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Judgment
G. Rajasuria, J.—This second appeal is focussed by the defendants, inveighing the judgement and decree dated 30.11.2000 passed by the
learned I Additional District Judge cum Chief Judicial Magistrate, Coimbatore in A.S. No. 225 of 1999 in reversing the judgment and decree
dated 20.07.1999 passed by the learned Principal Subordinate Judge, Coimbatore in O.S. No. 633 of 1996. The parties, for the sake of
convenience, are referred to here under according to their litigative status and ranking before the trial Court.
A summation and summarisation of the germane facts, absolutely necessary for the disposal of this second appeal would run thus:
a) The plaintiffs, six in number, filed the suit seeking the following reliefs:
- to pass the judgment and decree as against the defendants
- directing the division of the suit properties into five equal shares by metes and bounds and allot one such share to the plaintiffs jointly by
appointing a Commissioner;
- directing the defendants to pay the costs of the suit.
(extracted as such)
setting out the facts, which could tersely and briefly, in a few broad strokes could be set out thus:
The property described in the schedule of the plaint was purchased by one T.A. Assan Kader Rowther and his four sons, viz., defendants 1 to 3
and the deceased Abdul Jabbar vide document No. 2764 of 1956 registered in the office of the SRO, Coimbatore. The suit properties are
agricultural lands, which were in joint possession and enjoyment of them. The defendants were managing the said properties after the death of the
plaintiffs'' father Abdul Jabbar. In fact, plaintiffs'' were minors at the time of the death of their father. Taking undue advantage of the same, the
defendants neglected the plaintiffs'' right over the suit property and failed to allot their aliquot shares. The plaintiffs'' claim 1/5th share in the said
entire property purchased jointly.
Accordingly, they prayed for partition.
b) Per contra, the defendants'' filed the written statement jointly, resisting the suit, the warp and woof of the same would run thus:
The said T.A. Assan Kader Rowther bequeathed in favour of the plaintiffs'', land and building measuring an extent of 2424 sq.ft. (24 x 101)
bearing Door No. 19/113 and T.S. No. 2/1196 belonging to these defendants vide settlement deed dated 01.06.1965 and Document No. 2537
of 1965. Absolutely, there is no cause of action for filing the suit. The defendants'' were not cultivating any land on behalf of the defendants'' and
that they never attempted to deprive anyone''s property much less the plaintiffs'' property.
Accordingly, they prayed for the dismissal of the suit.
c) Whereupon issues were framed by the trial court.
d) Up went the trial, during which, on the plaintiffs'' side, the fourth plaintiff examined himself as P.W.1 and marked Exs.A1 to A3. On the
defendants'' side, D3 examined himself as DW1 and marked Exs.B1 to B5.
e) Ultimately, the trial court dismissed the suit; as against which, the plaintiffs'' preferred the appeal. Whereupon, the first appellate court reversed
the judgment and decree of the trial court and decreed the suit in toto.
f) Challenging and impugning the judgment and decree of the first appellate court, the defendants'' have preferred this second appeal on various
grounds and also suggesting the substantial questions of law.
My learned predecessor framed the following substantial questions of law:
When the plaintiffs are aware of execution of release deed by their mother under Ex.B4 and their long inaction coupled with the knowledge on
their part about open and notorious exercise of the rights and enjoyment by the defendants whether the same would not amount to ouster and
whether the lower appellate court has not erred in law in holding that there is no ouster?
When the plaintiffs had acquired another property executed by appellants and their father in favour of the plaintiffs on the same day i.e. on
1.6.1995 when the plaintiffs mother executed release deed and whether under such circumstances under equity whether the plaintiffs are entitled to
1/5th share in the suit property?
Under the circumstances of execution of release deed and settlement deed dated 01.06.1965 whether the limitation starts running from the date
of execution of release deed dated 1.6.1965 or from the date of reply notice was sent on 27.2.1993 and whether the lower appellate court has not
erred in law in holding that limitation starts only from 27.2.1993?
(extracted as such)
Heard both sides.
The learned counsel for the appellants/defendants would pyramid his argument, which could succinctly and precisely be set out thus:
i) The first appellate court committed serious error in decreeing the suit in toto ignoring the various pleas raised by the defendants.
ii) The trial court taking into account the pros and cons of the matter held that the suit was barred by limitation. In view of the fact that the plaintiffs''
mother viz., B. Subidha executed the release deed in favour of the defendants'' releasing her husband''s 1/5th share in the suit property and that the
suit itself was only filed in the year 1996, it was barred by limitation.
Accordingly, he would pray for setting aside the judgment and decree of the first appellate court.
Per contra, the learned counsel for the plaintiffs''/respondents would contend that the first appellate court was justified in holding that the suit was
not barred by limitation, because the mother of the plaintiffs'' as per Muslim Law, was not competent to represent the interest of the minor sons as
she could only be termed as the de facto guardian for the minors and not de jure guardian.
Accordingly, he would pray for dismissing the second appeal.
No doubt, so far as this case is concerned, the pleadings before the court were not adequate. However, this a suit for partition, in stricto sensu,
the rules relating to the pleadings cannot be bull-dozed in and throw the baby along with the bathe water. The question of adverse possession, in
matters of this nature would not arise in view of the decision of the Hon''ble Apex Court reported in P.T. Munichikkanna Reddy and Others Vs.
Revamma and Others, . Certain excerpts from it would run thus:
Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on
the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse
possession lie in it being open, continuous and hostile. (See Downing v. Bird; Arkansas Commemorative Commission v. City of Little Rock;
Monnot v. Murphy; City of Rock Springs v. Sturm.)
Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court
expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in
favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has
ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one''s right to bring an action for the recovery of property
that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not
to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the
statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p. 81.) It is important to keep in mind while studying the
American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete
go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim.
Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:
Application of limitation provision thereby jurisprudentially ""wilful neglect"" element on part of the owner established. Successful application in this
regard distances the title of the land from the paper-owner.
Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner,
to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and
intention in the upkeep of the property.
It is interesting to see the development of adverse possession law in the backdrop of the status of right to property in the 21st century. The
aspect of stronger property rights regime in general, coupled with efficient legal regimes furthering the rule of law argument, has redefined the
thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of human rights jurisprudence in recent times has
also palpably affected the developments in this regard.
New consideration in adverse possession law
In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom wherein the European Court of Human Rights while referring
to the Court of Appeal judgment [JA Pye (Oxford) Ltd. v. Graham made the following reference:
Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process
whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the
Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right
of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages:
there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol.
Importantly, intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. The factum of
possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the
appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which
is required for adverse possession to materialise.
A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in
Karnataka Board of Wakf v. Govt. of India in the following terms:
Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors
that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law.
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. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true
owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse
user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities
of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and
opportunity to the paper-owner.
The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the
plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64
and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its
title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have
succinctly been stated by this Court in S.M. Karim v. Bibi Sakina in the following terms:
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 found.
A bare poring over and perusal of the said precedent would highlight and spotlight the fact that possession by one co-owner amounts to
possession by the other co-owner. Simply because twelve years'' period might have got expired without one of the co-sharers being in possession,
that would not attract the concept ''ouster'' in favour of the possessor or owner. There should be clear proof to demonstrate and display that the
co-owner in possession started enjoying the sad property as his own property detriment to the interest of the other co-sharers not in possession.
The first appellate court being the last court of facts rendered its findings that the defendants, for the first time in their reply notice Ex.B2 dated
27.02.1993 asserted title adverse to the plaintiffs and well within twelve years thereafter, the suit itself was filed by the plaintiffs. Over and above
that, in view of my discussion supra, the enjoyment by some of the co-owners should be taken as enjoyment of all the co-owners and there is
nothing here to exemplify and demonstrate that there was ouster of the plaintiff''s right.
As such, holistically the matter has to be viewed. Accordingly, if viewed, the first appellate court was right in holding that the suit was not barred
by limitation. The mother who was totally incompetent as per Muslim law to represent the minors, could not have legally transferred the suit
property in favour of any one and for that matter even she had no competency to surrender the rights of the minor in favour of the defendants'',
who are the brothers of the her deceased husband. As such, the invocation of limitation point as against the plaintiff was a well-neigh impossibility
and the first appellate court also correctly held the same.
However, one important point should not be lost sight of. In the 1/5th share in the deceased Abdul Jabbar''s share, the mother of the plaintiffs''
had 1/8th share as per Islamic Law, as found enunciated and detailed in Mulla''s Principles of Mohammedan Law (19th Edition) page 48-A and
the fact remains that the deceased defendant left behind his children along with his widow. As such, widow''s normal share in this case was 1/8 of
1/5 of her husband''s share in the suit property, over which, there could be no second thought and to that much extent, the release would be
binding on the plaintiffs'' and the plaintiff''s cannot challenge that the mother had no right to release her 1/8th share in the 1/5th share of her
deceased husband validly in favour of the other co-sharers and that too for consideration, which she received. As such, what remains is that, out of
the 1/5th share of Abdul Jabbar, the remaining 7/8th share would devolve upon the plaintiffs'' and they would be entitled to get partitioned their
shares. Only this aspect has not been considered by the first appellate court. In respect of other aspects, I do not think that there is any valid
ground for interference in this second appeal.
Accordingly, the substantial questions of law are answered to the following effect:
(i) The substantial question of law Nos. 1 and 3 are decided to the effect that the question of pressing into service ouster does not arise in this case
as B4, the release deed executed by the mother on behalf of her minor sons'' share has to be treated as non-est in the eye of law and the in the
wake of the decision of the Hon''ble Apex Court in P.T. Munichikkanna Reddy and others v. Revamma and others (supra) case referred to supra
cannot and that too in the facts and circumstances of this case, claim adverse right as against the plaintiffs.
(ii) The substantial question of law No. 2 does not arise in view of lack of pleadings in the written statement itself.
In the result, this second appeal is partly allowed modifying the preliminary decree to the aforesaid extent. However, in the circumstances there
shall be no order as to costs.
Later
C.M.P. Nos. 469 & 470 of 2013 in S.A. No. 1022 of 2001
26th June, 2013
This matter is listed under the caption ''for being mentioned''.
These are the petitions to get set aside the abatement caused due to the death of the fourth respondent-T.A. Sulaiman and to bring on record
the legal representatives of the said deceased.
Heard the learned counsel for both sides and perused the records. No objection was endorsed by the respondents.
These C.M.Ps were filed to get set aside the abatement and to implead the L.Rs of the deceased. This exercise has been undertaken after the
disposal of the second appeal on merits, however, such non-impleadment of L.Rs before the disposal of the second appeal is not material, as it
turned out to be a formal one, for which the respondents also endorsed no objection. In order to disambiguate the ambiguity, if any, the following
paragraph No. 10-A shall be inserted in the judgement dated 29.4.2013 in
10A. It is represented that pending this second appeal R4-T.A. Sulaiman died; whereupon, his legal heirs, viz., his widow- Shakita Banu, daughter
- Thasleem and son Md. Thanfiq were impleaded as party respondents.
Accordingly these petitions are allowed.