Madras High Court
Ajija Banu vs Vadivambal on 2 August, 2016
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.08.2016
Coram
THE HONOURABLE MS.JUSTICE R.MALA
S.A.No.11 of 2004
and
M.P.(MD)No.1 of 2011
Ajija Banu .. Appellant/Appellant/Plaintiff
vs.
1.Vadivambal
2.Ghouse Khan @ Mahaboob(died)
(R.1 recorded as L.R., of the deceased
R.2 vide order dated 15.07.2011 made
in S.A.No.11/2004 vide memo
dated 15.07.2011) ... Respondents/Respondents/Defendants
PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure,
against the Judgement and Decree dated 28.10.2002 passed in A.S.No.113 of
2001, on the file of the learned Principal Subordinate Judge, Madurai
confirming the Judgment and Decree dated 02.02.2001 passed in O.S.No.81 of
2000 on the file of the learned District Munsif, Melur.
For Appellant : Mr.A.Arumugam
for M/s Ajmal Associates
For Respondents : Mr.K.Muralidharan
for R.1
: R.2 died
:JUDGMENT
The plaintiff, who last the legal battle before both the Courts below, has come forward with this Second Appeal challenging the Judgement and Decree dated 28.10.2002, passed in A.S.No.113 of 2001, on the file of the learned Principal Subordinate Judge, Madurai, by confirming the Judgment and Decree dated 02.02.2001, passed in O.S.No.81 of 2000, on the file of the learned District Munsif, Melur.
2. Heard the learned counsel for the appellant and the learned Counsel for the first respondent and perused the materials available on record.
3. The appellant, as a plaintiff filed a suit in O.S.No.81 of 2000 for declaration of title and injunction stating that the suit property is originally belonging to one Rasool Bibi, who is the junior maternal aunt of the plaintiff and her husband is one Mohideen Khan. Since they are not having any child for a long time, they are bringing up and maintaining the plaintiff as their own daughter. After a long time, the second defendant was born to Mohideen Khan and Rasool Bibi. In the year 1969, the plaintiff was married to one Sheik Mohamed. Mohideen Khan has transferred the suit property to the plaintiff as her marriage gift - Hiba. From that date onwards, she took possession and enjoyment of the same by mutation of revenue records and paying the kists. But on 9th June 2000, the second defendant, who is the son of Rasool Bibi and Mohideen Khan attempted to interfere the plaintiff's peaceful possession and enjoyment and hence, she is constrained to file the suit for declaration of title and injunction stating that she is in possession and enjoyment of the suit property on the basis of the oral gift - Hiba and from the date of oral gift, she is in open, continuous and uninterrupted possession of the suit property for more than the statutory period and thereby has perfected her title by adverse possession.
4. Resisting the same, the second respondent/second defendant filed a detailed written statement stating that there is no oral gift and all the documents were concocted. The plaintiff's husband is a Revenue Inspector. So all the revenue documents have been concocted for the purpose of the case. He would further submit that the adoption of female child is prohibited under Mohamedan law. The second defendant was born in the year 1964 and he is the only son. There is no necessity for them to settle the property in favour of the plaintiff. The plaintiff was married in the year 1968 and not in the year 1969. The mother of the second defendant purchased the suit property under a registered sale deed dated 30.12.1957 and she was in possession and enjoyment till her death on 29.03.1969. Then as per Mohamedan law, the second defendant is entitled to 3/4th share and his father is entitled to 1/4th share and they are enjoying the property as her legal heirs, by paying kists. So the oral gift itself is false. He would further submit that the plaintiff neither in possession nor cultivating the land. The name has been transferred in all revenue records by tampering the patta passbook and other documents. The second defendant alone borrowed a crop loan from the Karuppayoorani Primary Co-operative Bank for cultivation. The first defendant purchased the suit property and the adjacent property. She put up a petrol bunk in the adjacent property and she has fenced the suit property with pucca stone pillar. There is no cause of action for the suit and hence, prayed for dismissal of the suit.
5. The trial Court, after considering the averments both in the plaint and written statement and the arguments of both sides, has framed the necessary issues and dismissed the suit stating that the plaintiff has not proved her title to the property by oral gift ? Hiba and the property has not been given as marriage gift to the plaintiff at the time of marriage and also she is not in possession of the suit property. Against which, the plaintiff preferred an appeal in A.S.No.113 of 2001. The first Appellate Court also dismissed the appeal by confirming the decree and judgment of the trial Court. Against which, the second appeal has been preferred by the plaintiff.
