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Judgment
Prabha Sridevan, J.—The respondent filed the suit for declaration and injunction claiming that he had perfected his title to the suit property
by adverse possession from 1955. Both the Courts held in his favour.
One important physical feature that must be noted for deciding this case is the location of the superstructure and the extent of the vacant land in
the suit property. The Advocate Commissioner filed a report describing the suit property as ABCD. In the south-western corner there is the house
bearing door No.5/12. About 29 feet from the house on the eastern side is clean and the Advocate Commissioner has noted that it appears to be
used by the persons, who were living in the house. Whereas all over the vacant site ""Veli"" thorns were spread. The Advocate Commissioner has
noted the existence of an old latrine in the north-western corner which is in disuse and is unreachable because of the thorny undergrowth. On the
northwestern corner there are remnants of an old compound wall. On the eastern side also, there were traces of the old compound wall. The
Advocate Commissioner has noted that it is almost impossible to go across the property from one end to another, due to the existence of thorns.
Though this is a second appeal, the Commissioner''s Report regarding the physical features has a bearing on the decision.
The fact that there was a Ginning Factory in the suit property is not really in dispute. It is also admitted that the respondent occupied the
superstructure after it was vacated by the previous owner. According to the respondent, his occupation was adverse to the true owner whereas
according to the appellants, it was by permission.
Mr. Raghunathan, learned counsel for the appellants submitted that to hold that there is adverse possession, there should be a clear pleading
regarding the date from which adverse possession commences. The animus to hold against the true owner must also be pleaded whereas that has
not been done in the instant case and according to the appellants, the respondent had entered possession promising that he would vacate whenever
demanded. Therefore, there was no question of adverse possession. Further, he submitted that even assuming without admitting that the appellants
had perfected title to the superstructure, the same cannot be said of the vacant land because there is no evidence of animus possidendi and one
acre of land cannot be treated as appurtenant to the superstructure in a small area in one corner. According to the learned counsel, the Courts
below had not considered the question of adverse possession correctly. He relied on Ponnaiyan Vs. Munian (died)and Others1995 (1) L.W.
680Natesan Vs. Chinnachi Kandar & Others1996 (2) L.W. 344 Marwari Kumhar and Others Vs. Bhagwanpuri Guru Ganeshpuri and Another,
S. Subba Reddiar and Others V. Bhagyalakshmi Ammal and another 1996 (2) L.W. 31 Pazhamaruthai @ Marudamathu Vs. M. Subramaniam
2001 (3) CTC 142 Udayanasamy Thevar and Others Vs. Mootor Thevar, Pappammal (Died) and Others Vs. Valiammai (Died) and Others, and
State of Rajasthan Vs. Harphool Singh (Dead) Through His L.Rs.,
Mr. K. Srinivasan, learned counsel for the respondent, on the other hand submitted that it is admitted by the appellants that the respondent has
been in possession from 1960. It is the respondent''s case that he held it adverse to the title of the true owner. When the appellants claim that it
was permissive occupation, they should have proved permission. The learned counsel submitted that all the documents would show the enjoyment
of the suit property by the respondent. He also submitted that in any event, the adverse possession is a finding of fact and cannot be disturbed in
second appeal and therefore, there shall be no interference. The learned counsel relied on the following decisions:
(1) Arumugha Thevar V. Melavasaga Thevar 1993 (3) L.W. 621
(2) Thangamani V. Santhiagu 2000 (3) L.W. 848
(3) Parsinni (Dead) by Lrs. and Others Vs. Sukhi and Others,
(4) V. Muthiah Pillai V. Vedambal AIR 1986 Mad 107
(5) M. Nadarkesavan Nadar v. Narayanannadar Kunjan Nadar
(6) Rajender Singh and Others Vs. Santa Singh and Others,
(7) Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others,
The substantial questions of law raised by the appellants are regarding the adequacy of pleadings and proof to show adverse possession and
whether there can be adverse possession in the absence of hostility and finally, whether occupation of the building without anything more could
constitute acquisition of title by adverse possession in respect of large extent of vacant site?
