Rajammal and Others vs Perumalswami and Others

Natarajan, J.—In this appeal by Defendants 1 to 4 the principal question for consideration is whether the learned Subordinate Judge, who

dismissed the appeal preferred by the Defendants, was justified in disallowing their plea of acquisition of title by adverse possession after having

found that they must have been in possession of the suit property from about the year 1955 onwards and not in pursuance of any trespass

subsequent to the filing of the suit as alleged by the Plaintiffs.

Plaintiffs 1 and 2 originally instituted the suit for bare injunction, but subsequently they amended the plaint and sought for reliefs of declaration of

title as well as recovery of possession. Pending disposal of the suit, the second Plaintiff died and her legal representatives were brought on record

as Plaintiffs 3 to 6. The case of the Plaintiffs was that the suit property had been purchased by the second Plaintiff under exhibit A-12, dated April

24, 1933. There was an othi on the suit property as evidenced by exhibit A-11 and that othi was subsequently discharged in terms of a

compromise decree passed in Original Suit No. 13 of 1948 on the file of the Court of the District Munsif, Tirumangalam in proof of which exhibits

A-13 to A-17 had been filed. According to the Plaintiffs, the fourth Appellant, his wife, the first Appellant, and their sons, the second and the third

Appellants, without any mannor of right or title, interfered with their peaceful enjoyment of the suit property and ultimately dispossessed them by

trespassing on the suit property.

In the defence raised in the suit, the title of the Plaintiffs to the suit property was not disputed. It was however, contended that the othi on the suit

property was discharged by the fourth Appellant. It was there after contended that there was en agreement of sale in favour of the Appellants and

it was in pursuance of that agreement, the Appellants had been let into possession and they were, therefore, entitled to invoke the doctrine of part

performance and resists the suit for dispossession. The agreement of sale itself was alleged to have been lost in fire. The last of the contentions was

that, in any event, the Appellants had been in possession of the property for well over the statutory period and had, therefore, acquired title by

adverse possession.

The learned District Munsif of Tirumangalam, who tried the suit held against the Appellants on all grounds and decreed the suit. In particular, it

may be stated that not only did he disbelieve the agreement of sale projected by the Appellants, but he also gave a finding that their possession of

the suit property could only be attributed to a trespass subsequent to the filing of the suit. The learned Subordinate Judge of Madurai, who heard

the appeal preferred by the Appellants, also found against them regarding their claim to be in possession under an agreement of sale. However,

with regard to their possession, the learned Judge held that the Appellants must have been in possession of the suit property for quite a number of

years and that it was not possible to say under what circumstances they obtained possession of the suit property; but notwithstanding these features

their case of acquisition of title by adverse possession cannot be accepted because their possession was referable to the sale agreement relied on

by them.

Mr. K. Parasaran, the learned Counsel for the Appellants contends that though the Court below have found against the Appellants with regard

to their contention that there was an agreement of sale in their favour, the Appellants are nevertheless entitled to resist the suit of the Respondents

by virtue of their adverse possession of the suit property. The learned Counsel would contend that when the learned Subordinate Judge found that

the Appellants had not trespassed upon the suit property subsequent to the filing of the suit, but must be deemed to have been in possession of the

suit property from about the year 1955, the learned Subordinate Judge must have accepted the case of the Appellants that they had prefected title

by adverse possession. What is urged by Mr. Parasaran is that when the agreement of sale has been disbelieved, the possession of the Appellants

cannot be attributed to any other factor except one in assertion of their own right. It is further urged that the learned Subordinate Judge ought not

to have made use of the agreement of sale for determining the character of possession of the Appellants after having given a finding that the

agreement was not true. In conformity with the argument advanced by him, Parasaran seeks to distinguish the rule in Annamalai Chettiar v. Muthiah

Chettiar 78 L.W. 172 which has been subsequently followed in Anantha Pillai v. Ratnasabapathy Mudaliar 82 L.W. 5 on the ground that, in those

cases, the existence of the agreement of sale was factually accepted, whereas in the instant case, the agreement of sale pleaded by the Appellants

has been disbelived by the Courts. The further contention of Mr. Parasaran is that the Courts below have also failed to apply the well recognised

rule laid down in T.S. Govindaraj Vs. A.B. Kandaswami Goundar and Another, which has been approved in Nagayasami Naidu v. Kochadai

Naidu 81 LW 436 and followed in Kandasamy Udayar Vs. T.S. Karuppudayar, that it was not open to a Plaintiff to abandon his own case and

adopt that of the Defendant and claim relief on that footing.

