Madras High Court
N.Thirugnanasambandam vs R.Sundararaj on 26 April, 2012
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 26-04-2012
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
S.A.No.279 of 2010
and
M.P.(MD)No.1 of 2010
1.N.Thirugnanasambandam
2.Kishore @ Subburathinam : Appellants/Defendants 1 & 2
vs.
1.R.Sundararaj
2.Aswathammal : Respondents/Plaintiff/
3rd defendant
Prayer: This second appeal is filed under section 100 of the Civil Procedure Code, against the judgment and decree passed in A.S.No.169 of 2006 on the file of the III Additional District Judge, Pondicherry, dated 22.07.2009 confirming the judgment and decree passed in O.S.No.170 of 1995 on the file of Additional Sub-Judge, Pondicherry, dated 23.12.1998.
For appellants : Mrs.Hema Sampath
Senior Counsel
for Mr.R.Meenal
For Respondents : Mr.D.Murugesan
Senior Counsel
for Mr.D.Ravichander
JUDGMENT
The defendants 1 and 2 are the appellants. The first respondent filed the suit for mandatory injunction directing the defendants to deliver possession of the suit property and for damages.
2.The case of the first respondent is that the property originally belonged to Nataraja Mudaliar @ Natesa Mudaliar and he sold the suit property to the father of the first respondent by name, Krishnasamy Chettiar under a registered sale deed, dated 13.08.1975 and the said Krishnasamy Chettiar also purchased the property with a view to annex the said property along with his property, which is situate south of the property purchased by him and due to some reasons, he was not able to annex the property, which he purchased from Nataraja Mudaliar and Nataraja Mudaliar requested the Krishnasamy Chettiar to permit him to use the property and therefore, Krishnasamy Chettiar permitted Nataraja Mudaliar to use the property and on the basis of the license given by Krishnasamy Chettiar, Nataraja Mudaliar was using the property and Krishnasamy Chettiar died in the year 1990 and there was a partition among his legal-heirs and the suit property was allotted to the share of the first respondent and that was also evidenced by the registered partition deed executed in the year 1995. It is further stated that Nataraja Mudaliar died after the death of Krishnasamy Chettiar and his son, the first appellant herein, continued to remain in possession of the property as licensee and the first respondent requested the first appellant to vacant and hand over the vacant possession and as the first appellant was giving evasive reply, the license granted in favour of the first appellant was revoked and the first respondent issued notice demanding vacant possession and also claimed Rs.750/- per month as damages for the use and occupation and the first respondent received the notice and did not send any reply and therefore, the suit was filed for mandatory injunction directing the first appellant to deliver vacant possession and for mesne profit.
3.The first appellant filed written statement stating that the sale deed, dated 13.08.1975 executed in favour of Krishnasamy Chettiar was a sham and nominal document and it was not given effect to and he further stated that no consideration was passed and Krishnasamy Chettiar did not take possession of the property and the property was in the possession of Nataraja Mudaliar and Nataraja Mudaliar was not in possession as licensee or with the permission of Krishnasamy Chettiar and the suit property along with the remaining properties were in exclusive possession of Nataraja Mudaliar and he was not enjoying the property as a tenant. After the death of Nataraja Mudaliar, the property was enjoyed by the widow of Nataraja Mudaliar and thereafter, his son the second appellant herein, came in possession of the property and the second appellant is also enjoying the property openly and adversely and hostile to the knowledge of the whole world, including the first respondent and his father over a statutory period and also prescribed title by adverse possession over the suit property and the properties were leased out to one Shanmuganathan by Nataraja Mudaliar and as the tenant, Shanmuganathan filed HR.C.O.P.No.54 of 91 for fixation of fair rent and the Nataraja Mudaliar executed a Will in favour of his wife Saraswathiammal bequeathing his properties and the widow of Nataraja Mudaliar, namely Saraswathiammal executed a Will in favour of the second appellant, bequeathing all the properties she got under the Will from Nataraja Mudaliar and therefore, the second appellant is the owner of the property.
