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2018 DIGILAW 1716 (MAD)

Gnanamani v. Velusamy

2018-06-04

T.RAVINDRAN

body2018
JUDGMENT : 1. This second appeal is directed against the judgment and decree dated 15.10.2001, passed in A.S.No.2/2000, on the file of the Subordinate Court, Chidambaram, reversing the judgment and decree dated 30.11.99, passed in O.S. No.309/84, on the file of the District Munsif Court, Chidambaram. 2. Parties are referred to as per their rankings in the trial Court. 3. Suit for declaration and possession and also for damages and future mesne profits. 4. 2. Parties are referred to as per their rankings in the trial Court. 3. Suit for declaration and possession and also for damages and future mesne profits. 4. The case of the plaintiff, in brief, is that the suit property originally belonged to one Vaidyanathasami padayachi and he executed a sale deed dated 29.10.1996 in favour of the plaintiff in respect of the suit property and other properties and pursuant to the abovesaid sale deed, the plaintiff had become the absolute owner of the suit property and been in possession and enjoyment of the same and at the time of the abovesaid purchase, the plaintiff was a minor represented by his father Ramalingam as guardian and the plaintiff's father put up a hut in the suit property and leased out the same to the first defendant on a monthly rent of Rs.10/- for residential purpose and the second defendant is the brother of the first defendant and after attaining majority, the plaintiff had been collecting the rent from the defendants and the rent was paid till December 1983 and thereafter, the plaintiff requested the defendants to pay the rent at Rs.50/- per month, but the defendants were not willing to pay the same and suggested to the plaintiff to sell the suit property to them, to which course, the plaintiff was not willing and enraged over the same, the defendants did not pay the rent from January 1984 and hence, the plaintiff issued a notice dated 28.4.1984, calling upon them to surrender the possession of the suit property on 01.06.84 together with the arrears of rent and the tenancy abovestated is oral and the defendants sent a reply through their Advocate with false allegations as if the plaintiff's father sold the suit property to the defendants' father orally in January 1968 and thereby, the defendants' father entered possession of the suit property and put up a hut in 1968 itself and also put up another hut in 1969 and residing therein along with their father and the further case of the defendants that they have prescribed title to the suit property is false and the claim of the defendants that the plaintiff has lost his title by way of limitation on account of the same is also false and the other defendants are the wife, sons and daughters of the defendants 1 and 2 and hence, the suit for appropriate reliefs. 5. The case of the defendants, in brief, is that the suit laid by the plaintiff is not maintainable either in law or on facts. 5. The case of the defendants, in brief, is that the suit laid by the plaintiff is not maintainable either in law or on facts. After denying the averments contained in the plaint, according to the defendants, the plaintiff has no title to the suit property and the plaintiff has not become the owner of the suit property by way of the sale deed dated 29.10.1966 and it is only the plaintiff's father, who had purchased the entire 32 cents including the suit property out of his own funds and for the benefit of the family and further, according to the defendants, the plaintiff's father had sold the southern most 7 cents to one Ushain saheb under the sale deed dated 11.11.1967 and later, sold the middle 10 cents to the defendants' father orally for Rs.2,000/- in January 1968 and the same was effected for family benefits and thereby, the defendants father entered possession of the suit property and put up a hut in 1968 itself and another hut in 1969 and residing therein with his sons and family and the defendants' father also put up a thatched hut for soda manufacturing purpose in the suit property and it is only the defendants and their father who had been paying kist for the suit property and also tax for the huts erected therein and the plaintiff's father sold the northern 15 cents to one Govindaraju padayachi by way of sale deed dated 17.09.1968 and later, Govindaraju padayachi sold the southern 10 cents out of the 15 cents to one Nataraja Mudaliar by way of a sale deed dated 16.03.1974 and the said Nataraja Mudaliar is the northern boundary owner of the suit property and thus, the defendants and their father have been in possession and enjoyment of the suit property as absolute owners and the defendants have prescribed title by way of adverse possession also and neither the plaintiff nor his father enjoyed the suit property at any time after January 1968 and so, the plaintiff has lost title if any under the oral sale and under the law of limitation and the plaintiff's father never constructed any hut in the suit property as alleged and never leased out the same to the defendants as putforth in the plaint and the lease arrangement set up by the plaintiff is false and to the notice sent by the plaintiff, the defendants had sent a reply containing true facts and the suit property does not belong to the plaintiff and the suit is barred by time and hence, the suit is liable to be dismissed. 