Judgment :- 1. The plaintiff is the appellant. Ha filed suit O.S. No. 7/75 before the District Munsif, Tenkasi, for declaration that the plaint schedule property belonged to his vendor Balammal alone, for recovery of possession from the respondents for future mesne profits at Rs. 3/-per month from the date of plaint till delivery of possession and for costs on the following averments The suit property belonged to one Pethachi Thevar, who purchased the same under a registered sale deed (Ex. b-1) on 29.1.1941 for Rs. 200/-. He was in ‘ossession and enjoyment of the suit property till his death in 1952. On his death, his wife Muthathal @ Balammal and his son Maruthupandi became entitled to the suit property. Maruthupandi died and Balammal was in enjoyment of the suit property absolutely. She incurred debt and for discharging the debt, she executed a mortgage in favour of her sister-in- law one Nagammal and Nagammal insisted on the first respondent, the brother-in-law of Balammal, also to join in the execution of the mortgage deed. The mortgage was discharged by Balammal. The first respondent attempted to claim title to the suit property by trying to take advantage of the joint execution of the mortgage deed. Balammal alone was entitled to the suit property and she was enjoying the same. She left for Thirupudaimarudhur to stay with her sister and since the first respondent represented that he would take care of the property and pay a rent of Rs. 3/- per month, she left the house to the first respondent in 1971. The first respondent was only a tenant. Balammal executed a sale deed for Rs. 900/- on 21.5.1974 (Ex. A-1) in favour of the appellant. The appellant thus became entitled to the suit property. The first respondent knew about the sale and he represented that he would vacate and surrender possession of the suit property within three months thereafter, but he never vacated. The appellant caused a notice to be issued on 28.9.1974 under the original of Ex. A-6 dated 28.9.1974, which provoked a reply from the first respondent claiming title through an oral partition in 1960. He also alleged that he has executed a gift deed in favour of his wife, who in turn had sold the property to respondents 2 and 3. The transactions were all fraudulent and they were not binding on the appellant. A-6 dated 28.9.1974, which provoked a reply from the first respondent claiming title through an oral partition in 1960. He also alleged that he has executed a gift deed in favour of his wife, who in turn had sold the property to respondents 2 and 3. The transactions were all fraudulent and they were not binding on the appellant. The alleged partition was also false. The suit property was the self-acquired property of the appellants vendors husband Pethachi Thevar. The respondent had no manner of title in the suit property. The suit was therefore necessitated. 2. The suit was resisted by the respondents contending inter alia as follows: The suit property originally belonged to the first respondent and his paternal uncle Periasamy Thevar and his son Esakky Thevar. There were debts and the suit property was therefore sold in favour of one Subbiah Thevar, the husband of the first respondents sister Nagammal. Later, the first respondent and his brother Pethachi Thevar purchased other properties from the common fund in the name of Pethachi Thevar as the first respondent had died. After the death of Pethachi Thevar, the above properties were jointly enjoyed by the heirs of Pethachi Thevar and the first respondent. The first respondent and Pethachi Thevars widow Balammal for herself and her minor son Karuthapandi executed a mortgage in favour of Nagammal, the sister of Pethachi Thevar and the first respondent for Rs. 400/-on 16.11.1953 under the original of Ex. B-2. The appellant was estopped from contending that the suit property only belonged to Pethachi Thevar and not to the first respondent. The averments in the plaint that the first respondent also joined in the execution of the mortgage under the original of Ex. B-2 because the mortgage insisted on his joining was also false. The mortgagee assigned the mortgage to one Esakki Thevar on 2.3.1973. Esakki Thevar had not been made a party and the suit was therefore bad non-joinder of parties. In an oral partition in 1960 the suit property fell to the share of the first respondent and from the date of the partition the first respondent was alone in possession and enjoyment of the suit property continuously without any interruption and to the knowledge of Balammal and he perfected title by adverse possession. He also transferred the house to his name in the panchayat register and he was paying tax. He also transferred the house to his name in the panchayat register and he was paying tax. He executed a gift deed in favour of his wife Lakshmi under Ex. B-32 on 5.1.1973 and Lakshmi executed a sale deed in favour of respondents 2 and 3 under Ex. B-33 on 12.2.1973. The allegations that the suit property was leased out to the first respondent on a monthly rent of Rs. 3/- was also false. The other averments in the plaint were all false. Balammal had no right to execute a sale deed in respect of the suit property in favour of the appellant and the said sale was fraudulent and without consideration. The appellant was not entitled to any relief. 