4.On the basis of the statement made in the written statement, the second appellant as well as the second respondent herein were impleaded, pursuant to the order passed in I.A.No.2101 of 1996 and the second appellant as 2nd defendant filed statement reiterating the stand taken by the first appellant and further submitted that the first appellant filed O.S.No.166 of 1975 on the file of the Additional Subordinate Judge, Pondicherry, for partition and separate possession of his half share in the properties belonging to Nataraja Mudaliar and in that suit, the suit property was allotted to the share of Nataraja Mudaliar and Nataraja Mudaliar never used the suit property as a licensee of Krishnasamy Chettiar and he was enjoying the property as his own and he executed a registered Will in favour of his wife Saraswathiammal on 30.04.1979 and Sarawathiammal became the owner of the property under the Will and thereafter, Saraswathiammal executed a Will, dated 29.08.1990 in favour of her son and therefore, he became entitled to the property and the suit is also barred by limitation as he was impleaded only on 29.11.1996 and as per section 21 of the Limitation Act, the suit ought to have been initiated against him only on 29.11.1996 and he is in possession in his property for more than the statutory period and therefore, the suit is also barred by limitation.
5.The learned trial Judge held that the sale deed in favour of Krishnasamy Chettiar was not a sham and nominal document and as per French Law Limitation, the limitation period is 30 years and the sale deed in favour of Krishnasamy Chettiar is, dated 13.08.1975 and the suit was filed on 09.06.1995 and as per the provision of Pondicherry Limitation (Repeal of Local Laws) Act, which came into effect with effect from 1895, suits based on longer period of French Law limitation, should have been filed within one year from the date of commencement of the special enactment that is on or before 29.02.1996 and the suit was filed on 09.06.1995 well within the period of limitation. The learned trial Judge further held that though the second appellant/2nd defendant was impleaded as 2nd defendant, by virtue or order passed in I.A.No.2106 of 1996, dated 29.11.1996, the first respondent in good faith did not implead the second appellant, as he was not aware of the Wills alleged to have been executed by Nataraja Mudaliar and his widow as claimed by the appellants and as the first appellant was the son of Nataraja Mudaliar and he was in possession of the property, he was impleaded and therefore, after the written statement filed by the first appellant/first defendant, he came to know that the 2nd defendant was also claiming right over the property and therefore, he filed I.A.No.2106 of 1996 to implead and the second appellant was impleaded latter on 29.09.1996 and non-impleading of the second appellant was in good faith and therefore, as per 21 of the Limitation Act, the second appellant is deemed to have been impleaded from the date of institution of the suit and therefore, the suit is not barred by limitation and further held that the first respondent did not prove that Nataraja Mudaliar was put in possession as licensee. Nevertheless, as Krishnasamy Chettiar was the real owner of the property by virtue of Ex.A1 Sale Deed, the first respondent is entitled to the relief of recovery of possession and the appellants have not prescribed title over the suit property and though, the suit was filed for mandatory injunction, necessary court fee was paid on the value of the property and therefore, it can be construed as suit for recovery of possession and decreed the suit as prayed for.
6.The learned first appellate court also after appreciating the facts, confirmed the judgment of the trial court holding that Ex.A1 sale deed in favour of Krishnasamy Chettiar was not a sham and nominal document and the appellants have not proved their adverse possession.
7.The following substantial question of law was framed at the time of admission:-
Whether the suit is barred by Article 65 of the Limitation Act as regards the period of impleading of the second appellant?
8.Mrs.Hema Sampath, learned senior counsel appearing for the appellants submitted that both the courts below erred in holding that the Pondicherry Law Limitation applies to the facts of this case and therefore, the suit was filed well within the time, without appreciating the judgment of the Honourable Supreme Court reported in (2001)4 SCC 713 in the case of Syndicate Bank vs. Prabha D.Naik and another.
9.The learned Senior counsel further submitted that the courts below also erred in holding that the sale deed Ex.A1 in favour of Krishnasamy Chettiar was not sham and nominal document and it was acted upon, without appreciating Ex.B11 to B24, the house tax receipts filed by the appellants to prove that they are in possession of the property in their own independent right and not as licensee of Krishnasamy Chettiar and the property was dealt by Nataraja Mudaliar as his own property and that is evident by the decree passed in the partition suit in O.S.No.166 of 1975, dated 18.11.1998 (Ex.B1) and the final decree passed in that suit Ex.B2 and also the order passed in E.P.No.82 of 1994 in O.S.No.166 of 1975 Ex.B7, by which the possession was taken by the first appellant and the HRCOP No.54 of 1991 filed by one Shanmuganathan therein against the first appellant and two others, the Wills executed by Nataraja Mudaliar and Saraswathiammal and those exhibits would prove that the property was in possession and enjoyment of the appellants in their own independent right and not as a licensee and the trial court having held that the first respondent failed to prove the licensor-licensee relationship between Krishnasamy Chettiar and Nataraja Mudaliar, ought to have held that the suit was barred by limitation and the appellants perfected title by adverse possession as the suit was filed only on 19.06.1995, i.e. after twenty years after the execution of the sale deed Ex.A1.
