Ponnaiyan vs Munian (died) and Others

A.S. Venkatachala Moorthy, J.—The defendant who lost before the lower appellate court is the appellant herein.

The respondent herein/plaintiff filed a suit in O.S. No. 159 of 1978 on the file of the District Munsif of Kallakurichi against the

appellant/defendant herein, praying for a declaration and injunction. Briefly it is the case of the plaintiff that the suit properties are the ancestral

properties of the plaintiff and that he and his father have been in possession of the properties for the past 30 years. The plaintiff also claimed that he

has acquired prescriptive title to the suit properties. According to the plaintiff the defendant has no right for possession of the suit properties and

that as the defendant attempted to trespass into the suit properties from 5.7.1978, he filed the present suit.

The defendant filed a written statement contending that the plaintiff is not entitled to the entire suit properties nor he is in possession as claimed

by him. According to the defendant, the plaintiff ''s father Marudhaiyan has sold an extent of 2 acres, 44 cents out of the suit properties viz., an

extent of 4.46 acres comprised in four survey numbers. It is the further case of the defendant that his father purchased defined portions under a

sale deed dated 24.2.1946 and marked as Ex. B-3 in the suit. It is the further case of the defendant that during his absence at Ceylon, the plaintiff

as his relative was looking after the properties and that being so, the plaintiff cannot now turn round and claim any adverse title. On the above

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

The trial court framed as many as five issues and out of which issue Nos. 1 to 3 may be relevant for the purpose of the discussion in this appeal.

Those three issues are as follows:

Whether the plaintiff is entitled to the entire suit property?

Whether the plaintiff is entitled to the relief of injunction?

Whether the plaintiff is estopped from claiming the title to the entire property?

The trial court accepted the case of the defendant that the defendant''s father purchased 2 acres 44 cents from the plaintiff''s father Marudhaiyan

under Ex. B-3 out of the total extent of the suit property i.e., 4.46 acres. The trial court relying on the evidence of D.Ws. 1 and 2, Exs. B-2 and B-

3 held that the plaintiff is not entitled to the entire suit properties and the plaintiff is not entitled to the relief of injunction. The trial court further held

that in view of Ex. B-3 the plaintiff is estopped from claiming title to the entire suit properties and that the cause of action alleged is not true.

Aggrieved by the judgment of the trial court, the respondent/ plaintiff filed an appeal in A.S. No. 160 of 1989 on the file of the Subordinate Judge

of Vridhachalam and the learned Sub-Judge framed two issues for consideration viz., (1) Whether the permissive possession pleaded by the

defendant is true and (2) Whether the plaintiff has acquired title by adverse possession? The learned Sub-Judge held that the defendant has

admitted the possession of the suit properties by the plaintiff and that the defendant has not proved his case that the plaintiff is in permissive

possession. The lower appellate court further held that the plaintiff has proved continuous possession for more than the statutory period and that

the revenue documents viz., patta for the suit properties also stands in the name of the plaintiff and in these circumstances, the plaintiff s case of

adverse possession of the suit properties is proved. The lower appellate court consequently allowed the appeal and decreed the suit of the plaintiff

as prayed for.

The unsuccessful appellant/ defendant has filed the above appeal before this Court. The appeal was admitted with reference to two questions of

law viz.,

1.Whether the lower appellate court was right in upholding the plaintiff''s title by adverse possession, when such an issue was not at all raised in the

trial of the suit and the defendant had no opportunity to meet such an issue?

Whether in the absence of a finding regarding the plaintiff''s possession of the suit property on the date of suit by the court below, the decree for

injunction in sustainable.