According to the respondent, the suit property was in the possession of Kasturisamy Naidu and after him from 1955 he was in possession and
that he had held it by adverse possession and that he had put up live fence around the suit property. Documents are there showing that he had
obtained electricity connection for the suit property and also paid property tax. Though there is a reference to the Ginning Factory in his cross-
examination and that the built-up portion was originally the office of the Ginning Factory he would state when he occupied the property, the
Ginning Factory was not there. He denied that the Ginning Factory was dismantled only in 1960. He claimed that he has lost the property tax
receipts for the year 1955-1966. P.W.2 would say that the Ginning Factory was dismantled before the respondent occupied the built-up portion.
P.W.3''s evidence is not clear in this regard apart from admitting that there was a Ginning Factory. According to D.W.1, the Ginning Factory was
dismantled, except for the office room in the south-western corner. According to his evidence, he permitted the respondent to occupy this portion.
He has not examined any other witnesses to prove his case of permission. Therefore, apart from his own version, there is nothing else. On the
other hand, the respondent has shown that for years, atleast from 1966, he has been paying the property tax and from 1977, he is also paying the
electricity charges. Therefore, his possession has been open and continuous for anyone to see.
The question is quite different with regard to the remaining vacant land. The Advocate Commissioner''s report shows that it is covered by thorny
wild undergrowth. The plaintiff''s witnesses have stated that the respondent would cut off all the ""Veli"" thorns and sell them. The respondent is a
purohit"" and an astrologer and to what extent he would have cut the thorny wild growth is debatable. In any event, it is pointed out by the learned
counsel for the appellants that the Advocate Commissioner''s report clearly shows it is well-nigh impossible to reach the north-eastern corner from
the south-western corner because of this undergrowth. It has to be seen whether the respondent could still claim that there was open and
continuous possession of the vacant land for all the world to see so that his title by adverse possession gets ripened.
In 1995 (1) L.W. 680 (cited supra), it is held as follows:
Adverse Possession,Pleadings - Actual and exclusive possession coupled with intention to hold as owner, openly and continuously - Hostile
possession, express or implied, in denial of title of true owner - No statutory definition. Duty of plaintiff to plead and prove.
Animus is the crucial factor - Mere factum of patta standing in the name of a person or the person paying the kist, may not help.
In 1996 (2) L.W. 344 (cited supra), it is held as follows:
Adverse Possession Tamil Nadu Act 17 of 1978, and C.P.C., S.100 - Exclusive possession, coupled with intention to hold as owner, necessary
- Claim of right must be actual, exclusive, adequate, in continuity, in publicity and in extent so as to show that it is adverse to the true owner, and
must be peaceful, open and continuous.
Mere user of property cannot be taken as assertion of proprietory right.
In Marwari Kumhar and Others Vs. Bhagwanpuri Guru Ganeshpuri and Another, , it was held in the absence of time and manner in which
possession was converted to open, hostile and adverse possession, claim cannot be upheld.
In 1996 (2) L.W. 31 (cited supra), this Court stressed that since adverse possession is an exception to the general rule, that title can be
acquired only through lawful means and it is for the person, who claim such title to prove satisfactorily his adverse possession.
In State of Rajasthan Vs. Harphool Singh (Dead) Through His L.Rs., , it is held as follows:
When the property was a vacant land before the alleged construction was put up, to show open and hostile possession which could alone in law
constitute adverse to the State, in this case, some concrete details of the nature of occupation with proper proof thereof would be absolutely
necessary and mere vague assertions cannot by themselves be a substitute for such concrete proof required of open and hostile possession. Even if
the plaintiff''s allegations and claims, as projected in the plaint, are accepted in toto, the period of so-called adverse possession would fall short by
5 years of the required period. There is no scrap of paper or concrete material to prove any such possession of the plaintiff''s father nor was there
any specific finding supported by any evidence, in this regard.
