M. Ponnaiya vs Balammal (Died) and Others

Honourable Mr. Justice G. Rajasuria

1.This second appeal is focussed by the defendant animadverting upon the judgment and decree dated 25.09.1998 made in A.S.No.155 of 1996 on the file of the Principal Subordinate Judge, Madurai, in confirming the judgment and decree dated 27.08.1996 made in O.S.No.994 of 1989 on the file of the Additional District Munsif, Madurai.

The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.

A thumbnail sketch of the relevant facts absolutely necessary and germane for the disposal of the second appeal, would run thus:

The original plaintiff -Kuppammal who died pending the proceedings filed the suit as against the defendant seeking the following reliefs:

(a) declaring that the property described in the schedule hereunder belongs to the plaintiff absolutely;

(b) and in consequence, granting possession of the property described in the schedule hereunder to the plaintiff by the defendant after removing the defendant or any one claiming under him;

(c) directing the defendant to pay to the plaintiff the costs of suit;

(extracted as such)

The defendant filed the written statement resisting the suit.

Whereupon the trial Court framed the relevant issues.

During trial, P.W.1 was examined and Exs.A.1 to A.3 were marked on the side of the plaintiff. D.W.1 and D.W.2 were examined and Exs.B.1 to B.12 were marked on the side of the defendant. Exs.C.1 and C.2 were marked as Court documents.

Ultimately, the trial Court decreed the suit, as against which the appeal was filed by the defendant. During the pendency of the appeal, the original plaintiff died and her legal representatives were added as the plaintiffs 2 to 5. Ultimately, the first appellate Court dismissed the said appeal.

Being aggrieved by and dissatisfied with the judgments and decrees of both the Courts below, the defendant filed the present second appeal on various grounds and also suggesting the following substantial questions of law:

(a) Whether the Courts below are right in rejecting the plea of the defendant that he had perfected title by adverse possession in the face of Exs.B.1 t B.11;

(b) Whether the Courts below are right in accepting the plaintiff''s case that the defendant had encroached the suit property in 1984 without any records on the plaintiff''s side regarding his possession from the date of assignment;

(c) Whether the Courts below are right in negativing the plea of adverse possession without properly adverting any of the documents filed by the defendant?

(extracted as such)

At the outset itself, I recollect and recall the following decisions of the Honourable Apex Court:

(i) Hero Vinoth (minor) Vs. Seshammal, .

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

(iii) State Bank of India and Others v. S.N.Goya reported in 2009 1 L.W.1

A plain reading of those precedents would reveal and demonstrate that u/s 100 of the Code of Civil Procedure, Second Appeal cannot be entertained, unless substantial question of law is involved.

Keeping in mind the aforesaid dictum, I heard the arguments advanced on both sides.

Pithily and precisely the arguments as advanced by the learned Counsel for the defendant would run thus:

(a) Indubitably and indisputably, unarguably and unassailably, the defendant has been in possession and enjoyment of the suit property for over the statutory period and for that matter, even as on the date of the alleged assignment of plot No.98 in favour of the plaintiff by the Government, the defendant was in possession and he continues to be in possession of the suit property measuring an extent of one cent which forms part of the plot No.98. Both the Courts below did not consider the admitted factual position, but kept on finding fault with the defendant as though the defendant did not prove that he had been in possession and enjoyment of the suit property by producing clinching evidence.

(b) The onus probandi is on the plaintiff to prove that she took possession as per the assignment given by the Government. The first appellate Court even though went to the extent of clearly detailing and delineating the fact that the plaintiff herself admitted before the Court that as on the date of allotment of the plot No.98, a part of it, was not in her possession, but the said part which constituted the suit property measuring an extent of one cent was with the defendant in addition to the his own plot bearing No.97 which is situated to the east of the plot No.98, yet it held erroneously as though the defendant did not prove his right of ownership over the suit property.

(c) The expectation of both the Courts below dehors the documents filed by the defendant that there should be evidence to establish and prove that he acquired prescriptive title over the suit property. The additional documents, two in number, out of which one even though emerged during the pendency of the suit, would throw much light on the subject that the Government itself rectified the error committed by it in granting the assignment in favour of the plaintiff and as such, the judgments and decrees of both the Courts below should be set aside and the original suit should be dismissed.

In a bid to shoot down and mince meat, the arguments and contentions as put forth and set forth on the defendant''s side, the learned Counsel for the plaintiff piloted her arguments which could precisely and tersely be set out thus:

The onus probandi is on the defendant to prove his plea that he acquired prescriptive title over the suit property by adverse possession. In fact, the plaintiff as well as the defendant are only the allottees of the respective plots namely plot Nos.98 and 97 respectively and those are adjacent plots and in such a case, it would not lie in the mouth of the defendant to contend that he acquired prescriptive title over a portion of the plot allotted to the plaintiff. The pendente lite document sought to be filed as additional document is not at all germane for deciding the lis and even the copy of the lay out plan is not relevant for deciding the second appeal and accordingly, he prays for the dismissal of this second appeal.

