IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 18.2.2011 Coram The Honble Mr.Justice R.S.RAMANATHAN Second Appeal No.2315 of 2004 S.R.Agamuthu Pillai Appellant vs. 1. S.R.Natarajan (died) 2. Krishnasamy 3. Saraswathi 4. N.Pasupathy 5. N.Bhuvaneswari 6. N.Balakrishnan Respondents For appellant : Mr.P.Jagadeesan For R2 : Mr.S.V.Jayaraman, Senior Counsel for Mr.V.Ravi For R3, R4 & R6 : Mr.M.Devaraj Prayer:- Second Appeal against the judgment and decree dated 2.7.2003 made in A.S.No.7 of 2003 on the file of the Principal District Judge, Salem reversing the judgment and decree dated 16.9.2002 made in O.S.No.766 of 1993 on the file of the Additional Subordinate Judge, Salem. JUDGMENT
The plaintiff, who was successful in the Trial Court and lost in the first appeal, is the appellant.
2. The appellant/plaintiff filed the suit for declaration that he is entitled to the suit property by adverse possession and for injunction restraining the respondents from interfering with this possession and enjoyment of the property.
3. The case of the plaintiff/appellant was that the first respondent is his brother and he purchased the property in his name and also paid consideration for the same and permitted the appellant/plaintiff to reside in the property. Thereafter, in the year 1971-72, the first respondent wanted to do business with his friends and for that purpose, he required money and hence, he orally agreed to sell the property to the plaintiff and the plaintiff also paid a sum of Rs.1,19,780/= from the year 1972 to July 1987 and as the first respondent is his brother, he has not obtained any document from the first respondent and the appellant/plaintiff is in possession and enjoyment with the knowledge of the first respondent in the capacity of owner for more than 20 years and was paying the House Tax and Electricity charges and therefore, the plaintiff also has perfected title by adverse possession over the suit property. As the first respondent and the second respondent colluded together and attempted to interfere with the rights of the appellant/plaintiff, the suit was filed for declaration and injunction.
4. The respondents contested the suit stating that the appellant was let into the suit property as a tenant and he was paying the rent till December 1990 and thereafter he did not pay the rent and therefore, the appellant is in possession of the property only in the capacity of tenant and also denied the payment of Rs.1,19,780/= towards sale consideration and also denied the oral agreement of sale or sale by him in favour of the appellant.
5. The Trial Court decreed the suit holding that the appellant/plaintiff is in possession of the property for more than 12 years in the capacity of owner and the first respondent has lost his right over the suit property and therefore, the appellant is entitled to the relief prayed for.
6. The first appellate court reversed the finding holding that the appellant has not proved his possession adverse to the knowledge of the first respondent and he has not perfected his title over a statutory period and therefore, he is not entitled to the relief prayed for and allowed the appeal. Aggrieved by the same, the second appeal is filed.
7. The following substantial questions of law were framed at the time of admission of the second appeal:
“1. Whether the appellant/plaintiff has perfected his hostile title in the suit house property by being in open peaceful exclusive actual physical possession and enjoyment of the suit house property without any objection and protest by the first respondent/defendant for more than 30 years?
2. Whether the appellant/plaintiff has clearly exhibited and shown his animus to acquire hostile title to the suit house property against the first respondent/defendant by being in actual peaceful possession for more than 30 years?”
8. It is submitted by the learned counsel for the appellant that the case of the first respondent was that the appellant entered into the suit property as tenant and he miserably failed to prove the same and from the year 1971, the appellant is in possession of the property to the knowledge of the first respondent and his possession was continuous and hostile to the knowledge of the first respondent and he has also paid house Tax and Electricity consumption charges and also made improvements to the property and the first respondent was aware of all those improvements and he did not object and hence, the appellant has perfected title by adverse possession over a long period and the conduct of the first respondent in not taking action against the appellant will also confirm the case of the appellant that he is in possession and enjoyment of the property in the capacity of owner.
