{"id":48085,"date":"2010-09-17T00:00:00","date_gmt":"2010-09-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/samayana-thevar-vs-abdul-razack-on-17-september-2010"},"modified":"2016-06-03T05:42:35","modified_gmt":"2016-06-03T00:12:35","slug":"samayana-thevar-vs-abdul-razack-on-17-september-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/samayana-thevar-vs-abdul-razack-on-17-september-2010","title":{"rendered":"Samayana Thevar vs Abdul Razack on 17 September, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Samayana Thevar vs Abdul Razack on 17 September, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 17\/09\/2010\n\nCORAM\nTHE HONOURABLE MS.JUSTICE R.MALA\n\nS.A.No.648 of 1999\n\nSamayana Thevar\t\t\t\t   .. Appellant\n\nVs.\n\n1. Abdul Razack\n2. Selva Mohammed\t\t\t\t   .. Respondents\n\n    Second Appeal against the judgment and decree dated 16.11.1998 in A.S.No.1\nof 1998 on the file of the  Subordinate Court, Sivagangai, confirming the\njudgment and decree dated 15.4.1996 in O.S.No.209 of 1993 on the file of the\nDistrict Munsif Court, Manamadurai.\n\n!For appellant \t... Mr.A.Sivaji\n^For respondents... Mr.K.Govindarajan\n\n****\n\n:JUDGMENT\n<\/pre>\n
\t\tThe Second Appeal is filed by the third defendant  against the
\njudgment and decree dated 16.11.1998 in A.S.No.1 of 1998 on the file of the
\nSubordinate Court, Sivagangai, confirming the judgment and decree dated
\n15.04.1996 in O.S.No.209 of 1993 on the file of the District Munsif Court,
\nManamadurai.\n<\/p>\n
\t\t2. The averments in the plaint are as follows:\n<\/p>\n
\tThe respondents\/plaintiffs purchased the suit property from one Samayana
\nThevar\/father of the defendants on 1.7.1967.  From that date onwards they are in
\npossession and enjoyment of the suit property.  Since the property is not fit
\nfor cultivation, they are enjoying the fruits of Palm tree situated in the suit
\nproperty. The re-survey proceedings  in patta No.500 has been granted in favour
\nof the plaintiffs.  At that time, he came to know that the boundaries are not
\ncorrelated with Survey No.169\/6.  Hence, he approaches the revenue officials.
\nThe correct survey No.169\/11A has been given in favour of this third defendant
\nwho is none other than the son of vendor of the suit property. When he
\napproached, the defendants wantonly avoiding to change the patta in favour of
\nthe plaintiffs. From the date of purchase, the respondents\/plaintiffs are in
\npossession and enjoyment of the property situated in Survey No.169\/11A.  But in
\nthe sale deed, it was mentioned as 169\/6.  The defendants 1 and 2 Attestors of
\nthe sale deed executed in favour of the respondents\/ plaintiffs. The
\nappellants\/defendants are estopped from questioning the same. The
\nrespondents\/plaintiffs constrained to file the suit for declaration of title to
\nthe suit property and for consequential permanent injunction alternatively for
\nthe recovery of possession and prayed for decree.\n<\/p>\n
\t\t3. The gist and essence of the written statement filed by the third
\ndefendant are as follows:\n<\/p>\n
\tThe suit property is absolutely belongs to this defendant\/appellant.  The
\nrespondents\/plaintiffs never in possession and enjoyment of the suit property
\nand patta has been given in his name.  The revenue records clearly proved that
\nthe respondents\/plaintiffs were not in possession of the suit property.  In the
\nsale deed, it contains survey No.169\/6.  Patta also transferred in the name of
\nthe respondents\/plaintiffs in respect of the property bearing survey No.169\/6.
