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2002 DIGILAW 826 (KER)

Devaki Pillai v. Gouri Amma

2002-12-17

R.BHASKARAN

body2002
Judgment :- 1. This second appeal is filed by the plaintiff in a suit which was originally filed for fixation of boundary and later converted into recovery of possession. In this second appeal, the only question to be considered is with respect to a pond existing on the north-western portion of the plaintiff's property. Though there was a dispute with regard to a mango tree situated on the boundary of the plaintiff's property, the learned counsel for the appellant did not press that point in the second appeal. 2. With regard to the pond in question, the trial court originally denied the relief to the plaintiff and directed the boundary to be fixed on the eastern side of the pond and excluding the pond from the plaintiff's ownership and possession. The plaintiff filed an appeal and the appellate court remanded the case to the trial court. The appellate court observed that the learned Munsiff accepted Ext. C2 plan and he was of opinion that the survey demarcation in Ext. C2 plan is correct. Since the plaintiff did not care to amend the plaint by adding the relief for declaration to the effect that the pond, mango tree and the blue shaded portion in Ext. C2 plan belonged to her and are in her possession or in the alternative for recovery of possession if they are found to be in possession of the defendants and to fix the boundary, an opportunity was given for that purpose by remanding the suit to the trial court. 2. After remand, the trial court issued an Advocate-Commission to measure the property on the basis of the plaintiff's title deed and the survey records. The plaintiff's title deed takes in Survey No. 2360 and the disputed pond is admittedly found to be in Sy. No. 2360. The defendants have no claim with regard to any portion of the property in that survey number. The Commissioner also identified the property with respect to the extent and it was found that the disputed property is covered by the plaintiff's title deed. The contention of the defendants was that the pond was enjoyed by them along with the adjacent western property as if it is covered by their title deed. Therefore, it was contended that even if there was any title with the plaintiff, it was lost by adverse possession and limitation. 3. The contention of the defendants was that the pond was enjoyed by them along with the adjacent western property as if it is covered by their title deed. Therefore, it was contended that even if there was any title with the plaintiff, it was lost by adverse possession and limitation. 3. The trial court found that the oral evidence of PW.1 will go to show that the plaintiff or PW.1 has never enjoyed the pond and the western levelled up portion which is a portion of plaint A-schedule item No. 1. The trial court found that possession however long may be is insufficient to prescribe title unless there is animus to adverse to the true owner. It was observed that the defendants have not adduced evidence to establish the plea of adverse possession. It was also noted that there was no plea in the written statement that the pond came within plaint A-schedule item and it was being enjoyed by the defendants with the knowledge of the true owner hostile to their title. 4. In appeal, the lower appellate court found that from the description of property conveyed under Ext. Al it cannot be said that the pond was also conveyed to the plaintiff. According to the lower appellate court, if actually the property had been measured out on the date of execution of Ext. A2 the transferee as well as the transferor would have known that the pond is within the extent shown in the document and there will be clear description including the tank also. In that view of the matter, the lower appellate court found that the plaintiff has not established title with respect to the disputed pond. 5. I find it difficult to accept the reasoning of the lower appellate court. The Commissioner has identified the plaint schedule property with respect to survey number and the extent shown in the plaintiff's title deed. Whatever is included in the title deed must be deemed to have been conveyed to the plaintiff unless it is expressly excluded. If a conspicuous portion is excluded then it would have been shown as a boundary in the plaintiff's title deed. Therefore, merely because the pond was also not described in the title deed, it cannot be said that it was excluded from the survey number shown in the plaintiff's title deed. If a conspicuous portion is excluded then it would have been shown as a boundary in the plaintiff's title deed. Therefore, merely because the pond was also not described in the title deed, it cannot be said that it was excluded from the survey number shown in the plaintiff's title deed. It has also to be noted that the defendants' title deed also does not include the pond. There is no case that the pond is no man's land in the area. Therefore, the finding that the plaintiff has no title with respect to the pond has only to be vacated and the questions of law framed as per C.M.P. No. 2398 of 2002 as question No.1 is found in favour of the appellant. That question reads as follows: 1. When the Commissioner appointed by the Court after identifying the property has submitted a plan and report, indicating that the disputed property forms portion of the property covered by the document of title of one of the parties, and when such report and plan are not in dispute, should not such report and plan be treated as a conclusive or vital piece of evidence while deciding the right and title in respect of the disputed property. 