Pavadai alias Selvaraj Chettiar vs Chinnadurai Padayachi and another

Ramanujam, J.—An interesting question in the domain of law of Limitation arises in this case. The legal representative of the plaintiff in O.S.

Nos. 1057 of 1970 on the file of the District Munsif''s Court, Cuddlier who was successful in the trial Court but unsuccessful before the lower

appellate Court is the appellant herein. He had purchased the northern 62 cents in Survey No. 124 having a total extent of 1.24 acres at

Kadampuliyar village from one Nataraja Padayachi and others under Ex. A.1 dt. 5th December, 1955. The southern 62 cents had earlier been

purchased by one Thandavan Chetty by a sale deed, dt. 17th February, 1927. On 22nd June, 1944 under Ex. A-4, Thandavan Chetty had sold

the said southern 62 cents to one Kumaraswami Padayachi from whom the defendant had purchased under a tale deed, Ex.B 1, dt. 13th January,

1961. The said sale deed, Ex. B1 however referred the extent sold as 64 cents. On the basis of the sale deed, the defendant claimed title to a

larger extent of land than 62 cents and began to put up a compound wall on the northern side of the property in his possession. The plaintiff

therefore filed a suit for declaration of his title to the northern 62 cents in Survey No. 124 and for a mandatory injunction for demolition of the

compound wall put up by the defendant. The plaintiff''s case is that himself and the defendant are each entitled to 62 cents, that the defendant has

trespassed upon a portion of the northern 62 cents belonging to the plaintiff, and that the portion so encroached is of an extent of 10 cents.

The defense to the suit was that Kumaraswami Padayachi from whom the defendant had purchased the property under Ex.B-1, had already put

up a foundation on the northern boundary of his property immediately after his purchase on 22nd June, 3944 under Ex. A 4, that the present

compound wall has been put up only on the said foundation, that the foundation Itself has been put up leaving one foot of the defendant''s property

on the northern side, that there was a live fence in between the two pro-partier even before the putting up of the foundation for the compound wall,

that the defendant having purchased 64 cents the extent in the actual occupation of Kumara swami, together with the foundation put up by him, he

should be deemed to have acquired title to the excess extent, if any, by prescription.

At the stage of the trial, a Commissioner was appointed to inspect the property and to measure the actual extent in the possession of the plaintiff

as well at the defendant. The Commissioner, after taking measurements with the assistance of the Village Karman reported that the extent in actual

enjoyment of the plaintiff was 57 cents and that in the enjoyment of the defendant was 67 cents. According to the Commissioner, though the

plaintiff is entitled to the 62 cents he is in possession of only 57 cents and that shows that the defendant hat encroached on 5 cents of land

belonging to the plaintiff. The trial Court found that the defendant has not prescribed title to the land encroached upon by him. In this view the

plaintiff''s suit was decreed. The lower appellate Court, however, after upholding the title of the plaintiff to the northern 62 cents, held that the

defendant hat perfected title to the encroached portion of 5 cents by adverse possession. In this view the plaintiff''s suit was dismissed.

In this second appeal, the only question that arises for consideration is as to whether the defendant hat perfected title to the encroached portion

of five cents by adverse possession. That as per the earlier documents of title the plaintiff and the defendant are each entitled to 62 cents in survey

No. 124 is not in dispute. The controversy between the parties is only with regard to the alleged encroached portion. The question whether the

defendant has acquired title to the encroached portion by adverse possession has been decided by the Courts below with reference to certain

admitted facts. These admitted facts are these: Though the earlier documents of title dealing with the northern and southern halves of the said

survey number dealt with only 62 cents, it is only in Ex.B-1, D.W.1, the vendor, has chosen to mention the extent of the southern half as 64 cents.

D.W. 1 has deposed that at the time of his purchase from Thandava Chatty under Ex.A4 dt. 22nd June, 1944, there was a live fence separating

the northern and southern halves, that though he did not measure the southern half when he purchased the same, when he sold the same to the

defendant, he measured and found it to be 64 cents and that, therefore, he mentioned in Ex.B 1 the extent sold as 64 cents. He further deposed

that the entire extent south of the live fence was in his occupation ever since the date of his purchase in 1944, that later when he sold the property

under Ex.B1 to the defendant, he gave possession of the entire extent south of the live fence which was in his occupation. He however, deposed

that though he was in actual occupation of 64 cents he had no animus to prescribe adverse title in respect of the excess 2 cents and that he

intended to put the foundation for the compound wall inside his 62 cents. Since the entire discussion of the Courts below on the question of

adverse possession was based on the deposition of D.W. 1 it is better to extract the relevant portion of his deposition which is as follows:

The evidence of D.W. 1 extracted above indicates that he was aware of his possession of the excess extent of two cents only when he excited the

sale deed in favors of the defendant and that he had no intention at any time to enjoy any area in excess of 62 cents. Since the defendant has been

in possession of the property only from the date of his purchase under Ex.B 1, he has necessarily to tack on the possession of his vendor, D.W.1,

to prove adverse possession as regards the excess extent. For this purpose the defendant has relied on the alleged adverse possession of D W. 1

of the excess extent from the date of his purchase under Ex, A 4 dt. 22nd June, 1944. Though D.W.I has stated that he was in possession of 64

cents ever since the dale of his purchase on 22nd June, 1944 under Ex.A 4, he has admitted that he has not measured the extent of the land at the

time of his purchase in 1944, but he measured the extent only when he sold the same to the defendant under Ex.B 1 in 1961. Even if D.W. 1 had

not measured the actual extent purchased by him under Ex.A 4, it has to be taken that the first defendant was in possession of the same extent

from 1944 till 1961 when he sold the property. If the possession by D.W. 1 of the excess extent is adverse from 1944, the defendant can tack on

that adverse possession to his adverse possession commencing from the date of his purchase under Ex.B 1. The question now to be considered is

as to whether the possession of D.W. 1 of the excess extent was adverse from 1944. It is urged for the plaintiff that the possession of D.W. 1 of

the excess extent from 1944 cannot be taken to be adverse, as D.W. 1 himself has admitted that he had no intention to prescribe adverse title at

any time to the said excess extent of 2 cents which shows that there was no requisite animus to prescribe adverse title on the part of the defendant,

and that mere possession without the requisite animus will not make the possession adverse to the real owner. On the other hand, it is canter dad

by the defense that as D. W. 1 h d been in possession for more than 12 years openly in assertion of his own title, the same must be taken to be

adverse to the real owner notwithstanding his admission that he had no animus and that D. W. 1''s enjoyment of the property in his own right even

though under a mistake that the excess extent in fact belonged to him will make his possession clearly adverse to the real owner. The trial Court

held that the possession of D. W. 1 of the excess extent without any intention to claim hostile title as against the true owner cannot be taken to be

adverse. The lower appellate Court, however, took the view that even if there was no requisite animus on the part of D. W. 1 to prescribe adverse

title against the true owner, his continuous, open and exclusive enjoyment of the excess extent to the knowledge of the owner, the plaintiff, will

amount to adverse possession and that the fact that D. W. 1 has been in enjoyment of the property by mistake will not also affect the adverse

character of his possession of the excess extent. In this second appeal, the learned counsel for the appellant submits that the view taken by the trial

Court that unless there it the requisite animus the possession of D. W. 1 cannot be adverse to the real owner should be preferred to the view taken

by the lower appellate Court. On the other hand, the learned counsel for the respondent submits that the view taken by the lower appellate Court

is in accordance with law.

The evidence of D W. 1 which stands accepted by the Courts below and on the basis of which the decisions have been rendered by them, is to

the effect that he was in enjoyment of the excess extent from the date of his purchase in 1944 to the exclusion of the plaintiff by mistake, but that at

that time he had no animus to prescribe title to that excess extent. Though he had stated in his evidence that he had no intention to prescribe title

adverse to the real owner at any time, he has in fact, sold the excess extent along with the rest of the property to the defendant in 1961 and this

shows that at least on the date of Ex. B1 he had the requisite animus to prescribe adverse title. It is well established that to constitute adverse

possession, the possession must be actual, physical, exclusive and hostile and that to acquire title by adverse possession, such possession should

be open, adequate and continuous. In this case the possession of D.W. 1 has been open, adequate, continuous and in assertion of his right. The

only question if, whether such possession can be taken to be adverse to the plaintiff.

The learned counsel for the appellant relies on the decisions in Manful Ahmed v. Forhat Ali A.I.R 1922 Oudh 152 AIR 1947 19 (Privy