6. In support of the plaintiff's case, PWs 1 and 2 were examined, Exs.A1 to A7 were marked. On the side of the defendants DWs 1 to 4 were examined, Exs.B1 to B49 were marked. 7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial Court was pleased to decree the suit as prayed for. On appeal, the first appellate Court, on an appreciation of the materials placed on record, was pleased to set-aside the judgment and decree of the trial Court and by way of allowing the appeal preferred by the defendants, dismissed the suit laid by the plaintiff. Challenging the same, the present second appeal has been preferred. 8. At the time of admission of the second appeal, the following substantial question of law was formulated for consideration: “Whether mere possession without animus to hold it as owner will amount to adverse possession?” 9. Materials placed on record go to show that the suit property had been acquired in the name of the plaintiff when he was a minor and the sale deed has come to be marked as Ex.A1. Though the defendants would claim that the suit property and other properties had been acquired only by the plaintiff's father Ramalingam for the benefit of the joint family in the name of the plaintiff, as regards their above case, there is no acceptable and reliable material to sustain the same. Even the documents marked as Exs.B1 and B2 would not advance the abovesaid defence theory projected by the defendants for holding that the suit property was acquired by the plaintiff's father in the name of the plaintiff for the benefit of the joint family. On the other hand, it is found that by way of Ex.A1 sale deed, the suit property had been acquired only by the plaintiff when he was a minor represented by his guardian father and accordingly, it is found that the plaintiff has title to the suit property by way of Ex.A1 sale transaction. 10. On the other hand, it is found that by way of Ex.A1 sale deed, the suit property had been acquired only by the plaintiff when he was a minor represented by his guardian father and accordingly, it is found that the plaintiff has title to the suit property by way of Ex.A1 sale transaction. 10. The defendants claim to have purchased the suit property i.e., according to the defendants, their father had purchased the suit property from the plaintiff's father orally in January 1968 for a sum of Rs.2,000/- and accordingly, enjoying the suit property as the absolute owner thereof by putting up huts etc., and paying kist, tax etc., and thus, according to the defendants, the plaintiff is not the owner of the suit property and further, according to the defendants, even if the plaintiff had any title to the suit property, he has lost the same by way of limitation and in other words, according to the defendants, they had been exercising the absolute ownership over the suit property right from 1968 onwards openly, continuously and uninterruptedly to the knowledge of one and all by exhibiting animus attitude including the plaintiff and the whole of the world and thereby, prescribed title to the suit property by way of adverse possession and hence, the plaintiff cannot seek the reliefs sought for in the suit. 11. As regards the plea of oral sale put forth by the defendants, when according to Section 54 of the Transfer of Property Act, a sale of a tangible immovable property for the value of Rs.100/- and upwards could only be effected by way of a registered instrument, the plea of the defendants that their father had purchased the suit property orally for a sum of Rs.2,000/- in 1968 cannot at all be countenanced in the eyes of law and therefore, the plea of oral sale projected by the defendants cannot be accepted in any manner. Similarly, merely from the boundary recitals found in Exs.B2 and B3, we cannot safely conclude that the oral sale transaction said to have been effected in favour of the defendants' father by Ramalingam is a valid sale transaction. Similarly, merely from the boundary recitals found in Exs.B2 and B3, we cannot safely conclude that the oral sale transaction said to have been effected in favour of the defendants' father by Ramalingam is a valid sale transaction. When Ramalingam is not shown to be the title holder of the suit property and as per Ex.A1, it is only the plaintiff, who has title to the suit property and that apart, when the plea of oral sale projected by the defendants cannot be given legal credence in any manner, as above discussed, it is found that the oral sale projected by the defendants is liable to be thrown out. 12. The remaining plea available to the defendants to hold the suit property is only by way of adverse possession. No doubt, the defendants have taken the plea of adverse possession in their written statement. When the defendants have taken the plea of adverse possession, it is found that it is for the defendants to establish their plea so as to disentitle the plaintiff as to the reliefs sought for in the plaint. 