Madras High Court
Indira Samraj vs Arulmighu Sri Hanumar Veereswaram on 14 November, 2011
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14/11/2011 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Appeal Suit No.74 of 1992 and C.M.P.Nos.1759 of 1992 and 3650 of 2002 Indira Samraj .. Appellant/1st Defendant Vs. 1.Arulmighu Sri Hanumar Veereswaram, Srirengam by its Fit Person, Executive Officer, Sri.Naganatha Swami Koil Devasthanam, Nandhikoil Street, Trichy - 2. .. 1st Respondent/Plaintiff 2.Chinnadurai 3.Kanagambal Ammal 4.Jayaraman 5.Saroja 6.Mahadevan .. Respondents 2 to 6/ Defendants 3 to 7 Prayer The Appeal Suit has been filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 01.10.1991 made in O.S.No.980 of 1985 on the file of the Subordinate Judge, Trichirapalli. !For Appellant ... Mr.K.Prabhakar ^For 1st Respondent ... Mr.P.Thiagarajan for Mr.T.R.Rajaraman For Respondents 4 & 6 ... Mr.R.Sundar For 2nd Respondent ... No Appearance For Respondents 3 & 5 ... Died :JUDGMENT
This Appeal Suit is focussed by the original 1st defendant animadverting upon the judgment and decree dated 01.10.1991, passed in O.S.No.980 of 1985 by the learned Subordinate Judge, Tiruchirapalli.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A re'sume' of facts avoiding discursive delineation and detailing, absolutely necessary and germane for the disposal of this Appeal would run thus:
The plaintiff filed the suit for recovery of possession of the suit property mainly on the ground that it is Devadayam in favour of the plaintiff. As per Inam Fair Register, ever since the later part of 19th Century, the property stood in the name of the plaintiff. While so, in the year 1985, holus bolus D1 barged into the property and occupied it, whereupon the plaintiff was constrained to file the suit.
4. Per contra, the defendant No.1 impugning and challenging the averments made in the plaint, filed the written statement contending that D1 by her own possession and by virtue of possession of her predecessor in title, acquired the title by adverse possession over the suit property.
5. Defendant No.2 died and his LRs were impleaded as defendants 4 to 6. D2 during his life time filed the written statement as though he purchased the property from some body, but he had not perused the matter properly. (No appeal also has been filed by D2 against the judgment and decree of the trial Court).
6. D3 filed written statement contending that she is the cultivating tenant in the suit property and the cause of action alleged by the plaintiff is not correct.
7. Whereupon, the relevant issues were framed. During the trial on the side of the plaintiff, P.Ws.1 and 2 were examined and Exs.A.1 to A.6 were marked. On the side of the defendant D.Ws.1 to 3 were examined and Exs.B.1 to 67 were marked. The Advocate Commissioner's Report and Sketch were marked as Exs.C.1 and C.2.
8. Ultimately, the trial Court decreed the suit, as against which, D1 preferred this appeal on various grounds contending that the lower Court failed to take into consideration the factum of D1 having acquired title by adverse possession over it and the exhibits marked on the side of D1 coupled with oral evidence would demonstrate and display that D1 acquired valid title over the suit property and by misapplying the law and misinterpreting the evidence, the trial Court simply decreed the suit, ignoring the documents filed on the side of D1.
9. The points for consideration would run thus:
" 1. Whether Section 3 of the Tamilnadu Minor Inams Abolition Act, Tamilnadu Act 30 of 1963 (hereinafter referred to as the Act) had the effect of vesting the suit property absolutely free from the alleged right of D1 and her predecessors in favour of the Government and whether in the wake of Section 3 of the said Act, the plea of adverse possession as pleaded by D1 is not tenable?
2. Whether the trial Court is justified in placing reliance on Exs.A.1 and A.5 and also the other documentary evidence adduced on the side of the plaintiff to decree the suit?
3. Whether the presumption contemplated under Section 44 of the the Act would enure to the benefit of the plaintiff?
4. Whether there is any perversity or illegality in the judgment passed by the lower Court?"
10. All these points are taken together for discussion as they are interlinked and interwoven, entwined and intertwined with one another.
