Madras High Court
Selvi vs Balasubramanian And Another on 6 September, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 6.9.2012 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA S.A.No.648 of 2005 Selvi, ... Appellant Selvi, the sole appellant is permitted to prosecute on her own without representing any other Power Agent and to that effect cause title amended vide order of Court dated 14.8.2012 made in C.M.P.Nos.53 to 55 of 2012 in S.A.No.648 of 2005. vs. Balasubramanian and another ... Respondent Second Appeal against the judgement and decree dated 15.10.2004 passed by the Principal Subordinate Judge, Vridhachalam, in A.S.No.111 of 2003 and in Cross Appeal No.111 of 2003, reversing the judgement and decree dated 30.4.2003 passed by the II Additional District Munsif, Vridhachalam, in O.S.No.220 of 1995. For appellant :: Mr.J.Ramakrishnan For Respondent :: Mr.V.Raghavachari for R1 & R2 JUDGEMENT
This second appeal is focussed by the plaintiff in the suit, as against the judgement and decree dated 15.10.2004 passed by the Principal Subordinate Judge, Vridhachalam, in A.S.No.111 of 2003 and in Cross Appeal No.111 of 2003, reversing the judgement and decree dated 30.4.2003 passed by the II Additional District Munsif, Vridhachalam, in O.S.No.220 of 1995, which was one for partition.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A r'esume of facts absolutely necessary and germane for the disposal of this second appeal, in a few broad strokes can be encapsulated thus:
(i) The appellant herein/plaintiff filed the suit O.S.No.220 of 1995 for partition seeking half share in the 'A' and 'B' schedules of the plaint mainly on the ground that originally the properties belonged to one Sadayan, who died leaving behind his two sons Kilayan and Nallathambi. Kiliyan died leaving behind his son Kuppusamy. Whereas, Nallathambi died leaving behind his son Velayudham. The said Kuppusamy enjoyed the suit property till his death during the year 1966; Poongavanam was his only daughter, who died leaving behind her only daughter Selvi-the plaintiff herein, to be looked after by her husband Sadasivam, who represented Selvi in the Court proceedings all along till his death during the pendency of the second appeal.
(ii) However, Velayudham, taking undue advantage of the death of Kuppusay, got the patta changed in his name during the year 1966 in the respect of the suit properties and he and his son Balasubramaniam-D1, sold the 'A' scheduled property in favour of D2 illegally, as per the sale deed-Ex.A10 dated 19.5.1985; D2 in turn sold the property, pending litigation, in favour of one Manigandan, who died even before impleading him in the proceedings, whereupon his mother D3-Kolanjiammal was added in the party array. Accordingly, the plaintiff prayed for partition.
(iii) D2 remained ex-parte. D1 filed the written statement resisting the suit on the main ground that there was oral partition, which emerged between the ancestors of both sides and accordingly D1's father started enjoying the suit properties in his own capacity. While so, the said Velayutham and his son Balasubramaniam both jointly executed the sale deed-Ex.A10 dated 19.5.1985, transferring the 'A' scheduled property fully in favour of D2.
(iv) In the 'B' scheduled property measuring 11 cents, D1-Balasubramaniam has been in occupation and enjoyment, following his father's enjoyment as the owner.
(v) D1 also clearly and categorically pleaded that for more than 12 years, he and his father Velayutham had been in possession and enjoyment of the suit properties and thereby they ousted the plaintiff from enjoying the suit properties and they also acquired title by prescription.
(vi) Whereupon the trial Court framed the issues.
(vii) During enquiry, the Power of Attorney of the plaintiff-Sadhasivam examined himself as P.W.1 and marked Exs.A1 to A10. The first defendant-Balasubramanian examined himself as D.W.1 along with D.Ws.2 and 3 and marked Exs.B1 to B23. Ex.X1 is marked as Court document.
(viii) Ultimately, the trial Court decreed the suit only in respect of the 'A' scheduled property and dismissed the suit in respect of 'B' scheduled property, invoking the then Section 23 of the Hindu Succession Act.
(ix) Impugning and challenging the said judgement and decree of the trial Court, in ordering partition of the 'A' Scheduled property, D1 and D2 filed the appeal. Whereas, the plaintiff preferred the cross-appeal as against the same judgement and decree in view of the lower Court having dismissed the suit in respect of 'B' scheduled property.
(x) Both the appeal and the cross appeal were heard by the first appellate Court and ultimately, it set aside the judgement and decree of the trial Court in ordering partition by allowing the appeal and dismissed the entire suit in toto. The cross-appeal filed by the plaintiff was dismissed.