6. At the time of admission of the Second Appeal, the following Substantial Questions of Law have been framed:
?1. Whether the appellant has proved her continuous possession of the suit property for well over the statutory period and that prescribed title to the suit property by adverse possession?
2. Whether the judgment and decree of the Courts below are vitiated by its failure to consider the pleadings, documents filed in the instant case by the respective parties in its proper perspective??
7. The learned Counsel for the appellant/plaintiff would submit that an application filed under Order 41 Rule 27 C.P.C. has been dismissed by the first appellate Court. But the contents in that application have been relied upon to prove the plaintiff's case and the plaintiff filed Adangal for the years 1970 ? 2000. So the first appellate Court ought to have accepted that document. He would further submit that after the gift is invalid, the plaintiff's possession is adverse, so she has prescribed title by adverse possession. In support of his contentions, he relied upon the following decisions:
(i) Lala Hem Chand Vs. Lala Pearey lal and Others reported in (1943)1 MLJ 11 (Privy Council)
(ii) State of West Bengal Vs. The Dalhousie Institute Society reported in AIR 1970 Supreme Court 1778;
(iii) Bharit and others Vs. the The Hon'ble Board of Revenue, U.P., at Allahabad and others reported in AIR 1973 AII 201;
(iv) Collector of Bombay Vs. Municipal Corporation of the City of Bombay and Others reported in AIR (38) 1951 Supreme Court 469;
(v) Kalawatibai Vs. Soiryabai and Others reported in (1991)3 Supreme Court Cases 410;
(vi) Munivel Vs. Munusamy Mudaliar and Others reported in 1997(1) CTC 26;
(vii) Sadasiva Gounder and another Vs. Purushothaman reported in (2000)3 MLJ 785
(viii) N.S.Spance Vs. D.S.Kanagarajan and another reported in 2005(1) CTC 494; and
(ix) K.V.Ramasamy Vs. K.V.Rahgavan and 3 Others reported in 2009(4) CTC
440.
8. He would also rely upon the Law of Pleadings in India with precedents written by P.C.Mogha, 17th Edition and would submit that the plaintiff can take an alternative prayer as an adverse possession and also relied upon a decision in Kapileswar Sahoo Vs. Rama Chandra Sahoo and Others reported in AIR 1996 Orissa 7 and prayed for setting aside the decree and judgment of both the Courts below and prayed for decree of declaration and injunction.
9. Per contra, the learned Counsel appearing for the first respondent would submit that the plaintiff cannot seek for declaration of decree on the basis of adverse possession. In support of his contentions, he relied upon the following decisions:
(i) R.Riyaz Ahmed and Others Vs. J.G.Glass Industries Pvt. Ltd., and Others reported in 2014(3) CTC 146;
(ii) Damodar Lal Vs. Sohan Devi and Others reported in 2016(1) CTC 475;
(iii) An unreported judgment of the High Court of Punjab and Haryana at Chandigarh in RSA No.2561 of 1985, dated 08.12.2014 in Vijay Bhawar and Others Vs. Ajaib Singh (deceased) through his LR.
10. He would further submit that once a person claims adverse possession, there must be animus possidendi and there must be a specific plea of adverse possession and the plaintiff has to prove that her possession became adverse to the knowledge of the true owner. But in paragraph 9 of the plaint, the plaintiff made only one sentence in respect of adverse possession. In that also, she is not admitting the title of the true owner.
11. He would further submit that it is a concurrent finding and the concurrent findings of facts cannot be interfered with unless the findings are passed on misreading of evidence. To substantiate the same, he relied upon a decision in R.Riyaz Ahmed and Others Vs. J.G.Glass Industries Pvt. Ltd., and Others reported in 2014(3) CTC 146. He would further submit that the first Appellate Court has correctly dismissed the application filed under Order 41 Rule 27 C.P.C. and there is no need to interfere with the findings of both the Courts below. Hence, he prayed for dismissal of the second appeal.
12. Considering the rival submissions made by both sides and on perusal of the typed set of papers, it would reveal that admittedly the suit property was purchased by Rasool Bibi under Ex.B.3. The case of the appellant/plaintiff is that Rasool Bibi, having no children for a long time, she and her husband Mohideen Khan brought up the plaintiff. At the time of marriage, the suit property was given as the marriage gift as oral gift ? Hiba. But both the Courts below have held that Hiba has not been proved. Now at the time of admission, the appellant/plaintiff raised a plea of adverse possession stating that the gift is invalid and the possession became adverse and so, the plaintiff prescribed title by adverse possession. It is a well settled principle that adverse possession must be specifically pleaded and proved in accordance with law by the person, who pleaded adverse possession.
