Azhinjilan vs Visalakshi

P.R. Shivakumar, J.—The plaintiff in the original suit is the appellant in the second appeal. He filed the suit O.S. No. 528 of 2004 on the file

of the Court of Principal District Munsif, Tindivanam for the relief of declaration and injunction. The learned trial Judge, after trial, decreed the suit

granting the relief of declaration and permanent injunction without costs by a judgment and decree dated 09.01.2007. On an appeal preferred by

the respondent herein/defendant in A.S. No. 19 of 2007 on the file of Additional Subordinate Judge, Tindivanam, the learned lower appellate

Judge allowed the appeal, reversed the judgment of the trial Court, set aside the decree passed by the trial Court and dismissed the original suit

without costs. As against the said decree of the lower appellate Court the present second appeal has been filed. The appellant herein/plaintiff had

filed the suit based on the following averments:

The suit property more fully described in the plaint schedule belonged to the ancestors of the appellant/plaintiff by virtue of their possessory title

and in the hands of Mannangatti, the father of the appellant/plaintiff, as his ancestral property. The said Mannangatti died about 20 years back

leaving behind him the appellant/plaintiff as his sole legal heir. The appellant/plaintiff continued to possess the property without any interruption for

more than 12 years. He had also perfected title by adverse possession. The appellant/plaintiff had dug a Well and also obtained loan from the

Agricultural cooperative societies on several occasions. The respondent/defendant was not in possession and enjoyment of the suit property at any

point of time. Due to the instigation of the bad elements, the respondent/defendant using her influence got patta for the suit property transferred in

her name and she started making attempts to interfere with the possession and enjoyment of the appellant/plaintiff in respect of the suit property

making a claim of title to the same. Hence, the appellant/plaintiff was constrained to file the suit for the reliefs of declaration and permanent

injunction.

The respondent herein/defendant filed a written statement containing the following averments:

The appellant/plaintiff himself is not in a position to state whether the property belong to his ancestors by virtue of purchase or by virtue of

possessory title and in view of the ambiguous plea, the suit is liable to be dismissed in limine. It is also false to state that the suit property was the

ancestral property of Mannangatti, the father of the appellant/plaintiff. Further plea that the appellant/plaintiff possessed and enjoyed the suit

property without any interruption for over a period of 12 years and thus, acquired title by adverse possession is also false. Further allegation made

in the plaint that the appellant/plaintiff obtained loan from Agricultural Cooperative Societies on several occasion and dug a Well and thus made

several improvements in the suit property is also false. The suit property originally belonged to one Chinnakolandai Ammal. From her, Kuppan and

Arumugam, sons of Manjini Kounder purchased the same for consideration under a registered sale deed dated 16.03.1926. Subsequently, the

said Kuppan sold his = share measuring 78 cents in the suit property and other properties to his brother Arumugam for consideration under a

registered sale deed dated 06.09.1934. From the date of the said sale, the said Arumugam was enjoying the entire extent of the suit property as

absolute owner without any interruption from whatsoever source. Arumugam had got a son by name Thulasingam. Both Arumugam and

Thulasingam continued to enjoy the suit property. While so, Thulasingam married one Logambal and went to Sri Lanka. His father Arumugam

looked after the suit property. Twenty years back the said Arumugam died intestate leaving behind the above said Thulasingam as his sole legal

heir. After the death of Arumugam, the said Thulasingam entrusted the property to the appellant/plaintiff to look after the same on his behalf. The

respondent/defendant is the only daughter of Thulasingam. In 1979, Thulasingam, his wife Logambal and their daughter, namely the

respondent/defendant came back to India and settled at Villupuram. After their repatriation to India, the father of the respondent / defendant used

to go to the suit village to cultivate the land. About 15 years back, the said Thulasingam died intestate leaving behind him his daughter, namely the

respondent/defendant and his wife as his legal heirs. As such the respondent/defendant and her mother were enjoying the suit property and the

appellant/plaintiff helped them in cultivating the suit property. The mother of the respondent/defendant died 7 years back. Meanwhile, taking

advantage of the fact that the respondent/defendant and her ancestors were doing the cultivation with the assistance of the appellant/plaintiff, he had

planned to usurp the land by clandestinely effecting change of patta in his name. The respondent/defendant, who came to know the same, applied

before the revenue authorities whereupon patta was granted in her favour. Under such circumstances, the appellant/plaintiff, who is a relative of the

respondent/defendant, has filed the suit with false and untenable averments. Hence, the suit must be dismissed with costs.

