M/S.Besant Raj International Vs M/S Metro General Credit

Decree dated 11.10.2014 passed in O.S.No.1251 of 2011 on the file of the VII Additional Judge, City Civil Court Chennai, in so far as it relates to dismissing the prayer for declaration declaring the appellant is the absolute owner of the suit schedule property.

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For Appellant : Mr. K.Ravi Senior Counsel assisted by Mr.J.Srinivasan for M/s. Rugan and Arya

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For 1^st Respondent : No appearance

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For 2^nd Respondent : exparte

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JUDGMENT

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(Order of the Court was made by C.V.KARTHIKEYAN , J . )

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The plaintiff in O.S.No. 1251 of 2011 on the file of the VII

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Additional City Civil Court at Chennai is the appellant herein.

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O.S.No. 1251 of 2011 had been initially filed as C.S.No. 247 of

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2006 before the Original Side of this Court and later owing to change in the

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pecuniary jurisdiction had been transferred to the City Civil Court and renumbered as O.S.No. 1251 of 2011.

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The plaintiff M/s. Besant Raj International Ltd., a company incorporated under the Companies Act, 1956 had filed the suit seeking a declaration that the plaintiff was the absolute owner of the suit property and for consequential permanent injunction restraining the defendants from either alienating the suit property or interfering with the peaceful possession especially by auction in E.P.No. 1799 of 2003 in O.S.No. 6560 of 1996 on the file of the IX Assistant City Civil Court at Chennai and for costs of the suit.

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By Judgment dated 11.10.2014, the suit was partly decreed relating to grant of permanent injunction restraining the defendants from interfering with peaceful possession and enjoyment of the suit schedule property by the plaintiff but dismissing the suit relating to the relief sought for declaration of title and for permanent injunction restraining the defendants from alienating the suit schedule property. Aggrieved by the said Judgment, the plaintiff had filed the present Appeal.

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Notice had been directed to the respondents/defendants and though notice had been served on the first respondent/first defendant, there has been no appearance. The second respondent/second defendant had been set exparte.

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In the plaint in O.S.No. 1251 of 2011, it had been contended that the suit property originally belonged to Henry Sathyanathan, father of the second defendant, Dr.Mariam Chellappa. The plaintiff was inducted into possession under an agreement of lease dated 14.09.1990 executed by Leela Sathyanathan, widow of late Henry Sathyanathan. The suit property is land and building at old Door No. 35, New No.18, Plot No.68, II Cross Street, Ramakrishna Nagar, Chennai – 600028 measuring 1 ground and 975 sq.ft. The lessor Leela Sathyanathan expired in USA before March 1991. The plaintiff addressed several letters to the second defendant and to her husband Dr.David Chellappa. But however, they did not express any interest over the suit property. The plaintiff stopped paying the rent from March 1991. The plaintiff had been in possession continuously for the past 15 years till the filing of the suit and claimed that title had been perfected by adverse

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possession of continuous period of more than 12 years. The plaintiff also contended that they spent more than Rs.35,00,000/- to improve the property.

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The plaintiff further claimed that on 15.03.2006, they received

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a notice of caveat filed by the first defendant, M/s. Metro General Credit Ltd., addressed to the Managing Director of the plaintiff company. They then made enquiries and came to note that the first defendant had filed C.S.No. 365 of 1990 on the file of the Original Side of the High Court which suit was later transferred and renumbered O.S.No. 6560 of 1996 on the file of the City Civil Court, Chennai against Leela Sathyanathan and two others seeking a money decree for Rs.5,07,580/-. The second defendant had been brought on record after the death of Leela Sathyanathan. The defendants had remained exparte. An exparte decree was thereafter passed on 21.09.1998. Thereafter, E.P.No. 1799 of 2003 had then been filed in the City Civil Court by the first defendant herein. Thereafter, visitors came to the suit property to inspect the same to purchase the same in Court auction. It was under those circumstances that the suit had been filed seeking the reliefs sought as stated above.