\nThe respondents\/plaintiffs never in possession and enjoyment of the property in
\nsurvey No.169\/11A.  No mutation of revenue records has been done.  Since the
\nsale deed contain incorrect boundary, now the respondents\/plaintiffs want to
\ntake advantage and claiming property situated at survey No.169\/11A, but that
\nproperty has not been sold in favour of the respondents\/plaintiffs.  So, the
\nrespondents\/plaintiffs are not the owner of the property.  The appellant\/third
\ndefendant was in possession and enjoyment of the suit property.  The suit survey
\nNo.169\/11A is originally belonging to Kandappa Devar.  After his death, his two
\nsons Samayana Devar, father of the defendants and Ramu Devar succeeded the suit
\nproperty.  They partitioned the property.  The suit property was allotted to
\nthis defendant Samayana Devar.  East of the suit property was allotted to Ramu
\nDevar.  Ramu Devar was in possession, after his death, his wife Irulayee was in
\npossession and enjoyment of the suit property.  Irulayee sold the property to
\none Sakaralingam.  The suit property was in possession of the defendants 1 to 3
\ntill the partition taken place in the year 1956.  In the partition during the
\nyear 1956, the suit property was allotted to the appellant\/ third defendant.  In
\npursuance of that only mutation of revenue records has been made and sub
\ndivision has been effected and patta has been issued under Patta No.419.  After
\nresurvey, the patta number has been changed as 163 which stands in the name of
\nthe appellant\/third defendant.  The appellant\/third defendant has mortgaged the
\nproperty with Tamilnadu Khadi and Industries Board and obtained loan and repaid
\nthe loan amount.  So, the appellant\/third defendant is in exclusive possession
\nand he has also  prescribed title by adverse possession.  The suit is bad for
\nmisjoinder of necessary parties as the defendants 1 & 2 and 4 & 5 were
\nunnecessary parties.  No cause of action has arisen to lay the suit.  Hence he
\nprayed for dismissal of the suit.\n<\/p>\n
\t\t4. The trial Court, after considering the averments both in the
\nplaint and in the written statement and considering the arguments advanced by
\nthe learned counsel on either side, framed necessary issues and considering the
\noral and documentary evidence decreed the suit. Against that, the third
\ndefendant preferred the appeal  which was dismissed by the First Appellate
\nCourt.  Against that, the present Second Appeal has been preferred by the third
\ndefendant.\n<\/p>\n
\t\t5. At the time of admission of the Second Appeal, the following
\nsubstantial questions of law were framed for consideration:
\n\t“(i) Whether the courts below are right in granting relief to the
\nplaintiff when the claim of the plaintiff is barred by limitation  ?”\n<\/p>\n
\t (ii) Whether the Courts below are right in decreeing the suit based on
\nthe plea of adverse possession, when the plaintiff himself claimed title based
\non Exhibit A-1 without proving animus etc. ?\n<\/p>\n
\t\t6. Heard both sides.\n<\/p>\n
\t\t7. The learned counsel appearing for the appellant\/third defendant
\nwould submit that the plaintiffs\/ respondents herein purchased the property to
\nan extent of 36 cents bearing survey No.169\/6.  But, he now claiming declaration
\nof title in respect of survey No.169\/11A stating that four boundaries are
\ncorrelated in respect of survey No.169\/11A instead of 169\/6.  But the trial
\ncourt and the first appellate Court have committed an error in granting decree
\nin favour of the plaintiffs\/respondents herein.  Ex.A1 sale deed contain
\nspecific survey No.169\/6 – 36 cents.  In pursuance of the purchase, the patta
\nhas also been issued in favour of the respondents\/plaintiffs under Patta No.500.
