K. Thangavel vs Ramasamy and Others

G. Rajasuria, J.—This second appeal is focussed by the defendant, inveighing the judgment and decree dated 29.04.2011 passed by the

learned Subordinate Judge, Dharmapuri in A.S. No. 48 of 2008 confirming the judgment and decree dated 30.04.2008 passed by the learned

District Munsif, Palacode in O.S. No. 260 of 1997. The parties, for the sake of convenience, are referred to here under according to their litigative

status and ranking before the trial Court.

Heard both sides.

The epitome and the long and short of the germane facts absolutely necessary for the disposal of this second appeal would run thus:

a. The plaintiffs filed the suit seeking the following reliefs:

- to declare the plaintiffs title to the suit property fully described here under in the schedule.

- to direct the defendant to deliver the possession of the suit property to the plaintiff.

- to grant permanent injunction restraining the defendant from alienating the suit property to any third parties and

- to award costs of the suit.

(extracted as such)

in respect of the properties described in the schedule of the plaint as under:

In Dharmapuri, R.D., Palacode SRD, in Palacode Taluk, Marandahalli town panchayat Ward No. 8, Bazaar Street the thatched house building

bearing D. No. 93 situate within the following boundaries:-

West of the Bazaar street;

East of the vacant site of the plaintiff;

North of the Poramboke site and

South of the vacant site of the plaintiff;

East to West measuring 47 feet

North to South measuring 15 feet

Total Extent of 705 sq. feet

(extracted as such)

The warp and woof of the averment in the plaint would run thus:

The original owner of the suit property viz., Muni Udayar entered into an agreement to sell with the propositus of the plaintiff, viz., Arumuga

Udayar, who was driven to the extent of approaching the court by filing a suit in O.S. No. 49 of 1965 seeking specific performance. Whereupon

the court decreed the suit on 02.12.1965 and he got the sale deed executed by the court in his favour in respect of the larger extent of the

property, of which the suit property forms a part. It so happened that the father of the defendant entered into the suit property as a tenant under the

propositus of the plaintiffs, viz., Arumuga Udayar. Subsequently, the father of the defendant died and the defendant has been in possession and

enjoyment of it. Inasmuch as the defendant was belligerent in occupying the suit property without vacating it despite demands made by the

plaintiffs, who happened to be the legal heirs of the propositus Arumuga Udayar, RCOP was filed. It was litigated upto the High Court, which

ultimately, referred the parties to the Civil Court because the defendant raised title dispute. Having no other go, since the plaintiffs were driven to

the extent of filing the suit as against the defendant, the present suit was filed seeking the aforesaid reliefs.

b. The suit was resisted by the defendant contending that the suit property was a Government poramboke land and the plaintiffs'' propositus

Aruguma Udayar did not take possession of the suit property through court even though he claimed to have got executed by court, the sale deed in

his favour.

Accordingly, the defendant prayed for the dismissal of the suit.

c. Whereupon issues were framed by the trial court.

d. Up went the trial, during which, on the plaintiffs'' side P.Ws. 1 to 3 were examined and Exs. A1 to A21 were marked. The defendant examined

himself as DW 1 along with D.Ws. 2 and 3 and marked Exs. B1 to B18.

e. Ultimately, the trial court dismissed the suit as against which, appeal was filed by the defendant for nothing but to be dismissed by the first

appellate court confirming the judgment and decree of the trial court.

f. Challenging and impugning the judgments and decrees of both the fora below, the defendant has preferred this second appeal by suggesting the

following substantial questions of law:

a) Whether the courts below erred in upholding the title of the plaintiffs dehors the order dated 25.11.1991 made in CRP No. 2586 of 1990 (Ex.

