Madras High Court
Parvathy Thilagam vs Rengasamy Nadar(Died) on 23 August, 2016
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.08.2016
Coram
THE HONOURABLE MS.JUSTICE R.MALA
S.A.No.1289 of 2002
and
C.M.P.Nos.10726 of 2002 and 2034 of 2016
1.Parvathy Thilagam
2.Rajamani Nadar
3.David .. Appellants/1st Respondent and Respondents
11 and 12/Plaintiffs
vs.
1.Rengasamy Nadar(died)
2.Mohana Selvan ... Respondents/Appellants/Defendants 2 and 8
3.Selvi
4.Vasanthi
5.Raghupathy
6.Saraswathi ... Respondents/Respondents 3 to 6/Defendants
4 to 7
7.Kalaiselvi
8.Vasantha Selvi
9.Ragupathy Selvi
10.Saraswathi Selvi ... Respondents/Respondents 7 to 10/
L.Rs of 2nd Respondent/
11.Chellammai
12.Gothanda Rajakumar
13.Krishnakumar
14.Chandrakumar .. Respondents
(R.11 to R.14 are brought on record as L.Rs
of the deceased R.1 vide order dated
03.09.2014 made in M.P.(MD)Nos.2 to 4
of 2014)
PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure,
against the Judgement and Decree dated 29.04.2002 made in A.S.No.90 of 2000
on the file of I Additional Subordinate Court, Nagercoil reversing the
judgment and decree dated 14.09.1998 made in O.S.No.889 of 1985 on the file
of the Principal District Munsif Court, Nagercoil.
!For Appellantd : Mr.S.Meenakshisundaram
^For Respondents : Mr.Ajmal Khan
Senior Counsel
for Mr.K.Sureshkumar
for R.2
: R.1 died
: R.4, R.5, R.9-dispensed with
:No Appearance
for R.3, R.6 to R.8 and R.10 to R.14
:JUDGMENT
The plaintiff, who last the legal battle before both the first appellate Court, has come forward with this Second Appeal challenging the Judgement and Decree dated 29.04.2002, passed in A.S.No.90 of 2000, on the file of I Additional Subordinate Judge, Nagercoil, by reversing the Judgment and Decree dated 14.09.1998 passed in O.S.No.889 of 1985, on the file of the Principal District Munsif, Nagercoil.
2. Heard the learned counsel for the appellants and the learned Counsel for the second respondent and perused the materials available on record.
3. The appellants as plaintiffs filed a suit for declaration of title and recovery of possession by stating that the plaintiffs' mother Chinnammal is the owner of the property. She obtained the property under a gift deed dated 10th Karthikai 1118 M.E. (1942). After the gift deed, the various parties entered into an oral partition and specific partition was allotted to the plaintiffs' mother and mutation has been effected in favour of Chinnammal. She was allotted two plots and was paying land tax. The first defendant is a close relative of this Chinnammal. On 25.09.1949, Chinnammal received a sum of Rs.1,000/- from the first defendant and allowed him to cultivate the land. Chinnammal was all along paying the kist. She died on 16.01.1985 leaving behind the plaintiffs as her legal heirs. When the plaintiffs demanded the first defendant to surrender the possession of the property on receipt of Rs.1,000/-, the first defendant agreed to receive the amount and to surrender on taking the yield of Kumbom crop. But he has not handed over the possession. After issuance of notice, the plaintiffs have filed the suit for declaration of title and recovery of possession and also for mesne profits for use and occupation.
4. Resisting the same, the first defendant filed a written statement in which it was stated that Chinnammal has originally sold the property in favour of this defendant on 24.04.1950, after receiving Rs.1,500/-. Since the parties are close relatives, no sale deed was obtained. From 24.04.1950 onwards, the defendant and his brother K.Rangaswamy Nadar are enjoying the property as the owners. They paid kists. Patta has has been changed in their name. The defendant is enjoying one plot 3 marakkal and his brother K.Rangaswamy Nadar is enjoying another plot 1 marakkal. The plaintiffs have no right over the property. The suit is bared by limitation. They prescribed title by adverse possession for open, hostile, continuous uninterrupted possession more than statutory period from 1950 onwards. Hence, he prayed for dismissal of the suit.