13. At this juncture, it is appropriate to consider the arguments of the learned Counsel appearing for the respondent. He would submit that if a person claiming adverse possession must be admitted the title to the second defendant/ true owner and with the knowledge of the true owner and adverse to the interest of the true owner, she is enjoying the property openly, continuously, uninterruptedly for more than statutory period, then only she prescribed title by adverse possession. But here, there is no specific pleading in the plaint. The learned Counsel for the respondent has taken me to paragraph No.9 of the plaint, in which it was stated as follows:
?9. .... Even assuming, without admitting, that the 2nd defendant had any right to the suit property, the plaintiff has long and uninterrupted possession of the property for more than the statutory period and has perfected her title to suit property by adverse possession.?
and in that also, the plaintiff has stated that even assuming, without admitting that the second defendant had any right to the suit property, because she is in continuous possession and she prescribed title by adverse possession. So, I am of the view that the appellant/plaintiff herein has not admitted the title of this respondent. So, now this Court has to decide as to whether the oral gift ? Hiba has been proved by this appellant/plaintiff.
14. Admittedly, the suit property is belonging to Rasool Bibi and Mohideen Khan has no right to give his wife's property as oral gift. So the gift itself is invalid. Moreover, the learned Counsel appearing for the appellant would submit that if the transfer of the property, by way of gift or deed under unregistered sale deed, is invalid and in pursuance of that invalid document, the plaintiff is in possession and enjoyment of the same and she has prescribed title by adverse possession.
15. The learned Counsel for the appellant would rely upon the decision in Collector of Bombay Vs. Municipal Corporation of the City of Bombay and Others reported in AIR (38) 1951 Supreme Court 469, wherein it was held as follows:
?... Though the grant was invalid, the Corporation has now acquired a title by adverse possession to the site.?
16. The learned Counsel for the appellant would also rely upon a decision in State of West Bengal Vs. The Dalhousie Institute Society reported in AIR 1970 Supreme Court 1778, wherein it was held that if the grant is invalid, the possession is adverse and in paragraph Nos.16 and 17 of the above said decision, it was held as follows:
16. There is no material placed before us to show that the grant has been made in the manner required by law though as a fact a grant of the site has been made in favour of the Institute. The evidence relied on by the Special Land Acquisition Judge and the High Court also clearly establishes that the respondent has been in open, continuous and uninterrupted possession and enjoyment of the site for over 60 years. In this respect the material documentary evidence referred to by the High Court clearly establishes that the respondent has been treated as owner of the site not only-by the Corporation, but also by the Government. The possession of the respondent must have been on the basis of the grant made by the Government, which, no doubt, is invalid in law. As to what exactly is the legal effect of such possession has been considered by this Court in Collector of Bombay v.
Municipal Corporation of the City of Bombay as follows:
...the position of the respondent Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant. This possession has continued openly, as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title to it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity free from rent but only for the purposes of a market in terms of the Government Resolution of 1865....
17. The above extract establishes that a person in such possession clearly acquires title by adverse' possession. In the case before us there are concurrent findings recorded by the High Court and the Special Land Acquisition Judge in favour of the respondent on this point and we agree with those findings.?
17. The learned Counsel for the appellant/plaintiff would rely upon the decision in Bharit and Others Vs. The Hon'ble Board of Revenue, U.P. At Allahabad and Others reported in AIR 1973 Allahabad 201, wherein it was held that if the document of the sale is invalid, the transferee gets no title under it. His possession will not be referable to any legal title; it would be adverse to the transferor and in paragraph No.7 of the above said decision, it was held as follows:
?7. The possession of a transferee in the case of sale is not on behalf of the transferor, because the transferor has purported to part with his entire interest in the property. The transaction did not create or retain any privity between the parties. In such a situation, the transferee's possession could not in law, be on behalf of the transferor. The transferee remains in possession in his own claim based on the terms of the sale. If the document of sale is invalid the transferee gets no title under it. His possession will not be referable to any leal title, it would be adverse to the transferor.?
18. The learned Counsel for the appellant would further submit that a person claiming title, failing to prove the title, can claim adverse possession. In support of his contention, he would rely upon the decision of this Court in Sadasiva Gounder and another Vs. Purushothaman reported in (2000)3 MLJ 785, wherein in paragraph No.9, it was held as follows:
?9. So far as adverse possession is concerned, it is claimed in derogation of the rights of the rightful owner. For proving adverse possession, something more than what has been shown in the instant case is required. Adverse possession as we all know commences in wrong and is maintained against right. There are several decisions touching this aspect and it is not necessary to quote chapter and verse. Suffice it to refer to only a few decisions.?
