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2013 DIGILAW 1714 (MAD)

K. Murugesan v. K. Govindan

2013-04-19

G.RAJASURIA

body2013
JUDGMENT 1. This second appeal is focused by the defendant, inveighing the judgment and decree dated 22.3.2011 passed by the learned Principal Subordinate Judge, Krishnagiri, in A.S.No.24 of 2010 confirming the judgment and decree dated 19.12.2008 passed by the learned District Munsif, Krishnagiri, in O.S.No.339 of 2004, which was one for partition. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the germane facts, absolutely necessary for the disposal of this second appeal would run thus: “(a) The respondent herein, as plaintiff, filed the suit as against his brother K.Murugesan/the appellant herein seeking partition of two items of properties found set out in the schedule of the plaint on the main ground that the properties originally belonged to their step mother, namely, Ellammal and she died issueless; their father pre-deceased Ellammal and the plaintiff and defendant being the only legal heirs to Ellammal as well as to their father Kandhappa Gounder, are entitled to half share each. (b) Whereas, the defendant would file the written statement and additional written statement challenging and impugning the averments/allegations in the plaint and also contending that the defendant acquired prescriptive title over the suit properties by his long possession and enjoyment and accordingly, he would pray for the dismissal of the suit. (c) Whereupon issues were framed. Up went the trial, during which, the plaintiff examined himself as P.W.1 along with P.Ws.2 and 3 and marked Exs.A1 to A15. The defendant examined himself as D.W.1 and marked Exs.B1 to B15. (d) Ultimately, the trial Court decreed the suit and passed the preliminary decree only in respect of the first item and dismissed the suit in respect of the second item of the properties, by giving a finding that so far the second item was concerned it was already the subject matter of partition, which emerged in the year 1983. (e) Challenging and impugning the judgment and preliminary decree of the trial Court, the defendant preferred the appeal for nothing but to be dismissed by the first appellate Court confirming the judgment and decree of the trial Court.” 4. (e) Challenging and impugning the judgment and preliminary decree of the trial Court, the defendant preferred the appeal for nothing but to be dismissed by the first appellate Court confirming the judgment and decree of the trial Court.” 4. Being aggrieved by and dissatisfied with the judgments and decrees of both the fora below this second appeal has been preferred by the defendant on various grounds and also suggesting the following substantial questions of law: "a. When the defendant has proved by adequate pleadings and evidence that Elammal, the original owner of the 1st item of the suit properties was ousted from the suit property and the defendant is in possession of the 1st item of the suit property from 1970, openly and continuously, to the knowledge of Ellammal, during her life time and also thereafter, are the courts below correct in law in holding that the plaintiff has not proved the animus possessendi? b. When the evidence of P.W.1 clearly establishes that he can never be construed to have been in joint possession of the 1st item of the suit properties, are the courts below correct in law in granting the decree for partition in favour of the respondent/plaintiff? c. When the evidence on the side of the plaintiff clearly establishes that the thatched house in which he wants partition is not in existence and coupled with his admission that he does not want partition of the mould house when alone is in the 2nd item of the suit properties, are the courts below correct in law in granting a decree for partition as prayed for? d. Are not the judgment and decree of the courts below vitiated for non-consideration of materials available on record?” (extracted as such) 5. The learned counsel for the respondent/plaintiff would pyramid his arguments, which could succinctly and precisely be set out thus: “(i) The defendant who got the patta in his favour behind the back of the plaintiff could not succeed in retaining the same, as the plaintiff took steps and got that patta cancelled. (ii) Relating to the second item of the suit properties is concerned, the trial Court correctly held that it was covered under the earlier partition of the year 1983, relating to which, the plaintiff is having no grievance. (ii) Relating to the second item of the suit properties is concerned, the trial Court correctly held that it was covered under the earlier partition of the year 1983, relating to which, the plaintiff is having no grievance. (iii) The concept 'adverse possession' cannot be ushered in the facts and circumstances of this case for the simple reason that the said Ellammal died only in the year 1994 and even in the year 1994 O.S.No.367 of 1994 was filed, however it was withdrawn with liberty to file a fresh suit on the same cause of action. As such, there was interdiction and that there was nothing to indicate and exemplify that the defendant for over the statutory period exercised his right as independent owner of the suit properties and both the Courts below properly, taking into consideration the pros and cons of the matter rejected the plea of 'adverse possession' as pleaded by the defendant.” 