Deivanai Ammal (Died) and Others vs Periasamy @ Sambagounder and Others

G.M. Akbar Ali, J.—In S.A. No. 1551 of 1997, the first Defendant is the Appellant. The appeal is preferred against the decree and

judgment made in A.S. No. 79 of 1996, dated 06.08.1997, on the file of the learned Principal District Judge, Dindigul, modifying the decree and

judgment in O.S. No. 63 of 1995, on the file of the learned District Munsif-cum-Judicial Magistrate, Vedasandur. The Appellants are the Legal

Representatives of the first Defendant.

In S.A. No. 1552 of 1997, the Plaintiff is the Appellant. The appeal is preferred against the decree and judgment made in A.S. No. 80 of 1996

dated 06.08.1997, on the file of the learned Principal District Judge, Dindigul, setting aside the decree and judgment made in O.S. No. 132 of

1995, on the file of the learned District Munsif-cum-Judicial Magistrate, Vedasandur, dated 29.01.1996. The Appellants are the Legal

Representatives of the Plaintiff.

The Suit in O.S. No. 63 of 1995 was filed by the Respondents 1 & 2 for declaration of title and for consequential injunction regarding the first

schedule property in S. No. 781/1, for an extent of 4 acres 68 cents and for recovery of possession in the above survey number for an extent of

20 x 10 ft. The suit in O.S. No. 132 of 1995 was filed by one Deivanai Ammal for an order of injunction regarding one acre in S. No. 781/1-A.

As the parties were the same and the said properties were same, both the suits were tried together and a common judgment was delivered by

the trial Court on 29.01.1996. For convenience, the Plaintiff in O.S. No. 63 of 1995 is referred as the Plaintiff and the Plaintiff in O.S. No. 132 of

1995 is referred as the Defendant.

The brief facts of the case are as follows:

The Plaintiff''s have acquired the property in S. No. 781/1, an extent of 4 acres 60 cents along with a ''well'' by the family arrangement and also by

purchase prior to 1974. In the year 1981, the Plaintiff''s have dug a ''well'' and they were enjoying the property by cultivating an extent of 3 acres

68 cents and on the southern side, an extent of one acre land was in a higher level. On the east of S. No. 781/1, the Defendant Deivanai Ammal

was in possession and enjoyment of S. No. 781/2. Her land was in the same level of the above said one acre in S. No. 781/1. Therefore, the first

Defendant agreed to irrigate the said one acre in S. No. 781/1 from her land and for that purpose ten years back she was permitted to put up a

tiled shed to that extent. Therefore, the said Deivanai Ammal had put up a tiled shed in the southern elevated one acre in S. No. 781/1 and was

irrigating the land through which the Plaintiffs are cultivating the above said one acre by raising peanuts. The Plaintiffs were given patta for an extent

of 4 acres 68 cents in S. No. 781/1,. After some time, the first Defendant was coming out that she is going to sell her property along with the

above said one acre, which belongs to the Plaintiffs. Therefore, the suit was filed for declaration that in S. No. 781/1, an extent of 4 acre 68 cents

belong to him and for recovery of possession of the 2nd scheduled property, where the first Defendant has put up a tiled shed on the southern side

of S. No. 781/1.

The suit was resisted by the said Deivanai Ammal, on various grounds.

It is stated that the said one acre on the southern side of S. No. 781/1 is now sub-divided into S. No. 781/1 and 781/1-A.S. No. 782/2, which

on the further east belonged to her. The Defendant was in possession and enjoyment of one acre in S. No. 789/1-A for more than 60 years and it

was never enjoyed by the Plaintiffs and she had put up live fence and she has been enjoying the property as that of her own and she has perfected

title by adverse possession also. She had also filed a Suit in O.S. No. 132/1995 for a permanent injunction restraining the Plaintiff herein from

interfering with her possession.

Based on the above averments in both the suits and on considering the oral and documentary evidence, the learned trial judge found that the

Plaintiffs have failed to prove the permissive possession, whereas, the Defendant has proved the adverse possession, and has perfected title and

therefore, partly allowed the suit in O.S. No. 63/1995 by holding that the Plaintiffs are entitled for a declaratory relief regarding only 3 acre 68

cents in S. No. 781/1 and no relief can be granted for one acre in S. No. 781/1-A, which is under the possession, enjoyment and occupation of

the Defendants. Consequently, the learned trial Judge had decreed the suit in O.S. No. 132 of 1995 by granting the relief of permanent injunction

in favour of the said Deivanai Ammal.

