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2000 DIGILAW 823 (MAD)

V. S. Pandurangam v. Kannan and others

2000-08-17

K.NATARAJAN

body2000
JUDGMENT: S.A.Nos.1601 to 1605 of 1986 have been preferred by the appellant/plaintiff against the judgment and decree in A.S.Nos.70, 79, 69, 68 and 71 of 1985, dated 30.12.1985 on the file of the Subordinate Judge, Cuddalore, reversing the judgment and decree of the learned District Munsif, Panruti, dated 20.8.1984 in O.S.Nos.808, 811, 810, 809 and 807 of 1982 respectively. 2. S.A.No.255 of 1989 has been preferred by the first defendant since deceased, against the judgment and decree of the learned Subordinate Judge, Cuddalore, dated 12.12.1988 in A.S.No.333 of 1988 reversing the judgment and decree of the learned District Munsif, Panruti, dated 24.11.1987 in O.S.No.1402 of 1984. The legal heirs of first defendant who died pending the second appeal have been brought on record as appellants 2 to 4. As the subject matter in all these appeals is the same, viz., Dry R.S.No.59/5, Acre 1.12, Vadakailasam Village, Panruti Taluk, all these appeals are taken up together and a common judgment is recorded. 3. The appellant/plaintiff is S.A.Nos.1601 to 1605 of 1986 instituted the respective suits for a declaration of his title to the suit property described in the schedule to the plaints, for recovery of possession and for mesne profits on the allegation that his father became entitled to the entire extent of 1 acre and 12 cents by purchase from one Palanisamy Chettiar and his brothers as per Ex.A.3 and in the partition that took place in the family on 11.12.1957 as per Ex.A.5, he became entitled to the same. According to him, the defendants in the suits became lessees under his father and put huts in an extent of about 5 cents and they are working in the Panruti municipality. After the partition, he permitted them to continue in possession without collecting any rent. However, the defendants taking advantage of his illness,changed the mutation in their names in the Municipality, which had been objected to by him. As the defendants denied his title, it became necessary for him to institute the suits. The defendants/respondents in the above suits denied the various allegations in the plaints. According to them, the allegations that they became lessees under the father of the plaintiff and thereafter the plaintiff allowed them to continue without collecting any rent are all false. As the defendants denied his title, it became necessary for him to institute the suits. The defendants/respondents in the above suits denied the various allegations in the plaints. According to them, the allegations that they became lessees under the father of the plaintiff and thereafter the plaintiff allowed them to continue without collecting any rent are all false. It is also alleged that they are in possession of the respective property in their own right and they have prescribed title to the respective property by adverse possession. 4. The allegation in O.S.No.1402 of 1984, which is the subject matter of S.A.No.255 of 1989 is slightly different. In that suit, it has been alleged by the respondent/plaintiff that he constructed huts in the suit property and leased the same to various persons including the respondent/defendant. As the defendant changed the mutation in his name, taking advantage of his absence, the plaintiff was compelled to file a suit. The first defendant, since deceased, in his written statement contended that it is not true to say that patta changed is in the name of the plaintiff. The allegation that he trespassed on the property was also not true. He is in possession of the property in his own right and prescribed title by adverse possession. 5. The learned District Munsif, Panruti formulated the necessary issues in all the suits and tried the suits separately. On a consideration of the evidence adduced by both the parties, oral and documentary, by his judgment dated 20.8.1984, he decreed the suits in O.S.Nos.808, 811, 810, 809 and 807 of 1982 respectively in respect of declaration and recovery of possession, but dismissed the same, so far as the past mesne profits is concerned and directed that future mesne profits shall be ascertained by a separate enquiry under O.20, Rule 12 of the Code of Civil Procedure. However, the learned District Munsif, Panruti, for the reasons assigned by him in the judgment in O.S.No. 1402 of 1984, had dismissed the suit with costs holding that the first defendant Solomon has prescribed title to the suit property by adverse possession. All the defendants in O.S.Nos.808, 811, 810, 809, 807 of 1982 preferred appeals in A.S.Nos.70, 79, 69, 68 and 71 of 1985 respectively on the file of the learned District Judge, Cuddalore, which was later transferred to the file of the Subordinate Judge for hearing. All the defendants in O.S.Nos.808, 811, 810, 809, 807 of 1982 preferred appeals in A.S.Nos.70, 79, 69, 68 and 71 of 1985 respectively on the file of the learned District Judge, Cuddalore, which was later transferred to the file of the Subordinate Judge for hearing. The learned Subordinate Judge, Cuddalore, who heard the appeals, namely, A.S.Nos.70, 79, 69, 68 and 71 of 1985, reversed the judgment and decree of the learned District Munsif, Panruti for the reasons assigned by him in the judgments, allowed the appeals and dismissed the respective suits without costs. So far as the appeal in A.S.No.33 of 1988, which had been preferred against O.S.No.1402 of 1984, he allowed the appeal and reversed the judgment and decree of the trial Court and decreed the suit with costs. The aggrieved plaintiff and first defendant, since deceased, have preferred the respective second appeals. 