19. So in these citations, it was held that a person claiming 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 the facts necessary to establish his adverse possession.
20. In Kalawatibai Vs. Soiryabai and Others reported in (1991)3 Supreme Court Cases 410, wherein it was held that if the gift is invalid, his possession is adverse and in paragraph No.18 of the above said judgment, it was held as follows:
?18. Coming now to the issue of adverse possession the High Court was not justified in concluding that it was a question of fact. Possession under a gift deed which was found to be invalid, as it was not permitted under Hindu law was on general principle contrary to law, and as such could be adverse. When did it become adverse to the donor and what circumstances constitute adverse possession against the donor is an aspect which does not arise for consideration as, even assuming in favour of the appellant, the question is, if adverse possession against donor was sufficient to clothe her with right or title in the property so as to deprive the reversioners of their right to claim the property after the death of the widow? In Radha Rani case, this Court held:(AIR P.219, para 7 ) ?In the case of an alienation by a Hindu widow without legal necessity, the reversioners were not bound to institute a declaratory suit during the lifetime of the widow. They could wait till her death and then sue the alienee for possession of the alienated property treating the alienation as a nullity.?
Therefore, it is obvious that the appellant could not acquire any right by adverse possession against reversioner during lifetime of her mother. Her claim was rightly negatived.?
21. In the judgment relied upon by the learned Counsel for the appellant in Kapileswar Sahoo Vs. Rama Chandra Sahoo and Others reported in AIR 1996 Orissa 7, in paragraph No.14, it was held as follows:
?14. Thus, in the facts and circumstances of the present case, the defendant No.1 obtained only a mortgagee's limited right on the expiry of 12 years from the date of a mortgage and there could not be any question of claiming any adverse possession thereafter.?
22. In N.S.Spance Vs. D.S.Kanagarajan and another reported in 2005(1) CTC 494, wherein it was held that the plaintiff may take an alternative plea for adverse possession and the possession must be without title against a person with original title and then only adverse possession would arise, is not acceptable, since a person, who is in possession of the property, is entitled to take alternative plea and in paragraph No.25, it was held as follows:
?25. As submitted by the learned Counsel for the respondents, it is for the person, who claims adverse possession, to prove that his possession had became adverse to the real owner, as held in Naran Behera V. Mohan Jethi, AIR 1985 Ori 40 and mere posse over a statutory period is not sufficient to succeed in the plea of adverse possession, unless it is accompanied by adverse animus as held in Venkatachalaiah V. Nanjundaiah, AIR 1992 Kar.270. It is also held in the above decision that the alternative plea of adverse possession set up by the plaintiff cannot, therefore, be accepted, which does not mean that alternative plea is not permissible, since adverse animus has not been established in that case. The above decision may not come to the aid of the defendant in this case, in view of the hostile possession established, that too to the knowledge of the first defendant. The contention of the learned Counsel for the respondents that the possession must be without title against a person with original title and then only adverse possession would arise, is not acceptable, since a person, who is in possession of the property, is entitled to take alternative plea as pointed out supra.?
23. The learned Counsel for the appellant would further submit that so the plaintiff can taken an alternative plea of adverse possession. He also relied upon the Law of Pleadings in India with precedents written by P.C.Mogha, 17th Edition wherein in Chapter VII, page 90 it was held as follows:
?Likewise, a suit for a declaration that the plaintiff is owner under a valid title, or in the alternative, on the ground of adverse possession would be maintainable?.
24. From the above citations, I am of the view that the plaintiff has put up her title to the suit property through the oral gift ? Hiba and also adverse possession.
25. Article 65 of the Limitation Act deals with the adverse possession. In that it was specifically stated that adverse possession must be specifically pleaded and proved. At this juncture it is appropriate to consider the decision in Sadasiva Gounder and another Vs. Purushothaman reported in (2000)3 MLJ 785. In that in Dr.Mahesh Chand Sharma V. Raj Kumari Sharma, (1996)8 SCC, 128, wherein it was held that a person claiming 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 the facts necessary to establish his adverse possession and in Anantha Pillai V. Rathinasabapathy Mudaliar, (1968)2 MLJ 574, wherein it was held that the concept of adverse possession contemplates a hostile possession ie., a 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 acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor.
