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2012 DIGILAW 3023 (MAD)

Ramamurthy v. Yashodha

2012-07-13

R.S.RAMANATHAN

body2012
Judgment :- 1. The defendants 2 to 7 are the appellants. The plaintiffs filed a suit for declaration and recovery of possession of the properties. 2. The case of the plaintiffs was that the suit properties originally belonged to Govinda Mudaliyar and he had four sons, namely Rajagopal, Thangavel, Rajamanickam and Perumal and the father and sons sold the suit property and other properties to one Chinnamma Ammal and Kuppusamy under a registered sale deed, dated 10.04.1941 for a valid consideration of Rs.400/-and from the date of sale, the said Chinnamma Ammal and her son Kuppusamy were in possession of the properties. The said Chinnamma Ammal died intestate in the year 1977 leaving behind her son Kuppusamy to succeed to her estate and thus, Kuppusamy became the absolute owner of the properties covered under the sale deed, dated 10.04.1941. The said Kuppusamy died intestate on 11.04.1979 leaving behind the plaintiffs viz., his wife and children and therefore, they became the absolute owners of the properties. It was further stated that the defendants 1 to 3 were the sons of one Thangavel and the defendants 4 to 6 were the sons of Rajamanickam and the 7th defendant was the wife of Perumal and the predecessor in-title of the defendants 1 to 7 were parties to the sale deed, dated 10.04.1941 and therefore, they are estopped from claiming any right over the properties. 3. It was further stated that the defendants 1, 4 and 7 trespassed into the properties three years prior to the filing of the suit and put up some construction and therefore, a notice was issued on 09.11.2004 to the defendants 1, 4 and 7 calling upon them to surrender vacant possession of the trespassed portion and the first defendant sent a reply admitting the plaintiffs' title over the suit property, but contended that he constructed a house 20 years back and was prepared to purchase the vacant site at the rate fixed by the plaintiff and the defendants 4 to 7 sent a reply, dated 22.11.2004 denying the right of the plaintiff and also claimed adverse possession. 4. 4. It was further stated that the sale deed, dated 10.04.1941 was not a sham and nominal one as contended by the appellants and the sons of Govinda Mudaliyar accepted the sale deed and as a matter of fact, Kanakaraju Mudaliyar, son of Rajagopal Mudaliyar one of the vendors of the sale deed, dated 10.04.1941, exchanged some properties with Chinnammal and Kuppusamy, which were purchased by them, under sale deed dated 10.04.1941 under a registered exchange deed, dated 09.03.1993. Similarly, the father of the defendants 1 to 3, namely Thangavelu Mudaliyar also exchanged some properties with Chinnammal and Kuppusamy, they got the same under the sale deed, dated 10.04.1941, under a registered exchange deed, dated 09.03.1973 and that would also prove that the sale deed, dated 10.04.1941 was not a sham and nominal sale deed and it was acted upon and the plaintiff also denied the possession of the properties by the defendants for more than 20 years and therefore, filed a suit for declaration of title and recovery of possession. 5. The 4th defendant filed a statement and the same was adopted by the other defendants and the 4th defendant after denying the various allegations made in the plaint regarding the sale deed, dated 10.04.1941 exchange deeds dated 07.03.1973 and 09.03.1973, contended that Govinda Mudaliyar had only 3 sons, namely Thangavelu, Rajamanickam and Perumal and a daughter Chinnammal and the alleged sale deed, dated 10.04.1941 in favour of Chinnammal and Kuppusamy was a sham and nominal document and that was never treated by them as their exclusive property and the appellants are in possession of the property and they have been paying property tax and each one is in possession of specific item of property and they constructed a tiled house in that portion 20 years back and therefore, they have also perfected title by adverse possession. Therefore, it was contended that the plaintiffs have no right over the property and the defendants have also perfected title by adverse possession. 6. On the side of the plaintiffs, two witnesses were examined and 12 documents were marked and on the side of the defendants/appellants, one witness was examined, namely the first defendant and 26 documents were marked. 7. Therefore, it was contended that the plaintiffs have no right over the property and the defendants have also perfected title by adverse possession. 6. On the side of the plaintiffs, two witnesses were examined and 12 documents were marked and on the side of the defendants/appellants, one witness was examined, namely the first defendant and 26 documents were marked. 7. The trial court framed six issues and the issue Nos.2 is 'whether the sale deed, dated 10.04.1941 was a sham and nominal document and Issue No.3 is whether the defendant prescribed title by adverse possession. 8. The trial court on the basis of the oral and documentary evidence held that the sale deed, dated 10.04.1941 was not a sham and nominal document and that was acted upon and the same is evidenced by exchange deeds, dated 07.03.1973 and 9.3.1973 Exs.A5 and A6 and held that the plaintiffs have got title over the property. 