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2012 DIGILAW 3937 (MAD)

Thangam Nair v. Kamalachi Ammal

2012-09-18

P.DEVADASS, P.JYOTHIMANI

body2012
Judgment :- P. DEVADASS, J. This intra-Court Appeal has been directed by the appellant against the dismissal of their suit in C.S.No. 4 of 2000 by the learned Single Judge. 2. Originally, the suit has been instituted by MKP Nair @ Mangalapalapalli Krishna Pillai Prabakaran Nair(1st plaintiff) seeking a declaration as to his title to the suit property since he has perfected title to it by adverse possession. 3. Admittedly, Dr.K.C.S.Pillai, the husband of first defendant, who is also the father of defendants 2 to 4 is the owner of the suit property measuring 2 grounds and 1213 sq.ft., situate in Nungambakkam, Chennai. First plaintiff and Dr.Pillai are known persons. In July 1978, first plaintiff lent Rs.4,00,000/-to Dr.Pillai. In the meanwhile, first plaintiff learnt that Dr.Pillai is planning to go abroad. In the circumstances, on 22.07.1978, first plaintiff, took possession of the suit property. Since then, he and his family members has been in continuous possession and enjoyment of the property. Subsequently, Dr.Pillai passed away. After 21 years of such enjoyment of the property, first plaintiff filed this suit as against the legal heirs of late Dr.Pillai. Pending the suit, since Mr.Nair passed away, his wife and daughter were brought on record as plaintiffs 2 and 3. 4. The plaintiffs took all the necessary steps to serve the notice on the defendants but they did not appear. Thereafter, the suit was taken up for trial. Third plaintiff deposed herself as P.W.1 and marked Exs.P1 to P19. 5. The learned Single Judge, adverting to the evidence on record, came to the conclusion that though the plaintiffs are in possession of the suit property, they have not proved the requisite elements constituting adverse possession and also observed that immovable property of considerable value has been attempted to be knocked of by them without a sale deed and registration of the same under Section 17 and 49 of the Indian Registration Act and thus dismissed the suit. That is how, the plaintiffs are before us. 6. At the time of hearing the appeal, the learned counsel for the appellant filed a memo that the first appellant viz., Thangam P.Nair expired intestate on 23.2.2006 leaving behind her her only daughter Mrs.Sathi Vijayakumar/the second appellant and the same has been recorded. 7. That is how, the plaintiffs are before us. 6. At the time of hearing the appeal, the learned counsel for the appellant filed a memo that the first appellant viz., Thangam P.Nair expired intestate on 23.2.2006 leaving behind her her only daughter Mrs.Sathi Vijayakumar/the second appellant and the same has been recorded. 7. Mr.R.Srinivasan, learned counsel for the appellant would contend that there is ample evidence on record establishing that the first plaintiff, subsequently his legal heirs have continuously enjoyed the suit property as of their own. Inasmuch as the title is sought for on the basis of their perfection of title by adverse possession expecting their execution of a sale deed and registration of the same will not arise. Therefore, he would submit that in the facts and circumstances of the case, the observations of the learned Single Judge will not arise at all. 8. We have anxiously considered the submissions of the learned counsel for the appellant, perused the entire evidence on record and gone through the impugned judgement of the learned Single Judge. 9. A suit on title may be based on title deed or by adverse possession. The present suit falls under the later category. In a suit of this nature, there will not be equity in favour of the plaintiff since he tries to defeat the title of rightful owner of the property. So, he must prove his acquisition of title by adverse possession with requisite animus for the period prescribed under Article 65 of the Limitation Act. 10. The person, who is in enjoyment of another man's property must enjoy it as its owner, hostile to the title of rightful owner positively, openly, continuously to the knowledge of the owner of the property. Of course, seeking title on such a basis is a wrongful act. But it is a right acquired as recognised under law, namely, under the provisions of Limitation Act. (See CHATTI KONATI RAO AND OTHERS Vs. PALLE VENKATA SUBBA RAO [ 2010(14) SCC 316 ] and STATE OF HARYANA Vs. MUKESH KUMAR AND OTHERS [ 2011(10) SCC 404 ]). 11. When we peruse the evidence of P.W.1 as well as the several documents produced, we see that initially, the first plaintiff obtained possession of the suit property in 1978. But it is not a permissive occupation. He has not been let into possession under any arrangement or leave and license. MUKESH KUMAR AND OTHERS [ 2011(10) SCC 404 ]). 11. When we peruse the evidence of P.W.1 as well as the several documents produced, we see that initially, the first plaintiff obtained possession of the suit property in 1978. But it is not a permissive occupation. He has not been let into possession under any arrangement or leave and license. Subsequently, after his death, his legal heirs viz., plaintiffs 2 and 3 are continuing in possession. Prior to the filing of the suit, they are in possession for more than 21 years. 12. Possession, however long, will not make it adverse possession. As stated already it must be with requisite animus-hostile claim adverse to the owner of the property. 13. The oral evidence of P.W.1 establisheshow his father has got the possession of the suit property. The original title deed has been produced by the plaintiffs' and that has been marked as Ex.P1. The property Tax, E.B.Bills, Telephone Bills are also in their name. Of course, some of the property tax records are in the name of Dr.K.C.S.Pillai. There is no surprise in it, because the original title deed still stands in his name. But that will not cut the claim of the plaintiffs based on adverse possession. The plaintiffs have enjoyed and are enjoying the suit property as though they are its owners. 14. The defendants, who are legal heirs of late Dr.Pillai, are aware of plaintiffs continued enjoyment of the suit property as its owners. The evidence shows that the plaintiffs' side has been in continuous and open possession of the property to the knowledge of Dr.K.C.S.Pillai and after him to the knowledge of his legal heirs/defendants. Till the filing of the suit, there was no interruption of their such enjoyment of the suit property. Continuously for more than 21 years, there was act of ownership on the part of the plaintiffs to the knowledge of the owners of the suit property. However, this aspect has not been properly considered by the learned Single Judge. 15. The essential requirements for the perfection of title by adverse possession, viz., date of entering into possession, nature of possession, exercise of act of ownership undisturbed, continuously to the knowledge of the owner of the property, does not include a sale deed to be obtained from the owner of the property nor its registration under the Indian Registration Act. 15. The essential requirements for the perfection of title by adverse possession, viz., date of entering into possession, nature of possession, exercise of act of ownership undisturbed, continuously to the knowledge of the owner of the property, does not include a sale deed to be obtained from the owner of the property nor its registration under the Indian Registration Act. In fact, obtaining of a sale deed will amount to accepting the title of the rightful owner or in other words continued recognition of the title of rightful owner. Then in that case, the question of adverse possession will not arise. (See G.KRISHNAREDDY Vs. SAJJAPPA AND ANOTHER[2011 (13) SCC 226]). Therefore, the observations of the learned Single Judge that a sale deed should have been obtained and it should have been registered since it is a valuable property in Chennai is of no relevance at all to the scope of this suit. 16. Thus, looking the matter from proper perspective, we are of the view that the plaintiffs have perfected title to the suit property by their adverse possession. 17. In the result, this Appeal is allowed. The Judgment and Decree of the learned Single Judge dated 29.11.2005 in C.S.No. 4 of 2000 are set aside. The suit is decreed as prayed for. However, in the circumstances, the plaintiffs will bear their cost throughout.