Rethinammal and Others vs R. Swaminathan and Others

R.S. Ramanathan, J.—The unsuccessful Defendants are the Appellants.

The Respondents/Plaintiffs filed the suit for declaration of title over the suit properties and for recovery of possession and for damages for use and occupation.

The case of the Respondents/Plaintiffs was that the suit properties were purchased by their father late Ramanathan under a registered sale deed dated 19.4.1942 ''A'' schedule property was let out to the Appellants'' father late Somasundaram and he also executed lease deeds dated12.1.1963, 8.4.1970 and 7.3.1980. The Appellants refused to vacate the premises and also claimed ownership over the'' A'' schedule property and therefore, the second Plaintiff filed R.C.O.P. No. 3 of 1996 for eviction and that was dismissed as landlord-tenant relationship was denied by the Appellants and the appeal filed against the order passed in the R.C.O.P in R.C.A. No. 7 of 1998 was also dismissed and therefore, the suit was filed for declaration and recovery of possession. It is further stated that the Defendants'' mother filed O.S. No. 350 of 1997 in respect of the entire land in T.S. No. 939 and also for recovery of possession of schedule ''B'' properties from the Plaintiffs and in that suit, it was held that T.S. No. 939 belongs to the Respondents and the Appellants have no right over the same and the suit filed by the Appellants'' mother was dismissed and in the appeal, the Appellants were imp leaded as legal representatives of the mother and the appeal was also dismissed and that would also prove that the Appellants cannot claim any right over the suit properties and therefore, the Appellants should deliver possession of the suit properties to the Respondents/Plaintiffs.

The Appellants contested the suit stating that their father late Somasundaram was in enjoyment of the suit properties even prior to the purchase of the same by the Plaintiffs'' father and they permitted the Plaintiffs'' father to stay in the ''B'' schedule portion and the Appellants'' father and the Appellants perfected their title by adverse possession and even assuming that the Plaintiffs'' father purchased the suit property, he lost his right or title over the same and the Appellants are in continuous possession of the suit property for more than 50years and they have perfected title by adverse possession and the right of the Appellants is confirmed in the rent control proceedings and therefore, the Plaintiffs are not entitled to the relief of declaration and recovery of possession.

Both the courts below concurrently held that the Appellants have not proved adverse possession and the Respondents/Plaintiffs have proved their title to the suit property and therefore, they are entitled to get declaration and recovery of possession and decreed the suit. Hence, the second appeal.

In the second appeal, the following substantial question of law arises for consideration:

Whether the Appellants have perfected title to schedule ''A'' property by adverse possession.

Though the Plaintiffs filed the suit in respect of items 1 and 2 of the properties, it is admitted during trial that in respect of item 2, the Plaintiffs/Respondents are already in possession of the property and the Appellants'' mother filed the suit in respect of second item of the properties in O.S. No. 350 of 1997 and that was dismissed and therefore, the title in respect of item 2 has already been held in favor of the Respondents and the parties were at issue only in respect of item 1 of the suit properties.

The specific case of the Respondents/Plaintiffs is that their father Ramanathan purchased the property under a registered sale deed dated 19.4.1942 and thereafter, the property was leased out to Somasundaram, father of the Appellants and he executed various lease deeds and thereafter, the Appellants refused to vacate the property and refused the title of the Respondents/Plaintiffs and therefore, they filed rent control proceedings and as landlord tenant relationship was denied, the rent control proceedings were dismissed and therefore, the present suit is filed for declaration and recovery of possession.

On the other hand, the case of the Appellants is that the first item of the suit property is a gram nathamand even prior to the purchase of the said property by the Respondents'' predecessor in title, Somasundaram was in possession and enjoyment of the suit property and he continued to be in possession in his own right for more than twelve years and thereafter, the Appellants continued to be in possession and enjoyment of the suit property as owners of the suit property and therefore, they have perfected title by adverse possession.

To appreciate the claim of adverse possession by the Appellants, we will have to see the admissions made by the Appellants during trial. It is admitted by the Appellants that they were not aware who was the owner of item 1 of the properties and it is further admitted by them that the property belongs to Romania Devasthanam and Somasundaram was allowed to be in possession of the property and he continued to be there exercising ownership right over the same. It is further admitted that the suit first item of properties is getting electricity only from the suit second item which is admittedly in possession of the Respondents/Plaintiffs and the Appellants/Defendants are also using the latrine situate in the suit second item with the permission of the Respondents/Plaintiffs. Further, the Appellants also did not state from which date, they are in possession of the suit property as owner and from which date, they have perfected title by adverse possession. It is admitted by both the parties that the suit first item is in S. No. 939. It is settled law that a person, who pleads adverse possession, has to prove that he is exercising right of ownership openly and continuously to the knowledge of the true owner for more than 12 years. This principle has been laid down in the following judgments:

1) Krishnamurthy S. Setlur Dead by LRs. Vs. O.V. Narasimha Setty and Others,

2) M. Durai Vs. Madhu and Others,

3) Annakili Vs. A. Vedanayagam and Others,

4) P.T. Munichikkanna Reddy v. Revamma (2007) 4 MLJ 912(SC)

5) Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan and Others,

In the judgment reported in Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan and Others, , it has been held as follows:

Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed.

In the judgment reported in M. Durai Vs. Madhu and Others, , the Honorable Supreme Court, relying upon the decision reported in T. Anjanappa and Others Vs. Somalingappa and Another, , held as as follows:

Yet again in T. Anjanappa and Others Vs. Somalingappa and Another, , this Court opined as under:

Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person''s title. The person setting up adverse possession may have been holding under the rightful owner title e.g. trustees, guardians, bailiffs or agents....

It was further more held as under:

It is well-recognized proposition in law that mere possession, however long, doesn''t necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession, the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that, such possession in denial of the true owner''s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former''s hostile action.

In the decision reported in AIR 2007 SC 1728 it has been held that the person has to plead the period and the date on which he claims to be in possession and the person has to plead and prove that his possession discontinuous, exclusive and undisturbed to the knowledge of the real owner of the land. He has to show a hostile title and he has to, in fact, show his hostility to the real owner.

In the decision reported in Annakili Vs. A. Vedanayagam and Others, , it has been held as follows:

Claim by adverse possession has two elements:

(1) the possession of the Defendant should become adverse to the Plaintiff; and

(2) the Defendant must continue to remaining possession for a period of 12 years thereafter.

Animus posited as is well known is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animuspossidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus posited must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, 11it is trite, for a period of more than 12years without anything more do not ripen into a title.

Therefore, from the principles laid down by the Honourable Supreme Court, it is clear that mere possession for more than twelve years is not sufficient. Possession must be adverse to the knowledge of the real owner and there must be animus posited to claim adverse possession.

It was contended by the learned Counsel for the Appellants that the Plaintiffs/Respondents claimed that late Somasundaram executed lease deeds in favor of the Respondents and therefore, Somasundaram and the Appellants are the tenants under the Respondents/Plaintiffs and when they failed to prove the tenancy, it can be presumed that late Somasundaram and the Appellants are in possession and enjoyment of the property adverse to the knowledge of plaintiffs/Plaintiffs and the Respondents/Plaintiffs failed to discharge their burden that the Appellants were let in possession by them as tenant and in the absence of such tenancy right, it can be presumed that the Appellants are in possession in their own right and therefore, they are entitled to adverse possession. The learned Counsel relied upon the judgment reported in Deivanai Ammal (Died)and Ors. v. Periasamy @ Sambagounder and Ors. (Madurai bench) 2010-1-LW 439 in support of his contention.

On the other hand, the learned Counsel for plaintiffs/Plaintiffs submitted that the judgment reported in 2010-1-LW 439 has not laid down the correct law having regard to the Supreme Court judgments referred to above and unless the person, who claims right by adverse possession, pleads and proves that he is enjoying the property in his own right for more than twelve years adverse to the knowledge of the real owner, he is not entitled to the relief of adverse possession and the burden is on him to prove the same and even though the Plaintiffs, who are the real owners, failed to establish the character of possession of the Appellants/Defendants, once the Respondents/Plaintiffs proved their title, they are entitled to recovery of possession of the property in the absence of proof of adverse possession by the Appellants.

As stated supra, the Honorable Supreme Court has held that to substantiate the plea of adverse possession, the person, who pleads adverse possession, must prove the date and period from which his possession is hostile to the real owner and he must also prove that he is in possession of the property exercising his own right and that is also known to the real owner. He must also prove that he is in continuous possession for more than twelve years and enjoying the property as real owner.

In this case, the Appellants admitted the title of the Plaintiffs. They also admitted that in respect of suit first item, they are getting electricity connection only from the other portion in the occupation of plaintiffs/Plaintiffs and they are using the latrine with the permission of the Respondents/Plaintiffs. Though DW1has stated that even prior to the purchase of the property by the Plaintiffs father, the Appellants'' father late Somasundaram was in possession and enjoyment of the property to the knowledge of the Plaintiffs'' father and they are exercising ownership right over the same and the Plaintiffs father did not object to that, it is admitted that in O.S. No. 350 of 1997, it was held that T.S. No. 939belongs to Ramanathan and the Appellants herein who were the Plaintiffs in that suit cannot claim adverse possession in respect of T.S. No. 939.

Further, it is admitted that Ramanathan was residing in T.S. No. 940 and from his house, the Appellants got electricity connection to the suit property and the Appellants were also permitted to use the latrine in the Respondents'' house and they got separate connection only in the year 1997. It is further admitted that the suit property is a natham which belongs to the Palace and after getting permission from the Palace people, Somasundaram came into possession of the suit property and at that time, he was employed as Driver in the Palace. Therefore, the case of the Appellants as per the evidence is that they were permitted to occupy the suit property by the Palace people and Somasundaram was permitted to occupy as he was working as driver in the Palace. Therefore, on their own admission, the entry by the said Somasundaram into the suit property was permissive and therefore, it cannot be stated that their possession became adverse to the true owner in the absence of stating from which date, their possession became adverse to the true owner. Further, having regard to the cordial relationship between the parties, they were allowed to enjoy the suit property and hence, it cannot be stated that the Appellants were in possession and enjoyment of the suit property as owner and they have perfected title by adverse possession against the Respondents. The Plaintiffs admitted that the relationship between the parties are cordial and on that ground only they were permitted to take electricity connection and permitted to use latrine from the Respondents'' property. Further in O.S. No. 350 of 1997 filed by the Appellants'' mother, it washeld that T.S. No. 939 belongs to Ramanathan the father of the Respondents and the Appellants herein have not provedtheir title by adverse possession and that judgment hasbecome final.

Therefore, having regard to the fact that the Appellants failed to prove from which date they are enjoying the property as owner to the knowledge of the true owner and the fact that their initial entry was permissive and the fact that till they received notice in the year1995, they were not aware that the property was purchased by Ramanathan would cumulatively prove that they have failed to prove the ingredients of claiming the property by adverse possession and as the Respondents/Plaintiffs are admittedly owner of the suit property, they are entitled to declaration substantial Appellants. and question reco very of of law posis session. answered Hence, against the appellants

In the result, the second appeal is dismissed. No costs. The connected miscellaneous petition is also dismissed.