6. Per contra, the learned counsel for the appellant/defendant would put forth his argument to the effect that the defendant exercised his absolute right over the suit properties for over the statutory period and even during the life time of Ellammal, he started occupying the suit house, and that was why, earlier O.S.No.367 of 1994 was filed by the plaintiff and subsequently, he withdrew the same. 7. At the outset itself, I would like to fumigate my mind with the following recent decision of the Hon'ble Apex Court reported in 2012(8) SCC 148 [Union of India v. Ibrahim Uddin and another]; an excerpt from it would run thus: "59. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of facts or of law. In SBI v. S.N.Goyal (2008) 8 SCC 92 , this Court explained the terms "substantial question of law" and observed as under: (SCC p.103, para 13) "13......The word "substantial" prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties ......any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law......There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case." (emphasis added) 8. In the same precedent, the following decisions are found referred to: “(1) AIR 1962 SC 3314 [Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mgf. Co. Ltd.] (2) (2011) 1 SCC 673 [Vijay Kumar Talwar v. CIT] (3) AIR 1947 PC 19 [Bibhabati Devi v. Kumar Ramendra Narayan Roy] (4) (1949) 17 ITR 269 (Nag) [Suwalal Chhogalal v. CIT] (5) AIR 1957 SC 852 [Oriental Investment Co. Ltd. v. CIT] (6) AIR 192 SC 1604 [Jagdish Singh v. Natthu Singh] (7) (1996) 5 SCC 353 [Parativa Devi v. T.V. Krishnan] (8) (1998) 6 SCC 423 [Satya Gupta v. Brijesh Kumar] (9) AIR 2000 SC 534 [Ragavendra Kumar v. Firm Prem Machinery & Co.] (10) AIR 2000 SC 1261 [Molar Mal v. Kay Iron Works (P) Ltd.] (11) (2010) 11 SCC 483 [Bharatha Matha v. R.Vijaya Renganathan] (12) (2010) 12 SCC 740 [Dinesh Kumar v. Yusuf Ali] (13) (2002) 3 SCC 634 [Jai Singh v. Shakuntala] (14) (2008) 12 SCC 796 [Kashmir Singh v. Harnam Singh]” 9. A mere running of the eye over it would connote and denote, exemplify and demonstrate that unless there is any substantial question of law is involved, the question of upsetting the findings of the courts below would not arise. 10. Keeping this in mind, I have gone through the available records. 11. Indubitably and indisputably the first item of the suit properties belonged to Ellammal-the step mother of the plaintiff and the defendant, and their father predeceased Ellammal. As such, as the legal heirs of their father, the plaintiff and the defendant could claim right over the suit properties. 12. Keeping this in mind, I have gone through the available records. 11. Indubitably and indisputably the first item of the suit properties belonged to Ellammal-the step mother of the plaintiff and the defendant, and their father predeceased Ellammal. As such, as the legal heirs of their father, the plaintiff and the defendant could claim right over the suit properties. 12. The plaintiff would come forward with a straight forward and plain case that the plaintiff and the defendant are entitled to half share each in the first item of the suit properties and the burden of proof was on the defendant to prove that he acquired title by 'adverse possession'. In the written statement itself, at paragraph No.14, the defendant would refer to a panchayat, which emerged between the parties and in that, according to the defendant, it was agreed by the parties that 1/3rd share was to be taken by the plaintiff and 2/3rd share in the suit properties was to be taken by the defendant. 13. When such is the stand of the defendant, there is no question of ushering in the concept 'adverse possession'. My mind is reminiscent and redolent of the following precedent of the Honourable Apex Court: 14. 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 “willful 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." 15. A plain reading of the above would show that merely by pointing out that a particular individual is in possession of certain property for a long time, he cannot plead that he acquired prescriptive title over it and in the case of co-sharers, it is all the more important that mere possession by one co-sharer of a joint immovable property would not lead to the inference that the right of co-ownership of the co-owner has been ousted. 16. The plea of 'ouster' ought to have been taken specifically and proved, but that was also not done here. The first appellate Court happened to be the last Court of fact, which also dealt with the evidence thoroughly. Both the Courts below, au fait with law and au courant with facts held that the defendant did not prove adverse possession in respect of the suit properties. As such, quite against such concurrent findings, I do not find any question of law much less substantial question of law in this matter. 17. Accordingly the second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed.