Madras High Court
Samayana Thevar vs Abdul Razack on 17 September, 2010
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17/09/2010
CORAM
THE HONOURABLE MS.JUSTICE R.MALA
S.A.No.648 of 1999
Samayana Thevar .. Appellant
Vs.
1. Abdul Razack
2. Selva Mohammed .. Respondents
Second Appeal against the judgment and decree dated 16.11.1998 in A.S.No.1
of 1998 on the file of the Subordinate Court, Sivagangai, confirming the
judgment and decree dated 15.4.1996 in O.S.No.209 of 1993 on the file of the
District Munsif Court, Manamadurai.
!For appellant ... Mr.A.Sivaji
^For respondents... Mr.K.Govindarajan
****
:JUDGMENT
The Second Appeal is filed by the third defendant against the judgment and decree dated 16.11.1998 in A.S.No.1 of 1998 on the file of the Subordinate Court, Sivagangai, confirming the judgment and decree dated 15.04.1996 in O.S.No.209 of 1993 on the file of the District Munsif Court, Manamadurai.
2. The averments in the plaint are as follows:
The respondents/plaintiffs purchased the suit property from one Samayana Thevar/father of the defendants on 1.7.1967. From that date onwards they are in possession and enjoyment of the suit property. Since the property is not fit for cultivation, they are enjoying the fruits of Palm tree situated in the suit property. The re-survey proceedings in patta No.500 has been granted in favour of the plaintiffs. At that time, he came to know that the boundaries are not correlated with Survey No.169/6. Hence, he approaches the revenue officials. The correct survey No.169/11A has been given in favour of this third defendant who is none other than the son of vendor of the suit property. When he approached, the defendants wantonly avoiding to change the patta in favour of the plaintiffs. From the date of purchase, the respondents/plaintiffs are in possession and enjoyment of the property situated in Survey No.169/11A. But in the sale deed, it was mentioned as 169/6. The defendants 1 and 2 Attestors of the sale deed executed in favour of the respondents/ plaintiffs. The appellants/defendants are estopped from questioning the same. The respondents/plaintiffs constrained to file the suit for declaration of title to the suit property and for consequential permanent injunction alternatively for the recovery of possession and prayed for decree.
3. The gist and essence of the written statement filed by the third defendant are as follows:
The suit property is absolutely belongs to this defendant/appellant. The respondents/plaintiffs never in possession and enjoyment of the suit property and patta has been given in his name. The revenue records clearly proved that the respondents/plaintiffs were not in possession of the suit property. In the sale deed, it contains survey No.169/6. Patta also transferred in the name of the respondents/plaintiffs in respect of the property bearing survey No.169/6. The respondents/plaintiffs never in possession and enjoyment of the property in survey No.169/11A. No mutation of revenue records has been done. Since the sale deed contain incorrect boundary, now the respondents/plaintiffs want to take advantage and claiming property situated at survey No.169/11A, but that property has not been sold in favour of the respondents/plaintiffs. So, the respondents/plaintiffs are not the owner of the property. The appellant/third defendant was in possession and enjoyment of the suit property. The suit survey No.169/11A is originally belonging to Kandappa Devar. After his death, his two sons Samayana Devar, father of the defendants and Ramu Devar succeeded the suit property. They partitioned the property. The suit property was allotted to this defendant Samayana Devar. East of the suit property was allotted to Ramu Devar. Ramu Devar was in possession, after his death, his wife Irulayee was in possession and enjoyment of the suit property. Irulayee sold the property to one Sakaralingam. The suit property was in possession of the defendants 1 to 3 till the partition taken place in the year 1956. In the partition during the year 1956, the suit property was allotted to the appellant/ third defendant. In pursuance of that only mutation of revenue records has been made and sub division has been effected and patta has been issued under Patta No.419. After resurvey, the patta number has been changed as 163 which stands in the name of the appellant/third defendant. The appellant/third defendant has mortgaged the property with Tamilnadu Khadi and Industries Board and obtained loan and repaid the loan amount. So, the appellant/third defendant is in exclusive possession and he has also prescribed title by adverse possession. The suit is bad for misjoinder of necessary parties as the defendants 1 & 2 and 4 & 5 were unnecessary parties. No cause of action has arisen to lay the suit. Hence he prayed for dismissal of the suit.