11. The learned counsel for D1/appellant placing reliance on the ground of appeal, his written arguments and also the typed set of papers and evidence would put forth and set forth his arguments, which could tersely and briefly be set out thus:
(a) Section 3 of the Act would not enure to the benefit of the plaintiff and that it did not put an end to the title which had already got vested in favour of D1 based on adverse possession; what is vested would not get divested.
(b) The presumption under Section 44 of the Act is only applicable to the proceedings under the Act and not to the civil Court proceedings. The Division Bench of this Court in S.T.P. No.127 of 1977, vide order dated 14.07.1977, left open the matter to be decided by this Court in this Appeal.
(c) There is nothing to indicate and convey that the temple had been in possession and enjoyment of the suit property anterior to 1985. Artificially the year 1985 had been chosen for mulcting D1 with liability, as though during the year 1985, D1 barged into the suit property and occupied it.
(d) Unless the plaintiff would be able to prove possession prior to 1985, the question of vesting the property on the plaintiff is a well nigh impossibility. But the lower Court failed to consider the same.
(e) The evidence of P.W.1 is vague as vagueness could be, and he pleaded ignorance about the plaintiff's possession and enjoyment of the suit property.
In such a case, the lower Court was not justified in simply decreeing the suit based on the documents.
(f) Clinching documents filed on the defendant's side would highlight and spotlight the fact that Marutha Nayagam Pillai executed the sale deed transferring the suit property in favour of Kumarasamy Pillai, who in turn sold it to Muthusamy Pillai, who in turn sold to Tulasi Ammal and Kalyani Ammal being the legal heir of Thulasi Ammal enjoyed the suit property as owner and she executed a sale deed in favour of Krishnammal who in turn executed a Will in favour of D1 bequeathing the suit property. The said sale deeds covering the title for over 100 years would prove that D1 acquired title over it, but the Court below held otherwise.
Accordingly, the learned counsel for the appellant/D1 would pray for setting aside the judgment and decree of the lower Court and for dismissal of the original suit.
12. In a bid to shoot down and mince meat, and in addition to torpedo and pulverize the contentions as put forth and set forth on the side of defendant No.1, the learned counsel for the plaintiff would advance his arguments, which could tersely and briefly be set out thusly:
Section 3 of the Act had put an end to the alleged claim relating to the suit property by D1 and her predecessors and Section 44 of the Act enables the Courts to presume both warams regarding the inam properties dedicated as Devadayam in favour of the temples and religious institutions are concerned, so to say the properties like the suit properties are concerned. The presumption is in favour of the institutions like the plaintiff and the same has to be rebutted. The adverse possession has to be proved by D1. By pleading adverse possession, D1 also acknowledged the ownership of the plaintiff over the suit property. Ex.A.1 coupled with Ex.A.5, the entry in the Inam Fair Register clearly display and demonstrate that the ownership and possession, was with the plaintiff, as such, the learned counsel for the plaintiff would pray for the dismissal of the appeal.
13. Both sides cited precedents decisions; firstly I would like to refer to the decisions cited on the side of the plaintiff.
(i) Subramania Gurukkal, etc., & others v. Shri Patteswaraswamy Devasthanam Perur by its Executive Officer & others reported in 1996-1-L.W.166.
(ii) A.T.S. Chinnaswami Chettiar etc. v. Sri. Kari Varadaraja Perumal Temple & Anr. reported in 1996-1-L.W.63. Certain Excerpt from it would run thus:
"15. We have seen earlier that the Inam Abolition Tribunal on appeals by the appellants herein held that the temple was granted only melvaram and the appellants were lawfully entitled to the kudivaram and therefore, entitled to ryotwari patta under Section 8(1) of the Act. This view of the Tribunal cannot stand a moment's scrutiny in view of statutory presumption provided in Section 44 of the Act. Further the Tribunal for coming to the above conclusion assumed certain facts which were either not established or substantiated. Therefore, very rightly the High Court set aside that view of the Tribunal. We may also point out that the learned counsel for the appellants before the High Court factually did not support that view of the Tribunal and therefore, advanced arguments claiming title to kudivaram right based on adverse possession which also did not find favour with High Court. Learned counsel for the appellants reiterated before us the claim for ryotwari patta on the basis of long and continuous possession coupled with sale deeds following partition deed dated 17- 2-1888. Here again, the contention based on adverse possession is a misconceived one. After coming into force of the Act, the right, title and interest in minor inam lands vested free from encumbrances with the Government and ryotwari pattas had to be claimed only under the provisions of the Act and not outside the Act. If this position is borne in mind, there will be no difficulty in rejecting the contention based on adverse possession. Further in view of Section 3(g) extracted above, the claim of adverse possession cannot be countenanced."