It is true that the trial court did not frame any issue with regard to the claim of the plaintiff that he has acquired title by adverse possession. In fact

a Division Bench of this Court. In Kakarlapudi Janikiramaraju and Others Vs. Gedala Appalaswami and Others, , has held that the question of

adverse possession is essentially a question of fact and a party relying upon it should expressly plead and ask for an issues to be raised in respect

thereof. Normally I would have remitted the matter back to the trial court. But, in the instant case in the facts and circumstances of the case, I do

not propose to do so at this length of time and I would consider the pleading of the plaintiff and the oral and documentary evidence to find out

whether the plaintiff has put forth a case of adverse possession as claimed by him. Only if the plaintiff has made out a case of adverse possession

such a plea or claim would arise. In this case, after a careful consideration of the case of the plaintiff with regard to his claim of adverse possession

and the evidence let in by him I am of the considered view that the plaintiff has not made out a case and hence there is no necessity to remit the

matter to the trial court to frame an issue regarding the adverse possession and their decide the same.

Now, I proceed to consider the case of the plaintiff viz., the pleadings as well as the oral and documentary evidence let in to substantiate the

claim of the plaintiff that he has acquired title by adverse possession to the suit properties. At the outset, it may be pointed out as already

mentioned the total extent of the suit property comprised in four different survey numbers is 4 acres, 46 cents. The defendant does not dispute the

claim of the plaintiff to an extent of 2 acres, 2 cents. Hence, the subject matter of dispute or the area of controversy is only with regard to an extent

of 2.44 acres which according to the defendant, his father purchase the same from the plaintiff''s father on 24.2.1946 under a registered sale deed

marked as Ex. B-3 before actually taking up the pleadings and the evidence on record adduced by the plaintiff for consideration whether he has

perfected his title by adverse possession certain legal aspects and decisions have to be borne in mind.

There is no statutory definition of adverse possession. Adverse possession refers to actual and exclusive possession coupled with intention to

hold as owner. Adverse possession becomes hostile to the rightful owner when a person openly and continuously, possesses a land under a claim

of right adverse to the title of the true owner for the statutory period. Adverse possession means a hostile possession which is express or implied in

denial of the title of the true owner. Such possession must be actual and exclusive, under a claim of right, adequate in continuity in publicity and in

extent so as to show that it is adverse to the true owner. Such possession, in denial of title of the true owner must be peaceful open and continuous

. Mere possession without a claim of right for over a long time is not sufficient to create adverse possession. A mere user of property cannot be

taken as a definite assertion of proprietory right; there must be some definite quality in the possession, before it can be called adverse and there

must be some fact of unequivocal character which may put the owner on guard. There can be no adverse possession if the person claiming does

not know that he is enjoying somebody else''s land. He must have the intention of using the property adversely against another having an interest in

it. To summarise it, a person by holding possession of the property for the statutory period can acquire title only when his possession is: (1) under a

claim of title, (2) hostile to the true owner, and (3) actual, open, uninterrupted, exclusive and continous.

It is well established that a person, who claims title to the property by adverse possession must definitely allege and prove how and when

adverse possession commences and what was the nature of his possession. A Division Bench of this Court in Rangappa Nayakar Vs. Rangaswami

Nayakar and Others, , has held as follows:

...the question whether possession in any given case has been adverse or not being a question of fact, the requirement of the law is strict and

imperative that any plaintiff who seeks to rely upon the acquisition of title by adverse possession should expressly plead it in his plaint....

In Ganda Singh and Others Vs. Ram Narain Singh, a Full Bench of the Punjab High Court has while considering the proof required in a claim

for adverse possession observed as follows:

In order to succeed on the plea of adverse possession, several facts have to be stated and substantiated by the party basing his title on this plea.

Burden of proving all the elements of adverse possession is on the party setting up such title. The plaintiffs in this case, in order to succeed, had to

allege and establish, that their possession was actual, adverse, exclusive, peaceful, continuous, unbroken, open, notaries, visible, distinct,

unequivocal and hostile under a colour of title or claim of right. He must further prove the date of commencement, the territorial extent and the

length of his adverse possession.

In S.M. Karim Vs. Mst. Bibi Sakina, , the Supreme Court has held as follows:

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 round.... 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.