Udayanasamy Thevar and Others Vs. Mootor Thevar, , also stressed the requirements of law and burden of pleadings and proof by the
plaintiff.
Pappammal (Died) and Others Vs. Valiammai (Died) and Others, also dealt with the burden of proof.
In 1999 (3) L.W. 621 (cited supra), this Court held that for possession to be adverse, it must be a possession of a person, who did not
acknowledge others rights, but denied them.
In 2000 (3) L.W. 848(cited supra), this Court held as follows:
Claim by a person and his predecessors in title by open and continuous occupation asserting positive title and failure by real owner to assert rights
can constitute adverse possession.
Defendant was in possession of the property for more than the statutory period - Absence of animus and knowledge about the true owner is
immaterial when possession was open and in continuous assertion of one''s own rights - Plaintiff or predecessors in title had not taken any steps to
exercise due vigilance in order to arrest time running against them.
In AIR 1986 Mad 107 (cited supra), it is held as follows:
The party claiming to hold the immovable property adversely must at least go on to prove that it was in denial of the owner''s title and that he
excluded him from the enjoyment of his property. Where a stranger is in possession it is not necessary to do so to the knowledge of the true
owner, but it is sufficient if the possession is hostile, notorious and exclusive.
In 2000 10 SCC 254 (cited supra), the Supreme Court held that the High Court''s interference with concurrent findings of fact in second
appeal was not justified when both the Courts comes to a definite conclusion on the basis of evidence on record that respondents had failed to
establish by positive evidence that their possession of the disputed property was hostile to the real owners.
In the present case the pleadings are clear. The plaint para No.3 reads as follows:
he plaintiff occupied the suit property in the year 1955, .... to the knowledge of the then owner Venkataswamy Naidu and also was holding the suit
property adverse to his interests in the same. ... In order to safeguard the property, the plaintiff also put up a live fence around the suit property and
this again was done to the knowledge of the original owner.
In his evidence he has stated that he occupied the house after getting the keys from Perumalsamy and that Venkatasamy Naidu, who is the
person from whom the appellant has purchased the property knew that he was residing in the built up portion. He has referred to the electricity
connection. It is clear therefore, that the respondent was living in the built-up portion in south-western corner denying the rights of the true owner
with an intention to hold it as his own. Therefore, the animus as regards this portion of the property is evident from the pleadings and it has also
been proved. Therefore, there is no difficulty with regard to the same.
But the question is not so clear insofar as the vacant portion is concerned. The appellant had raised this specific ground before the Appellate
Court. The Commissioner''s Report would show that the appellant is using only 29feet of the vacant space and the rest of the vacant space shows
no evidence of human enjoyment and the Appellate Court ought to have considered it from this angle. In the pleadings there is no reference to the
manner in which the respondent had enjoyed the vacant space. While the exhibits relating to the property tax for door No.5/12 and electricity
connection would show that the respondent was in possession and enjoyment of the same, there is no evidence to show that he was exerting
control over the vacant space. The evidence that he would remove the thorns periodically is not found in the plaint and it is repeated verbatim by
P.Ws.2,3 and 4 and it is not very much believable since the Advocate Commissioner''s Report shows that the vacant space does not show any
evidence of human attempt to regulate, control or check the wild thorny undergrowth. The Appellate Court answers this question as follows:
hypaplj;jpy; KGg;gFjp my;yh tpl;lhYk; xU gFjpia vjph;nky;KiwaPl;lhsh; jhd; FoapUf;Fk; fl;olj;jpy; braw;ifahf itj;J mDgtk; bra;J tUfpd;whh;
vd;gJk; nky;KiwaPl;lhsh;fshy; xg;g[f; bfhs;sg;gLfpd;wJ/ 1967k; Mz;oy; fpiuak; bgw;Wk; 1984k; Mz;oy; Rkhh; 17 Mz;Lfs; tiu Kjy; vjph;