(iii) Sri. Varadaraja Perumal Temple, etc. v. K.Ramachandran, & 3 others reported in 1997-2-L.W.881.
(iv) K.S.Raja Shanmugavel v. The State of Tamil Nadu & others reported in 2011-1-L.W. 626.
A mere poring over and perusal of these decisions cited by the plaintiff, would highlight and spotlight the dictum that Section 3 of the Act is capable of extinguishing the alleged right in favour of D1, claimed to have been acquired by adverse possession anterior to the commencement of the said act. However, Section 44 of the Act enables institutions like the plaintiff to place reliance on the presumption, which is a rebuttal presumption.
14. The core question arises for consideration is as to whether the law laid down in A.T.S. Chinnaswami Chettiar etc. v. Sri. Kari Varadaraja Perumal Temple & Anr. reported in 1996-1-L.W.63 is in any manner over ruled by any other decision of the Hon'ble Apex Court and the answer is at once clear that still the said precedents holds the field.
15. On the side of D1, the learned counsel cited the following decisions:
(i) Anathula Sudhakar v. P. Buchi Reddy (Dead) reported in 2008(6) CTC
237.
(ii) Srinivasan v. Sri Madhyarjuneswaraswami, Pattavithalai reported in 1998(2) M.L.J. 722.
(iii) Anantharajayyan Mudaliar etc. v. Sri Vedaranyeswaraswami reported in 1989(2) L.W. 457.
(iv) The Executive Officer, Sri Ranaganathaswamy Etc. Devasthanam v. The Commissioner of Land Administration reported in 2003-1-L.W.644.
(v) T.Kaliamurthi v. Five Gori Thaikal Wakf reported in (2008) 7 MLJ 534 (SC).
(vi) S.S.Kavaraya Community Endowments v. Vellayappa Pillai reported in 1978(1) M.L.J. 354.
(vii) L.N.Aswathama & Anr. v. P. Prakash reported in 2009 SAR (Civil) 684.
(viii) Subramania Chettiar v. Amirtham reported in (2002) 3 M.L.J. 718.
(ix) Dayamathi Bai v. K.M.Shaffi reported in 2004(4) CTC 226.
(x) Iswar Gopal v. Pratapmal Bagaria reported in A.I.R. (38) 1951 Supreme Court 214.
(xi) Rani v. Santa Bala reported in AIR 1971 Supreme Court 1028.
(xii) Angappa Gounder v. Sivamalai Gounder reported in 100 L.W. 721.
(xiii) Tamil Nadu State Wakf Board, The, etc. v. Umar Salai Mohamed Sait & 38 others reported in 1993-2-L.W.663.
(xiv) Ramalingah v. The Idol of Sri Thayumanaswamy at Sri Thayumanaswamy Devasthanam, Arasaloor, reported 1998 M.L.J. (Supp) 354.
(xv) Subramania Thevar v. Kannan reported in 1998 M.L.J. (Supp) 455. (xvi) Ramaiah v. N. Narayana Reddy reported in AIR 2004 Supreme Court 4261.
(xvii) Bindhyachal v. Ram Charib reported in A.I.R. 1934 Allahabad 993. (xviii) Sarangadeva v. Ramaswami reported in AIR 1966 Supreme Court 1603. (xix) Guranditta v. Amar dass reported in AIR 1965 Supreme Court 1966. (xx) Thirulakshmi Ammal v. SPL. Tahsildar for L.A. reported in 1973(2) M.L.J. 317.
(xxi) State of Madras v. Ramalingaswamigal Madam reported in 1969(2) M.L.J. 281.
(xxii) Abdul Kadir Rowther v. The State of Madras reported in 85 L.W. 287. (xxiii) Ramakrishnan v. Mayilsamy reported in (2007) 1 MLJ 72.