4. Being aggrieved by and dissatisfied with the judgement and decree of the first appellate Court in allowing the appeal filed by D1 and D2 and in dismissing the cross-appeal filed by the plaintiff, this second appeal has been focussed by the plaintiff on various grounds.
5. My learned predecessor framed the following substantial questions of law:
"(a) When the relationship between the parties and their entitlement for share is admitted, whether the lower appellate Courth is justified in law in non suiting the appellant on the plea of ouster, which is not pleaded and proved as required under law?
(b) Whether the Courts below are correct in law in holding that the provisions of Section 23 of the Hindu Succession Act, 1956 precludes the appellant from claiming right over the 'B' Schedule property, when admittedly 8 cents out of 11 cents therein is vacant land and only 3 cents represents the dwelling house? And
(c) Whether the lower appellate Court is justified in eschewing the documents produced by the appellant which would prove that patta had all along stood in the name of her predecessors and in holding that the appellant had not established her case?
(extracted as such)
6. The learned counsel for the appellant herein/plaintiff would develop his arguement, which could pithily and precisely be set out thus:
(i) The first appellate Court miserably failed to take note of the fact that D1, who wanted to invoke the concept 'ouster' failed to plead the same in the written statement and also prove it. Over and above that D1 also did not produce any evidence to demonstrate that there was oral partition.
(ii) There is nothing to indicate as from which period onwards the possession of Velayutham and his son D1-Balasubramaniam became hostile to the interest of the plaintiff-SElvi and for that matter her mother-Poongavanam up till 1965.
(iii) It is an admitted fact that the patta stood in the name of Kuppusamy-the father of Poongavanam, so to say, the maternal grand father of Selvi-the plaintiff. Only during the year 1966, the patta got changed.
(iv) D1 unarguably and unequivocally admitted the fact that the patta was got transferred from Kuppusamy to Velayutham only in the capacity of the latter as the 'kartha' of the family. When such is the position, there is no knowing of the fact as from which period onwards the possession and enjoyment of Velayutham and D1 became hostile to the interest of plaintiff or her mother-Poongavanam over the suit property.
(v) Poongavanam being a lady was kind enough in not insisting for partition as against her uncle-Velayutham soon after the death of her father Kuppusamy and that cannot be taken undue advantage of by Velayutham's son-D1-Balasubramaniam and raise, as against Selvi, the plea of 'prescription' or 'adverse possession' or 'ouster'.
(vi) Selvi got married and went to Chandigarh to live with her husband and in such a case, it cannot be stated that there was delay or laches on the part of Selvi-the plaintiff in setting the law in motion and asserting her right of half share over the suit properties.
(vii) D.W.1 himself admitted that their alleged enjoyment of the suit properties was not known to the plaintiff. When such factual admitted position is available on record, it cannot be construed that the maxim 'nec vi, nec clam, nec precario' was attracted in favour of the first defendant and his father-Velayutham.
(viii) Section 23 of the Act has been erased from the statute book and in such a case, it is no more an embargo on the part of Selvi-the plaintiff to seek partition even in the dwelling house.
Accordingly, the learned counsel for the appellant/plaintiff, by citing various decision, would pray for setting aside the judgement and decree of the appellate Court and for decreeing the suit in toto.
7. Per contra, in a bid to torpedo and pulverise the arguements as put forth and set forth on the side of the appellant/plaintiff, the learned counsel for D1 and D2 would pyramid his arguements, which could tersely and briefly be set out thus:
(i) The deposition of D.W.1 itself is sufficient to non-suit the plaintiff, as pulling no punches, he would pellucidly and palpably admit that for quarter of century, so to say, for about 25 years, neither Selvi nor her father-P.W.1-Sadhasivam visited the suit properties. As per P.W.1's own admission, they were not in enjoyment of the suit property and they were not also in receipt of any usufruct from D1 concerning the suit property.
(ii) Poongavanam during her life time never raised her little finger to get at least the patta in the name of Velayutham changed into a joint patta, including her name also. Nowhere it is stated in the said patta that Velayutham is the 'kartha' of the joint family. No tax receipt has been produced by the plaintiff to exemplify and convey that Poongavanam ever enjoyed the suit properties.
(iii) On the other hand, the overwhelming evidence available on the defendants' side bespeak and betoken that D1 and his father were in possession and enjoyment of the 'A' scheduled property till they sold the property during the year 1985, vide Ex.A10 dated 19.5.1985 in favour of D2.
