Dismissed

Thankappan v. the State of Tamilnadu

Madras HC10 Feb 2022SA(MD)/252/2005

Case brief

AI extract

What is this about?

The Madras High Court, Madurai Bench dismissed a Second Appeal filed by the plaintiff appellant challenging the dismissal of his civil suit for declaration of title by adverse possession. The Court held that adverse possession cannot be claimed against Government property classified as a water body (odai poromboke) reserved for public trust, regardless of possession duration.

What did the court decide?

The Second Appeal stands dismissed; no costs.

Thankappan Vs the State of Tamilnadu — Property and Title | Madras HC (2022)

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S.A..(MD).No.252 of 2005

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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JUDGMENT RESERVED ON : 03.12.2021

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JUDGMENT PRONOUNDED ON : 10.02.2022

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CORAM:

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THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR

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S.A.(MD)No.252 of 2005

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Thankappan ...Appellant/Respondent/Plaintiff

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1.The State of Tamil Nadu Represented by the District Collector Nagercoil Kanyakumari District

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2.The Tahsildar Vilavancode Taluk At Kuzhithurai Kanyakumari District

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...Respondents/Appellants/Defendants

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PRAYER : Second Appeal is filed under Section 100 of C.P.C, against the judgment and decree made in A.S.No.58 of 2002 dated 03.08.2004 on the file of the Subordinate Court, Padmanabhapuram reversing the judgment and decree made in O.S.No.900 of 1992 dated 31.01.1995 on the file of the Additional District Munsif Court, Padmanabhapuram.

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For Appellant : Mr.K.N.Thampi Advocate For Respondents : Mr.G.Sivaraja Government Advocate

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JUDGMENT

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The plaintiff is the appellant.

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2.The plaintiff filed O.S.No.900 of 1992 before the Additional District Munsif Court, Padmanabhapuram for the relief of declaration of title and permanent injunction for an extent of 40 cents out of 3 acres and 30 cents in Survey Nos.3018 and 3019 correlated to R.S.Nos.139/1, 139/4, 86/2 and 75. The trial Court decreed the suit for an extent of 5 cents alone. The defendants filed A.S.No.58 of 2002 before the Subordinate Court, Padmanabhapuram. The first appeal was allowed dismissing the suit in entirety. As against the same, https://hcservices.ecourts.gov.in/hcservices/ the present second appeal has been filed by the plaintiff.

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S.A..(MD).No.252 of 2005

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3.The plaintiff has contended that the suit schedule property having an extent of 40 cents is located in old survey Nos.3018 and 3019 which are correlated to R.S.Nos.139/1, 139/4, 86/2 and 75. According to the plaintiff, the said 40 cents is located with definite boundaries and as a single property. The plaintiff further contended that he is in possession of the suit schedule property for more than 30 years. He has purchased the suit schedule property under Exhibits A1 and A2 from one Kolappa Pillai and Murugan. There are several coconut, cashew-nut and mango tress in the suit schedule property and he has developed the said property. He further contended that the defendants authorities have wrongly classified the said land as poromboke property. According to the plaintiff, the suit schedule property has been wrongly classified by the plaintiff as odai poromboke. Even assuming that the said property is a odai poromboke, the plaintiff and his predecessor in title are in possession of the suit schedule property for more than 45 years and hence, they have acquired title by adverse possession.

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4.The defendants filed a written statement contending that as per revenue records, the correlation for old Survey Nos.3018 and 3019 are 86/2, 139/1 part, 3,4,5 and 7 part. Only these properties are patta properties. The defendants further contended that old Survey number for R.S.No.75 is 3020A. The plaintiff did not have any title or possession for old S.No.3020A at any point of time. The said 3020A is a Government Poromboke, now it has been classified as odai poromboke. None of the patta property of the plaintiff has been classified as odai poromboke. The defendants further contended that as per old Survey, S.No.3020A was having an extent of 1 acre. Even after resurvey, it has been renumbered as R.S.No.75, the same extent of 1 acre is maintained. Hence, the contention of the defendants that the patta land has been annexed to odai poromboke and wrongly classified as odai poromboke is not correct. The defendants further contended that the plaintiff is not entitled to claim any adverse possession over the Government property and the suit schedule property was never in possession of the plaintiff. The defendants further disputed the contention of the plaintiff that the defendants have unnecessarily interfered with the possession of the plaintiff over the patta property.