26. The learned Counsel appearing for the appellant would further rely upon the decision in Lala Hem Chand Vs. Lala Pearey lal and Others reported in (1943)1 MLJ 11 (Privy Council) and would submit that invalid dedication to charity in a will ? executor holding property for over 12 years on behalf of charity ? possession adverse to true owner whose title will be extinguished under Section 28 of the Limitation Act and it is appropriate to incorporate a paragraph in the above said decision which is as follows:
?The law is well established that where a trustee has been in possession for upwards of 12 years, of property under a trust which is void under the law, an action against him by the rightful owner would be barred by limitation under the statute, the reason being that the possession of the trustee is as much adverse to the true owner as that of any trespasser.?
27. Since the right by adverse possession is exception to law of acquisition of title through lawful means, the same has to be pleaded with certainty and proved to hilt. So, now this Court has to decide whether adverse possession has been pleaded and proved.
28. As already stated in paragraph No.9 of the plaint, the plaintiff has stated as follows:
?9. .... Even assuming, without admitting, that the 2nd defendant had any right to the suit property, the plaintiff has long and uninterrupted possession of the property for more than the statutory period and has perfected her title to suit property by adverse possession.?
But, she has not stated that the second defendant is the owner of the suit property and she is in possession adverse to his interest, with his knowledge for continuous, uninterrupted possession for more than a statutory period. So, the pleadings in the plaint itself is not sufficient for adverse possession.
29. At this juncture, it is appropriate to consider the citations referred by the learned Counsel appearing for the first respondent.
30. In R.Riyaz Ahmed and Others V. J.G.Glass Industries Pvt. Ltd., and others reported in 2014(3) CTC 146, wherein it was held that no declaration can be sought by the plaintiff with regard to adverse possession, because such plea is available only to the defendant. It is appropriate to incorporate paragraph No.15 of the above said judgment which is as follows:
?15. It is settled position that the plea of adverse possession can be raised only as a defence. In other words, the plea of adverse possession can be used only as a shield and not as a sword. In the judgment reported in (2014) 1 Supreme Court Cases 669 [Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and another], the Hon'ble Supreme Court held as follows:
"5.Insofar as Issue 4 pertaining to relief of injunction is concerned, the learned Civil Judge held that as long as uninterrupted possession of the appellant was established, the appellant was entitled to the decree of injunction and the respondents were restrained from dispossessing the appellant forcibly and illegally from the suit land and also restrained from damaging the building of Gurdwara Sahib. Issue 5 was decided against the respondent on the ground that no evidence was led to show how the suit was not maintainable in the present form. While granting relief, the learned Civil Judge partly decreed the suit holding as under:
It is held that the plaintiff is in adverse possession over the suit property since 13-4-1952 and the defendants are restrained from dispossessing the plaintiff forcibly and illegally from the suit property and further restrained from damaging the building of Gurdwara Sahib except according to due process of law. As discussed above, the remaining relief as sought by the plaintiff is dismissed. Decree-sheet be prepared. File be consigned to the record room.
6.It is pertinent to note that the respondents accepted the judgment and decree pertaining to prohibiting injunction. It is the appellant who filed the first appeal. Obviously, the confines of the said appeals related to the issue pertaining to declaration of ownership of adverse possession. The first appellate court while dismissing the appeal observed as under: The respondents have not challenged the judgment and decree dated 6-1-2009 passed by the learned Civil Judge (Junior Division), Khanna, which means that they have accepted that the appellant was in adverse possession of the suit land since 13-4-1952. The issue whether adverse possession of the appellant- plaintiff had matured into his ownership is purely a question of law and it is a settled position that no declaration of title can be sought on the basis of adverse possession. The learned trial court has rightly relied upon the case titled Gurdwara Sahib Sannauli v. State of Punjab [(2009) 154 PLR 756] wherein it is held that no declaration can be sought by the plaintiff with regard to adverse possession because such a plea is available only to the defendant. Since the appellant was not the lawful owner of the property in dispute, therefore, Respondent 1 was within its rights to auction a part of the same on 19-12-2003 in favour of Respondent 2. Respondent 1 has proved that land measuring 13B-12B was auctioned on 19-12-2003 in the presence of BDPO, Doraha and Ranjit Singh was declared as the last bidder and the auction was struck in his name for a consideration of Rs 1,11,000 and the land measuring 6B on which the building of Gurdwara Sahib had been constructed, was not auctioned.
In view of my above discussion, I find no material illegality or irregularity in the judgment and decree dated 6-11-2009 passed by learned trial court and therefore the appeal is dismissed and the findings of the learned trial court are affirmed. Decree-sheet be prepared. File of the lower court be returned forthwith. File be consigned to the record room.