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A written statement was filed by the first defendant wherein it had been claimed that they are carrying on business as Hire Purchase Financiers in Chennai for several years. One A.Ponraja alias A.S.Ponraja had approached the first defendant in November 1984 seeking advance for purchase of Tata Benz Lorries. One M.S.Mani @ M.Subramani had offered guarantee. The first defendant had advanced a sum of Rs.2,81,900/- under two agreements. The amounts were due and payable in 36 equal monthly instalments commencing from 19.12.1984. Since there was default in repayment of the loan, Leela Sathyanathan offered her property namely, the suit schedule property as a security for the repayment of the loan. This fact was confirmed in her letter dated 21.11.1985. It had been contended that the first defendant had then filed C.S.No. 365 of 1990 in the Original Side of the High Court for recovery of a sum of Rs.5,07,500/- together with interest till date of realisation. The suit was transferred to the City Civil Court. The defendants remained exparte. Leela Sathyanathan died and her daughter/the second defendant herein had been brought on record as legal representative. Subsequently, the first defendant filed E.P.No. 1799 of 2003 before the IX Assistant City Civil Court at Chennai.

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The claim in the Execution Petition was Rs.18,10,405.04. It

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had been stated that the suit property was brought up for sale. On 15.12.2003 and again on 02.08.2005, sale notices were affixed in the premise. Paper publication was also effected. The bailiff also went to the suit property and filed a report. An upset price of Rs.90,00,000/- was fixed. On 08.03.2006, publication was made by way of tom tom in the premises. The second defendant entered appearance, but did not file any counter and remained exparte. The date of auction was then fixed on 22.03.2006. It had been stated that it was at that juncture that the suit had been filed. It had been claimed that the plaintiff cannot seek any independent right, title or interest over the property. It had therefore been stated that the suit should be dismissed.

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On the basis of the above pleadings, the following issues had been framed:-

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“(1). Whether the plaintiff has perfect title through adverse possession to the suit property despite he was inducted in possession as a tenant under Mrs.Leela Sathyanathan, the original owner of the property?

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(2) Whether the plaintiff is entitled to claim adverse possession over the suit property belonging to the second defendant when her predecessor in title suffered a mortgage decree in O.S.No. 6560 of 1996 on the file of the City Civil Court, Chennai?

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(3) Whether the plaintiff is entitled for permanent injunction restraining the first defendant from enforcing a lawful decree passed in O.S.No. 6560 of 1996 pending execution in E.P.No. 1788 of 2003 before the IX Assistant Judge, City Civil Court, Chennai?; and

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(4) to what relief the plaintiff is entitled

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to?”

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During trial, the Chairman and Managing Director of the plaintiff company, Dr.A.Besant C Raj was examined as PW-1 and he marked Exs. A-1 to A-11. Ex.A-1 was the lease agreement dated 14.09.1990. The other documents were property tax receipts and receipts for payment of electricity charges.

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The defendant examined one witness V.M.Thomas, Director of the first defendant company as DW-1. They did not mark any documents.

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During trial, the primary ground under which the plaintiff was non suited was that the plaintiff cannot seek declaration of title on the basis of adverse possession. However, possession was recognised. The other reliefs of declaration of title and injunction restraining the first defendant from bringing the property to auction were rejected and the suit was partly decreed. Challenging that Judgment, the present Appeal had been filed.

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Heard the learned Senior Counsel for the appellant and perused the materials available on records. There is no appearance for the first respondent. The second respondent remained exparte.

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The point to be considered in this appeal are:-

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(1) Whether the appellant had perfected title through adverse

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possession and is entitled for the relief of declaration of title?;

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The plaintiff is a company incorporated under the Companies Act 1956. They had been inducted as lessee in the suit schedule property by a lease deed dated 14.09.1990 marked as Ex.A-1. The lessor was Leela Sathyanathan, widow of the original owner of the suit property, Henry Sathyanathan. The plaintiff continued to be in possession on and from the date of lessee. The suit property is land and building at Old No. 35, New No.18, Plot No. 68, II Cross Street, Ramakrishna Nagar, Chennai – 600 028 measuring 1 ground and 975 square feet.