4. The trial Court, after considering the averments both in the plaint and in the written statement and considering the arguments advanced by the learned counsel on either side, framed necessary issues and considering the oral and documentary evidence decreed the suit. Against that, the third defendant preferred the appeal which was dismissed by the First Appellate Court. Against that, the present Second Appeal has been preferred by the third defendant.
5. At the time of admission of the Second Appeal, the following substantial questions of law were framed for consideration:
"(i) Whether the courts below are right in granting relief to the plaintiff when the claim of the plaintiff is barred by limitation ?"
(ii) Whether the Courts below are right in decreeing the suit based on the plea of adverse possession, when the plaintiff himself claimed title based on Exhibit A-1 without proving animus etc. ?
6. Heard both sides.
7. The learned counsel appearing for the appellant/third defendant would submit that the plaintiffs/ respondents herein purchased the property to an extent of 36 cents bearing survey No.169/6. But, he now claiming declaration of title in respect of survey No.169/11A stating that four boundaries are correlated in respect of survey No.169/11A instead of 169/6. But the trial court and the first appellate Court have committed an error in granting decree in favour of the plaintiffs/respondents herein. Ex.A1 sale deed contain specific survey No.169/6 - 36 cents. In pursuance of the purchase, the patta has also been issued in favour of the respondents/plaintiffs under Patta No.500. They also paid kist. Further, he submitted that the Commissioner appointed by the trial court has stated in his report that there is Survey No.169/6 and Survey No.169/11A and 11B. In respect of survey No.169/11 total extent of land is 84 cents. It was allotted to the share of Samayana Devar during partition between the father and his brother Ramu Devar. The appellant/third defendant's father was allotted 42 cents of land and Ramu Devar was allotted 42 cents of land. After the death of Ramu Devar, his wife Irulayee has succeeded the property. During the partition taken place in the year 1956 as per Ex.B16, the suit property has been allotted to the third defendant/appellant herein. From that date onwards, the third defendant/ appellant herein was and is in possession and enjoyment of the suit property. So, he has prescribed title over the suit property by adverse possession. Hence, the suit is barred by limitation. The first appellate Court has not considered the issues in proper perspective. Hence, he prayed for allowing the appeal. To substantiate his case, he has relied upon the various judgments of the High Courts and Apex court.
8 The learned counsel appearing for the respondents/plaintiffs would contend that it is true that in the sale deed in Ex.A1 the survey number is 169/6 but the boundaries it has been mentioned as survey No.169/11A. He further submitted that boundary will prevail over survey number and extent that has been considered by both the Court below and granted relief in favour of the respondents/ plaintiffs. Further more, to substantiate his arguments, he has relied upon various judgments of High Courts and Apex Court. He further submits that till resurvey, he is in possession and enjoyment of the property by enjoying the fruits of Palm tree. But during the resurvey only, the patta has been changed in the name of the appellant/third defendant. At the time of execution of sale deed Ex.A1 wherein the defendants 1 and 2 are Attestors. So they are estopped from questioning the title to the suit property. The trial court and the first appellate court considering the same in proper perspective and granted decree in favour of the respondents/plaintiffs. Hence, judgment and decree granted by both the Court below does not warrant any interference by this Court. Hence, he prayed for dismissal of the Second Appeal.
