High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :20.11.2007CORAMTHE HON'BLE Mr. JUSTICE K.VENKATARAMANSecond Appeal No.1383 of 1995 and C.M.P.No.6810 of 19991.Gopal2.Minor Ramachandran3.Minor Ramesh... Appellants/Plaintiffs( Appellants 2 and 3 being minorsare duly represented by theirmother and natural guardianSaroja). Vs.1.Ema Gounder2.Patcha Gounder3.Duraiswamy Gounder4.Ramaswamy Gounder... Respondents/DefendantsSecond appeal filed against the Judgment and decreedated 10.04.1995 made in A.S.No.83 of 1994 on the file of SubJudge, Tiruvannamalai, reversing the judgment and decree dated29.10.1993 made in O.S.No.200 of 1986 on the file of AdditionalDistrict Munsif, Tiruvannamalai.For appellants : Mr.V.AyyaduraiFor respondents : Mr.M.N.Muthukumaran J U D G M E N TThe plaintiffs in O.S.No.200 of 1986 on the file of theAdditional District Munsif, Tiruvannamalai, are the appellants inthe second appeal. The defendants in the said suit are therespondents herein. The parties are arrayed in the same positionas they have been arrayed before the trial Court.2. The case of the plaintiffs in nutshell is asfollows:- Suit 'A' schedule property originally belonged to oneRamasamy Naidu, s/o.Govinda Naidu. Ramasamy Naidu sold the suitproperty by a registered sale deed dated 03.05.1943 to the first https://hcservices.ecourts.gov.in/hcservices/ plaintiff's father viz. Ellappa Gounder. Suit 'B' scheduleproperty absolutely belongs to the defendants. The said propertyhas been purchased by the defendants' grand father viz. PachayappaGounder under a registered sale deed dated 06.04.1925. Thus, the'A' schedule property was purchased by the first plaintiff'sfather Ellappa Gounder and 'B' schedule property was purchased bythe defendants' grandfather Pachayappa Gounder. Even though suit'A' schedule property was purchased by the first plaintiff'sfather, by mistake, he was enjoying suit 'B' schedule property.Likewise, even though the defendants' grandfather purchased suit'B' schedule property, by mistake he was enjoying suit 'A'schedule property. The mistake continued thereafter also and theplaintiffs and the defendants are mistakenly enjoying theirrespective properties. Further, the first plaintiff executed asettlement deed in favour of the sons viz., the second and thirdplaintiffs on 20.12.1982 and the mother of the second and thirdplaintiffs has been appointed as guardian for the said property.Thus, the first plaintiff is the owners of 1.18 cents andplaintiffs 2 and 3 by virtue of the settlement deed became theowners of o.22 cents. When the mistake came to his knowledge, thefirst plaintiff caused notice to the defendants and since thedefendants did not accede to his request, the suit referred toabove has been filed.3. The first defendant filed a written statement, whichhas been adopted by defendants 2 to 4, wherein the following factshave been set out:- The first defendant's father PachayappaGounder was the owner of suit 'A' schedule property and till hisdeath, he was in possession and enjoyment of the same. Since thefirst defendant and previously his father were enjoying theproperty time immemorial in respect of suit 'A' schedule property,the first defendant along with his brothers have partitioned suit'A' schedule property and other properties. In the saidpartition, the suit 'A' schedule property came to the share of thefirst defendant. Thus, the defendants sought for the dismissal ofthe suit.4. Before the trial Court, the first plaintiff examinedhimself as P.W.1 and one Rama Gounder has been examined as P.W.2.Exs.A.1 to A.8 have been filed and marked on the side of theplaintiffs. The first defendant examined himself as D.W.1 and oneRamalingam has been examined as D.W.2. Exs.B.1 to B.16 have beenfiled and marked on the side of the defendants.5. The learned Additional District Munsif,Tiruvannamalai, after considering the evidence adduced on the sideof the plaintiffs and the defendants and also relying on thedocuments filed by both sides, decreed the suit by its judgmentand decree dated 29.10.1993.6. Aggrieved over the said judgment and decree, thedefendants have preferred an appeal before the Subordinate Judge, https://hcservices.ecourts.gov.in/hcservices/ Tiruvannamalai in A.S.No.83 of 1994. The learned appellate Judgereversing the said finding rendered by the learned AdditionalDistrict Munsif, Tiruvannamalai, allowed the appeal filed by thedefendants by judgment and decree dated 10.04.1995. Thus, theplaintiffs have come forward with the present second appeal.7. The questions of law that were framed in the secondappeal are as follows:-(i) Whether the finding of the lowerappellate Court that knowledge of real owner isimmaterial for claiming adverse possession wouldconstitute error of law which warrants interference inthe second appeal ?(ii) Whether the lower appellate Court isright in applying a dictum laid down in a case ofeasementary right to the facts of this case ?