B.Balaji v. Saminathan (Deceased)(by LRs)2. Sukumar & Ors.

Subordinate Judge, Erode, in O.S.No.533 of 1988 dated11.11.1993.2. The plaintiffs in O.S.No.533 of 1988 on the file of the SubCourt, Erode are the Appellants before this Court.3. O.S.No.533 of 1988 was filed by the plaintiffs for adeclaration to declare that the plaintiffs are the absolute ownersof the suit properties, for a direction directing the defendants tovacate the suit premises and deliver vacant possession to theplaintiffs, for another direction directing the defendants to paythe damages for use and occupation at the rate of Rs.200/- permonth from the date of the suit till delivery of possession and thesame has to be regulated under Order XX Rule 12 C.P.C. and also forcost.4. The case of the plaintiffs before the trial court is that, the suit properties are situated in Erode Town and by virtue of adecree in O.S.No.418 of 1935 of the District Munsif Court, Erodeand in A.S.No.28 of 1937 on the file of the District Court, Erode, the plaintiffs became the absolute owners of the suit properties.

The plaintiffs executed the decree arising out of O.S.No.418 of1935, in EPR.No.454 of 1939 and obtained possession through Court. Ever since the date of taking possession, and delivery of the suitproperties through Court, that is on 15.6.1939, the plaintiffs havebeen enjoying the suit properties and other properties as theabsolute owners.5. The first defendant (who died pending suit) is the elderbrother of the plaintiffs (both the plaintiffs are sisters) and outof love and affection the plaintiffs permitted the first defendantto occupy the suit property. The first defendant has been livingin the suit schedule property along with his sons who aredefendants 2 and 4. Now, the plaintiffs wanted the suit propertyfor their own use and therefore, they asked the first defendant tovacate the suit property and deliver vacant possession of the sameto them. But, the first defendant was evading the same andtherefore, the plaintiffs issued a notice to the first defendant on30.8.1988 calling upon the first defendant to vacate the premiseswithin 15 days from the date of receipt of the notice.

The firstdefendant sent a reply dated 24.9.1988 denying the very ownershipof the plaintiffs of the suit schedule properties. Further, the https://hcservices.ecourts.gov.in/hcservices/ first defendant stated that the plaintiffs sold the property to hiswife Sundarammal and his wife Sundarammal has also constructed ahouse. The first defendant further claimed that his wife alone isin possession and enjoyment of the property in question. Thatapart, the first defendant went to the extent of claiming adversepossession by contending that by reason of her open, long, continuous and uninterrupted and exclusive possession of herownership right over the statutory period, his wife had perfectedher title.6. According to the plaintiffs, the above claim of the firstdefendant is nothing but false as the first defendant and hisfamily members are occupying the suit property on the leave andlicence of the plaintiffs.

Since the first defendant is setting uptitle in the name of his wife Sudnarammal, who is no more now, thedefendants 2 to 6 were added as parties to the suit for properadjudication. Hence, they filed O.S.No.553 of 1988 for theaforesaid reliefs.7. A written statement was filed on behalf of the thirddefendant which was adopted by the defendants 2, 4 to 7. In thewritten statement it was stated that the first defendant was bornand brought up in the suit house as owner. He had sold theproperty under a registered sale deed dated 5.7.1969 to his wifeSundarammal. Tmt. Sundarammal constructed a house in the saidportion. Thereafter, she was alone in possession and enjoyment ofthe suit house and after her death, her legal heirs are inpossession and enjoyment of the suit property in their own right. It is further stated by the third defendant that by reason of heropen, long, continuous, uninterrupted and exclusive possession inher own right over the statutory period, the said Sundarammal hadperfected her title by adverse possession in any event.8.

According to the third defendant, the first defendant isthe grandson of Subburaya Pillai who is the original owner of theproperty in question and the first defendant alone is entitled tosucceed to the property of Subburaya Pillai.9. In fact, it is the first defendant who permitted theplaintiffs to occupy a portion of the house as the plaintiffs arehis sisters. Since the first defendant demanded the plaintiffs tovacate the house in the month of July 1988, the plaintiffs havefiled this vexatious suit. Hence, they prayed for the dismissal ofthe suit.

On the other hand, the trial Court foundthat the plaintiffs proved their case with regard to their claim oftaking possession of the property through court auction as isevident from Ex.A3 (decree of the District Munsif Court, Erode inO.S.No.418 of 1935) and Ex.A4 (possession receipt made inE.P.No.457 of 1939, in O.S.No.418 of 1935). Thus, the trial courton the basis of the above evidence found that the plaintiffs arethe owners of the suit schedule property. But, the trial court didnot accept the oral evidence of P.W.1 and P.W.2. As none of theplaintiffs came forward to depose that they gave permission to thefirst defendant and no documents were filed to prove that the firstdefendant was given permission to occupy the property, the trialcourt came to the conclusion that the plaintiffs did not provetheir case that they permitted the first defendant to occupy thesuit schedule property.13. While appreciating the evidence of the defendants, thetrial court found that the defendants have been in occupation ofthe suit schedule property for more than thirty years.

Further, itwas found that property tax was paid by the plaintiffs only from1978 onwards, whereas it was the first defendant who paid theproperty tax from 1941 to 1957. From the tax receipts, the trialcourt came to the conclusion that the first defendant occupied theproperty even before the year 1941 and therefore, it was provedthat the defendants are entitled to the suit property by way ofadverse possession.14. While considering the Issue No.2, the trial court foundthat issue in favour of the plaintiffs and while considering theissue No.5, the trial court granted a decree of declaration withregard to the property which is in the possession of the plaintiffs https://hcservices.ecourts.gov.in/hcservices/ and accordingly, the suit was partly decreed with regard to thedeclaratory relief. With regard to the other reliefs, the suit wasdismissed.15. Aggrieved by the judgment and decree dated 11.11.1993, theplaintiffs filed the above appeal before this court.16.

Heard Thiru S.V.Jeyaraman, the learned Senior counsel forthe Appellants and Thiru V.K.Muthuswamy, the learned Senior counselfor the respondents. I have also gone through the documentsincluding the judgment of the Court below.17. The learned Senior counsel for the appellants/ plaintiffssubmits that the trial court has totally misconceived the issuewith regard to adverse possession and if the pleadings and theevidence let in on behalf of the defendants are properlyappreciated and evaluated, it will certainly prove that thedefendants have miserably failed to prove their title to theproperty by way of adverse possession. The learned Senior counselfurther submits that once it is established that the defendants arenot entitled to claim the property by way of adverse possession, then their possession is only permissive and therefore, theplaintiffs are entitled to the relief of declaration as well asrecovery of possession.18.

In support of his submission, the learned Senior counselhas very much relied on the decision of the Hon'ble Supreme Courtreported in A.I.R. 2008(41) SCW 6996 (Hemaji Waghaji Jat VsBhikhabhai Khengarbhai Harijan & others).19. Per contra, the learned Senior counsel for the defendantssubmits that as none of the plaintiffs came forward to examinethemselves as witnesses, an adverse inference has to be drawnagainst them and their claim that they permitted the firstdefendant to occupy the property. That apart, the learned Seniorcounsel submits that the property tax receipts would definitelyprove that the defendants are entitled to the property by way ofadverse possession. He further submitted that originally theproperty was only a vacant land and it was the first defendant andhis wife who put up the construction with the knowledge of theplaintiffs and therefore, the defendants have proved their case ofadverse possession.

Once adverse possession is proved, there isnothing in this appeal and the judgment and decree of the trialcourt is only to be confirmed. In support of his submissions, thelearned Senior counsel relied on the following decisions:1.A.I.R. (30) 1943 MAD 425 (Fatima Bibi and another Vs A.HajeeMuhammad Usman Sahib (died)2.1938(1) M.L.J. 190 (Makina Atchayya Patrudu Vs JalaluddinSahib and others) https://hcservices.ecourts.gov.in/hcservices/

Issue No.1:According to the plaintiffs, they are the absolute owners ofthe suit schedule properties having obtained possession throughCourt by filing E.R.P.No.454 of 1939 and they only permitted theirbrother, the first defendant to occupy the suit property out oflove and affection. This was sought to be resisted by the firstdefendant by contending that he sold the property under aregistered sale deed dated 5.7.1969 to his wife Sundarammal and shewas alone in possession and enjoyment of the suit house and afterher death, her legal heirs are in possession and enjoyment of thesuit property in their own right. Conversely, it was contended bythe defendants that by reason of her open, long, continuous, uninterrupted and exclusive possession in her own right over the https://hcservices.ecourts.gov.in/hcservices/ statutory period, the said Sundarammal perfected her title byadverse possession.24. In this context, the initial burden of proving the titleto the suit schedule property is on the shoulders of the plaintiffsand accordingly, to prove their case that they are the absoluteowners of the suit schedule property, the plaintiffs marked Ex.A3and Ex.A4.