3. The trial Court framed the necessary issues and found as follows: The suit property was not purchased in the name of Pethachi Thevar with the common funds of himself and his brother, the first respondent. The property exclusively belonged to Pethachi Thevar and the first respondent was not entitled to any share in the plaint schedule. The suit property was not mortgaged by Balammal and the first respondent as co-owners. The first respondent joined in the execution of the said mortgage without any right in himself. The oral partition alleged by the first respondent was not true, valid or binding on the appellant. The appellant was not estopped from contending against the right and title of the first respondent. The suit was not bad for-non-joinder of party. The gift by the first respondent to his wife Lakshmi and the subsequent sale by Lakshmi in favour of the second and the third respondents were not true and binding on the appellant or Balammal. The sale by Balammal in favour of the appellant was valid and binding on the first respondent. The lease of the suit property by Balammal to the first respondent was not true. The first respondent had not perfected title to the suit property by adverse possession. Consequently, by his judgment and decree dated 22.6.1977 the learned District Munsif decreed the suit as prayed for. 4. On appeal by the respondents in A.S. No. 20/77 the Principal Subordinate Judge, Tirunelveli, found in favour of the appellant on all the points except with regard to adverse possession. Consequently, by his judgment and decree dated 22.6.1977 the learned District Munsif decreed the suit as prayed for. 4. On appeal by the respondents in A.S. No. 20/77 the Principal Subordinate Judge, Tirunelveli, found in favour of the appellant on all the points except with regard to adverse possession. The learned Subordinate Judge held that the respondents had established adverse possession in respect of the suit property and the suit was therefore liable to be dismissed. So holding by his judgment and decree dated 28.3.1984 the learned Subordinate Judge allowed the appeal, set aside the judgment and the decree of the trial court and dismissed the suit. Aggrieved, the present Second Appeal has been filed. 5. At the time of admission, the following substantial question of law were framed for decision in the Second Appeal: (1) Whether there is any factual or legal basis for upholding the plan of adverse possession in this case in the absence of any plea or proof of assertion of hostile title by the first defendant against his brothers widow? and (2) Whether the first defendant could claim prescriptive title by adverse possession in the absence of requisite animus, when he refers his possession of lawful title obtained under an oral partition? 6. Mr. T.M. Hariharan, learned counsel for the appellant, ably argued the matter by referring to the pleadings, the oral and the documentary evidence and also by citing several authorities. He submitted that the courts below had concurrently found on all the points in favour of the appellant and only with regard to the question of adverse possession, the courts had differed. The learned Counsel submitted that the respondents had come forward with a specific case of an oral partition in the year 1960 and they having failed to establish the oral partition, they could not fall back upon the case of the appellant that he has not established his case of oral lease by Balammal in the year 1971 to substantiate their case of adverse possession. The learned Counsel submitted that so far as this case was concerned, the respondents were in the position of plaintiffs and they had come forward with a definite case of adverse possession which they had to establish and in the instant case, they had not established their adverse possession. The learned Counsel submitted that so far as this case was concerned, the respondents were in the position of plaintiffs and they had come forward with a definite case of adverse possession which they had to establish and in the instant case, they had not established their adverse possession. The learned counsel submitted that the respondents were lacking in the necessary animus for prescribinng title by adverse possession. According to the learned counsel law required that the possession of a person claiming title by adverse possession should be with the knowledge and animus that somebody else was the owner of the property and he was in possession of somebody elses property. The learned counsel also submitted that there was total lack of pleadings in the instant case regarding adverse possession. The learned counsel repeatedly stressed on the fact that the respondents had come forward with a specific case of oral partition in the year 1960 and in as much as they failed to establish the oral partition and their possession subsequent to 1960 lacked the necessary animus for prescribing title by adverse possession. The learned Counsel wanted to draw a distinction between a title failing and a title found to be false. The learned Counsel also submitted that parties were close relations and as between close relations something more and better and stronger evidence of a positive character was necessary to establish title by prescription and adverse possession. According to the learned Counsel substantial and clear evidence was lacking in the instant case. 7. In support of his submissions, the learned Counsel relied on decision of this Court, the Kerala High Court and the Supreme Court. 