13. Now, according to the defendants, they have been exercising ownership in respect of the suit property right from 1968 onwards, by putting up huts, paying kist, tax etc., openly, continuously and uninterruptedly beyond the statutory period by exhibiting animus attitude to one and all including the plaintiff and thus, they had prescribed title to the suit property by way of prescription. The above said plea of the defendants is being stoutly resisted by the plaintiff. 14. The plaintiff has laid the suit for the reliefs of declaration and possession and also other reliefs and it is thus found that the suit has been laid by the plaintiff based upon title. It is thus seen that for the plaintiff's suit for possession of the suit property based on title, Article 65 of the Limitation Act 1963 would apply and accordingly, it is found that the plaintiff would be entitle to institute the suit within 12 years from the period when the possession of the defendants become adverse to the plaintiff. It is thus seen that for the plaintiff's suit for possession of the suit property based on title, Article 65 of the Limitation Act 1963 would apply and accordingly, it is found that the plaintiff would be entitle to institute the suit within 12 years from the period when the possession of the defendants become adverse to the plaintiff. Now, according to the defendants, they had been exercising ownership over the suit property from 1968 onwards openly, continuously and uninterruptedly beyond the statutory period by expressing animus attitude to one and all including the plaintiff and thereby claimed title to the suit property by way of adverse possession. By way of the abovesaid plea, the defendants seem to project a case, as if they had been enjoying the suit property as the full owners thereof from 1378 fasli to 1390 fasli continuously, by exercising absolute ownership over the suit property by paying kist, tax etc., and when the above said case of the defendants is resisted by the plaintiff, it is for the defendants to establish their version as abovestated. Materials placed on record go to show that Exs.B6 to B13, Exs.B11 and 12 and Ex.B40 are the kist receipts projected by the defendants, which had come into existence prior to the institution of the suit. All the other documents of possession projected had emanated after the institution of the suit. Therefore, only on the basis of the abovesaid documents, namely, Ex.B6 to B13, Exs. B11, B12 and B40, the defendants seek to sustain their plea of adverse possession. As rightly determined by the trial Court, all the abovesaid documents put together, it is found that they correspond only to the faslis 1378 to 1383 and faslis 1386 and 1387. Even assuming for the sake of arguments that the kist receipts by itself would go to establish the plea of adverse possession as set forth by the defendants in respect of the suit property and when according to the defendants, they have been exercising full ownership over the suit property from 1378 fasli onwards, for accepting their plea of adverse possession on the abovesaid basis, it is found that the defendants have to establish that they had been exercising full ownership over the suit property, in particular, right from 1378 to 1390 faslis. However, as rightly determined by the trial Court, there is no acceptable and reliable material placed on the part of the defendants to hold that they had exercised full ownership over the suit property right from 1378 to 1390 faslis. On the other hand, by way of the kist receipts marked in the case, as abovestated, the defendants are able to establish the so called adverse ownership over the suit property exercised by them only for the faslis ranging from 1378 to 1383 and 1386 and 1387 fasli. There is no kist receipt produced by the defendants for the faslis 1384, 1385, 1388 to 1390 and on the other hand, it is found that for the abovesaid faslis and other faslis, it is only the plaintiff, who has paid the kist, which could be evidenced from Ex.A5 kist receipt. No doubt, by way of the abovesaid kist receipt, the plaintiff has paid for various faslis the kist at one stretch and it is thus found that by way of Ex.A5 kist receipt also the plaintiff has title to the suit property and had exercised ownership over the same by paying kist and accordingly, as rightly determined by the trial Court, there is no material placed by the defendants to hold that they are in possession and enjoyment of the suit property openly, continuously and uninterruptedly right from 1378 fasli onwards by exhibiting animus attitude to one