5. The eighth defendant has filed a written statement by stating that he is the bonafide purchaser of 10 cents of land out of 15 cents situated in resurvey number 877/17. He is in possession and enjoyment of the same under a sale deed dated 26.10.194. He had paid kist. Further he would submit that his predecessor in title has purchased the same under the oral sale on 24.04.1950 and from that date onwards, they are in possession and enjoyment. So, they have prescribed title by adverse possession.
6. The trial Court, after considering the averments both in the plaint and written statement and the arguments of both sides, has framed the necessary issues and decreed the suit. Against which, the defendants have preferred an appeal and in that appeal, the appeal was allowed by stating that the permissive possession was not proved and per contra, the respondents have proved that they have prescribed title by adverse possession, since the oral sale is invalid. Against which, the present Second Appeal has been filed by the plaintiffs.
7. At the time of admission of the Second Appeal, the following Substantial Questions of Law have been framed:
?1) Whether the finding of the lower appellate Court that the plaintiffs have no subsisting interest in the suit property for reversing the judgment of the learned trial Judge is vitiated in law on account of absence of materials to sustain such finding?
2) Whether the finding of the lower appellate court on adverse possession in favour of the defendants is supported by any legal evidence on record??
8. The learned Counsel appearing for the appellants would submit that it is admitted by both parties that the property is belonged to Chinnammal and the appellants/plaintiffs are the legal heirs of Chinnammal and they inherited the property. She has given a permissive possession for occupation after receiving Rs.1,000/- on 25.09.1949. Defendant No.2 is none other than the brother of the first defendant. Even though in the written statement they have stated that they are in possession of the property on the basis of oral sale for Rs.1,500/- on 24.04.1950, there is no mutation of revenue records. The respondent have not filed any documents to show that from the year 1950 onwards, in pursuance of oral sale, they are in possession and enjoyment of the property by paying kists. They have filed revenue documents only from the year 1972. That factum was not considered by the first appellate Court.
9. He would submit that the plaintiffs have filed an application under Order 41 Rule 27 C.P.C. for reception of additional documents. All the documents came into effect after the suit. Now this Court has to decide whether those documents are necessary for disposal of this Second Appeal. He would further submit that in the written statement, the defendants ought to have pleaded adverse possession and without pleading of adverse possession, it cannot be looked into. Ayyakutty handed over the possession of 5 cents and that has been sold. As per Article 65(b) of the Limitation Act, the suit is not barred by limitation. The cause of action for the suit arose on the date of death of the plaintiffs' mother Chinnammal. She died on 16.01.1985 and the suit has been filed on 19.07.1985 within 12 years. Hence, neither the suit is barred by limitation nor the right of the appellants is extinguished nor the respondents prescribed title by adverse possession. That factum was not considered by the first appellate Court. Hence, he prayed for allowing of this Second Appeal.
10. In support of his contentions, the learned Counsel appearing for the appellants would rely upon the following decisions:
(I) In Munusamy Achari Vs. Rajammal and others reported in AIR 1977 MADRAS 228;
(II) In Jagat Ram Vs. Varinder Prakash reported in (2006)3 MLJ 141 (SC);
(III) In P.K.Vasudevan Pillai and another Vs. Manikandan Nair and Others reported in 2011(1) CTC 55; and (IV) In Shakuntala Mishra V. Jagadeep Pratap District Educational Officer. Reported in AIR 2016 ORISSA 82 , and prayed for allowing this Second Appeal.
11. Resisting the same, the learned Counsel appearing for the second respondent would submit that it is the duty of the appellants to prove permissive possession. But there is no evidence to show that there was a permissive possession. He would further submit that the first defendant has filed his written statement. After the second defendant has been impleaded, he adopted the written statement filed by the first defendant. On the date of examination of defendants' side witness, the first defendant died. So, the non-examination of the first defendant is not fatal. He would further submit that there was an oral sale dated 24.04.1950 after receiving Rs.1500/- and they paid kists. Exs.B.1 to B.6 stand in the name of the defendants 1 and 2. The adverse possession has been rightly pleaded in paragraph No.14 of the written statement. Since the oral sale is for more than Rs.100/-, it is invalid. But it prescribed title for adverse possession for open, continuous and uninterrupted possession adverse to the interest of the true owner for more than statutory period prescribed.
12. In support of his contentions, he would rely upon the following decisions:
(I) In Collector of Bombay Vs. Municipal Corporation of the City of Bombay and others reported in AIR 1951(SC) 469; and (II) In Kr.Wasiq Ali Vs. The Director of Consolidation, Agra and Others reported in AIR 1974 ALLAHABAD (46).
