A brother's claims of independent title, oral partition and adverse possession were rejected in a dispute over declaration and recovery of possession. The Court upheld the plaintiff's title under the registered sale deed and dismissed the second appeal with costs, confirming the decree.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 17.03.2021
PRONOUNCED ON : 25.03.2021
CORAM:
THE HON'BLE MR.JUSTICE T.RAVINDRAN
S.A.No.1398 of 2008 and M.P.No.1 of 2008
P.Manickam Son of Pappa Konar, Perumal Koil Street, Pinnavasal, Tiruvarur Taluk.
... Appellant/Appellant/Defendant Vs.
P.Panneerselvam, Son of Pappa Konar, Perumal Koil Street, Pinnavasal, Tiruvarur Taluk.
... Respondent/Respondent/Plaintiff
Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree of the learned Subordinate Judge, Tiruvarur, dated 02.06.2008 in A.S.No.40 of 2007 and thereby confirming the judgment and decree of the Learned District Munsif, Tiruvarur, dated 18.06.2007 in O.S.No.80 of 2006.
Challenge in this second appeal is made to judgment and decree dated 02.06.2008 passed in A.S.No.40 of 2007 on the file of the Subordinate Court, Tiruvarur, confirming the judgment and decree dated 18.06.2007 passed in O.S.No.80 of 2006 on the file of the District Munsif Court, Tiruvarur.
1983 and after the purchase of the suit property in 1981, the extent of 24 cents were divided into two halves and the plaintiff took the eastern half portion and the defendant took the western half portion and accordingly the plaintiff and the defendant had been in the possession and enjoyment of their respective portions by putting up superstructure thereon and enjoying the same by paying tax etc., Only thereafter, the defendant came to know that the plaintiff had fraudulently obtained the registration of the suit property in his name exclusively and he cannot take the advantage of the same for claiming absolute title over the suit property. The plaintiff has no means to acquire the suit property in his own name. The case projected by the plaintiff that he had permitted the defendant to occupy the western portion of the property is totally false and on the other hand, the defendant in his own right, is in the occupation and enjoyment of the said portion. The defendant's possession has been recognized by the revenue authorities and accordingly he had been granted patta and it is only the defendant, who had been continuously enjoying the same by paying Kists, house tax etc., and without prejudice to the abovesaid contentions, according to the defendant, he has also prescribed title to the suit property by way of adverse possession and inasmuch as, he has been in open, exclusive and interrupted possession of the suit property to the knowledge of the plaintiff, he has prescribed title to the same and accordingly sought for the dismissal of the plaintiff's suit.
8.At the time of admission of the second appeal the following substantial questions of law were formulated for consideration.
(a) Have not the Courts below erred in holding that the plaintiff proved his case by Ex.A1 of a suit for declaration and recovery of possession without considering the fact that the defendant has established his possession of the suit property by the Exs.B1 to B23?
(b) Whether or not the Courts below erred in considering the deposition of D.W.2 when he categorically stated that the partition happened in the year 1980 between the plaintiff and
the defendant?
(c) Whether or not the findings of the Courts below regarding the declaration of the suit property in favour of the plaintiff is sustainable in law when he did not even produce any of the single piece of evidence to show his title except Ex.A1?
(d) Whether or not the Courts below erred in holding that the defendant is not entitled for the relief of adverse possession, he firstly seeks a relief by his ownership and subsequently he seeks the relief of adverse possession when he continuously was in possession of the suit property from the year 1980?
therein do not point out that the sale consideration had been parted with by the defendant. On the other hand, it is found that the sale consideration had been only furnished by the plaintiff.
western portion to him. The partition pleaded by the defendant is oral. The defendant has not pleaded as to on what date, month and year, the partition had been effected and no acceptable material pointing to the partition is placed on record. The defendant would admit that only after the sale deed had been executed, he and the plaintiff had effected the partition. The sale deed Ex.A1 is dated 24.03.1983 whereas the defendant in the written statement would putforth the case that the partition had been effected in the year 1981 itself. On the other hand, D.W.2 in his evidence would state that the partition had been effected during the year 1980. According to the defendant, prior to Ex.A1 sale deed, the agreement of sale had been entered into with reference to the properties acquired under Ex.A1 sale deed. However, with reference to the same, to evidence that the agreement of sale had been entered into in the name of the defendant prior to Ex.A1 absolutely, there is no material putforth by the defendant. Furthermore, as above pointed out, the defendant has also not established that it is he, who had parted with the sale consideration to the vendor either under sale agreement or under Ex.A1 sale deed. Similarly, the claim of the defendant that the possession had been taken over in the year 1981 itself is not supported by acceptable and reliable materials as such. In such view of the matter, when the defendant during the course of his evidence has admitted that the partition had been effected only after Ex.A1, the case pleaded that the partition had been effected in the year 1981 itself falls to the ground. In such view of the matter, the further claim of the defendant that he had been allotted the western portion and the eastern portion was allotted to the plaintiff also cannot be accepted in any manner. When the defendant having failed to establish his claim of valid title to the suit property, as above discussed, it does not stand to reason as to why the plaintiff should endeavor to effect the partition in respect of the property comprised in S.No.88/7 with the defendant. Therefore, the case projected by the defendant that the suit property had been allotted to him in the oral partition effected in 1981 cannot at all be believed and rightly rejected by the Courts below.