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5.Based on the above said contentions, the trial Court came to the conclusion that the patta land located in Old Survey Nos.3018 and 3019 have not been included in odai poromboke during the resurvey proceedings and answered the issue as against the plaintiff. The trial Court relied upon the report of the Advocate Commissioner to arrive at a conclusion that the plaintiff is in possession of a particular extent of the suit schedule property for more 35 years.

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6.The trial Court rejected the report of the Advocate commissioner on the ground that the Commissioner has not properly surveyed the property with reference to old survey number and rehttps://hcservices.ecourts.gov.in/hcservices/ survey number. The trial Court has arrived at a finding that the

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S.A..(MD).No.252 of 2005

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Commissioner has not measured the property and based upon the old survey sketch and resurvey sketch, rejected the report of the Advocate Commissioner. The trial Court relied upon Exhibit B4 to arrive at a finding that the plaintiff has encroached with part 5 ½ cents in R.S.No.75 which is classified as odai poromboke. The trial Court further came to the conclusion that the trees standing in the said encroachment are about 35 to 40 feet in height and hence, they may be around 30 years old. The trial Court also came to the conclusion that the plaintiff is in possession and enjoyment of 5 cents of property and he has acquired title by adverse possession. Based on the said findings, the trial Court decreed the suit for an extent of 5 cents.

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7.The defendants filed A.S.No.58 of 2002 before the Sub Court, Padmanabhapuram. The First Appellate Court reversed the findings of the trial Court on the ground that the plaintiff cannot prescribe title by adverse possession as against the Government with regard to poromboke property. The First Appellate Court also arrived at a finding that Exhibits B1 to B4 will clearly establish that R.S.No.75 is an odai poromboke and the plaintiff is not entitled to claim adverse possession over odai poromboke property. That part, the plaintiff has not approached the civil Court within a period of three years complaining about any discrepancy in the re-survey proceedings. On this ground, the First Appellate court reversed the judgment and decree of the trial court and dismissed the suit. As against the same, the present second appeal has been filed by the plaintiff.

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8.The second appeal has been admitted on the following substantial questions of law:

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“(a)whether the lower appellate Court is correct in observing that the appellant cannot claim adverse possession against the Government?

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(b)whether the judgment and decree of the lower appellate Court are correct and sustainable, on account of its conclusion that the suit is barred by limitation, inter alia, in view of the reliefs claimed in the suit?

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(c)whether the judgment and decree of the lower appellate Court are correct and sustainable, in view of the order dated 25.07.2003 in C.R.P.No.1779 of 2002 on the file of this Court and the non-compliance of the condition therein by the respondents and since the order and decreetal order in I.A.No.81 of 2004 in the A.S are bad and unsustainable?”

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9.The learned counsel for the appellant contended that the finding of the trial Court that no one can prescribe title by adverse possession as against the Government property is not legally sustainable. He further contended that he was not issued any notice https://hcservices.ecourts.gov.in/hcservices/

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S.A..(MD).No.252 of 2005

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under Section 9(2) of Tamil Nadu Survey and Boundaries Act for carrying out re-survey proceedings. Hence, the suit cannot be said to be barred by limitation. The learned counsel further contended that without any legal basis, the First Appellate court has reversed the judgment and decree of the trial Court. He has relied upon the judgement of the Hon'ble Supreme Court reported in 2019 (8) Supreme Court Cases 729 to contend that even the plaintiff can seek title on the basis of adverse possession is extracted as follows:

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“53.Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once the right is extinguished another person acquires prescriptive right which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated.

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56.There is the acquisition of title in favour of the plaintiff though it is negative conferral of right on extinguishment of the right of an owner of the property. The right ripened by prescription by his adverse possession is absolute and on dispossession, he can sue based on 'title' as envisaged in the opening part under Article 65 of the Act. Under Article 65, the suit can be filed based on the title for recovery of possession within 12 years of the start of adverse possession, if any, set up by the defendant. Otherwise right to recover possession based on the title is absolute irrespective of limitation in the absence of adverse possession by the defendant for 12 years. The possession as trespasser is not adverse nor long possession is synonymous with adverse possession”.