9 Considering the rival submissions made on either side, the admitted facts are as follows:
The suit property is originally owned by one Samayana Devar. He sold the property in favour of the respondents/plaintiffs under sale deed Ex.A1 dated 1.7.1967. In Ex.A1, the description of the property is mentioned as follows:
"brhj;J tpguk;"
,uhkehjg[uk; khtl;lk;. ,sa';Fo rg;o. D& jhYfh. ,sa';Fo a{dpad;. nkyha{h; g";rhaj;J nghh;L nkyha{h; fpuhkj;jpy; 57 ePh; glhtpy; fz;l S.169-6 ePlh; kzy; g[";ir brz;L 36 khy; tpguk; fkhy;ghl;rh fpuak; g[";irf;Fk; nkw;F. cilahh;nfhd; e";irf;F tlf;F. Kj;Jf;nfhd; g[";irf;Fk; fpHf;F. fpHnky; bkap;d; nuhl;Lf;F bjw;F ,jw;Fl;gl;lJ nkytug;gpy; epw;fpd;w gidJ}h; 4k; rpW tplypfSk; nrh;j;J fpuak;/"
But patta number in respect of the property bearing S.No.169/6 has been changed as 500 and the plaintiffs have paid kist as per Ex.A3. To prove the same, survey No.169/6 was not sold to them and the respondents/plaintiffs have purchased the property only in survey No.169/11. He has filed documents in Ex.A4 to 8 and examined P.W.2. P.W.2 is the owner of the property bearing survey No.169/6. At this juncture, it is appropriate to consider the Commissioner's report Ex.C1 and C2. While perusing the Ex.C1 and C2 along with four boundaries mentioned in Ex.A1 has clearly proved that the property purchased under Ex.A1 is only in respect of Survey No.169/11 and not 169/6.
10 At this juncture, It is appropriate to consider the following decisions relied upon by the learned counsel appearing for the respondents/plaintiffs to the effect that the four boundaries will prevail over survey number and extent.
(i) 1995-2 L.W. 169 (Kannu Reddiar Vs T.Palanirajan and four others wherein the Division Bench of this Court has held as follows:
"25. Mr.K.Yamunan, learned counsel for the respondents, attempted to establish that the construction was within the boundary description contained in Ex.A1 lease deed, as found by the Advocate Commissioner in Ex.A22, even though the boundary description relates to R.S.No.20/10 which was sought to be included in Ex.A1 lease deed dated 27.8.1981 through Ex.A16, alleged rectification deed dated 25.3.1982. He placed reliance on the well established general principles of law that the boundary descriptions shall prevail over survey number, extent, etc., when there is conflict. In this regard, he placed reliance on the decisions reported in The Palestine Kupat Am Bank Co-op Society ltd. V. Govt. of Palestine (A.I.R. 1948 P.C. 207); Sheodyhyan Singh V Sanichara Kuer (A.I.R. 1963 S.C. 1879) and 82, Law Weekly 142. There can be no quarrel over this proposition of law."
(ii) A.I.R. 1984 NOC 300 (A.P.) (Y.Subba Rao (died) and others Vs Amizunnisa Begum and others) "Held, the approach of the Court in appointing a Surveyor for the purpose of going into the question whether the applicants have purchased the same property which is now in the possession of the distributor and to decide the dispute with regard to the survey number of suit property was erroneous. As regards the dispute with regard to survey of suit property the Court below failed to note the well-known proposition that clear boundries as to the identity of the property prevail over any mistake in the survey number."
11 Considering the judgments cited supra, it is well settled principle of law that if there is any dispute in respect of survey number and extent, the boundaries only prevail over extent and survey number. As already stated as per Commissioner's report, Ex.C1 and C2 along with Ex.A1 has clearly proved that the suit property is purchased by the respondents/plaintiffs under Ex.A1 even though it was mentioned as Survey No.169/6, it is only 169/11A. 12 The learned counsel appearing for the appellant would contend that even though the plaintiffs/respondents herein have purchased the property they are not in possession and enjoyment of the same. It is further contended that it is the duty of the respondents/plaintiffs to prove that they were and are in possession of the suit property till the date of filing the suit. He further submitted that after purchase of the property, mutation of revenue records were made and kist has been paid by the respondents/plaintiffs only in respect of S.No.169/6.
13 At this juncture, it is appropriate to consider the decision reported in A.I.R. 1997 SC 2719 = 1997(7) SCC 137 (Balwant Singh and another etc. Vs Daulat Singh (dead) by L.Rs. and others) wherein the Hon'ble Supreme Court has held as follows:
21...... "Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question.
Thus, mere mutation of property in revenue records does not create or extinguish title nor has it any presumptive value on title. In such circumstances, merely because the patta has been changed, in pursuance, it will not confer or extinguish title of the plaintiffs/respondents herein or the third defendant/appellant herein.