(III) In N.S.Spance Vs. D.S.Kanagarajan and another reported in 2005(1) CTC 494;
(IV) In Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and another reported in (2014)1 Supreme Court Cases 669; and (V) In Union of India and Others Vs. Vasavi Co-operative Housing Society Limited and Others reported in (2014)2 Supreme Court Cases 269.
13. He would further submit that the defendants can take alternative plea. For that reason, he would rely upon a decision in N.S.Spance Vs. D.S.Kanagarajan and another reported in 2005(1) CTC 494. He would rely upon Sections 101 and 102 of Indian Evidence Act and would submit that the plaintiffs must prove their case. For that reason, he would rely upon a decision reported in Union of India and Others Vs. Vasavi Co-operative Housing Society Limited and Others reported in (2014)2 Supreme Court Cases
269. If the plaintiffs have not proved their case, they must fail. He would further submit that Article 65(b) of the Limitation Act will not applicable to the facts of the present case. But here the respondents are not in possession from 1950 and they have marked the documents to show that they are in possession from 1972. Chinnammal died on 16.01.1985 and she lost her title during her life time. Once Chinnammal lost her right, her legal heirs have not inherited the property. Hence, the decisions cited by the learned Counsel for the appellants are not applicable to the facts of the present case. He would further submit that during the life time of Chinnammal, she never claimed right over the property. Hence, he prayed for dismissal of the Second Appeal.
14. Considering the rival submissions made by both sides and on perusal of the typed set of papers, now this Court has to decide whether the application filed by the plaintiffs under Order 41 Rule 27 C.P.C. for reception of additional documents in C.M.P.(MD)No.2034 of 2016 is liable to be allowed. While perusing the affidavit filed in support of this petition along with the list of documents furnished, all are came into effect, after filing of this Second Appeal. Those documents are not necessary for disposal of this appeal. Hence, the first two ingredients have not been applicable. The third ingredient is as to whether the documents are necessary for disposal of the appeal. Hence, I am of the view that the documents are not necessary for disposal of the appeal. Hence, they are liable to the dismissed. Accordingly, the application in C.M.P.(MD)No.2034 of 2016 dismissed.
15. It is an admitted fact the property is owned by Chinnammal, who is none other than the mother of the appellants/plaintiffs. It is also an admitted fact that she died on 16.01.1985. The suit was filed on 19.07.1985. It is also an admitted fact that in the first, the suit has been filed only against the first defendant and subsequently, the second defendant has been impleaded. The first defendant filed written statement and that has been adopted by the second defendant. The case of the appellants is that Chinnammal has given permissive possession to the first defendant, after receiving a sum of Rs.1000/-. So, it is well settled dictum that the permissive possession must be proved by the person who pleaded the same. But except ipse dixit of the plaintiffs, there is no iota of evidence and no one has been examined to prove the permissive possession of the defendants/respondents. But the respondents herein stated that they purchased the property under the oral sale on 24.04.1950 for Rs.1,500/-. It is pertinent to note that the first defendant is none other than the sister's husband of Chinnammal and the second defendant is the brother of the first defendant. So, considering the relationship between the parties, there is no sale deed executed and registered.
