Madras High Court
Bhavani Municipality vs V.S.R.Arthanarisamy (Died) ... ... on 21 July, 2022
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 21.06.2022
Pronounced on : 21.07.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
S.A.No.1341 of 2001
and C.M.P.No.16159 of 2019
Bhavani Municipality
Represented by its Commissioner,
Varanapuram,
Bhavani -2,
Bhavani Village, Bhavani Taluk. ... Defendant/Respondent/Appellant
Vs.
V.S.R.Arthanarisamy (died) ... Plaintiff / Appellant
2.A.Bakkiyam
3.A.Sumathi
4.A.Venkatesh
5.Pushpa
6.M.Saroja .... Respondent
R1 died, RR2 to R6 brought on
record as legal heirs of the
deceased R1 vide Court order
dated 20.04.2022 made in
CMP.No.6450 of 2022 in
CMP.No.16159 of 2019 in
S.A.No.1341 / 2001 (MDIJ)
https://www.mhc.tn.gov.in/judis
2
The Second Appeal filed under Section 100 of CPC, against the
judgment and decree made in A.S.No.12 of 2000 dated 18.12.2000 on
the file of the Sub Court, Bhavani reversing the judgment and decree
made in O.S.No.268 of 1997 dated 12.01.2000 on the file of the
Additional District Munsif Court, Bhavani.
For Appellant : Mr.P.S.Jayakumar
For R2 to R6 : Mr.T.Murugamanickam,
Senior Counsel,
For Ms.Zeenath Begam
R1 : Died
JUDGMENT
The defendant in O.S.No.268 of 1997 on the file of the Additional District Munsif Court, Bhavani, is the appellant herein.
2.The suit in O.S.No.268 of 1997 had been filed by the 1st respondent herein, seeking declaration of title with respect to the suit property and for permanent restraining the defendant therein / appellant https://www.mhc.tn.gov.in/judis 3 from interfering with peaceful possession. The suit property is situated at Somasundarapuram in Old S.F.No.831-B and 897-A, R.S.No.792/7. In this survey number the suit schedule consisted of 10 cents with house constructions bearing Door Nos.75, 76 and 77 (Old Door Nos.1/53, 53-A, 53-B and 12/111/E.6). The suit was dismissed by judgment dated 12.01.2000. The plaintiff then filed A.S.No.12 of 2000 before the Sub Court, Bhavani. The said appeal suit was allowed by judgment dated 18.12.2000. This has necessitated the defendant to file the present Second Appeal.
3.The Second Appeal had been admitted on 06.09.2001 on the following three substantial questions of law:-
“i).Whether the Lower Appellate Court is correct in placing the burden of proof on the defendant and not on the plaintiff?
ii).Whether the finding of the Lower Appellate Court that the plaintiff has acquired title by adverse possession are vitiated by grave infirmity?
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iii).Whether the findings of the Lower Appellate Court that the plaintiff has got right in the suit property are based on legal evidence?”
4.On hearing arguments on 21.06.2022, the following additional substantial question of law had been framed:-
“iv).Whether the plaint had been properly framed in view of non-seeking of relief for cancellation of the gift deed?”
5.Pending the Second Appeal the 1st respondent / plaintiff died and his legal representatives had been brought on record as 2nd to 6th respondents.
O.S.No.268 of 1997 (Additional District Munsif Court, Bhavani):-
6.The plaintiff, V.S.R.Arthanarisamy, claimed that the suit property originally belonged to him as his absolute property. He had formed a layout which was approved by the Bhavani Town Municipality on 01.12.1965. As a pre-condition for such approval, he https://www.mhc.tn.gov.in/judis 5 had executed a gift deed on 19.08.1965 in favour of the panchayat with respect to the suit property for providing road, ditches and park. He sold the remaining portions of land and the purchasers have built houses and are in possession.
7.He however, claimed that the suit property which had been gifted had not been put to use by the defendant / Bhavani Town Municipality. There were constant attempts to encroach. Consequently, to prevent encroachment, he entered into the said property and constructed a tiled house and two sheds. He claimed that the panchayat had also allotted door numbers and that the property was also assessed to tax. He claimed that he had been in possession of the said built portion and therefore, filed the suit seeking declaration of title by claiming prescription of title by adverse possession and also permanent injunction restraining the defendant from interfering with possession. He also stated that though the defendant had issued notices to vacate, the defendant had lost their right to use the suit property. https://www.mhc.tn.gov.in/judis 6
8.The defendant filed a written statement denying that the plaintiff had perfected title by adverse possession. It was stated that the plaintiff had no right, title or interest over the property, having gifted the same by way of a registered gift deed. It was stated that the possession of the plaintiff was only as a trespasser and therefore, notices had been issued to vacate the property. It was therefore stated that the suit should be dismissed.
9.On the basis of the pleadings, the Additional District Munsif, Bhavani, framed the following issues:
“i).Whether the plaintiff is entitled for the relief of declaration and permanent injunction?
ii).To what other reliefs are the parties entitled?”
10.The plaintiff, Arthanarisamy examined himself as PW-1 and he marked Exs.A1 to A25. Ex.A1 was the approval plan for the layout. Ex.A2 dated 19.08.1965 was the gift deed. Ex.A3 dated 06.02.1978 was the permission granted to construct house. Exs.A4 to A21 were the https://www.mhc.tn.gov.in/judis 7 house tax receipts. Exs.A22 and A23 dated 10.09.1984 and 08.05.1997 respectively were notices issued by the defendant and Ex.A24 was the reply notice. The defendant did not examine any witness and did not mark any documents.
