The State of Tamil Nadu vs K. Purushothaman

S.S. Subramani, J.—Defendant in O.S.No. 205 of 1978, on the file of Sub Court, Trichy, is the appellant.

Suit filed by the plaintiff is one for declaration and injunction. The subject matter of the suit is a portion of T.S.No. 983/1. According to the

plaintiff, himself and his predecessors have been in possession of the subject matter of the suit for the last more than 50 years, and even if the

defendant-State has got any title over that property, the same is lost by adverse possession.

In the written statement of the appellant (defendant), it is contended that T.S.No. 983/1 is Natham Poramboke and it is used by washermen

community, for the purpose of washing clothes and drying the same. It is also the case of the defendant that all the encroachers have been evicted,

and even the plaintiff''s predecessor was also dispossessed pursuant to the action taken by the Government. It contended that the plaintiff has no

title to the property, nor possession. It prayed for dismissal of the suit.

Exs.A-1 to A-23 were marked on the side of the plaintiff. Exs.B-1 to B-13 were marked on the side of the defendant. Plaintiff was examined

himself as P.W.1 and another witness as P.W.2. D.W.1, an officer, was examined on the side of the defendant-State. The trial Court elaborately

considered the evidence, both oral and documentary.

The trial Court came to the conclusion that the plaintiff and his predecessors have been in possession of the suit property and they had been

dealing with the same as absolute owners at least from 1936. They have even executed documents in respect of the same, and they have asserted

their right openly and exclusively. The Government is also aware of their possession. Finally, the trial court came to the conclusion that even though

it is a Natham poramboke land, plaintiff has prescribed title by adverse possession. The suit was decreed as prayed for.

Defendant-State took the matter in appeal in A.S.No. 75 of 1981. The lower appellate court also confirmed the finding and dismissed the

appeal with costs.

The concurrent judgments of both the courts below are assailed in this second appeal.

The substantial question of law raised for consideration is as follows:

Whether the plaintiff, who claims title to the suit property, is not bound by the principle of res judicata as a result of the judgment in O.S.314 of

1971, on the file of the Court of District Munsif, Trichy and whether the plaintiff is not bound by the principle of estoppel arising out of his petition

filed before the State Government for eviction of encroachers on the suit property?

After considering the relevant materials and evidence on record, I do not think that the Courts below have approached the question rightly. Even

though the plaintiff has stated that the suit property is a registered holding, the lower appellate Court has entered a definite finding that the schedule

property is a Government poramboke land. The finding of the trial court has been reversed in para 9 of the appellate court judgment. The lower

appellate court has said that T.S.No. 983 is a Natham situated within the Municipal limits of Trichy. That Town Survey Number has been sub-

divided as T.S.Nos. 983/1, 2 and 3, as evidenced by Ex.B-6. From Ex.B-6, it is clear that T.S.No. 983 was reserved for construction of

''dobigana'', but the same was being used as municipal public latrine. The total extent is 5 acres and odd, and it is classified as Government land. It

can safely be said that T.S.No. 983 is a Natham. The defendant has proved that T.S.No. 983/1 is a Government poramboke land belonging to the

Government. This finding of the lower Appellate Court is not challenged by the plaintiff.

Both the Courts below have not considered the question whether the plaintiff had the animus to hold the property against the Government,

while holding that the plaintiff has prescribed title by adverse possession. Long possession itself is not adverse possession. Possession with animus

to hold it against the true owner is the basic requirement to prescribe title by adverse possession.