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10.The learned counsel for the appellant has also relied upon another judgment of the Hon'ble Supreme Court reported in 2007 (9) SCC 641 to contend that even though pleadings regarding adverse possession are not specifically pleaded, being moffosil pleadings, they have to be liberally construed since all the ingredients regarding adverse possession have been satisfied. He relied upon paragraph Nos.17, 18 and 19 which read as follows:

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“17.It may be true that in his plaint, the plaintiff did not specifically plead ouster but muffosil pleadings, as is well known, must be construed liberally. Pleadings must be construed as a whole.

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18.In Devasahayam Vs.P.Savithramma, this Court opined:(SCC P.661, Para 20)

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“20.The pleadings as are well known must be construed

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https://hcservices.ecourts.gov.in/hcservices/

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S.A..(MD).No.252 of 2005

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reasonably. The contention of the parties in their pleadings must be culled out from reading the same as a whole. Different consideration on construction of pleadings may arise between pleadings in the mofussil Court and and pleadings in the original side of the High Court”

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19. Only because the parties did not use the terminology which they should have, ipso facto, would not mean that the ingredients for satisfying the requirements of statute are absent. There cannot be any doubt whatsoever that having regard to the changes brought about by Articles 64 and 65 of the Limitation Act, 1963 vis-a-vis Articles 142 and 144 of the Limitation Act, 1908, the onus to prove adverse possession would be on the person who raises such a plea. It is also furthermore not in dispute that the possession of a co-sharer is presumed to be possession of the other co-sharers unless contrary is proved”

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11.The learned counsel for the appellant also relied upon the judgment of the Hon'ble supreme Court reported in 1994 (2) SCC 29 to draw the attention of the Court to the effect that the plaintiff is entitled to take mutually inconsistent pleas one based on title and other based on adverse possession. He further contended that the plaintiff is able to establish his title by way of adverse possession. Hence, the relief could be granted. He relied upon paragraph No.3 of the judgment which reads as follows:

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“3.It is settled law as laid down by this Court in Firm Sriniwas Ram Kumar Vs.Mahabir Prasad that it is open to the parties to raise even mutually inconsistent pleas and if the relief could be founded on the alternative plea it could be granted. If the facts are admitted in the written statement, the relief could be granted to the plaintiff on the basis of the evidence though inconsistent pleas were raised.....”

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12.The learned counsel has also relied upon another judgment of the Hon'ble Supreme Court reported in 2020 (10) SCC 264 to contend that the plea of adverse possession can be used even as a sword by the plaintiff, a title suit can be filed by the plaintiff on the basis of adverse possession. He relied upon the another judgment of the Hon'ble Supreme Court reported in 2020 (12) SCC 244 to contend that the Government can also lose title to the suit schedule property in view of Section 27 of Limitation Act, r/w Article 112 of Limitation Act.

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13.Per contra, the learned counsel for the respondents / Government contended that original case of the plaintiff is that his patta land has been wrongly included in the odai porompoke during the re-survey proceedings. The Courts below have categorically https://hcservices.ecourts.gov.in/hcservices/ arrived at a conclusion that the patta land has not been included in

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S.A..(MD).No.252 of 2005

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the odai poromboke during re-survey but the plaintiff has encroached on the odai poromboke. Since the case of the plaintiff has been disproved by the Government by filing Exhibits B1 to B4, the plaintiff is not entitled to any relief. The respondents further contended that the plaintiff cannot acquire title by adverse possession to Government property especially an odai poromboke which is a water body.

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14.I have considered the submissions on either side.

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The original case of the plaintiff is that he has purchased the suit schedule properties under Exhibits A1 and A2 for an extent of 40 cents from one Thangappan. The said suit schedule properties were located in old Survey Nos. 3108 and 3019 having a total extent of 3 acres and 30 cents. The plaintiff had contended that during resurvey proceedings, the entire 40 cents have been erroneously included in R.S.No.75 which is classified as odai poromboke. The plaintiff further contended that he himself and his predecessor in title are in possession of the suit schedule property for more than the statutory period and they have prescribed title by adverse possession.

