THANGAMANI Vs. SANTHIAGU

JUDGEMENT

(1.) THIS Second Appeal is directed against the judgment of the learned District Judge, Madurai North at Dindigul, in A.S.No.165 of 1983 reversing the judgment of the learned District Munsif, Dindigul, in O.S.No.222 of 1980. The plaintiff in the suit is the appellant in the above Second Appeal. 2. According to the plaintiff, the suit property is comprised in Survey No.148/3 in Adiyanoothu village. The entire extent was 1 acre and 65 cents. Originally it was owned by one Kitheri Ammal and by a series of sales the plaintiff purchased the property in the year 1972 from one Pitchamuthu Servai. He was in possession of the entire extent doing personal cultivation and the suit property was shown in the plain plan as A to J. The defendant owns the property north of the plaintiff's property and the same was comprised in Survey No.148/1B. Taking advantage of the fact that the plaintiff was an absentee landlord, the defendant in the course of one year had slowly encroached upon the plaintiff's property to an extent of 18 cents. He had shifted the ridge separating the properties to south and it was known to the plaintiff only two or three months prior to the filing of the suit. The plaintiff thereupon applied to the Tahsildar for measuring the property and accordingly, the Taluk Surveyor measured the property and found that a portion of the plaintiff's property had been encroached by the defendant. Though the defendant agreed to vacate the encroached portion he was refusing to hand over possession of encroached portion of 18 cents. 3. In the written statement filed by the defendant it was contended that the ridge separating his property and that of the plaintiff's property was in its present form for the past several years. The land north of the ridge was originally owned by one Rayar Servai and by a series of sales, the defendant's father and uncle had purchased the property in 1943. In 1954, the defendant's father purchased the share of the defendant's uncle and became a full owner. After his death in 1970, the defendant was in absolute possession of the property and therefore, the defendant and his predecessors in interest have been in continuous possession of the property of the entire extent north of the ridge and hence perfected title by adverse possession to the knowledge of the plaintiff and his predecessors in interest. Therefore, the plaintiff has no title or possession over the suit property and he had not asserted title to the disputed portion. 4. The trial court held that the defendant had admitted the plaintiff's title in the written statement and therefore, it was not open to the defendant or his witnesses to back from the recitals in the documents. As regards the claim of adverse possession by the defendant, it was held that the trespass could not have been before 1974 and since the suit had been filed in the year 1980 itself, the said plea cannot be upheld. The appellate court however, held that the evidence clearly established that the defendant was in possession of the disputed portion even long prior to the purchase by the plaintiff in the year 1972. With the result, claim of adverse possession by the defendant was upheld and the decree granted by the trial court was set aside. Hence, the present Second Appeal. 5. Mr.V.Natarajan, learned counsel for the appellant very strenuously contended by referring to several rulings holding that animus of adverse possession as against the real owner was the most essential ingredient to prove the title by adverse possession. In the present case, the plea of adverse possession by the defendant, was nothing more than a possession by mistake and such possession cannot justify a claim for title. He would also contend that the judgment of Ramanujam, J. in Pavadai alias Selvaraj Chettiar v. Chinnadurai Padayachi, 93 L.W. 278 relied upon by the appellate court, holding that animus against and knowledge about the real owner was not always necessary and that open and continuous assertion of one's own rights was sufficient to constitute adverse possession, did not reflect the correct legal position having regard to the several other rulings by the Supreme Court and Division Benches of our High Court, holding the opposite view. 6. Mr.V.Nandakumar, appearing for the respondent, would however, contend that the pleadings as well as the evidence on the side of the defendant amply establish assertion of title by the defendant for several years and therefore, the finding of the appellate court was justified. It was further stated that the finding of adverse possession was a question of fact and hence not to be interfered with by this Court in the Second Appeal. 7. But before considering the rulings, it may be necessary to deal with the facts of this case. As regards analysis of the evidence, the appellate Judge had devoted a more detailed and closer examination of both oral and documentary evidence compared to the learned trial Judge. The learned trial Judge based his conclusion only on the basis of the two factors namely, the title of the plaintiff was not seriously disputed and that the possession by the defendant should have commenced only from 1974. The finding as regards trespass by the defendant was however, rejected by the appellate court and according to the learned Judge possession by the defendant was long prior to the purchase by the plaintiff and the defendant's possession was for more than the statutory period. To cite at least two grounds relied upon by the learned appellate Judge for having arrived at the said conclusion, firstly, the admission by the plaintiff himself is as follows: 8. Another instance of the evidence would be the statement of D.W.2 who is the predecessor in title of the plaintiff himself. D.W.2 had sold the property to one Pichamuthu (D.W.3) in 1970 and Pichamuthu sold the property to the plaintiff in 1972. Both of them have spoken about the extent of the enjoyment of the property by themselves and that they were in enjoyment only the property south of the ridge as existing at present. The appellate court had also found that in spite of lengthy cross-examination, their evidence was not assailed in any manner. D.W.4, neighbouring land owner, had also deposed in favour of the defendant. Therefore, as regards the finding of fact by the appellate court and that the defendant was in possession of the property for more than the statutory period, the same has to be confirmed and I do not find any reason to interfere with the same. Realising this position, learned counsel for the appellant, laid stress on the legal issue as mentioned above and had cited the following rulings. 9. In Bibhabati Devi v. Ramendra Narayan, A.I.R. 1947 P.C. 19 a widow who claimed to have entered on her widow's estate on an assumption that her husband was dead. It was held that adverse possession can be claimed only as against a living person and not under a mistake of fact regarding the death of her husband. THIS judgment, I would hold, is an extreme example of claim of adverse possession against a person who was supposed to be dead. The facts of the present case do not justify any comparison. 10. The decision of the Supreme Court in S.M.Karim v. Bibi Sakina S.M.Karim v. Bibi Sakina S.M.Karim v. Bibi Sakina, A.I.R. 1964 S.C. 1254 is also an unusual claim of a benami court auction purchaser which was barred under Sec.66, C.P.C. It was held that the alternative claim of title by adverse possession should be clearly pleaded and proved. Therefore, the said decision is of no assistance. 11. Another decision of the Supreme Court in State Bank of Travancore v. A.K.Panicker State Bank of Travancore v. A.K.Panicker State Bank of Travancore v. A.K.Panicker, A.I.R. 1971 S.C. 996 is a case where a plea of permissive possession being converted into adverse possession was negatived. It is only in those circumstances it was held that the person claiming adverse title should have been asserting his title to the knowledge of the true owners. 12. In Venkatachalaiah v. Nanjundaiah, A.I.R. 1992 Kar. 270 it was held that mere possession over the statutory period alone was not sufficient to prove adverse possession. In the following cases it was held that plaintiff need not prove that he was in possession of the property for the period of 12 years and that it was for the defendant to plead and establish his claim of adverse possession. (i) Bhagavathy v. Savarimuthu, A.I.R. 1976 Mad. 124 (ii) Karmega Kone v. Udayar Kone, (1979)1 L.W. 419 (iii) Naran Behera v. Mohan Jethi , A.I.R. 1985 Ori. 40. 13. In Ponnaiyan v. Munian (Died) and others Ponnaiyan v. Munian (Died) and others Ponnaiyan v. Munian (Died) and others, (1995)1 L.W. 680 A.S.Venkatachala Moorthy, J. held that it was the duty of the plaintiff to plead and prove animus and that the mere fact of patta standing in the name of a person and his paying kists alone was not sufficient to establish title by adverse possession. 14. In Natesan v. Chinnachi Kandar, (1996)1 C.T.C. 699 P.Sathasivam, J. held that adverse possession would mean hostile possession expression or implied in denial of the title of the real owner. 15. S.S.Subramani, J. deal with a case where there was a dispute over the identity of the property in Roohnisha Beevi and fifteen others v. A.M.M.Mahudu Mohamed and twenty-nine others Roohnisha Beevi and fifteen others v. A.M.M.Mahudu Mohamed and twenty-nine others Roohnisha Beevi and fifteen others v. A.M.M.Mahudu Mohamed and twenty-nine others , (1998)1 L.W. 244. It was held that in case of conflict between the extent and boundaries, usually boundaries should prevail. Therefore, according to learned counsel for the appellant, in the present case since the document of title clearly established the extent to which the plaintiff was entitled to, the defendant cannot be heard to contend otherwise. 16. In The State of Tamil Nadu represented by the District Collector, Thiruchirapalli v. K.Purushothaman The State of Tamil Nadu represented by the District Collector, Thiruchirapalli v. K.Purushothaman The State of Tamil Nadu represented by the District Collector, Thiruchirapalli v. K.Purushothaman, (1998)2 L.W. 171 the same learned Judge held that animus on the part of the plaintiff against the Government to hold the property should be established. That was a case where a washerman who was allotted with a land earmarked for washerman claimed adverse title as against the Government. 17. The principles relating to the claim of adverse possession as stated in the above rulings are undoubtedly beyond any doubt or second opinion. The only aspect on which Mr.V.Natarajan would try to focus the issue is that the statement of law as expressed by Ramanujam, J. in Pavadai alias Selvaraj Chettiar v. Chinnadurai Padayachi, 93 L.W. 278 was not correct. According to the learned Judge, absence of animus and knowledge about the true owner was immaterial where the possession was open, continuous assertian of one's own rights. None of the judgments cited above by Mr.V.Natarajan, which would be binding on this Court, really express any contradictory view. Some of the other judgments have held that hostile possession would mean denial of the title of the real owner. The question is whether the said denial of title or animus should be express, implied or could be inferred from the circumstances. 18. Let us consider the following instance. "A" purchases the property from "B" and the property conveyed is larger in extent than specified in the schedule. "B" was in possession of the property for more than 12 years asserting ownership in himself and after "B", "A" is put in possession and he also continues to be in possession for another 12 years. Will it be open to "C" the real owner of the property to contend that neither "A" nor "B" had any knowledge that the property belong to "C" and therefore, they had no animus against "C"e I am inclined to agree with the views expressed by Ramanujam, J. namely, what is required in such a case is only open and continuous assertion of title in themselves namely, by "A" and "B" as against the whole world. In my opinion, the expression that there should be animus against the real owner, came to be made in particular cases, where the question arose as to whether the contesting party was the real owner of the property or not and in cases where the person in possession was required to prove ouster strictly and particularly against specific individual or individuals as in the case of a co-owner pleading ouster and adverse possession or a case of possession which was permissive at the inception and the person in occupation claims to have acquired hostile title vide: State Bank of Travancore v. A.K.Panicker vide: State Bank of Travancore v. A.K.Panicker vide: State Bank of Travancore v. A.K.Panicker, A.I.R. 1971 S.C. 996 cited above. But in cases where the occupier and the predecessors in title have been in open and continuous occupation asserting positive title in themselves and against every one, and the real owner does not take any step to assert his right and to interrupt the running of the period, there is no reason as to why the occupier cannot claim adverse possession. The following judgments emphasise that what is necessary is open and unconcealed possession and that it is not necessary that his possession should have been brought to the notice of the real owner. 19. In Secretary of State v. Debendra Lal, A.I.R. 1934 P.C. 23 the Privy Council held that for adverse possession it was sufficient that the possession was overt and without any attempt at concealment so that the person against whom time running should exercise due vigilance to be aware of what was happening. If the rights of the owner was usurped he will not be heard to plea that the fact was not brought to his notice. 20. In Srischandra v. Baijnath, A.I.R. 1935 P.C. 36 it was held that the possession required must be at any rate in continuity, in publicity to show that the possession was adverse to the competitor. The classical requirement was that the possession should be nec vi nec clam nec precario. It was not necessary that the adverse possession should be brought to the knowledge of the person against whom it is claimed and that it was sufficient that possession should be open and without any concealment so that the person against whom the time was running was aware of what was happening. 21. In Kshitish Chandra Bose v. Commissioner of Ranchi, A.I.R. 1981 S.C. 707 the Supreme Court held that possession must be open and without any attempt at concealment and that it was not necessary that possession must be specifically brought to the knowledge of the owner. 22. In Parsinni v. Sukhi, (1993)4 S.C.C. 375 the Supreme Court held as follows: "Possession is prima facie evidence of title. 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 is adverse to the true owner. When the appellants claimed title to the suit lands it is sufficient for them to show that their possession is overt and without any attempt at concealment so that the respondents against whom time is running, ought if to exercise due vigilance to be aware of what is happening." 23. Therefore, in the present case, I have already referred to the fact that the appellate court had rendered a finding and held that it was admitted by the plaintiff himself that the ridge was in existence as it is now even on the date of his purchase and the evidence of D.Ws.2 and 3, prior predecessors in title of the suit property. There is also the evidence of D.W.4, the neighbouring land owner. Therefore, I am inclined to hold that the defendant had been in open and continuous possession asserting title in himself as against the whole world and that the plaintiff or his predecessors in title had not taken any steps to exercise due vigilance in order to arrest time running against them. 24. In the result, I do not find any grounds to interfere with the judgment of the appellate court and the Second Appeal is dismissed. No costs.