14 The learned counsel appearing for the appellant/third defendant would contend that the respondents/plaintiffs have not proved their possession and even though they have purchased the property in the year 1967. The third defendant/appellant herein has prescribed title by adverse possession. But the plaintiffs/respondents ought to have proved that they were in possession and enjoyment of the suit property till the date of filing the suit.
15 At this juncture, the learned counsel appearing for the respondents/plaintiffs relied upon the decision stating that old article 142, 143 is not applicable after new limitation Act 1963 came into force in which Art.64 and 65 applicable since the respondents/plaintiffs have filed the suit for declaration of title on the basis of the title deed. Hence, the respondents/plaintiffs have proved the title. It is the duty of the third defendant/appellant herein who pleaded adverse possession must prove the same. For that reason, he relied upon the decision reported in 2007 STPL(LE)37845 SC = (2007)3 SCC 114 (M.Durai Vs Muthu and others).
9. ........"28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, the plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant-appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred."
Thus, once the respondents/plaintiffs proved their title, it is for the appellant/third defendant should prove acquisition of title by adverse possession in the same proposition.
16 Further, the learned counsel appearing for the respondents/plaintiffs relied upon the decision reported in 2009(12) SCC 101 (Vishwanath Bapurao Sabale Vs Shalinibai Nagappa Sabale and others) wherein the Hon'ble Supreme Court has held as follows:
"20. The suit filed by Nagappa however was based on title. Once he proved his title the onus was on Laxmibai and consequently upon the appellant to prove that they started possessing adversely to the interest of Shivappa. For the purpose of arriving at a finding as to whether the appellant and Laxmibai perfected their title by adverse possession, the relationship of the parties may have to be taken into consideration.
23. Furthermore for claiming title by adverse possession, it was necessary for the plaintiff to plead and prove animus possidendi. A peaceful, open and continuous possession being the ingredients of the principle of adverse possession as contained in the maxim nec vi, nec clam, nec precario, long possession by itself would not be sufficient to prove adverse possession."
The person who pleaded adverse possession must prove that there is 'Animus Possidendi'. He also relied upon the decision reported in A.I.R. 1999 SC 1549 (Indira Vs Arumugam and another) wherein the Hon'ble Supreme Court has held as follows:
"4. The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff who based his case on title had to prove not only title but also possession within 12 years of the date of the suit. The said provision of law has undergone a metamorphic sea change as we find under the Limitation Act, 1963 Article 65 which reads as under:
Description of suit Period of Limitation Time from which period begins to run
65. For possession of immovable property or any interest therein based on title Twelve years When the possession of the defendant becomes adverse to the plaintiff.
5. It is, therefore, obvious that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. Unfortunately, this aspect of the matter was missed by the learned Judge and, therefore, the entire reasoning for disposing of the second appeal has got vitiated. Only on that short ground and without expressing any opinion on the merits of the question of law framed by the learned Judge for disposing of the second appeal, this appeal is allowed. The impugned decision rendered is set aside and the second appeal is restored to the file of the High Court with a request to proceed further with the hearing of the appeal with respect to the substantial question aforementioned in accordance with law. No costs.
17 He further submits that the appellant/defendant ought to have prove adverse possession and he must plead and prove 'Animus Possidendi'. But here he has stated that on the basis of the partition deed he is in possession and enjoyment of the property. Hence he submits that third defendant/appellant herein has not proved Prescribed title by adverse possession. He further submitted that partition deed is not admissible evidence since it is not registered. At this juncture, it is appropriate to consider Sec.17 of the Registration Act.