16. The learned Counsel for the appellants would submit that the respondents would plead that there was the oral sale on 24.04.1950, but the documents filed by them have not shown that from 1950, in pursuance of oral sale, there was a mutation of revenue records. Per contra the appellants/filed Ex.A.3, which shows that from 1955 to 1971 and they paid kists. In that it was stated as Thandaber Nagal. In that it was specifically mentioned that it is given for Land Development Bank purpose only. In that it was specifically mentioned as S.No.4880/A, Sub-division No.8; 51 acres 250 cents; in S.No.4880/B sub division No.7, 25 acres. On perusal of the document Ex.A.3 it would show that K.Ayyakutti has paid kist on 20.10.1955 under receipt No.250/83 and on 04.07.1956 under receipt No.107/47 and that has been paid by Chinnapillai Nadachi and Ayyakutti and he has also paid kist for 1957 and on 02.06.1958 vide receipt No.102/10, he paid kist. As per June 1958 vide receipt No.112/10, Ayyakutti paid kist and for July 1967 vide receipt No.29/84, for Chinna Pillai Nadachi vagai, Ayyakutt paid. For fasli 1378, 1379, 1380 and 1381, Ayyakutti alone paid kists. So, Ex.A.3 would show that Ayyakkutti alone paid the tax to the property. So Ex.A.3 is helpful to the defendants and not to the plaintiffs. Even in other document filed by the defendants filed viz., Ex.B.1, for fasli 1384, Survey Number has been mentioned as 877/27 and Ex.B.2, survey number has been mentioned as S.No.877/3 and it has been paid by Rengasamy; for fasli 1385 in S.No.877/3, Ayyakutti paid under Ex.B.3; for fasli 1385 in S.No.877/17, Ayyakutti paid under Ex.B.4; for fasli 1387 Ayyakutti Nadar paid under Ex.B.5. Ex.B.5 is not related to the suit property; for fasli 1386 in S.No.877/3, it stands in the name of Ayyakutti Nadar. Ex.A.8 is for fasli 1405 stands in the name of Mohanaselvan for S.No.877/17. It shows that even during the life time of Chinnammal from 1955 onwards, that Ayyakutti has paid tax and that has been evidenced by the appellants' documents vide Ex.A.3. So there is no evidence to show that the mother of the plaintiffs has paid kist to the property. So the argument advanced by the learned Counsel for the appellants that Chinnammal has paid tax does not merit acceptance.
17. As already stated, there is no proof for permissive possession. At this juncture, it is appropriate to incorporate Sections 101 and 102 of the Indian Evidence Act, which are as follows:
?101. Burden of proof: Whoever desires any Court to give judgment as to an 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.
102. On whom burden of proof lies: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.?
18. It is the duty of the plaintiffs to prove their case. At this juncture, it is appropriate to consider the decision relied upon by the learned Counsel for the respondents in Union of India and Others Vs. Vasavi Cooperative Housing Society Limited and Others reported in (2014)2 Supreme Court Cases 269 and in paragraph No.19, it was held as follows:
?19.The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against (sic them), in the absence of establishment of the plaintiff's own title, the plaintiff must be non- suited.?
19. The documents filed by the appellants and the respondents would show that the respondents alone are in possession and enjoyment of the same. It is appropriate to consider the argument of the learned Counsel appearing for the respondents that once the oral sale is invalid, the possession is adverse and they prescribed title by adverse possession for that open, continuous, uninterrupted possession for more than statutory period. So it is appropriate to consider the decision relied upon by the learned Counsel for the respondents in Collector of Bombay Vs. Municipal Corporation of the City of Bombay and others reported in AIR 1951(SC) 469, wherein in paragraph Nos.5 and 18 it was held as follows:
?5. ...They were in possession of the land to which they had no legal title at all. Therefore, the position of the respondent Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under color of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such pos- session not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant. This possession has continued openly, as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity free from rent but only for the purposes of a market in terms of the Government Resolution of 1865. The immunity from the liability to pay rent is just as much an integral part or an inseverable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose. There is no question of acquisition by adverse possession of the Government's prerogative right to levy assessment. What the respondent Corporation has acquired is the legal right to hold the land in perpetuity free of rent for the specific purpose of erecting and maintaining a market upon the terms of the Government Resolution as if a legal grant had been made to it. The right thus acquired includes, as part of it, an immunity from payment of rent which must necessarily consti- tute a right in limitation of the Government's right to assess in excess of the specific limit established and preserved by the Government Resolution within the meaning of section 8 of the Bombay Act II of 1876. It is true, as pointed out by the Privy Council in Karnalavahooji Maharaj v. Collector of Bombay (supra) that the words of the section would appear to apply rather to the case of a limitation on the right to assess than to the case of a complete exemption from assessment but such a construction would not protect the cases of total exemption which, as conceded in that very case, did in fact exist and were recognised and protected by virtue of the words of section 8 of the Bombay Act II of 1876. It has not been suggested before us that there are no cases of total exemption or that those cases are protected by any provision of law other than that of this very sec- tion. There is, therefore, no escape from the conclusion arrived at by the High Court, with which we concur, that the words of section 8 would apply to a case where total exemp- tion from assessment was granted. In other words, specific limit may be nil for the purposes of section 8 of the Act.