16. The Hon'ble Apex Court in A.T.S. Chinnaswami Chettiar etc. v. Sri. Kari Varadaraja Perumal Temple & Anr. reported in 1996-1-L.W.63, held that Section 20 of the Act is capable of extinguishing, similar rights as claimed by D1 and the presumption under Section 44 of the Act is also attracted in favour of the institutions and temples like the plaintiff herein.
17. The learned counsel for D1 would contend that the said Apex Court's decision reported is only concerning a case emerged out of settlement proceedings and not relating to a civil suit. I would like to observe that the distinction sought to be made by D1 is one that of tweedledum or tweedledee; rock and hard place; six of the one and half a dozen of the other and the difference is not one that of chalk and cheese. Hence, I would like to hold that the presumption as contemplated under Section 44 of the Act is applicable in favour of the plaintiff.
18. In this connection I would like to point out the trite proposition that nothing could be presumed, unless the law enables the Court to presume.
19. The learned counsel for the appellant/D1 cited voluminous decisions and in his written argument he placed reliance on the following few decisions among the decisions cited by him:
(i) Samy Ayyangar v. Venkatramana reported in A.I.R. 1934 Madras 381.
(ii) Subramania v. Kailasanatha reported in A.I.R. 1934 Madras 258(1).
(iii) Vallabharana Swami Varu v. D.Hanumacharyulu reported in AIR 1969 Andhra Pradesh 392 and advanced his arguments.
Ex.A.5 - Inam Fair Register have been relied on by the learned counsel for the appellant/D1 to point out that merely because the Inam was described as Devathayam, it cannot be taken that the property was granted to the deity. Such a contention on his part is totally untenable.
20. He also cited the decision of the Privy council in Lakshmana v. Venkateswarlu reported in 1949(2) M.L.J. 500 to put forth his point that the burden is on the plaintiff to prove the grant as iruvaram. The said decision emerged anterior to the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act (1963) and this has been cited out of context.
21. This is a case arising out of a Special Enactment and in such a case, I am at a loss to understand as to how, the learned counsel for D1 could contend that only in respect of settlement proceedings before the authorities concerned under the Act, Section 44 could be pressed into service, and not in respect of proceedings before civil Court. Not even a moment such an argument could be countenanced and upheld as valid.
22. Ex.A.5 is an important piece of document and I would like to extract the relevant portion hereunder:
"One Sipoy Rengachari having complained that he is Worshipping the pagoda, but has been deprived of the Inam put in his possession by Collector's order 3rd January, 1850 - No. 8.
The inhabitants of the village were examined by me verbally as witnesses. Ramasamy Pillai Patta Maniyakkarar states that when 10 or 12 years ago, the Inam was gifted. It was at the request of the village community continued to pagoda worshipper under the Collector's order in question that the worshipper is worshipping - knows nothing of enjoyment of the Inam.
Periyannan states that Rengachari workships the pagoda and inspite of the collector's order Maruthanayagam enjoys the land on what understanding he knows not.
Karuppannal Pillay - do- -do-
Karatta Perumal Pillai -do- -do-
Hence, it is clear to me from the evidence and from the Collector's order, 3rd January, 1850 that Marutha Nayagam Maniyakkarar has usurped the Inam temporarily without due cause. It further appears to me that Venkatramaiah, the Currnam Gumasta fraudulently got the Inam confirmed in my settlement in the Maniyakkarar's name represented him as a worshipper and under the pretext of the Inam having remained in his enjoyment. Gumasta stated in the first enquiry that the pagoda is not at all worship and that the maniyakkara as usual merely enlightens it - neither one nor the other statement was true as it is clearly established by the evidence of the 4 persons and others of the village that the worship is performed by S. Rengachari periodically and that the Maniyakkarar never enlightens the pagoda, the enlightenment being made by such of the inhabitants only as pledge any vows on any occasion - I have therefore entered Sipoy Rengachari's name as a worshipper on re-enquiry. (sd.) J.Krishna Rao 01.06.63 Since writing the above, I have received a registered complaint by one Venkata Rao who professes himself as a desecendent of the founder of the pagoda and claims the Inam stating that he is in enjoyment and conducting the religious service of enlightening it - in the first and second enquiries he never appeared and in the evidence then given before me, nothing like is doing any sort of service or enjoying the Inam was brought to my notice. I consider the petition has been instigated by Maruthanayagam Maniyakkarar and so I have rejected it. (sd.) J.Krishna Rao Deputy Collector 01.06.63"
23. Therefore, a mere poring over and perusal of the same would evince and evidence that the Collector even during the later part of the 19th Century ordered that there were rival claims and ultimately by his order he clearly negatived the claim of Maruthanayagam that he cannot claim any right over the suit property. It appears Maruthanayam simply claimed as though he was lighting lamps in the plaintiff Hanumar Temple, but the said claim met with waterloo even in the later part of the 19th Century at the hands of the then Collector. However, urarguably and unassailably, the said Maruthanayagam, contrary to the order passed by the Collector went to the extent of illegally executing a sale deed Ex.B.5 in favour of Kumarasamy Pillai and in that he specifically mentioned that the suit property was darmadayam one belonging to the plaintiff. Subsequently, while Kumarasamy executing the sale deed Ex.B.4, he conveniently dropped that nomenclature that the suit property belonged to Hanumar Temple and simply sold it as per Ex.B.4 to Muthusamy Pillai, who in turn sold it to Thulasiammal as per Ex.B.3.
