T.K.Pappannan v. N.Nagaraj & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.06.2011Coram:THE HONOURABLE MR.JUSTICE G. RAJASURIAS.A.No.784 of 2011andM.P.No.1 of 2011T.K.Pappannan... Appellant/ Plaintiff vs.1. N.Nagaraj2. N.Masammal alias Masakkal... Respondents/ DefendantsThis Second Appeal is focussed as against the judgment anddecree dated 7.8.2008 passed by the Principal Subordinate Judge,Coimbatore, in A.S.No.17 of 2008 confirming the judgment and decreedated 19.12.2005 passed by the District Munsif, Mettupalayam, inO.S.No.59 of 2004.For appellant: Mr.V.NicholasJUDGMENTThis Second appeal is focussed by the defendants, animadvertingupon the judgment and decree dated 7.8.2008 passed by the PrincipalSubordinate Judge, Coimbatore, in A.S.No.17 of 2008 confirming thejudgment and decree dated 19.12.2005 passed by the District Munsif,Mettupalayam, in O.S.No.59 of 2004, which was filed for declarationof title and for prohibitory and mandatory injunctions.2. The parties, for the sake of convenience, are referred tohereunder according to their litigative status and ranking beforethe trial Court.3. A summation and summarisation of the relevant factsabsolutely necessary and germane for the disposal of this SecondAppeal would run thus:(a) The appellant herein, as plaintiff, filed the suit seekingthe following reliefs: https://hcservices.ecourts.gov.in/hcservices/ "a.pass a decree declaring the plaintiff's title tothe suit property on the ground of his having perfectedthe same by adverse possession;b. consequent upon such a declaration, restrain thedefendants, their agents and men from in any wayinterfering with the plaintiff's peaceful possession andenjoyment of the same;c.direct the defendants by means of mandatoryinjunction to remove the superstructure illegally put upby them in the schedule of property;d. grant to the plaintiff the costs of the suit."(extracted as such)(b) Traversing and gainsaying the plaintiff's case, thedefendants filed the common written statement resisting the suit. (c) Whereupon the trial Court framed the issues. The plaintiffexamined himself as P.W.1 along with P.Ws.2 and 3 and Exs.A1 to A29were marked. The first defendant examined himself as D.W.1 andExs.B1 and B7 were marked. Exs.C1 and C2 were marked as Courtdocuments. (e) Ultimately the trial Court dismissed the suit, as againstwhich, the appeal was filed for nothing but to be dismissed by thefirst appellate Court confirming the judgment and decree of thetrial Court.4. Being aggrieved by and dissatisfied with the said judgmentsand decrees of both the Courts below, this seconds appeal has beenfiled by the plaintiff on various grounds and also suggesting thefollowing substantial question of law:"When the evidence on record clearly established thatthe plaintiff is in possession of the suit property from1974 onwards openly, peacefully, continuously and withoutany interruption from any one including his brotherThiruvenkitasamy and enjoying it adverse to his interestand thereby perfected title by adverse possession, whetherthe courts below are correct in negativing the claim ofthe plaintiff which is contrary to the materials onrecord."(extracted as such)5. At the outset itself I fumigate my mind with the principlesas found embodied in the following judgments of the Honourable ApexCourt: https://hcservices.ecourts.gov.in/hcservices/ (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR)VS. SESHAMMAL;"24. ........(iii) The general rule is that the HighCourt will not interfere with the concurrent findings ofthe courts below. But it is not an absolute rule. Someof the well-recognised exceptions are where (i) the courtsbelow have ignored material evidence or acted on noevidence; (ii) the courts have drawn wrong inferences fromproved facts by applying the law erroneously; or (iii) thecourts have wrongly cast the burden of proof. When werefer to 'decision based on no evidence', it not onlyrefers to cases where there is a total dearth of evidence,but also refers to any case, where the evidence, taken asa whole, is not reasonably capable of supporting thefinding."and the other precedents emerged in thisregard.(ii) (2011) 1 SCC 673 [Vijay KumarTalwar v. Commissioner of Income Tax, Delhi],certain excerpts from it would run thus:"19. It is manifest from a bare reading of thesection that an appeal to the High Court from adecision of the Tribunal lies only when asubstantial question of law is involved, and wherethe High Court comes to the conclusion that asubstantial question of law arises from the saidorder, it is mandatory that such question(s) mustbe formulated. The expression "substantialquestion of law" is not defined in the act.Nevertheless, it has acquired a definiteconnotation through various judicialpronouncements.(iii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAMSINGH AND ANOTHER. (iv) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYA:6. A mere poring over and perusal of those excerpts includingthe whole judgments would reveal that unless there is any perversityor illegality in the findings of the Courts or failing to applycorrect law, or misreading or non reading of the evidence,interference in the second appeal does not arise.7. The learned counsel for the appellant/plaintiff in allfairness, placing reliance on the records, would detail anddelineate the following facts: https://hcservices.ecourts.gov.in/hcservices/ (i) The plaintiff and his brother Thiruvenkitasamy got effecteda partition, as per Ex.A3 dated 10.6.1971, and in that the suitproperty was allotted to the share of his brother.