Ex.A3 is a certified copy of the decree dated 10.8.1936in O.S.No.418/35 filed by the plaintiffs herein when they wereminors represented by their next friend Thirugnanasambanda Gounder. The suit in O.S.No.418 of 1935 was filed for recovery of possessionof the plaint mentioned property with further rent from defendants2 and 3 and for the cost of the suit from the second defendant andthe other contesting defendants. The case of the plaintiffs inO.S.No.418 of 1935 on the file of the District Munsif, Erode isthat the plaintiffs are the lawful owners of the plaint mentionedhouse and that the second defendant, A.Subbiah Pillai tresspassedinto the house and he is occupying it unlawfully. The DistrictMunsif Court by decree dated 10.8.1936 declared that the plaintiffsare entitled to the suit house property and the defendants two andthree shall put the plaintiffs in possession of the suit property.25.

Ex.A4 is the possession receipt showing that to executethe decree passed in O.S.No.418 of 1935, the plaintiffs hereinfiled E.R.P.No.457 of 1939 and obtained delivery of possession. Therefore, Ex.A3 and Ex.A4 proved the case of the plaintiffs asstated in the plaint and in fact, the trial court has also advertedto the two documents and found that the plaintiffs are the ownersof the suit properties. In such circumstances, now, the onus isshifted to the defendants to prove that:1)they are the owners of the properties and 2)conversely they perfected the title to the suit schedule property by way of adverse possession.26. It is an admitted fact that the defendants did not let inany evidence to prove that they are the owners of the suit scheduleproperties as contended by them in the written statement. Once thedefendants were not able to establish their lawful title to thesuit schedule house, now, the onus is heavily on the shoulders ofthe defendants to prove that how they perfected the title to thesuit properties by way of adverse possession.

It is settled lawthat the person who pleads adverse possession has to prove the samewith unimpeachable and cogent evidence. Before proceeding to findout whether the defendants have proved their pleadings of adversepossession, let me consider the judgment cited by both the learnedSenior counsel in this regard.27. In A.I.R. 2008(41) SCW 6996 (cited supra), the Hon'bleSupreme Court after discussing the question of adverse possession https://hcservices.ecourts.gov.in/hcservices/ that was pleaded in that case and after referring to a number ofprevious judgments, observed as under: "32. Reverting to the facts of this case, admittedly, the appellants at no stage had set upthe case of adverse possession, there was nopleading to that effect, no issues were framed, buteven then the trial court decreed the suit on theground of adverse possession. The trial courtjudgment being erroneous and unsustainable was setaside by the first appellate Court.

Both the firstappellate Court and the High Courts havecategorically held that the appellant has miserablyfailed to establish title to the suit land, therefore, he is not entitled to the ownership. Weendorse the findings of the first appellate Courtupheld by the High Court.34. Before parting with this case, we deem itappropriate to observe that the law of adversepossession which ousts an owner on the basis ofinaction within limitation is irrational illogicaland wholly disproportionate. The law as it existsis extremely harsh for the true owner and awindfall for a dishonest person who had illegallytaken possession of the property of the true owner. The law ought not to benefit a person who in aclandestine manner takes possession of the propertyof the owner in contravention of law. This insubstance would mean that the law gives seal ofapproval to the illegal action or activities of arank trespasser or who had wrongfully takenpossession of the property of the true owner.

"28. In the judgments referred to by the Hon'ble Supreme Courtin the above decision, the following principles of law have emergedwith regard to a plea of adverse possession.a)A plea of adverse possession is not a pure question of law, but, a blended one of fact and law.b)A person who claims adverse possession should show:i) On what date he came into possession ? ii) What was the nature of his possession ? iii) Whether the factum of possession is known to the otherparty ?iv) How long his possession has continued ?v) His possession was open and undisturbed ?c)A person pleading adverse possession has no equities in hisfavour as he is trying to defeat the rights of the true owner. https://hcservices.ecourts.gov.in/hcservices/ d)It is settled rule of law that between co-heirs, there mustbe evidence of open assertion of hostile title coupled withexclusive possession and enjoyment by one of them to theknowledge of the other so as to constitute ouster.e)Adverse possession must be adequate in continuity, inpublicity and extent and a plea is required atleast to showwhen possession became adverse so that the starting point oflimitation against the party affected can be found.f)Long possession is not necessarily adverse possession.g)For the purpose of proving adverse possession, the defendantmust also prove animous possidendi.h)In the eye of law, a owner would be deemed to be in possessionof a property so long as there is no intrusion.i)Adverse possession is a hostile possession by clearlyasserting hostile title in denial of the title of the trueowner.j)In terms of article 65, the starting point of limitation doesnot commence from the date when the right of ownership arisesto the plaintiff, but, commences from the date when thedefendant's possession becomes adverse.k)Adverse possession is based on the theory that the owner hasabandoned the property to the adverse possessor on theacquiescence of the owner to the hostile acts and claims ofthe person in possession.29.