"17. Documents of which registration is compulsory-
(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866 (XX OF 1866), or the Indian Registration Act, 1871 (VIII of 1871), or the Indian Registration Act, 18777 (III of 1877), or this Act came or comes into force, namely:-
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport operate to create, declare assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:
[f) Instruments of agreement relating to construction of multiunit house building on land by several persons as referred to in clause (i) of Article 5 of the Schedule 1 to the Stamp Act 199 (Central Act II of 1899)] Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees. (2) Nothing in clauses (b) and (c) of sub-section (1) applies to-
(i) any composition deed; or
(ii) any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such Company consists in whole or in part of immovable property; or
(iii) any debenture issued by any such company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so for as it entitles the holder to the security afforded by a registered instrument, whereby the company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures or
(iv) any endorsement upon or transfer of any debenture issued by any such company; or
(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding]; or
(vii) any grant of immovable property by the Government; or
(viii) any instrument of partition made by a Revenue officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871 (XXVI of 1871), or the Land Improvement Loans Act, 1883 (XIX of 1883); or
(x) any order granting a loan under the Agriculturists Loans Act, 1884 (XII of 1884), or instrument for securing the repayment of a loan made under that Act;
or [(x-a) any order made under the Charitable Endowments Act, 1890 (VI of 1890), vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]
(xi) any endorsement on a mortgage deed acknowledging the payment of the whole or any part of the mortgage money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue officer."
18 Along with that the learned counsel relied upon the decision reported in (2004) 11 SCC 391 (C.T.Ponnappa Vs State of Karnataka).
"4. ...... previous partition has been attempted to be proved by the document dated 2-4-1996, Exhibit P-46, wherein there is a recital that partition had already been effected by deed dated 31-3-1975, which has not been brought on record. It is not known whether the 1975 deed was a deed of partition or a memorandum of partition. In case partition was effected thereby, we do not know whether the same was registered or unregistered. If it was unregistered, the same could not be taken into consideration to prove partition between the parties as it was inadmissible in evidence. It was pointed out that Exhibit P-46 further shows that apart from the partition effected by deed dated 31-3-1975, parties partitioned their properties at least by the deed dated 2-4-1996, Exhibit P-46. Learned counsel very fairly could not contend that the said deed was a memorandum of partition. This document being not a registered one was inadmissible in evidence and, therefore, it cannot be of any avail to the prosecution to prove partition amongst the two brothers."
19 At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the appellant reported in (2007)5 M.L.J. 203 (Kasim Beevi and others Vs Sowr Beevi and others) wherein this Court has held as follows:
"21.In a decision reported in the case of Roshan Singh V. Zile Singh (supra), in paragraph 9, the Hon'ble Supreme Court has held as follows:
" It is well-settled that while an instrument of partition which operates or is intended to operate as a decalred volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, required registration under Section 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact and it does not require registration."
But while considering the above decisions along with Ex.B16, it is clearly proved that on 29.6.1956 only the property has been divided/partitioned between the three brothers. In such circumstances, the document is required registration. Admittedly, the document is not registered. In such circumstances, no relevance can be placed on Ex.B16.
20 The learned counsel appearing for the appellant would submit that the plaintiffs/respondents were in possession and enjoyment of the the property bearing survey No.169/6. As already decided in earlier paragraphs as per Ex.A1 and the Commissioner report, the property alienated under Ex.A1 is bearing survey No.169/11 not 169/6. Because that property is not belonging to the appellant family. Merely because the revenue records stands in the name of a person who hold patta, it will not confer or extinguish title to the holder of the patta. At this juncture, it is appropriate to consider the decision relied upon by the learned counsel appearing for the appellant reported in (2003)1 MLJ 21 (lakshmana Gounder Vs The Special Deputy Collector (LA), Salem Steel Plant, Salem and others) wherein the Division Bench of this Court has held as follows:
"12. A patta is a record of possession represents a distinct fractional part of lands. The said presumption has its roots in the system of land tenure and in the custom of the area in which the lands are situate. Each pattadar manages his lands and pays fixed share of the Government Revenue. Entries in revenue records are not conclusive, but their importance in a case for possession cannot be denied, until contrary is shown."
Patta is record for possession. There is no quarrel over the proposition.