7.In the second appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable.
8.There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."
From the judgment of the Apex Court, it is clear that the issue whether adverse possession of the plaintiff had matured into his ownership is purely a question of law and it is a settled position that no declaration can be sought on the basis of adverse possession. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession had matured into ownership. Only if proceedings are filed against the plaintiff and the plaintiff is arrayed as defendant that it can use the adverse possession as a shield/defence.?
31. The learned Counsel for the first respondent would further rely upon an unreported judgment of the High Court of Punjab and Haryana at Chandigarh in RSA No.2561 of 1985, dated 08.12.2014 in Vijay Bhawar and Others Vs. Ajaib Singh (deceased) through his LR, wherein it was held in paragraph Nos.13 and 14 as follows:
?13. The law of adverse possession is well known. Ordinarily it appears to be simple, but off late it has been applied incorrectly in some cases. The principle of adverse possession 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. The adverse possession essentially is hostile possession, possession in denial of the title of the true owner. It includes possession held by a defendant in practical contravention of the plaintiff's rights while the plaintiff is standing by. It can be described as, (a) it is possession of another's land with intent to hold and claim it as his own; it must commence in wrong and must be maintained against right; (b) it is possession with animus to hold the property in the possession's own right and against the right of the rightful owner; (c) it is possession hostile and DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document exclusive; (d) it is an invasion of the title; (e) it is wrongful entry into possession. It has three popular expressions or principles found in the maxim ?nec vi, nec clam and nec precario?. Article 65 of the Limitation Act, 1963 provides limitation of twelve years in filing a suit for possession of a property on the basis of title, when possession of the defendant became adverse to the plaintiff. The owner having not filing the suit for possession within twelve years from the date when the possession became adverse is not entitled to take possession of the property on the basis of title. As per Section 27 of the Limitation Act, 1963, the right of such person in the property who did not institute the suit for possession within the limit prescribed shall be extinguished.
14. Thus, a short but a significant question that arises is, whether on an extinguishment of such a right of a true owner in the property, a right occrues or is conferred on the adverse possessor to enable him to claim relief under Section 34 of the Specific Relief Act. To our minds, the answer is NO. In our opinion, Section 27 and Article 65 have to be read in conjunction and not in isolation. An isolated reading of Section 27 may not bring to fore the real and full meaning of the phrase ?right to such property shall be extinguished?. A conjoint reading of both, the Section as well as the Article, clearly postulate that a suit for possession based on title can be filed within twelve years from the date when the possession of the defendant became adverse to the plaintiff and if any such suit is not filed within such prescribed period, right of such person to the property shall be extinguished. DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document Evidently, the right of such person to obtain possession has been extinguished but his right to the property has not been.
The right to a property and right to regain possession of the same are two different things. The Hon'ble Apex Court in Tribhuvanshankar's case (supra) has clearly mandated that Section 28 of the Limitation Act, 1963, merely declares when does the right of a person out of possession is extinguished, but this provision does not confer any title on the person who has been in adverse possession for a certain period. There is no law which provides for 'conferral of title' as such on a person who has been in adverse possession 'has perfected his title', it only means this. It does not mean that it confers ownership or title on the adverse possessor. If that is so, then the question arises whether the adverse possessor who has not been conferred any right in the property, contrary to the true owner who's right to seek possession stood extinguished, can file a suit under Section 34 of the Specific Relief Act to declare him owner of the property on the basis of adverse possession? Section 34 of the Specific Relief Act reads as under:
34. Discretion of court as to declaration of status or right ? Any person entitled to any legal character, or to any right as to any property may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.?
DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document All what the afore reproduced provision envisage is that a person, who is entitled to any right as to any property, may institute a suit against any person denying or interested to deny his title to such property to declare his title in the property. But as indicated above, adverse possessor has no title or ownership in the property. In fact, the whole concept of adverse possession is in denial of title. It does not contemplate acquisition of title by prescription. He has right to remain in possession of the property, if his possession is adverse to the true owner, who is not entitled to take possession of the property after the prescribed limit under Article 65 of the Limitation Act, 1963. If a suit is filed by the adverse possessor under Section 34 of the Specific Relief Act, the Court will not examine whether the right of the defendant is within the period of limitation or whether it has extinguished. The court will examine whether the plaintiff who filed suit on the basis of adverse possession has any title to the property. Therefore, just because the plaintiff filed the suit denying title of the defendant and defendant had lost his right to regain possession of the property. In our opinion, Section 27 of the Limitation Act, 1963, though extinguishes the right of a person to gain possession of the property, if he had failed to file the suit within twelve years specified under Article 65 of the Act, but this Section and the Article does not, on the extinguishment of such right vest title in favour of the adverse possessor to file any such suit under Section 34 of the Specific Relief Act. He has to establish his own DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document right, title to the suit property. In our view, the adverse possessor having no right in the property cannot maintain a suit under Section 34 of the Specific Relief Act. There may not be any case wherein the title can be set up or declared based on merely adverse possession. In our view, a suit merely based on adverse possession or to call it a title by adverse possession is not maintainable. Such a defence is open to the defendant by virtue of Article 65 of the Limitation Act, 1963 to set up against the owner seeking the relief of possession based on title against a person in adverse possession. Declaration of title presupposes that a title or ownership exist in the plaintiff, but if a person neither has the ownership nor title, what declaration can he ask for.?