and all including the plaintiff so as to enable them to claim title to the suit property by way of adverse possession. The essential ingredients for upholding the case of adverse possession being open, continuous and uninterrupted enjoyment beyond the statutory period by exercising full ownership over the property with animus possidendi as well as by exhibiting animus attitude to the knowledge of one and all including the title holder of the suit property and when the abovesaid ingredients are found to be not satisfied by the defendants by way of the documents marked as Exs.B6 to B13, B11 and B12 and B40 and when the abovesaid documents do not go to show their continuous enjoyment of the suit property for several fasil as above pointed out, particularly, from 1384, 1385, 1388 to 1390 faslis and even thereafter, the essential ingredients for constituting the plea of adverse possession not being satisfied by the defendants, the trial Court has rightly disbelieved the plea of adverse possession projected by the defendants and considering the above factors, in my considered opinion also, the defendants having failed to establish their plea of open, continuous and uninterrupted enjoyment of the suit property right from 1378 to 1390 faslis and even thereafter, the adverse possession plea taken out by the defendants cannot be sustained in the eyes of law. 15. At this juncture, it has to be emphasised that 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 plead and establish all the facts necessary to establish the adverse possession plea and this position of law could be gathered from the decision reported in AIR 1996 SC 869 (Dr.Mahesh Chand Sharma Vs. Smt. Raj kumar Sharma and others). Further, in the decision reported in 1979 (1) MLJ 419 (Karmega kone Vs. Udayar Kone and others) the essential ingredients for establishing the plea of adverse possession has been elucidated in the following manner: 3. The plea of adverse possession is essentially a question based upon provable facts and cannot rest upon mere surmises and stories carved out in the course of the trial and in the witness box. The plea of adverse possession stands on the same footing as the plea of estoppel. It has been the consistent view of Courts that a plea of estoppel has to be pleaded and not only pleaded but also proved. The plea of adverse possession stands on the same footing as the plea of estoppel. It has been the consistent view of Courts that a plea of estoppel has to be pleaded and not only pleaded but also proved. So also a plea of adverse possession, which again rests upon proof of positive and essential facts, has to be pleaded, so that the adversary might be able to meet the specific case of the party, who unjustly wishes to wrest the property belonging to another and claim title it. himself on the plea of adverse possession. A plea of adverse possession essentially implies that the person claiming title to a property on that basis does not own it. He wishes to snatch it from the real owner on the bare ground that he was continuously, publicly and openly in possession of the property of the adversary to the knowledge of the adversary and without any objection or intervention on the part of the real owner. These are essential facts which form the rocky foundation of the plea of adverse possession. The law requires an express pleading on that question for the simple reason that the real owner, who is said to have been lethargic, might set up a case (might be true in some cases) that such possession of the claimant was only permissive and was never intended to be adverse so far at his real title was concerned and that, even it it could be projected as such an adverse claim, the time from which it should be deemed to have commenced should also be made specific and public, so that the real owner might be given a fair and just opportunity to plead otherwise and set up a case that such adverse possession as claimed by the other person did not begin on the date claimed by him. From the abovesaid decision, it is found that the party taking the plea of adverse possession and who wishes to snatch the property from the real owner of the property in dispute on the bare ground that he was in possession of the said property over a period of time, by itself, sans material, would not be adequate to upheld his plea and on the other hand, it is found that the party taking the plea of adverse possession should establish all the essential ingredients constituting the plea of adverse possession by placing acceptable and reliable materials and the above plea of adverse possession cannot be gathered on mere surmises and guesswork and accordingly, so far as this case is concerned, when the defendants have failed to establish their open, continuous and uninterrupted possession of the suit property from 1378 to 1390 fasli, they cannot be granted the relief in respect of the suit property on the basis of the plea of adverse possession as putforth by them. 16. Further