In another decision reported in Karmega Kone Vs. Udayar Kone and Others, , T. Ramprasada Rao, C.J. has held as follows:

The plea of adverse possession is an essential question based upon provable facts and cannot rest upon mere surmises and stories weaved 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 in 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 bare 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 rockly foundation of the

plea of adverse possession. The law requires an express pleading on that question....

In a recent judgment of the Supreme Court in Parsinni (Dead) by Lrs. and Others Vs. Sukhi and Others, , in para 5 of the judgment has

observed as follows:

...The burden undoubtedly lies on them to plead and prove that they remained in possession in their Own right adverse to the respondents.... The

party claiming adverse possession must prove that his possession must be nee vi, ne clam, nes precaio i.e., peaceful open and continuous. The

possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner

On the question of animus of the person in possession, this Court has held in Anantha Pillai Vs. Rathnasabapathy Mudaliar and Others, , as

follows:

The concept of adverse possession contemplates a hostile possession, i.e., a possession which is expressly or impliedly in denial of the title of the

true owner. Possession to be adverse must be possession by a person who does not acknowledge the other''s rights, but denies them.

For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts in the most crucial

factor.

In AIR 1935 53 (Privy Council) , the Privy Council has held as follows:

The principle of law is firmly established that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence

that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed.

Thus, for deciding whether the alleged acts of a person constitute adverse possession, the animus of the person doing those acts is the most crucial

factor.

Now, in this appeal it has to be carefully considered whether the plaintiff has pleaded clearly in his plaint and what is the nature and effect of his

deposition before court and whether he has satisfied the requirements of law. Firstly let me take up the pleading part of it. I am surprised that the

plaintiff would submit that he has raised necessary pleadings in the plaint to claim adverse possession. What all he has stated is

A reading of the above extracted portion of pleading would show that at one stretch he would say that the suit properties are ancestral properties

and at the same time would say he has got title by prescription, since he has been enjoying for long years by paying kist and patta standing in his

name. In this context, it may be pointed out that the plaintiff has suppressed the fact that an extent of 2.44 acres out on the total extent of the suit

properties of 4.46 acres comprising in four survey numbers was sold by the plaintiff''s father to the defendant''s father not only in the plaint but also

in his deposition admitted in chief he suppressed it. Only in the cross examination, he admitted that he came to know about the sale prior to the

filing of the suit. But, however at the same time, he would say that he did not take steps to find out from the registration authorities by obtaining

encumbrance certificate etc., a reading of the plaint as well as his deposition in the court would show that the plaintiff claims the property only as

his ancestral property and it is not as if the plaintiff referred to the sale under Ex. B-3, but would maintain that no possession was delivered to the

defendant''s father under Ex. B-3 and that he and his predecessors in title continued to be in possession and enjoyment and that even though in the

chief examination the plaintiff would depose and deny the sale by the plaintiff''s father to the defendant''s father, in the cross examination he would

indirectly admit the sale. Even before this Court, the sale by the plaintiff''s father to the defendant''s father in the year 1945 under Ex. B-3 is not

disputed. Equally, the recitals in the said document with regard to the delivery of possession of the subject matter of the sale under Ex. B-3 to the

defendant''s father is not disputed.

The first question would be whether the pleading in the plaint, ''title by prescription'' would be sufficient and whether it can be said that a clear

plea of title by adverse possession has been raised. The answer is no for the following reasons: (1) Even after coming to know about the sale under

Ex. B-3 (admitted in the cross examination of P.W. 1) he did not refer to the same in the plaint. (2) In his deposition, the plaintiff has not said

anything not even a single word about his claim for adverse possession. (3) In such circumstances, the question arises is whether the plaintiff really

has understood his claim made in the plaint. The answer is he would not have understood. In this context two aspects may be noted. The claim of

the adverse possession is made only for the following words. ""Title by prescription in the plaint. The plaintiff seems to be an illiterate. He has not

spoken anything in his evidence before court. That being so, certainly it cannot be said that he has made out a specific plea of adverse possession.