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The appellant claimed that on coming to know of the death of Leela Sathyanathan, the appellant had issued communications to the second respondent, daughter of Leela Sathyanathan, but however, there was no response. The appellant therefore, even according to the pleadings, stopped paying rent on and from March 1991. It has to be held that on and from this particular date, the appellant continued to be in possession hostile to the interests of the true owner of the suit property, the second respondent.

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The appellant then received a notice on 15.03.2006 which was the caveat filed by the first respondent. It is the case of the first respondent that they are Hire Purchase Financiers of vehicles and during the course of business, they had financed purchase of two Tata Benz Lorries for one A.Ponraja alias A.S.Ponraja. They had totally advanced a sum of Rs.2,81,900/-. Two separate agreements had been drawn on 19.11.1984. One M.S.Mani @ M.Subramani had stood guarantee. However, the equal monthly instalments were not paid. Thereafter, Leela Sathyanathan offered her suit property as security for the repayment of the loan. It was stated that this fact was confirmed by letter dated 21.11.1985.

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It is the further case of the first respondent that since the loans were not repaid, the first respondent had filed C.S.No. 365 of 1990 on the file of the Original Side of the High Court seeking recovery of the amount. The suit was then transferred to the City Civil Court and renumbered as O.S.No. 6560 of 1996. The second respondent herein was impleaded as a legal representative of Leela Sathyanathan. The respondents remained exparte and an exparte decree was therefore passed. The first respondent

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then filed E.P.No. 1799 of 2003 on the file of the IX Assistant City Civil Court, Chennai to bring the suit property for sale. The necessary procedure was followed and the auction date was fixed on 22.03.2006. Immediately thereafter, the suit had been filed by the appellant herein seeking declaration of title on the basis of adverse possession and injunction restraining alienating the suit property and injunction to protect possession. By Judgment dated 11.10.2014, the suit was partly decreed granting only injunction to protect possession.

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A perusal of the records filed before the trial Court shows that the first respondent, who had claimed that while advancing loan for purchase of Tata Benz Lorries, agreements bearing Nos. 135 and 136 dated 19.11.1984 had been executed and subsequently for the repayment of the loan, Leela Sathyanathan offered the suit property as security and affirmed this fact by a letter dated 21.11.1985, had however not produced any of those documents to confirm these facts. The first respondent adduced only oral evidence before the Court. The oral statements regarding advancing finance for purchase of lorries and the property having been offered as guaranteed by Leela Sathyanathan and her written affirmation letter dated

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21.11.1985 have to be rejected as concocted and false in the absence of any document substantiating the same.

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The only fact which is evident is the continuous possession of the appellant on and from March 1990.

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In 2004 10 SCC 779, [Karnataka Board of Wakf Vs. Government of India and others], while stating the requisites of adverse possession, the Hon'ble Supreme Court had held as follows in paragraph No.11:-

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“ 11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”,

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that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254] ,Parsinni v. Sukhi [(1993) 4 SCC 375] and D.N. Venkatarayappa v. State of Karnataka [(1997) 7 SCC 567] .) 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. 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

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true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma [(1996) 8 SCC 128] . ] ”

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In the instant case, the appellant has been in continuous possession on and from the date of lease /Ex.A-1 dated 14.09.1990. Thereafter, they had stopped paying rents from March 1991. From that date, onwards they have been in possession hostile to the title and interests of the second respondent/daughter of Leela Sathyanathan. The second respondent had not participated even during the trial proceedings. She had also taken a concious decision not to participate in this appeal. To prove that, the appellants were in possession, they have marked Ex.A-2 property tax collection receipt dated 17.03.1992, Ex.A-3 notice to disconnect water connection dated 30.12.1992, receipt for payment of water charges in Ex.A-4 dated 20.01.1993, receipts issued by the Tamilnadu Electricity Board in Exs. A-5 and A-6 dated 09.06.2000 and 23.10.2004 respectively, property tax receipt dated 17.12.2005 under Ex.A-7, water tax receipt dated 29.12.2005 in Ex.A-8 and also documents relating to the electricity

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department in Exs. A-9 and A-10. These documents clearly show that the property stands in the name of Henry Sathyanathan but that the appellant was in physical possession of the same.