21 The learned counsel appearing for the appellant relied upon the decision reported in (2001)4 SCC 713 (Syndicate Bank Vs Prabha D.Naik and another) wherein the Hon'ble Supreme Court has held as follows:
"16. ......... A prescriptive right however, differs from adverse possession, since prescription relates to incorporeal rights while adverse possession applies to an interest in the title to property. "Prescription" is usually applied to acquisition of incorporeal hereditaments and negative prescription obviously is a negation of such an acquisition. "Prescription"
admittedly, is a part of substantive law but limitation relates to procedure, as such prescription differs from limitation. The former is one of the modes of acquiring a certain right while the latter viz. the limitation, bars a remedy, in short, prescription is a right conferred, limitation is a bar to a remedy. Chapter II of the Portuguese Civil Code provides detailed articles pertaining to prescription. Corpus Juris Secundum, Vol. 72 described the word "prescription" as below:
"In law prescription is of two kinds: it is either an instrument for the acquisition of property or an instrument of an exemption only from the servitude of judicial process. In the first sense, as relating to the acquisition of property, prescription is treated in adverse possession. In the second sense, as relating to exemption from the servitude of judicial process, prescription is treated as Limitation of Actions."
22 In A.I.R. 1977 SC 5 (Gurucharan Singh Vs Kamla Singh and others) the Hon'ble Supreme Court has held as follows:
"21........."The word possession is sometimes used inaccurately as synonymous with the right to possess. (Words and Phrases, 2nd Edn., John B. Sounders, p. 151).
In the Dictionary of English Law (Earl Jowitt) 1959 at p. 1367 "possession" is defined as follows:
"Possession, the visible possibility of exercising physical control over a thing, coupled with the intention of doing so, either against all the world, or against all the world except certain persons. There are, therefore, three requisites of possession. First, there must be actual or potential physical control. Secondly, physical control is not possession, unless accompanied by intention; hence, if a thing is put into the hand of a sleeping person, he has not possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed; . . ."
In the end of all, however, the meaning of 'possession' must depend on the context. (ibid, p. 153) May be, in certain situations, possession may cover right to possess. It is thus clear that in Anglo-American jurisprudence also, possession is actual possession and in a limited set of cases, may include constructive possession, but when there is a bare right to possess bereft of any dominion or factum of control, it will be a strange legal travesty to assert that an owner is in possession merely because he has a right to possess when a rival, in the teeth of owner's opposition, is actually holding dominion and control over the land adversely, openly and continuously."
23 In (2001)2 M.L.J. 4 (S.C.) (Balkrishan Vs Satyaprakash and others) the Hon'ble Supreme Court has held as follows:
"7. The law with regard to perfecting title by adverse possession is well settled. A person claiming title by adverse possession has to prove three "nec"
- nec vi, nec clam and nec precario. In other words, he must show that his possession is adequate in continuity, in publicity and in extent." 24 In 1998-1 L.W. 244 (Roohnisha Beevi and 15 others Vs A.M.M. Mahudu Mohamed and 29 others) this Court has held as follows:
"22. In (1995)2 SCC 543 (Annasaheb Bapusaheb Patil V Balwant), in pargraph 14 of the judgment, their Lordships further said thus:-
"Adverse possession means a hostile assertion, i.e., a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, 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."
25 In (2000)7 SCC 702 (Dilboo (Smt) (Dead) by LRS. and others) the Hon'ble Supreme Court has held as follows:
"20...... As the title of the rank trespasser would get perfected by adverse possession on the expiry of 12 years so also the title of such transferee would get perfected after 12 years. The period of 12 years has to run from the date of knowledge by the plaintiff of such transfer. It is always for the party who files the suit to show that the suit is within time. Thus in cases where the suit is filed beyond the period of 12 years, the plaintiff would have to aver and then prove that the suit is within 12 years of his/her knowledge. In the absence of any averment or proof, to show that the suit is within time, it is the plaintiff who would fail. Whenever a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge."
26 In 2007(6) SCC 59 (P.T.Munichikkanna Reddy and others Vs Revamma and others) the Hon'ble Supreme Court has held as follows:
"7........ He is in possession by his own right, so far as it is a right:
and it is a right so far as the statutes of limitation which govern the matter prescribe both when the rights to dispossess him are to be treated as accruing and when, having accrued, they are thereafter to be treated as barred. In other words a squatter has as much protection as but no more protection than the statutes allow: but he has not the title or estate of the owner or owners whom he has dispossessed nor has he in any relevant sense an estate 'commensurate with' the estate of the dispossessed. All that this misleading phrase can mean is that, since his possession only defeats the rights of those to whom it has been adverse, there may be rights not prescribed against, such, for instance, as equitable easements, which are no less enforceable against him in respect of the land than they would have been against the owners he has dispossessed."