8. The learned Counsel for the respondents submitted that they had produced several documents in support of their case of adverse possession right from 1960 till after 1972 and on the basis of this overwhelming documentary evidence, the lower Appellate Court found that the respondents had prescribed for title by adverse possession and the same did not call for interference in second appeal. The learned counsel also relied on two decisions, one of this Court and the other of the Supreme Court, in support of her contentions. She also submitted that Balammal had abandoned her rights in respect of the suit property and had left the place for good. The learned counsel also relied on two decisions, one of this Court and the other of the Supreme Court, in support of her contentions. She also submitted that Balammal had abandoned her rights in respect of the suit property and had left the place for good. So far as this abandonment point is concerned, the learned counsel for the appellant in reply submitted that no case of abandonment had been placed in the plaint. 9. From a survey of standard books dealing with adverse possession and several authorities of the Supreme Court, the Privy Council, our High Court and other High Courts, relied on by the learned Counsel appearing on both sides, the resultant position could be summarised as follows: In order to constitute possession two conditions must be satisfied: The person concerned must be in a position to exercise some control or power over the thing or object he must intend or ‘Will to exercise this control or power - there must be both physical (Corpus) and mental (animus) aspects or elements present to constitute possession. 10. Sir. F. Pollook stated as follows: “The reality of the defacto dominion is measured in inverse ratio to the chances of effective possession.” “The animus part of it involved, the mental element, the intention to control to hold for ones own exclusive use recognizing nobody elses right to possession.” In Corpus Juris Secundum , it has been stated as follows: “Adverse possession implied possession (a) commenced in wrong and (b) maintained against right.” “Adverse possession refers to (a) actual and exclusive possession (b) coupled with the intention to hold as owner and (c) accompanied by such an invasion of the rights of the true owner as gives the latter a cause of action to sue for recovery of possession at once.” Ittappan v. Manavikrama (ILR 21 Madras 153) “The possession must be in denial of the title of the true owner, peaceable, open, continuous, unbroken, notorious, distinct, unequivocal and hostile under the colour of title or claim of right, to be capable of being known by the parties interested in the property by due dilegence. There should be no attempt at misrepresentation or concealment.” (1) Sivsubramania v. Secretary of State (ILR 9 Madras 285) (2) A Rukmani and another v. V. Gopalaswamy and another (1993 - II MLJ 598) (3) Ganda Singh v. Ram Narain (AIR 1959 Punjab 147) (4) Ponnaiyan v. Munian (died) and others (1995 - II MLJ 294 = 1995 - I LW 680) (5) Natesan v. Chinnachi Kandar and four others (AIR 1996 Madras 468 = 1996 -I CTC 699 = 1996 - II LW 344) “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 mere suggestion in the relief clause that there was an uninterrupted possession for “several 12 years” or that the plaintiff had acquired “an absolute title” was not enough to raise such a plea. Long possession is not necessarily adverse: possession and the prayer clause is not a substitute for a plea.” S.M. Karim v. Mst. Bibi Sakina ( AIR 1964 SC 1254 = (1964) - II SCJ 224 = (1964) - 6 SCR 780) Karmega Kone v. Udayar Kone and others (1979 - I MLJ 419 = 92 L.W. 299); Mahavir and another v. Rural Institute, Amaravathi and another (1995 - 5 SCG 335) Abubakar Abdul Inamdar (dead) by LRS. and others v. Harun Abdul Inamdar & others (JT 1995 - 7 SC 179) Pappammal (died) and others v. Valiammai (died) and others (1996 - II MLJ 194) “where a question of acquisition of title by adverse possession falls to be determined, clear and definite evidence relating to the different points of time must be adduced. and others v. Harun Abdul Inamdar & others (JT 1995 - 7 SC 179) Pappammal (died) and others v. Valiammai (died) and others (1996 - II MLJ 194) “where a question of acquisition of title by adverse possession falls to be determined, clear and definite evidence relating to the different points of time must be adduced. Possession is a question of fact to be answered by legitimate inferences