9. The learned trial Judge also held that the defendants have not proved their adverse possession and even though, the documents were filed by the defendants, they have not proved that they are in possession from 1978 and they have not proved the essential ingredients of adverse possession and they have not stated the date from which, they perfected title by adverse possession, which is one of the essential ingredients of adverse possession and in the absence of any proof that the defendant are in possession of the property for more than 12 years, adverse to the knowledge of the plaintiff, they are not entitled to claim right over the property by adverse possession and decreed the suit as prayed for. The lower appellate court also confirmed the decree and judgment of the trial court by analyzing the oral and documentary evidence. Hence, this second appeal. 10. The appellants raised eight substantial questions of law and at the time of argument, the learned counsel appearing for the appellants submitted that the courts below erred in holding that the appellants/defendants have not proved their title by adverse possession without properly appreciating Exs.B25 and Ex.B26. He further submitted that Exs.B5 to B16 would prove that the defendants are in possession and enjoyment of the property from the year 1978 and Ex.B5 is of the year 1978. He further submitted that Exs.B5 to B16 would prove that the defendants are in possession and enjoyment of the property from the year 1978 and Ex.B5 is of the year 1978. Exs.B6 to B16 are from the year 1980 to 2005 and those documents would prove that the appellants are in possession of the properties for more than 20 years and having regard to those documents, the courts below ought to have held that the appellants have perfected title by adverse possession and those documents were not properly appreciated by the courts below. 11. Having regard to the arguments of the learned counsel appearing for the appellants, the following substantial question of law was framed at the time of admission:- “Whether the appellants have perfected title by adverse possession? 12. In this case, both the courts below have concurrently held that the sale deed, dated 10.04.1941 was not a sham and nominal document and it was a real transaction and acted upon by the parties and therefore, the plaintiffs/respondents became the owners of the property. As a matter of fact, that finding was not canvassed by the appellants at the time of arguments and the substantial question of law raised by the appellants is only relating to adverse possession. 13. Further, the courts below rightly held that the sale deed, dated 10.04.1941 was a real transaction and it was not a sham and nominal document. Admittedly, under Exs.B5 and B6 the properties purchased under the sale deed, dated 10.04.1941 were exchanged by the vendors of the sale deed, dated 10.04.1941 and the appellants also accepted the title of the predecessor in title of the respondents/plaintiffs and entered into a registered deed of exchange Exs.B5 and B6. Therefore, except the pleading that the sale deed, dated 10.04.1941 was a sham and nominal document, no document was produced by the appellants to prove the same. Further, the original sale deed, dated 10.04.1941 was produced by the respondents/plaintiffs and that was marked as Ex.A1. Considering all these aspects, the courts below rightly held that the sale deed, dated 10.04.1941 was not a sham and nominal deed and the respondents/plaintiff are the owners of the property and they are entitled to relief prayed for. 14. Further, the original sale deed, dated 10.04.1941 was produced by the respondents/plaintiffs and that was marked as Ex.A1. Considering all these aspects, the courts below rightly held that the sale deed, dated 10.04.1941 was not a sham and nominal deed and the respondents/plaintiff are the owners of the property and they are entitled to relief prayed for. 14. Once the respondents/plaintiffs are declared as owners of the property and the appellants have no right or title over the same, the appellants can claim title only by adverse possession. Therefore, we will have to see whether the appellants have proved that they perfected title by adverse possession. 15. In a Suit for recovery of possession based on title, once the Plaintiff' proves his title to the suit property, he is entitled to the decree of recovery of possession, unless the Defendant pleads and proves adverse possession. Once the Plaintiff establishes his title a duty is cast upon the Defendant to prove that he has prescribed title by adverse possession over the suit property. To prove adverse possession, the conduct of the Defendant and the treatment of the suit property by the Defendant are important. If the Defendant has enjoyed the suit property as owner of the suit property, he cannot claim adverse possession. Similarly, if the Defendant is enjoying the suit property for more than a statutory period, but did not enjoy the property to the knowledge of the true owner, in that case also, he cannot claim adverse possession. 16. It is settled law that when a person claims title under adverse possession, the burden is on him to prove that he prescribed title by adverse possession and he is in open and continuous possession of the property for more than 12 years and his possession is also hostile to the knowledge of the real owner. Further, adverse possession commences in wrong and perfected by long and continuous possession of the property for over the statutory period of 12 years and hostile to the knowledge of the real owner. Further, when a person claims adverse possession, he must admit that he is not the owner and the other is the owner and he is enjoying the property as a real owner to the knowledge of the true owner. 