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16.A perusal of Exhibits B1 to B4 will clearly show that old Survey Nos.3108 and 3019 have been renumbered as 86/2, 139/1 part, 3,4, 5 and 7 part. This will clearly show that the plaintiff's property namely old survey Nos.3018 and 3019 have not been included in R.S.No.75 during re-survey proceedings. Further, Exhibits B1 to B4 clearly indicate that the old Survey number for R.S.No.75 is 3020A. Admittedly, the plaintiff is not claiming any title over old survey No.3020A. That a part, the extent in old Survey No.3020A was 1 acre and the same 1 acre has been retained in R.S.No.75 also. Hence, this Court can safely come to a conclusion that the pleadings of the plaintiff that his patta property has been wrongly included in R.S.No.75 during re-survey proceedings, is absolutely incorrect. The plaintiff is not entitled to claim any title or possession over old survey No.3020A or R.S.No.75. Admittedly, 3020A was odai poromboke and after re-survey, renumbered as 75. It is again classified as odai poromboke. Hence, the present R.S.No.75 has remained as odai poromboke even during the old survey proceedings.

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17.The trial Court has come to the conclusion that the plaintiff is in encroachment of 5 cents of property in R.S.No.75 which has been classified as odai poromboke. The findings of the trial Court is based upon the evidence of DW1. The trial Court has granted a decree for declaration of title and permanent injunction for 5 cents of land which is classified as odai poromboke based on the adverse possession.

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18.The issue now arises for consideration is that whether a person can acquire title by adverse possession over a property which https://hcservices.ecourts.gov.in/hcservices/ is classified as odai poromboke. The Hon'ble Supreme Court in a

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S.A..(MD).No.252 of 2005

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judgment reported in 2019(8) SCC 739 has held as follows:

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“60.The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi ie. Adquate in continuity, nec clam ie. Adquate in publicity and nec precario ie. Adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in tie. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession”

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19.The Hon'ble Full Bench of our High Court in a judgment reported in 2015 (5) LW 397 ( T.K.Shamugam, the Secretary, C.P.I (MD), North Chennai District committee, Chennai Vs. The State of Tamil Nadu, Represented by its Secretary to Government, Department of Revenue, Fort St. George, Chennai has held as follows:

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“ 29.Reverting back to the Sivaksi Region Tax Payers Association's case, in paragraph 28, it was observed that it should not be misunderstood, as if the Division Bench was suggesting that all encroachments should be regularised or encourage, but the State Government to take a conscious decision, if the land on which there are encroachments for a long period and such land is not required for any public purpose or for the State and a person remaining in adverse possession for more than 30 years acquires such right over the property. The other observations contained in para 30 of the judgment are that the Government Order (G.O.No.854) makes it amply clear, where the environment is not affected in the sense, the area is not in use as lake or water source either natural or artificial and not required for any public use and for the use of the State then only the property can be settled”

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30.With respect we do not agree with the said observations, since the object of the enactments which have held the field from 1905 does not speak or any such exemptions, rather the underlying principle was to preserve and protect water bodies. It is to be noted at

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https://hcservices.ecourts.gov.in/hcservices/

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S.A..(MD).No.252 of 2005

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this juncture, during summer, water bodies would appear dry, but during rainy days /monsoon, stream would be in place to drain/ take the water to the water bodies and percolation takes place which in all probability results in surcharge of ground water. Thus, on account of the

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default of the revenue officials or on account of collusion of official machinery with encroachers can hardly be a premium to justify encroachments. The theory of adverse possession, would not stand attracted in such cases. The encroachers are in fact trespassers into Government property.In terms of the Standing orders of the Board of Revenue, the Village Administrative Officer has a duty to report any encroachment in any Government land in his village. The present scenario of rampant encroachment is on account of the failure of the Revenue Administration to protect Government lands. As observed T.N.Senthilkumar (supra), the State holds all the water bodies in public trust for the welfare of this generation and all succeeding generation. Thus, it would be preposterous to suggest that a trespasser with or without the connivance of the officials enters into occupation of Government tank, gradually defaces its identity then puts forth a plea that it is no longer a water body or a water channel and seeks for regularisation of his trespass be rewarded with a patta. If such acts of trespassers/encroachers are to to treated as pardonable and be rewarded for their illegal act in the form of regularisation/accommodation to say the least, it would be an absolute degradation and collapse of the public trust vested with the State of protect the lands and water bodied. If the Government is interested in allocating the poor and downtrodden, it should bring out a scheme for rehabilitating them and not to condone their act of trespass, reclassify the law and then grant patta to those encroachers”

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20. The Hon'ble Supreme Court in a judgment reported in 1997 (1)SCC page 388 para 34 as held as follows:

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“ 34. Our legal system-based on English common

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law-includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. These resources meant for public use cannot be converted into private ownership.”