10.The learned Senior counsel further submitted that the courts below erred in holding that under section 21 of the Limitation Act, when a person was not impleaded due to good faith, he was deemed to have been impleaded from the date of institution of the suit, though he was impleaded at the latter point of time and the said finding is against the provision of section 21 of the Limitation Act and the judgment of the Honourable Supreme Court, reported in AIR 1993 SUPREME COURT 271 in the case of Munshi Ram vs. Narsi Ram and another and the courts below without properly appreciating the judgment reported in AIR 1983 SUPREME COURT 271 [Munshi Ram vs. Narsi Ram and another], erred in holding that even though the second appellant was impleaded on 29.11.1996, he was deemed to have been impleaded on the date of filing of the suit and therefore, the suit was not barred by limitation.
11.The learned Senior counsel appearing for the appellants also relied upon the following judgments:-
01.1946-I-MLJ-87 in the case of Paluru Ademma vs. Achala Penchelu Reddi]
02.AIR 1960 ANDHRA PRADESH 98 [FB] in the case of Ongole Byragi Mutt, Ongole and others vs. Inala Kannayya and others.
03.A.I.R.(32)1945 Nagpur 57, in the case of Praful Kumar vs. Gajendra Singh.
04.AIR 1967 SUPREME COURT 278, in the case of Ramprasad Dagaduram vs. Vijakumar Motilal Hirakhanwala and others.
05.AIR 1981 PUNJAB AND HARYANA 196 in the case of Bhawani Dass vs. Kaushalya Rani.
06.AIR 1993 SUPREME COURT 2324 in the case of Karuppaswamy and others vs. Ramamurthy.
in support of his contention that under section 21 of the Limitation Act, a suit in the absence of any order passed by the court, while ordering impleading of a new party stating that such person shall be deemed to have been impleaded from the date of institution of the suit, such persons became parties to the suit only from the date of impleadment and therefore, the suit was barred as against the second appellant.
12.On the other hand, Mr.D.Murugesan, the learned Senior counsel appearing for the first respondent submitted that as per Pondicherry Limitation (Repeal of local Laws) Act, suits based on longer period of French Law of limitation should have been filed within one year from the date of commencement of the said special enactment i.e. on or before 29.02.1996 and as per the French law of limitation applicable to Pondicherry and as per Article 2262 of the French Code Civil, a suit for recovery of possession on the basis of title can be filed within 30 years and Ex.A1, sale deed is dated 13.08.1985 and the suit was filed on 09.06.1995 and the suit could have been filed on or before 29.02.1996 and therefore, the trial Judge rightly held that the suit is not bared by limitation and section 21 cannot be applied to the facts of this case, as the second appellant is not a stranger and he is the son of the first appellant and the suit was filed against the first appellant, as he is in possession of the property and only after the statement filed by the first appellant stating that the second appellant was claiming independent right under the Will, the second appellant was impleaded and the non-impleadment of the second appellant, at the time of filing of the suit was due to good faith and that was rightly considered by the learned trial Judge and hence, that suit was also not barred under section 21 of the Limitation Act.
13.The learned Senior counsel appearing for the first respondent further submitted that once the sale deed has been held to be a valid document, the title passed to Krishnasamy Chettiar under Ex.A1 and any person claiming adverse possession must prove that he was in possession of the property in his independent right and even though, the learned trial Judge held that the first respondent did not prove the licensor-licensee relationship between the parties, in the absence of any proof adduced by the appellants that they are in possession of the property and enjoying the property in their independent right to the knowledge of the first respondent and his father, they cannot claim adverse possession. Further, the Wills though marked as Exs.B4 and B5 ought not to have been taken into consideration, as the said Wills were not proved by examining the attesting witnesses and therefore, the claim of the second appellant that he became the owner of the property under the Will cannot be accepted.
14.The learned Senior counsel appearing for the first respondent further submitted that the appellants cannot claim any right by adverse possession and also title by virtue of the Will and hence, the courts below rightly decreed the suit and hence, there is no need to interfere with the finding of the courts below.
15.To appreciate the contention of the learned Senior counsel appearing on both sides, we will have to find out which law of limitation applies to the parties.
