Madras High Court
S. Subba Reddiar (Died) And Ors. vs Bhagyalakshmi Ammal Alias Guruvachi ... on 14 February, 1996
Equivalent citations: (1996)2MLJ327
JUDGMENT S.S. Subramani, J.
1. Defendants in O.S. No. 290 of 1979, on the file of the District Munsif's Court, Tirumangalam, are the appellants herein. After the filing of the second appeal, first appellant died, and appellants 3 to 8 have been impleaded as L.Rs. i.e., as additional appellants, as per order in C.M.P. No. 3155 of 1992 dated 20.7.1992.
2. Relevant facts are as follows:
Plaintiffs filed the suit for declaration of title and recovery of possession, with mesne profits. The Scheduled property originally belonged to the first defendant and others. As per Ex.A-3 dated 23.10.1930, they sold the property to plaintiff s predecessors. The purchaser under Ex.A-3 was a minor. The purchaser died within a period of one year from the date of purchase, and thereafter his mother executed a release deed in favour of one Ramachandra Reddiar. There were also other claimants, who also executed release deeds in favour of Ramachandra Reddiar. Those documents are Exs.A-4 and A-5.
3. It is the case of the plaintiffs that subsequently the plaintiffs became the owners of the property. According to them, the defendants are in permissive possession and, therefore, liable to vacate the same. Plaintiffs issued a notice dated 17.11.1978 requiring the first defendant to vacate, but he refused to comply with the request, stating that he has prescribed title by adverse possession. Hence, the plaintiffs filed the suit for declaration of title and recovery of possession.
4. In the written statement filed by the defendants, it was contended that the sale deed executed as per Ex.A-3 was not acted upon and the defendants and the other vendors continued to reside and to be in possession of the property even thereafter, and there was no interruption in their possession. Finally, it was said that even if the sale had been acted upon or come into force, their possession was adverse, open, hostile and uninterrupted and, therefore, the right of the plaintiffs was lost by adverse possession and limitation.
5. On the above pleadings, the parties went on trial. On the side of the plaintiffs, P.Ws. 1 to 3 were examined and Exs.A-1 to A-14 were marked. On the side of the defendants, D.Ws. 1 to 4 were examined and Exs.B-1 to B-19 were marked. On the basis of the said evidence, trial court came to the conclusion that Ex.A-3 sale deed was acted upon. It came into effect, and the plaintiff s predecessor obtained valid title to the property. But it came to the conclusion that since the first defendant was paying house tax for a long period describing himself as owner and since his possession was admitted, and since permissive possession was also not proved, title of the plaintiffs was lost by long adverse possession. The suit was, therefore, dismissed.
6. Against the said decision, plaintiffs preferred A.S. No. 86 of 1982, on the file of the Subordinate Judge's Court, Madurai. The lower appellate court held that the finding regarding adverse possession by the trial court was wrong. Defendants did not have the animus to hold the property against the plaintiffs or their predecessor and the possession of the defendants can only be referred to as lawful title. The suit was decreed and recovery of possession was ordered. It is against the said judgment, defendants have preferred this second appeal.
7. The following substantial question of law has been raised:
Whether the finding of the lower appellate court that the first defendant has not acquired title to the suit property by adverse possession is sustainable?
8. The only point to be considered is, whether the claim of the plaintiffs is lost in view of adverse possession claimed by the appellants.
9. First I will consider the question of adverse possession and how it should be pleaded.
10. 'Adverse possession' has been defined in the Limitation Act, 1963 by Chitaley and Rao - 4th Edition (1965)-Volume II, at pages 1255 to 1257, as follows:
Adverse possession, what is - The expression "adverse possession" means a 'hostile possession' that is a possession which is expressly or impliedly in denial of the title of the true owner. In Ejas Ali v. Special Manager, Court of Wards, their Lordships of the Privy Council observed:
The principle 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.