6. The substantial question of law that has been argued by the learned counsel for the appellant in S.A.Nos.1601 to 1605 of 1986 is, even though the first appellate Court had reversed the judgment and decree of the trial Court and dismissed the suits filed by the plaintiff, it has confirmed the finding of the learned District Munsif, Panruti that he plaintiff/appellant has got title to the respective suit property and, therefore, the burden is on the defendants/respondents to prove that they are in continuous possession of the suit property for a period of 12 years and prescribed title by adverse possession. It was pointed out that the learned first appellate Judge was not correct in holding that the respective defendants have prescribed title as overt act like change of mutation to the Municipality had been exercised by them, at best, from 1977 only and not earlier and the plaintiff instituted the suit by 1984 and 12 years period has not been completed by that time. At this juncture, the attention of this Court was invited to a decision of this Court reported in Bhagavathi Pillai (Died) and another v. Savarimuthu and another, (1976)1 M.L.J. 34 . In that decision, the learned Judge had explained the effect of Arts.142 and 144 of the Limitation Act, 1908 and Arts. 64 and 65 of the new Limitation Act, 1963. In para 9 of the said decision, it had been held: “9. Arts. In that decision, the learned Judge had explained the effect of Arts.142 and 144 of the Limitation Act, 1908 and Arts. 64 and 65 of the new Limitation Act, 1963. In para 9 of the said decision, it had been held: “9. Arts. 142 and 144 gave rise to a good deal of confusion with respect to suits for possession by owners of property. The law as it stood appeared to favour a trespasser as against owner, because the decisions had held that in an ejectment action by the owner of the property it was not sufficient for him to establish his title, but he had also to go further and establish that he was in possession of the property within 12 years before the date of institution of the suit. In order to redress this anomaly, Arts. 64 and 65 were suitably altered. Art. 64 deals with suits based on possession and not on title. In such a case the plaintiff, who while in possession had been dispossessed, could file a suit within a period of 12 years from the date of dispossession. For the purpose of Art. 64 there is no question of proving any title. Art. 65 relates to suits for possessions based on title. In such a case, the period of limitation is 12 years when the possession of the defendant became adverse to the plaintiff. If in a suit falling under Art. 65, the defendant wants to defeat the rights of the plaintiff, he has to establish his adverse possession for a period of 12 years, which has the effect of extinguishing the title of the owner by operation of Sec.27 of the present Act. If he fails to do so, then the plaintiff cannot be non-suited merely because he was not able to prove possession within 12 years”. It was submitted by the learned counsel for the appellant that as both the Courts have concurrently found that the plaintiff has title to the suit property, the defendants cannot succeed unless they have adduced sufficient and convincing evidence to prove that they were exercising acts of adverse possession against the real owner, namely, the plaintiff, and also had the required animus to claim title by prescription and said overt acts continued for a period of 12 years without any break. 7. 7. Per contra, the learned counsel for the defendants/respondents submitted as per the evidence of the plaintiff in O.S.Nos.808, 811, 810, 809 and 807 of 1982, that his father had leased the property to the respective defendants on monthly rent and after the plaintiff became the owner, he had permitted the defendants to continue in possession without collecting any rent. However, the plaintiff had not adduced satisfactory and acceptable evidence to prove the above as found by the Courts below and, therefore, the possession of the defendants became adverse from the year 1936, when the respective defendants occupied the property. The learned counsel for the appellant though did not dispute the above position of law, pointed out that as per the concurrent finding of the Courts below, the plaintiff has title to the suit property and, therefore, possession follows title, unless the defendants have satisfied the ingredients relating to the law of adverse possession. 8. At this juncture, reliance was placed by the learned counsel for the appellant on a division Bench ruling of this Court reported in Muthiah Pillai v. Vedambal, (1998) L. W. 606. At page 613 of the said decision, it has been observed: “The classical requirements of adverse possession are that the possession must be nec vi clam nec precario, that is to say, the possession required must be adequate in continuity in publicity and in extent. It is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running ought, if he exercises due vigilance to be aware of what is happening. In Secretary of State v. Debendralal Khan, 61 I.A. 76 their Lordships negatived the contention that it is necessary for the trespasser to bring the facts of his adverse possession to the notice of real owner. Mere exercise of possession exclusively and continuously would not be enough in all cases to show that the true owner if vigilant would be aware of what was happening. Permissive possession does not become hostile till there is an assertion of an adverse possession to the knowledge of the owner....”