\nThey also paid kist. Further, he submitted that the Commissioner  appointed by
\nthe trial court has stated in his report that  there is Survey No.169\/6 and
\nSurvey No.169\/11A and 11B.  In respect of survey No.169\/11 total extent of land
\nis 84 cents.  It was allotted to the share of Samayana Devar during partition
\nbetween the father and his brother Ramu Devar. The appellant\/third defendant’s
\nfather was allotted 42 cents of land and Ramu Devar was allotted  42 cents of
\nland.  After the death of Ramu Devar, his wife Irulayee has succeeded the
\nproperty.  During the partition taken place in the year 1956 as per Ex.B16, the
\nsuit property has been allotted to the third defendant\/appellant herein. From
\nthat date onwards, the third defendant\/ appellant herein was and is in
\npossession and enjoyment of the suit property.  So, he has  prescribed  title
\nover the suit property by adverse possession.  Hence, the suit is barred by
\nlimitation.  The first appellate Court has not considered the issues in proper
\nperspective.  Hence, he prayed for allowing the appeal.  To substantiate his
\ncase, he has relied upon the various judgments of the High Courts and Apex
\ncourt.\n<\/p>\n
\t\t8 The learned counsel appearing for the  respondents\/plaintiffs
\nwould contend that it is true that in the sale deed in Ex.A1 the survey number
\nis 169\/6 but the boundaries it has been mentioned as survey No.169\/11A.  He
\nfurther submitted that boundary will prevail over survey number and extent that
\nhas been considered by both the Court below and granted relief in favour of the
\nrespondents\/ plaintiffs.  Further more, to substantiate his arguments, he has
\nrelied upon various judgments of High Courts and Apex Court. He further submits
\nthat till resurvey, he is in possession and enjoyment of the property by
\nenjoying the fruits of Palm tree.  But during the resurvey only, the patta has
\nbeen changed in the name of the appellant\/third defendant. At the time of
\nexecution of sale deed Ex.A1 wherein the defendants 1 and 2 are Attestors.  So
\nthey are estopped from questioning the title to the suit property.  The trial
\ncourt and the first appellate court considering the same in proper perspective
\nand granted decree in favour of the respondents\/plaintiffs.  Hence, judgment and
\ndecree granted by both the Court below does not warrant any interference by this
\nCourt.  Hence, he prayed for dismissal of the Second Appeal.\n<\/p>\n
\t\t9  Considering the rival submissions made on either side, the
\nadmitted facts are as follows:\n<\/p>\n
The suit property is originally owned by one Samayana Devar.  He sold the
\nproperty in favour of the respondents\/plaintiffs under sale deed Ex.A1 dated
\n1.7.1967.  In Ex.A1, the description of the property is mentioned as follows:
\n“brhj;J tpguk;”\n<\/p>\n
\t\t,uhkehjg[uk; khtl;lk;. ,sa’;Fo rg;o. D& jhYfh. ,sa’;Fo a{dpad;.
\nnkyha{h; g”;rhaj;J nghh;L nkyha{h; fpuhkj;jpy; 57 ePh; glhtpy; fz;l S.169-6
\nePlh; kzy; g[“;ir brz;L 36 khy; tpguk; fkhy;ghl;rh fpuak; g[“;irf;Fk; nkw;F.
\ncilahh;nfhd; e”;irf;F tlf;F. Kj;Jf;nfhd; g[“;irf;Fk; fpHf;F. fpHnky; bkap;d;
\nnuhl;Lf;F bjw;F ,jw;Fl;gl;lJ nkytug;gpy; epw;fpd;w gidJ}h; 4k; rpW tplypfSk;
\nnrh;j;J fpuak;\/”\n<\/p>\n
But patta number in respect of the property bearing S.No.169\/6 has been changed
\nas 500 and the plaintiffs have paid kist as per Ex.A3.  To prove the same,
\nsurvey No.169\/6 was not sold to them and  the respondents\/plaintiffs have
\npurchased the property only in survey No.169\/11.  He has filed documents in
\nEx.A4 to 8 and examined P.W.2.  P.W.2 is the owner of the property bearing
\nsurvey No.169\/6.  At this juncture, it is appropriate to consider the
\nCommissioner’s report Ex.C1 and C2.  While perusing the Ex.C1 and C2 along with
\nfour boundaries mentioned in Ex.A1 has clearly proved that the property
\npurchased under Ex.A1 is  only in respect of Survey No.169\/11 and not 169\/6.\n<\/p>\n
\t\t10 At this juncture, It is appropriate to consider the following
\ndecisions relied upon by the learned counsel appearing for the
\nrespondents\/plaintiffs to the effect that the four boundaries will prevail over
\nsurvey number and extent.\n<\/p>\n
\t\t(i) 1995-2 L.W. 169 (Kannu Reddiar Vs T.Palanirajan and four others
\nwherein the Division Bench of this Court has held as follows:
\n\t“25. Mr.K.Yamunan, learned counsel for the respondents, attempted to
\nestablish that the construction was within the boundary description contained in
\nEx.A1 lease deed, as found by the Advocate Commissioner in Ex.A22, even though
\nthe boundary description relates to R.S.No.20\/10 which was sought to be included
\nin Ex.A1 lease deed dated 27.8.1981 through Ex.A16, alleged rectification deed
\ndated 25.3.1982.  He placed reliance on the well established general principles
\nof law that the boundary descriptions shall prevail over survey number, extent,
\netc., when there is conflict.  In this regard, he placed reliance on the
\ndecisions reported in The Palestine Kupat Am Bank Co-op Society ltd. V. Govt. of
\nPalestine (A.I.R. 1948 P.C. 207); Sheodyhyan Singh V  Sanichara Kuer (A.I.R.
\n1963 S.C. 1879) and 82, Law Weekly 142.  There can be no quarrel over this
\nproposition of law.”\n<\/p>\n
\t\t(ii) A.I.R. 1984 NOC 300 (A.P.) (Y.Subba Rao (died) and others Vs
\nAmizunnisa Begum and others)
\n\t“Held, the approach of the Court in appointing a Surveyor for the purpose
\nof going into the question whether the applicants have purchased the same
\nproperty which is now in the possession of the distributor and to decide the
\ndispute with regard to the survey number of suit property was erroneous.  As
\nregards the dispute with regard to survey of suit property the Court below
\nfailed to note the well-known proposition that clear boundries as to the
\nidentity of the property prevail over any mistake in the survey number.”\n<\/p>\n
\t\t11 Considering the judgments cited supra, it is well settled
\nprinciple of law that if there is any dispute in respect of survey number and
\nextent, the boundaries only prevail over extent and survey number.  As already
\nstated as per Commissioner’s report, Ex.C1 and C2 along with Ex.A1 has clearly
\nproved that the suit property is purchased by the  respondents\/plaintiffs under
\nEx.A1 even though it was mentioned as Survey No.169\/6, it is only 169\/11A.
\n\t\t12 The learned counsel appearing for the appellant would contend
\nthat even though the plaintiffs\/respondents herein have purchased the property
\nthey are not in possession and enjoyment of the same. It is further contended
\nthat it is the duty of the respondents\/plaintiffs to prove that they were and
\nare in possession of the suit property till the date of filing the suit.  He
\nfurther submitted that after purchase of the property, mutation of revenue
\nrecords were
\nmade and kist has been paid by the respondents\/plaintiffs only in respect of
\nS.No.169\/6.\n<\/p>\n
\t\t13 At this juncture, it is appropriate to consider the decision
\nreported in A.I.R. 1997 SC 2719 = 1997(7) SCC 137 (Balwant Singh and another
\netc. Vs Daulat Singh (dead) by L.Rs. and others) wherein the Hon’ble Supreme
\nCourt has held as follows:\n<\/p>\n
\t21…… “Mutation of a property in the revenue record does not create or
\nextinguish title nor has it any presumptive value on title. It only enables the
\nperson in whose favour mutation is ordered to pay the land revenue in question.\n<\/p>\n
Thus, mere mutation of property in revenue records does not create or extinguish
\ntitle nor has it any presumptive value on title.  In such circumstances, merely
\nbecause the patta has been changed, in pursuance, it will not confer or
\nextinguish title of the plaintiffs\/respondents herein or the third
\ndefendant\/appellant herein.\n<\/p>\n
\t\t14 The learned counsel appearing for the appellant\/third defendant
\nwould contend that the respondents\/plaintiffs  have not proved their possession
\nand even though they have purchased the property in the year 1967. The third
\ndefendant\/appellant herein has prescribed title by adverse possession.  But the
\nplaintiffs\/respondents ought to have proved that they were in possession and
\nenjoyment of the suit property till the date of filing the suit.\n<\/p>\n
\t\t15 At this juncture, the learned counsel appearing for the
\nrespondents\/plaintiffs relied upon the decision stating that old article 142,
\n143 is not applicable after new limitation Act 1963 came into force in which
\nArt.64 and 65 applicable since the respondents\/plaintiffs have filed the suit
\nfor declaration of title on the basis of the title deed.  Hence, the
\nrespondents\/plaintiffs have proved the title.  It is the duty of the third
\ndefendant\/appellant herein who pleaded adverse possession must prove the same.