The learned trial Judge framed three issues which are as follows:

1) Whether the plaintiff is entitled to the relief of declaration in respect of the suit property as prayed for?

2) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?

3) To what other relief?

Two witnesses were examined as Pws 1 and 2 and 19 documents were marked as Exs. A1 to A19 on the side of the appellant/plaintiff. Two

witnesses were examined as Dws 1 and 2 and 4 documents were marked as Exs. B1 to B4 on the side of the respondent/defendant.

The learned trial Judge, after hearing the arguments advanced on both sides, considered the evidence and upon such consideration, decided the

issues 1 and 2 in favour of the appellant/plaintiff and decreed the suit granting the reliefs of declaration and injunction without costs.

Aggrieved by and challenging the same the respondent herein/defendant filed the appeal before the lower appellate court, namely the Court of

the Additional Subordinate Judge, Dindivanam in A.S. No. 19 of 2007. The learned Additional Subordinate Judge, after hearing, allowed the

appeal, set aside the decree passed by the trial Court and dismissed the suit without costs. Now the appellant/plaintiff has come forward with the

present second appeal challenging the decree passed by the lower appellate Court.

At the time of admission of the second appeal, the following questions were formulated as substantial questions of law:

1) Whether the lower appellate Court''s judgment and decree is vitiated in law in failing to appreciate that the appellant could maintain a suit for

possessory title based on his long, uninterrupted and continuous possession?

2) Whether the Lower Appellate Court failed to note that assuming without admitting that the respondent was the true owner, his right was lost to

the appellant for not asserting the same by the process of law within the period prescribed by the provisions of the statue of limitation?

3) Whether the Lower Appellate Court was right in law in failing to appreciate that possession is 9 points in law and the burden to prove that the

person in possession is not the true owner is heavy on the person who asserts the same u/s 110 of the Evidence Act?

This Court heard the arguments advanced by Ms. Mala, on behalf of the appellant/plaintiff and by Mr. N. Suresh on behalf of the

respondent/defendant. The judgments of the courts below, the pleadings, evidence and other materials available on record were also perused. This

Court paid its anxious consideration to the same.

The appellant herein/plaintiff was successful in getting a decree as prayed for from the trial Court. But the said decree passed by the trial Court

was upset and set aside by the lower appellate Court. Hence, the appellant/plaintiff has come forward with the present second appeal. The

appellant/plaintiff seems to have made a nebulous plea regarding how he derived title to the suit property. He had stated in the plaint that the suit

property belonged to his ancestors by virtue of possessory title and also derivative title by virtue of purchase. The relevant part of the pleading in

the plaint in vernacular is as follows:

VERNACULAR (TAMIL) PORTION DELETED

By making such a plea, the appellant/plaintiff shows his inability to assert the way in which his ancestors got title to the property. In addition, he has

also claimed to have perfected title by adverse possession. Being the plaintiff, he should have taken either the plea of derivative title or the plea of

having perfected title by adverse possession. Both the pleas are incompatible with each other because any person who possesses the property

claiming derivative title will lack necessary animus to make his possession a possession adverse to that of the real owner. In the absence of

knowledge that the property belongs to another person, there shall not be the necessary animus to hold the property adverse to that of the real

owner. Normally, the plaintiff cannot take the plea of derivative title and adverse possession which are mutually incompatible. Even if both the

pleas have been taken in the pleadings, before going for trial, the plaintiff should elect one out of the two pleas. In this case, it seems the

appellant/plaintiff, conscious of the fact that he could not sustain his plea of derivative title, has chosen to claim to have perfected title by adverse

possession. Moreover, the appellant/plaintiff has not produced any document showing that the suit property had been purchased by any of his

ancestors. On the other hand, the respondent/defendant has produced Ex. B1 sale deed dated 16.03.1926 and Ex. B2 sale deed dated

06.09.1934, to prove that the suit property belongs to the respondent/defendant as the said document would show that the suit property had been

purchased by the predecessors of the respondent/defendant.