9. Mr.S.V.Jayaraman, learned counsel for the second respondent submitted that the first appellate court, after relying upon the Supreme Court judgment, held that the appellant has not proved his possession adverse to the knowledge of the first respondent and rightly allowed the appeal and dismissed the suit and having regard to the fact that the appellant pleaded that he was put into possession by the first respondent and he was in possession of the property as a permissive occupier, without proving the date on which his possession became adverse, the appellant is not entitled to the relief prayed for.
10. The law of adverse possession has been made clear in the following judgments:-
In the judgment reported in AIR 2009 SC 103, it has been held as follows:-
“Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed.”
11. In the judgment reported in 2007 (3) SCC 114 = 2007 (2) MLJ 657, the Honourable Supreme Court, relying upon the decision reported in (2006) 7 SCC 570, held as as follows:-
“10. Yet again in T. Anjanappa and Others v. Somalingappa and Another [2006] 7 SCC 570, this Court opined as under:
“Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person’s title. The person setting up adverse possession may have been holding under the rightful owner title e.g. trustees, guardians, bailiffs or agents……”
It was further more held as under :
“It is well-recognised proposition in law that mere possession, however long, does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession, the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that, such possession in denial of the true owner’s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action.””
12. In the decision reported in AIR 2007 SC 1728, it has been held that the person has to plead the period and the date on which he claims to be in possession and the person has to plead and prove that his possession is continuous, exclusive and undisturbed to the knowledge of the real owner of the land. He has to show a hostile title and he has to, in fact, show his hostility to the real owner.
13. In the decision reported in AIR 2008 SC 346, it has been held as follows:-
“22. Claim by adverse possession has two elements :
(1) the possession of the defendant should become adverse to the plaintiff; and
(2) the defendant must continue to remain in possession for a period of 12 years thereafter.
Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title.”
14. Therefore, from the above judgments, it is made clear that the possession, however, long it may be, will not become adverse unless the party, who claims to be in possession of the property and perfected title by adverse possession, must plead and prove that the date from which he was enjoying the property hostile to the knowledge of the true owner. In this case, it is admitted by the appellant/plaintiff that he was put in possession of the property by the first respondent and he was in possession of the property with the permission of the first respondent. He had further stated that in the year 1971-72, with the intention to sell the property to the appellant/plaintiff, the first respondent borrowed money and from 1972-87 and the appellant has paid Rs.1,19,780/=. Therefore, from the pleadings, it is made very clear that the entry into possession by the appellant was with the permission of the first respondent and when the initial entry was permissive possession, the appellant is not entitled to prescribe title by adverse possession unless he proves that he surrendered his possession and started enjoying the property hostile to the knowledge of the true owner. In this case, no evidence has been let in to that effect.
15. Further, the case of the appellant/plaintiff was that in pursuance of the oral agreement of sale, he was enjoying the property. Therefore, he admits that the first respondent was the owner of the property and he agreed to sell the property to him and he also paid consideration. Therefore, from the pleading it is made very clear that the appellant recognised the title of the first respondent as owner and in that case, the appellant cannot plead adverse possession against the first respondent.
16. Further, the documents, Ex.A4 series are House Tax Receipts in the name of the first respondent and the House Tax Receipts were also produced from the year 1982-83 and though the appellant contended that he started his possession in the capacity of owner from the year 1971, no document was filed by him to prove the same. The payment of Electricity Charges also will not prove the adverse possession of the appellant, inasmuch as admittedly, he is in possession of the property and is bound to pay the electricity charges. The appellant also did not prove the payment of Rs.1,19,780/= to the first respondent.
17. Therefore, having regard to the fact that the initial entry of the appellant was with the permission of the first respondent and the appellant has not proved the date from which his possession became adverse to the knowledge of the first respondent, the continuance of possession by the appellant will not become adverse towards the first respondent and therefore, the appellant is not entitled to the prayer that he has perfected title by adverse possession. Hence, the first appellate court has rightly allowed the appeal and dismissed the suit and the substantial question of law is also answered against the appellant. The second appeal is dismissed. No costs.
ssk.
To
1. The Principal District Judge,
Salem.
2. The Additional Subordinate Judge,
Salem