16.Admittedly, the property is situate in Pondicherry and Article 2262 of the French Code Civil prescribes the period of thirty years for a suit for recovery of possession based on title. If the parties are governed by Article 2262 of the French Code Civil, which came into effect from 01.08.1995 and as per section 4 of the said amendment Act, the suit filed on or before 29.02.1996 is well within the time and on that basis, the courts below held that the suit was filed in the year 1995 well before 29.02.1996 and therefore, the suit was not bared by limitation. According to me, the finding of the courts below that the parties are governed by French Code Civil and the Limitation Act was not applicable to them, prior to 01.8.1995 is not correct, having regard to the law laid down by the Honourable Supreme Court in the judgment reported in (2001)4 SCC 713 in the case of Syndicate Bank vs. Prabha D.Naik and another]. In the above said judgment, the Hon'ble Supreme Court was dealing with the Portuguese Code Civil Law and wherein also the period of limitation prescribed is different from that of the period prescribed in the Law of Limitation 1963 and having regard to section 29(2) of the Limitation Act 1963, the Honourable Supreme Court held that after passing of the Limitation Act 1963, and after Goa became part of India, the Portuguese Code Civil stands repealed and the parties are governed by Indian Limitation Act, 1963. Therefore, after pronouncement of the judgment in the case of Syndicate Bank vs. Prabha D.Naik and another reported in (2001)4 SCC 713, it cannot be contended that the parties herein are governed by French Code Civil and as per the French Code Civil, 30 years period is prescribed for a suit for recovery of possession, based on title and as per Pondicherry Limitation (Repeal of Local Laws) Act, a suit filed on or before 29.02.1996 is well within the time and therefore, the suit is filed within time cannot be accepted. According to me, the Indian Limitation Act alone will apply to the parties and they are governed by Indian Limitation Act and therefore, we will have to see whether the appellants have prescribed title to the suit property by virtue of adverse possession as claimed by them.
17.It is settled law that when a person claims title under adverse possession, the burden is on him to prove that he prescribed title by adverse possession and he is in open and continuous possession of the property for more than 12 years and his possession is also hostile to the knowledge of the real owner. Further, adverse possession commences in wrong and perfected by long and continuous possession of the property for over the statutory period of 12 years and hostile to the knowledge of the real owner. Further, when a person claims adverse possession, he must admit that he is not the owner and the other is the owner and he is enjoying the property as a real owner to the knowledge of the true owner.
18.In a Suit for recovery of possession based on title, once the Plaintiff' proves his title to the suit property, he is entitled to the decree of recovery of possession, unless the Defendant pleads and proves adverse possession. Once the Plaintiff establishes his title a duty is cast upon the Defendant to prove that he has prescribed title by adverse possession over the suit property. To prove adverse possession, the conduct of the Defendant and the treatment of the suit property by the Defendant are important. If the Defendant has enjoyed the suit property as owner of the suit property, he cannot claim adverse possession. Similarly, if the Defendant is enjoying the suit property for more than a statutory period, but did not enjoy the property to the knowledge of the true owner, in that case also, he cannot claim adverse possession.
19.The Hon'ble Supreme Court in the judgment reported in AIR 2004 SC 3782 in the case of Amrendra Pratap Singh vs. Tej Bahadur Prajapati and others, held as follows:-
20.The law laid down by this Court is an authority for the proposition that the Court shall step in and annul any such transaction as would have the effect of violating a provision of law, more so when it is a beneficial piece of social legislation. A simple declaratory decree passed by a Civil Court which had the effect of extinguishing the title of a member of a Scheduled Tribe and vesting the same in a non-member, was construed as 'transfer' within the meaning of S. 165(6) of the M.P. Land Revenue Code, 1959. Thus, we are very clear in our minds that the expression 'transfer of immovable property' as defined in Cl. (f) of para 2 of the 1956 Regulations has to be assigned a very wide meaning. Any transaction or dealing with immovable property which would have the effect of extinguishing title, possession or right to possess such property in a tribal and vesting the same in a non-tribal, would be included within the meaning of 'transfer of immovable property.'
21.In a series of decisions, the High Court of Madhya Pradesh has been consistently taking this view. To wit, see Jagdish v. State of Madhya Pradesh, AIR 1993 MP 132; Wajeram v. Kaniram, 1992 Revenue Nirnaya 270; Dinesh Kumar and another v. State of Madhya Pradesh, 1995 Revenue Nirnaya 358.
22.What is adverse possession? Every possession is not, in law, adverse possession. Under Art. 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of 12 years calculated from the date when the possession of the defendant becomes adverse to the plaintiff. By virtue of S.27 of the Limitation Act at the determination of the period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter's title. It is that extinguished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. Inaction for a period of 12 years is treated by the Doctrine of Adverse Possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possessions.
23.The nature of the property, the nature of title vesting in the rightful owner, the kind of possession which the adverse possession is exercising, are all relevant factors which enter into consideration for attracting applicability of the Doctrine of Adverse Possession. The right in the property ought to be one which is alienable and is capable of being acquired by the competitor. Adverse possession operates on an alienable right. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor and yet sits idle. Such inaction or default in taking care of one's own rights over property is also capable of being called a manner of 'dealing' with one's property which results in extinguishing one's title in property and vesting the same in the wrong doer in possession of property and thus amounts to 'transfer of immovable property' in the wider sense assignable in the context of social welfare legislation enacted with the object of protecting a weaker section.
20.The law of adverse possession has been thoroughly discussed in the judgment reported in Veerasekaran v. Devarasu, 2008 (7) MLJ 275, wherein the learned Judge, after quoting various judgments of the Hon'ble Supreme Court has held as follows:-
A person who claims title to the property by adverse possession must definitely allege and prove:
(I) how and when adverse possession commenced, (II) what was the nature of his possession, and (III) whether the fact of his adverse possession was known to the real owner. The Learned Judge also held as follows:
To base a claim of adverse possession, it is not enough to allege that one is in possession of the land. Ingredients of adverse possession must be established.
21.In a judgment reported in the case of T. Anjanappa v. Somalingappa, 2006 (5) CTC 378 (SC) : 2006 (7) SCC 570, the Hon'ble Supreme Court has held has follows:-
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 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.
Where possession could 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 averse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful ti tle, cannot divest another of that title, by pretending that he had no title at all.
22.In the judgment reported in Kannappan v. Pargunand, 2000 (2) CTC 219, this Court has held that a party can contend adverse possession only when he admits that another person has got title and that person cannot claim adverse possession, when he also claims title to the suit property. Further, in the judgment reported in the case of Karnataka Board of Wakf v. Government of India, 2004 (10) SCC 779, the Hon'ble Supreme Court has held as hereunder:-
Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person, who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession
23.In the judgment reported in the case of L.N. Aswathama and another v. P. Prakash , 2009 (13) SCC 229, the Hon'ble Supreme Court has held as hereunder:-
The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi . The plea based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possession the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence.
24.In the judgment reported in the case of P.T. Munichikkanna Reddy v. Revamma, 2007 (6) SCC 59, the Hon'ble Supreme Court has held as follows:-
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 get communicated to the paper-owner of the property. This is where the law gives important to hostility and openess 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
25.In the judgment reported in the case of Saroop Singh v. Banto, 2005 (8) SCC 330, the Hon'ble Supreme Court has held as follows:-
In terms of Article 65, the starting point of limitation does not commence from the date when the right of ownership arises to the Plaintiff but commences from the date the Defendant's possession becomes adverse.
Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the Appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus .
26.Further, as per the judgment reported (2008)15 SCC 150, in the case of Kurella Naga Druva Vudaya Bhaskara Rao vs. Galla Jani Kamma, when the defendant contends that the plaintiff is not the true owner, he has to prove his hostile possession not only against the plaintiff, but also against the true owner and as per the judgment reported in 2009(5) CTC 558 in the case of S.Ganesan vs. Bharathirajan, plea of adverse possession and claim of title cannot go together. In the judgment reported in 2010(5) MLJ 491, in the case of Rajamanickam @ Kamal Basha vs. Mohammed Yassin, this court throughly discussed the law of adverse possession and the law applicable to Pondicherry. In the judgment reported in 2011(3) LW 789 in the case of K.Gopalan (died) & others vs.Muthulakshmi, I also elaborately discussed the law of adverse possession. In the judgment reported in (2011)10 SCC 404 in the case of State of Haryana vs. Mukesh Kumar and others, the Hon'ble Supreme Court criticized the claim of title by adverse possession as follows:-
27.In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan5 (one of us Bhandari, J.), this Court had an occasion to examine the English and American law on adverse possession. The relevant paragraphs of that judgment (para 24) are reproduced as under: (SCC pp.525-26) 24. In a relatively recent case in P.T. Munichikkanna Reddy v. Revamma6 this Court again had an occasion to deal with the concept of adverse possession in detail. The Court also examined the legal position in various countries particularly in English and American systems. We deem it appropriate to reproduce relevant passages in extenso. The Court dealing with adverse possession in paras 5 and 6 observed as under: (SCC pp.66-67) 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 [100So2d 57(Fla 1958], Arkansas Commemorative Commission v. City of Little Rock [227 Ark 1085;303 SW 2d 569(1957], Monnot v. Murphy9 and City of Rock Springs v. Sturm [39Wyo 494:273 P 908:97 ALR (1929].