nky;KiwaPl;lhsh; vjph;nky;KiwaPl;lhshpd; mDgtj;ij neuoahfnt mwpe;J bfhz;Ls;shh;/ ,Ue;Jk; me;jr; brhj;J jdf;F chpikg;gl;lJ vd;w Kiwapy; mth; mij
epiyehl;Lk; Kfkhf ve;j eltof;ifa[k; bra;Jf;bfhs;stpy;iy/ ,e;epiyapy; vjph;nky;KiwaPl;lhshpd; mDgtk; btspg;gilahdJ vjphpilahdJ kw;Wk; bjhlh;r;rpahdJ
vd;gJ mst[f;F mjpfkhfnt bjspthf bka;;g;gpf;fg;gLfpd;wJ/ nkw;fz;l fhuz'';fSf;fhf tHf;Fiug; gl;oifapy; fz;l brhj;J KGtJk; vjph; nky;KiwaPl;lhsUf;F (,e;j
mrypd; 22k; gf;fk; Kot[) mJ vjphpil mDgj;jpd; K:ykhf chpikg;gl;L mtuJ jdpj;j mDgtj;jpy; cs;sJ vd;Wk;. vdnt mth; nfhUk; tpsk;g[if kw;Wk; epue;ju
cWj;Jf; fl;lisg; ghpfhu'';fis fpilf;fj; jf;fit vd;Wk; jPh;t[ tpdhtpy; tpil mspf;fpnwd;/@
The admission if it should be construed as such only relates to the southwestern corner where the Appellate Court merely states that the
appellant knew about the 17 years enjoyment directly. When the specific ground is that there is no physical evidence to human enjoyment, the
Appellate Court is bound in law to answer that. Merely because, originally a ginning factory existed in the entire area, the occupation of the small
portion by the respondent will not give him the right to claim adverse possession of the remaining area where a factory building once stood and got
destroyed. In fact the appellant had not even satisfactorily proved whether the ginning factory building was in existence when he moved into door
No.5/12 or whether it was destroyed later. If the ginning factory was there at that time then he has no proof that he had the animus to hold that
area as his. In this case, the issue of animus which is the foundation of a title by adverse possession is held against the respondent. And in fact, in
the decisions relied on by both the appellants and the respondent, the learned Judges have repeatedly stressed this point.
In 2000 III LW 848(cites supra) the defendant owned the property to the north of the plaintiff''s property and having advantage of the fact the
plaintiff was an absentee landlord he solely encroached upon the family property. In those circumstances, the learned Judge held that when the
occupier and predecessors in title have openly and hostilely shown that they were in enjoyment and in control of the property and when the owner
does not take any steps to safeguard his rights then there is no reason why the occupier cannot claim adverse possession.
In this case, there is very little evidence to show possession of the vacant land. In fact the pleadings are not sufficient to show the legal
possession of the respondent with regard to the vacant land. In those circumstances, it is difficult to uphold the judgment of the Courts below and
the substantial questions of law raised by the appellant must be answered in favour of the appellant atleast with regard to the vacant land. Without
animus there cannot be adverse possession and the Courts below appear to have been under the impression that possession of the built up portion
tantamounts to animus to possess regarding the vacant land. To show open possession there must be signs of possession clear for all the world to
see, but a vacant land overgrown with wild growth will not show evidence of possession to the knowledge of the true owner. The finding of the
Court below is perverse and must be corrected.
The Second Appeal is partially allowed and the decree in favour of the respondent is restricted to the house and the portion marked as vacant
space which is in use, which extends 29 feet eastward from the north-western point of the portion demarcated as plaintiff''s house in the
Commissioner''s Plan.
For the purpose of identifying this property, a copy of the Commissioner''s Plan shall be annexed to the decree and the southwest portion
marked by the high-lightened and the dotted lines shall be shaded red to show the portion to which the respondent has been granted a decree.
As regards the vacant space, covered by the ''Veli"" thorns bounded by Panchayat Union School Buildings in the north, in the west by north-
south lane with an old compound, in the northwest corner with the old compound wall and the old latrine on the northeast corner, and shaded blue
the suit is dismissed.
The second appeal is therefore allowed to this extent. No costs.