18. The Resolution in question authorized the grant of the site. There is apparently no grant in writing, conforming to the formalities prescribed by the law then in force. Part of the site was wanted for the erection of stables and the question of title to that portion was considered and decided in The Municipal Corporation of the City of Bombay v. The Secretary of State for India in Council (1), where the Government gave the Municipality notice to quit and brought a suit for rent on the alleged determination of the tenancy. It is part of the same transaction with which we are concerned now, and it seems to me that there was no valid grant. The grant having been authorized, the Corpora- tion went into possession and it is not denied that they have built the Crawford Market at enormous cost. Though the grant was invalid, the Corporation has now acquired a title by adverse possession to the site; this, however, is not the case with reference to the stable site covered by the afore- said Bombay decision. There the question was brought before the Court, well within the 60 years' period.
20. He would also rely upon a decision in Kr.Wasiq Ali Vs. The Director of Consolidation, Agra and Others reported in AIR 1974 ALLAHABAD (46), wherein in paragraph No.8, it was held as follows:
?8. If a person comes in possession under an invalid grant, the nature of his possession is adverse; and if he continues in such possession, he acquires title by adverse possession on the expiry of this statutory period. See Collector of Bombay V. Municipal Corporation of the City of Bombay, AIR 1951 SC 469; State of West Bengal V. Dalhousie Institute Society, AIR 1970 SC 1778 and Bharit V. Board of Revenue, 1973 ALJ 29 = (AIR 1973 ALL 201). In view of the law laid down in the aforesaid authorities we are of opinion that the appellant by virtue of nature and which commenced from 16.04.1943 and continued for more than 12 years till the consolidation proceedings started, had become a co-sharer; notwithstanding the fact that the sale in his favour was void, and was entitled to the share over which he was in possession viz., which was sold to him.?
21. He would also rely upon a decision in Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and another reported in (2014)1 Supreme Court Cases 669 wherein in paragraph No.8, it was held as follows:
?8. There cannot be any quarrel to this extent that the judgments of the Courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.??
and would submit that adverse possession can be taken as shield and not as a sword.
22. There is no quarrel over the above propositions.
23. He would also rely upon a decision in N.S.Spance Vs. D.S.Kanagarajan and another reported in 2005(1)CTC 494 wherein in paragraph Nos.24 and 25, it was held as follows:
?24. The submission of the learned counsel for the respondents, that mere possession alone is not sufficient to claim title by way of adverse possession, in this case, is not acceptable to me, since the possession of the plaintiff here cannot be described as mere possession, without exercising the right of the ownership. It is not only admitted, but also established by evidence that the plaintiff had leased the suit property, collected rent, transferred the property registered in his name and denied the title of the defendant also, when it was challenged. It is unnecessary, that the person, who is enjoying the property should inform to the real owner, that he is enjoying the property adversely against the true owner in categorical term. If it could be inferred from the attending circumstances, that to the knowledge of the owner, the person is enjoying the property, which was not disturbed, that itself is sufficient to conclude, that to the knowledge of the original owner, here the plaintiff is enjoying the property, thereby it should give and confer title upon the suit property in favour of the plaintiff. In otherwords, it had extinguished the title to the first respondent in respect of share.
25. As submitted by the learned counsel for the respondents, it is for the person, who claims adverse possession, to prove that his possession had became adverse to the real owner, as held inNaran Behera v. Mohan Jethi and mere possession over a statutory period is not sufficient to succeed in the plea of adverse possession, unless it is accompanied by adverse animus as held inVenkatachalaiah v. Nanjundaiah (AIR 1992 Karnataka 270). It is also held in the above decision that the alternative plea of adverse possession set up by the plaintiff cannot, therefore, be accepted, which does not mean that alternative plea is not permissible, since adverse animus has not been established in that case. The above decision may not come to the aid of the defendant in this case, in view of the hostile possession established, that too to the knowledge of the first defendant. The contention of the learned counsel for the respondents, that the possession must be without title against a person with original title and then only adverse possession would airse, is not acceptable, since a person, who is in possession of the property, is entitled to take alternative plea, as pointed out supra.?
and would submit that alternative plea can be taken by the defendants.
24. There is no quarrel over the above propositions. Once this Court came to the conclusion that the oral sale is illegal, the possession became adverse to the true owner till the death of Chinnammal on 16.01.1985, the respondents are in possession and enjoyment with the knowledge of Chinnammal openly, continuously, uninterrupted for more than statutory period. So they prescribed title by adverse possession.