24. The learned counsel for the appellant/D1, would try impress upon the Court by pointing out that the said Krishnammal during her life time leased out the suit property to Ramasamy Pillai, who in turn surrendered the tenancy as evidenced by Ex.B6 and by filing application under Order 41 Rule 27, D1 would try to buttress and fortify that Ex.B.5 was preceded by a lease deed.
25. At this juncture, I would like to recollect and call up the maxim 'Ubi jus, ibi remedium' [Where there is a right, there is a remedy]. When there is no right in favour of D1, the question of remedy for D1 does not arise. Wherefore, from the available documents itself, the case could be disposed of.
26. Following Ex.A.5, Ex.A.1, the order to issue patta to the plaintiff emerged on 24.11.1967, which would exemplify and demonstrate that Thasildar made enquiries after the commencement of the said Inam Act and issued patta in the name of the plaintiff; against which appeal in S.T.A.No.48 of 1977 was filed and in that the order was passed directing the parties to seek remedy in their appeal which was pending even at that time.
27. The lower Court clearly gave a finding that D1 herself had admitted in the sale deed Ex.B.17 created by her that the structure in the suit property was no more in existence and the property was vacant. No doubt D1, tried to place reliance on certain tax receipts to show that tax was paid to the suit structure, which was situated in the part of the suit property, but the structure had got dilapidated and no more it exists in the suit property. At this juncture I would like to point out that merely by marking certain registered documents created anterior to Ex.A.1, the patta, no presumption would enure to the benefit of D1 and her predecessors.
28. Of course the maxim would run thus:
"Jus superveniens auctori acrescit successori". [An additional or enhanced right for the possessor accrues to the successor.]
29. But the question arises as to whether D1 or her predecessors were in continued possession and enjoyment of the suit property, anterior to the commencement of the Act and acquired title by adverse possession, but absolutely there is no iota or shred, shrad or jot, miniscule or molecular evidence to show that D1 or her predecessors were in possession and that patta stood in their names and there is also nothing to demonstrate and establish that after the commencement of the Act vesting the suit property in the Government, D1 started enjoying it as owner and acquired title by adverse possession. D1's pleas are all sizzle and no steak.
30. Even in the year 1967, so to say soon after commencement of the Act, the dispute between plaintiff and D1 erupted and in such a case I observe that D1 cannot press into service the various precedents cited by him. Precedents are applicable in consimili casu and not to a case of different kettle of fish. I, therefore of the considered view that D1 had not acquired title by adverse possession over the suit property.