(iv) The first appellate Court appropriately and appositely analysed the facts and dismissed the claim of the plaintiff, warranting no interference in second appeal.
(v) The scraping of Section 23 from the statute book, cannot be taken advantage, by the plaintiff, because she is having no right at all over the 'B' Scheduled property, wherein Velayutham lived and following him D1 has been living now also.
(vi) The plea of ouster can rightly be discerned and upheld in the factual matrix, as the oral and documentary evidence available on record would display and establish that there was total abandonment of the suit properties by Poongavanam and in such a case, the question of her daughter Selvi claiming right over the suit properties would not arise.
Accordingly, the learned counsel for D1 and D3 would pray for the dismissal of the second appeal.
8. Substantial Question of law (a): At the outset itself I would like to fumigate my mind with the following precedents cited on both sides:
(a) The learned counsel for the appellant/plaintiff would cite the following decisions of the Honourable Apex Court as well as this Court:
(i) The judgement of the Hon'ble Apex Court reported in (2007)4 MLJ 912(SC) P.T.MUNICHIKKANNA REDDY AND OTHERS V. REVAMMA AND OTHERS;
(ii) (2004) 7 Supreme Court Cases 541 RAMIAH V. N.NARAYANA REDDY (DEAD) BY LRS.
(iii) The judgement of the Madras High Court in 2011-1-L.W.1014 DHANABAGHYAM AMMAL (DIED) AND OTHERS V. DHANAVEL AND OTHERS;
(iv) The judgement of the Madras High Court in (2011)5 MLJ 278 RAHIMUNNISABI V. SUBHAN SAHIB AND OTHERS;
(v) AIR 2007 PUNJAB AND HARYANA 17 M/s.DCM Shriram Consolidated Ltd., v. Jai Singh.
(vi) The judgement of the Madras High Court in 1999(III) CTC 263 D.V.JAGANATHAN AND FIVE OTHERS V.P.R.SRINIVASAN AND FIVE OTHERS
(vii) The judgement of this Court in AIR 1972 MADRAS 467 (V 59 C 149)(1) IBRAMSA KOWTHER (MINOR) AND OTHERS V. SK.MEERASA ROWTHER AND OTHERS
(b) The learned counsel for D1 and D3 would cite the following precedents of the Honourable Apex Court as well as this Court:
(i) (2011)6 SUPREME COURT CASES 462 PREMA V. NANJE GOWDA AND OTHERS;
(ii) (2011)9 SUPREME COURT CASES 788 GANDURI KOTESHWARAMMA AND ANOTHER V. CHAKIRI YANADI AND ANOTHER;
(iii)(2009)6 SUPREME COURT CASES 99 G.SEKAR V. GEETHA AND OTHERS;
(iv) 2001 (1) CTC 109 JANAKI PANDYANI V GANESHWAR PANDA (DEAD) BY LRS AND ANOTHER
(v) (1998)7 SUPREME COURT CASES 103 M.ARTHUR PAUL RATNA RAJU AND OTHERS V. GUDESE GARALINE AUGUSTA BHUSHANABAI AND ANOTHER;
(vi) (2009) 5 MLJ 775 (SC) BONDER AND ANOTHER V. HEM SINGH (DEAD) BY LRS AND OTHERS
(vii) The judgement of the Madras High Court in 2011-3-L.W.789 K.GOPALAN (DIED) AND OTHERS V. MUTHULAKSHMI
(viii) The judgement of the Madras High Court in (2009) 7 MLJ 145 RAMULU AMMAL V. RAMACHANDRA REDDY AND OTHERS
(ix) The judgement of this Court reported in 2003(2) CTC 551 DAMODARA NAICKER (DIED) AND 10 OTHERS V. COLLECTOR OF CHENGALPATTU DISTRICT AT KANCHEEPURAM AND 7 OTHERS;
(x) The judgement of this Court reported in (2002)3 M.L.J.728 NEELAKA PILLAI ALIAS SAROJINIAMMA V. K.VELU PILLAI AND OTHERS
(xi) The judgement of this Court reported in 1993(2) MLJ 428 SRIDHARAN AND OTHERS V. ARUMUGAM AND OTHERS
(xii) The Judgement of this Court reported in AIR 2009 Madras 86 M.Revathi v. R.Alamelu & Others
9. A mere running of eye over those precedents and more specifically the decisions of the Honourable Supreme Court in (2007) 6 SCC 59 (P.T.Munichikkanna Reddy and others vs. Revamma and others) and AIR 2012 SUPREME COURT 559 STATE OF HARYANA V. MUKESH KUMAR AND OTHERS, which went to the extent of suggesting to the Legislators to amend the law relating to adverse possession on the main ground that a tort-feasor or trespasser should not be allowed to capitalise his own fault in view of the maxims (i) Nul Prendra advantage de son tort demesne (No one shall take advantage of his own wrong) and (ii) Nullus commodum capere potest de injuria sua propria(No one can gain advantage by his own wrong), the law should not render a helping hand to such persons would clarify and settle the legal position relating to prescriptive title.