(iii) Whether the lower appellate Court isright in affirming the claim for adverse possessionwithout any documentary evidence to show the continuouspossession ?8. Mr.V.Ayyadurai, learned counsel appearing for theappellants / plaintiffs contended that though suit 'A' scheduleproperty has been purchased by the first plaintiff's father oneEllappa Gounder by a registered sale deed dated 03.05.1943 fromone Ramasamy and that the defendants' grandfather one PachayappaGounder has purchased the suit 'B' schedule property by aregistered sale deed dated 06.04.1925, both of them by mistake,were enjoying different properties viz. the first plaintiff'sfather was enjoying suit 'B' schedule property and the defendants'grandfather was enjoying suit 'A' schedule property. When themistake came to the knowledge of the plaintiffs, they caused legalnotice to the defendants. In spite of the fact, the defendantsdid not accede to the request that has been made by the plaintiffsand hence the plaintiffs were constrained to file the suit fordeclaration and for possession. The learned trial Judge,considering all the aspects of the matter, decreed the suit filedby the plaintiffs. However, the learned appellate Judge, withoutconsidering the relevant materials, erroneously came to theconclusion that the defendants have perfected title by adversepossession. According to the learned counsel appearing for theappellants, unless and otherwise it is proved by the defendantsthat the defendants and before them their predecessors in titlewere enjoying suit 'A' schedule property with the knowledge of theplaintiffs or their predecessors knowingly well that the saidproperty belongs to them, the defendants cannot plead that theyhave perfected title by adverse possession. Learned counselappearing for the appellants further submitted that when theplaintiffs are not aware that they are the owners of suit 'A' https://hcservices.ecourts.gov.in/hcservices/ schedule property and are enjoying the suit 'B' schedule property,likewise the defendants are not aware that they are the owners ofsuit 'B' schedule property and are enjoying suit 'A' scheduleproperty, the claim of adverse possession does not arise at all.9. Per contra, Mr.M.N.Muthukumaran, learned counselappearing for the respondents / defendants contended that thedefendants have perfected title by adverse possession because thedefendants and their predecessors were enjoying suit 'A' scheduleproperty from time immemorial with the knowledge of the plaintiffsand their predecessors and hence, even though the grandfather ofthe defendants purchased suit 'B' schedule property, he enjoyed'A' schedule property and in view of the continuous possession,the defendants have perfected title by adverse possession.10. I have heard Mr.V.Ayyadurai, learned counselappearing for the appellants and Mr.N.M.Muthukumaran, learnedcounsel appearing for the respondents.11. Survey No.60/6B measuring about 1.40 cents atMekkalur village is the suit 'A' schedule property and SurveyNo.60/6A measuring about 1.50 cents in the same village is thesuit 'B' schedule property. Suit 'A' schedule property admittedlyoriginally belonged to one Subbu Gounder, who has sold the same toone Ramasamy Naidu under Ex.A.1. The first plaintiff's father oneEllappa Gounder has purchased suit 'A' schedule property from thesaid Ramasamy Gounder under Ex.A.2. The said purchase has beenmade on 03.05.1943. Likewise, suit 'B' schedule property waspurchased by the defendants' grand father viz. Pachayappa Gounderunder a registered sale deed dated 06.04.1925, which has beenmarked as Ex.A.6. Thus, suit 'A' schedule property was purchasedby the first plaintiff's father Ellappa Gounder and suit 'B'schedule property was purchased by the defendants' grand fatherPachayappa Gounder. This fact has been admitted by both sides.Further, even though the first plaintiff's father purchased suit'A' schedule property, he was enjoying suit 'B' schedule property.Likewise, even though Pachayappa Gounder has purchased suit 'B'schedule property, he was in possession and enjoyment of suit 'A'schedule property. This fact is also admitted by both theplaintiffs and the defendants.12. It is the case of the plaintiffs that as soon asthe mistake came to their knowledge, Ex.A.7 notice has been causedby the plaintiffs to the defendants. Ex.A.8 is the reply given bythe defendants. Even the first defendant, who has been examinedas D.W.1 admitted in his evidence that the defendants are not inpossession and enjoyment of the suit 'A' schedule propertyknowingly well that it belongs to the plaintiffs. It is the caseof the first defendant that the defendants and their predecessorswere in possession and enjoyment of suit 'A' schedule property andthey perfected title by adverse possessions. The defendants can https://hcservices.ecourts.gov.in/hcservices/ plead and establish adverse possession provided if their case isthat they and their predecessors are enjoying the suit 'A'schedule property with the knowledge of the plaintiffs and theirpredecessors and that the plaintiffs and their predecessors areaware that the property belongs to them. If it is the case of thedefendants that the plaintiffs are aware that suit 'A' scheduleproperty belongs to them and in spite of the same, they allowedthe defendants and their predecessors to enjoy the same, then itcould be said that the defendants and their predecessors haveperfected title by adverse possession. But, that is not the caseof the defendants and it is not even