Judgment :- 1. This second appeal is focussed by the first defendant, animadverting upon the judgment and decree dated 23.09.2004 passed by the learned I Additional Subordinate Judge, Villupuram in A.S.No.223 of 2003 confirming the judgment and decree dated 21.11.2002 passed by the learned Principal District Munsif, Villupuram in O.S.No.181 of 2000. 2. The parties, for convenience sake, are referred to here under according to their litigative status before the trial Court. 3. Heard both sides. 4. Broadly but briefly, narratively but precisely, the germane facts, in a few broad strokes, can be encapsulated thus: a] The respondents 1 and 2 herein, viz., Kuppu and Savithiri filed the present suit O.S.No.181 of 2000 seeking partition and for allotment of 1/5 th share in their favour against the five defendants. b] However, the suit was resisted by D1 alone by filing the written statement. Whereas the other defendants remained exparte. c] The trial court framed the relevant issues. d] During trial, on the plaintiff's side, the second plaintiff-Savithiri examined herself as PW1 and marked Exs.A1 to Ex.A5. On the defendants' side, D1 along with two others examined themselves as D.Ws.1 to 3 and marked Exs.B1 to B11. e) Ultimately, the suit was decreed allotting 1/5 th share in favour of the plaintiffs. f) Being aggrieved by and dissatisfied with the same, the first appeal was filed by D1 for nothing but to be dismissed by the appellate court confirming the judgment and the preliminary decree of the trial court. f] Challenging and impugning the judgments and decrees of both the courts below, this second appeal has been focussed on various grounds. 5. My learned predecessor framed the following substantial questions of law: 1. Whether the lower appellate court erred in law in holding that Ex.A1 is not a sham and nominal document when no party acted upon it as exhibited by Ex.A5? 2. When the defendants alone paid kists and patta also stands in their name and the suit is brought forth by the plaintiffs 15 years after the death of the appellant's father, whether the suit is barred by limitation? 3. Whether the courts below erred in law in rejecting the plea of ouster when the relief of mesne profits were negatived? (extracted as such) 6. 3. Whether the courts below erred in law in rejecting the plea of ouster when the relief of mesne profits were negatived? (extracted as such) 6. A 'resume' of facts absolutely necessary for the disposal of this second appeal would run thus: a) The couple Perumal Gounder and Kasiammal gave birth to five children viz., D1Mannangatti, D2-Rangesan, D3 Thairialakshmi and deceased Panchali and Dhanammal. Panchali and Dhanammal pre-deceased their parents leaving behind their respective daughters, viz., D4-Shantha and D5-Rathinavathi (the daughters of Panchali) and plaintiffs 1 and 2, viz.,Kuppu and Savithiri (the daughters of deceased Dhanammal). b) It is the contention of the plaintiffs that there emerged a partition deed among the deceased Perumal Gounder and his two sons, viz., D1 and D2 vide Ex.A1-the registration copy of the partition deed dated 26.11.1972, whereby the suit property was allotted to the share of deceased Perumal Gounder, who died during the year 1984 leaving behind his wife and his descendants. The said Kasiammal also died during the year 1994 leaving behind her descendants. As such, the plaintiffs would pray for allotment of 1/5 th share in their favour as they represent their mother Dhanammal. c) Whereas D1/the appellant herein would try to project and put forth his case as though the said partition as contained in Ex.A1 was not acted upon; that there was an oral partition subsequently, whereby, the entire property contemplated under Ex.A1 was divided into two shares and each half share was allotted in favour of Mannangati-D1 and Rangesan -D2 and that Perumal Gounder did not retain any share in his favour. d) It is also his case that ever since such allotment of shares orally, Mannangati and Rangesan started enjoying their respective shares by getting effected mutation in the Revenue Records. Accordingly the defendants would pray for the dismissal of the suit. e) However, taking into consideration Ex.A1 and the allotment of the share in favour of Perumal Gounder, the trial court held that Perumal Gounder's share, which is the suit property should be divided into five equal shares because Kasiammal the wife of Perumal Gounder died even before the filing of the suit and that their descendants are only the plaintiffs and the defendants. f) So far, P1 and P2 are concerned, they happened to be the daughters of Dhanammal the pre-deceased daughter of the couple Perumal Gounder and Kasiammal and D4 and D5 are the daughters of Panchali, the pre-deceased daughter of the couple Perumal Gounder and Kasiammal. The appellate court also confirmed the judgment and the preliminary decree of the trial court. 