10. Be that as it may. The cumulative reading of all the precedents would reveal and connote that in appropriate cases there is no embargo for a person in occupation of an immovable property over the statutory period to prove that he acquired prescriptive title over it by his long uninterrupted, open and hostile possession as owner, as found highlighted in the maxim 'nec vi, nec calm, nec precario'.
11. The core question arises in this case as to whether Velayutham and his son D1 could be construed as the persons who acquired prescriptive title by adverse possession, ousting Poongavam and her heirs from enjoying it.
12. I recollect the following maxim:
'Acta exteriora indicant interiora secreta' Outward acts indicate the thoughts hidden within.
13. Objectively the matter has to be visualised. At this juncture, it would not be out of place to observe by me that the plaint itself was not properly drafted for the reason that consequent upon the death of Poongavanam, as per Section 15 of the Hindu Succession Act, her husband and her daughter were deemed to be her legal heirs. There is no knowing of the fact as to what made Selvi to cite her own father as Power of Attorney and sue, leaving him as one of the legal heirs of Poongavanam. The law is well settled that if a Hindu female dies leaving behind her child and also her husband along with the child, the husband also should be construed as one of the legal heir of the deceased female. It is not a case where Poongavanam died leaving behind no child. Then in that case, the matter would be different. But here for reasons best known to Selvi as well as Sadhasivam, the latter was not projected as one of the legal heirs of Poongavanam.
14. The learned counsel for the defendants making use of this factual position, would advance his arguement that the plaintiff purely for the purpose of earning the sympathy of the Court, and to plead that the plaintiff, who got married and started living in her husband's house might not be knowing about all the developments, left Sadasivam being shown as one of the legal heirs of the deceased poongavanam.
15. This important fact cannot be lost sight of. Even as per the case of the plaintiff, consequent upon the death of Poongavanam, her child Selvi and her husband Sadhasivam happened to be her legal heirs.
16. It is quite obvious and axiomatic that Sadhasivam never raised his little finger claiming right in the suit properties all along, even though in his cross-examination he admitted that he had been living for two decades in Kodukur Village, which is in the same Taluk wherein the suit properties are situated.
17. The preponderance of probabilities would govern the adjudication in civil cases. Normally persons who are having share and that too half share in the suit property, would not keep quite without laying claim over it.
18. As per the plaintiff's narration of facts, Poongavanam was entitled to half share in the suit properties. Scarcely could it be visualised that an equal co-sharer would ever remain dormant for about a quarter of a century, without asserting her right. It would be preposterous and fastidious to expect the defendant who pleaded oral partition, which take place about fifty years before to prove with mathematical precision as to how such oral partition was effected, when it was effected including the date on which it was effected etc. From the attending circumstances the Court has to discern certain facts.
19. No doubt, the learned counsel for the plaintiff would canvass his client's case by putting the point that a cumulative reading of the adangals would reveal that the Revenue records stood in the name of Kuppusamy-the father of Poongavanam up to the year 1966 and that would torpedo the plea of D1 that there was oral partition half a century back etc.
20. It is also an undisputed fact that from 1966 onwards the Revenue records commenced speaking in the name of Velayutham; thereafter it was Velayutham, who paid the tax; and admittedly he has been in possession and enjoyment of both the 'A' and 'B' scheduled properties. I could also notice that even though D1 specifically pleaded that there was oral partition, yet he never ventured to say as to what were the other properties which were allotted to the share of Kuppusamy or Kuppusamy's legal descendants. Because of that lacuna alone, the case of the defendants cannot be looked askance at. If really the suit was filed within a reasonable time, after the death of Kuppusamy, then the matter would have been entirely different. But in this case, even though Kuppusamy died during the year 1966, Poongeavanam, his only legal heir, did not take any steps to seek for partition. It is not the case of plaintiff that Poongavanam after she having married Sadhasivam, i.e. P.W.1, started living some where else far away from the village where the suit properties are situated. It is the admission of P.W.1 that he was living with his wife Poongavanam only in Kodukur Village, so to say, within the same taluk wherein the suit properties are situated. When such is the admitted factual position, there is absolutely no explanation forthcoming from the plaintiff's side as to why Poongavanam did not ask for partition at all during her life time.