A3) particularly in the light of the fact that the suit property is a ""poramboke"" as evident from the evidence of D.W. 2 (VAO) and Natham patta

Ex. B16?

b) Whether the courts below have committed an error in decreeing the suit by upholding the title of the plaintiffs under Ex. A5 (17.01.1971) in the

absence of any legal evidence to prove the fact that the possession was taken by the plaintiff in O.S. No. 49 of 1965 within a period of limitation?

c) Whether the suit for eviction is barred by the principle of constructive res judicata in view of the findings given in the order dated 25.11.1991

made in CRP NO. 2586 of 1990 (Ex. A3)?

d) Whether the courts below erred in law in rejected the claim of possessory title pleaded by the defendant on the basis of his ""settled possession""?

e) Whether the suit is bad for non-joinder of the State which is not only a necessary and also a proper party to the suit for effective and complete

adjudication of the dispute in the light of the defence that the suit property is a Natham poramboke?

(extracted as such)

The learned counsel for the appellant/defendant would pyramid his argument, which could succinctly and precisely be set out thus:

(i) The onus of proof is on the plaintiffs'' to prove the title; but they miserably failed to establish the same.

(ii) The courts below simply picked holes in the case of the defendant and decreed the suit.

(iii) At no point of time, the suit property was in the possession and enjoyment of either the plaintiffs or Arumuga Udayar or Muni Udayar.

(iv) In fact, as revealed by Ex. B7, Muni Udayar leased out an adjacent area to the suit property in favour of one Chandran and in such a case, the

plaintiffs'' father Arumuga Udayar could not have taken delivery of the possession as a sequel to the sale deed, Ex. A5, which he got executed in

his favour by the court.

(v) Both the courts failed to take note of the same, but simply placing reliance on Ex. A5 decreed the prayer of the plaintiffs, warranting

interference in second appeal.

(vi) The learned counsel for the defendant by placing reliance on the order of this court as contained in Ex. A3 in CRP No. 2586 of 1990 would

submit that constructive res judicata would be squarely applicable in the facts and circumstances of this case, as the findings by the court in the

earlier RCOP proceedings would non-suit the plaintiff.

(vii) The suit is also bad for non-joinder of the Government as one of the parties.

Accordingly, the learned counsel for the appellant/defendant would pray for allowing this second appeal.

Per contra, the learned counsel for the respondents/plaintiffs would advance his argument, the nitty gritty, the gist and kernel of it would run thus:

(i) The findings given in the previous RCOP proceedings would have no binding effect on title to the plaintiffs.

(ii) In the present suit, the plaintiffs'' independently adduced both oral and documentary evidence and established their title over which, there could

be no controversy at all.

(iii) The schedule of properties as found described in Ex. A9 and Ex. A5 would tally with each other.

(iv) There was no necessity arose for Arumuga Udayar to file an E.P. and take delivery of the property covered under Ex. A5 because as on that

date the property was available for him to take possession.

(v) Inasmuch as in the earlier proceedings initiated by Arumuga Udayar, he was driven to the civil court for filing a regular suit, after his death his

propositus have filed the present suit.

(vi) During the pendency of the suit the defendant clandestinely got patta in his name from the Revenue Department, however on coming to know

of the same, the plaintiffs'' took steps and preferred appeal; whereupon, the appellate authority stayed the proceedings.

(vii) The defendant cannot blow hot and cold; in one breadth he would state that he was not the tenant under Arumuga Udayar as it was a

government poramboke but, in another breadth he would contend that he acquired title over it and sought for patta.

(viii) Taking into consideration the fact that the plaintiffs'' got title and that the defendant did not have title, both the courts below passed

appropriate judgments declaring the title of the plaintiff and ordered eviction of the defendant also.

Accordingly, the learned counsel for the respondents/plaintiffs would pray for the dismissal of the second appeal.

A mere running of the eye over the records would exemplify and demonstrate, connote and denote that originally one Muni Udayar happened to

be the owner of the larger extent of the property as revealed by Ex. A9 dated 17.03.1949, the original partition deed executed by Muni Udayar

and others bearing the following description there under:

(***)

(extracted as such)

Similarly, the court as per Ex. A5 executed the sale deed in favour of Arumuga Udayar by virtue of the decree passed in O.S. No. 49 of 1965

specifying the following description of property.

(***)

(extracted as such)

A mere running of the eye over those two schedule of properties would connote and denote that the description of properties as found in both the

deeds do tally with each other. The suit property extracted supra would clearly indicate and exemplify that it forms part of the properties

contemplated in Ex. A9 as well as Ex. A5.

Wherefore, it is crystal clear that the plaintiffs have got title over the suit property. No doubt, through the court, delivery of possession of the

property contemplated in Ex. A5 was not taken. However, the plaintiffs would state that since there was no necessity for them to take delivery as

the property was available for them to take possession, no EP was filed.

Be that as it may, now in the present suit, this court is concerned with the fact as to who between the plaintiffs and the defendant, is having

paramount and better title.

At this juncture, I would like to recollect the settled proposition of law that in matters of this nature, the judgment to be pronounced is judgment

in personam and not judgment in rem. The court has to weigh as in whose favour the weighty evidence is available either with the plaintiffs or with

the defendant. Accordingly, the lis has to be decided. It is also a well known legal adage that the litigant who furnished better evidence before the

court will have better claim.

Accordingly, both the courts below after analysing the oral and documentary evidence gave a finding that the plaintiffs are having better title

and consequently declared their title over the suit property. The defendant even though pleaded that the property belonged to the Government

poramboke land, nonetheless he would lay claim over it as poramboke.

Patta will not confer title and that too after the arisal of the dispute, so to say, the RCOP proceedings.

The following decisions would exemplify with the legal position.

(i) Velayudham Pillai Vs. Sandhosa Nadar and Others,

(ii) Kuppuswami Nainar Vs. The District Revenue Officer and Others,

(iii) Srinivasan and six others Vs. Sri Madhyarjuneswaraswami and five others,

(iv) 2008 (7) MLJ 1183 [Venkatachalam (died) and others vs. Rajammal and others]

(v) 2009 (3) CTC 493 R. Pannerselvam vs. A. Subramanian and another]

The above precedents would connote and denote that mere patta would not confer title. Furthermore, the appellate authority, viz., DRO also

passed orders stating that the parties should abide by the civil court''s decision as revealed by Ex. A22. Since the civil court is the competent court

to declare the title of the individual, the DRO appropriately and appositely, legally and correctly observed as above and closed the proceedings.

Precisely, it is the case of the defendant that his father started occupying the suit property during the year 1945 in his own capacity and after his

death his son is occupying the suit property. As such, he would try to press into service the concept adverse possession. However, he would also

acknowledge that the said Muni Udayar happened to be the owner of the entire property, of which the suit property forms a part.

At this juncture, I would like to refer to the Hon''ble Apex Court judgment reported in P.T. Munichikkanna Reddy and Others Vs. Revamma

and Others, Certain excerpts from it would run thus:

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; Arkansas Commemorative Commission v. City of Little Rock;

Monnot v. Murphy; City of Rock Springs v. Sturm.)

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 one s 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.

Also See Privy Council''s decision in Chung Ping Kwan and Others v. Lam Island Development Company Limited (Hong Kong) (1997) Ac 38

in this regard.

Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:

Application of limitation provision thereby jurisprudentially willful neglect element on part of the owner established. Successful application in this

regard distances the title of the land from the paper-owner.

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.

It is interesting to see the development of adverse possession law in the backdrop of the status of right to property in the 21st century. The

aspect of stronger property rights regime in general, coupled with efficient legal regimes furthering the rule of law argument, has redefined the

thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of human rights jurisprudence in recent times has

also palpably affected the developments in this regard.

New consideration in adverse possession law

In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom wherein the European Court of Human Rights while referring

to the Court of Appeal judgment JA Pye (Oxford) Ltd. v. Graham made the following reference:

Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process

whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the

Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right

of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages:

there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol.

Importantly, intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. The factum of

possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the

appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which

is required for adverse possession to materialise.

A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in

Karnataka Board of Wakf v. Govt. of India in the following terms: (SCC p. 785, para 11)

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.

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 gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness 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.

The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the

plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64

and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its

title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have

succinctly been stated by this Court in S.M. Karim v. Bibi Sakina in the following terms: (AIR p. 1256, para 5)

Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes

adverse so that the starting point of limitation against the party affected can be found.

(emphasis supplied)

Wherefore, it is clear that the burden of proof is very heavy on the plaintiff to prove his plea of prescription or adverse possession.

I recollect and call up the following maxims:

(i) Affirmantis est probare He who affirms must prove.

(ii) Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies.

No doubt, I am fully aware of the maxim - Favorabiliores rei potius quam actores habentur Defendants are held to be in a more favourable

position than pursuers.

So far as this defendant is concerned, he cannot take shelter under the aforesaid last cited maxim, because the burden of proof is ambulatory.

My above discussion supra based on documentary and oral evidence would reveal that the plaintiffs established their title over the suit

property; whereupon the burden to prove the plea of the defendant got shifted towards the defendant''s side, who specifically contended that he

acquired title over the suit property by way of prescription and adverse possession. As far as the defendant is concerned, he was bound to prove

his plea of prescription or adverse possession.

The learned counsel for the respondents/plaintiffs would appropriately and appositely inviting the attention of this court to the documentary

evidence in Exs. B1 to B18 and also the oral evidence would pyramid his argument that all those documents emerged subsequent to the RCOP

proceedings initiated by Arumuga Udayar the propositus of the plaintiff. As such, his argument is quite acceptable and virtually it amounts to the

defendant have not adduced any miniscule or molecular, iota or shred, jot or pint of evidence in support of his plea of prescription.

No doubt, as per the maxim jus superveniens auctori accrescit successori, A right growing to a possessor accrues to the successor. The

descendants of the person in possession or successor in possession can rely upon the possession of his predecessor.

However, in this case even though he pleaded that his father started occupying the suit property ever since 1945 and after his death the

defendant has been in possession yet no clinching evidence is forthcoming. Not to put too fine a point on it, in this factual matrix, I am of the

considered view that absolutely both the courts below were justified in negativing the plea of the defendant.

The contention on the side of the defendant that the findings in the earlier RCOP proceedings that there was a title dispute between the plaintiff

and the defendant, would not enure to the benefit of the defendant in contending as though already the court had decided that the plaintiff is not the

owner.

Trite as it is, that the RCOP proceedings are summary in nature and in the RCOP proceedings, title cannot be gone into. In such a case, the

plea of constructive res judicata sought to be pressed into service has to be negatived.

I recollect and call up the recent decision of the Hon''ble Apex Court reported in Union of India (UOI) Vs. Ibrahim Uddin and Another, ; an

excerpt from it would run thus:

Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of

facts or of law. In State Bank of India and Others Vs. S.N. Goyal, this Court explained the terms ""substantial question of law"" and observed as

under: (SCC p. 103, para 13)

13... The word ""substantial"" prefixed to ''question of law'' does not refer to the stakes involved in the case, nor intended to refer only to questions

of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. ''Substantial

questions of law'' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as

between the parties...... any question of law which affects the final decision in a case is a substantial question of law as between the parties. A

question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law...... There

cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case.

(emphasis added)

In the same precedent, the following decisions are found referred to:

(1) Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd.,

(2) Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi,

(3 AIR 1947 19 (Privy Council)

(4) (1949) 17 ITR 269

(5) Oriental Investment Co. Ltd. Vs. Commissioner of Income Tax, Bombay,

(6) Jagdish Singh Vs. Natthu Singh,

(7) Prativa Devi Vs. T.V. Krishnan,

(8 Smt. Satya Gupta Alias Madhu Gupta Vs. Brijesh Kumar,

(9) Ragavendra Kumar Vs. Firm Prem Machinary and Co.,

(10) Molar Mal (Dead) Through L.Rs. Vs. M/s. Kay Iron Works(P) Ltd.,

(11) Bharatha Matha and Another Vs. R. Vijaya Renganathan and Others,

(12) Dinesh Kumar Vs. Yusuf Ali,

(13) Jai Singh Vs. Shakuntala,

(14) Kashmir Singh Vs. Harnam Singh and Another,

Accordingly, if viewed, in this factual matrix, a fortiori, there is no question of law much less substantial question of law is involved in this second

appeal for consideration.

In the result, this second appeal is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is

closed.

***