Council) in support of his stand that wherever a property is enjoyed under a mistake without requisite animus to prescribe adverse title, such

possession may not amount to advance possession. In the first case there was a partition between two co-larceners. After partition one co-

larcener, by mistake, took possession of the plots which have been slotted to the other. That possession continued even after the mistake was

discovered for well over the statutory period of limitation of 12 years. The question arose whether the said possession was advance to the other

co-larcener. The Court of the Judicial Commissioner took the view that as the essential element animus domino was lucking the person who was in

possession precaris cannot be taken to have juristic possession and therefore, such possession should be deemed to be equivalent to permissive

possession, that where the parties get into possession of wrong plots in ignorance of their respective title, both must be regarded as laboring under

a mistake of fact, and that the principle of equity, which cannot be limited to cases of agreement under Contract Act, extends even to acts

committed under a common mistake of fact. In the second case, the view taken was that where a person asserts possession of the property of

another by inadvertence or ignorance as to the true property, or its extent without any intention to claim beyond what actually belongs to him, such

possession lacks an essential requisite, namely animus, which is an indispensable ingredient to constitute dissension. In the third case, a person

claiming as a widow entered on her widow''s estate in her husband''s undivided share of estate and was in possession of the same for more than 12

years, Later, the husband was found to be alive. The question was whether her possession was adverse to her husband. The Privy Council held

that possession must be adverse to a living person and that her possession being under a mistake as to her husband''s death, the wife could not

claim that her possession was one whom she had regarded as dead. According to the learned counsel for the appellant these decisions lay down

that if the requisite animus is not there, there is no question of adverse possession.

As against these decisions, the learned counsel for the respondent refers to the following decision in support of his case that even though

possession was under a mistake and without the requisite animus, nonetheless it will amount to adverse possession. In Allah Dad v. fazed Dad 46

I.C. 964 the Chief Court of Punjab held that prescriptive title is not based on original right or on morality, but solely on expediency, that the

criterion of adverse possession is, whether a person possesses land, claiming it as his own, and if he does, he must be held to be in adverse

possession. This decision proceeds on the basis that if a person has been in possession of land claiming it as his own. then he must be held to be in

adverse possession, even though his possession is under a mistake as to his rights. In MA. 10. Lon v. MG BA On AIR 1925 Rang 111

possession of plaintiff''s Land by an adjoining landowner under a mistaken knowledge on the part of both the parties as to the true boundary, was

held to be adverse to the plaintiff. In Secretary of State v. Venkatanaraslmha A.I.R 1920 Mad 295 a Division Bench of this Court has taken the

view that where the true owner of land having the opportunity to acquaint himself with all the facts and the law and not being led into any error by

the fraud of the party sees that parry openly on-hoying the land and claiming it as his own, the true owner cannot, in order to arrest limitation. plead

ignorance of law which made him unaware of his right to possession. In this case, the open enjoyment of a property to the knowledge of the owner

has been held to be sufficient to constitute adverse possession. In Sexy, of State v. Dt. Bd, Tanjore A.I.R 1930 Madras 679=31 L.W. 508

Sundaram Chetty, J. has ruled that mistaken possession will also be adverse to the real owner. In AIR 1928 287 (Bom.) a Bench has taken the

view that adverse possession must be adequate in continuity, publicity and extent so as to show that it is possession adverse to the competitor and

that the fact that a stranger takes possession of a property under a mistake common to all does not make his possession and the less adverse. In

Jagatjit Singh v. Md. Asghar Ali A.I.R 1929 Oudh 328 it has been held that every owner must be presumed to know the boundary of his own land

and if he permits any one to cross the boundary and plant thereon a number of trees and forbids the owner''s men to enter the land and his

possession extends for a period of over 12 years, title will be obtained by adverse possession. In Niranjan Singh v. Minable Singh A.I.R C 820 a

Division Bench of the Allahabad High Court had taken the view that possession of a co-sharer under a mistake of a property in which he had no

interest, without the consent of the co-sharers will be adverse to them even though he had not asserted that his possession was adverse. The above

decisions relied on by the learned counsel for the respondent would indicate that though one of the ingredients which has to be proved to establish

adverse possession is animus to acquire adverse title as against the true owner, it is possible to acquire adverse possession even in cases where

there is no such animus, provided the possession is found to be continuous, exclusive and in open assertion to one''s own right and that even though

such possession is under a mistake as to his right or title to the extent of his property, still the possession will not cease to be adverse.