25. Now this Court has to consider the main argument advanced by the learned Counsel for the appellants that the suit barred as per Article 65(b) of the Limitation Act. It is appropriate to extract the same which is as follows:
Description of suit Period of limitation Time from which period begins to run 65(b) Where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;
Twelve years When the possession of the defendant becomes adverse to the plaintiff.
26 He would rely upon the decisions in Munusamy Achari Vs. Rajammal and others reported in AIR 1977 MADRAS 228, wherein paragraph No.26, it was held as follows:
?26.... The claim may be that of a reversioner of the last male holder or it may be that of an heir of a deceased female Hindu. Whatever be the case, provided the right of possession in the suit property is claimed on the death of a female Hindu, the deeming provision of Expln. (b) to Art.65 would operate, and the suit for possession would be within time if filed within 12 years of the death of the female Hindu on whose death the plaintiff claims possession.?
(ii) In Shakuntala Mishra V. Jagadeep Pratap District Educational Officer. Reported in AIR 2016 ORISSA 82 wherein in paragraph No.6 and 10 it was held as follows:
?6. The unsuccessful defendant had moved the lower appellate Court, it has been held that initially possession of the defendant was permissible up to 1967 and the defendant have failed to prove their case of acquisition of title over the suit land by adverse possession. Ultimately, it has confirmed the trial Court decree passed in favour of the plaintiff.? ?10..... On detail analysis of evidence both oral and documentary on record, the Courts below have thus rendered a concurrent finding against the defendant in negating his claim of acquisition of title by adverse possession, with specific finding that the nature of possession to be permissive from the beginning and that the ingredients to establish a case of acquisition of title by adverse possession have not been established by clear, cogent and acceptable evidence. In that view of the matter, the ratio of the decision in case of Amarendera Pratap Singh (AIR 2004 SC 3782) (supra) does not come to help the defendant which lays down the principle that the suit of immovable property based on title is required to be instituted within a period of 12 years calculated from the date when the possession of the defendant became adverse to the plaintiff. In the instant case, the possession of the defendant has not been found to be in any way adverse to the true owner. So the non-filing of the suit within the period of 12 years cannot lead to extinguishment of the right, title and interest of the true owner by operation of the provision of S.27 of the Limitation Act. In order to hold the suit to be not maintainable after the expiry of 12 years, it has to be established that the possessor's possession was adverse from the very inception or from a particular point of time which as such continued for a period of 12 years either from the inception or any other later date as the case may be. The other decision in case of T.Anjanappa and other V. Somallingappa and another (2006 AIR SCW 4368)(supra) also lays down the principle that the possession must be open and hostile enough to be capable of being known by the parties interested in the properties, though it is not necessary that there should be evidence of adverse possession actually informing the real owner of the foremost hostile action. In the case in hand, when the categorical finding stands that the possession was permissive in nature since inception and when it is not been proved by acceptable evidence as to since when it got converted as of adverse exhibiting hostile animus, the principles enunciated in the above cited case do not provide any support to the claim of the defendant. The rest of the decisions cited by the learned Counsel for the appellants having been carefully read are found to be clearly distinguishable with the facts and circumstances of the case in hand and the evidence on record.?
(iii) In Jagat Ram Vs. Varinder Prakash reported in (2006)3 MLJ 141 (SC) wherein in paragraph No.6, it was held as follows:
?6. In our view, the High Court was right in holding that the suit was barred by limitation. Article 65of the Limitation Act, 1963 prescribes the period of limitation for possession of immovable property or any interest based on title where the suit is by a Hindu or Muslim entitled to possession of immovable property on the death of a Hindu or Muslim female. Article 65(b) in express terms provides that ``the possession of the defendant shall be deemed to become adverse only when female dies''. The limitation prescribed is 12 years beginning from the date when the possession of the defendant becomes adverse to the plaintiff. Learned counsel submitted that in view of Article 65 of the Limitation Act, 1963 the suit had to be filed within 12 years from the date on which the possession of the defendant became adverse and, therefore, it was immaterial as to when the Hindu female died. It is not possible to sustain the contention because the Article itself provides that the possession of the defendant shall be deemed to become adverse only when the female dies. Thus, there is no scope for the argument that limitation does not run from the date on which the Hindu female died and that it would start running from some other date. In our view, the High Court has rightly held that the suit should have been filed by the plaintiff within 12 years of the death of the Hindu female, namely Smt. Kirpi, and the same having not been filed within 12 years was barred by limitation. Much was sought to be made of the pending litigation relating to the adoption and gift deed executed in favour of the defendant. It was contended before us that since the matter was still pending and though the plaintiff's suit had been decreed on 16.1.1960, the plaintiff could not have filed the instant suit till such time as the Letters Patent Appeal was not dismissed by the High Court i.e. till 18.11.1981. The submission has no substance because in the litigation which was pending before the High Court the plaintiff had not claimed possession of the suit land. The High Court has rightly pointed out that even if the plaintiff had sought amendment of the pleadings in the pending matter and claimed decree for possession, the legal position would have been different. He having not done so, he should have filed the suit for possession of the suit land within 12 years of the death of Smt. Kirpi, which he failed to do.?