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. (emphasis in original)
31.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 adverse possession. Though we got this law of adverse possession from the British, it is important to note that these days the English courts are taking a very negative view towards the law of adverse possession. The English law was amended and changed substantially to reflect these changes, particularly in light of the view that property is a human right adopted by the European Commission.
32.This Court in Revamma [(2007)6 SCC 59] observed that to understand the true nature of adverse possession, Fairweather v. St. Marylebone Property Co. Ltd.[1963 Advocate Commissioner 501:(1962)2 WLR 1020: (1962)2 ALLER 288(HL)] can be considered where the House of Lords referring to Taylor v. Twinberrow[ (1930)2 KB 16: 1930 All ER Rep 342(DC)] termed adverse possession as a negative and consequential right effected only because somebody elses positive right to access the court is barred by operation of law. As against the 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.
33.The right to property is now considered to be not only a constitutional or statutory right but also a human right. Human rights have already been considered in the realm of individual rights such as the right to health, right to livelihood, right to shelter and employment, etc. But now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even the claim of adverse possession has to be read in that context.
34.The changing attitude of the English courts is quite visible from the judgment of Beaulane Properties Ltd. v. Palmer [(2005)3WLR 554: (2005)4 All ER 461). The Court here tried to read the human rights position in the context of adverse possession. But what is commendable is that the dimensions of human rights have widened so much that now property dispute issues are also being raised within the contours of human rights. With the expanding jurisprudence of the European Courts of Human Rights, the Court has taken an unkind view to the concept of adverse possession.
35. Paras 26-29 of Hemaji Waghaji Jat [(2009)16 SCC 517] are set out as under: (SCC pp.526-28) 26. With the expanding jurisprudence of the European Court of Human Rights, the Court has taken an unkind view to the concept of adverse possession in the recent judgment of JA Pye (Oxford) Ltd. v. United Kingdom14 which concerned the loss of ownership of land by virtue of adverse possession. In the said case, the applicant company was the registered owner of a plot of 23 hectares of agricultural land. The owners of a property adjacent to the land, Mr and Mrs Graham (the Grahams) occupied the land under a grazing agreement. After a brief exchange of documents in December 1983 a chartered surveyor acting for the applicants wrote to the Grahams noting that the grazing agreement was about to expire and requiring them to vacate the land. The Grahams continued to use the whole of the disputed land for farming without the permission of the applicants from September 1998 till 1999. In 1997, Mr Graham moved the Local Land Registry against the applicant on the ground that he had obtained title by adverse possession. The Grahams challenged the applicant companys claims under the Limitation Act, 1980 (the 1980 Act) which provides that a person cannot bring an action to recover any land after the expiration of 12 years of adverse possession by another.
27.The judgment was pronounced in JA Pye (Oxford) Ltd. v. Graham [2000 Ch 676:(2000)3WLR 242]. The Court held in favour of the Grahams but went on to observe the irony in law of adverse possession. The court observed that the law which provides to oust an owner on the basis of inaction of 12 years is illogical and disproportionate. The effect of such law would seem draconian to the owner and a windfall for the squatter. The court expressed its astonishment on the prevalent law that ousting an owner for not taking action within limitation is illogical. The applicant company aggrieved by the said judgment filed an appeal and the Court of Appeal reversed the High Court decision. The Grahams then appealed to the House of Lords, which, allowed their appeal and restored the order of the High Court.
28.The House of Lords in JA Pye (Oxford) Ltd. v. Graham16 observed that the Grahams had possession of the land in the ordinary sense of the word, and, therefore, the applicant company had been dispossessed of it within the meaning of the Limitation Act of 1980.
29.We deem it proper to reproduce the relevant portion of the judgment in P.T. Munichikkanna Reddy v. Revamma6: (SCC p. 79, paras 51-52) 51. Thereafter the applicants moved the European Commission of Human Rights (ECHR) alleging that the United Kingdom law on adverse possession, by which they lost land to a neighbour, operated in violation of Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention).
52. It was contended by the applicants that they had been deprived of their land by the operation of the domestic law on adverse possession which is in contravention with Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), which reads as under:
Every natural or legal person is entitled to the peaceful enjoyment of his possession. No one shall be deprived of his possession except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. This Court in Revamma case6 also mentioned that the European Council of Human Rights importantly laid down three-pronged test to judge the interference of the Government with the right of peaceful enjoyment of property: (SCC p. 79, para 53)
53. [In] Beyeler v. Italy17 it was held that the interference should comply with the principle of lawfulness and pursue a legitimate aim (public interest) by means reasonably proportionate to the aim sought to be realised. The Court observed: (Revamma case6 SCC pp. 79-80, paras 54-56) 54. The question nevertheless remains whether, even having regard to the lack of care and inadvertence on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorised possession struck a fair balance with any legitimate public interest served.