\nFor that reason, he relied upon the decision reported in 2007 STPL(LE)37845 SC =
\n(2007)3 SCC 114 (M.Durai Vs Muthu and others).\n<\/p>\n
\t9. ……..”28. The statutory provisions of the Limitation Act have
\nundergone a change when compared to the terms of Articles 142 and 144 of the
\nSchedule appended to the Limitation Act, 1908, in terms whereof it was
\nimperative upon the plaintiff not only to prove his title but also to prove his
\npossession within twelve years, preceding the date of institution of the suit.
\nHowever, a change in legal position has been effected in view of Articles 64 and
\n65<\/span><\/p>\n
of the Limitation Act, 1963. In the instant case, the plaintiff-respondents have
\nproved their title and, thus, it was for the first defendant to prove
\nacquisition of title by adverse possession. As noticed hereinbefore, the first
\ndefendant-appellant did not raise any plea of adverse possession. In that view
\nof the matter the suit was not barred.”\n<\/p>\n
Thus, once the respondents\/plaintiffs proved their title, it is for the
\nappellant\/third defendant should prove acquisition of title by adverse
\npossession in the same proposition.\n<\/p>\n
\t\t16 Further, the learned counsel appearing for the
\nrespondents\/plaintiffs  relied upon the decision reported in 2009(12) SCC 101
\n(Vishwanath Bapurao Sabale Vs Shalinibai Nagappa Sabale and others) wherein the
\nHon’ble Supreme Court  has held as follows:\n<\/p>\n
\t“20. The suit filed by Nagappa however was based on title. Once he proved
\nhis title the onus was on Laxmibai and consequently upon the appellant to prove
\nthat they started possessing adversely to the interest of Shivappa. For the
\npurpose of arriving at a finding as to whether the appellant and Laxmibai
\nperfected their title by adverse possession, the relationship of the parties may
\nhave to be taken into consideration.\n<\/p>\n
\t23. Furthermore for claiming title by adverse possession, it was necessary
\nfor the plaintiff to plead and prove animus possidendi. A peaceful, open and
\ncontinuous possession being the ingredients of the principle of adverse
\npossession as contained in the maxim nec vi, nec clam, nec precario, long
\npossession by itself would not be sufficient to prove adverse possession.”\n<\/p>\n
The person who pleaded adverse possession must prove that there is ‘Animus
\nPossidendi’.  He also relied upon the decision reported in A.I.R. 1999 SC 1549
\n(Indira Vs Arumugam and another) wherein the Hon’ble Supreme Court has held as
\nfollows:\n<\/p>\n
\t“4. The aforesaid reasoning of the learned Judge, with respect, cannot be
\nsustained as it proceeds on the assumption as if old Article 142 of the earlier
\nLimitation Act was in force wherein the plaintiff who based his case on title
\nhad to prove not only title but also possession within 12 years of the date of
\nthe suit. The said provision of law has undergone a metamorphic sea change as we
\nfind under the Limitation Act, 1963 Article 65 which reads as under:
\nDescription of suit
\nPeriod of Limitation
\nTime from which period begins to run\n<\/p>\n
65. For possession of immovable property or any interest therein based on title
\n Twelve   years
\n When the possession of the defendant becomes adverse to the plaintiff.\n<\/p>\n
\t5. It is, therefore, obvious that when the suit is based on title for
\npossession, once the title is established on the basis of relevant documents and