6. The more important and vexed question to be considered is as to whether the finding of the lower appellate court that the defendants have established title by adverse possession and limitation is correct or not. The case of the defendants is that they have been in long possession of the property as if it was included in their title deed and if at any rate it was not included they have perfected title by adverse possession and limitation. A portion of the pond has been reclaimed by the defendants and the plaintiff or her predecessors did not fill the same. The question to be decided in this case is whether such an act of possession believing it to be one's own property would enable such a person to claim adverse possession once it is found that the property is included in the title deed of the neighbour. The question to be decided in this case is whether such an act of possession believing it to be one's own property would enable such a person to claim adverse possession once it is found that the property is included in the title deed of the neighbour. In other words, whether the continuance in possession by the person should be with the animus that he is in hostile possession of the property and against the interest of the true owner or whether his continuous open and peaceful possession would amount to adverse possession in the eye of law. 7. The lower appellate court has proceeded on the basis that the defendants have been in continuous long peaceful possession of the disputed pond over 12 years even taking into account the title deed of the plaintiff and the date of filing of the suit and therefore the defendants have perfected title by adverse possession. The learned counsel for the respondents on the other had submits that Art.65 of the Limitation Act expressly states that the period of 12 years prescribed under the Act is to be taken from the date when the possession of the defendant becomes adverse to the plaintiff. The trial court had proceeded on the basis that possession however long will not become adverse unless it was with the animus to continue possession adverse to the possession of the real owner. 8. In Kshitish Chandra v. Commissioner of Ranchi (AIR 1981 SC 707), the Supreme Court observed as follows: "All that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. Such a requirement may be insisted on, where an ouster of title is pleaded but that is not the case here." That was also a case relating to a tank and the High Court had taken the view that adverse possession could not be proved since the disputed property is a portion of the tank or a land appurtenant thereto. Such a requirement may be insisted on, where an ouster of title is pleaded but that is not the case here." That was also a case relating to a tank and the High Court had taken the view that adverse possession could not be proved since the disputed property is a portion of the tank or a land appurtenant thereto. The Supreme Court held that if a person asserts a hostile title even to a tank which as claimed by the Municipality as belonging to it and despite the hostile assertion of the title no steps were taken by the owner to evict the trespasser, a title was acquired after completion of 30 years. 9. In D.R. Kolli v. G.M. Pattanashetti (ILR 1990 Karnataka 610), K.A. Swami, J., had occasion to consider more or less an identical situation as in this case. There also the person who claimed adverse possession was keeping possession of the property on the belief that his land extended upto the pond in question which was under existence for more than 30 years. The learned judge held that a person who under the bona fide belief thinks that the property belongs to him and as such he has been in possession, such possession cannot at all be adverse possession because it lacks necessary animus for perfecting title by adverse possession. The learned judge distinguished the decision of the Supreme Court in Kshitish Chandra's case (AIR 1981 SC 707) by stating that the Supreme Court in that decision was not called upon to pronounce as to the ingredients of adverse possession. The learned judge also relied on the decision of the Privy Council in Ejas Ali v. Special Manager, Court of Wards, Balrampur Estate (AIR 1953 PC 53) to the effect that a person who bases his title to adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. Thereafter the learned judge relied on the decision of the Supreme Court in P. Lakshmi Reddy v. L. Lakshmi Reddy (AIR 1957 SC 314) where the Supreme Court discussed the three ingredients of adverse possession. In that case the Supreme Court was considering the case of adverse possession between co-owners. 10. Thereafter the learned judge relied on the decision of the Supreme Court in P. Lakshmi Reddy v. L. Lakshmi Reddy (AIR 1957 SC 314) where the Supreme Court discussed the three ingredients of adverse possession. In that case the Supreme Court was considering the case of adverse possession between co-owners. 10. In Anchal Reddi v. Ramakrishna Reddiar (AIR 1990 SC 553) the Supreme Court held that a person claims to be in possession under an executory contract cannot claim adverse possession since his possession commenced under an agreement of sale though the parties contemplated an execution of a registered sale deed. In such a case the person in possession is aware of the fact that he is in possession of the property belonging to the vendor and that the former's title has to be perfected by a duly executed registered deed. The Supreme Court also observed that in a case where under an oral transfer and or under an unregistered sale deed transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property, in such a case the owner of the property does not retain any vestige of right in regard to the property and the transferee retains the same with clean animus that he has become the absolute owner of the property. In Venkatachalaiah v. Najundaiah (AIR 1992 Kartn. 270), Jagannatha Hegde, J., had occasion to consider a claim of adverse possession by a person who contended that he purchased the property benami in the name of the defendant and that he was the real owner of the property. He also set up an alternative claim of adverse possession on account of his long and continuous physical possession of the property. The learned judge of the Karnataka High Court observed as follows: "In order to perfect title by adverse possession two inseparable ingredients are necessary. They are (1) Corpus Possidendi (Physical Possession) and (2) Animus Possidendi (Intention to exclude the adversary from possession). The possession must also be adequate in continuity and publicity. The contention of the appellants counsel was that it is not open to the plaintiff to plead even alternatively that he began to hold the suit property adverse to defendant No.1 without conceding that defendant No.1 is the real owner. The possession must also be adequate in continuity and publicity. The contention of the appellants counsel was that it is not open to the plaintiff to plead even alternatively that he began to hold the suit property adverse to defendant No.1 without conceding that defendant No.1 is the real owner. It was argued that it is not possible to visualise the situation of a person holding the property as a real owner and also holding it with an intention to deny the title of somebody else at the same time from the same date. The learned judge referred to D.R. Kolli's case (ILR (1990) 1 Karnataka 610). Thereafter, it was observed as follows: "It cannot be believed that the plaintiff had in his mind that somebody else