I am not able to agree with the extreme contention put forward by the appellant that unless the requisite animus is established the possession can

never be adverse. It is true, the main criterion for treating possession as adverse is the presence of the requisite animus. But where the possession

was open and exclusive and in assertion of one''s own title, the fact that the possessor did not know as to who the true owner was and had no

intention to claim title adversely to him, will not make the possession (sic) any the less adverse. Where a person, under a mistake as to the

boundaries, enters and occupies lands of embraced in his title claiming it as his own for the statutory period, as in this case, he thereby becomes

invested with the title thereto by possession although his entry and possession may have been founded upon a mistake. Where a grantee in taking

possession under his deed goes unintentionally and by mistake beyond his proper boundaries and enter upon and actually occupies the neighboring

land not included in his deed claiming and treating it as his, his occupation is to be taken to be adverse and if continued for the requisite length of

time, will bar the right of the true owner. This is clear from the decisions in Allah Dad v. Fazal Dad 46 I.C 964 Jagatjit Singh v. Md. Asghar Ali

A.I.R 1929 Oudh 328 and Sexy, of State v. 114 Ou Dfor 537. Dt. Bd. Tanjore A.I.R 1930 Mad 679-31 L.W. 508 referred to above. Where a

person possesses land claiming it as his own he must be held to be in adverse possession though he may be under a mistake as to his right or he

may be conscious that he is an usurper. This appears to be the principle even in English Law. In Rains v. Buxton 8 the plaintiffs who were in

possession of a cellar sought to restrain the defendants from executing certain works so as to interfere with the said cellar. The defendants resisted

the action contending that the plaintiffs have been in possession of the cellar belonging to them secretly and without their knowledge and that such

possession will not entitle them to claim adverse possession. The Court took the view that as the plaintiffs have been in actual possession of the

cellar, the defendants should be, in the absence of any fraud on the part of the plaintiffs, deemed to have had knowledge of the said possession and

that the mere fact that the cellar was underground cannot lead to the inference that the plaintiffs'' possession was secret and that the defendant''s

ignorance does not prevent running of time in favors of the plaintiffs. Rustomji on ''Law of Limitation'' Fifth edition, Volume II at page 1381 refers

to the two opposing doctrines, one insisting on the animus to acquire title by adverse possession as against the true owner and the other merely

resting on possession in assertion of one''s own right without reference to the true owner, and says that the later doctrine appears to be the true

rule. However, Mr. M. Krishnaswami, on ""Law of Adverse Possession"" 7th edition, at page 161 says that out of the said two views the former

view is the correct one. But on a due consideration of the matter, I consider the second view as the proper one. If one, has to insist on animus as

an essential requisite to constitute adverse possession, then possession of land by a person without knowing as to who the owner was for however

length of time will not become adverse. But it is well established by judicial decisions that even in cases where the owner is not known to the

occupier, if the occupier continues in exclusive possession in his own right, he will acquire title by adverse possession by lapse of the statutory

period. It has also been held that the owner''s ignorance as to the possession by a third party is immaterial and it cannot make the possession by a

third party and the less adverse, unless it is shown that the ignorance of the owner was due to the fraud of the third party. Ignorance on the part of

the owner, whether of his right on of the infringement of his right, cannot prevent the operation of the statute of limitation. The fact that a party has

been in possession under an honest mistake and without any desire to deprive another of his property to which the latter is entitled, does not

prevent time running. In this case the rehas been possession. That Was open, exclusive and continuous. It was not as the true owner; but it was

under a claim of right. Such possession though innocent, was intentional. This possession will clearly be adverse. I have to therefore hold that D.W.

1 has, by his open, exclusive and continuous possession of the excess extent of 2 cents, clearly acquired title by adverse possession to that extent

as a matter of fact it is only in assertion of a hostile title he has sold the excess extent to the defendant in the year 1961. The view taken by the

lower appellate Court that D. W. 1 had prescribed title by adverse possession to the excess extent of 2 cents has to be accepted. However, it is

not possible to uphold the dismissal of the suit in its entirety. The plaintiff claimed declaration of title in respect of 62 cents purchased by him under

Ex. A1. It has been found by the trial Court, and that finding has not been disturbed by the lower appellate Court, that the plaintiff is in actual

enjoyment of only 57 cents. The shortage is 5 cents. In view of the finding that defendant''s predecessor-in-title has acquired title by adverse

possession, only to the excess extent of 2 cents which has been conveyed to the defendant under Ex. B1, as regards the balance of three cents, the

defendant cannot be said to have perfected title by adverse possession. There is, absolutely no evidence as regards the other three cents. The

evidence of D. W. 1 relates only to the excess two cents, conveyed under Ex. B1 Admittedly, Ex.B.1 does not cover the entire five cents found to

be in the possession of the defendant in excess of 62 cents which he is entitled to. Therefore, the plaintiff''s right to have a declaration in relation to

the said three cents cannot be rejected. The plaintiff will, therefore be granted a decree declaring his title to 60 cents in Survey No. 124. In this

view the decree and judgment of the lower appellate Court is modified, and there will be a decree in. favors of the plaintiff declaring his title to 60

cents in Survey No. 124 and for recovery of vacant possession of three cents of land from the defendant. There will, however, be no order as to

costs.