It was also held that no declaration can be sought by the plaintiff regarding the ownership on the basis of adverse possession, as such plea is available only to the defendant and also held that the plaintiff is not entitled to declaration on the basis of adverse possession.
32. Considering the above citations, as already stated that adverse possession must be specifically pleaded and proved by the person who pleaded adverse possession. In paragraph No.9 of the plaint in which it was stated as such:
?9. .... Even assuming, without admitting, that the 2nd defendant had any right to the suit property, the plaintiff has long and uninterrupted possession of the property for more than the statutory period and has perfected her title to suit property by adverse possession.? But there must be animus possidendi that he is in possession of the property of the third party ? true owner adverse to him with his knowledge openly, continuously and uninterruptedly for more than a statutory period. It has three popular expressions or principles found in the maxim ?nec vi, nec clam and nec precario?. Article 65 of the Limitation Act, 1963 provides limitation of twelve years in filing a suit for possession of a property on the basis of title, when possession of the defendant became adverse to the plaintiff. But here, there is no statement that he is in possession of the suit property adverse to the interest of the true owner with his knowledge openly, continuously and uninterruptedly for more than twelve years has not been pleaded.
33. Now this Court has to decide as to whether it has been proved in accordance with law that the plaintiff is in long uninterrupted possession. But admittedly, they are concentrated only on the oral gift ? Hiba alleged to be given by Mohideen Khan, who is not the real owner of the property. At the time of filing of Second Appeal only, the plea of adverse possession has been raised and Substantial Questions of Law has been raised. So, no document has been filed to show that the plaintiff was in possession for more than a statutory period and no revenue record has been filed. Furthermore, it is pertinent to note that in the written statement, it was specifically mentioned that the plaintiff/appellant's husband is working in revenue department and they themselves concocted some documents.
34. It is pertinent to note that in the first appeal, the plaintiff as petitioner filed an application under Order 41 Rule 27 C.P.C. for reception of additional evidence. That application has been dismissed stating that those documents are not true and genuine. The evidence of P.W.1 itself falsified the documents, which are not true and genuine. But, whereas the respondents/defendants have filed kist receipts from the year 1966 onwards. The documents filed by the respondents/defendants would show that the appellant/plaintiff is not in possession and that too in continuous possession of the suit property.
35. The learned Counsel for the first respondent has taken me to the corrections made in these documents, so the documents are not true and reliable. It is the duty of the plaintiff/appellant, the person, who pleaded adverse possession, must prove the same. But she has not proved the same. In such circumstances, I am of the view that the dismissal of the application filed under Order 41 Rule 27 C.P.C. by the first Appellate Court does not warrant any interference.
36. In the decision relied upon by the learned Counsel for the appellant in K.V.Ramasamy Vs. K.V.Rahgavan and 3 Others reported in 2009(4) CTC 440, in paragraph Nos.10, 11 and 12, it was held as follows:
?10.In the written statement filed on the side of the 4th defendant, it is stated that on 03.02.1992, the first defendant has executed a Will in favour of the 4th defendant in respect of the suit property and therefore, the plaintiff is not entitled to get the relief sought for in the plaint and altogether the present suit deserves dismissal.
11.In the additional written statement filed by the defendants 1 & 2, it is stated that the plaintiff has no right to seek the relief of perpetual injunction and therefore, the present suit is liable to be dismissed.
12.On the basis of divergent pleadings raised on either side, the trial Court has framed necessary issues and after pondering both the oral and documentary evidence has dismissed the suit. Against the judgment and decree passed by the trial Court, the plaintiff as appellant has preferred appeal suit in the District Court, Tirunelveli and subsequently the same has been transferred to the file of this Court so as to hear the same along with Appeal Suit No.176 of 2001.