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We hold that the appellant has been in possession hostile to

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the right and interest and title of the second respondent herein. This possession is actual, visible, exclusive, hostile and continued over the statutory period.

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Article 65 of the Indian Limitation Act 1963 is as follows:-

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“

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*Description of* *suit*	*Period of limitation*	*Time from which period* *begins to run*
For possession of immovable property or any interest therein based on title	Twelve years	When the possession of the defendant becomes adverse to the plaintiff.

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'

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It is thus seen that the period of limitation is 12 years from the

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time when the possession as become hostile to that of the owner.

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In the instant case, the plaintiff has been in continuous possession on and from 1990 hostile to the interest and title of the first respondent. The first respondent had not produced any document relating to the filing of the suit, relating to the filing of the execution petition, relating to the bringing the property on auction and relating to fixing the date for auction. The statements made in the written statement of the first respondent herein necessarily have to be rejected as having not been proved in manner known to law.

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On the other hand, the fact that the appellant had been in continuous possession for a period far more than the statutory period would clearly show that the relief appellant seeks, namely, declaration of title will necessarily have to be granted. The reasoning of the learned trial Judge that merely because the appellant is in adverse possession, such a declaration cannot be granted is rejected by us.

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In 2023 17 SCC 400 [ Government of Kerala and another

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Vs. Joseph and others] , the Hon'ble Supreme Court had laid down the scope of the concept of adverse possession and had held as follows:-

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“ 29. The principle of adverse possession has been defined by the Privy Council in Perry v. Clissold [Perry v. Clissold, 1907 AC 73 (PC)] in the following terms : (AC p. 79)

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“It cannot be disputed that a person in possession of land in the assumed character of the owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title.”

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30. Before proceeding to do so, it is essential to take note of the law governing such a claim. After a perusal and consideration of various judgments rendered by this Court, the following principles can be observed.

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31. Possession must be open, clear, continuous and hostile to the claim or possession of the other party; all three classic requirements must coexist —nec vi i.e. adequate in continuity; nec clam i.e. adequate in publicity; and nec precarioi.e. adverse to a competitor, in denial of title and knowledge:

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31.1. In Radhamoni Debi v. Collector of Khulna [Radhamoni Debi v. Collector of Khulna, 1900 SCC OnLine PC 4 : (1899-1900) 27 IA 136 ] , the Privy Council held that : (SCC OnLine PC)

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“… the possession required must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor.”

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31.2. Further, the Council in Chandra Nandy v. Baijnath Jugal Kishore [Chandra Nandy v. Baijnath Jugal Kishore, 1934 SCC OnLine PC

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63 : (1934-35) 62 IA 40 : AIR 1935 PC 36] observed : (SCC OnLine PC)

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“…‘… It is sufficient that the possession should be overt and without any attempt at concealment, so that the person against whom time is running out, if he exercises due vigilance, to be aware of what is happening.” [ Ed. : As observed in Secy. of State for India in Council v. Debendra Lal Khan, 1933 SCC OnLine PC 65 : (1933-34) 61 IA 78 : 1934 All LJ 153]

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31.3. A Bench of three Judges of this Court in Parsinni v. Sukhi [Parsinni v. Sukhi, (1993) 4 SCC 375] held that : (SCC p. 379, para 5)

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“5. … Party claiming adverse possession must prove that his possession must be “nec vi, nec clam, nec precario” i.e. peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner.”

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31.4. In Karnataka Board of Wakf v. Union of India [Karnataka Board of Wakf v. Union of India, (2004) 10 SCC 779] (two-Judge Bench) it was held : (SCC p. 785, para 11)

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“11. … It is a well-settled principle that a party claiming adverse possession must prove that his

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possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.”

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This case was relied on in M. Venkatesh v. BDA [M. Venkatesh v. BDA, (2015) 17 SCC 1 : (2017) 5 SCC (Civ) 387] (three-Judge Bench), Ravinder Kaur Grewal v. Manjit Kaur [Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 : (2019) 4 SCC (Civ) 453] (three-Judge Bench). 31.5. This Court in a recent case of M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das [M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1] (five-Judge Bench) reiterated this principle as under : (SCC p. 703, para 1143)

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“1143. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous possession which meets the requirement of being nec vi, nec clam and nec precario. To substantiate a plea of

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adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence.”

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32. The person claiming adverse possession must show clear and cogent evidence to substantiate such claim. This Court in Kishan Singh v. Arvind Kumar [Kishan Singh v. Arvind Kumar, (1994) 6 SCC 591] (two-Judge Bench) held that : (SCC p. 594, para 5)

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“5. … A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.”

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(emphasis supplied) Reference may also be made to M. Siddiq [M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1] .

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33. Mere possession over a property for a long period of time does not grant the right of adverse possession on its own. In Gaya Parshad Dikshit v. Nirmal Chander [Gaya Parshad Dikshit v. Nirmal Chander, (1984) 2 SCC 286] (two-Judge Bench), this Court observed : ( SCC p. 287, para 1)

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“1. … It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough.”

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(emphasis supplied)

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Reference may also be made to Arvind Kumar [Kishan Singh v. Arvind Kumar, (1994) 6 SCC 591]; Mallikarjunaiah v. Nanjaiah [Mallikarjunaiah v. Nanjaiah, (2019) 15 SCC 756 : (2020) 2 SCC (Civ) 424] (two-Judge Bench); Uttam Chand [Uttam Chand v. Nathu Ram, (2020) 11 SCC 263 : (2021) 1 SCC (Civ) 520] .

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34. Such clear and continuous possession must be accompanied by animus possidendi — the intention to possess or in other words, the intention to dispossess the rightful owner.

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34.1. In Karnataka Board of Wakf [Karnataka Board of Wakf v. Union of India, (2004) 10 SCC 779] it was observed : (SCC p. 785, para 11)

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“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.”

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34.2.Annakili v. A. Vedanayagam [Annakili v. A. Vedanayagam, (2007) 14 SCC 308] (two-Judge Bench) also shed light on this principle as under : (SCC p. 316, para 24)

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“24. Claim by adverse possession has two elements : (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a wellsettled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession.”

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(emphasis supplied)

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34.3. In Des Raj v. Bhagat Ram [Des Raj v. Bhagat Ram, (2007) 9 SCC 641] (two-Judge Bench) this Court observed : (SCC p. 648, para 21)

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“21. In a case of this nature, where long and continuous possession of the respondent-plaintiff stands admitted, the only question which arose for consideration by the courts below was as to whether the plaintiff had been in possession of the

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properties in hostile declaration of his title vis-àvis his co-owners and they were in know thereof.”

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34.4. This Court in L.N. Aswathama v. P. Prakash [L.N. Aswathama v. P. Prakash, (2009) 13 SCC 229 : (2009) 5 SCC (Civ) 72] (two-Judge Bench) had observed that permissive possession or possession in the absence of animus possidendi would not constitute the claim of adverse possession.

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34.5. It was also held in Chatti Konati Rao v. Palle Venkata Subba Rao [Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 : (2012) 1 SCC (Civ) 452] (two-Judge Bench) : (SCC p. 322, para 15)

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“15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed.”

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(emphasis supplied)

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Referring to the above judgment in Subba Rao [Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 : (2012) 1 SCC (Civ) 452] this Court has reiterated the cardinality of the presence of animus possidendi in a case concerning adverse possession in Brijesh Kumar v. Shardabai [Brijesh Kumar v. Shardabai, (2019) 9 SCC 369 : (2019) 4 SCC (Civ) 509] (two-Judge Bench).

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35. Such a plea is available not only as a defence when title is questioned, but is also available as a claim to a person who has perfected his title. ”

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It is thus seen that the appellant having been in continuous hostile possession on and from March 1991, had perfected their title over the suit schedule property. The issue framed for consideration is answered accordingly.

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