11.The Additional District Munsif, by judgment dated 12.01.2000, observed that the plaintiff himself had gifted the suit property by way of a registered gift deed to the defendant for the purpose of putting up road, ditches and park as a pre-condition for approval of the layout formed by the plaintiff and therefore held that the plaintiff cannot, at any point of time, encroach upon the land already gifted and put up constructions. The Additional District Munsif, further observed that the plaintiff had not established that his possession was hostile to the defendant. He had only produced house tax receipts. It was observed that the plaintiff claimed prescription of title and it was held declaration on that basis cannot be granted and the suit was therefore dismissed.
https://www.mhc.tn.gov.in/judis 8 A.S.No.12 of 2000 (Sub Court, Bhavani):-
12.The plaintiff then filed the aforementioned appeal suit. The learned Sub Judge by judgment dated 18.12.2000 observed that the suit property had been gifted by the plaintiff by way of Ex.A2. It was also observed that thereafter there is no evidence produced to show that the defendant had put up roads or constructed ditches or put up a park. It was stated that the plaintiff was therefore justified in occupying the said property. It was also observed that the defendant themselves had assessed tax for the building put up by the plaintiff and also collected house tax. It was therefore held that the plaintiff had established possession and that the said possession was hostile to the defendant and therefore, since it was also beyond the prescribed period of 12 years, the First Appellate Court came to a conclusion that the plaintiff had prescribed title by adverse possession. The appeal suit was allowed and the judgment of the Trial Court was set aside.
S.A.No.1341 of 2001:-
13.The defendant then filed the present Second Appeal. Pending the Second Appeal the 1st respondent / plaintiff died and his legal representatives were brought on record as 2nd to 6th respondents. https://www.mhc.tn.gov.in/judis 9
14.The Second Appeal had been admitted on 06.09.2001 on the following three substantial questions of law:-
“i).Whether the Lower Appellate Court is correct in placing the burden of proof on the defendant and not on the plaintiff?
ii).Whether the finding of the Lower Appellate Court that the plaintiff has acquired title by adverse possession are vitiated by grave infirmity?
iii).Whether the findings of the Lower Appellate Court that the plaintiff has got right in the suit property are based on legal evidence?”
15.On hearing arguments on 21.06.2022, the following additional substantial question of law was framed:-
“iv).Whether the plaint had been properly framed in view of non-seeking of relief for cancellation of the gift deed?” https://www.mhc.tn.gov.in/judis 10
16.Heard arguments advanced by Mr.P.S.Jayakumar, learned counsel for the appellant and Mr.T.Murugamanickam, learned Senior Counsel for Ms.Zeenath Begum, learned counsel for the respondents.
17.It is the contention of Mr.P.S.Jayakumar, learned counsel for the appellant / defendant that the 1st respondent / plaintiff who has since died, had formed a layout and sought approval, and consequent to that, had gifted the property mentioned in the suit schedule for the purpose of putting up road, ditches and park. The learned counsel stated that the object was for public purpose. It was also stated in the gift deed that the property had fallen to the hands of the appellant. The gift was also accepted. Thereafter, it was for the appellant to do the needful.
18.The learned counsel further stated that having executed the gift deed, the 1st respondent cannot claim that he had perfected title by adverse possession. If he had claimed title by adverse possession, he should admit to the title of the appellant.
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19. It was also pointed that the appellant had issued notices calling upon the respondent to vacate and steps had been taken to assert the title by the appellant. It was stated that the appellant had also lodged a criminal prosecution. All these steps would indicate that the appellant had indeed objected to the continuous possession or occupation of the 1st respondent. Mr.P.S.Jayakumar, learned counsel therefore stated that the First Appellate Court has misdirected itself in its reasonings and urged that this Court should interfere with the judgment of the First Appellate Court and allow the Second Appeal and restore the judgment of the Trial Court.
20.Mr.T.Murugamanickam, learned Senior Counsel, appearing on behalf of the respondents, however, disputed the above contentions. The learned Senior Counsel stated that the gift deed had been executed in the year 1965. The 1st respondents / plaintiff had waited for a considerable number of years, hoping that the appellant will put up a road, ditches and park, but the property was only encroached by third parties. Therefore, holding that the appellant had no intention to put the property to any suitable use, the 1st respondent had constructed https://www.mhc.tn.gov.in/judis 12 buildings and had obtained permission for such construction and door numbers were also allotted and the buildings were also assessed to tax. The learned Senior Counsel therefore argued that this would indicate open hostility challenging the title of the appellant herein. The learned Senior Counsel stated that since the respondents have been in possession for more than the prescribed period, they had perfected their title by adverse possession.
21.Mr.T.Murugamanickam, learned Senior Counsel also relied on the following judgments.
22.In AIR 1986 Mad 106, V.Muthiah Pillai (died) and others V. Vedambal and others, it was held as follows:-
“29. The only point that is harped upon by the appellants is that they had no knowledge of these transactions. We are of the opinion that there is a great distinction between adverse possession as between strangers and ouster pleaded in the case of co-owners. There is a basic difference between the two. In the case of adverse possession, as against strangers it is enough that adverse possession is overt, which should be without any https://www.mhc.tn.gov.in/judis 13 attempt or concealment so that the person against whom time is running if be had exercised due vigilance he would be able to be aware of what is happening. We do not think that it is necessary that adverse possession should be brought home to the knowledge of the owner. If the rights of the third defendant have been openly usurped and not secretly, as the above chain of events would disclose, he cannot be heard to complain that the fact of adverse possession was not brought to his knowledge. In this case, the adverse possession, for which the animus of the first defendant alone is necessary, is open, visible and notorious. If, therefore, the third defendant had remained ignorant and indifferent, it is his own fault. The observations in cases like Puttathayammal v. Ratanaraji A.I.R. 1955 Mysore 33 are general in character. Therefore, they do not help the appellants. In the case of adverse possession on the part of the owner is not a essential element. For this view we are fortified by a ruling of the Privy Council reported in the Secretary of State of India in Council v. Debendralal Khan 66 M.L.J. 134. It was held at page 137 as follows— “As to what constitutes adverse possession, a subject which formed the topic of some discussion in https://www.mhc.tn.gov.in/judis 14 the case, their Lordships adopt the language of Lord Robertson in delivering the judgment of the Board in Radhamoni Debi v. Collector of Khulna 1900 L.R. 27 I.A. 136 at 140=27 Cal. 943 (P.C.), where His Lordship said that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor”. The classical requirement is that the ‘possession should be nee vi nec clamnec precario.
Mr. Dunne for the Crown appeared to desiderate that the adverse possession should be shown to have been brought to the knowledge of the Crown, but in their Lordships' opinion there is no authority for this requirement. It is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening. If the rights of the Crown have been openly usurped it cannot be heard to plead that the act was not brought to its notice.”
23.Mr.T.Murugamanickam, learned Senior Counsel pointing out the aforesaid portion stated that the respondents have been in open possession without concealment and that the appellant was aware of https://www.mhc.tn.gov.in/judis 15 such possession. The learned Senior Counsel therefore stated that the possession of the respondents should be held to be hostile to the appellant.
24.In 2003 (1) CTC 290, K.Krishnan and another Vs. S.Mari Naicker and another, it was held as follows:-
“10. ...... The first defendant has let in oral and documentary evidence to show that his father and later himself are in continuous enjoyment of the suit properties as their own and the real owners, namely, the plaintiffs, did not take any step to assert their right and to interrupt the running of the period of limitation. I am in agreement with the view expressed by K.P. Sivasubramaniam, J in Thangamani v. Santhiagu, 2000 (3) M.L.J. 589 that it was not necessary that the adverse possession should be brought to the knowledge of the person against whom it is claimed and that it was sufficient that possession should be open and without any concealment so that the person against whom the time was running was aware of what was happening. The other decision cited by the learned counsel for the respondent is Sadasiva Gounder and https://www.mhc.tn.gov.in/judis 16 another v. Purushothaman, 2000 (3) M.L.J. 785, in which K. Sampath, J has held that ‘animus’ in the legal parlance would mean mind, design, will, intention, disposition and to claim with regard to possession, the term is animus possidendi, which means the intention of possession and the person claiming adverse possession must intend in his mind to possess a property as his own and it does not mean that he must be conscious that the property belongs to somebody else and all that is required by the term ‘animus’ in the context of adverse possession is that the person must have intention to possess the property as his own and I agree with the above view of the learned Judge.”
25.Mr.T.Murugamanickam, learned Senior Counsel pointing the above judgment stated that the respondents had been in continuous enjoyment as real owners. He again reiterated that the possession was open and without concealment. The learned Senior Counsel was emphatic in his assertion that the respondents have therefore prescribed title by adverse possession.
https://www.mhc.tn.gov.in/judis 17
26.In (2020) 11 SCC 263, Uttam Chand (Dead) Through Legal Representatives Vs. Nathu Ram (Dead) Through Legal Representatives, it was held as follows:-
“14. As to whether the plaintiff can claim title on the basis of adverse possession, this Court in a judgment Ravinder Kaur Grewal v. Manjit Kaur [Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 : (2019) 4 SCC (Civ) 453] has held as under: (SCC p. 777, para 60) “60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it.
Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse https://www.mhc.tn.gov.in/judis 18 possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.”
27.Mr.T.Murugamanickam, learned Senior Counsel stated that the conditions laid above had been satisfied by the possession of the respondents which has been long, continuous and in denial of the title of the appellant. It was therefore urged that the possession of the respondents should be adjudged to have been perfected by adverse possession.
28.In 1980 SCC OnLine Mad 138, R.S.Muthuswamy Gounder Vs. A.Annamalai and others, it was held as follows:-
“15. The last decision relied upon by Mr. N. https://www.mhc.tn.gov.in/judis 19 Sivaraani is of V. Ramaswami, J., (Balaiyah Nadar and others v. Dhanabackiathammal and another) S. A. 729 of 1971 , where the learned Judge has observed that merely because the plaintiffs asked for a mandatory injunction and were also guilty of laches in not filing the suit or allowing the defendants to put up the superstructure, the plaintiffs could not pe said to have disentitled themselves from getting possession of the property, and that in view of the findings of the Courts below that the plaintiffs-had not objected to the construction that fact may entitle the defendants to remove the superstructure, but the defendants are not entitled to any right of purchase of the suit land on the ground that the plaintiffs were guilty of laches in not objecting to the construction even at the time of the construction. The learned Judge has further observed that so long as the suit is not bared by limitation and defendants have not prescribed title to the property, the plaintiff's right is not taken away and that a similar view was also taken by this Court after an elaborate consideration of the law on the point in the decision in Bodi Reddy v. Appu Goundan (1970) 2 M.L.J. 57, already referred to.
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16. In the decision of a Bench of the Court in The Associated Cement Companies Limited v. L.S. Ramakrishna Gowder I.L.R. (1965) 1 Mad. 237 = 77 L.W. 629 = 1965 Mad.318, referred to above a decision of Veeraswami, J. as he then was, came up for consideration in Letters Patent Appeal No. 12 of 1963. The learned single Judge, while affirming the title of the appellant to 79 cents of land, held that in the circumstances it would be unjust to pass a decree for possession of the property, and he accepted the finding of the lower appellate Court that the appellants could, if they had cared, have found out in time when the respondent was trying to encroach upon their property and when they had permitted the latter to complete his construction, it was evident that they were acquiescing in the act of the respondent, and he, therefore, considered that this was not a case for directing delivery of possession, but it was a case where the plaintiffs should be compensated in money in substitution of the relief of recovery of possession of the property.
In view of the fact that a Bench of this Court has affirmed the decision of Veeraswami, J., as he then was in the said second appeal that the appellants could, if they had cared, have found out in time that https://www.mhc.tn.gov.in/judis 21 the respondent was trying to encroach upon their property and when they permitted the latter to complete his construction it was evident that they were acquiescing in the act of the respondent and they were, therefore, not entitled to delivery of possession but were entitled only to compensation in lieu of possession of the property, it is not possible to accept the view of either the Division Bench of the Patna High Court in Dr. Abdul Khair v. Miss.
Sheilla Myrtle James and another, A.I.R. 1957 Pat. 308, or of the single Judge of the Court in Sarjug Devi and others v. Dulhin Kishore Kuer and other , A.I.R 1960 Pat. 474, or of Ismail, J., as he then was in Bodi Reddy v. Appu Goundhan, (1970) 2 M.L.J. 577, or of V. Ramaswami, J., in the aforesaid decision in Balaiyah Nadar and others v. Dhanabackiathammal and others, S. A. 729 of 1971.
17. I had occasion to consider the question of acquiescence in S. Palanivelu v. K. Varadammal A.I.R 1960 Pat. 474 , mentioned above. There was evidence in that case to show cause that the defendant put up a portion of the main building and a major portion of the well and had done other acts https://www.mhc.tn.gov.in/judis 22 in the trespassed portion of the suit property under the bona fide belief that the portion of the property was part of R.S. No. 3173/12, of which he was an allottee under Nammajwarpet Co-operative Housing Site Society. There I have extracted the observation of the Division Bench in the aforesaid decision in Associated Cement Companies Limited v. L.S. Ramakrishna Gowder1, namely:
“'The respondents did not perhaps know at that time that he was trespassing upon Government property. There was every reason for it. Nearly five years after the buildings were put up, the appellant sent a notice to the respondent complaining that in putting up the buildings the latter had trespassed into a portion of the property leased out to them by the Government. The respondent contested the title of the appellant to that extent of property. The former then instituted a suit out of which this appeal arises in 1958 for recovery of; possession of 79 cents of land which had been occupied by the respondent and for a mandatory injunction directing him to remove the superstructure put up thereon. Both the Courts below found that the appellant had title to the property and they accordingly passed a decree for possession. The https://www.mhc.tn.gov.in/judis 23 learned appellate Judge, however, realised that the appellant could have discovered the encroachment even at the time of construction of the building by the respondent. But he was of the view that having regard to the nature of the land and the circumstances under which the encroachment was noticed, the appellant could not be held to have acquiesced in the action of the defendant in putting up the buildings. One can easily see from the judgment of the lower Appellate Court that but for the indifferent attitude adopted by the appellants the respondents could not have been encouraged to put up the buildings. It is not pretended that the appellant was not aware of the buildings coming up. Notwithstanding the view expressed by the appellate Judge, one can easily see that there must have been some kind of acquiescence on the part of the appellant while the respondent was putting up his buildings. The respondent feeling aggrieved by the judgment of the lower Appellate Court filed second appeal to this Court. Veeraswami, J., while affirming the title of the appellant to 79 cents of land held that in the circumstances it would be unjust to pass a decree for possession of the property. The learned Judge accepted the finding of the lower Court that https://www.mhc.tn.gov.in/judis 24 the appellants could, if they had cared, have found out in time that the respondent was trying to encroach upon their property and when they permitted the latter to complete the construction, it was evident that they were acquiescing in the act of the respondent. He therefore, considered that this was not a case for directing delivery of possession. Inasmuch as there was a prayer in the plaint for the grant of equitable relief by way Of mandatory injunction, the learned Judge held that it would be competent for the Court to substitute in the place of the relief sought, a decree for compensation.