7. The learned counsel for the appellant/D1 would advance his argument to the effect that the defendants 3, 4 and 5 and also the plaintiffs were ousted from enjoying the suit property and the deposition of PW1 (P2) also would evince and evidence that the plaintiffs were not in possession and enjoyment of the suit property during the life time of Perumal Gounder and even thereafter and that there was an ouster. 8. I would like to refer to the written statement of D1 wherein there is no specific plea of ouster. 9. Trite the proposition of law is that the plea of ouster should be specifically pleaded and proved. 10. At this juncture, I would like to recollect and call-up the following decisions: (i) 2007 (4) MLJ 912 (SC) (P.T.Munichikkanna Reddy and others vs. Revamma and others) regarding ouster.Certain excerpts from it would run thus: "5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird; Arkansas Commemorative Commission v. City of Little Rock; Monnot v. Murphy; City of Rock Springs v. Sturm.) 6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one’s right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p.81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim. 8. Also See Privy Council's decision in Chung Ping Kwan and Others v. Lam Island Development Company Limited (Hong Kong) (1997) Ac 38 in this regard. 9. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required: 1. Application of limitation provision thereby jurisprudentially “wilful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. 2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property. 10. It is interesting to see the development of adverse possession law in the backdrop of the status of right to property in the 21st century. The aspect of stronger property rights regime in general, coupled with efficient legal regimes furthering the rule of law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of human rights jurisprudence in recent times has also palpably affected the developments in this regard. The aspect of stronger property rights regime in general, coupled with efficient legal regimes furthering the rule of law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of human rights jurisprudence in recent times has also palpably affected the developments in this regard. New consideration in adverse possession law 11. In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom wherein the European Court of Human Rights while referring to the Court of Appeal judgment JA Pye (Oxford) Ltd. v. Graham made the following reference: “Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol.” 14. Importantly, intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialise. 21. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Govt. of India in the following terms: (SCC p.785, para 11) “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. 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.” 22. 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 gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness 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. 32. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Bibi Sakina in the following terms: (AIR p.1256, para 5) “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." (emphasis supplied) (ii) Division Bench Judgment of this court reported in 2005-2-L.W.442 [Goundappa Gounder and two others vs. Periammal (died) and 6 others). Certain excerpts from it would run thus: "13. Certain excerpts from it would run thus: "13. According to the appellants, they have perfected title by long and continuous possession and by adverse possession. Further case of the appellants is that the plaintiff has never shared the income from the suit properties. It is well settled that the onus of proving ouster is upon those who set up adverse possession. It is well settled that as between co-owners there can be no adverse possession by one co-owner, unless there has been a denial of title and ouster to the knowledge of the other." A mere running of the eye over the aforesaid precedents would exemplify and demonstrate that the plea of ouster cannot be simply be presumed or assumed. Mere possession of an immovable property by a person would not in any way enure to his benefit to claim absolute ownership over the said property. As such, there is no evidence much less clinching evidence to demonstrate and display that D1 acquired prescriptive title by ousting the female heirs of the deceased couple Perumal Gounder and Kasiammal and thereby acquired title to it. 11. It is but natural in this part of the country that the daughters in a family after getting married are expected to live in their respective husbands' houses and naturally they will not be in enjoyment and possession of their father's property over which, they are having rights and that it does not mean that ouster has to be presumed as against them. In order to prove ouster, there should be clinching evidence. Mere mutation in the revenue records would not give exclusive right in favour of D1. 