Even assuming for a moment that he has made a plea in the plaint inasmuch as he has not substantiated the same in his evidence, it can only be said

that he has not made out a plea, or adverse possession, and proved the same. The necessity to depose the same in the evidence is absolutely

necessary for the purpose of finding out the animus. This is more so when the parties are closely related. As already pointed out, this Court in the

case reported in Anantha Pillai Vs. Rathnasabapathy Mudaliar and Others, , has clearly held ""for deciding whether the alleged acts of a person

constituted adverse possession, the animus of the person doing those acts is the most crucial factor.

I am of the considered opinion, that the reading of the plaint and the deposition of P.W. 1 would at best can be said something like a mere

suggestion of adverse possession and certainly not a clear pleading of adverse possession. In this context, I recall the decision of the Supreme

Court in S.M. Karim Vs. Mst. Bibi Sakina, , already referred above.

For the above reasons, I hold that the plaintiff has not pleaded adverse possession and equally has not deposed before, court of his claim of

adverse possession in his evidence. Similarly the plaintiff has not satisfied the court about the animus inasmuch as there is not even a single word of

his claim of adverse possession in his deposition as P.W. 1. The next aspect to be considered is as pointed out by the Supreme Court whether the

plaintiff has raised a plea at least to show when the possession became adverse for the purpose of finding out the starting point of limitation against

the party affected. If we examine the averment made in para 3 of the plaint, the plaintiff has stated that after his father''s death about 25 years back

(in or about 1953) he has been enjoying the property. The every next sentence in the plaint he would say that he has been enjoying the property for

the post 30 years that is since 1948. While coming to this deposition before court in his chief examination he would say that his father died 35

years back, i.e., 35 years prior to 1981 which will take us to 1946. But, however in the cross-examination, he would depose that his father died

about 30 years ago and since then he has been in enjoyment. In such case, it would take us to the year 1951. P.W. 2 who was examined on his

behalf would depose that the plaintiff has been enjoying the property for the past 40 years which would take us to the year 1941. In this context, it

is to be remembered that Ex. B-3 is not disputed. This is a sale deed executed by the plaintiff''s father to the defendant''s father in the year 1946. It

also recites that possession was delivered to the defendant''s father handed over the possession is not known. At the time of Ex. B-3, the plaintiff

was 35 years old. Hence it cannot be said that he was not aware as to how his father handed over the possession. As already mentioned, the

plaintiff in spite of the knowledge about Ex. B-3 before filing the suit deliberately suppressed about the same and has come forward with the false

case. On the contrary, the case of the defendant is that he went to Ceylon in the year 1970 and came back in the year 1978 and during that time,

the plaintiff was in permissive possession. Even though according to the lower appellate court the defendant has not proved the permissive

possession, it may be in the circumstances of the case can only be stated that the plaintiff has been in possession and enjoyment of the property. As

already pointed out in the beginning itself, it is well settled that a person who claims title to the property by adverse possession must definitely allege

and prove how and when the adverse possession commenced and what was the nature of the possession.

However, the learned Counsel appearing for the respondent/ plaintiff would draw my attention to the decision reported in Madhavan Vs.

Kannammal and Others, and would submit that even if the plaintiff committed mistake in tracing the history of the title to the properties such a

mistake can''t deprive them of their title to the properties when the court finds on the facts that title to the properties vested to the plaintiffs by virtue

of the Hindu Succession Act, then it will not be proper for the court to refuse relief on a technical ground that they have not set out the correct root

of the title in their plaint. I am not able to agree with the counsel for the respondent that this decision would help him the instant case. The case on

hand is one whether the plaintiff has clearly pleaded and substantiated the same in his deposition. As already pointed out, the plea of adverse

possession is not pleaded clearly in the plaint.