Under Ex. B1 dated 16.03.1926, the suit property was sold by one Chinnakolandai Ammal to Kuppan and Arumugam, sons of Manjini

Kounder. Thereafter, on 06.09.1934, Kuppan, one of the joint purchasers, sold his = share to Arumugam under Ex. B2, whereupon Arumugam

became the absolute owner of the entire suit property. The respondent/defendant has also adduced clear evidence to the effect that the said

Arumugam was the paternal grandfather of the respondent/defendant; that the said Arumugam died intestate leaving behind his only son

Thulasingam as his legal heir; that the said Thulasingam (father of the respondent/defendant) along with his wife Logambal and daughter, namely the

respondent/defendant, entrusted the suit property to the appellant/plaintiff to manage the same on his behalf, left India and went to Sri Lanka to eke

his livelihood and that in 1977 they got repatriated to India and settled at Villupuram. DW1 (the respondent/defendant) herself and one

Samikkannu (examined as DW2) have deposed in conformity with the above said plea taken by the respondent/defendant. Besides the

documentary proof that the suit property was purchased by Kuppan and Arumugam under Ex. B1 on 06.03.1926 and Kuppan sold his half share

to Arumugam under Ex. B2 on 06.09.1934, the respondent/defendant has adduced clear and unassailable evidence through Dws 1 and 2 to prove

that the suit property absolutely belonged to the above said Arumugam.

Though the respondent/defendant has also adduced clear evidence through Dws 1 and 2 that Arumugam died intestate leaving behind him

Thulasingam, the father of the respondent/defendant as his sole legal heir and the said Thulasingam, entrusting the property for management on his

behalf to the appellant/plaintiff went to Sri Lanka and returned back to India in 1979, the appellant/plaintiff who figured as PW1, even in his

testimony, was not able to say whether the suit property belonged to his ancestors by virtue of any purchase. On the other hand, he would simply

state that the suit property belonged to his ancestors by virtue of possessory right. The same will go to show that the appellant/plaintiff does not

have any title deed to defeat the derivative title of the predecessors of the respondent/defendant under Exs. B1 and B2. That is the reason why the

appellant/plaintiff has confined his efforts in leading evidence in proof of his possession of the suit property rather than making an attempt to prove

his derivative title.

Though the appellant/plaintiff would have claimed that Kuppan was his ancestor namely great grandfather, he was not able to show how

Kuppan derived title to the suit property. During his cross-examination, PW1 candidly admitted that under Ex. B1 Kuppan and Arumugam had

purchased the property in 1926 from one Chinnakolandai Ammal. Quite contrary to the same, PW1 would state that the suit property had been

purchased by Chinnakolandai Ammal under the document of the year 1926 and Kuppan and Arumugam were her two sons. When questioned

about the conveyance of his = share in the suit property by Kuppan to Arumugam under Ex. B2, PW1 answered that he did not know whether

Kuppan sold his half share to Arumugam under the sale deed of the year 1934. However, PW1 has clearly admitted that Thulasingam was the only

son of Arumugam and the said Thulasingam had gone to Sri Lanka. Similarly, Balasubramanian, who was examined as PW2, pleaded ignorance

regarding the sale in favour of Arumugam under Ex. B2 dated 06.09.1934. A thorough reading of the testimony of PW2 will show that he has not

spoken the truth regarding the sale transactions that took place under Exs. B1 and B2. Even during his chief-examination, without mentioning the

fact that Thulasingam (the father of the respondent/defendant) went to Sri Lanka, he would state that the said Thulasingam along with his sons and

daughter came back to India from Sri Lanka some 30 years back. On a proper analysis and appreciation of evidence, the learned trial Judge had

come to a correct conclusion that the suit property originally belonged to Chinnakolandai Ammal and the same was purchased jointly by Kuppan

and Arumugam and that Arumugam became the absolute owner by virtue of Ex. B2 sale deed under which the said Kuppan sold his half share to

Arumugam. The learned trial Judge also on proper appreciation of evidence accepted the case of the respondent/defendant that the Thulasingam,

the father of the respondent/defendant was the only son of Arumugam who got the suit property on the death of Arumugam.

