Noorjahan Beevi vs Vagikha Ammal

R.S. Ramanathan, J.—The unsuccessful Plaintiff in both the Courts below is the Appellant herein in the Second Appeal.

The Plaintiff filed the suit for declaration and injunction. The case of the Plaintiff is that under a gift deed dated 09.08.1961, one acre of land was

given to the Plaintiff by her mother situate within specific boundaries. After possession was given to the Plaintiff, it was found that the property

within the four boundaries is measuring an extent of 1 acre and 5 cents of land and the Plaintiff is enjoying the entire 1 acre and 5 cents of land from

the date of gift deed and she has sold some portions of the said property and she is having 54 cents in her possession and in respect of the

Western 5 cents of property, the Respondent/Defendant attempted to interfere with her peaceful possession and enjoyment of the property,

claiming that the suit property of an extent of 5 cents belongs to her. Therefore, the suit was filed for declaration and injunction.

The Plaintiff also pleaded that she has also perfected title by adverse possession to the suit property. The Respondent/Defendant contested the

suit stating that the Plaintiff was given only 1 acre of land and beyond 1 acre, the Plaintiff is not entitled to have any right and the disputed property

is in enjoyment of the Respondent/Defendant and the Plaintiff is in enjoyment of the same. The Plaintiff is having title over the property situate in S.

No. 8/3B and the disputed property is situate in S. No. 8/3A, and the disputed property was also gifted by her mother. Therefore, the Plaintiff is

not entitled to the relief of declaration.

The Trial Court dismissed the suit holding that the Plaintiff has not proved that she is in possession of 5 cents of property and she was given only

1 acre of land and the disputed property is in S. No. 8/3A and the Plaintiff is not able to say in which survey, the disputed property is situated.

Therefore, the Plaintiff is not entitled to the relief of declaration. The Lower Appellate Court also concurred with the findings of the Trial Court and

dismissed the appeal. Hence, this Second Appeal has been filed by the Appellant.

At the time of admitting the Second Appeal, the following substantial questions of law were framed by this Court:

i) Whether the Courts below are legally correct in overlooking the material piece of evidence, such as Commissioner''s Report and plan and the

boundary description in Ex.A2, which has been corroborated by P.W.1 and P.W.2 and not disputed by D.W.2?

ii)Whether the Courts below are legally correct in not applying the proposition of law in interpretation of document that the boundary description

will prevail over the extent of property, especially when there is no dispute over such boundary description?

iii)Whether the Courts below are legally correct in not calling upon the Respondent to discharge the onus probandi on her part that the disputed 5

cents were retained, possessed, enjoyed and owned by D.W.2, after executing the gift under Ex.A2, to the Appellant?

iv)Whether the Courts below are legally correct in accepting Ex.B2, ignoring the admitted fact that the same has been executed after the suit by

D.W.2, in favour of D.W1.?

It is submitted by Mr. C. Dhanaseelan, the learned Counsel appearing for the Appellant that in case of conflict between the boundaries and the

extent and when the exact measurement of the property was not given, the boundary shall prevail and in this case, it is admitted that under the gift

deed dated 09.09.1961, viz., Ex.A2, the western boundary was mentioned as C.M.P. canal and therefore, the property that is situated east of the

said canal was gifted to the Appellant/Plaintiff and therefore, even assuming that one acre was gifted under Ex.A2, considering the fact that the

property situated east of the C.M.P. Canal, was given to the Plaintiff, the Plaintiff also proved her possession from the date of the execution of the

gift deed and therefore, the Plaintiff is entitled to the relief of declaration prayed for.

The learned Counsel appearing for the Appellant further submitted that the disputed property is also situated adjacent to the C.M.P. canal on

the eastern side and that property was gifted to the Plaintiff. While describing the said property the East, West, North and South measurement was

not given. Therefore, in the case of vague measurement or extent, the boundaries will prevail. The learned Counsel also relied upon the judgment of

this Court reported in (2007) I C.T.C 577 in the case of ( Thiruvengadachari rep. By his Power of Attorney Agent v. Nagarajan and another) and

also the judgment of the Hon''ble Supreme Court reported in Bir Singh Vs. State of Himachal Pradesh, .

On the other hand, Mr. D.R. Murugesan, the learned Counsel appearing for the Respondent submitted that both the Courts concurrently held

that the Plaintiff has not proved her possession and she has no title for the same and hence, she cannot take advantage of the boundary recital in

her document. Therefore, the concurrent findings of the fact cannot be interfered in the Second Appeal and the questions of law framed are not the

substantial questions of law, as per Section 100 of C.P.C . Therefore, there is no merit in the Second Appeal and is liable to be dismissed.