\nother evidence unless the defendant proves adverse possession for the
\nprescriptive period, the plaintiff cannot be non-suited. Unfortunately, this
\naspect of the matter was missed by the learned Judge and, therefore, the entire
\nreasoning for disposing of the second appeal has got vitiated. Only on that
\nshort ground and without expressing any opinion on the merits of the question of
\nlaw framed by the learned Judge for disposing of the second appeal, this appeal
\nis allowed. The impugned decision rendered is set aside and the second appeal is
\nrestored to the file of the High Court with a request to proceed further with
\nthe hearing of the appeal with respect to the substantial question
\naforementioned in accordance with law. No costs.\n<\/p>\n
\t\t17 He further submits that the appellant\/defendant ought to have
\nprove adverse possession and he must plead and prove ‘Animus Possidendi’.  But
\nhere he has stated that on the basis of the partition deed he is in possession
\nand enjoyment of the property.  Hence he submits that third defendant\/appellant
\nherein has not proved Prescribed title by adverse possession.  He further
\nsubmitted that partition deed is not admissible evidence since it is not
\nregistered.  At this juncture, it is appropriate to consider Sec.17 of the
\nRegistration Act.\n<\/p>\n
\t“17. Documents of which registration is compulsory-\n<\/p>\n
(1) The following documents shall be registered, if the property to which they
\nrelate is situate in a district in which, and if they have been executed on or
\nafter the date on which, Act No.XVI of 1864, or the Indian Registration Act,
\n1866 (XX OF 1866), or the Indian Registration Act, 1871 (VIII of 1871), or the
\nIndian Registration Act, 18777 (III of 1877), or this Act came or comes into
\nforce, namely:-\n<\/p>\n
\t(a) instruments of gift of immovable property;\n<\/p>\n
\t(b) other non-testamentary instruments which purport operate to create,
\ndeclare assign, limit or extinguish, whether in present or in future, any right,
\ntitle or interest, whether vested or contingent, of the value of one hundred
\nrupees and upwards, to or in immovable property;\n<\/p>\n
\t(c) non-testamentary instruments which acknowledge the receipt or payment
\nof any consideration on account of the creation, declaration, assignment,
\nlimitation or extinction of any such right, title or interest;\n<\/p>\n
\t(d) leases of immovable property from year to year, or for any term
\nexceeding one year, or reserving a yearly rent;\n<\/p>\n
\t(e) non-testamentary instruments transferring or assigning any decree or
\norder of a court or any award when such decree or order or award purports or
\noperates to create, declare, assign, limit or extinguish, whether in present or
\nin future, any right, title or interest, whether vested or contingent, of the
\nvalue of one hundred rupees and upwards, to or in immovable property:
\n\t[f) Instruments of agreement relating to construction of multiunit house
\nbuilding on land by several persons as referred to in clause (i) of Article 5 of
\nthe Schedule 1 to the Stamp Act 199 (Central Act II of 1899)]
\n\tProvided that the State Government may, by order published in the Official
\nGazette, exempt from the operation of this sub section any leases executed in
\nany district, or part of a district, the terms granted by which do not exceed
\nfive years and the annual rents reserved by which do not exceed fifty rupees.