It will be clear from what we have stated above, that although an owner of property will have undoubted right to recover possession of it from a trespasser albeit that the latter had put up a construction upon it, an exception does exist to such a rule when the owner is precluded by any conduct on his part from claiming possession. That is not really denying the owner his right to recover possession from the trespasser; but a rule of estoppel which prevents the owner from claiming the property to be his so far as the other side is concerned'’.
https://www.mhc.tn.gov.in/judis 25 In the case which came up for consideration before me, the respondent-plaintiff had not done anything when the appellant-defendant was putting up a portion of his main building on a portion of the trespassed property and sinking a major portion of the well and doing other acts on the trespassed property and it was found that the appellant defendant could not have done those things in a hurry and they must have taken several months for the appellant to complete the things which he had done on the property. The plaintiff-respondent had not disclosed those things in the plaint and had not prayed for a mandatory injunction for the removal of the structures put up by the defendant on the trespassed portion of the property. In those circumstances I held that the Court would be justified in inferring acquiescence on the part of the respondent and considered that it was not a case for directing delivery of possession of the trespassed portion but it was a case where the respondent- plaintiff had to be compensated in money for the value of the trespassed portion, and I called for a finding from the lower Appellate Court as regards ‘the market value of the trespassed portion';
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29.Mr.T. Murugamanickam, learned Senior Counsel pointed out that the appellant had not objected to the constructions put up by the respondents and as a matter of fact, they had assessed the properties to tax. They had also allotted door numbers to the properties. It was therefore contended that the adverse possession of the respondents should be recognized in law, as it had been continuous and for much longer period than prescribed under the statute.
30.In view of the dictums laid in the aforementioned judgments, and also on the facts of this case, Mr.T.Murugamanickam, learned Senior Counsel urged that the appeal should be dismissed.
31.I have carefully considered the arguments advanced and perused the materials on record.
32.The first substantial question of law is whether the First Appellate Court was correct in placing the burden of proof on the appellant / defendant and not on the respondents / plaintiff herein.
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33.The 1st respondent / plaintiff had filed the suit seeking declaration of title on the basis of adverse possession hostile to the appellant. A perusal of the pleadings indicate that the 1st respondent / plaintiff, since deceased, had formed a layout and as a pre-condition thereof had gifted the property by Ex.A2, gift deed, to the appellant herein. It was for the purpose of putting up road, ditches and park. It is the contention in the plaint that the appellant had not taken any steps towards such obligations. It was also contended that there were encroachments attempted and made over the property gifted. Therefore, the 1st respondent / plaintiff claimed that he had taken up himself to re- enter into the property, which he had gifted, and had put up constructions and had also rented the buildings out and also collected rents.
34.The burden is on him, as plaintiff, to establish that such possession was hostile to the appellant. To prove that such possession was hostile to the appellant, he had produced as exhibits, house tax receipts. The burden was on him to prove that possession was further continuous and hostile to the appellant. The appellant can never be called upon to prove this fact asserted by the 1st respondent / plaintiff. https://www.mhc.tn.gov.in/judis 28
35.Section 101 of the Indian Evidence Act, 1872 is as follows:
“101. Burden of proof. –– Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”
36.It is thus clear that when the 1st respondent / plaintiff had come to Court asserting perfection of title by adverse possession, the burden is on him and on him alone to prove the essentials to be granted a decree of declaration of title by adverse possession.
37.The First Appellate Court had unfortunately wrongly shifted the burden on the appellant / defendant.
38.In T. Anjanappa v. Somalingappa, (2006) 7 SCC 570), the Hon'ble Supreme Court held as follows:
“12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of https://www.mhc.tn.gov.in/judis 29 the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. 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. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.
13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them:
‘24. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it https://www.mhc.tn.gov.in/judis 30 has been laid down that since the possession of one co-owner can be referred to his status as co- owner, it cannot be considered adverse to other co-owners.’ (See Vidya Devi v. Prem Prakash [Vidya Devi v. Prem Prakash, (1995) 4 SCC 496] , SCC p. 504, para 24.)
14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession:
‘14. … Adverse possession means a [hostile possession] which is expressly or impliedly in denial of title of the true owner. Under Article 65 [of the Limitation Act] burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a https://www.mhc.tn.gov.in/judis 31 denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed.
15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.
https://www.mhc.tn.gov.in/judis 32 (See Annasaheb Bapusaheb Patil v. Balwant [Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543] , SCC p.
554, paras 14-15.)’”
39.It is thus seen that the Hon'ble Supreme Court had very clearly held that the person who claims title on the basis of adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner.
40.Thus the burden of proof was only on the 1st respondent and not on the appellant herein. I hold that the First Appellate Court had committed grave error in shifting the burden of proof on the appellant. The first substantial question of law is answered that the First Appellate Court was not correct in placing the burden of proof on the appellant herein.
41.The second substantial question of law is whether the 1st respondent had acquired title by adverse possession. https://www.mhc.tn.gov.in/judis 33
42.The First Appellate Court had found that the 1st respondent had acquired title by adverse possession. For acquisition of such title, the 1st respondent had filed a few house tax receipts.
43.In Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma, (2008) 15 SCC 150, the Hon'ble Supreme Court held as follows:
“19. The defendant claimed that he had perfected his title by adverse possession by being in open, continuous and hostile possession of the suit property from 1957. He also produced some tax receipts showing that he has paid the taxes in regard to the suit land. Some tax receipts also showed that he paid the tax on behalf of someone else. After considering the oral and documentary evidence, both the courts have entered a concurrent finding that the defendant did not establish adverse possession, and that mere possession for some years was not sufficient to claim adverse possession, unless such possession was hostile possession, denying the title of the true owner. The courts have pointed out that if according to the defendant, the plaintiff was not the true owner, his possession hostile to the plaintiff's title will not be https://www.mhc.tn.gov.in/judis 34 sufficient and he had to show that his possession was also hostile to the title and possession of the true owner. After detailed analysis of the oral and documentary evidence, the trial court and the High Court also held [Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Janikamma, 2006 SCC OnLine AP 842 : (2009) 3 ALD 416] that the appellant was only managing the properties on behalf of the plaintiff and his occupation was not hostile possession.