that he has not disclosed that the sale deed in respect of the suit property Ex.A1 stands only the name of the plaintiff. Therefore, it is found that the defendant has stealthily obtained the patta qua the suit property suppressing the title of the plaintiff qua the same and accordingly the plaintiff on coming to know the obtainment of the patta by the defendant, raised objection to the same and consequently the patta granted the defendant had been canceled during the year 1995. Thereafter the parties had come forward with the present suit for claiming title to the suit property.
property in his independent right not having been established as above pointed out, all put together, it is found that the defendant's possession of the suit property should have been only on the permission granted by the plaintiff particularly, considering the close relationship between the parties.
decision reported in (2006) 7 Supreme Court Cases 570 (T.Anjanappa and others Vs. Somalingappa and another) has held that the possession must be hostile, in denial, either express or implied, of title of the real owner and for that the possessor must clearly know the actual owner of the property and only then can be situation of being in hostile possession and question of denying title of true owner would arise. The abovesaid principles of law had been outlined in the abovesaid decision as follows:
"Adverse possession - concept - Possession must be hostile, in denial, either express or implied, of title of the real owner - For that it is essential that possessor must clearly know the actual owner of the property - Only then can be situation of being in hostile possession and question of denying title of true owner would arise - Possession must be peaceful, continuous and open, capable of being known by parties interested.
The concept of adverse possession contemplates a hostile possession i.e.. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. A person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tend to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. An
occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner(that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. It is the basic principle of law of adverse possession that (a) it is the temporary and abnormal separation of the property from the title of it when a man holds property innocently against all the world but wrongfully against the true owner; (b) it is possession inconsistent with the title of the true owner.
Vidya Devi V. Prem Prakash, (1995) 4 SCC 496; War v.Carttar, (1865) LR 1 Eq 29 : 35 Beav 171: 55 ER 860; Rains v.Buxton, (1880) 14 Ch D 537: 43 LT 88, relied on Annasaheb Bapusaheb Patil v.Balwant, (1995) 2 SCC 543: AIR 1995 SC 895, cited Halsbury's Laws of England 1953 Edn., Vol.I, relied on
In order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
17.Similarly in the decision reported in (2007) 3 Supreme Court Cases 569 (Krishnamurthy S.Setlur (Dead) By Lrs. Vs. O.V.Narasimha Setty and others), it has been held by the apex Court that the person claimimg title to the property by way of adverse possession must plead and prove the date on and from which he claims to be in the exclusive, continuous and
undisturbed possession and also that such possession was actual and to the knowledge of the real owner and further to show hostile title had been communicated to the real owner and the position of law on that aspects has been outlined by the apex Court in the abovesaid decision as follows:
"Limitation Act, 1963 - S.27 and Arts. 64 & 65 - Adverse possession - Duty of the plaintiff making claim for - Nature of the question as to whether the possession is adverse or not - Duty of first appellate court to examine the conclusion reached by trial Court in that regard - Held, the plaintiff must plead and prove the date on and from which he claims to be in exclusive, continuous and undisturbed possession and also that such possession was actual and to the knowledge of the real owner - He has also to show hostile title and communicate it to the real owner - The question whether the possession is adverse or not though often a simple question of fact, may sometimes be a question of law or a mixed question of law and fact - The conclusion drawn from the facts as to ouster or adverse possession, held, is a question of law and must be considered by the first appellate Court - In the present case, questions of law arising therein such as whether the tenant's possession could be treated as the owner's possession for the purpose of computing of limitation period not answered by the first appellate Court - Moreover, its decision suffering from many other serious errors - Such a decision, held, called for interference under Art. 136 of the Constitution.
The right extinguished by Section 27 of the Limitation Act, 1963 is the right which the lawful owner has and against whom a claim for adverse possession is made. Therefore, the plaintiff who makes a claim for adverse possession has to plead and prove the date on and from which he claims to be in exclusive continuous and undisturbed possession. The question whetehr possession is adverse or not is often one of simple fact but it may also
be a question of law or a mixed question of law and fact. The facts found must be accepted, but the conclusion drawn from them, namely, ouster or adverse possession is a question of law and has to be considered by the Court.