. In a recent decision reported in Ponnaiyan v. Munian (Died) and others, (1995)1 L.W. 680 in paragraph 8, it had been held as follows: “8. There is no statutory definition of adverse possession. Permissive possession does not become hostile till there is an assertion of an adverse possession to the knowledge of the owner....”. In a recent decision reported in Ponnaiyan v. Munian (Died) and others, (1995)1 L.W. 680 in paragraph 8, it had been held as follows: “8. There is no statutory definition of adverse possession. Adverse possession refers to actual and exclusive possession coupled with intention to hold as owner. Adverse possession becomes hostile to the rightful owner, when a person openly and continuously possesses a land under a claim of right adverse to the title of the true owner for the statutory period. Adverse possession means a hostile possession which is express or implied in denial of the title of the true owner. Such possession must be actual and exclusive, under a claim of right, adequate in continuity in publicity and in extent so as to show that it is adverse to the true owner. Such possession, in denial of title of the true owner, must be peaceful, open and continuous. Mere possession without a claim of right for over a long time is not sufficient to create adverse possession. A mere user of property cannot be taken as a definite assertion of proprietary right; there must be some definite quality in the possession, before it can be called adverse and there must be some fact of unequivocal character which may put the owner on guard. There can be no adverse possession if the person who claims does not know that he is enjoying somebody else’s land. He must have the intention of using the property adversely against another having an interest in it. To summarise it, a person by holding possession of the property for the statutory period can acquire title only when his possession is (1) under a claim of title, (2) hostile to the true owner, and (3) actual, open, uninterrupted, continuous and exclusive.” The learned counsel also took me through the evidence of the defendants/respondents and pointed out they were unable to say against whom they were exercising adverse possession. Though they have denied the title of the plaintiff, it is not their definite evidence that they had the animus to possess the property against the real owner, namely, the plaintiff. Their evidence shows they did not know the real owner of the property, which will not satisfy the ingredients of the law of adverse possession. Though they have denied the title of the plaintiff, it is not their definite evidence that they had the animus to possess the property against the real owner, namely, the plaintiff. Their evidence shows they did not know the real owner of the property, which will not satisfy the ingredients of the law of adverse possession. In Parwatabai v. Sonabai, A.I.R. 1997 S.C. 381 paragraph 4, it had been held: “4. Art. 65 of the Act postulates that for possession of immovable property or any interest therein based on title,when the possession of the defendant becomes adverse to the plaintiff, the suit has to be filed within 12 years. Therefore, when the plaintiffs asserted their title on the basis of succession to the estate of their father, it is for the appellant to prove as to on which date the appellant’s possession has become averse to the respondent’s title. In this case, the appellate Court and the High Court found that the appellant had not established as to what was the exact date from which the adverse possession started running. Since Parwartabai died in 1966, admittedly, the plaintiff had failed the suit in 1976 within 10 years. Under those circumstances, the appellant had not perfected the title by prescription....” Pointing out the principle laid down by the Supreme Court, it was argued by the learned counsel for the appellant that it is not sufficient for the respective defendants to say that they are in possession of the property, but they should further prove from which date their possession has become adverse to the real owner, which is very much lacking in this case. The same is the principle in the earlier Supreme Court decision reported in Abubakar Abdul Inamdar (Dead by Lrs) v. Harun Abdul Inamdar, J.T. (1995)7 S.C. 179. In that ruling, the learned Judges of the Supreme Court have pointed out the person claiming adverse possession should plead overt act, on the basis of which, it could be inferred or ascertained that from a particular point of time his possession became hostile and notorious to the complete exclusion of other heirs and his being in possession openly and hostilely. In the case on hand, though evidence had been adduced that the defendants have changed the house tax in their name and paid house tax from 1978 and thus exercised some overt act, nothing has been pleaded in the written statement and therefore, no amount of proof can substitute pleadings which are the foundation of the claim of a litigating party, as