SADASIVA GOUNDER Vs. PURUSHOTHAMAN

JUDGEMENT

(1.) THE plaintiffs in O.S.No.1925 of 1981 on the file of the Principal District Munsif, Tindivanam, are the appellants in the second appeal. THEy filed the suit for declaration, recovery of possession, mesne profits and for a mandatory injunction to the defendant/respondent to remove the 3 Horse Power motor pumpset and the thatched shed from the suit property on the following averments: THE suit item 1 is of an extent of 20 cents in S.No.156/2. THE suit item 3 is a well and pumpset in suit item 1. (So far as suit item 2 is concerned, the defendant does not claim any right in the same and it is not necessary to deal with item No.2). THE suit item 1 and other properties originally belonged to the joint family of one Venkatasamy Naidu. THEre was a partition in the said family on 7.12.1959. Individual items and undivided shares in properties including lands and wells were in the possession and enjoyment of individual sharers. THE plaintiffs purchased the suit property among others from one of the branches. viz., Ramanujalu Naidu's branch under a sale deed dated 27.4.1980 for a valuable consideration of Rs.13,000. By virtue of purchase they have clear and unimpeachable title and in any event, they have prescribed for title by adverse possession on account of uninterrupted and notorious possession by the predecessors in interest of the plaintiffs and by the plaintiffs. THEre is a well in suit item No.1 in a land of 20 cents. THEre is a electric motor and pumpset installed by one Subramania Gounder with the permission of the plaintiffs and their vendors. THE plaintiffs" vendor Ramanujalu Naidu was working as Deputy Superintendent of Police and he was away from the village most of the time on account his occupation. His other family members were also elsewhere on account of studies and job. THE family members of Ramanujalu Naidu enjoyed their shares in the lands by leasing out to others. In respect of the suit property and other lands the plaintiffs were cultivating the lands on lease on oral basis. THE water from the well in R.S.No.156/2 - 20 cents was not used by and was also not required for purpose of irrigation by any other sharers. THE well in suit item No.1 is not a common well. THEre is a well in R.S.No.156/1 which the plaintiffs have got 2/3rd share while one Kottaiah Naidu had 1/3rd. One of the brothers Kottaiah Naidu sold his share to Subramania Gounder on 14.6.1965. THE suit item were not the subject matter of conveyance under the said sale deed. Subramania Gounder sold what he purchased to one Ranganayaki Ammal on 2.4.1979 and from Ranganayaki Ammal the defendant purchased on 21.4.1980. THE suit properties were not subject matter of these three sale deeds. THE defendant does not therefore have any right in the suit properties. Subramania Gounder, after his purchase in 1965, expressed difficulty in getting supply of water from the common well. THErefore, he sought for permission from Ramanujalu Naidu and his sons and also the plaintiffs to put up an electric motor and pumpset in the suit well situate in R.S.No.156/2 and accordingly, he put up an electric motor and pumpset in the suit well in R.S.No.156/2. Since Subramania Gounder had no independent title or possession with regard to installation of electric motor in R.S.No.156/2 and he was only a permissive user, he could not prescribe title to have this electric motor inside the well in R.S.No.156/2. In fact, the electric motor itself was put up in 1968 and when he sold it to Ranganayaki Ammal on 2.4.1979, 12 years had not elapsed. THEre was no question of adverse possession to have a right to retain the electric motor in the suit well. On 23.7.1981 the plaintiffs caused a notice to be issued to the defendant who claimed right in the well and motor and pumpset in the suit item 1, to which a reply was given by the defendant on 27.7.1981 stating that the well in S.No.156/2 had become dilapidated and non-existent and that Subramania Gounder dug a well in 1968. Subramania Gounder did not dig the well at all. Even at the time of filing of the suit only the original well continued to exist. THE further contention in the reply that he got title to an extent of 20 cents by virtue of an oral exchange from Ramanujalu Naidu by Subramania Gounder is al,so false. No such exchange took place. In fact, Subramania Gounder was measuring two bags of paddy to the plaintiffs" vendor in lieu of the aforesaid permission granted by Ramanujalu Naidu to have the motor and the pumpset installed and take water. THE further contention that Subramania Gounder was enjoying the 20 cents of land was also false and fraudulent. THE defendant started giving trouble to the plaintiffs" enjoyment necessitating the filing of the suit.

(2.) THE case of the defendant in the written statement is as follows: THE suit item 1 land and well and the electric motor and the pumpset and thatched shed which is item 3 belonged to Subramania Gounder exclusively and in his enjoyment. Subramania Gounder by virtue of an oral exchange with Ramanujalu Naidu got the suit property in 1965 and eversince he had been in possession and enjoyment. THE well in suit item 1 was dug by Subramania Gounder. It belonged to him exclusively. He fixed the electric motor and pumpset in 1968 and put up a thatched shed and obtained electricity service connection and was in enjoyment. Neither Ramanujalu Naidu nor his successors in interest had any right in the well motor and pumpset. THE oral permission set up in the plaint is not true. Neither Subramania Gounder nor Ranganayaki Ammal gave any paddy to Ramanujalau Naidu in consideration of their using the well and installing the motor and pumpset and using the water. Ranganayaki Ammal on 2.4.1979 purchased suit item 1 along with the well and pumpset from Subramania Gounder and on 21.4.1980 she sold the same to the defendant and eversince the defendant was in enjoyment of items 1 and 3. He and his purchasers in interest had been in possession and enjoyment of suit items 1 and 3 for over 12 years and had prescribed for title by adverse possession. THE plaintiffs were trying to take advantage of the mistake in the survey number in the sale deed in favour of Ranganayaki Ammal and the defendant. THE well in suit item 1 had become dilapidated and Subramania Gounder dug a new well. Even in the common well, in S.No.156/1 the defendant was entitled to 1/3rd share. Even in respect of 156/1 the survey number had been wrongly given. THE suit third item had not been properly valued.

(3.) THE defence case in the written statement is that there was an exchange between Ramanujalu Naidu and Subramania Gounder the predecessor in interest of the defendant is the year 1965. As per the terms of the oral exchange, Subramania Gounder became entitled to the suit property and the plaintiffs cannot therefore, claim any title in the suit property. It is supported by various documents that in the family partition only the branch from which the plaintiffs claim title was allotted suit item 1. THE branch through through which Subramania Gounder claimed right was not allotted the suit property. It is therefore, not necessary to trace the title of the suit property. So far as title is concerned, it can be safely assumed that suit item 1 belongs to the plaintiffs. THE defendant has come forward with a case of title and having failed in his attempt to prove his title, the question is whether he can claim title by adverse possession. THEre is a school of thought that to claim adverse possession there must be an admission that the property belonged to the other party and the party claiming adverse possession has to have this "animus" viz., that it is somebody else's property, that somebody alone had title and he did not have title. Animus in the legal parlance would mean mind, design, will, intention, disposition. To claim with regard to possession, the term is animus possidendi, which means the intention of possessing. THE person claiming adverse possession must intend in his mind to possess a property as his own. In my view, it does not mean that he must be conscious that the property belongs to somebody else. All that is required by the term "animus" in the context of adverse possession is that the person must have intention to possess the property as his own. Of course, in a case where the person sets up title in himself and fails to substantiate the same the question may rise as to whether such a person can still claim adverse possession. In my view, he can do so. THE contention raised by Mr.Sivakumar, learned Counsel for the appellants that the defendant having claimed title in himself by virtue of the sale deed in his favour from Ranganayaki Ammal and the earlier sale deed in favour of Ranganayaki Ammal from Subramania Gounder, cannot claim by adverse possession, cannot be accepted.