20. We find that both the courts have considered these two issues of fact in detail with reference to the evidence and recorded concurrent findings against the defendant. This Court will not convert itself into a third court of facts and re-examine the facts or disturb concurrent findings of facts. Neither any perversity nor omission to consider evidence nor any error of law has been pointed out with reference to consideration and appreciation of evidence by the trial court and the High Court. We do not therefore find any reason to re-
examine the facts.”
44.It is thus clear that mere production of house tax receipts cannot establish the assertion that the possession of the 1st respondent / plaintiff was hostile to the appellant.
https://www.mhc.tn.gov.in/judis 35
45.In BrijeshKumar v. Shardabai [BrijeshKumar v. Shardabai, (2019) 9 SCC 369 : (2019) 4 SCC (Civ) 509, the Hon'ble Supreme Court held as follows:
“13. Adverse possession is hostile possession by assertion of a hostile title in denial of the title of the true owner as held in M. Venkatesh [M. Venkatesh v. BDA, (2015) 17 SCC 1 : (2017) 5 SCC (Civ) 387] . The respondent had failed to establish peaceful, open and continuous possession demonstrating a wrongful ouster of the rightful owner.
It thus involved question of facts and law. The onus lay on the respondent to establish when and how he came into possession, the nature of his possession, the factum of possession known and hostile to the other parties, continuous possession over 12 years which was open and undisturbed. The respondent was seeking to deny the rights of the true owner. The onus therefore lay upon the respondent to establish possession as a fact coupled with that it was open, hostile and continuous to the knowledge of the true owner. The respondent-plaintiff failed to discharge the onus. Reference may also be made to Chatti Konati Rao v. Palle Venkata Subba Rao [Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 :
https://www.mhc.tn.gov.in/judis 36 (2012) 1 SCC (Civ) 452] , on adverse possession observing as follows: (SCC p. 322, para 15) ‘15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose.
The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law.’ ” https://www.mhc.tn.gov.in/judis 37
46.It has been held that mere possession is not sufficient to hold that title had been perfected. To ripen into possessary title, such possession must be hostile to the true owner. In the instant case, quite apart from producing house tax receipts, the 1st respondent has not established open hostility to the adverse interest of the appellant.
47.I therefore, hold that the respondents have not established adverse possession hostile to the true owner / appellant by producing convincing evidence in that regard.
48.The third substantial question of law is whether the 1st respondent have got a right in the suit property.
49.In Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 : (2019) 4 SCC (Civ) 453, the Hon'ble Supreme Court held as follows:
“60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a https://www.mhc.tn.gov.in/judis 38 competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.”
50.In M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1, a Constitution Bench of Hon'ble Supreme Court held as follows:
“1142. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a https://www.mhc.tn.gov.in/judis 39 possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit 4 ought to be cognizant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. It becomes then necessary to assess as to whether the claim of adverse possession has been established.
1143. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous possession which meets the requirement of being nec vi nec claim and nec precario. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, https://www.mhc.tn.gov.in/judis 40 can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. Reading Para 11(a), it becomes evident that beyond stating that the Muslims have been in long, exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, no factual basis has been furnished. This is not merely a matter of details or evidence. A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence.
***
1147. In Supt. & Remembrancer of Legal
Affairs v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri) 1038] , R.S. Sarkaria, J. speaking for a three-Judge Bench of this Court noted that the concept of possession is “polymorphous” embodying both a right (the right to enjoy) and a fact (the real intention). The learned Judge held: (SCC p. 278, para
13) https://www.mhc.tn.gov.in/judis 41 ‘13. … It is impossible to work out a completely logical and precise definition of “possession” uniformly applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorising it is that of “possession”. Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Edn., 1966) caused by the fact that possession is not purely a legal concept.
“Possession”, implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, ibid.)’ These observations were made in the context of possession in Section 29(b) of the Arms Act, 1959. 1148. In P. Lakshmi Reddy v. L. Lakshmi Reddy [P. Lakshmi Reddy v. L. Lakshmi Reddy, 1957 SCR 195 :
AIR 1957 SC 314] , Jagannadhadas, J. speaking for a three-Judge Bench of this Court dwelt on the “classical requirement” of adverse possession: (AIR pp. 317-18, para 4) https://www.mhc.tn.gov.in/judis 42 ‘4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secy. of State for India in Council v. Debendra Lal Khan [Secy. of State for India in Council v. Debendra Lal Khan, 1933 SCC OnLine PC 65 : (1933-34) 61 IA 78] IA at p.
82.) The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.’ The Court cited the following extract from U.N. Mitra's Tagore Law Lectures on the Law of Limitation and Prescription: (AIR p. 319, para 7) ‘7. … “An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession. (Angell, Sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of https://www.mhc.tn.gov.in/judis 43 action which constitutes adverse possession.” ’ [ 6th Edn., Vol. I, Lecture VI, at p. 159] This Court held: (AIR p. 319, para 7) ‘7. … Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.’ 1149. In Karnataka Board of Wakf v. Union of India [Karnataka Board of Wakf v. Union of India, (2004) 10 SCC 779] , S. Rajendra Babu, J. speaking for a two-Judge Bench held that: (SCC p. 785, para 11) ‘11. … Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most https://www.mhc.tn.gov.in/judis 44 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.’ The ingredients must be set up in the pleadings and proved in evidence. There can be no proof sans pleadings and pleadings without evidence will not establish a case in law.