from the materials exposed in the case.” - Charles Hereward Simpson and others v. Government of Tamil Nadu (1989 -1 MLJ 511 = 1989-2-LW.571) “Acts which are alleged to create adverse possession must be scrutinized in the light of the relationship that exists between the parties who assert against each other the title by adverse possession.” - Thangavelu Chetty v. Mangathaye Ammal (21 Indian Cases 21 (Mad.) “Where the plaintiff and the defendant are close relations, very much more and better and stronger evidence of a positive character is necessary to establish title by prescription and adverse possession in favour of the plaintiff Substantial and clear evidence of neighbours and other villagers and tenants of continued exclusive possession of the land by plaintiff to the deprivation of any enjoyment by defendant is necessary before the plaintiff can rely upon his title by prescription.” - Puttuthayamma and another v. Rathnarajiah and another - AIR 1955 Mysore 33. “The person claiming adverse possession must plead and prove that he remained in possession in his own right” - Parasinni (dead) by L.Rs. and others v. Sukhi and others (1993) 4 SCC 375 = 1994-1-L.W. 211) “The principle of law is firmly established that a person who bases his title by adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed.” - Ejus Ali Qidwai and others v. Special Manager, Court of Wards, Balrampur Estate and others (68 MLJ 397 = A.I.R. 1935 Privy Council 53 = 41 L.W. 242). “It is for the person claiming title to prove existence of hostile title and the person remained silent even after knowledge thereof. Exception in the recognition by law of acquisition of title only through lawful means is the concept of adverse possession. “It is for the person claiming title to prove existence of hostile title and the person remained silent even after knowledge thereof. Exception in the recognition by law of acquisition of title only through lawful means is the concept of adverse possession. Mere silence or keeping animus in mind cannot make title lost to the real owner.” - S. Subba Reddiar (died) and others v. Bhagyalakshmi Animal @ Guruvachi Animal and another (1996 - II L.W. 31) “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 the facts necessary to establish his adverse possession.”- Dr. Mahesh Chand Sharnia v. Raj Kumari Sharma (1996) 8 SCC 128 = (1996) - I SCJ 73 = AIR 1996 SCW 253 ) “It is not necessary in order to establish adverse possession that the proof of acts of possession should cover every moment of the requisite period. Though the possession be not proved to have continued every quarter, month or year, yet ordinary possession will be sufficient if the distance is not great. The fact of possession may be continuous though the several acts of possession are at considerable intervals.” - Kuppuswami Udayar v. Murugayyan (84 L.W. 120), A. Rukmani and another v. Gopalaswamy and another (1993 - II MLJ 598) “If a thing or a state of things is shown to exist, an inference of its continuity within a reasonably proximate time both forwards and, in appropriate cases, backwards may be drawn under Section 114 of the Evidence Act.” -A.P. Thakur v. Kamal Singh ( AIR 1966 SC 605 = (1966) 1 SCR 758 ). “The concept of adverse possession contemplates a hostile possession, i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be acverse must be possession by a person who does not acknowledge the others rights, but denies them. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor.” - Anantha Pillai v. Rathinasabapathy Mudaliar ( 1968 2 MLJ 574 ) 11. Possession to be acverse must be possession by a person who does not acknowledge the others rights, but denies them. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor.” - Anantha Pillai v. Rathinasabapathy Mudaliar ( 1968 2 MLJ 574 ) 11. It has been held in Madhavan v. Kannammal and 27 others (1990 - 2 L.W. 274) and Rajeswari v. Dhanammal ( 1994 1 MLJ 401 ) that, “the courts of law have power to grant relief which would be warranted by the facts of the case when such facts have been established by indisputable records even if they were not exactly pleaded by the parties.” However, in the present case, the respondents had pleaded adverse possession from 1960. The contention of the learned counsel for the appellant that there was no plea of adverse possession as also his further contention that abandonment also had not been pleaded, cannot be accepted. On the available records and the available materials, it has to be found that Balammal left the suit property soon after the death of her husband and her son, which happened nearly 20 years prior to the suit. 12. Regarding the pleading or the lack of it if we have to look at the written statement it is stated that from the date of the oral partition during 1960 the first respondent alone was in possession and enjoyment of the suit property not only continuously without any interruption but also to the knowledge of Balammal. The contention of the learned counsel for the appellant that there is total lack of pleading with regard to adverse possession cannot be accepted, nor do I subscribe