31. Learned counsel for D1 would try to canvass the case to the effect that even before the commencement of the Act, D1 got perfected her title by enjoying the suit property by herself and through her predecessor's enjoyment. No doubt such an argument has been found torpedoed by the decision of the Hon'ble Apex court in A.T.S. Chinnaswami Chettiar etc. v. Sri. Kari Varadaraja Perumal Temple & Anr. reported in 1996-1-L.W.63 and cited supra. It is therefore, palpably and pellucidly clear that the plea of adverse possession is a misconceived one. The Commissioner's Report would display and expatiate the physical features of the property; it is an extent of 1.39 acres and in that it appears there was some structure but the same got dilapidated and that also now not in existence. Trite the proposition of law is that "possession follows title" in respect of vacant lands. Unassailably and unarguably, undeniably and indubitably, the suit property is full of bushes and no cultivation being carried on there. In such a case the circumstances leads the Court to hold that the plaintiff being the title holder was to treated in possession all along anterior to such D1's refusal to budge to the demand of the plaintiff to keep herself away from the suit property. In such a case, the finding of the lower Court is perfectly in order warranting no interference in this appeal.
32. Corpus possessionis and animus possidendi are the concepts which require a detailed analysis. Certain excerpts from "Salmond on Jurisprudence - Twelfth Edition" - Pages 272 - 274, would run thus:
"... Many jurists have distinguished two such elements. Salmond considered that possession consisted of a corpus possessionis and an animus possidendi. The former, he thought, comprised both the power to use the thing possessed and the existence of grounds for the expectation that the possessor's use will not be interfered with. The latter consisted of an intent to appropriate to oneself the exclusive use of the thing possessed. It is certainly true that in assessing whether possession has been acquired, lost or abandoned intention may be highly relevant. Moreover, it is doubtful whether in ordinary usage possession could be ascribed to a person utterly unable to form any intentions whatsoever: it would be odd to describe a day-old baby or a man in a protracted coma as actually (as opposed to legally) possessing anything at all. As against this, however, we may find counter- examples of possession unaccompanied by intention. I should normally be said to possess the coins in my pocket, even if unaware of their existence and so unable to form any intention in respect of them. Can we say then that what the possessor needs is at least a minimum intention, an intent to exclude others from whatever may be in his pocket? To this there are two replies. First, in its widest and loosest sense, the sense in which "possesses" simply means "has", I can be said to possess such things as a fine head of hair, a stout heart or a good sense of humour - without any question of intent arising. Secondly, in the narrower sense, where the subject matter of possession consists of material objects other than parts of the possessor's own body it is misleading to assert that the possessor must actually be intending anything at all. If I possess something, then it is true that if my intention of excluding such interference. But unless my possession is under attack - and in the normal course of events it is not; furthermore it would be highly unusual to find a man's possession under constant attack - no question of, or need for, intent is involved. The test then for determining whether a man is in possession of anything is whether he is in general control of it. Unless he is actually holding or using it - in which event he clearly has possession - we have to ask whether the facts are such that we can expect him to be able to enjoy the use of it without interference on the part of others. There will always, of course, be border-line cases. Suppose I become paralysed: am I still in possession of the cost by my side? Such questions need not detain us, for the ordinary concept of possession is not designed to cope with such marginal cases, while the existence of legal rules relating to legal possession will answer such questions and obviate the need for any decision in terms of possession in fact.
We have seen that the word "possess" is sometimes used in a very wide sense to mean "have". Thus I can be said to possess a sense of humour. I can also be said to possess certain rights, and here the term can be used to draw a distinction between the ownership and the possession of a proprietary right, as discussed earlier. It may, on the other hand, mean nothing more than to say that I have the rights in question, and this is not restricted to legal rights; I can be said to possess a moral, or natural, right to privacy, whether or not this is accompanied by a legal right. In general, however, the extra-legal notion of possession is concerned with things of a material or physical character."
33. The present suit has been framed without a prayer for declaration, but seeking only recovery of possession of the suit property, which is the immovable property having an extent of 1 acre 39 cents. The bed rock of the plaint is that Title Deed (TD) No.228 is in favour of the plaintiff as found exemplified in Ex.A.5 - Inam Fair Register. No doubt TD No.228 was not produced as it is very old document of 19th Century, but Ex.A.5 refers to it and it contains the order of the Collector.
34. The appellant/D1 herein very much placed reliance on Ex.A.5 and in such case those facts are admitted ones and beyond doubt. Based on such well established legal facts, the trial Court correctly understood the scope of the suit and held the suit was not bad for want of a declaration for title because of the peculiar facts and circumstances involved in this case. In fact, both sides understood that incidentally the title of the plaintiff as well as D1 should be gone into. Meanwhile, they adduced evidence and subsequently, considering the pro et contra, the trial Court rendered the judgment and held that the title of the plaintiff is beyond doubt. Over and above that D1 admitted the title of the plaintiff, in such a case, the finding of the Court below that the plaintiff is the owner of the suit is well founded.