In Arunachalam v. Venkatachalapathy, their Lordships of the Privy Council held that the possession of the defendant was adverse to the plaintiff, inasmuch as the plaintiff had stood by while the defendant continued to possession in practical contravention of the plaintiff's alleged rights. Dr. Markby in his Elements of Law observes that possession to be adverse must be possession "by a person who does not acknowledge the other's rights hut denies them. "
The principle that in order to constitute adverse possession the possession must be in denial of the title of the true owner, has been recognised in numerous decisions, though expressed in different ways. Thus, it has been held that in order to constitute adverse possession the acts of the person in possession should be irreconcilable with the rights of the true owner, that the person in possession must claim to be so as of right as against the true owner, that adverse possession is possession which is wrongful, that the possession must be by a person holding the land on his own behalf or on behalf of some person other than the true owner, the true owner having a right to immediate possession, and that the possession of the wrongdoer must be exclusive. A contrary view, namely, that the possession of a person may be adverse to another even though he may admit the title of that other, has been held the undermentioned case. It is submitted that this view cannot be accepted as correct.
It follows from the above that possession on the part of A consistent and reconcilable with the title of B cannot be adverse to B....
In S. M. Karim v. Mst. Bibi Sakina , their Lordships held thus:
...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. A mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea....
12. The plea of adverse possession is absolutely necessary. What was the adverse character and when it started are only within the personal knowledge of the person claiming it. He alone can plead his possession from a particular date and claim that it was adverse. Article 65 of, the Limitation Act provides for recovery of possession on the basis of title within 12 years from the date on which adverse possession began. So, a definite date is required to claim adverse possession.
13. In this case, the claim put forward by the defendant is that Ex.A-3 was not acted upon and they continued in possession. That possession is uninterrupted and, therefore, the plaintiff has no title. That pleading is only regarding whether Ex.A-3 was acted upon for the purpose of pleading adverse possession. When we come to the plea of adverse possession, defendants only say that their possession was long, uninterrupted and open. It is conspicuously absent as to when it began.
14. There is an allegation in the plaint that plaintiffs' predecessor Ramachandra Reddiar and the first defendants were close associates. The said fact is not denied anywhere in the written statement. Before proceeding further on the other questions of law, let us consider how far the first defendant has substantiated his case of adverse possession, in the sense that he had the animus to hold the property against the real owners. If they did not have the animus, whatever be the length of period of their possession, there cannot be any adverse possession. It is seen that after the purchaser minor's death, and after Ramachandra Reddiar took release evidenced by Exs.A-4 and A-5, there was some dispute in the family. The plaint schedule was Item 3 in O.S. No. 144 of 1947, on the file of the Subordinate Judge's Court, Madurai. Ramachandra Reddiar was one of the defendants in that suit. The present first defendant was a witness for Ramachandra Reddiar. Portions of his deposition have been marked in this case as Exs.A-12 to A-14.
...I have no properties. My father had mortgaged his properties to Lakshmanan Reddiar, paternal uncle of A.K.A. Ramachandra Reddiar. I sold properties in favour of Lakshmanan Reddiar's minor son Alagarsami in discharge of the mortgage debt. Even my residential house was included in the sale. But the house continues in my possession. It is not true that some other punja land comprised in the sale continued in my possession. I do not pay any rent for the house. The house is in my enjoyment. I do not know to whom it belongs after Alagarsami's death. There is no agreement now, that the house should be given up to me.
[Italics supplied]
15. From the above deposition, it is clear that on the date when he deposed, the defendants did not have the animus to hold the property against the real owner. If his case is that he continued to be in possession from 1930, his answer cannot be that he has no properties. Further, he pleaded only ignorance as to who is the owner, on the date when he deposed. He only said that he does not know who is the owner, after Alagarsami's death. He did not claim ownership in himself. When a question was put to him as to whether he was in possession on the basis of any agreement, the answer was that there was no agreement "now". It follows that there might have been some arrangement which may not be valid or enforceable on the date when he deposed. If, on the date when he deposed, he did not have the animus to hold the property against the real owner, it is for him to say how and from what date his hostile possession began. As stated earlier, there is absolutely no evidence or pleading in that regard.
16. There is one more circumstance which goes against the appellants. It is not disputed by the appellants that there had been various other transactions between the plaintiff's predecessor and the first defendant. They have also executed various sale deeds in favour of the plaintiffs' predecessor. In all those sale deeds, possession passed and they have also dealt with the same. This was only an exception. If that be so, under moral circumstances, there would have been some other arrangement on the basis of which the first defendant was not dispossessed from the house pursuant to the sale. It is in this connection, the allegation in the plaint gains importance, i.e., Ramachandra Reddiar and the first defendant were closely associated. It may also be remembered that even at the time when he deposed, he did not have a property or house of his own. Taking all these circumstances together, it can safely be concluded that there might have been some arrangement whereby the first defendant might have been permitted to occupy the building. Due to close association, it might not have been written.