1150. In Annakili v. A. Vedanayagam [Annakili v. A. Vedanayagam, (2007) 14 SCC 308] , this Court emphasised that mere possession of land would not ripen into a possessory title. The possessor must have animus possidendi and hold the land adverse to the title of the true owner. Moreover, he must continue in that capacity for the period prescribed under the Limitation Act.” (emphasis in original) https://www.mhc.tn.gov.in/judis 45
51.The only evidence, the 1st respondent produced were construction of houses and payment of property tax. The fact stares on the face of the respondents that they had put up construction on land which they had gifted for public purpose. Such land cannot be later converted for private occupation and enjoyment. It is clear that they had not let in any evidence to substantiate their claim of hostile possession leading to perfecting title by prescription. The third substantial question of law is answered that the respondents have no right over the suit property.
52.The further substantial question of law which had been framed was whether the plaint had been properly framed, in view of non-seeking of relief for cancellation of gift deed.
53.The 'gift' is defined under Section 122 of the Transfer of Property Act, 1882, is as follows:-
“122. “Gift” defined.—“Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one https://www.mhc.tn.gov.in/judis 46 person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance when to be made.—Such acceptance must be made during the lifetime of the donor and while he is till capable of giving, If the donee dies before acceptance, the gift is void.”
54.Section 123 of the Transfer of Property Act, 1882, is as follows:-
“123. Transfer how effected.—For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.”
55.Section 126 of the Transfer of Property Act, 1882, is as follows:-
“126. When gift may be suspended or revoked. —The donor and done may agree that on the happening of any specified event which does not https://www.mhc.tn.gov.in/judis 47 depend on the will of the donor a it shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part at the mere well of the donor is void wholly or in part, as the case may be. A gift also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.”
56.A perusal of the above provisions shows that the gift must be for lawful object. It must be accepted. Possession must be handed over.
57.In the instant case, the gift deed was registered and land had been gifted by the 1st respondent and accepted by the appellant. Possession had been handed over to the appellant. There was no condition reserved in the gift deed that it would be revoked if the purposes for which the property was gifted, namely, construction of road, putting up of ditches and constructing a park, were not effected within a certain period of time.
https://www.mhc.tn.gov.in/judis 48
58.It is a fact that the appellant had issued notices to the 1 st respondent to vacate the premises under Exs.B22 and B23. It is also a fact that the appellant had initiated criminal proceedings against the 1 st respondent. The gift deed had still not been revoked. It is still in force. The respondents had not taken any steps to cancel the gift deed. Their possession has been found to be unlawful.
59.If according to the respondents, the appellant had not acted in terms of the gift deed, then the respondents should have taken steps in manner known to law to cancel the said gift deed. Having not taken any steps, the respondents cannot claim any right to possess the lands.
60.In (2014) 9 SCC 445, Renikuntla Rajamma v. K. Sarwanamma, the Hon'ble Supreme Court held as follows:-
“11. Sections 124 to 129 which are the remaining provisions that comprise Chapter VII deal with matters like gift of existing and future property, gift made to several persons of whom one does not accept, suspension and revocation of a gift, and https://www.mhc.tn.gov.in/judis 49 onerous gifts including effect of non-acceptance by the donee of any obligation arising thereunder. These provisions do not concern us for the present. All that is important for the disposal of the case at hand is a careful reading of Section 123 (supra) which leaves no manner of doubt that a gift of immovable property can be made by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. When read with Section 122 of the Act, a gift made by a registered instrument duly signed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee. That such acceptance must be given during the lifetime of the donor and while he is still capable of giving is evident from a plain reading of Section 122 of the Act. A conjoint reading of Sections 122 and 123 of the Act makes it abundantly clear that “transfer of possession” of the property covered by the registered instrument of the gift duly signed by the donor and attested as required is not a sine qua non for the making of a valid gift under the provisions of the Transfer of Property Act, 1882.”
61.Thus the gift deed having been executed and registered and https://www.mhc.tn.gov.in/judis 50 for lawful purpose cannot be cancelled and more particularly, cannot be unilaterally revoked.
62.In the instant case, the 1st respondent has not taken any steps to cancel the gift deed before entering into the suit schedule property. His possession is therefore unlawful. By production of a few house tax receipts, it cannot be held that he has perfected title by adverse possession. Therefore, I hold that the plaint had not been properly framed in view of non-including of the relief for canceling the gift deed.
63.Mr.T.Murugamanickam, learned Senior Counsel for the respondents had relied on (1985) 98 LW 606 , V.Muthiah Pillai referred supra. Even in the aforementioned judgment, it had been held as follows:-
“15. We will first state briefly the law relating to adverse possession:— The concept of adverse possession contemplates a hostile possession, i.e., 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 https://www.mhc.tn.gov.in/judis 51 acknowledge the other's rights, but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. 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.
What is adverse possession? Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person, in denial of the owner's right excluded him from the enjoyment of his property.