Citing the above principles, the learned Senior counselfor the appellants submits that if these settled principles withregard to the plea of adverse possession are applied to the factsof the present case, it will clearly establish that the defendantshave miserably failed to establish their case that they perfectedtheir title to the suit house property by way of adversepossession.30. In A.I.R.(30) 1943 MAD 425 (cited supra), a Division Benchof this Court observed as under: "The Court was not considering the questionnow under discussion, but the concluding portionsof the judgment in the Full Bench case when readtogether indicate that if a suit is filed beforethe 12 years period of limitation has expired the Court is entitled to decalre the rights of theparties at the date of the suit. In 11 M.L.. 344,A prescriptive right had been acquired before the https://hcservices.ecourts.gov.in/hcservices/ institution of the suit which was also the case in49 M.L.J. 656.

A decree-holder whose attachmenthas been raised is given by the statute the rightto institute a suit for a declaration must haveregard to the rights of the parties at the date ofthe institution of the suit. It would be anegation of the right given by O.21 R.63 to holdthat when the suit has been filed in time, theperson wrongly in possession of the property canget a title by adverse possession after theinstitution of the suit. In our opinion, theinstitution of the suit arrests the running oftime in favour of defendant 1. This means that theplaintiff-appellants are entitled to a declarationof their right to attach seven-eights of theproperty in suit. "31. In 1938(1) M.L.J. 190 (cited supra), a Division Bench ofthis Court held as under: "On both these points it seems to us that theplaintiff is bound to succeed. First turning tothe question of adverse possession, the actsrelied upon are these: that an Arabic school wasbeing conducted in a shed constructed on the site, that lectures were being delivered there and thatmeetings were being held.

There can be no doubton the evidence, that such sheds as there were, were temporary ones built of thatch. Grantingthat these acts have been fully prove, do theyconstitute evidence of adverse possession ? Thepossession of the wrongdoer to avail him must beadverse in its character, importing a denial ofthe owner's title in the property claimed. It issettled law, that possession cannot be adverseunless it is held in such circumstances as arecapable in their nature of notifying mankind thatthe party is on the land, claiming it as his own, openly and exclusively (see Rustomji on Limitation, 1922 Ed., page 604). There ought tobe nothing equivocal in a possession which isrelied upon as a bar (ibid., page 600).Possession cannot be adverse unless the owner isin denial of his title excluded from enjoyment. In other words, the test is, are the acts of theperson in possession such, as to be irreconcilablewith the rights of the true owner ? Possession tobe adverse must be notorious, exclusive andhostile and we agree with the Subordinate Judgethat the acts relied on here are not sufficient toconstitute adverse possession. https://hcservices.ecourts.gov.in/hcservices/ Then as regards the second point, namelywhether the plaintiff has been in possessionwithin 12 years of the suit, the question is, whatis the nature of the possession of which thisparticular property is capable ? The kind ofpossession which will be sufficient in one may notbe sufficient in another.

In the case of vacantland such as the suit plot, the same kind ofpossession cannot be expected as in the case of anoccupied land or building. Even apart from someslight acts of possession follows title wouldapply to a case of this sort. The owner would beconsidered as being in possession so long as therewas no effective intrusion. As held by the PrivyCouncil in Kuthali Moothavar V. PeringatiKunharankutty: "when a person establishes his title to landand proves that he has been exercising during thecurrency of his title various acts of possessionthen the quality of those acts, even though theymight have failed to constitute adverse possessionagainst another, may abundantly sufficient todestroy that adequacy and interrupt thatexclusiveness and continuity which is requiredfrom an person challenging by possession therightful title. "These observations apply to the facts hereand we are clearly satisfied that the plaintiffwas in possession within 12 years of the action.