As the respondent/defendant had established the title of her father in respect of the suit property, the appellant/plaintiff, who claims to have

perfected title by adverse possession, ought to have led cogent and reliable evidence showing the date from which his possession became adverse.

The evidence of Pws 1 and 2 are to the effect that the suit property was in the possession and enjoyment of the appellant/plaintiff for more than 30

years and that neither Thulasingam nor his legal heirs claimed any title or interest in the suit property, except the claim made by the respondent prior

to the filing of the suit for getting the patta transferred in her name. Of course, the appellant/plaintiff has produced ''A'' Register extract and Kist

receipts as Exs. A1 to A10 to show that the suit property was in his possession atleast from 1986. The adangal extracts have been produced as

Exs. A14 and A19. Exs. A11, A12 and A13 have been produced in support of his contention that he had obtained loan from the Indian Bank and

the Agricultural Cooperative Bank for effecting improvements in the suit property. But those documents are not sufficient to show that the loans

were obtained for cultivation done or for the improvements made in the suit property. As per the said document, suit property originally belonged

to one Chinnakolandai Ammal who sold it to Kuppan and Arumugam under Ex. B1. The said Kuppan sold his half share to the said Arumugam

under Ex. B2 and the respondent''s/defendant''s father Thulasingam became entitled to the suit property as the only legal heir of Arumugam. The

appellant/plaintiff seems to have obtained patta transferred in his name. A copy of such patta alone has been produced as Ex. A1. On coming to

know that the appellant/plaintiff had manipulated to get patta for the suit property in his name, the respondent/defendant took steps to get the said

patta issued in the name of the appellant/plaintiff cancelled and for the issuance of patta in her name. After enquiry, the revenue authorities satisfied

with the claim of the respondent/defendant, cancelled the patta issued in the name of the appellant/plaintiff and issued patta in the name of the

respondent/defendant. The same is evidenced by Exs. B3 and B4. The fact that patta issued in the name of the appellant/plaintiff was cancelled by

the revenue authorities after due enquiry and the respondent/defendant was issued patta in respect of the suit property has not been disputed by the

appellant/plaintiff. Under such circumstances alone, the appellant/plaintiff seems to have approached the Court for a declaration that he is the

owner of the suit property having perfected title by adverse possession and also for injunction. The respondent/defendant, having proved to have

derivative title, has also taken a clear and categorical stand that her father Thulasingam took her along with her mother to Sri Lanka after entrusting

the property to the appellant/plaintiff to manage the same on his behalf; that in 1979 they came back to India and settled at Villupuram; that

thereafter the said Thulasingam himself looked after the cultivation in the suit property; that he died 15 years prior to the filing of the suit whereupon

the respondent/defendant and her mother cultivated the suit property with the help of the appellant/plaintiff; that after the death of the mother of the

respondent/plaintiff 7 years prior to the filing of the suit, the respondent/defendant continued to do the cultivation with the help of the

appellant/plaintiff; that taking advantage of the same, the appellant/plaintiff clandestinely took steps to grab the property by getting the patta for the

suit property transferred in his name and that the respondent/defendant, on coming to know the same, moved the revenue authorities for

cancellation of the patta issued in the name of the plaintiff and issuance of patta in her name. It is also the case of the respondent/defendant that

accepting her claim, patta had been issued in her name. It was the immediate provocation for the appellant/plaintiff to file the suit as a frivolous

litigation.