was the owner of the property on 9.11.1955, as his main case is that he himself became the owner on that day and was in possession of the same thereafter. Mere possession over a statutory period is not sufficient to succeed in a plea of adverse possession unless it is accompanied by adverse animus." The learned judge also distinguished the decision of the Supreme Court in Nair Service Society Ltd. v. K.C. Alexander (AIR 1968 SC 1165) by stating that the observations in that judgment were made in a case where a suit was filed under S.9 of the Specific Relief Act and the effect of mutually destructive pleadings which had direct nexus with the animus of the person possessing the land was not considered in that case. 11. In K.T. Uhchegowda v. Deputy Commissioner (ILR 1994 Karnt.1839 = (1994) 3 SCC 536), the Supreme Court was considering a claim of adverse possession by a person who purchased the land from another who himself had purchased it from a member of Scheduled Caste who obtained the land from Government with a condition that he shall not alienate the land for a period of 15 years. The member of the Scheduled Caste got the land in 1957 and a portion of it was sold by him in 1965. The appellant purchased the property in 1979. In 1979 an Act came into force by which any transfer in violation of the condition whether made before or after the commencement of the Act was made null and void and gave power to the Assistant Commissioner to take possession of such land. The appellant purchased the property in 1979. In 1979 an Act came into force by which any transfer in violation of the condition whether made before or after the commencement of the Act was made null and void and gave power to the Assistant Commissioner to take possession of such land. The validity of the Act was upheld by the Supreme Court in an earlier judgment. But even in that judgment it was observed that the decision will not affect the persons who have perfected title at time of the commencement of the Act. Subsequently, the judgment was reviewed and it was made clear that the period prescribed must be 30 years and not 12 years as the person has to prescribe title against the Government. That decision was distinguished by the Supreme Court in the present case where it was held that the period of 30 years will apply only in cases where there were only allotment of land and the title remained with the State Government and where there was transfer by the State Government by way of grant absolutely unless there is special period of limitation in the Act, the period of 12 years is to be taken into account for the purpose of completing the period of adverse possession. For considering the question whether it was absolute grant or an allotment the matter was remanded to the High Court. 12. In Nair Service Society v. K.C. Alexander (AIR 1968 SC 1165) the Apex Court noted the decision in Perry v. Clissold (1907 AC 73) where it was held as follows: "It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title." 13. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title." 13. In R.N. Dawar v. Ganga Saran Dhama (AIR 1993 Delhi 19) SC Jain, J., held as follows: "Regarding the plea of adverse possession, it is settled law that a person who claims title to a property by adverse possession must definitely allege and prove as to how and when the adverse possession commenced and what was the nature of his possession and whether the fact of his adverse possession was known to the real owner. The mere fact that he was in uninterrupted possession for several years and in that way he acquired absolute right and title is not enough to raise such a plea. Long possession is not necessarily adverse possession." Permissive possession is, possession by a co-owner, agent or by a person under an agreement of sale. For them to claim adverse possession, they have to pass through the severe test of ouster to the knowledge of the other co-owner, principal or the person who enters into the agreement as the case may be. 14. But in other cases, the period of limitation is 12 years from the date when the possession of the defendant became adverse to the plaintiff. To be 'adverse' the possession must be nee vi, nec claim, nec pecaris i.e. peaceful, open and continuous. In the case of possession by a person who improves the property though under the bona fide belief that he is the owner of the property; and the real owner looks one and does not take any action it cannot be said that the plaintiff is entitled to recover possession of at his sweet will and pleasure without any time limit. It is in this background that the findings of facts by the courts below have to be understood. 15. The trial court found that PW.1 admitted that a portion of the pond on the west was levelled up by the family of the 1st defendant. It was also found that there was no evidence to show that at any point of time the plaintiff was enjoying the same. 15. The trial court found that PW.1 admitted that a portion of the pond on the west was levelled up by the family of the 1st defendant. It was also found that there was no evidence to show that at any point of time the plaintiff was enjoying the same. However the trial court found that mere possession however long it may be is not sufficient to prescribe title unless there is animus to hold it adverse to the true owner. The appellate court on the other hand, found that the animus to hold adversely has to be gathered from the proved particulars and circumstances. Believing the evidence of DW.1 that the 1st defendant and his predecessors were in continuous uninterrupted possession for long number of years, the appellate court found that the 1st defendant has perfected title by adverse possession and limitation. 16. It may not be permissible for this Court in second appeal to reappreciate the evidence and come to a different conclusion. Even if a person enjoys the property as his own for a large number of years and for more than 12 years before the date of suit and if the true owner does not take any action within the period of limitation it can be said the person in possession has perfected title by adverse possession as the three conditions of 'peaceful', 'open' and 'continuous' possession to constitute adverse possession are satisfied by him. The burden to plead and prove such possession is on him and whether he has succeeded in that attempt is a question of fact. 17. The same view has been taken by Padmanabhan, J. in Raman v. Devadasa Maller and Ors. (1991 (1) KLJ 377) and I respectfully agree with that view. In the light of the above discussion, the second appeal is dismissed without any order as to costs.