17. Further, when a person claims adverse possession, he must admit that he is not the owner and the other is the owner and he is enjoying the property as a real owner to the knowledge of the true owner. 17. The law of adverse possession has been thoroughly discussed in the judgment reported in Veerasekaran v. Devarasu, 2008 (7) MLJ 275, wherein the learned Judge, after quoting various judgments of the Hon'ble Supreme Court has held as follows:- “A person who claims title to the property by adverse possession must definitely allege and prove: (I) How and when adverse possession commenced, (II) What was the nature of his possession, and (III) Whether the fact of his adverse possession was known to the real owner.” The Learned Judge also held as follows: “To base a claim of adverse possession, it is not enough to allege that one is in possession of the land. Ingredients of adverse possession must be established.” 18. In a judgment reported in the case of T. Anjanappa v. Somalingappa, 2006 (5) CTC 378 (SC) : 2006 (7) SCC 570 , the Hon'ble Supreme Court has held has follows:- “Adverse possession” means a hostile possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, burden is on the Defendants to prove affirmatively. A person, who bases his title on adverse possession, must show by clear and unequivocal evidence i.e., possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e., possession was hostile to the real owner and amounted to a denial of his title to the property claimed. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that, a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that, a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession averse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title, by pretending that he had no title at all.” 19. In the judgment reported in 2000 (2) CTC 219 ,in the case of Kannappan v. Pargunand, this Court has held that a party can contend adverse possession only when he admits that another person has got title and that person cannot claim adverse possession, when he also claims title to the suit property. Further, in the judgment reported in the case of Karnataka Board of Wakf v. Government of India, 2004 (10) SCC 779 , the Hon'ble Supreme Court has held as hereunder:- “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” 20. In the judgment reported in the case of L.N. Aswathama and another v. P. Prakash , 2009 (13) SCC 229 , the Hon'ble Supreme Court has held as hereunder:- “The legal position is no doubt well settled. In the judgment reported in the case of L.N. Aswathama and another v. P. Prakash , 2009 (13) SCC 229 , the Hon'ble Supreme Court has held as hereunder:- “The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi . The plea based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possession the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence.” 21. In the judgment reported in the case of P.T. Munichikkanna Reddy v. Revamma, 2007 (6) SCC 59 , the Hon'ble Supreme Court has held as follows:- “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 get communicated to the paper-owner of the property. This is where the law gives important to hostility and openess 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” 22. In the judgment reported in the case of Saroop Singh v. Banto, 2005 (8) SCC 330 , the Hon'ble Supreme Court has held as follows:- “In terms of Article 65, the starting point of limitation does not commence from the date when the right of ownership arises to the Plaintiff but commences from the date the Defendant's possession becomes adverse. “Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the Appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus.” 23. “Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the Appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus.” 23. Further, I have also extensively dealt with the law of adverse possession in the judgment rendered in S.A.No.279 of 2010, dated 26.04.2012 in the matter of N. Thirugnanasambandam and another vs. R.Sundararaj & other. In that case also, the plea taken by the parties was that the sale deed in favour of the plaintiffs was a sham and nominal and the defendants perfected title by adverse possession. In that context, I have held that once a person claims right over the property as the owner, he cannot claim title by adverse possession, after relying upon various judgments of the Hon'ble Supreme Court as stated above and also the judgment reported in (2008)15 SCC 150 , in the case of Kurella Naga Durva Vudaya Bhaskara Rao vs. Galla Jani Kamma. Therefore, when the defendant claims ownership of the property as now claimed in this case, he cannot claim adverse possession. The defendants/appellants also did not specifically state when their possession became adverse. 24. Considering all these aspects, the findings of the courts below that the appellants have failed to prove their title by adverse possession is correct and I do not find any reason to interfere with the judgments and decrees of the courts below. Accordingly, the substantial question of law is answered against the appellants. 25. In the result, the second appeal is dismissed and the judgments and decrees of the courts below are confirmed. Consequently, connected Miscellaneous Petition is closed. No costs.