The said plea of permissive possession of the appellant/plaintiff has been clearly spoken to by the respondent/defendant as DW1 and DW2

Samikannu. On the other hand, there is no reliable evidence adduced on the side of the appellant/plaintiff as to when and how the appellant/plaintiff

or any of his ancestors got the possession of the suit property. The learned trial Judge, on proper appreciation of evidence, came to the conclusion

that the case of the respondent/defendant that the possession of the appellant/plaintiff was only permissive. When the possession of a person is

proved to be permissive, unless it is clearly pleaded and established that from a particular point of time his possession became adverse, the

possession for any length of time will not confer title by adverse possession. The mere silence on the part of the real owner to assert title and claim

the property from the person in permissive possession will not extinguish his title. Limitation for recovery of possession of immovable property shall

start only from the date on which the possession of the person from whom the property is sought to be recovered became adverse. In Saroop

Singh Vs. Banto and Others, the Apex Court made it clear that the onus to prove acquisition of title by adverse possession lies on the person who

claims it and that the starting point of limitation is the date from which his possession becomes adverse.

In case any one claims to have perfected title by adverse possession, he should make a specific plea stating from which date his possession

became adverse to that of the real owner and against whom he claims adverse possession and that such a possession was coupled with the

necessary animus to hold it adverse to the right of the real owners. Mere possession without the necessary animus to hold it adverse to that of the

real owner will not constitute adverse possession needed for perfection of title by adverse possession. The Apex Court in Karnataka Board of

Wakf Vs. Government of India and Others, made the following observations regarding the necessary ingredients of adverse possession as a mode

of acquisition of title:

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.

In Deva (Dead) thr. Lrs. Vs. Sajjan Kumar (Dead) by Lrs., , the Apex Court held that the possession should be coupled with the animus to

constitute the same to be an adverse possession. The following are the observations made by the Apex Court:

Mere long possession of the defendant for a period of more than twelve years without intention to possess the suit land adversely to the title of the

plaintiff and to the latter''s knowledge cannot result in acquisition of title by prescription.

The animus to hold the land, adversely to the title of the true owner, can be said to have started only when the defendant derived knowledge that

his possession over the suit land had been alleged to be an act of encroachment on the plaintiff''s survey number.

In Konda Lakshmana Bapuji Vs. Government of Andhra Pradesh and Others, the Honourable Apex Court, considering the question of adverse

possession, has held:

It is a well settled proposition that mere possession of the land, however long it may be, would not ripen into possessory title, unless the possessor

has animus possidendi to hold the land adverse to the title of the true owner. It is true that assertion of title to the land in dispute by the possessor

would, in an appropriate case, be sufficient indication of the animus possidendi to hold adverse to the title of the true owner. But, such an assertion

of title must be clear and unequivocal though it need not be addressed to the real owner. For reckoning the statutory period to perfect title by

prescription both the possession as well as the animus possidendi must be shown to exist. Where, however, at the commencement of the

possession there is no animus possidendi, the period for the purpose of reckoning adverse possession will commence from the date when both the

actual possession and assertion of title by the possessor are shown to exist.

From the same it shall be clear that the appellant/plaintiff who claims to have prescriptive title by adverse possession should have pleaded and

proved by cogent and reliable evidence that he possessed the land with necessary animus to possess it adverse to that of the real owner for well

over the period of 12 years to the knowledge of the real owner. As the respondent/defendant has made out a clear case of permissive possession

on behalf of the real owner, the appellant/plaintiff claiming prescriptive title by adverse possession is bound to fail, since there is lack of pleading

and evidence regarding the necessary animus to hold the property adverse to that of the real owner. Without knowing the fact that the property

belongs to another person and who is that other person, one cannot possess it to the knowledge of that real owner. The learned trial Judge on

erroneous application of law came to the conclusion that the appellant/plaintiff had proved prescriptive title by adverse possession. The erroneous

decision made by the trial Court was rightly upset and set aside by the lower appellate Court and the finding of the lower appellate Court that the

appellant herein/plaintiff failed to prove his acquisition of prescriptive title by adverse possession regarding the suit property cannot be termed

either defective or infirm, much less perverse. For the reasons stated above, this Court comes to the conclusion that the finding of the lower

appellate Court that the prayer for declaration of title on the ground of perfection of title by adverse possession made by the appellant

herein/plaintiff was rightly declined by the lower appellate Court and there is no ground and there can be no reason for interfering with the same.