In ''U.N. Mitra''s Law of Limitation and Prescription'' - 10th Edition (1992), at page 1176, the learned Author has said thus:

Adverse possession is essentially a hostile possession, possession in denial of the title of the true owner. It includes possession held by a defendant

in practical, contravention of the plaintiff''s rights while the plaintiff is standing by. It has been variously described: (a) It is possession of another''s

land with intent to hold it and claim it as his own; it must commence in wrong and must be maintained against right; (b) It is possession with animus

to hold the property in the possessor''s own right and against the right of the rightful owner; (c) It is possession hostile and exclusive; (d) It is an

invasion of title; (e) It is wrongful entry into possession. Generally speaking where an owner is not deprived of any rights which he exercises or can

exercise there is no case of adverse possession, A person will be said to be in adverse possession if he does something which the owner would

have done and does not do, or if he does something which adversely affects the rights of the owner and he knows about it. Where there is no

denial of the owner''s title the possession of the defendant is not adverse to the owner; possession of one person consistent and reconcilable with

the title of another cannot be adverse to the latter.

Let us see whether the plaintiff has proved the said ingredient. Plaintiff has to prove that he and his predecessors have been in exclusive

possession holding against the right of the Government, and that too with an animus to hold. The plaintiff is a member of Washermen''s Association.

There were number of trespassers into this Government land. It is said that people belonging to Harijan colony wanted to have houses in that

property. Government did not allow the same, because, the property was intended for washermen. The plaintiff, being a member of the

Washermen''s Association, requested the Government to assign the land to the Association and to its various members. In the meanwhile,

proceedings were also initiated under Ex.A-2 against the vendor of the plaintiff. The vendor of plaintiff filed O.S.348 of 1971, on the file of District

Munsif''s Court, Trichy. The same was dismissed. It is that person who has executed the sale deed in favour of the plaintiff. After recognising the

title of the Government, plaintiff requested the Government to assign the property in favour of the Association. So, he knew that the entire land in

T.S.No. 983/1 is a Government land. After recognising the title of the Government to the suit property, can the plaintiff claim that he has

prescribed title to it? Has he proved continuous possession for more than 30 years with such animus? On the materials on record, I do not think

that the plaintiff has succeeded in proving these requirements.

In Sankara Pillai Vs. Balakrishna Pillai and Others, . a Division Bench of the Kerala High Court held thus:

Possession by a person who entered on Government land with the hope that it may be registered in his name was not adverse possession but only

precarious possession and cannot avail against the Government or a person acquiring title from the Government

xxx xxx xxx

The defendant''s possession in fact did not amount to a possession in law, that is, did not involve an animus possidendi or occupation with the

intention of excluding the owner and other people.

Similar is the case on hand where the plaintiff claims title by adverse possession. The entire area is earmarked for washermen community, and it is

intended for the construction of ''dobigana''. Plaintiff is also making use of the same. When in the Revenue Records, it is stated as reserved for the

community of washermen, and if the plaintiff occupies it, it can only be said that he is one of the persons permitted by the Government to occupy

the same. It is for the plaintiff to show that with notice to the Government, he has been in possession and prescribed title for the last more than 30

years. In this connection, it may be also be noted that on the request of the plaintiff, the encroachers have been evicted, and it is evident from the

file produced by the Government before the trial Court. Both the Courts below were of the view that even though the file was produced before

Court, that will not prove actual eviction. I do not find any merit in such a finding. At any rate, such a finding is not necessary in this case, since the

suit is for declaration and injunction by plaintiff against the Government.

The question of adverse possession is a mixed question of law and fact. Even if possession is proved, an inference cannot be drawn that it is

adverse possession. By drawing an inference, the Courts below have committed an illegality. That entitles this Court to interfere u/s 100, C.P.C. I

hold that the finding of the Courts below that the plaintiff has prescribed title by adverse possession is not correct, and the same is set aside.

Plaintiff has also sought for injunction restraining the Government from interfering with plaintiff''s possession and enjoyment of the suit property.

The suit is not for injunction alone. The prayer for injunction is consequential. If the plaintiff is not entitled to get the declaration sought for, naturally,

the consequential relief which flows from the main relief, also cannot be granted. Therefore, for the reasons stated above, the judgments of both the

Courts below are set aside. The suit is dismissed.

In the result, the Second Appeal is allowed however, without any order as to costs.