the case of D.W.1, the firstdefendant in his evidence before the trial Court. The trial Courthas considered the above said aspect and decreed the suit filed bythe plaintiffs. However, on an erroneous view, the firstappellate Court has held that the defendants have perfected titleby adverse possession. As discussed above, the claim of adversepossession can be pleaded and established by the defendantsprovided if they plead that they are enjoying suit 'A' scheduleproperty with the knowledge of the plaintiffs that it belongs tothem. But, however, it is not the case of the defendants eitherin the written statement or in the evidence. Unfortunately, thefirst appellate Court has not considered this aspect.13. The learned counsel appearing for the appellantsthough produced number of authorities, I am inclined to consideronly two judgments that have been cited by him. In the decisionreported in the case of P.T.Munichikkanna Reddy vs. Revamma –(2007) 4 M.L.J.912 (SC), while considering the case of adversepossession, Their Lordships of the Supreme Court have held in para18 of the said judgment as follows:-" Thus, there must be intention to dispossess.And it needs to be open and hostile enough to bring thesame to the knowledge and plaintiff has an opportunityto object. After all adverse possession right is not asubstantive right but a result of the waiving (wilful)or omission (negligent or otherwise) of right to defendor care for the integrity of property on the part ofthe paper owner of the land. Adverse possessionstatutes, like other statutes of limitation, rest on apublic policy that do not promote litigation and aimsat the repose of conditions that the parties havesuffered to remain unquestioned long enough to indicatetheir acquiescence." 14. Yet another decision that has been cited by thelearned counsel appearing for the appellants is reported in (2007)4 M.L.J. 1076 (SC) – Binapani Paul vs. Pratima Ghose. In thesaid decision, the Apex Court has relied on the judgment reportedin (2006) 7 SCC 570 – T.Anjanappa and others vs. Somalingappa and https://hcservices.ecourts.gov.in/hcservices/ another and paragraphs 12 and 21 of the said judgment are referredto here under:-" 12. The concept of adverse possessioncontemplates a hostile possession i.e., a possessionwhich is expressly or impliedly in denial of the titleof the true owner. Possession to be adverse must bepossession by a person who does not acknowledge theother's rights but denies them. The principle of lawis firmly established that a person who bases his titleon adverse possession must show by clear andunequivocal evidence that his possession was hostile tothe real owner and amounted to denial of his title tothe property claimed. For deciding whether the allegedacts of a person constituted adverse possession, theanimus of the person doing those acts is the mostcrucial factor. Adverse possession is commenced inwrong and is aimed against right. A person is said tohold the property adversely to the real owner when thatperson in denial of the owner's right excluded him fromthe enjoyment of his property.21. The High Court has erred in holding thateven if the defendants claim adverse possession, theydo not have to prove who is the true owner and even ifthey had believed that the Government was the trueowner and not the plaintiffs, the same wasinconsequential. Obviously, the requirements ofproving adverse possession have not been established.If the defendants are not sure who is the true ownerthe question of their being in hostile possession andthe question of denying title of the true owner do notarise ..."15. In the decision (2007) 6 SCC page 59 cited above,Their Lordships of the Supreme Court have clearly held that theadverse possession in one sense is based on the theory ofpresumption that the owner has obtained the property to theadverse possessor on the acquiescence of the owner to the hostileacts and claims of the person in possession. In the present caseon hand, as discussed earlier, it is not the case of thedefendants that they are enjoying suit 'A' schedule property withthe knowledge of the plaintiffs, who are aware that it belongs tothem. Thus, considering the totality of the circumstances andalso considering the evidence both oral and documentary, I amconstrained to hold that the plaintiffs have established theircase and the trial Court has rightly decreed the suit and theappellate Court failed to take note of the law settled on theissue of adverse possession. Thus, the questions of law framed inthe second appeal are answered in favour of the appellants.Hence, I am constrained to set aside the judgment and decree of https://hcservices.ecourts.gov.in/hcservices/ the first appellate Court made in A.S.No.83 of 1994 dated10.04.1995.16. In the result, the second appeal stands allowed.However, there is no order as to costs. Consequently, connectedpetition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsbiTo 1.The Subordinate Judge, Tiruvannamalai.2.The Additional District Munsif, Tiruvannamalai (with records).3.The Record Keeper, V.R.Records, High Court, Madras.one cc to Mr.V.Ayyadurai, advocate SR.No.68368one cc to Mr.N.Muthukumaran, advocate SR.No.68848S.A.NO.1383 OF 1995sky/18/12