21. Over and above that, during the year 1986, Velayutham and his son D1-Balasubramaniam jointly executed the sale deed transferring 'A' scheduled property in favour of D2. At least within a reasonable time thereafter the said sale should have been challenged, but that was not done so. I do not incline to say that within three years from 1986, the suit should have been filed to get erased the said sale deed, but within a reasonable time at least the plaintiff and her father Sadhasivdam could have sought for partition, but that was not done so. Only in the year 1993, after issuing pre-suit notice, the suit was filed only as an after thought.
22. The learned counsel for the defendants 1 and 3 would legally put forth his submission to the effect that there is not even any whisper in the plaint or in the course of adducing evidence that either Poongavanam or her daughter Selvi was in receipt of any income from Velayutham or D1 in recognition of their right over the suit properties.
23. I recollect the popular adage that 'witnesses might lie, but the circumstances would not lie.' It cannot be visualised that the persons having equal shares might have kept quiet for quarter of a century without demanding their share or demanding at least their share in the income from the joint property.
24. At this juncture, the learned counsel for the respondents/defendants would invite the attention of this Court to the judgement delivered by this Court in (2008) 7 MLJ 1183 VENKATACHALAM (DIED) AND OTHERS V. RAJAMMAL AND OTHERS referring to MunichiKkanna Reddy's case (2007)4 MLJ 912 (SC); an excerpt from it would run thus:
"40. The learned Senior counsel for the appellant would develop his argument by placing reliance on such cryptic phrase. There is no adequate pleading relating to adverse possession and ouster. Whereas the learned counsel for the plaintiffs would, by citing the decision of the Hon'ble Apex Court reported in 2007 (4) MLJ 912 (SC) (P.T.Munichikkanna Reddy and others vs. Revamma and others), would develop his argument that it is not as if projected by D1 that prescriptive possession as well as ouster should be presumed as a matter of course. It has become a common or garden principle of law and that too in the wake of the decision of the Hon'ble Apex Court reported in 2007 (4) MLJ 912 that plea of ouster or plea of adverse possession should specifically be pleaded with necessary particulars and clinching evidence should be adduced relating there to. An excerpt from the said decision would run thus:
"5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird; Arkansas Commemorative Commission v. City of Little Rock; Monnot v. Murphy; City of Rock Springs v. Sturm.)
6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off ones right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p.81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim.
8. Also See Privy Council's decision in Chung Ping Kwan and Others v. Lam Island Development Company Limited (Hong Kong) (1997) Ac 38 in this regard.
9. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially wilful neglect element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.
10. It is interesting to see the development of adverse possession law in the backdrop of the status of right to property in the 21st century. The aspect of stronger property rights regime in general, coupled with efficient legal regimes furthering the rule of law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of human rights jurisprudence in recent times has also palpably affected the developments in this regard.
New consideration in adverse possession law
11. In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom wherein the European Court of Human Rights while referring to the Court of Appeal judgment JA Pye (Oxford) Ltd. v. Graham made the following reference:
Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol.
14. Importantly, intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialise.
21. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Govt. of India in the following terms: (SCC p.785, para 11) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
22. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner.
32. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Bibi Sakina in the following terms: (AIR p.1256, para 5) Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found."
41. A mere perusal of the aforesaid decision would leave no doubt in the mind of the Court that in this case, there is no adequate pleading relating to ouster/adverse possession among the co-sharers. Mere pleading of adverse possession would not be sufficient. There should be a specific plea of ouster. There is a distinction between ouster and adverse possession as in catena of decisions, it has been held that in the case of ouster over and above the evidence required to prove adverse possession, there should be evidence to the effect that the co-sharer was excluded specifically from possessing and enjoying the property and despite such specific exclusion the co-sharer had kept quiet over the period of limitation as contemplated under the Limitation Act. Merely because, adangal extracts and chitta extracts have been produced that would not enure to the benefit of the first defendant to contend that he acquired exclusive title over the properties concerned."
25. No doubt, in that case this Court disbelieved the theory of 'adverse possession' because the factual matrix in that case was that there was no evidence to prove ouster and this Court also held that there should be weighty evidence to prove ouster and mere weak, bleak and meek evidence would not be sufficient.