The impugned judgment is a bundle of confusion. It quoted depositions of witnesses as findings. It quoted findings of the Courts below which had been set aside by the High Court in the earlier round. It criticised the findings given by the coordinate Bench of the High Court in the earlier round of litigation. It did not answer the question of law which arose for determination in the present case. For example, one of the main questions which arose for determination in the present case was whether the tenant's possession could be treated as possession of the owner in computation of the period of twelve years under Article 64 of the Limitation Act 1963. In the matter of adverse possession, the courts have to find out the plea taken by the plaintiff in the plaint. In the plaint, the plaintiff who claims to be owner by adverse possession has to plead actual possession. He has to plead the period and the date from which he claims to be in possession. The plaintiff has to plead and prove that his possession was continuous, exclusive and undisturbed to the knowledge of the real owner of the land. He has to show a hostile title. He has to communicate his hostility to the real owner. None of those aspects were considered by the High Court in its impugned judgment. the impugned judgment was under Section 96 CPC, it was not a judgment under Section 100 CPC.
the plea of title and adverse possession simultaneously and from the same date and the position of law with reference to the same has been explained by the Apex Court in the decision reported in 2020 SCC Online SC 672 [ Narasamma and others Vs. A.Krishnappa (Dead) Through Lrs.] as follows:
"29. We may also note that on the one hand, the appellants herein have sought to take a plea of bar of limitation vis-à-vis the original defendant claiming that possession came to them in 1976, with the suit being filed in 1989. Yet at the same time, it is claimed that the wife had title on the basis of these very documents. The claim of title from 1976 and the plea of adverse possession from 1976 cannot simultaneously hold. On the failure to establish the plea of title, it was necessary to prove as to from which date did the possession of the wife of the defendant amount to a hostile possession in a peaceful, open and continuous manner. We fail to appreciate how, on the one hand the appellants claimed that the wife of the original defendant, appellant 1 herein, had title to the property in 1976 but on their failure to establish title, in the alternative, the plea of adverse possession should be recognised from the very date.
again emphasized, nec vi, i.e., adequate in continuity, nec clam, i.e., adequate in publicity and nec precario, i.e., adverse to a competitor, in denial of title and his knowledge.
“4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he
admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”
defendant. When the defendant has admitted that he has not shown any document of title to the authority who had issued the patta and also admitted that he had suppressed the sale deed obtained in the name of the plaintiff to the authority concerned while granting the patta and when further admitted that the DRO had advised the parties concerned to approach the Civil Court for adjudicating the title in issue and when the defendant's patta had been cancelled during 1995 merely on the production of certain electricity bills and house tax receipts on the part of the defendant ranging from 1994 onwards, we cannot uphold his plea of adverse possession. Moreover, according to the defendant in the written statement, the plaintiff has filed his objections to the revenue authorities for the issuance of the separate patta being given to the defendant. All put together, the contention raised by the defendant's counsel that the Courts below had erred in not upholding the plea of adverse possession raised by the defendant as such cannot be countenanced.
law outlined in the abovesaid decision are taken into consideration and followed as applicable to the case at hand.
24.In conclusion, the judgment and decree dated 02.06.2008 passed in A.S.No.40 of 2007 on the file of the Subordinate Court, Tiruvarur, confirming the judgment and decree dated 18.06.2007 passed in O.S.No.80 of 2006 on the file of the District Munsif Court, Tiruvarur are confirmed. Resultantly, the second appeal is dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.
Sd/Assistant Registrar
//True Copy//
Sub Assistant Registrar
mfa
To
Copy to:
The Section Officer, VR Section, High Court, Chennai.
+2ccs to Mr.S.Sadasivan, Advocate, S.R.No.19743
+1cc to Mr.T.Sai Krishnan, Advocate, S.R.No.19510
Judgment made in S.A.No.1398 of 2008 and M.P.No.1 of 2008
SSD(CO) SU(07/10/2021)
3 issues framed by the court
Was the plaintiff entitled to declaration and possession on his registered sale deed despite the defendant's claims of purchase funding and oral partition?
Could the defendant sustain simultaneous claims of independent title and adverse possession commencing from the same date?
Had the defendant proved open, continuous and hostile possession to the plaintiff's knowledge beyond the statutory period?
Colour shows how this judgement treated each authority
Ravinder Kaur Grewal and Others Vs. Manjit Kaur and OthersApplied¶43
2019 (8) SCC 729 [Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others ] · Who else cites this
T.Anjanappa and others Vs. Somalingappa and anotherRelied on¶46
(2006) 7 Supreme Court Cases 570 (T.Anjanappa and others Vs. Somalingappa and another)
Krishnamurthy S.Setlur (Dead) By Lrs. Vs. O.V.Narasimha Setty and othersRelied on¶53
(2007) 3 Supreme Court Cases 569 (Krishnamurthy S.Setlur (Dead) By Lrs. Vs. O.V.Narasimha Setty and others)
Narasamma and others Vs. A.Krishnappa (Dead) Through Lrs.Applied¶63
2020 SCC Online SC 672 [ Narasamma and others Vs. A.Krishnappa (Dead) Through Lrs.] · Who else cites this
S.M.Karim Vs. Mst.Bibi SakinaFollowed¶87
AIR 1964 Supreme Court 1254 [S.M.Karim Vs. Mst.Bibi Sakina] · Who else cites this
1 provisions across 1 enactments
P.Manickam
P.Panneerselvam
T.RAVINDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