"32. In A.I.R. 1965 AP 163 (cited supra), the Andhra PradeshHigh Court observed as under: "(13) As was pointed out by the PrivyCouncil, in Sarat Chunder De. V. Gopal ChunderLaha, ILR 20 Cal 296 (PC), the law enacted inS.115 of the Evidence Act, relating to estoppel asa consequence of declaration, act or omissioncausing another's belief and action thereon, doesnot differ from the English law on that subject. The main question, in determining whether estoppelhas been occasioned, is whether the representationhas caused the person to whom it has been made toact on the faith of it. The existence of estoppeldoes not depend on the motiveor on the knowledgeof the matter, on the part of the person makingthe representation. It is not essential that theintention of the person whose declaration, act oromission has induced another to act, or to abstainfrom acting, should have been fraudulent, or that https://hcservices.ecourts.gov.in/hcservices/ he should not have been under a mistake, ormisapprehension.

Thus the real question iswhether the representation has caused the personto whom it has been made, to act on the faith ofit. The word 'representation covers declaration, act or omissions, which may be express or impliedand may be made in any form. That being the scopeand effect of section 115 of the Evidence Act, Ihave no hesitation in holding that on the findingsrecorded in this case, the plaintiffs are estoppedfrom questioning the right of the first defendantto the suit site and from seeking to evict her. Not merely had Rao and the first plaitnif stood bybut Rao had actively encouraged and had evenassisted the first defendant in constructing thehouse. In this situation the present case fallsfairly and squarely within the ambit of section115 of the Evidence Act. (14) Learned advocate for the appellants has, however, relied on the privy counsel ruling inG.H.C. Ariff V. Jadunath Majumdar, ILR 58 Cal.1235: (AIR 1931 PC 79) as negativing theapplication of the rule of estoppel to the factssimilar to the facts found in this case.

Acareful reading of the judgment of the judicialCommittee, however, shows that the facts in thatcase were wholly dissimilar to the facts foundhere. Indeed the observations of the Lordships inthe course of their judgment do not in the leastsupport of the learned advocate's contention. Thefacts in that case were as follows: In 1913, Ariff(the appellant), having verbally agreed with Majumdar (the respondent) to grant him a permanentlease of a plot of land at Rs.80/- per month, lethim into possession. Shortly afterwards, therespondent, with the knowledge and approval of theappellant, erected structures on the land at acost of over Rs.10,000/-. In December 1918, theappellant definitely refused to grant therespondent the agreed lease, and, in 1923 sued toeject him after a month's notice to quit. Underthe Indian Limitation Act, 1908, Schedule I, Art.113, the respondent's right to sue for specificperformance of the verbal agreement was barred in December 1921.On those facts, their Lordships held thatthere being no lease made by a registereddocument, as required by Section 107 of the Transfer of Property Act, 1882, the appellant wasentitled to eject the respondent, with liberty tohimto apply to remove the structures; had therespondent's right to sue for specific performance https://hcservices.ecourts.gov.in/hcservices/ not been barred, he could have claimed theexecution of an instrument, which he could haveregistered.

Their Lordships then went on to saythat the English doctrine of equitable estoppeldid not arise in the case because the onlycontract to which the erection of the structurescould be referred, had since ceased to beenforceable and there was no representation offact giving rise to an estoppel by Sec.115 of the Evidence Act. In the course of the judgment, their Lordships drew pointed attention to the factthat the right of the respondent depended on averbal agreement for the grant of a perpetuallease. There was no representation by theappellant as would give rise to a plea ofestoppel. At page 1243 of the report, (of ILR Cal.):(at P.81 of AIR), their Lordships observed: "This is no case of money being expended bythe respondent in any mistaken belief as to hislegal rights, or of the appellant knowing of theexistence of any such mistaken belief, orencouraging the respondent by abstaining fromasserting a right inconsistent with the acts ofthe respondent.

Observe the true facts. In 1913,the respondent obtained a verbal agreement for thegrant of a perpetual lease, under which agreementhe could have sued for and obtained and registeredan instrument creating his title to enjoy theproperty in perpetuity. That agreement continuedto be enforceable against the appellant until themonth of December 1921. The structures wereerected on the land many years before the date, and they were erected not in any mistaken beliefby the respondent of his rights in regard to theland, but in assertion of rights which hecorrectly believed to be his, not by reason of anyencouragement or abstention on the part of theappellant, but by reason of the agreement which hewas then entitled to enforce against theappellant. "(15) At p.1246 (of ILR Cal): (at pp.82-83 ofAIR) their Lordships referred to the well knowndictum of Lord Kingsdown in Ramsden V. Dyson(1866)1 HL 129 at pp.