Setting up adverse possession by the person in adverse possession is not wrong; it it not shameful on his part to do so. This plea is allowed with the laudable intention of giving a quietus to long possession. In fact under the Civil Procedure Code, when a suit in ejectment or for possession is filed by the plaintiff be is required to show prima facie that it is within time.
https://www.mhc.tn.gov.in/judis 52 Now the party claiming to hold the immovable property adversely must at least go on to prove that it was in denial of the owner's title and that he excluded him from the enjoyment of his property.
Where a stranger is in possession it is not necessary to do so to the knowledge of the true owner, but it is sufficient if the possession is hostile, notorious and exclusive, so that the owner could perceive the same.
In Halsbury, Volume I, Hailsham's Edn. 1953, the law is put thus:— “At the determination of the statutory period limited to any person for making an entry or bringing an action, the right or title of such person to the land, rent or advowson, for the recovery of which such entry or action might have been made or brought within such period is extinguished and such title cannot afterwards be reviewed either by re-entry or by subsequent acknowledgment. The operation of the statute is merely negative, it extinguished the right and title of the dispossessed owner and leaves the https://www.mhc.tn.gov.in/judis 53 occupant with a title gained by the fact of possession and resting on the infirmity of the right of the others to eject him.” The classical requirements of adverse possession are that the possession must be nec vi clam nec precario, that is to say, the possession required must be adequate in continuity in publicity and in extent. It is sufficient tha, the possession be overt and without any attempt at concealment so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening. In Secretary of State v. Debendralal Khan, 61 I.A. 76 their Lordships negatived the contention that it was necessary for the trespasser to bring the facts of his adverse possession to the notice of the real owner. Mere exercise of possession exclusively and continuously would not be enough in all cases to show that the true owner if vigilant would be aware of what was happening. Permissive possession does not become hostile till there is an assertion of an adverse possession to the knowledge of the owner. Sheodhari Rao v. Suraj Prasad Singh AIR 1954 SC 758 at 760. The permissive character of the possession can be inferred from the attending https://www.mhc.tn.gov.in/judis 54 circumstances even without direct evidence. If possession is found to be permissive at the inception, the possession cannot prescribe or sustain title or any claim adversely to the grantor of the possession Ousuph v. Mathen Mariamma, AIR 1954 T.C.297 at 298 (1954 K.L.T.78.).
64.The aforementioned extract lays down the conditions relating to claim for title by adverse possession. The respondents herein have only produced a few house tax receipts. Those documents would certainly not constitute prescription of title by adverse possession.
65.Mr.T.Murugamanickam, learned Senior counsel had then relied on K.Krishnan, (2003) I CTC 290 referred supra. That was a suit between two brothers for declaration of title and for delivery of possession. The defendant claimed that the properties were not ancestral joint family property. There, the 1st defendant had obtained patta for the property and had perfected his title hostile to the plaintiff. In those circumstance, the learned Single Judge had held that the title had been perfected by adverse possession.
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66.In the instant case, the respondents, though in possession, were issued with notices for eviction and also faced criminal prosecution. The criminal case might have ended in acquittal, but the fact that the appellant exercised their right itself shows that adverse possession cannot be claimed by the respondents.
67.Mr.T.Murugamanickam, learned Senior Counsel had then relied on Uttam Chand, (2020) 11 SCC 263 referred supra. Even in the aforementioned case it had been stated that long possession is not synonymous with adverse possession and that casual use cannot constitute adverse possession. It had been asserted that an owner can take possession from a trespasser at any point of time.
68.It is seen that even in the present case, the claim of the 1 st respondent was that since the land had not been utilized for the purposes for which it had been gifted, he had taken possession. But there was no such condition stated in the gift deed permitting him to take possession. Even otherwise, he had been issued with notices to vacate the premises. Therefore, his possession cannot be termed to hostile to that of the appellant.
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69.Mr.T.Murugamanickam, learned Senior Counsel had relied on R.S.Muthusamy Gounder (Vol 94 LW 617) referred supra. In that particular case, the learned Single Judge had, as a matter of fact directed that compensation should be paid for the market value of the building which had been constructed.
70.It is not the case of the respondents that they seek such market value in the instant case. They have not even sought such relief and they have not paid Court fees. The facts are distinguishable and the said judgment would not come to their assistance.
71.In view of the above reasonings, I hold that the First Appellate Court, had miserably erred in holding that the respondents had perfected title by adverse possession. The judgment and decree of the First Appellate Court has to be set aside and it is accordingly, set aside.
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72.In the result,
i).The Second Appeal is allowed with costs.
ii).The judgment and decree in A.S.No.12 of 2000 dated 18.12.2000 on the file of the Sub Court, Bhavani, is set aside.
iii).The judgment and decree in O.S.No.268 of 1997 dated 12.01.2000 on the file of the Additional District Munsif, Bhavani, is confirmed and restored.
iv).Consequently, the connected Civil Miscellaneous Petition is closed.
21.07.2022 Index:Yes/No Internet:Yes/No Speaking / Non speaking order smv To
1.The Additional District Munsif Court, Bhavani.
2.The Sub Court, Bhavani.
3.The Section Officer, VR Section, Madras High Court. https://www.mhc.tn.gov.in/judis 58 C.V.KARTHIKEYAN,J.
Smv Pre-delivery Judgment made in S.A.No.1341 of 2001 and CMP.No.16159 of 2019 21.07.2022 https://www.mhc.tn.gov.in/judis