A mere poring over and perusal of the judgments and decrees of both the Courts below would indicate and evince that both the Courts below au fait with law analysed all the documents and also the oral evidence. No stone was left unturned in analysing the evidence and ultimately, the trial Court precisely and pithily highlighted that none of the defendant''s twelve documents were capable of proving or establishing, demonstrating or displaying that over the suit property measuring one cent which forms part of the earlier portion of the plot No.98 allotted by the Government in favour of the plaintiff, the defendant acquired ownership. The first appellate Court also expounded and explained the position by pointing out that the plaintiff did not in any manner admit that the defendant enjoyed the suit property as owner.

Hence, in these circumstances, I would like to recall the decision of the Honourable Apex Court in P.T. Munichikkanna Reddy and Others Vs. Revamma and Others, . Certain excerpts from it, would run thus:

In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom10 wherein the European Court of Human Rights while referring to the Court of Appeal judgment JA Pye (Oxford) Ltd. v. Graham11 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.

This brings us to the issue of mental element in adverse possessioncases-intention.

***

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.

*****

On intention, Powell v. McFarlane14 is quite illustrative and categorical, holding in the following terms:

If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess(''animus possidendi'').

***

If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.

***

In my judgment it is consistent with principle as well as authority that a person who originally entered another''s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner.

***

What is really meant, in my judgment, is that the animus possidendi involves the intention, in one''s own name and on one''s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.

(emphasis supplied)

Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and the plaintiff has an opportunity to object. After all adverse possession right is not a

substantive right but a result of the waiving (wilful) or omission (negligent or otherwise) of the right to defend or care for the integrity of property on the part of the paper-owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.

While dealing with the aspect of intention in the adverse possession law, it is important to understand its nuances from varied angles.

*****

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,para11)

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 noticeandopportunitytothepaper-owner.

*****

Inquiry into the starting point of adverse possession i.e. dates as to when the paper-owner got dispossessed is an important aspect to be considered. In the instant case the starting point of adverse possession and other facts such as the manner in which the possession operationalised, nature of possession: whether open, continuous, uninterrupted or hostile possession, have not been disclosed. An observation has been made in this regard in S.M. Karim v. Bibi Sakina: (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. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for ''several 12 years'' or that the plaintiff had acquired ''an absolute title'' was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.

(emphasis supplied)

Also mention as to the real owner of the property must be specifically made in an adverse possession claim.

In Karnataka Wakf Board it is stated: (SCC pp. 785-86, para 12)

A plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. In P. Periasami v. P. Periathambi this Court ruled that: (SCC p. 527, para 5)

''Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owneroftheproperty.''

The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar that is similar to the case in hand, this Court held: (SCC pp. 640-41, para 4)

''4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant''s claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.

(emphasis supplied)

It is, therefore, pellucidly and palpably, glaringly and plainly understandable that the onus of proof is on the party who pleads adverse possession and not on the plaintiff who claims possession based on title.

It is indeed an admitted fact that originally, both the plot Nos.97 and 98 and the rest of the area in that vicinity belonged to the Government as poramboke land and the Government decided to grant the same as assignments. As such, plot No.98 was assigned given to the plaintiff and plot No.97 situated to the east of plot No.98 was assigned to the defendant. In such a case, the question of the defendant claiming prescriptive title over the suit property, does not arise at all.

The learned Counsel for the defendant would venture to contend that earlier under B memo, the defendant was enjoying the suit property along with the property situated to the east of the suit property and as a sequelae, it should be taken that he acquired prescriptive title over it. Such an argument fails to carry conviction with this Court for the reason that mere proving of possession simplicitor would not confer such individual with animus possidendi. It should have been clearly pleaded and proved by the defendant as from what point of time, he started enjoying the suit property as owner. The trial Court referred to all twelve the documents as Exs.B.1 to B.12 marked on the side of the defendant and after due analysis, held that in none of the documents, the suit property was found referred to and there were references to plot No.97 only. The Court should not assume and presume that those documents are referring to the suit property only.

Corpus possessionis and animus possidendi are the concepts which require a detailed analysis. Certain excerpts from " Salmond on Jurisprudence - Twelfth Edition" -Pages 272 -274, would run thus:

... Many jurists have distinguished two such elements. Salmond considered that possession consisted of a corpus possessionis and an animus possidendi. The former, he thought, comprised both the power to use the thing possessed and the existence of grounds for the expectation that the possessor''s use will not be interfered with. The latter consisted of an intent to appropriate to oneself the exclusive use of the thing possessed.