The Plaintiffs in O.S. No. 63 of 1995, who are the Defendants in O.S. No. 132 of 1995, have preferred two appeals in A.S. Nos. 79 & 80 of

1996, before the learned Principal District Judge, Dindgul. The learned Principal District Judge, on analysing the issues and on the basis of the

documents produced by the Plaintiffs in O.S. No. 63/1995, found that the Plaintiffs have proved their title for 4 acre 68 cents in S. No. 781/1 and

therefore, granted a decree of declaration for the entire 4 acres 68 cents. The main finding of the learned Principal District Judge, on appeal, was

that the Plaintiffs'' document would show that the southern boundary as that of the Defendants property in S. No. 780/2 and the Defendants''

document would show the northern boundary as that of the Plaintiffs property in S. No. 781/1 to an extent of 4 acre 88 cents and the learned

Judge has also found that the first Defendant had not proved that she had perfected title by adverse possession. In the result, the suit filed by the

Plaintiffs was decreed as prayed for and the suit filed by the said Deivanai Ammal was dismissed. Against which, originally the said Deivanai

Ammal preferred both the Second Appeals. Pending appeals, she died and the Legal Representatives are recorded as Appellants.

The appeals were filed on the following grounds:

(i) that the learned District Judge has failed to see that the dispute between the parties is only relating to an extent of one acre on the southern side

of S. No. 781/1.

(ii) that the lower appellate Court has failed to see that the said one acre is a separate block and higher level than the rest of the Plaintiff''s land in S.

No. 781/1 and

(iii) that the learned District Judge has failed to appreciate that there is a specific admission by the Plaintiffs to show that the first Defendant is in

possession and enjoyment of the same.

While admitting the Second Appeal, this Court has framed the following Substantial Questions of Law:

(1) Whether the lower appellate Court ought to have followed the judgment of the Supreme Curt in AIR 1965 364 and held that the admissions of

the Plaintiffs in O.S. No. 63 of 1995 regarding the possession and enjoyment of the first Defendant in that suit would prove her title to the suit

property?

(2) Whether the Plaintiffs in O.S. No. 63 of 1995 who had seen the first Defendant constructing a house and a cattle shed on the suit property and

did not raise any objections were estopped from demanding their demolition?

(iii) Whether the lower appellate Court ought to have held that the Plaintiffs in O.S. No. 63 of 1995 have not proved that the possession of the first

Defendant in that suit was permissive?

The learned Counsel for the Appellants would submit that the Plaintiffs have not proved that Deivanai Ammal was permitted to put up only a

tiled shed in view of irrigation of the land from her well. The learned Counsel also pointed out that the disputed one acre in S. No. 781/1 was

subsequently sub-divided into S. No. 781/1-A which is on the higher level than the rest of the land in S. No. 781/1. The learned Counsel also

pointed out that there was a specific plea by the said Deivanai Ammal that she had been in possession and enjoyment of the property for more than

60 years and also perfected title by adverse possession. The learned Counsel pointed out that when the permissive possession is not proved by the

Plaintiffs, the plea of adverse possession has to be taken into consideration and the lower appellate Court was wrong in holding that the Plaintiffs

are in possession and enjoyment of the entire 4 acres and 68 cents in S. No. 781/1.

The learned Counsel for the Respondents would submit that the Plaintiffs have produced various title deeds for the entire extent of 4 acres 68

cents in S. No. 781/1 and the case of the first Appellant is that her property was in higher level and by the admission that Deivanai Ammal was

permitted to put up a tiled shed in an extent of 20 ft x 10 ft, the Plaintiffs will not lose their title. The learned Counsel for the Respondents would

submit that the plea of adverse possession was not pleaded and proved by the Appellants.

The learned Counsel relied on the judgment of this Court in Ponnaiyan v. Munian (died) and Ors. reported in (1995 (1) L.W 680, wherein, it

has been held as follows:

There is no statutory definition of adverse possession. Adverse possession refers to actual and exclusive possession coupled with intention to

hold as owner. Adverse possession becomes hostile to the rightful owner, when a person openly and continuously possesses a land under a claim

of right adverse to the title of the true owner for the statutory period. Adverse possession means a hostile possession which is express or implied in

denial of the title of the true owner. Such possession must be actual and exclusive, under a claim of right, adequate in continuity in publicity and in

extent so as to show that it is adverse to the true owner. Such possession, in denial of title of the true owner must be peaceful, open and

continuous. Mere possession without a claim of right for over a long time is not sufficient to create adverse possession. A mere user of property

cannot be taken as a definite assertion of proprietary right, there must be some definite quality in the possession, before it can be called adverse

and there must be some fact of unequivocal character which may put the owner on guard. There can be no adverse possession if the person claims

does not know that he is enjoying somebody else''s land. He must have the intention of using the property adversely against the another having an

interest in it. To summarise it, a person by holding possession of the property for the statutory period can acquire title only when his possession is

(1) under a claim of title, (2) hostile to the true owner and (3) actual, open, uninterpreted, continuous and exclusive.

It is well established that a person who claims title to the property by adverse possession must definitely allege and prove how and when

adverse possession commences and what was the nature of his possession....

The simple point for consideration in both the Second Appeals is that whether the Plaintiffs in O.S. No. 63/1995 have proved that the said

Deivanai Ammal was in permissive possession of smaller extent in the disputed land to put up a tiled shed in view of irrigation of the land from her

well, which was in the higher level than the rest of the Plaintiffs'' land and whether the said Deivanai Ammal had perfected her title by adverse

possession of disputed area of one acre.

The Plaintiffs in their pleading would admit the following facts:

(i) An extent of one acre on the southern side in S. No. 781/1 is on the higher level.

(ii) The said Deivanai Ammal was in possession and enjoyment of her property on further south, which is in the same level as that of one acre.

(iii) She was irrigating the disputed land of one acre in S. No. 781/1 from her ''well'' situated in S. No. 781/2, for which she was permitted to pup

up a tiled shed.

(iv) This arrangement of permissive possession was given 10 years prior to the filing of the suit in O.S. No. 63/1995.

The suit was filed for a declaration that the Plaintiffs are entitled to the title of 4 acres 68 cents in S. No. 781/1, which is the first schedule of

the property and for recovery of possession of an extent of 20 x 10 feet of tiled shed put up by the said Deivanai Ammal with the permission of the

Plaintiffs, which is the second scheduled property. As stated supra, the injunction relief against the Plaintiffs is for an extent of one acre in S. No.

781/1-A. A Commissioner was appointed in the trial Court and he had inspected the property and filed a report and plan. Admittedly, S. No.

781/1 was originally for an extent of 4 acres 68 cents. The title of the entire land stand in the name of the Plaintiffs. It is also proved by Ex.A1,

Partition Deed, Exs.A2, A3, A7 & A8, sale deeds. As per Ex.A22, settlement deed dated 04.07.1960, the said Deivanai Ammal had acquired a

land in S. No. 781/2, which is on the further south of S. No. 781/1. In all these documents, the southern boundary of the Plaintiffs land is shown as

Deivanai Ammal''s property and for the Deivanai Ammal''s land, the northern boundary is shown as the Plaintiff''s property. The lower appellate

Court had found that the entire 4 acre 68 cents forms one block in S. No. 781/1 and the Plaintiffs have proved their title and also possession by

filing ''Kist'' receipts and ''Adangal'' under Exs.P.10 to P.21.

According to the learned Counsel for the Appellants, the lower appellate Court has missed the point that the dispute is only relating to one acre

which is in higher level and the same is in the possession of the Deivanai Ammal.

In the sketch, Ex.C.2, the Commissioner had also shown a separate boundary line for the disputed property, which is admittedly sub-divided

as S. No. 781/1-A. But, the extent is shown as 70 cents. However, the dispute is only in respect of this land, which is in the higher level.

The learned Counsel for the Appellants would submit that the Plaintiff had pleaded permissive possession and failed to establish the same and

in that event, the plea of the Defendants that Deivanai ammal had perfected title by adverse possession has to be presumed.

On the contrary, the learned Counsel for the Respondents would submit that it is well established principle that a person, who claims title by

adverse possession has to definitely plead and prove how and when the adverse possession commences and what was the nature of these

possession. The learned Counsel would also submit that mere possession by the said Deivanai Ammal will not confer any title.

It is well settled that the adverse possession must be pleaded, proved and hostile against the true owner. Mere usage of the property cannot be

taken as a definite assertion of a property right. A person by holding possession of the property for the statutory period can acquire title, only when

his possession is under a claim of title, hostile to the true owner, actual, open, uninterrupted, continuous and exclusive.

In the present case, there is an admission by the Plaintiff that the said Deivani Ammal was permitted to possess the land and put up a titled

shed for about 10 years prior to the filing of the suit. It is also pleaded that this permission was given in view of the land being irrigated from her

''well'' and actually, the Plaintiffs were cultivating the land. When the Plaintiff pleads permissive possession of the Defendant and failed to establish

the same, it is not for the Defendant to establish his or her adverse possession for the statutory period but the Plaintiff must prove his possession

within 12 years.

When there is an admission by the Plaintiffs that the Defendant is in permissive possession either for a larger extent or a smaller extent, the

burden is heavily upon the Plaintiffs to prove the said possession is within 12 years and it is not for the Defendants to prove how and when adverse

possession commenced. If the Plaintiff pleads that the permissive possession is only 10 years prior to the filing of the suit, he has to prove the same.

25 In the present suit, the Plaintiff acquires the property under the partition deed, dated 06.05.1968, (Ex.A1) and the sale deeds, dated

30.05.1968, 10.08.1989, and 07.07.1989 (Ex.A2 Ex.7 & 8). Deivanai Ammal acquires title under Ex.A22 dated 04.07.1960. Ex.B3 would

show that she was living there prior to or around 1963 and continuously paying ''Kist''.

The Full Bench of this Court in The official Receiver of East Godavari at Rajamundry reported in The Official Receiver of East Godavari Vs.

Chava Govindaraju and Another, was deciding a reference by a single Judge and the reference was

whether, in a case where the Plaintiff sets up a case of permissive possession and fails to prove it, the burden then lies upon the Plaintiff to prove

that he was in possession within 12 years of suit, or whether the onus is upon the Defendant to prove adverse possession for a period of 12 years.

The Hon''ble Sir Alfred Henry Lionel Leach, Chief Justice, has held that

in my opinion, the Plaintiff, who is suing for possession of property in the occupation of another cannot rest his case on title alone. He must show

that he has exercised the rights of ownership by being in possession within 12 years of suit.

It is well settled law that a person, who claims title to the property by adverse possession must definitely allege and prove how and when

adverse possession commences, but such onus will not be called for when the Plaintiff sets up a case of permissive possession or in other words,

the burden is upon the Plaintiff to prove that the Defendant was in permissive possession within 12 years of filing of the suit.

It is well settled law that the admission is the best form of evidence. In R. Anandavalli Vs. Alagammal and Others, , the Division Bench of this

Court has held that ""Admission is the best form of evidence and the Plaintiff can certainly rely on this"". In Shreedhar Govind Kamerkar v.

Yesahwant Govind Kamerkar and Anr. reported in 2006 (13) SCC 481 the Hon''ble Supreme Court has held that ""Admission, as is well known,

is the best proof of a claim. Section 58 of the Evidence Act states that the facts admitted need not be proved"". In Avtar Singh and Other and

Gurdial Singh and Other reported in (2006 (12) SCC 552) the Hon''ble Supreme Court has held that ""Admission, it is well know, forms the best

evidence. It may be that admission does not create any title, but the nature of the land can form subject-matter of admission"".

The judgment of the Supreme Court in Mahendra Manilal Nanavati Vs. Sushila Mahendra Nanavati, , which is referred by the Appellant is a

case relating to matrimonial dispute and there is a finding that there is an admission by the parties that the child was conceived before the marriage.

This judgment is not relevant to the Substantial Questions of Law before this Court.

However, as stated earlier, the decision of this Court in Ponnaiyan v. Munian (died) and Ors. reported in 1995 (1) L.W 680, wherein this

Court has held that ""a person by holding possession of property for the statutory period can acquire title only when his possession is under a claim

of title, hostile to the true owner, actual, open and uninterrupted, continuous and exclusive and that person must allege and prove such adverse

possession is not applicable to the present case"".

The present case false on the category where a Plaintiff sets up a case of permissive possession and fails to prove it. Hence, the burden lies

upon the Plaintiff to prove that such possession is within 12 years of suit and the onus is not upon to the Defendant to prove adverse possession for

a period of 12 years.

The Plaintiff did not specifically state that when he permitted Deivanai Ammal to be in possession of the disputed property, whereas there are

ample documentary evidence to show that Deivanai Ammal was in possession from 1963 and the suit was filed in 1995. Therefore, the lower

appellate Court is wrong in holding that the Plaintiff has proved the title and possession through Ex.A1. Partition Deed.

In my considered view, the trial Court has correctly found that the Plaintiff, who sets up a plea of permissive possession has failed to discharge

his burden that he was in possession within 12 years prior to the suit and mere proof of title was not enough to place the burden of proof to the

Defendant to claim adverse possession.

In the result, these second appeals are allowed. The judgment and decree passed in A.S. Nos. 79 & 80 of 1996, dated 06.08.1997 are set

aside and the decree and judgment made in O.S. No. 63 & 132 of 1995 are restored. No costs.