27. These citations are not applicable to the facts of the present case, because on the date of death of Chinnammal on 16.01.1985, the respondents have prescribed title by adverse possession for the long, open, continuous and uninterrupted possession during the life time of Chinnammal till her death. So, they derived title by adverse possession. So, during her life time, Chinnammal lost her right in the property. So nothing has been inherited by the appellants. Hence, the above citations are not applicable to the facts of the present case.
28. The learned Counsel appearing for the appellants would submit that the first appellate Court has not framed proper points for consideration.
29. Merely because the first appellate Court has not framed points for determination, the same is not a good reason for the appellants to entitle that the judgment and decree of the first appellate Court could be set aside and the matter has to be remitted back to the first appellate Court as per the decision in P.K.Vasudevan Pillai and another Vs. Manikandan Nair and Others reported in 2011(1) CTC 55, wherein in paragraph Nos.59 and 60 it was held as follows:
59. Order XLI, Rule 31, CPC requires the judgment of the Appellate Court to state (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Unfortunately, in the case on hand, the only point for determination framed by the Appellate Court was whether the appeal deserved to be allowed or not. Therefore, there is no doubt that there was a failure on the part of the Appellate Court to frame appropriate points for determination.
60. But I do not think that the same would entitle the appellants to have the judgment and decree of the Appellate Court set aside and the matter remanded back to the Appellate Court. On the question relating to the bar under Section 108, the Appellate Court has confirmed the decision of the Trial Court and held that it had no jurisdiction to decide the question whether the suit temple was a public temple or a private temple. Once this finding is upheld, all other findings on the substantial issues, become insignificant, since those findings are by a Court which thought that it had no jurisdiction. Therefore, in the case on hand, I hold that the failure of the lower Appellate Court to comply with Order XLI, Rule 31, CPC, has not vitiated to its judgment. The third substantial question of law is answered accordingly.?
Even though there is no specific point for determination framed, the first appellate Court has considered all the issues in a proper and perspective manner and came to the correct conclusion.
30. In such circumstances, I am of the view that applying this ratio decidendi made in P.K.Vasudevan Pillai and another Vs. Manikandan Nair and Others reported in 2011(1) CTC 55, merely because the first appellate Court has not framed appropriate points for consideration is not a reason for setting aside the judgment and decree first appellate Court. As already held by this Court, each and every issue has been considered in a proper and perspective manner by the first appellate Court and it came to the correct conclusion that even though the ownership is admitted, the permissive occupation pleaded by the appellants/plaintiffs was not proved; however the respondents/defendants has pleaded that they have entered into oral sale for Rs.1,500/- which is illegal, they have proved that they are in possession from 1950 onwards openly, continuously, uninterruptedly much adverse to the interest of the true owner Chinnammal till her death on 16.01.1985 and thereby they prescribed title adverse possession. Chinnammal lost her right in the property. Hence, Article 65(b) of the Limitation Act is not applicable to the facts of the present case. Hence, the appellants are not entitled to any decree. In view of the above, the Substantial Questions of Law 1 and 2 are answered accordingly against the appellants/plaintiffs
31. In view of the answer given to the Substantial Questions of Law 1 and 2, the judgment and decree passed by the first appellate Court does not warrant any interference. Hence, this Second Appeal is dismissed, by confirming the judgment and decree passed by the first appellate Court in A.S.No.90 of 2000, dated 29.04.2002, passed by the learned I Additional Subordinate Judge, Nagercoil. There shall be no order as to costs.
Consequently, the connected Civil Miscellaneous Petition is also dismissed.
To
1. The learned I Additional Subordinate Judge, Nagercoil.
2. The Principal District Munsif, Nagercoil..