The next ruling relied on by the learned Counsel for the respondent/ plaintiff is Rajeswari Vs. Dhanammal, , and on its basis he would submit

that the principle that one party cannot abandon his own case and claim relief on the basis of the other party''s plea is not applicable where one

party does not seek relief on the basis of the plea of the other party but only on the fact established on record, though they are at variance with his

own pleading. Herein, again, we find that the facts of this case are entirely different and title is not claimed on the basis of adverse possession.

There in that case the question before the court was whether the lease in question is of land only or of land and superstructure. So that ruling will

not help the learned Counsel in any manner.

The yet another decision relied on by the learned Counsel for the respondent/plaintiff is Charles Hereward Simpson and Others Vs. The

Government of Tamil Nadu and Another, . Here the learned Counsel would rely on para Nos. 24, 31, 35 and 39 of the judgment. That decision

was given with regard to other aspects and not with regard to the aspects which are presently concerned in this appeal.

Whether there is a proper plea?

Whether the plaintiff has spoken to before the court about the animus, and

Whether there is proof about the starting of the adverse possession?

In the ruling cited it is with regard to the points namely, (1) How to assess the factum of possession when the suit properties are vast in extent? (2)

What is meant by for sufficient period? (3) what is necessary to establish adverse possession or under otherwise? (4) What is the presumption of

continuous possession both forward and backward.

Finally the counsel for the respondent/ plaintiff would rely on the case reported in Madamanchi Ramappa and Another Vs. Muthalur Bojjappa,

and would particularly rely on para 8 of the judgment which reads as follows:

...The possession of the land was admitted to be with the appellant''s family for more than the statutory period and as such, it was open and

continuous. The plea of the respondent that the said possession was that of a tenant was rejected, and so, the said possession in law was adverse

against the whole world.

Herein in this case, the defendant has not admitted the possession of the plaintiff prior to 1970. That apart, as already pointed out the plaintiff has

no consistent case as to when he came into possession. In fact, while referring to the evidence of P.W. 2, he would say that the plaintiff has been

enjoying the property from 1941. But, however in the chief examination P.W. 1 would say that he has been in enjoyment of the property from

1946. In this context one has to remember the undisputed document Ex. B-3 which is dated 24.2.1946, and according to which the possession

was handed over to the defendant''s father on the said date. If that is so, it is for the plaintiff to satisfy the court as to how and when he came into

possession. Hence, this ruling relied on by the learned Counsel for the respondent would not be of any use to substantiate his case. The fact that

patta stands in the name of the plaintiff, that he alone has been paying kist may not help him in the absence of clear pleadings, particularly when the

parties are closely related.

The plaintiff has sought for declaration of his title to the suit properties viz., an extent of 4.46 acres comprised in four survey numbers as set out

in the plaint schedule. Even though the plaintiff would in his pleadings suppressed about the sale under Ex. B-3, and in the chief examination he

would deny the sale under Ex. B-3 in the cross examination, the plaintiff would admit that he came to know of the sale under Ex. B-3 and that he

did not verify the same from the registration authorities by obtaining encumbrance certificates. Even before this Court, the truth and genuineness of

Ex. B-3 is not disputed. The document recites that the possession was also delivered to the defendant''s father. In the written statement, the

defendant would only dispute the title of the plaintiff to an extent of 2.44 acre and in his evidence also the defendant has admitted the title of the

plaintiff to the extent of 2.06 acres. In these circumstances the plaintiff can be declared to be the owner of the said extent of 2.06 acres out of the

plaint scheduled properties to an extent of 4.46 acres. Accordingly, the judgment and the decree of the lower appellate court has to be modified.

For the reasons above stated, the judgment and the decree of the lower appellate court is modified to the extent that the plaintiff has proved his

title to the suit property viz., to an extent of 2.06 acres out of a total 4.46 which forms the subject matter of the suit. Consequently, there will be a

decree in favour of the plaintiff for declaration to that extent with consequential injunction, in other respects the suit will stand dismissed.

Accordingly this appeal is allowed in part. No costs.