Karmega Kone vs Udayar Kone and Others

T. Ramaprasada Rao, C.J.—The first defendant in O.S. No. 67 of 1970 on the file of the Court of the District Munsif of Ramanathapuram

is the appellant herein. The plaintiffs came to Court for a declaration of their title to the suit property and for a permanent injunction restraining the

first defendant, who is the grandson of the second defendant, and also the second defendant, from interfering with the plaintiffs'' possession of the

suit property, or, in the alternative, for recovery of possession. Both the Courts found that the plaintiffs-respondents were entitled to the suit

property. The trial Court was, however, of view that, not withstanding such vesting of title in the plaintiffs they had lost it, because the defendants

were adversely in possession of the suit property for the prescribed time as against the true owners and that therefore the plaintiff were net entitled

to either possession or declaration as prayed for. On appeal, however, the appellate Court noticed that there was no plea as to adverse possession

as required in law and therefore held that, in the absence of such a pleading, the appellant-defendant could not succeed on a bare story of

entitlement on the basis of adverse possession trotted out in the course of the trial. In that view, the appellate Court allowed the appeal, set aside

the judgment and decree of the trial Court and decreed the suit as prayed for. The first defendant has filed the present appeal as against the said

judgment.

The only question which arises for consideration is whether a litigant, without expressly setting up a plea of adverse possession, can succeed on

such a circumventory title, even though the litigant is unable to prove his basic and real title to the property under litigation. Following the judgment

of the Supreme Court in S.M. Karim Vs. Mst. Bibi Sakina, , wherein the Supreme Court had observed that not only should there be proof of

continuity, publicity and extent while setting up a plea of adverse possession, but such a plea should also be expressly pleaded to show as to when

possession became adverse as against the real owner, so that the starting point of limitation against the party affected, could be found, and the

rights of parties adjudicated upon, the appellate Court reversed the judgment of the trial Court.

The plea of adverse possession is essentially a question based upon provable facts and cannot rest upon mere surmises and stories earved out in

the course of the trial and in the witness box. The plea of adverse possession stands on the same footing as the plea of estoppel. It has been the

consistent view of Courts that a plea of estoppel has to be Pleaded and not only pleaded but also proved. So also a plea of adverse possession,

which again rests upon proof of positive and essential facts, has to be pleaded, so that the adversary might be able to meet the specific case of the

party, who unjustly wishes to wrest the property belonging to another and claim title it. himself on the plea of adverse possession. A plea of

adverse possession essentially implies that the person claiming title to a property on that basis does not own it. He wishes to snatch it from the real

owner on the ban ground that he was continuously, publicly and openly in possession of the property of the adversary to the knowledge of the

adversary and without any objection or intervention on the part of the real owner. These are essential facts which form the rocky foundation of the

plea of adverse possession. The law requires an express pleading on that question for the simple reason that the real owner, who is said to have

been lethargic, might set up a case (might be true in some cases) that such possession of the claimant was only permissive and was never intended

to be adverse so far at his real title was concerned and that, even it it could be projected as such an adverse claim, the time from which it should be

deemed to have commenced should also be made specific and public, so that the real owner might be given a fair and just opportunity to plead

otherwise and set up a case that such adverse possession as claimed by the other person did not begin on the date claimed by him. It is because of

such necessity of proof of such essential elements like those enumerated above that the law requires a specific plea in the pleading regarding

adverse possession. These things being absent in this case, and the pica having been set up only in the course of the trial, the learned appellate

Judge was right in having negatived the claim of the appellant based solely upon the theory of adverse possession, which was not pleaded, thought

sought to be proved in the course of trial.

The judgment of the appellate Court is right. The second appeal does not pose any other question of law. The second appeal is accordingly

dismissed. There will be no order as to costs.