170, 171;"If a man, under a verbal agreement with alandlord for a certain interest in land, or , whatamounts to the same thing, under an expectation, created or encouraged by the landlord, that heshall have a certain interest, takes possession ofsuch land, with the consent of the landlord, andupon the faith of such promise or expectation, https://hcservices.ecourts.gov.in/hcservices/ with the knowledge of the landlord, and withoutobjection by him, lays out money upon the land, acourt of equity will compel the landlord, to giveeffect to such promise or expectation. "Their Lordships proceeded to observe withreference to the above passage, thus: "Even if Lord Kingsdown's language wasintended to cover something beyond the equitabledoctrine of part performance in relation to the Statute of Frauds, and was intended to refer tothe circumstances in which a court of equity willenforce a title to land against the person who atlaw is the owner thereof, the title must, nevertheless, in their Lordships' view, be basedeither upon contract express or implied, or uponsome statement of fact grounding an estoppel.

"Then the judgment proceeds to apply the aboveprinciples to the acts of that case: "Their Lordships have already indicated theiropinion that no act was done by the respondentotherwise than under the verbal contract which wasthen enforceable at this suit. No circumstancesexist from which any other contract by theappellant can be implied; and as to estoppel thereis no trace of any statement by him upon which anyestoppel can be grounded. In truth, this case, when the true facts areappreciated, is simple enough. The acts of therespondent are all referable to a verbal contract, which was enforceable against the appellant at thetime when the respondent's expenditure wasincurred, and for long afterwards. Unfortunately, for the respondent, he allowed his right toenforce his contract to become barred, with theresult that he can only resist the appellant'sclaim to possession by seeking to establish atitle, the acquisition of which is forbidden bythe statute.

The statute disables him fromcontesting the appellant's right to possession. "Then their Lordships at p.1249 of the report (ofILR Cal.)(at p.84 of AIR) concluded: "Their Lordships cannot find that the factsof this case raise any equity in favour of therespondent. Even if any such equity wasestablished, their Lordships are of opinion thatit could not operate to nullify the provisions ofthe Indian code relating to property and transferof property. "(16) It will be seen that the reasoning oftheir Lordships in the above case cannot apply tothe facts as found by the lower appellate court inthe present case. Here there is no question of https://hcservices.ecourts.gov.in/hcservices/ any oral contract which was enforceable by thefirst defendant. The lower appellate Court hasfound that the site belonged to Rao, the husbandof the first plaintiff, and that he had, byencouragement and abstention, induced the firstdefendant to construct the house.

For aconsiderable time thereafter, no one everquestioned the right of the first defendant to thesuit. Subsequently, after the death of herhusband, the first plaintiff, actuated by motiveswhich are easily discernible, came forward with afalse claim not only to the site but also to thesuperstructure. The conduct which would equallyoccasion estoppel against the first plaintiff, asshe is a representative-in-estate of her deceasedhusband. "33. In 1975(2) M.L.J. 482 (cited supra), the learned SingleJudge of this Court held as under: "12. A Bench of the Allahabad High CourtinLala Nand Lal V. Sundar Lal and others pointedout: "The effect of the institution of a suitwithin limitation is to destroy previouslyexisting adverse possession with effect from thedate of institution or at any rate to suspend itfrom that date until the suit is finally decidedone way or the other. "I have already pointed out that the adversepossession, if any, of the appellant hereincommenced only on or after 2nd March, 1950, whenshe purported to purchase, the property from oneRajagopal Pillai under Exhibits B-1 and C.S.No.56of 1951 (which was later transferred to the CityCivil Court, Madras and numbered as O.S.No.1162of 1955) was instituted the very next year andthe judgment in that suit was pronounced on 26thJuly, 1966 as evidenced by Exhibit A-2.Consequently, the period from the institution ofthe suit upto the date of the judgment and decreehas necessarily to be ignored in the language ofthis Court in Ratna Bai alias Hira Bai and othersV. The Official Assignee of Madras and another, referred to above or the institution of the suithas destroyed the previously existing adversepossession or suspended it from that date; in thelanguage of the Allahabad High Court in Lala NandLal Vs Sunder lal and others, referred toalready, and as possession was taken by the Government pursuant to the acquisition of the https://hcservices.ecourts.gov.in/hcservices/ land under the provisions of the Land AcquisitionAct only in 1966, the appellant cannot be held tohave prescribed title to the property by adversepossession.13.