Mr. M.V. Krishnan, the learned Counsel appearing for the Respondents would, however, contend that the learned Subordinate Judge was not

justified in giving a finding that the possession of the suit property by the Appellants must have been from the year 1955 onwards and not

subsequent to the filing of the suit and it is that mistaken finding which has given room for the Appellants to file the second appeal. In support of this

contention, the learned Counsel points out that not only the patta stands in the name of the deceased second Plaintiff but all the kist receipts have

also been issued in her name. Even the cultivation accounts, viz. thandal accounts and adangal accounts as revealed in exhibit A-18 to A-24 make

out that it was only the Respondents who were in possession of the suit property and attended to the cultivation work. The learned Counsel,

therefore, contends that the finding of the trial Court that the trespass by the Appellants was subsequent to the filing of the suit must be taken as the

correct finding and in that view of the matter the plan of the Appellants that they had perfected title by adverse possession is not sustainable at all.

Nextly, he would contend that, in any event, the Appellants have relied on an agreement of sale to explain their possession of the land and having

placed reliance on such an agreement the ratio in Annamalai Chettiar v. Muthiah Chettiar 781 L.W. 172 would automatically apply and the

Appellants cannot be allowed to turn round and say that if the agreement of sale pleaded by them is not accepted, then their alternative contention

of having acquired title by adverse possession must be accepted. On a consideration of the matter, I am clearly of opinion that the contention of the

Appellants cannot be sustained or accepted. It is by now well settled by the decision in Annamalai Chettiar v. Muthiah Chettiar 781 L.W. 172 that

in the case of an agreement of sale the party who obtains possession, acknowledges the title of the vendor even though the agreement of sale may

be invalid. Such an acknowledgment and recognition of the title of the vendor would exclude the theory of adverse possession. The Bench has also

stated in the above said case as follows:

The instant case is governed by a well settled rule of law that if a person is in actual possession and has a right to possession under a title involving

a due recognition of the, owner''s title his possession will not be regarded as adverse in law even though he claims under another title, having regard

to the well recognised policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into

possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse.

It is in the light of this rule, the controversy on hand must be decided. As I have already indicated, Mr. Parasaran seeks to distinguish the above

said rule on the ground that that was a case where the agreement of sale pleaded by the contestant was found to be factually true but legally in

effective. I do not think the truth or otherwise of an agreement of sale pleaded by a person, in cases like this, can have really any relevancy for

determining the question whether he will be entitled to alternatively advance a theory of acquiring title by adverse possession. As is well known, the

question of adverse possession has to be determined with reference to the animus of the person in possession. Such animus has to be determined

solely with reference to his mental attitude and not with reference to any finding rendered by the Court in respect of matters advanced by him.

Once the proposition is accepted that so long as a person links his possession of a property with an agreement of sale in his favour, his possession

cannot be considered ! hostile to that of the real owner. It is not open to any one to contend that because the agreement of sale projected by him is

held untrue, it must automatically be held that his possession was adverse to the real owner. To make it clear, the test of animus must be

determined from the stand point of the occupant and not from the other end, namely, the pronouncement made by a Court regarding the truth and

validity of the contentions raised by him. In the instant case, when the Appellants attributed/and tacked on their possession of the property to the

agreement of sale projected by them and in the absence of anything to show that at any point of time, they changed the nature and character of

their possession from one referable to the sale agreement, to another on a different footing, it must necessarily follow that the Appellants cannot be

allowed to contend that they had perfected their title to the property by adverse possession. The sale agreement may be held true or untrue. But it

is the nature and character of possession of the Appellants that we have got to determine. Their animus cannot depend upon the strength or

weakness of their case nor can a change in animus occur when a plea advanced by them based upon the recognition of their title of the lawful

owner is rejected. It, therefore follows that notwithstanding the finding of the learned Subordinate Judge that the Appellants must have obtained

possession of the property even in the year 1955, the Appellants cannot be heard to contend that they have perfected their title by adverse

possession.

With regard to the contention of Mr. Parasaran that when Plaintiffs'' case of trespass subsequent to the riling of the suit had been found against

them, the learned Subordinate Judge ought not to have made use of the defect in the case of the Appellants and given a decree in favour of the

Plaintiffs, I find that this contention is also unsustainable. As stated earlier, the title of the Plaintiffs-Respondents is not denied. It, therefore, follows

that they are entitled to recover possession unless they are found to have lost such a right in law. When the resistence offered by the Appellants to

the claim for possession by the Plaintiffs is found to be untenable, it necessarily follows that the Respondents will be entitled to a decree for

possession in their favour in addition to declaration of their title.

In the result, the judgments of the Courts below are confirmed and the appeal will stand dismissed with costs.

No leave.