though the appellant / defendant had raised a plea of adverse possession in her written statement and made counter claim, admittedly, she had not claimed title by way of adverse possession in her suit in O.S.No.772 of 1997. No revenue records or any documents showing any entry in the registers maintained by local administration, such as Corporation, Municipality etc., showing the name of the appellant as owner of the property was produced and no Revenue officer or any official relating to local body was examined with reference to any entry made in any such register in the name of the appellant. The documents produced by the appellant / defendant are only xerox copies and certain other documents, such as Electricity Bill, Hospital admission card, Radio license, LIC certificate etc., relating to subsequent dates, after filing of the suit, which would not prove adverse possession.
32. As per the first substantial question of law raised by the appellant, it is stated whether the Courts below are justified under Section 27 of the Limitation Act in granting the relief. Section 27 of the Limitation Act, 1963 relates to Extinguishment of right to property.
33. It is not in dispute that the respondent / plaintiff has purchased the suit property, by way of a registered sale deed from his vendor, who owned the property. As per Exs.A.4 and A.5, certified copy of the Judgment and Decree relating to the suit in O.S.No.772 of 1997, the appellant / defendant herein filed the aforesaid suit, seeking only permanent bare injunction not to evict her except under due process of law, without seeking declaration of title by way of adverse possession.
34. As discussed earlier in this Judgment, the appellant / defendant had not filed the said suit, seeking declaration of title, based on the claim of adverse possession and therefore, as per the Judgment and Decree, dated 28.10.1998 passed in O.S.No.772 of 1997 on the file of the II Additional District Munsif, Pondicherry, the appellant / defendant had claimed only permanent injunction not to interfere with her peaceful possession and enjoyment over the suit property, except under due process of law. Subsequently, the present suit in O.S.No.83 of 2000 was filed by the respondent / plaintiff, seeking declaration of title, mandatory injunction and other consequential reliefs. The same was granted by the trial court and confirmed by the appellate court in A.S.No.310 of 2006. For the plea of the appellant / defendant, seeking title by way of adverse possession, the Courts below have concurrently held that the appellant / defendant herein was not entitled to claim title by way of adverse possession, as per her written statement and raising counter claim.
35. It is a settled proposition of law that the burden is upon the appellant / defendant to establish her claim of title, by way of adverse possession and hence, as discussed in this Judgment, Section 27 of Limitation Act, 1963 does not support the case of the appellant / defendant, accordingly, the first substantial question of law is answered against the appellant and in favour of the respondent herein.
36. The second substantial question of law raised by the appellant / defendant is whether the Courts below have presumed that the respondent / plaintiff is the owner of the property, without any credible evidence of documents to substantiate the title in favour of the respondent / plaintiff.
37. It is seen that the appellant / defendant had filed her proof affidavit, dated 02.11.2005 for her chief examination, wherein she has admitted that the suit property was owned by Ubakara Marie, vendor of the respondent / plaintiff. Ex.A.3 is the sale deed, dated 30.03.1994 executed by Ubakara Marie in favour of the respondent / plaintiff. He has also produced the antecedent title deed of his vendor as Ex.A.1 and its translation Ex.A.2. In the earlier suit filed by the appellant / defendant herein in O.S.No.772 of 1997, the respondent / plaintiff herein as defendant has stated in his written statement specifically that he had purchased the property from Ubakara Marie, as per the registered sale deed, dated 30.03.1994, in view of the same, the revenue records were also changed in his name. It is not the case of the appellant / defendant that the sale deed, Ex.A.3 was not executed by Ubakara Marie, who owned the propety. Though the appellant / defendant has claimed title by way of adverse possession, in her cross-examination, she could not say even the extent of the land in her possession and enjoyment. She has admitted that herself, the respondent /plaintiff and late Ubakara Marie were christians by religion. However, she said that she did not know whether Ubakara Marie was the junior grand mother of the respondent / plaintiff's wife. The respondent / plaintiff has produced Ex.A.1 to A.9, in order to establish her title and original chitta issued by revenue authorities in the name of Ubakara Marie and then in the name of the respondent / plaintiff.
38. Having considered the oral and documentary evidence available on record, the Courts below have concurrently held that the respondent / plaintiff has established his title to the suit property for the relief sought for in the suit.
39. Learned counsel appearing for the appellant / defendant has not pointed out any circumstance to show, as to how the finding of the Courts below is perverse, either on the ground that the finding is against the available evidence or without evidence. In the proof affidavit, the appellant / defendant has admitted that the property was owned by Ubakara Marie, vendor of the respondent / plaintiff. She has neither purchased the property nor inherited the same for the said Ubakara Marie, but claiming title only by way of adverse possession.
40. As discussed earlier, the respondent / plaintiff has established his title, as concurrently held by the Courts below, whereas the appellant / defendant has not substantiated that she had acquired title by way of adverse possession. On the aforesaid facts and circumstances, the plea of the appellant / defendant that the Courts below have presumed that the plaintiff is the owner of the property, without any credible evidence or documents is totally unsustainable, hence, the second substantial question of law raised by the appellant / defendant is also answered against the appellant / defendant and in favour of the respondent / plaintiff. Hence, this Court is of the view that there is no error or infirmity in the Judgment and Decree rendered by the Courts below, based on current finding, so as to warrant any interference by this Court in this second appeal and accordingly, the second appeal is liable to be dismissed.
S. TAMILVANAN,J.
tsvn In the result, this Second Appeal is dismissed with costs. Consequently, connected miscellaneous petition is also dismissed.
05-09-2013 Index : Yes Internet : Yes tsvn To
1. The Principal District Judge, Puducherry.
2. The Principal Sub-Judge, Puducherry.
Pre-delivery judgment in
S.A. No.1557 of 2010