pointed out by the Supreme Court. On a careful analysis of the evidence, I am clearly of the view that no satisfactory or acceptable evidence is available on the side of defendants in the suits, except O.S.No.1402 of 1984 that the respective defendants exercised hostile possession from a particular date or pleaded overt act and that they had animus to possess the property against the true owner, namely, the plaintiff. Therefore, I find it difficult to accept the submission of the learned counsel for the defendants in the suits that as the plaintiff has failed to prove his permissive possession, automatically the plea of adverse possession on behalf of the defendants gets proved and the same should be accepted by this Court. When a plaintiff institutes a suit for recovery of possession based on title, if a defendant intends to defeat the rights of the plaintiff, he has to establish that he is in adverse possession of the disputed property for a continuous period of 12 years with the requisite animus to possess the same against the true owner and by his continuous possession, the title of the true owner got extinguished by operation of law. If the defendant fails to satisfy the ingredients of adverse possession, as explained in various decisions cited supra, which apply to the facts of the present appeals, the plaintiff cannot be non-suited, merely because he was unable to prove his possession within a period of 12 years. In the case on hand, the evidence on record proves that the defendants in the respective suits have not satisfied the ingredients of adverse possession and established that the title of the plaintiff got extinguished. Therefore, the submission of the learned counsel for the respondents/defendants has no merit and the same has to be rejected. In the case on hand, the evidence on record proves that the defendants in the respective suits have not satisfied the ingredients of adverse possession and established that the title of the plaintiff got extinguished. Therefore, the submission of the learned counsel for the respondents/defendants has no merit and the same has to be rejected. In view of the discussion above, it follows that the learned Subordinate Judge, Cuddalore is not correct in holding that the plaintiff/appellant is not entitled to the relief prayed for in the respective suits and the judgments and decrees in A.S.Nos.70, 79, 69, 68 and 71 of 1985 have to be set aside and that of the learned District Munsif have to be restored. 9. Now, I will concentrate on S.A.No.255 of 1989, which arises out of O.S.No.1402 of 1984. In this case, when the respondent/plaintiff Pandurangam issued a notice under Ex.B.1, the appellant/defendant Solomon issued a reply notice,Ex.B.2 asserting his hostile title and that he is in possession of the property in his own right. It has to be remembered that except Solomon, the defendant in O.S.No.1402 of 1984, the respective defendants in the other suits have not issued any reply asserting their independent title to the disputed property and that they are in adverse possession. When the first defendant Solomon had denied the title by the reply notice, Ex.B.2, the respondent/plaintiff ought to have filed the suit to declare his title and for recovery of possession within a period of twelve years from the date of the reply notice, which he failed to do. Therefore, I am of the view that the adverse possession of the first defendant Solomon began to run atleast from the date of issue of reply notice, namely, from June 1959 and by June 1971, 12 years continuous possession has been completed and the title of the plaintiff got extinguished thereafter. 10. The learned counsel for the respondent/plaintiff contended even though the first defendant Solomon asserted his independent and hostile title as per Ex.B.2, he approached the plaintiff Pandurangam to issue a no objection certificate to get electricity service connection to the hut, which would prove that he had no hostile title. I am unable to agree. By that stray act, it cannot be said there was a break in the adverse possession of the first defendant Solomon. I am unable to agree. By that stray act, it cannot be said there was a break in the adverse possession of the first defendant Solomon. It appears to me as electricity Board authorities insisted that a no objection certificate has to be obtained, it became necessary for Solomon to approach the plaintiff for such a certificate and I am satisfied the above would not affect the case of the first defendant Solomon in any way. 11. It is unfortunate that the learned Subordinate Judge, Cuddalore has not properly considered the effect of the reply notice issued by the first defendant Solomon and he committed a grave error in holding that the first defendant Solomon had failed to prove ingredients of adverse possession and the judgment and decree of the first appellate Judge in A.S.No.33 of 1988 has to be reversed. 12. In the result, S.A.Nos.1601 to 1605 of 1986 are allowed. The judgments and decrees of the learned Subordinate Judge are reversed and that of the learned District Munsif in O.S.Nos.808, 811, 809 and 807 of 1982 are restored. There will be no order as to costs in all these appeals. 13. S.A.No.255 of 1989 is also allowed and the judgment and decree of the learned Subordinate Judge are set aside and the suit in O.S.No.1402 of 1984 shall stand dismissed. There will be no order as to costs in this appeal also.