37. The above citation referred by the learned Counsel for the appellant is not applicable to the facts of the present case, since the first appellate Court has considered all the ingredients of Order 41 Rule 27 C.P.C. and came to the correct conclusion.
38. The learned Counsel appearing for the appellant/plaintiff would submit that the mandatory provision of Order 41 Rule 31 C.P.C. is not complied with in the judgment passed by the first appellate Court and hence the judgment of the first appellate court has to be considered as non- judgment in law, as per the decision in Munivel Vs. Munusamy Mudaliar and Others reported in 1997(1) CTC 26
39. But the above argument of the learned Counsel appearing for the appellant does not hold good, because even though only one point has been mentioned, the first appellate Court has discussed all the points and decided the case and came to the correct conclusion. In such circumstances, I am of the view that the above mentioned citation is not applicable to the facts of the present case.
40. The learned Counsel for the appellant/plaintiff would submit that as per Section 27 of the Limitation Act, 1963, the right of the plaintiff is extinguished, so the ownership has been confiscated with somebody and it cannot be hanged.
41. But the above argument of the learned Counsel for the appellant does not hold good, since the appellant/plaintiff herein has not proved that she is in possession and enjoyment from the year 1969 onwards, because, before the trial Court, the plaintiff filed the documents as already stated only patta and kist receipts from 1992, 1998 and 2000 and fasli 1409. After filing of the suit, as already stated, as the appellant's husband is a Revenue Inspector, they created documents and that has been correctly considered by the first appellate Court. Per contra, the second respondent was enjoying the property and dealt with the property and he sold the property in favour of the first defendant/first respondent and Encumbrance Certificate has also been marked and first defendant has put up petrol bunk adjacent to the property. It was also admitted by the plaintiff herself that the property was not cultivated by her for the past ten years, which shows that she is not in possession and enjoyment. Once the possession was not proved by the appellant/plaintiff as on the date of filing of the suit, she is not entitled to adverse possession. So, the arguments advanced by the learned Counsel for the appellant that as if the appellant is in possession of the property from the year 1969 and she has prescribed title by adverse possession does not merit acceptance.
42. As already decided by this Court that the appellant/plaintiff has not proved that through oral gift ? Hiba, she is in open, continuous and uninterrupted possession with the knowledge of the true owner, by way of pleadings and by way of oral and documentary evidences, hence, the arguments advanced by the learned Counsel for the appellant/plaintiff that the plaintiff has prescribed title by adverse possession is unacceptable.
43. The learned Counsel for the appellant/plaintiff has advanced his argument that even though the Honourable Apex Court has held that no declaration of title has been given on the basis of adverse possession to the plaintiff, he wants a finding to that effect.
44. As already stated, as the plaintiff is not in possession and enjoyment of the suit property, the argument of the learned Counsel for the appellant does not merit acceptance.
45. At this juncture, the learned Counsel appearing for the first respondent would rely upon a decision of the Honourable Apex Court reported in Damodar Lal Vs. Sohan Devi and Others reported in 2016(1) CTC 475 and would submit that the concurrent findings of facts cannot be interfered unless findings are based on misreading of evidence. It is appropriate to extract paragraph No.10 of the judgment, which is as follows:
?10. In Krishnan V. Backiam and another, 2008(1)CTC 446(SC) : 2007 (12)SCC 190, it has been held at paragraph 11 that:
?11. It may be mentioned that the First Appellate Court under Section 96 C.P.C., is the last Court of facts. The High Court in Second Appeal under Section 100 C.P.C., cannot interfere with the findings of fact recorded by the First Appellate Court under Section 96 C.P.C. No doubt the findings of fact of the First Appellate Court can be challenged in Second Appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a Question of Law has to be formulated and framed by the High Court to that effect.....?
46. But, here both the trial Court and the first appellate Court have considered all the pleadings, oral and documentary evidences and came to the correct conclusion and hence, the judgment of both the Court below is not perverse. Hence, there is no need to interfere with the findings of both the Courts below. Hence, it is hereby confirmed. In view of the above, the Substantial Questions of Law 1 and 2 are answered accordingly against the appellant/plaintiff
47. In view of the answer given to the Substantial Questions of Law 1 and 2, the judgment and decree passed by both the Courts below does not warrant any interference. Hence, this Second Appeal is dismissed, by confirming the judgment and decree passed by both the Courts below. There shall be no order as to costs. Consequently, the connected Civil Miscellaneous Petition is also dismissed.
To
1. The learned Principal Subordinate Judge, Madurai.
2. The District Munsif, Melur..