26. I would like to agree with the submission of the learned counsel for the respondent for the reason that so far this case is concerned, there is not even any assertion to the fact that ever since the death of Kuppusamy during the year 1966 Poongavanam was enjoying the suit properties or that she was in receipt of any income concerning the suit properties from D1 or his father Velayutham.
27. No steps also were taken by Poongavanam or by Selvi to get effected mutation in the Revenue records in their favour. I am fully aware of the fact that patta alone will not confer title. However, that could be taken as an evidence to prove possession. But that was also not done.
28. At this juncture, my mind is reminiscent and redolent of the following maxim:
'In re dubia magis infitiatio quam affirmatio intelligenda' In a doubtful matter, the negation is to be understood rather than the affirmation.
29. A plain running of the eye over the evidence would reveal that there is no pint or jot, smidgeon or scintilla of evidence to evince that Selvi or her mother or her father ever exercised their right of co-ownership over the suit properties since 1966 till the date of filing of the suit in the year 1993.
30. Regarding 'B' Scheduled property is concerned, there is nothing to demonstrate and convey that at any point of time Poongavanam or Selvi ever enjoyed the 'B' Scheduled property.
31. This Court raised a query for the learned counsel for the defendants to answer as from which period his clients claim hostile possession in respect of the suit properties, for which, the learned counsel for D1 and D3 would expound and explain that it is not as though D1 is claiming hostile possession only from the date of emergence of the sale deed Ex.A10 dated 19.5.1986, but even long prior to it. He would also, by inviting the attention of this Court to the relevant portion of the deposition of P.W.1 himself would submit that for 25 years, no one on the plaintiff's side ever visited the suit properties or was in receipt of any income concerning the suit properties from D1.
32. No doubt, even though this Court cannot assume and presume that from the date of death of Kuppusamy i.e. in the year 1966 itself, the hostile possession commenced in favour of Velayutham, yet after giving wide margin in favour of Poongavanam and her L.Rs. to lay claim desirably over it up to 12 years from 1966, which comes to 1978, the Court could safely and justiciably discern that hostile possession in favour of Velayudham started commencing from 1978 which resultantly got blossomed into prescriptive title by 2000, in favour of Velayudham and his son D1. After the expiry of the said initial period of 12 years, a period of 14 years also elapsed without any claim from Selvi-the plaintiff or her father P.W.1 and thereafter alone during the year 1993 Poongavanam's daughter Selvi filed the suit, and that too, after the emergence of sale deed Ex.A10 dated 19.5.1986. Not to put too fine a point on it, this is a clear case of abandoning of one's right over the suit property and that constitutes ouster as against them and correspondingly these facts enure to the benefit of D1's father and D1; wherefore, I could see no perversity or illegality in the judgement passed by the first appellate Court.
33. The contention on the side of the plaintiff that there was no specific pleading relating to ouster, in my considered opinion, is not a well founded one, because the perusal of the written statement would clearly evince and denote that D1 pleaded ouster.
34. On balance I could see no perversity or illegality in the judgement and decree of the first appellate Court. Accordingly, it has to be confirmed and it is confirmed.
35. In view of the ratiocination adhered to in deciding the aforesaid point No.(i), the question of invoking Section 23 of the Hindu Succession Act would not arise and over and above that, by virtue of scraping of Section 23 from the statute book, a lady member, who is having right in a property cannot be deprived of her right to seek for partition; however, in this case there is no proof to establish and show that the plaintiff had any such right in the suit properties.
36. Accordingly, the substantial questions are answered as under:
Substantial question of law (a) is answered to the effect that the plea of ouster is held to have been proved by D1 as against the plaintiff.
Substantial Question of law (b) is decided to the effect that the then Section 23 of the Hindu Succession Act, which has been scraped, vide, Hindu Succession (Amendment) Act, 2005 (39 of 2005) is no more an embargo for a female member to lay claim over a dwelling house. However, in this case, the plaintiff is held to have lost her right in the house in view of ouster.
Substantial Question of Law (c) is answered to the effect that even though the appellant/plaintiff would establish that up to 1965, the patta stood in the name of her maternal grandfather Kuppusamy yet there is no evidence to show that thereafter, any evidence was available to display and demonstrate that either Poongavanam or Selvi or Sadasivam (P.W.1) exercised their right of ownership over the suit properties.
37. In the result, the second appeal is dismissed. However, there is no order as to costs.
Msk To
1. The Principal Subordinate Judge, Vridhachalam
2. The II Additional District Munsif, Vridhachalam