from the decision reported in (2008) 7 MLJ 275 (Veerasekaran and another Vs. Devarasu), it could be seen that when a person claims title to the property in dispute by adverse possession must definitely allege and prove (a) how and when adverse possession commenced? (b) what was the nature of his possession? and (c) whether the fact of his adverse possession was known to the real owner?. In the light of the abovesaid position, the adverse possession must be adequate in continuity, in publicity and extent and a mere long possession for a period of more than twelve years without an intention to possess or hold the property in dispute, adversely to the knowledge of the title holder cannot result in the acquisition of the property in dispute by prescription and in such view of the matter, for establishing the plea of adverse possession, there must be cogent, acceptable and reliable evidence for proving the open, continuous, uninterrupted and hostile possession and all the above necessary materials together go to establish the abovesaid case. The parties, who putforth the plea of adverse possession cannot succeed in respect of the same by showing a mere long possession, as the same by itself would not necessarily lead to the conclusion that the party in possession of the suit property has prescribed adverse title to the suit property. 17. The parties, who putforth the plea of adverse possession cannot succeed in respect of the same by showing a mere long possession, as the same by itself would not necessarily lead to the conclusion that the party in possession of the suit property has prescribed adverse title to the suit property. 17. Equally, the counsel for the plaintiff also placed reliance upon the decision reported in AIR 2007 SC 1753 (P.T.Munichikkanna Reddy and Ors. Vs. Revamma and Ors.) wherein also the principles of adverse possession and the proof required for establishing the same have been set out in detail and considering the same, it is found that animus possidendi is one of the essential ingredients of the adverse possession and further, open, continuous and uninterrupted possession beyond the statutory period are also other necessary ingredients and all the facts put together should be established by the parties seeking the plea of adverse possession beyond the statutory period and only thereupon, it is found that he would be entitled to succeed in the plea of adverse possession putforth by him. 18. The position of law being above, when the materials placed on record and the documents projected by the defendants do not establish their continuous possession and enjoyment of the suit property as the full owners thereof as putforth by them from 1378 to 1390 faslis and even thereafter, when the other documents projected by them are found to have emanated after the institution of the suit, it is seen that the defendants have miserably failed to establish the plea of adverse possession set up by them. 19. In this matter, the counsel for the defendants contended that the suit laid by the plaintiff is barred by time, as according to him, the plaintiff should have instituted the suit within three years after attaining majority and the plaintiff having failed to lay the suit within three years on attaining majority, according to the defendants' counsel, the plaintiff cannot seek the relief sought for in the suit. From the materials placed on record, it is found that, particularly from Ex.B44, the plaintiff was born on 10.09.61 and thereby, it is seen that he has completed 18 years of age on 10.09.79. From the materials placed on record, it is found that, particularly from Ex.B44, the plaintiff was born on 10.09.61 and thereby, it is seen that he has completed 18 years of age on 10.09.79. Now, according to the defendants, the suit should have been laid by the plaintiff within 3 years from 10.09.79 and on the other hand, inasmuch as the suit has come to be laid by the plaintiff only on 16.08.84, according to the defendants' counsel, in the light of the Sections 6 to 8 of the Limitation Act, 1963, the suit of the plaintiff has become time barred as the defendants have prescribed title to the suit property much prior to the said period i.e., during faslis 1378 to 1390 itself and therefore, the plaintiff suit should fail as determined by the first appellate Court in this connection and also for the plea of adverse possession, he has placed reliance upon the decisions reported in (1964) 2 SCR 673 (Madamanchi Ramappa and another Vs. Muthaluru Bojjappa), 2000-3-LW 848 (Thangamani Vs. Santhiagu), AIR 1956 Hyd 107 (Govinda Vs. Narain), 1971 (3) SCC 782 (Hukmi (dead) and others Vs. Gian Kaur), 1990 LW (23) 393 (Chinnaiah Kownder Vs. Kattayya Kownder), 1921 XLV ILR 361 (Seetaramaraju Vs. Subbaraju and four others) and 1978 LW-32 (Kolandavel Gounder and another Vs. Chinnappan alias Nachiappa Goundan and others). The principles of law outlined in the abovesaid decisions are taken into consideration and followed as applicable to