to the view that there could be no adverse possession if the person claiming did not know that he was enjoying somebody elses land. No doubt, some of the decisions of this Court have held that there could be no adverse possession if the person claiming did not know that she was enjoying somebody elses land. In view of the several other decisions already referred to, I have absolutely no doubt that possession to be adverse must be possession by a person who did not acknowledge the others rights, but denied them. The animus which is the crucial factor is the animus that the property was his own. In view of the several other decisions already referred to, I have absolutely no doubt that possession to be adverse must be possession by a person who did not acknowledge the others rights, but denied them. The animus which is the crucial factor is the animus that the property was his own. So far as this case is concerned, admittedly, the first respondent had been in possession from 1960. He had the necessary animus that it was his property. That Balaramal had knowledge that the first respondeat was in possession could not be doubted. It had been held in Vasudeva Padhi Khadanga Garu v. Maguni Devan Dakshi Mahapatrulu Gara (LLR 24 Mad 387) that even if the nomenclature of adverse possession did not find a place in the pleadings, if it was pleaded that the person had been in possession and enjoyment of the suit property in his own right, it would be enough pleading of adverse possession. In the instant case, it has already been noticed that the respondents had specifically and sufficiently pleaded adverse possession. Documents have been produced which show that the first respondent had got his name in the house tax registry in respect of the suit properly. Exs. B-3 to B-31 clearly showed that the properties stood in his name and that he had been enjoying the same by paying house tax for well over the statutory period. When admittedly the owner Balammal had not come anywhere near the property for more than 12 years and her plea and the appellants plea of an oral lease at the rate of Rs. 3/- per month had also been found against by both the courts below, it is too much to expect the court to find against adverse possession, which had been found to have been established by the respondents. 13. It has been held in Parsinni (dead) by L.Rs. 3/- per month had also been found against by both the courts below, it is too much to expect the court to find against adverse possession, which had been found to have been established by the respondents. 13. It has been held in Parsinni (dead) by L.Rs. and others v. Sukhi and others (1993) 4 SCC 375 = 1994-1-L.W. 211) as follows: “When the appellants claimed title to the suit lands it is sufficient for them to show that their possession is overt and without any attempt at concealment so that the respondents against whom time is running, ought, if to exercise due vigilance to be aware of what is happening When the) openly and to the knowledge of the respondents continuously remained in possession and enjoyment and the entries in the revenue records established that their possession and enjoyment was as owners, the consent of the respondents initially given to remain in possession till their marriage or death whichever was earlier does not prevent possession being adverse after their marriage The entries in the revenue records continuously for 30 years would corroborate their plea of adverse possession and militate against the claim of the title of the respondents.” The case on hand is several shades better than that case. In that case, the possession to start with was permissive, which is not the case here. As has been found by the lower Appellate Court, the appellants vendor Balammal, who was examined as P.W.I, had stated that her husband died about 20 years prior to her giving deposition, that her son died 1-1/2 years thereafter and soon thereafter she left the suit village and went away to Thirupudaimarudhur and that till the date of her giving evidence she was only at Thirupudaimaruthur. This along with other documentary evidence prompted the lower Appellate Court to reach a finding that Balammal had left the property for good and the respondents had prescribed for title by adverse possession with the necessary animus that they were in possession in their own right. 14. This along with other documentary evidence prompted the lower Appellate Court to reach a finding that Balammal had left the property for good and the respondents had prescribed for title by adverse possession with the necessary animus that they were in possession in their own right. 14. I am clearly of the view that the respondents had pleaded adverse possession properly, that they had also established adverse possession as has been found by the lower Appellate Court by overwhelming documentary evidence and also the admission of Balammal as P.W.I and in these circumstances, I have no alternative other than to answer the substantial question of law raised against the appellant. Consequently, the Second Appeal is dismissed. However, there will be no order as to costs.