The learned counsel for the appellantplaced great reliance on a judgment of the BombayHigh Court in Dagadabai Fakirmahamad Vs. SakharamGavaji and others. The head-note of the decisionstate: "Whether a decree for possession in favourof the plaintiff does or does not interruptadverse possession is purely a question of factto be decided on the circumstances of each case. If the decree, does not in fact result in thedefendant giving up possession of the property orhaving possession of the property taken from him, it cannot be said that it has interruptedpossession, nor can it in law affect the natureof the possession, unless it does so in fact; Adecree for possession followed by an unsuccessfulexecution cannot be deemed as a matter of law tohave the effect of either interrupting possessionor altering its character. "With regard to the facts, the head-note itselfpoints out: " The plaintiff mortgaged certain lands andthe mortgage obtained a decree which providedthat the mortgagee should have possession of thelands for two years and the possession shouldthereafter go to the plaintiff.

The mortgageeattempted to execute the decree but could not getpossession from the defendants who were inpossession as heirs of the husband of theplaintiff. The possession was never in factobtained by anybody. The plaintiff then broughta suit against the defendants claiming as an heirof her husband to eject the defendants. Thedefendants set up adverse possession. Thequestion was whether possession was interruptedby the mortgage decree: Held, that the possession of the defendant must, on the facts, be deemed to have been adversethroughout and could not be said to have beeninterrupted by the mortgage decree. "I am of the opinion that on the facts this caseis distinguishable. Apart from that, the HighCourt of Bombay did not consider the distinctionbetween a suit for declaration coupled with aprayer for recovery of possession, which was https://hcservices.ecourts.gov.in/hcservices/ subsequently decreed, but instituted at the timewhen the defendant in possession had notperfected his title by adverse possession.

Inview of this, I am unable to hold that the saiddecision is helpful to the appellant in thepresent case. In any event on the basis of thedecisions referred to above, if the time duringwhich the suit instituted by the first respondentherein for declaration of title and recovery ofpossession was pending is excluded, the questionof the appellant acquiring title by adversepossession does not arise. "34. In A.I.R. 1995 SC 73 (cited supra), the Hon'ble SupremeCourt held as under: "5. As regards adverse possession, it wasnot disputed even by the trial court that theappellant entered into possession over the landin dispute under a licence from the respondentfor purposes of brick-kiln. The possession thusinitially being permissive, the burden was heavyon the appellant to establish that it becameadverse. A possession of a co-owner or of alicensee or of an agent or a permissivepossession to become adverse must be establishedby cogent and convincing evidence to show hostileanimus and possession adverse to the knowledge ofreal owner.

Mere possession for howsoever lengthof time does not result in converting thepermissive possession into adverse possession. Apart from it, the appellate court has gone intodetail and after considering the evidence onrecord found it as a fact that the possession ofthe appellant was not adverse. The learnedcounsel, despite strenuous argument, could notdemolish the finding of adverse possession. Attempt was made to rely on the evidence led onbehalf of the parties and the evidence of the Commissioner who prepared the map. We areafraid that such an exercise is not permissibleeven in second appeal, what to say of thejurisdiction exercised by this Court under Article 136 of the Constitution. Further, we donot find that the appellant has suffered anyinjustice which requires to be remedied by this Court. "35. In A.I.R. 1995 (SC) 895 (cited supra), the Hon'ble SupremeCourt observed as under: "12. Article 65 of the Schedule to the https://hcservices.ecourts.gov.in/hcservices/ Limitation Act, 1963 prescribes that forpossession of immovable property or any interesttherein based on title, the limitation of 12years begins to run from the date the defendant’sinterest becomes adverse to the plaintiff.

Adverse possession means a hostile assertion i.e.a possession which is expressly or impliedly indenial of title of the true owner. Under Article65, burden is on the defendants to proveaffirmatively. A person who bases his title onadverse possession must show by clear andunequivocal evidence i.e. possession was hostileto the real owner and amounted to a denial of histitle to the property claimed. In decidingwhether the acts, alleged by a person, constituteadverse possession, regard must be had to theanimus of the person doing those acts which mustbe ascertained from the facts and circumstancesof each case. The person who bases his title onadverse possession, therefore, must show by clearand unequivocal evidence i.e. possession washostile to the real owner and amounted to adenial of his title to the property claimed.13. Where possession can be referred to alawful title, it will not be considered to beadverse.

The reason being that a person whosepossession can be referred to a lawful title willnot be permitted to show that his possession washostile to another’s title. One who holdspossession on behalf of another, does not by meredenial of that other’s title make his possessionadverse so as to give himself the benefit of thestatute of limitation. Therefore, a person whoenters into possession having a lawful title, cannot divest another of that title by pretendingthat he had no title at all.14. In the case of a Hindu joint family, there is a community of interest and unity ofpossession among all the members of the jointfamily and every coparcener is entitled to jointpossession and enjoyment of the coparcenaryproperty. The mere fact that one of thecoparceners is not in joint possession does notmean that he has been ousted. The possession ofthe family property by a member of the familycannot be adverse to the other members but mustbe held to be on behalf of himself and othermembers.