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https://hcservices.ecourts.gov.in/hcservices/

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S.A..(MD).No.252 of 2005

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In view of the above said Hon'ble Supreme Court judgment, whenever a property is classified and reserved for any public purposes like water body, road, park etc., the Government is only a Trustee of the said properties. The Government has got only a right of administration and maintenance of these properties. As far as those properties reserved for public purposes are concerned, the Government is only the legal owner and the beneficial ownership vests on the general public for whose benefit, the Government is entitled to maintain and administer the said properties. To summarize, where the Government chooses to classify a particular survey number and reserve it for a public purpose, the title of the Government is downgraded to the level of a Trustee for that property.

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If a party in occupation of a property claims title by adverse possession, one of the mandatory ingredients to be proved by him is that he should have animus to hold the said property adversely as against the real owner. In the case of properties reserved for public purposes, a dual ownership is being created in the nature of legal ownership and beneficial ownership. The legal ownership is vested in the Government while the beneficial ownership is vested in the beneficiaries/general public. The occupier should not only prove his animus as against the legal owner but also as against the beneficial owners(General public). Interestingly, the occupier is also one of the beneficial owner for whose benefit the said property is classified and reserved by the legal owner. In such circumstances, the occupier cannot have an animus as against each one of the individuals of the general public. When the occupier himself is a beneficial owner, the question of acquiring title by adverse possession does not arise at all.

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23.The occupier can plead and prove title by adverse possession only as long as the Government property remains as a Government Poramboke, not being reserved for any public purposes. Only in those cases, the occupier can invoke Article 112 of the Limitation Act and claim title by adverse possession. In all other cases, where the properties are being classified and reserved for public purposes, since he cannot have any animus as against all the beneficial owners, the occupier cannot acquire title by adverse possession. The private rights of an individual to acquire title by adverse possession cannot be upheld when the same is put up against the public rights of the beneficial owners. Hence, no occupier can acquire title by adverse possession over a water body or any other land reserved for public purposes despite being in possession beyond the statutory period of 30 years.

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In view of the judgment of the Hon'ble Supreme Court and the Full Bench of our High Court as stated supra, this Court comes to a conclusion that though the plaintiff is in possession of 5 cents of property in odai poramboke, he cannot acquire title by https://hcservices.ecourts.gov.in/hcservices/ adverse possession whatever may be the length of possession. The

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S.A..(MD).No.252 of 2005

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trial Court after arriving at a conclusion that the suit schedule property is a water body ought not have granted a decree on the basis of adverse possession. The First Appellate Court has rightly reversed the decree of the trial Court and dismissed the suit.

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25. In view of the above said discussion, all the substantial questions of law are answered as against the appellant. The Second Appeal stands dismissed. No costs.

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Sd/-

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Assistant Registrar (CS-III)

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// True Copy //

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/ /2022 Sub Assistant Registrar(CS)

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msa

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Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.

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1.The Subordinate Judge, Padmanabhapuram

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2.The Additional District Munsif Padmanabhapuram

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3.The Section Officer V.R.Section Madurai Bench of Madras High Court Madurai

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+1 CC to M/s.K.N.THAMPI, Advocate ( SR-5281[F] dated 10/02/2022 ) +1 CC to M/s.SPL GP ( SR-5347[F] dated 10/02/2022 )

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S.A(MD).No.252 of 2005 10.02.2022

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PK(CO)

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KB(28.02.2022) 10P 7C

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https://hcservices.ecourts.gov.in/hcservices/

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Thankappan v. the State of Tamilnadu

Case brief

What is this about?

What did the court decide?

Thankappan v. the State of Tamilnadu

Case brief

What is this about?

What did the court decide?

What the court decided

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