(ii) It is the contention of the plaintiff that even though thesuit property was notionally allotted to the share of his brother,in stricto sensu and in reality, the plaintiff alone has been inpossession and enjoyment of the suit property; whereas, his brother,during the year 1995, as per Ex.B1-the sale deed dated 21.3.1995,sold the suit property in favour of the second defendant, who is thewife of D1.(iii) As per Ex.B2-the approved building plan dated 24.12.1996,D2 obtained permission for raising construction; whereas, theplaintiff would claim that he acquired title by adverse possession.8. The Courts below gave a concurrent finding to the effectthat absolutely there is no shard or shred, molecular or jot extentof evidence to show that the plaintiff was in continuous possessionand enjoyment of the suit property adverse to the interest of hisbrother-the vendor of D2. Such a finding of fact is not sufferingfrom any perversity or illegality. 9. On the plaintiff's side even though as many as 29 documentswere marked as Exs.A1 to A29, none of those documents are sufficientto buttress and fortify the contention of the plaintiff that heacquired prescriptive title over the said vacant land, which is thesuit property herein. 10. The popular adage is that 'possession follows title inrespect of vacant plots.' Here, even though there may not be directevidence to the effect that consequent upon the partition deed-Ex.A3dated 10.6.1971, the D2's vendor, so to say, the brother of theplaintiff did anything amelioratively to prove that he had beenenjoying the property, yet, as per the above said principle, hisownership cannot be held to have got severed from the suitproperty. Moreover, the onus of proof is on the plaintiff to provehis case.11. At this juncture, I recollect and call up the followingmaxims:(i) Affirmatis est probare – He who affirms must prove.(ii) Affirmanti, non neganti incumbit probatio – The burden ofproof lies upon him who affirms, not upon one who denies. https://hcservices.ecourts.gov.in/hcservices/

12. It is the duty of the person who affirms a particular factto prove it and he cannot call upon the other side to prove thenegative aspect. 13. Accordingly, if viewed, the plaintiff who pleaded adversepossession should have clinchingly adduced evidence to prove hiscase but he failed to do so. The Courts below analysed the facts andfound that the contention of the plaintiff was untenable.14. My kind is redolent and reminiscent of the followingprecedent.2007 (4) MLJ 912 (SC) (P.T.Munichikkanna Reddy and others vs.Revamma and others) – certain excerpts from it would run thus:"5. Adverse possession in one sense is based on the theoryor presumption that the owner has abandoned the propertyto the adverse possessor on the acquiescence of the ownerto the hostile acts and claims of the person inpossession. It follows that sound qualities of a typicaladverse possession lie in it being open, continuous andhostile. (See Downing v. Bird; Arkansas CommemorativeCommission v. City of Little Rock; Monnot v. Murphy; Cityof Rock Springs v. Sturm.)6. Efficacy of adverse possession law in mostjurisdictions depends on strong limitation statutes byoperation of which right to access the court expiresthrough efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolvesa set of competing rights in favour of the adversepossessor who has, for a long period of time, cared forthe land, developed it, as against the owner of theproperty who has ignored the property. Modern statutes oflimitation operate, as a rule, not only to cut off one’sright to bring an action for the recovery of property thathas been in the adverse possession of another for aspecified time, but also to vest the possessor with title.The intention of such statutes is not to punish one whoneglects to assert rights, but to protect those who havemaintained the possession of property for the timespecified by the statute under claim of right or colour oftitle. (See American Jurisprudence, Vol. 3, 2d, p.81.) Itis important to keep in mind while studying the Americannotion of adverse possession, especially in the backdropof limitation statutes, that the intention to dispossesscannot be given a complete go-by. Simple application oflimitation shall not be enough by itself for the successof an adverse possession claim. https://hcservices.ecourts.gov.in/hcservices/

8. Also See Privy Council's decision in Chung Ping Kwanand Others v. Lam Island Development Company Limited (HongKong) (1997) Ac 38 in this regard.9. Therefore, to assess a claim of adverse possession,two-pronged enquiry is required:1. Application of limitation provision therebyjurisprudentially “wilful neglect” element onpart of the owner established. Successfulapplication in this regard distances the titleof the land from the paper-owner.2. Specific positive intention to dispossess onthe part of the adverse possessor effectivelyshifts the title already distanced from thepaper-owner, to the adverse possessor. Rightthereby accrues in favour of adverse possessoras intent to dispossess is an express statementof urgency and intention in the upkeep of theproperty.10. It is interesting to see the development of adversepossession law in the backdrop of the status of right toproperty in the 21st century. The aspect of strongerproperty rights regime in general, coupled with efficientlegal regimes furthering the rule of law argument, hasredefined the thresholds in adverse possession law notjust in India but also by the Strasbourg Court. Growth ofhuman rights jurisprudence in recent times has alsopalpably affected the developments in this regard.New consideration in adverse possession law11. In that context it is relevant to refer to JA Pye(Oxford) Ltd. v. United Kingdom wherein the European Courtof Human Rights while referring to the Court of Appealjudgment JA Pye (Oxford) Ltd. v. Graham made the followingreference:“Lord Justice Keene took as his starting pointthat limitation periods were in principle not https://hcservices.ecourts.gov.in/hcservices/ incompatible with the Convention and that theprocess whereby a person would be barred fromenforcing rights by the passage of time wasclearly acknowledged by the Convention(Convention for the Protection of Human Rightsand Fundamental Freedoms). This positionobtained, in his view, even though limitationperiods both limited the right of access to thecourts and in some circumstances had the effectof depriving persons of property rights, whetherreal or personal, or of damages: there was thusnothing inherently incompatible as between the1980 Act and Article 1 of the Protocol.”14. Importantly, intention to possess cannot besubstituted for intention to dispossess which is essentialto prove adverse possession. The factum of possession inthe instant case only goes on to objectively indicateintention to possess the land. As also has been noted bythe High Court, if the appellant has purchased the landwithout the knowledge of earlier sale, then in that casethe intention element is not of the variety and degreewhich is required for adverse possession to materialise.21. A peaceful, open and continuous possession as engravedin the maxim nec vi, nec clam, nec precario has beennoticed by this Court in Karnataka Board of Wakf v. Govt.of India in the following terms: (SCC p.785, para 11)“Physical fact of exclusive possession and theanimus possidendi to hold as owner in exclusionto the actual owner are the most importantfactors that are to be accounted in cases ofthis nature. Plea of adverse possession is not apure question of law but a blended one of factand law. Therefore, a person who claims adversepossession should show: (a) on what date he cameinto possession, (b) what was the nature of hispossession, (c) whether the factum of possessionwas known to the other party, (d) how long hispossession has continued, and (e) his possessionwas open and undisturbed. A person pleadingadverse possession has no equities in hisfavour. Since he is trying to defeat the rightsof the true owner, it is for him to clearlyplead and establish all facts necessary toestablish his adverse possession.” https://hcservices.ecourts.gov.in/hcservices/

22. It is important to appreciate the question ofintention as it would have appeared to the paper-owner.The issue is that intention of the adverse user getscommunicated to the paper-owner of the property. This iswhere the law gives importance to hostility and opennessas pertinent qualities of manner of possession. It followsthat the possession of the adverse possessor must behostile enough to give rise to a reasonable notice andopportunity to the paper-owner.32. The law in this behalf has undergone a change. Interms of Articles 142 and 144 of the Limitation Act, 1908,the burden of proof was on the plaintiff to show within 12years from the date of institution of the suit that he hadtitle and possession of the land, whereas in terms ofArticles 64 and 65 of the Limitation Act, 1963, the legalposition has underwent complete change insofar as the onusis concerned: once a party proves its title, the onus ofproof would be on the other party to prove claims of titleby adverse possession. The ingredients of adversepossession have succinctly been stated by this Court inS.M. Karim v. Bibi Sakina in the following terms: (AIRp.1256, para 5)“Adverse possession must be adequate in continuity,in publicity and extent and a plea is required at theleast to show when possession becomes adverse so thatthe starting point of limitation against the partyaffected can be found."(emphasis supplied)A bare and plain reading of the above excerpts would indicate andshow that the plea of adverse possession cannot be assumed andpresumed unless there are clinching evidence to prove the same.15. It is crystal clear that the party who pleads adversepossession admits that the party as against whom adverse possessionis pleaded happens to be the owner of the property; the onus ofproof is on the person who tries to press into service the plea ofadverse possession.16. As such, applying the dictum as found embodied in thedecision of the Honourable Apex Court, if the facts are analysed, itis glaringly clear that the Courts below au fait with law analysedthe facts and evidence and arrived at a just conclusion, warrantingno interference in second appeal. https://hcservices.ecourts.gov.in/hcservices/

17. In the result, there is no question of law much lesssubstantial question of law is involved in this second appeal andaccordingly, the second appeal is dismissed. However, there is noorder as to costs. Consequently, connected miscellaneous petitionis dismissed. Sd/- Deputy Registrar. /true copy/ Sub Asst.Registrar.MskTo1. The Principal Subordinate Judge, Coimbatore2. The District Munsif, Mettupalayam,1 cc to Mr.V.Nicholas, Advocate, Sr. 38012S.A.No.784 of 2011SJ (CO)kk 27/7