12. Patta would not constitute title is the trite proposition, which got exemplified in the following decisions of this court: (i) 1998 (I) CTC 630 in Srinivasan and six others Vs. Sri Madhyarjuneswaraswami, Pattavaithalai, Tiruchirapally District by its Executive Officer at Pattavaithalai Devasthanam and five others. (ii) 1973(1) MLJ 44 [Velayudham Pillai vs. Sandhosa Nadar and others] (iii) 1995(1) MLJ 426 [Kuppuswami Nainar vs. The District Revenue Officer, Thiruvannamalai and others] (iv) 2008(7) MLJ 1183 [Venkatachalam (died) and others vs. Rajammal and others] (v) 2009(3) CTC 493 R.Pannerselvam vs. A.Subramanian and another] 13. Depositions of DW1 (D1) and DW2 would not in any way be taken as sufficient evidence to prove ouster as against the female descendants of the couple Perumal Gounder and Kasiammal. Depositions of DW1 (D1) and DW2 would not in any way be taken as sufficient evidence to prove ouster as against the female descendants of the couple Perumal Gounder and Kasiammal. As such, both the courts below taking into consideration the respective rights of the parties have held that they are entitled to 1/5 th share in the suit property. 14. My mind is reminiscent and redolent of the following maxims– (i) Affirmantis est probare – He who affirms must prove. (ii) Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies. 15. Scarcely could be gainsaid, the initial burden of proof is on the plaintiff or the person who takes up a specific plea. Here, D1 took up the plea that Ex.A1 is a sham and nominal document and it was never acted upon and in such a case, the burden was on him to prove that even after Ex.A1, the registered partition deed of the year 1972 there emerged oral partition to the contrary. 16. Indubitably and indisputably, Perumal Gounder died in the year 1985. If really, as suggested by Mannangati - D1 that subsequent to the emergence of Ex.A1, there was an oral partition, in which the entire property covered under Ex.A1 was divided into two halves and each half was allotted in favour of D1 and D2, then there is no knowing of the fact as to what prevented them from getting it written and registered in the form of another partition deed. As such, there is absolutely no answer to that. 17. I call up and recollect the maxim -In re dubia magis infitiatio quam affirmatio intelligenda : In a doubtful matter, the negation is to be understood rather than the affirmation. Wherefore, there is no denying that the defendant No.1 did not prove the alleged oral partition. 18. This is only second appeal and this court is concerned with the substantive law points. Both the courts below took into account the factual evidence adduced before the trial court, and arrived at the conclusion that there is nothing to show that Ex.A1 emerged only as a sham and nominal document and thereafter there was an oral partition. 19. 18. This is only second appeal and this court is concerned with the substantive law points. Both the courts below took into account the factual evidence adduced before the trial court, and arrived at the conclusion that there is nothing to show that Ex.A1 emerged only as a sham and nominal document and thereafter there was an oral partition. 19. Insofar as Ex.A5 the sale deed dated 22.07.1996 executed by D1 on his behalf and on behalf of his minor son, is concerned, it would recite that a portion of the property allotted to D1 under Ex.A1 was sold. However, in that deed the antecedent partition deed Ex.A1 is not found referred to and for that matter, it should also be mentioned that there is no whisper about the alleged oral partition under which, the subject matter of Ex.A5 was allotted to him. As a sequela, Ex.A5 cannot be pressed into service by D1 in order to canvass his case that there was subsequent oral partition etc. 20. Accordingly, there is no perversity or illegality in the findings of both the courts below and as against the concurrent finding of facts, there is nothing to interfere with the same in the second appeal. 21. In the result, (i) Substantial question of law No.(1) is decided to the effect that the lower appellate court did not err in law in holding that Ex.A1 is not a sham and nominal document and the recital in Ex.A5 are of no use for the defendants. (ii) Substantial question of law No.(2) is decided to the effect that the suit is not barred by limitation even though the suit was filed 15 years after the death of the appellant's father. (iii) Substantial question of law No.(3) is decided to the effect that the lower appellate court did not err in law in rejecting the plea of ouster. 22. Accordingly, this second appeal is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petitions are closed.