In these circumstances, the Court concludes that the application of the provisions of the 1925 and 1980 Acts to deprive the applicant companies of their title to the registered land imposed on them an individual and excessive burden and upset the fair balance between the demands of the public interest on the one hand and the applicants right to the peaceful enjoyment of their possessions on the other.
There has therefore been a violation of Article 1 of Protocol 1.
55. The question of the application of Article 41 was referred to for the Grand Chamber Hearing of the ECHR. This case sets the field of adverse possession and its interface with the right to peaceful enjoyment in all its complexity.
56. Therefore it will have to be kept in mind that the courts around the world are taking an unkind view towards statutes of limitation overriding property rights. (emphasis in original)
36.In Hemaji Waghaji Jat case5 this Court ultimately observed as under: (SCC p. 529, paras 32-33) 32. Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.
33. We fail to comprehend why the law should place premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation. Bearing these principles in mind, we will have to see whether the second appellant proved the adverse possession.
28.The case of the appellant is that the sale deed Ex.A1 was a sham and nominal document and title never passed and an explanation was given that to defeat the creditors, Nataraja Mudaliar executed a document in favour of Krishnasamy Chettiar and no consideration was passed, Nataraja Mudaliar did not part with possession and therefore, the sale deed was only a sham and nominal document.
29.It is further submitted by the learned Senior counsel for the appellants that it is proved by the appellants that there were debtors and that was also made clear in S.A.No.637 of 1982 (Ex.B6) and therefore, when there were debtors and only to defeat the rights of the creditors, the sale deed Ex.A1 was executed and therefore, the courts below erred in holding that the sale deed was not a sham and nominal document. According to me, both the courts below rightly held that the sale deed Ex.A1 was not a sham and nominal document. In order to prove that the document is a sham and nominal, the parties who alleges such plea must prove that possession was not parted with, no consideration was passed and the sale deed continues to be with the vendor and not with the vendee and the property was dealt with by the vendor as his own property, even after the said sale. In this case, Ex.A1 original sale deed was produced by the first respondent and no explanation was given by the appellants for the non-production of original sale deed Ex.A1. If the document was a sham and nominal document, definitely the vendor would not have handed over the sale deed to the purchaser and the sale deed would be only with the custody of the vendor. A reading of Ex.A1 would also make it clear that it cannot be a sham and nominal document and in Ex.A1 the title of Nataraja Mudaliar was traced and it was stated that the sale property was conveyed for consideration of Rs.15,100/- and it was further stated that possession was also handed over under the document and all the necessary recitals, which are normally mentioned in the sale deed, are incorporated in the Ex.A1. Therefore, having regard to the recitals in Ex.A1 and the custody of the original sale deed with the first respondent would prove that Ex.A1 was not a sham and nominal document.
30.It was contended by the learned Senior counsel appearing for the appellants that even though, the custody of the document was with the first respondent, the second respondent herein, who was the daughter of Nataraja Mudaliar to defeat the rights of the appellants gave the original document to the plaintiff and further contended that the house tax receipts Exs.B11 and B24 are all in the name of Nataraja Mudaliar and house tax were paid from 1991 till 1998 by Nataraja Mudaliar and the first appellant and therefore, these documents would prove that Nataraja Mudaliar was in possession of the property not as licensee but as the real owner and if the title had passed to Krishnasamy Chettiar under Ex.A1, he would have applied for mutation of the names with the Municipal Corporation and therefore, in the absence of any mutation of name in favour of the first respondent and having regard to Exs.B11 to B24, it is proved by the appellants that the document is a sham and nominal document.
31.The arguments of the learned Senior counsel appearing for the appellants cannot be accepted for the following reasons:-
1.Ex.A1 is dated 13.08.1975.
2.Exs.B11 to B24 are the house tax demand receipts and payment of house tax from the year 1991 to till 1998.