the case at hand. 20. As above adverted to, the plea of oral sale of the suit property projected by the defendants is found to be legally not sustainable. Accordingly, that plea goes out. The further plea taken by the defendants that it is only the plaintiff's father who has title to the suit property, not being borne out by any evidence as such and not established by the defendants in any manner in the manner known to law by placing acceptable and reliable materials and when the documents placed on record marked as Ex.A1 point out that the plaintiff is the title holder of the suit property, it is seen that the claim of the defendants that the plaintiff has no title to the suit property and it is only the plaintiff's father, who has title to the suit property also falls to the ground and hence cannot be accepted. Resultantly, it is found that it is only the plaintiff who has title to the suit property. Accordingly, it is found that left with no other alternative, the defendants have taken the plea of adverse possession for resisting the plaintiff's case. 21. The plaintiff's case being based on title, as rightly putforth, it is only Article 65 of the Limitation Act which would apply and accordingly, it is found that the suit laid by the plaintiff based on title, he is entitled to levy the suit within twelve years from the period when the possession of the defendants become adverse to the plaintiff. Now, according to the defendants, they had prescribed title to the suit property by way of adverse possession and for the same, they would put up a defence as if they had exercised full ownership over the suit property right from 1968 i.e. 1378 fasli. However, when as above discussed, the defendants have failed to establish their open, continuous and uninterrupted possession and enjoyment of the suit property as full owners thereof with animus intention from 1378 to 1390 faslis, in particular, when the documents projected do not vouchsafe their case and on the other hand, during the interregnum, the plaintiff has exercised ownership over the suit property by paying kist in respect of the suit property from 1385 to 1393 which could be evidenced from Ex.` kist receipt, no doubt, the plaintiff has paid the said kist at one stretch prior to the institution of the suit, when there is no proof placed by the defendants to show that they are in possession and enjoyment of the suit property as the full owners thereof by exhibiting animus attitude to the knowledge of the plaintiff and when the plea of adverse possession could not be determined based upon surmises and conjectures and could be upheld only by cogent and reliable evidence, as above pointed out and the defendants having failed to sustain their case of adverse possession and accordingly, on the same footing, when it is found that the plaintiff having title, has exercised ownership over the suit property right from 1385 fasli onwards, it could be seen that the suit laid by the plaintiff in the year 1984 is not barred by time. Particularly, when it is found that the plaintiff has laid the suit based on title, he is entitled to lay the suit at any point of time, unless and until the defendants establish that their possession of the suit property had become adverse to the plaintiff by that point of time as provided under Article 65 of the Limitation Act, 1963. When as above discussed, the defendants have failed to establish the same and on the other hand, the plaintiff is found to have asserted his title to the suit property by exercising ownership to the same by paying kist etc., it is found that Sections 6 to 8 of the Limitation Act would not apply to the facts and circumstances of the case and therefore, it is seen that there is no need for the plaintiff to lay the suit within three years period of time after attaining majority, particularly, when it is noted that the suit has been laid by the plaintiff only based upon title, it is only Article 65 of the Limitation Act which would apply. 22. The plea of oral sale not having been legally established by the defendants as projected and when the alleged oral sale projected by the defendants could not be given legal credence as such, it is found that the plaintiff is not required to set aside the alleged oral sale and in such view of the matter, the Article 60 of the Limitation Act, 1963, would not be applicable to the case and in such view of the matter, there is no need for the plaintiff to lay the suit within three years of attaining majority for setting aside the alleged oral sale as putforth by the defendants and accordingly, when it is found that only Article 65 of the Limitation Act, 1963 would apply and when the defendants have failed to establish their possession of the suit property having become adverse to the plaintiff right from 1968 onwards, there is no need on the part of the plaintiff to lay the suit within three years of attaining majority and even before the said period, as above discussed, when the plaintiff has asserted and exercised his ownership in respect of the suit property as above pointed out, the suit laid by the plaintiff is found to be well within time. 23. 