Sundaravalli Ammal vs Perumal and Others

K. Govindarajan, J.—The plaintiff who succeeded before the trial court in getting the decree against the defendants and failed before the

lower appellate court, has filed the above second appeal.

The plaintiff/appellant filed a suit in O.S. No. 302 of 1981 on the file of the Sub Court, Dindigul for partition and separate possession of her half

share in the plaint ''A'' and ''B'' schedule properties and for damages for use and occupation from the defendants 3 to 5 and 7 to 9, According to

the plaintiff, the suit properties originally belonged to the plaintiff''s father late Arumugam Pillai who died on 1.8.1956 intestate leaving his wife

Pappathi Ammal, the plaintiff and the first defendant as his legal heirs. The other defendants are the alienees of the first defendant. The said

Pappathi Ammal died on 29.6.1973. According to the plaintiff, alter the death of Arumugam Pillai, the suit properties devolved on his heirs,

namely, Pappathi Ammal, the plaintiff as his daughter and the first defendant as his son, each entitled to 1/3rd share. The plaintiff has further

submitted that the said Pappathi Ammal executed a will dated 9.1.1973 in favour of the plaintiff in respect of half share in the first item of the plaint

''A'' schedule properties.

The defendants 3, 4, 7 and 8 contested the suit contending that the said Arumugam Pillai died long prior to 1.8.1956 and so the provisions of

Hindu Succession Act and the Hindu Women''s Right to Property Act do not apply. As the first defendant is the only son of late Arumugham Pillai,

he inherited the plaint ''A'' and ''B'' schedule properties and enjoyed the same by transferring the patta in his name. The defendants denied that the

suit properties were in joint possession and enjoyment of late Pappathi Ammal, the plaintiff and the first defendant. They have also denied the

execution of the will executed by Pappathi Ammal in favour of the plaintiff. The trial court accepting the case of the plaintiff/appellant passed a,

preliminary decree for partition and separate possession of 1/4th share in the first item, 2/8th share in items 2 to 6 of the plaint ''A'' schedule

property and 1/4th share in the plaint ''B'' schedule property and for recovery of mesne profits also. Aggrieved against the same, the defendants

3,4, 7 and 8 filed appeal in A.S. No. 48 of 1985 on the file of the District Court, Madurai North at Dindigul. The lower appellant court held, that

the defendants 3, 4, 7 and 8 have prescribed title to plaint items 1 and 2 of ''A'' schedule property, and, on that basis it held that the plaintiff cannot

have any share much less 1/4th share in the said items, and consequently modified the decree of the trial court, negativing the plaintiff''s claim in

regard to item 1 and 2 of the plaint ''A'' schedule, property. Aggrieved by the said judgment and decree, the plaintiff has filed the above second

appeal.

In this second appeal we are concerned only with respect to items 1 and 2 of the plaint ''A'' schedule property, which items were denied to the

plaintiff on the ground that the defendants 3, 4, 7 and 8 had prescribed title by adverse possession. Since I have to assess the correctness of the

said judgment and decree of the lower appellate court, I am not going into the other facts. It is not in dispute that these defendants 3, 4, 7 and 8

derived title from the first defendant under the sale deeds. The plaintiff/appellant claims right in the said property both as a heir of Arumugam Pillai

and also on the basis of the Will alleged to have been executed by Pappathi Ammal on 9.1.1973. But the courts below have concurrently

disbelieved the same. Against the said finding, there was no appeal before the lower appellate court by the plaintiff.

To substantiate the case of the appellant/plaintiff that the defendants cannot prescribe title by adverse possession when the plaintiff is also a co-

owner of the property, it is submitted by the learned Counsel appearing for the appellant that, even if the defendants can claim such title, it will start

only from 1973, as the plaintiff could get right in the property only on the death of Pappathi Ammal, i.e., on 29.6.1973. The learned Counsel has

also submitted that since the contesting defendants claim possession on the basis of the valid title, they cannot prescribe title by adverse possession

against the appellant/ plaintiff. In support of his submission, the learned Counsel has relied on the decision in Annasaheb Bapusaheb Patil and

others Vs. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs. and heirs etc., , I am not able to agree With any one of the said contentions.

Though the plaintiff/appellant claims right in the property through Pappathi Animal, the sale of the suit properties by the first defendant is as early

as in 1962 under Ex.B-2. From the date of purchase of the said properties, the contesting defendants are in exclusive possession, adverse to the

interest of the said Pappathi Ammal. So, the submission of the learned Counsel that the limitation will start only from the date of death of Pappathi

Ammal cannot be countenanced.

The Apex Court, in the decision in Annasaheb Bapusaheb Patil and others Vs. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs. and

heirs etc., , has held as follows:

Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can

be referred to a lawful title will not be permitted to show that his possession was hostile to another''s title. One who holds possession on behalf of

another does not by mere denial of that other''s title make his possession adverse so as to give himself the benefit of the statute of limitation.

Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.

There cannot be any dispute about the proposition that a person whose possession can be referred to a lawful title will not be permitted to show

that his possession was hostile to another''s title. But in this case, the contesting defendants were not having any valid title with respect to the share

of Pappathi Ammal, through whom the appellant/plaintiff claims right in the property. So, with respect to that share of the property, it cannot be

said that the contesting defendants were in possession of the same with valid title. So, they cannot (sic.) claim any adverse possession against the

said Pappathi Ammal or the plaintiff.

The Full Bench of this Court in T.P.R. Palania Pillai (died) and Others Vs. Amjath Ibrahim Rowther and Another, . While dealing with the right

of the co-sharers who claimed ouster, has held as follows:

When one of several co-sharers lets into possession a stranger who proceeds to cultivate the land for his own benefit the other co-sharers must,

unless they deliberately close their eyes, know of what is going on, but if they are so regardless of their own interests they must take the

consequences. Where a person who is in possession under a usufructuary mortgage granted by one of several coparceners remains in possession

of the land and cultivates it for years, a position which We have here, there can be no doubt that the requirements of Continuity, publicity and

extent for adverse possession are fully complied with.

The Himachal Pradesh High Court in Nanak Chand and Ors. v. Sohnoo and Ors. AIR 1983 Noc. 21, while dealing with similar issue, has held

as follows:

Held that the possession of vendees in respect of 1/4th portion of A became adverse the moment they came to possess the land as owners despite

sale in respect of that share being invalid because vendees started claiming themselves as owners in their own right. The entries in the revenue

record showing A and his sons as owners in respect of their 1/4th portion of land were not sufficient to show that they were in possession of the

land.

The Patna High Court also has taken similar view in Khato Lal Dass and Another Vs. Md. Jahiruddin Babar and Others, . In that case, the

right of the stranger purchased to prescribe title by adverse possession has been dealt with, which is as follows:

The general rule that possession by one tenant-in-common cannot, in absence of special circumstances be treated as adverse to another tenant-in-

common should not be applied to a case where the circumstances are such as to indicate that the possession of each must have been adverse to

the other.

In the instant case, as clearly stated above, the plaintiff as well as the contesting defendants are strangers to the family of Samual Pyne. The

contesting defendants specifically pleaded that David Payne (being the only son of Samual Pyne) sold the entire lands to the contesting defendants

by two registered sale deeds and that they were in possession from the date of purchases. Even if, Gopal Pyne, as held by the courts below, was

another son of Samual Pyne and the full brother of David Pyne, a stranger had purchased the entire property from one of the brothers, and such a

stranger cannot be said to be a co-sharer with the other son Gopal Pyne. The position would have been different, if the contesting defendants had

pleaded purchases of some lands only from David Pyne. Then the rest of the lands would have remained with Gopal Pyne and in that view of the

matter, the stranger purchaser could be taken to be a co-sharer with Gopal Pyne and one co-sharer''s possession then would have been the

possession of the other co-sharer. But, though it will be a repetition, the contesting defendants claimed to have purchased the entire property from

one of the brothers David Pyne and also claimed to have come in possession over the plots covered by the registered sale deeds and hence it was

essential for the courts to have considered the question of adverse possession and limitation as pleaded by the contesting defendants. I hold that,

on the facts pleaded by the parties in the instant case, the court of appeal below was not correct in holding that Gopal Pyne must be deemed to be

in joint possession as a co-sharer. Thus I hold that there is enough force in the first submission advanced by the learned Counsel for the

defendants-appellants and I hold that the court of appeal below has given a wrong approach in the case. If the contesting defendants had

purchased the entire property and, in fact the basis of the registered sale deeds entered possession over the disputed lands, then their entry was

adverse to the other co-sharer from the very moment of their entry and this question of adverse possession was essential to be dealt with by the

court of appeal below.

The Bombay High Court also has taken similar view in Smt. Anjanabai Kothare and others Vs. Smt. Jaswantibai Parekh and another, ,

following the decision of the Full Bench decision of this Court, in T.P.R. Palania Pillai (died) and Others Vs. Amjath Ibrahim Rowther and

Another, , which runs as follows:

The decision of the Full Bench in Bhavrao ''s case ILR 1899 Bom. 137 would squarely apply to the facts involved in the present case. The very

fact that the stranger has been inducted into possession and consequently, the possession of the co-owners terminated would be sufficient to put

the other co-owners to notice of the conduct of the alienating co-owners. Therefore, ouster would be to their notice and the possession of

transferee would be adverse from the date of possession.

While dealing with adverse possession against non-alienating co-owner by the stranger put in possession, following the Full Bench decision in

T.P.R. Palania Pillai (died) and Others Vs. Amjath Ibrahim Rowther and Another, , the Kerala High Court in Karthiyayani v. U. Kallyani AIR

1972 Ker. 299 has held as follows:

As regards the property other than that covered by Ex.D-11 the co-owners were in possession ever since Charu died in 1117 and in regard to

such property a stranger was put in possession under Ex.D-13 mortgage in 1119. The suit is filed more than 12 years of that date. The very fact

that a stranger has been inducted into possession and consequently possession of the original co-owners terminated would be sufficient to put the

other co-owners to notice of the conduct of the alienating co-owners. Therefore ouster would be to their notice and possession of the transferee

would be adverse from the date of Ex.D-13 as regards the property which the mortgagee was put in possession of under Ex.D-13.

In view of the above mentioned decisions, the lower appellate court is correct in holding that the contesting defendants have acquired title by

adverse possession, with respect to the items 1 and 2 of the plaint ''A'' schedule property, against the appellant/plaintiff. Hence, this second appeal

is dismissed accordingly. No costs. Consequently, C.M.P. No. 566 of 1986 is closed.