32.Of course, Exs.B11 to B24 are in the name of Nataraja Mudaliar. According to me, merely because the property continued to be assessed in the name of vendor, it cannot be presumed that the document, namely the sale deed is a sham and nominal document and no consideration was passed and no title passed under the document. In addition, to the payment of house tax receipts, something more has to be proved by the person, who claims that the document is only sham and nominal and no title passed under the document. Admittedly, the first appellant is the son of Nataraja Mudaliar and the second appellant is the grand-son and they are not strangers and according to the case of the first respondent that even after the sale, Krishnasamy Chettiar allowed Nataraja Mudaliar to be in possession of the property and admittedly, Nataraja Mudaliar and his sons were in the possession of the property and therefore, the payment of house tax will not lead to the conclusion that the document is a sham and nominal document. Similarly, the partition suit O.S.No.166 of 1975 and the decree passed in that suit as evidenced by Exs.B1, B2, B6 and B7 would not also prove that the suit property was dealt with under the partition suit and the property was allotted to the share of the first appellant or Nataraja Mudaliar. Admittedly, the entire property is in 'T' shape and the property dealt with under Ex.A1 is situate south of the left arm of 'T' shape and the entire property, namely the 'T' shape property is having one door number and admittedly, there is no evidence to prove that the tenant was in possession of the portion conveyed to the first respondent's father and he filed HRCOP No.54 of 1991 in respect of that portion. The schedule of property stated in Exs.B1, B2, B7 and B8 would only state the door No.114 and according to the first respondent, an extent of 25 x 8-1/2 feet was conveyed under Ex.A1 and in the documents Exs.B1, B2 and B7 only door No.114 is mentioned and the boundary recitals in Exs.B1 and B7 would also make it clear that the suit property would not have been dealt with under those proceedings. Admittedly, the father of the first respondent, Krishnasamy Chettiar is having property on the northern side of the Jawahar Street and that property is situate south of the left arm to 'T' shaped portion. In other words, the northern boundary of the property owned by Krishnasamy Chettiar prior to Ex.A1 is left arm portion of 'T' shaped property. While describing door No.114 in Ex.B1, it is only stated that the property is situated north of the Jawahar Street and the portion owned by Krishnanasamy Chettiar was not mentioned. Therefore, having regard to the recitals in Exs.B1 and B7, it cannot be stated that the property conveyed under Ex.A1 was also dealt with by Nataraja Mudaliar and his son under Exs.B1 and B2 and B7.
33.Further, no document was filed to prove that their possession prior to 1991 and therefore, in the absence of any proof for asserting the possession as owners prior to 1991 and having regard to the production of Ex.A1 by the first respondent and having regard to the recitals in Ex.A1, I am of the view that the courts below rightly held that Ex.A1 was not a sham and nominal document and under Ex.A1, title passed to Krishnasamy Chettiar. Once title passed to Krishnasamy Chettiar, he became the owner of the property and the appellants have to prove that they prescribed title by adverse possession and in this case, as stated supra, they have not proved that they have perfected title by adverse possession and they also cannot claim adverse possession as they are claiming title to the suit property from Nataraja Mudaliar. Therefore, as per the Honourable Supreme Court judgments referred to above, a person who claims title cannot claim adverse possession, unless he renounces his title to the suit property and there is no evidence that the appellants were enjoying the suit properties to the knowledge of the first respondent as owners and they denied the title of the fist respondent.
34.It is the further contention of the learned Senior counsel appearing for the appellants that under section 21 of the Limitation Act, a person who was impleaded at a latter point of time in a suit shall be deemed to have been impleaded from the date on which the order was passed in that application and he was not deemed to be impleaded from the date of institution of plaint, unless he was omitted to be impleaded earlier due to bona fide mistake and an order has been passed by the court, which allow the application to implead him a a party. According to me, the contention of the learned Senior counsel appearing for the appellants is correct and as per section 21 of the Limitation Act, any party substituted at a latter stage in the suit shall be deemed to have been made party only from the date on which he was ordered to be impleaded, unless the omission was due to bona fide mistake and a specific order has been passed by the court and in that respect, it is also held in the judgment reported in AIR 2001 SC 1185 in the case of RamalingamChettiar vs. P.K.Pattabiraman. Therefore, the second appellant herein shall be deemed to have been impleaded only from the date on which the order was passed in I.A.No.2106 of 1996. Nevertheless, the suit is not barred as against the second appellant as the second appellant is also claiming that he is in possession of the property as the owner and he also did not recognize the title of the first respondent or his father. Therefore, having regard to the principles laid down by the Hon'ble Supreme Court as stated supra, when a person claims title to the suit property, he cannot claim title by adverse possession and therefore, the appellants cannot claim adverse possession. Therefore, I hold that the suit is not barred by Article 65 of the Limitation Act even as against the second appellant and the substantial questions law is answered against the appellant.
35.In the result, the second appeal is dismissed and the judgments and decrees of the courts below are confirmed. No costs.
26.04.2012 Index;Yes.
Internet:Yes.
er R.S.RAMANATHAN.J er Pre-delivery judgment made in S.A.No.279 of 2010 26.04.2012