The possession of one, therefore, is thepossession of all. The burden lies heavily on themember setting up adverse possession to proveadverse character of his possession by https://hcservices.ecourts.gov.in/hcservices/ establishing affirmatively that to the knowledgeof other member he asserted his exclusive titleand the other members were completely excludedfrom enjoying the property and that such adversepossession had continued for the statutoryperiod. Mutation in the name of the elder brotherof the family for the collection of the rent andrevenue does not prove hostile act against theother. The right of the plaintiff to file suitfor partition had arisen after the Act has comeinto force and re-grant was made by the Collectorunder sub-section (1) of Section 5. Thedefendant, therefore, must plead and prove thatafter the re-grant, he asserted his own exclusiveright, title and interest to the plaint scheduleproperty to the knowledge of the plaintiff andthe latter acquiesced to such a hostile exerciseof the right and allowed the defendant to remainin continuous possession and enjoyment of theproperty in assertion of that hostile titleduring the entire statutory period of 12 yearswithout any let and hindrance and the plaintiffstood thereby.

"36. In A.I.R. 1980 GAU 70 (cited supra), a Division Bench ofthe Gujarat High Court observed as under: "10. In our view, on the basis of the factsfound by the Court below, which we accept, wehave no hesitation in coming to the conclusionthat the conduct of late Thangphunga was suchthat he acquiesced in the ownership of late R.D.Leta in the suit premises. Though variousnotorious acts were done in the suit premisesbetween the plaintiff and the near relatives oflate R.D. Leta, as discussed above, whileThangphunga was alive, Thangphunga remainedstood by. In such a case, the doctrine ofestoppel by acquiescence comes into play. Theproper sense of the word 'acquiescence' is thatif a party having a right stands by and seesanother dealing with the property in a mannerinconsistent with that right and takes noobjection while the act is in progress, hecannot afterwards complain. "37. Citing the above judgments, the learned Senior counsel forthe respondents submits that the plea of adverse possession hasbeen adequately proved by the defendants and therefore, the wellconsidered judgment of the trial court need not be interfered with.38.

After going through the entire evidence and the pleadings https://hcservices.ecourts.gov.in/hcservices/ of the present case, I am of the considered view that thedefendants have miserably failed to prove their case of perfectionof their title to the suit property by adverse possession.39. It is necessary to refer to the pleadings and the evidencewith regard to their claim of adverse possession. A perusal of theentire written statement filed on behalf of the third defendant, which was adopted by the defendants 2 and 4 to 7 would only showthat the necessary and vital pleadings are obviously missing in thewritten statement with regard to their claim of perfecting theirtitle by adverse possession. It is useful to extract the followingportion in the written statement wherein the plea of adversepossession was raised by the defendants: "5. The allegation in para 6 is not correct. The first defendant was born and brought up andlived in the suit house as owner.

He had soldthe property under a registered sale deed dated5.7.1969 to his wife Sundarammal. She hadconstructed house in the said portion. Eversince then she was alone in possession andenjoyment of the suit house and after her deathher legal heirs are in possession and enjoymentof the suit property in their own rights. Byreason of her open, long, continuous, uninterrupted and exclusive possession in her ownright for over the statutory period she hadperfected her title by adverse possession in anyevent. "40. From the above, it is very clear that the necessarypleadings like on what date the first defendant's wife came intopossession, when possession became adverse, when she perfected hertitle by adverse possession, when she pleaded hostile title to theknowledge of the true owner, etc. were not at all pleaded in thewritten statement and in such circumstances, this court will notaccept the case of the defendants that they became the owners ofthe suit schedule properties by way of adverse possession.41.

That apart, D.W.1 in his evidence has clearly stated thatthey are in possession and enjoyment of the suit property as ownersand in fact, he accepted in the cross examination that the propertyis a hereditary property and they are not claiming any possessoryright over the suit schedule property. If that being so, asrightly pointed out by the learned Senior counsel for theappellants, the defendants are blowing hot and cold in their pleaof adverse possession and they have not properly pleaded the pleaof adverse possession which was also not backed by strong andunimpeachable evidence. Therefore, I am of the considered viewthat the trial court has committed an error of law in holding thatthe defendants proved their case of adverse possession. https://hcservices.ecourts.gov.in/hcservices/