35. The term Devathayam is found defined in P Ramanatha Aiyer, THE LAW LEXICON. An excerpt from it would run thus:
"Devadayam or Devadyem or Davadayem. - What is due to the gods. Grants of land for religious purposes (Fifty report) 27 LW 101.
Though the word "Devadayam" used in the revenue records to describe the lands attached to a temple may not be conclusive, the use of the words "perumal koil inam" tends to show that the inam was regarded as an inam belonging to the temple. 125 IC 250 (Mad). See also 27 LW 101.
The use of the word "devadayam" in grant does not necessarily import that the grant is made to the temple. Where a grant contains the clause that it is to be confirmed to party so long as he continues the performance of the service, it is a grant to the party burdened with service and not the deity even though the word "devadayam" is used. 150 IC = 6 RM 703 = 39 LW 513 = AIR 1934 Mad 381. Dodla Balarami Reddi v. Duvouru Jaya Singh, AIR 1957 AP 477, 480. Devadayam inam lands are inalienable, (45 Mad 620 Foll.) (22 LW 225 = AIR 1925 Mad 1046.)"
36. The sale deed executed by Maruthanayagam Pillai would refer as Dharmadhayam property in favour of the plaintiff. The commulative reading of Ex.A.5 with that of Ex.A.1 would demonstrate and establish that even Maruthanayagam Pillai never claimed absolute ownership of the property in stricto sensu. However, Maruthanayagam Pillai went to the extent of selling away the suit property in favour of Kumarasamy Pillai by sale deed - Ex.5. As such, D1's claim relating to the title is a faulty one and antithetical to law. In such a case, D1 cannot plead adverse possession in favour of her predecessor in title and for that matter at no point of time the patta or revenue records stood in the name of predecessor in title of D1.
37. I would like to recollect an call up the decision of the Hon'ble Apex Court in P.T.Munichikkanna Reddy and others v. Revamma and others reported in (2007) 6 SCC 59. Certain excerpts from it, would run thus:
"10. In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom0 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 be 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 periods 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.
* * * * *
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 case the intention element is not of the variety and degree which is required for adverse possession to materialise.
* * * * *
18. On intention, Powell v. McFarlane14 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 consequently 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 trespasser, 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 an 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 angles. * * * * *
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 factors 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 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."
23. 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.
* * * * *
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)
38. The precedent would exemplify and spotlight that mere possession over a property would not lead to acquisition or title by adverse possession, but it is the animus that matters. Here as has been pointed out by me supra, it is a singularly singular case in which the defendant after the commencement of the Act is not proved to have been in possession and enjoyment of it over the statutory period of 12 years and for that matter even arguments' sake such adverse possession has to be taken into account, still anterior to such commencement of the Act, there is nothing to show that such title was acquired by D1 by adverse possession.
39. There is nothing to further litigate over the property by D1. Hence, in this view of the matter I do not see there is any merit in this appeal. Accordingly, the points are answered to the effect that Section 3 of the Tamilnadu Minor Inams Abolition Act, Tamilnadu Act 30 of 1963 had the effect of vesting the suit property absolutely free from the alleged right of D1 and her predecessors, in favour of the Government and in the wake of Section 3 of the said Act, the plea of adverse possession as pleaded by D1 is not tenable; the trial Court is justified in placing reliance on Exs.A.1 and A.5 and also the other documentary evidence adduced on the side of the plaintiff to decree the suit; the presumption contemplated under Section 44 of the the Act would enure to the benefit of the plaintiff and there is no perversity or illegality in the judgment passed by the lower Court.
40. On balance, the Appeal Suit is dismissed confirming the judgment and decree of the trial Court. So far D2 and his heirs D4 to D6 are concerned, they lost the case before the trial Court and they have not filed appeal. However, there is no order as to costs. Consequently, connected M.Ps. are closed.
sj To
1.The V Additional Subordinate Judge, Thiruchirapallai.