23. The defendants seem to have placed whole reliance upon the kist receipts for sustaining the plea of adverse possession. There is no material placed on the part of the defendants that the superstructure put up in the suit property had been raised by the defendants' father or as the case may be, by the defendants and that they had been exercising ownership over the suit property by paying tax etc., There is no acceptable and reliable document produced by the defendants to point out the same, particularly which had come into existence prior to the institution of the suit. All the tax receipts projected, emanating after the institution of the suit, would be of no help to sustain the defence version. At this juncture, it would be pertinent to note that when as per Section 27 of the Limitation Act, 1963, only at the determination of the period thereby limited i.e., as provided under the said Act, to any person for instituting a suit for possession of any property, his right to such property shall be extinguished, and as above seen, the plaintiff having laid the suit based on title, it is only Article 65 of the Limitation Act which would apply. Accordingly, when the time limited to the plaintiff for instituting the suit based on Article 65 would be 12 years period from the period when the possession of the defendants become adverse to the plaintiff and when as above discussed, the defendants have miserably failed to establish their plea of adverse possession and even if one were to hold that the plaintiff has not established his plea of tenancy of the defendants in respect of the suit property and when it is found that long possession of the suit property by a person by itself would not constitute adverse possession as above pointed out, considering the principles of law enunciated in the decision reported in AIR 1976 MADRAS 124(1) (Bhagavathy Pillai and another Vs. Savarimuthu and another) which runs as follows: “(A) Limitation Act (36 of 1963), Art.65 and S.27 - Adverse possession - Suit for possession based on title - Burden of proof is on the defendant who claims the right to property by way of adverse possession. Art.65 relates to suits for possession based on title. Savarimuthu and another) which runs as follows: “(A) Limitation Act (36 of 1963), Art.65 and S.27 - Adverse possession - Suit for possession based on title - Burden of proof is on the defendant who claims the right to property by way of adverse possession. Art.65 relates to suits for possession based on title. In such a case period of limitation is 12 years when the possession of the defendant became adverse to the plaintiff. If in a suit falling under Art.65, the defendant wants to defeat rights of the plaintiff, he has to establish his adverse possession for a period of 12 years which has the effect of extinguishing the title of the owner by operation of S.27 of the Act. If he fails to do so then the plaintiff cannot be non-suited merely because he was not able to prove possession within 12 years. In the case of a suit for possession based on title the plaintiff has no longer to prove that he was in possession of the property for a period of 12 years. It is for the defendant to establish that his possession has been adverse for the requisite period of 12 years. In the instant case as the defendants have not established their case of adverse possession, the plaintiffs having proved title to the property are entitled to the possession thereof, so long as the defence has not established the plea of adverse possession.” it is found that the defendants having failed to establish the plea of adverse possession set out by them as above discussed, it could be seen that the suit laid by the plaintiff on the basis of title cannot be rejected. 24. In the light of the above discussions, the mere possession of the property in dispute, however long it may be, by itself, would not amount to adverse title, without the party claiming the plea of adverse possession, establishing the animus intention to the knowledge of the real title holder as above discussed and in such view of the mattter, the resultant conclusion of the abovesaid discussions would only be that the defendants have failed to establish the essential ingredients for constituting the plea of adverse possession in respect of the suit property and accordingly, the substantial question of law formulated in this second appeal is answered against the defendants and in favour of the plaintiff. 25. 25. For the reasons aforestated, the judgment and decree dated 15.10.2001, passed in A.S.No.2/2000, on the file of the Subordinate Court, Chidambaram are set-aside and the judgment and decree dated 30.11.99, passed in O.S. No.309/84, on the file of the District Munsif Court, Chidambaram are confirmed. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.