It is certainly true that in assessing whether possession has been acquired, lost or abandoned intention may be highly relevant. Moreover, it is doubtful whether in ordinary usage possession could be ascribed to a person utterly unable to form any intentions whatsoever: it would be odd to describe a day-old baby or a man in a protracted coma as actually (as opposed to legally) possessing anything at all. As against this, however, we may find counter-examples of possession unaccompanied by intention. I should normally be said to possess the coins in my pocket, even if unaware of their existence and so unable to form any intention in respect of them. Can we say then that what the possessor needs is at least a minimum intention, an intent to exclude others from whatever may be in his pocket? To this there are two replies. First, in its widest and loosest sense, the sense in which "possesses" simply means "has", I can be said to possess such things as a fine head of hair, a stout heart or a good sense of humour -without any question of intent arising. Secondly, in the narrower sense, where the subject matter of possession consists of material objects other than parts of the possessor''s own body it is misleading to assert that the possessor must actually be intending anything at all. If I possess something, then it is true that if my intention of excluding such interference. But unless my possession is under attack -and in the normal course of events it is not; furthermore it would be highly unusual to find a man''s possession under constant attack -no question of, or need for, intent is involved.

The test then for determining whether a man is in possession of anything is whether he is in general control of it. Unless he is actually holding or using it -in which event he clearly has possession -we have to ask whether the facts are such that we can expect him to be able to enjoy the use of it without interference on the part of others. There will always, of course, be border-line cases. Suppose I become paralysed: am I still in possession of the cost by my side? Such questions need not detain us, for the ordinary concept of possession is not designed to cope with such marginal cases, while the existence of legal rules relating to legal possession will answer such questions and obviate the need for any decision in terms of possession in fact.

We have seen that the word "possess" is sometimes used in a very wide sense to mean "have". Thus I can be said to possess a sense of humour. I can also be said to possess certain rights, and here the term can be used to draw a distinction between the ownership and the possession of a proprietary right, as discussed earlier. It may, on the other hand, mean nothing more than to say that I have the rights in question, and this is not restricted to legal rights; I can be said to possess a moral, or natural, right to privacy, whether or not this is accompanied by a legal right. In general, however, the extra-legal notion of possession is concerned with things of a material or physical character.

The defendant filed M.P(MD)No.1 of 2009 in S.A.No.1921 of 2000 under Order 41 Rule 27 of the CPC for add

(i) Document No.1 emerged pendente lite which according to the defendant, was the notice issued u/s 9(2) of Tamil Nadu Land Survey and Boundaries Act, by the Deputy Inspector of the Land Survey Inspectorate for rectifying the error committed in assigning the patta for the entire plot No.98 in favour of the plaintiff.

(ii) Document No.2 is the Topo-detailed sketch of the lay-out plan of Ramavarma Nagar in Tallakulam (S.F.Nos.179 and 181/2), which the learned Counsel for the defendant would claim to have obtained under the Right to Information Act which emerged pendente lite and that is being relied upon by the defendant for the purpose of driving home the point that as on the date of assignment of the plot No.98 in favour of the plaintiff, the defendant was in possession of a part of it namely the suit property.

The factual scenario is that at the one and the same span or space of time, the plaintiff was assigned the plot No.98 of which the suit property forms a part, and the eastern plot bearing No.97 was assigned in favour of the defendant. There is nothing to indicate and exemplify that at that point of time itself, the defendant raised any objection for having allotted the suit property which forms part of the plot No.98 in favour of the plaintiff, and that is also indicative of the fact that animus possidendi to possess as owner was lacking on the part of the defendant. Ultimately, there is nothing as correctly held by both the Courts below, to display and establish that the defendant started enjoying the suit property as owner despite such assignment of the suit property in favour of the plaintiff.

To the risk of repetition and pleonasm, but without being tautologous, I would like to point out that mere possession would not amount to possession as owner and precisely, it is the ratio decidendi of the decision of the Honourable Apex Court. This is petitorium (a proprietary suit) and not possessorium (a possessory suit). Both the Courts below held that the possession of the defendant was not that of the owner.

Possession as owner is different from the possession in different capacities. As such, both the Courts below understanding the correct principles held that the defendant failed to prove that he was in possession of the suit property as owner and in such a case, it has to be held that both the Courts below au curante with facts decided the lis warranting no interference in second appeal. When there is no perversity or illegality involved in the findings of both the Courts below, the question of interfering with the findings of the lower Courts would not arise at all.

Trite, the proposition of law is that no pendente lite document could have any evidentiary value and such document cannot be entertained also.

Hence, in these circumstances, I am of the considered view that no question of law much less a substantial question of law is involved in this second appeal and therefore, no interference with the judgments and decrees of both the Courts below is warranted.

On balance, the second appeal is dismissed, confirming the judgment and decree dated 25.09.1998 made in A.S.No.155 of 1996 on the file of the Principal Subordinate Judge, Madurai, in confirming the judgment and decree dated 27.08.1996 made in O.S.No.994 of 1989 on the file of the Additional District Munsif, Madurai. Consequently, the connected Miscellaneous Petitions are dismissed. No costs.