Also see Privy Council's decision in Chung Ping Kwan v. Lam Island Development Co. Ltd.9 in this regard.
8. 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."
27 Since the respondents/plaintiffs herein proved their title, it is the duty of the third defendant/appellant herein to prove that he has prescriptive title by adverse possession. To prove the same, he has filed Ex.B1 and B2 in respect of the patta which shows dry land in survey No.167/11 inherited by him. The patta number is 84. It stands in the name of both Samayana Dever and Irulayee. After sub division, patta number has been changed to 419 as per Ex.B3. It was sub divided as 169/11A 0.18.0 ares stands in the name of the third defendant/appellant herein. He also filed Ex.B17 and B18 settlement registers pertaining to S.No.169/11A and S.No.169/6 stands in the name of the plaintiffs/respondents and S.No.169/11A stands in the name of Samayana Devar, the appellant herein as already stated. The kist receipts were marked as Ex.B4 to B13 from Fasali No.1376 to 1403. But it is true that these documents are related to property bearing S.No.169/11A. He also filed document in Ex.B14 dated 11.8.1982 wherein it is stated that he mortgaged the property to Tamilnadu Khadi and Village Industries Board and he dealt with the property.
Demand notice Ex.B15 dt.12.8.1995 has also been filed. As already stated, even this Court presumes that third defendant/ appellant herein is in possession, the third defendant/appellant herein has to prove that he is in possession after knowing the property belonging to the respondents/plaintiffs adverse to the interest and title to the plaintiffs/respondents herein, openly and continuously, uninterruptedly with the knowledge of the true owner for more than statutory period. But his averments is only in respect of the property was allotted to the appellant herein under Ex.B16. In pursuance of that he is in possession and enjoyment of the same. The respondents/plaintiffs were not owner of the property bearing S.No.169/11. They are the owners of the property bearing S.No.169/6. In such circumstances, the basic principle of adverse possession as contained in maxim nec vi, nec clam, nec precario, long possession by itself would not be sufficient to prove adverse possession. There must be animus Possidendi. So the appellant herein has to prove that he is in possession after knowing the property belonging to the respondents/ plaintiffs, adverse to the interest and title to the plaintiffs/respondents herein, he was and is in possession and enjoyment of the same. But he has not adduced evidence that he was and is in possession adverse to the interest and title to the respondents/plaintiffs and enjoying the property for more than statutory period. In such circumstances, the appellant herein has not proved that he has prescribed title by adverse possession.
28 So, the first appellate Court and the trial court considered all the aspects in proper perspective and came to the correct conclusion that the third defendant/ appellant herein has not prescribed title by adverse possession. The plaintiffs/respondents herein has purchased the property under Ex.A1 even though it was mentioned as S.No.169/6. It is only related to S.No.169/11 as per the well settled principle of law that boundary will prevail over the survey number and extent of a property. Hence, that aspect has been corroborated by P.W.2. P.W.2 in his evidence has stated that the property in S.No.169/6 is belongs to him. He executed a simple mortgage in favour of one Koothakkal under Ex.A4. Subsequently, he sold the same under Ex.A5 on 10.11.1986 to one Periyasamy. So P.W.2 has proved that the suit property is only under S.No.169/11. Hence, the trial court and the first appellate court considered all the materials on record in proper perspective and came to a correct conclusion. Hence, Judgment and decree of both the Court below does not suffer any irregularity or infirmity. Hence, it does not warrant any interference by this court and the appeal is liable to be dismissed.
29 Accordingly, the Second appeal is dismissed. Both the parties are directed to bear the cost.
vaan To
1. The Subordinate Court, Sivagangai,
2. The District Munsif Court, Manamadurai.
3. The Record Keeper, V.R. Section, High Court, Madras.