The said finding of the lower appellate Court deserves approval and confirmation.

Learned counsel for the appellant advanced an argument that even if it is assumed that the appellant/plaintiff had not proved his case of

perfection of title by adverse possession, since possession of the appellant/plaintiff has been admitted, till he his evicted by adopting due process,

his possession should not be disturbed and in such circumstances, as against the apprehended dispossession he can successfully sustain a prayer

for permanent injunction.

Per contra, learned counsel for the respondent would contend that the appellant/plaintiff, on the basis of his possession can maintain the suit to

project such possession against the entire world except the real owner and that the suit of the plaintiff was rightly dismissed by the lower appellate

Court in respect of the prayer for permanent injunction also, applying the principle that no injunction can be granted against the real owner.

As pointed out supra, the respondent/defendant has established her title to the suit property and the appellant/plaintiff failed to prove to

possess a better right or better title than that of the respondent/defendant. Hence, applying the principle that there can be no injunction against the

real owner, the appellant''s/plaintiff''s prayer for permanent injunction also deserves rejection.

In Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., , a larger Bench consisting of three

Hon''ble Judges of the Supreme Court held that a suit for injunction against the true owner was not maintainable. The relevant observation made by

the Apex Court in Paragraphs 93 and 97 are as follows:

The respondent''s suit for injunction against the true owner, the appellant, was not maintainable, particularly when it was established beyond

doubt that the respondent was only a caretaker and he ought to have given possession of the premises to the true owner of the suit property on

demand. Admittedly, the respondent does not claim any title over the suit property and he had not filed any proceedings disputing the title of the

appellant.

Principles of law which emerge in this case are crystallized as under:

1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades

such person would not acquire any right or interest in the said property.

2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to

give possession forthwith on demand.

3) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some

time either as a friend, relative, caretaker or as a servant.

4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence

agreement in his favour.

5) The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in

such property irrespective of his long stay or possession.

In Premji Ratansey Shah and Others Vs. Union of India (UOI) and Others, , the Hon''ble Supreme Court has held that there can be no injunction

against the true owner. It has been held therein,

It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of

declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their

possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained

unlawful possession, as against the owner. Pretext of dispute of identify of the land should not be an excuse to claim injunction against true owner.

Applying the above said principle, this Court comes to the conclusion that the lower appellate Court has rightly declined the prayer for

permanent injunction also as it had been sought for against the true owner. The trial Court had committed a serious error in assuming that the

appellant herein/plaintiff had perfected title by adverse possession because of the mere silence on the part of the respondent herein/defendant and

her predecessors and in decreeing the suit both for the relief of declaration and for the relief of permanent injunction. The erroneous decision made

by the learned trial Judge has been rightly reversed by the lower appellate Court and the lower appellate Court has arrived at a correct conclusion

that the prayer for declaration made by the appellant herein/plaintiff was bound to fail, because he had failed to prove the necessary animus to

make his possession an adverse possession and that he being in permissive possession as caretaker, his possession would not amount to adverse

possession. The learned lower appellate Judge has also arrived at a correct conclusion that the appellant/plaintiff who is in possession of the suit

property, can protect possession as against the whole world excepting the real owner and that hence, the prayer for permanent injunction also

deserved dismissal. In view of the foregoing discussion, this Court answers all the three questions of law formulated at the time of admission against

the appellant/plaintiff and in favour of the respondent herein/defendant. The well considered judgment of the lower appellate Court does not

deserve any interference and on the other hand, it deserves confirmation. There is no merit in the appeal and the second appeal deserves to be

dismissed with costs.

In the result, the second appeal is dismissed with costs. Consequently, the connected miscellaneous petitions are closed.