17. The question is as to whether the hostile claim now put forward by the defendants was brought to the notice of the plaintiffs or their predecessors at any time. Learned Counsel said that the plea of adverse possession does not require that the hostile title must be to the knowledge of the real owner. According to me, it should be open and uninterrupted hostile title. The openness is sufficient notice to all persons including the real owner. There should not be any secrecy. I do not think that the said contention of the defendants is right in view of a recent decision of the Supreme Court reported in Mahavir and Anr. v. Rural Institute, Amravati and Anr. . In that case, a question was raised under Land Acquisition Act. There, the defendant's property was acquired by the Government for the purpose of Rural Institute. The Government, after Notifications under Sections 4 and 6 of the Land Acquisition Act, passed an Award. Evidence was adduced in that case that Government took possession of the property and later handed over the same to the Rural Institute. The original owners put forward a contention that the land acquisition proceedings are invalid, for, they were never dispossessed, and further, the Rural Institute also had no title to the property. It was further said that they have prescribed title against the Rural Institute also, in that regard, the Supreme Court said that the records of the Government show that the real owners were dispossessed by virtue of the Award under the Land Acquisition Act. But, in regard to possession as against the Rural Institute, and whether the same was adverse, the Supreme Court said thus:
...The claim of the petitioners that they have perfected title by adverse possession was negatived by all the courts. No question of adverse possession arises unless it is pleaded and proved that after the possession was taken and handed over to the third respondent, the petitioners have asserted their own right to the knowledge of the third respondent and it had acquiesced in it and remained in unintenupted possession and enjoyment....
[Italics supplied]
18. In Abubakar Abdul Inamdar (dead by L.Rs. and Ors. v. Harun Abdul Inamdar and Ors. , the Supreme Court stated thus:
With regard to the plea of adverse possession, the appellant having been successful in the two courts below and not in the High Court, one has to turn to the pleadings of the appellant in his written statement. There he has pleaded a duration of his having remained in exclusive possession of the house, but nowhere has he pleaded a single overt act on the basis of which it could be inferred or ascertained that from a particular point of time his possession became hostile and notorious to the complete exclusion of other heirs, and his being in possession openly and hostilely. It is true that some evidence, basically of Municipal register entries, were inducted to prove the point but no amount of proof can substitute pleadings which are the foundation of the claim of a litigating party. The High Court caught the appellant right at that point and drawing inference from the evidence produced on record, concluded that correct principles relating to the plea of adverse possession were not applied by the courts below. The finding, as it appears to us, was rightly reversed by the High Court requiring no interference at our end.
[Italics supplied] Law recognises acquisition of property only through lawful means. But an exception is given where there is acquisition of title by prescription. Being an exception, it is for the person claiming it to prove to the satisfaction of the court that there was a hostile title and the person remained silent even after knowing about the hostility. Mere silence or keeping animus in mind cannot make the title lost to the real owner.
19. Learned Counsel submitted that even though in Exs.A-12 to A-14, he has given deposition on behalf of the real owners, even on that date, 12 years have elapsed from the date of Ex.A-3 and, therefore, nothing turns on those deposition or there is no interruption in his possession.
20. The said contention has no force. As stated earlier, Exs.A-12, A-13 and A-14 can be relied on for the purpose of saying that till that date, the defendants did not have the necessary animus to hold the property against the real owners. Therefore, there cannot be any prescription on that date.
21. From the above discussion and also on the basis of the law declared by the Supreme Court, it can safely be concluded that except for the fact that the defendant had possession of the property, they did not have the animus to hold the same against the plaintiffs or their predecessors. Inference can be drawn from the proved circumstances and also admitted circumstances that the defendants are in possession on the basis of some arrangement or permission, granted by the predecessors of the plaintiffs.
22. We find that before the institution of the suit, the defendants attempted to get patta for the property, and when the plaintiffs came to know about it, they immediately initiated action for recovery of possession.
23. In the result, confirming the judgment of the lower appellate court, I dismiss the second appeal with costs.