In this appeal, it is admitted that the property that was gifted to the Plaintiff and also the disputed property and the surrounding properties

belonged to the mother of the Plaintiff and Defendant. The Plaintiff and the Defendant are the daughters of one Jamila Ammal, and she gifted

various extent of properties to her daughters and under the Ex.A2, she gave one acre of land situate within specific boundaries to the Plaintiff. It is

the case of the Plaintiff that though one acre of land was given as per the Ex.A2, the property that is available within the boundaries is more than

one acre of land and the extent of property that is available within the boundaries is one acre and 5 cents of land. Therefore, even though the one

acre was gifted to her having been in possession of 1 acre 5 cents of land from the date of the gift deed she has perfected her title by adverse

possession. Therefore, she is entitled to the relief of declaration. Though the Plaintiff pleaded adverse possession, no issue was famed by the

Courts below in respect of the plea of adverse possession and no evidence was also let in by the parties.

Therefore, the case of the Plaintiff that she perfected her title by adverse possession cannot be considered in the absence of any issue framed

to that effect and also in the absence of any evidence to that effect by the parties. If the Plaintiffs cannot claim title to 5 cents of land by adverse

possession, whether the Plaintiff is entitled to claim declaration in respect of five cents has to be considered.

No doubt, it is a settled law that in case of vague measurement or extent, the boundary shall prevail. Therefore, the Plaintiff is entitled to the

property that is situate east of the C.M.P. canal as per the gift deed. It is also contended that the disputed property is situated east of the canal and

west of the property that was gifted to the Plaintiff . Admittedly, the property was owned by the mother of the Plaintiff and she has gifted only one

of acre of property to the Plaintiff. Therefore, the Plaintiff can claim title to 5 cents of property, which is admittedly in excess of one acre only by

adverse possession.

As stated supra, no issue was framed regarding adverse possession and as a matter of fact, no evidence was let in by P.W.1. and P.W.2, to

that effect that the Plaintiff is in possession and enjoyment of the disputed property, for more than statutory period. No doubt, an Advocate

Commissioner was appointed and he also filed a report with plan . As per the report of the Advocate Commissioner, the disputed property and

the remaining property belonging to the Plaintiff are found as one piece of land. That will only prove that the Plaintiff is enjoying the disputed

property. A mere possession and enjoyment of the property will not confer any title to the Plaintiff, unless the Plaintiff is able to prove her title by

purchase or gift deed or by adverse possession. P.W.1., is the son of the Plaintiff and he was aged 36 in the year 2003. He has not stated in

evidence that ever since the date of the gift deed, they have encroached the disputed property and they are also in enjoyment of the same as

owner. His evidence is to that effect that after the gift, we have fenced the property and he did not say from which point of time the entire property

including the disputed property was fenced by the Plaintiff. Further, to prove adverse possession, there must be animus on the part of a person to

enjoy the property and without an element of animus, a mere possession will not confer any title by adverse possession.

In this case, the element of animus was absent. Even assuming that the Plaintiff is in possession of the disputed land, from the date of her gift

deed and having regard to the relationship between the parties viz., mother and sister, it cannot be considered that the Plaintiff had the required

animus while enjoying the property, as if it belongs to her to the exclusion of the mother and sister. Therefore, in the absence of any title to the suit

property, the Plaintiff cannot claim any declaration without proving that she perfected title by adverse possession.

As stated supra, there is no issue regarding the adverse possession and the evidence of P. Ws.1 & 2, also did not prove that the property was

enjoyed by the Plaintiff with animus that she is owner of the property.

Therefore, according to me, even though, as per the boundary recital, the disputed property would have been in the possession of the Plaintiff.

But in the absence of any animus on the part of the Plaintiff that she is in possession of the property, as a owner, the knowledge of the true owner,

she can not claim any title to the property. Therefore, even though the second substantial question of law is answered in favour of the Appellant

that the boundary will prevail over the extent, when the extent was vaguely given, having regard to the facts of the case, the Plaintiff is not entitled

to any decree, as she had not proved her title to the suit property.

Though the disputed property 5 cents is enjoyed by the Appellant/Plaintiff in the absence of any proof that she was enjoying the property with

the animus treating property as her own and having regard to the fact that the Defendant/Respondent is her sister and her vendor is her mother, the

mere possession of the 5 cents of property will not confer any title to the Plaintiff/Appellant and therefore, the third substantial question of law is

answered against the Appellant.

The Courts below should not have acted on Ex.B2, as the same was executed, after the filing of the suit. Further, the case of the

Respondent/Defendant in the written statement was that she was in possession and enjoyment of the property even prior to the Ex.B2, and her

contention is contrary to Ex.B2. Therefore, the Courts below ought not to have considered Ex.B2, holding that the Plaintiff cannot claim any title,

unless she proved her title through adverse possession. Therefore, the findings of the Lower Court considering Ex.B2., will not help the Plaintiff.

No doubt, in the Commissioner''s report, it has been stated that the disputed property and the ad joining property forms one block and it is in

the enjoyment of the Plaintiff.

According to me, even assuming that the Plaintiff is in possession of the disputed property that will not confer any title when admittedly that 5

cents was not gifted to her and she has also not proved her title by adverse possession. Therefore, the first substantial question of law is also

answered against the Appellant.

In the result, the judgment and decree of the Courts below are confirmed and this Second Appeal is dismissed. No costs. Consequently,

connected Miscellaneous Petition is closed.