\n\t(2) Nothing in clauses (b) and (c) of sub-section (1) applies to-\n<\/p>\n
(i) any composition deed; or\n<\/p>\n
(ii) any instrument relating to shares in a Joint Stock Company, notwithstanding
\nthat the assets of such Company consists in whole or in part of immovable
\nproperty; or\n<\/p>\n
(iii) any debenture issued by any such company and not creating, declaring,
\nassigning, limiting or extinguishing any right, title or interest, to or in
\nimmovable property except in so for as it entitles the holder to the security
\nafforded by a registered instrument, whereby the company has mortgaged, conveyed
\nor otherwise transferred the whole or part of its immovable property or any
\ninterest therein to trustees upon trust for the benefit of the holders of such
\ndebentures or\n<\/p>\n
(iv) any endorsement upon or transfer of any debenture issued by any such
\ncompany; or\n<\/p>\n
(v) any document not itself creating, declaring, assigning, limiting or
\nextinguishing any right, title or interest of the value of one hundred rupees
\nand upwards to or in immovable property, but merely creating a right to obtain
\nanother document which will, when executed, create, declare, assign,  limit or
\nextinguish any such right, title or interest; or\n<\/p>\n
(vi) any decree or order of a Court [except a decree or order expressed to be
\nmade on a compromise and comprising immovable property other than that which is
\nthe subject matter of the suit or proceeding]; or\n<\/p>\n
(vii) any grant of immovable property by the Government; or\n<\/p>\n
(viii) any instrument of partition made by a Revenue officer; or\n<\/p>\n
(ix) any order granting a loan or instrument of collateral security granted
\nunder the Land Improvement Act, 1871 (XXVI of 1871), or the Land Improvement
\nLoans Act, 1883 (XIX of 1883); or\n<\/p>\n
(x) any order granting a loan under the   Agriculturists Loans Act, 1884 (XII of
\n1884), or instrument for securing the repayment of a loan made under that Act;
\nor
\n[(x-a) any order made under the Charitable Endowments Act, 1890 (VI of 1890),
\nvesting any property in a Treasurer of Charitable Endowments or divesting any
\nsuch Treasurer of any property; or]\n<\/p>\n
(xi) any endorsement on a mortgage deed acknowledging the payment of the whole
\nor any part of the mortgage money, and any other receipt for payment of money
\ndue under a mortgage when the receipt does not purport to extinguish the
\nmortgage; or\n<\/p>\n
(xii) any certificate of sale granted to the purchaser of any property sold by
\npublic auction by a Civil or Revenue officer.”\n<\/p>\n
\t\t18 Along with that the learned counsel relied upon the decision
\nreported in (2004) 11 SCC 391 (C.T.Ponnappa Vs State of Karnataka).
\n\t“4. …… previous partition has been attempted to be proved by the
\ndocument dated 2-4-1996, Exhibit P-46, wherein there is a recital that partition
\nhad already been effected by deed dated 31-3-1975, which has not been brought on
\nrecord. It is not known whether the 1975 deed was a deed of partition or a
\nmemorandum of partition. In case partition was effected thereby, we do not know
\nwhether the same was registered or unregistered. If it was unregistered, the
\nsame could not be taken into consideration to prove partition between the
\nparties as it was inadmissible in evidence. It was pointed out that Exhibit P-46
\nfurther shows that apart from the partition effected by deed dated 31-3-1975,
\nparties partitioned their properties at least by the deed dated 2-4-1996,
\nExhibit P-46. Learned counsel very fairly could not contend that the said deed
\nwas a memorandum of partition. This document being not a registered one was
\ninadmissible in evidence and, therefore, it cannot be of any avail to the
\nprosecution to prove partition amongst the two brothers.”\n<\/p>\n
\t\t19 At this juncture, it is appropriate to consider the decision
\nrelied upon by the learned counsel  for the appellant reported in (2007)5 M.L.J.
\n203 (Kasim Beevi and others Vs Sowr Beevi and others) wherein this Court has
\nheld as follows:\n<\/p>\n
\t“21.In a decision reported in the case of Roshan Singh V. Zile Singh<\/a>
\n(supra), in paragraph 9, the Hon’ble Supreme Court has held as follows:
\n\t” It is well-settled that while an instrument of partition which operates
\nor is intended to operate as a decalred volition constituting or severing
\nownership and causes a change of legal relation to the property divided amongst
\nthe parties to it, required registration under Section 17(1)(b) of the Act, a
\nwriting which merely recites that there has in time past been a partition, is
\nnot a declaration of will, but a mere statement of fact and it does not require
\nregistration.”\n<\/p>\n
But while considering the above decisions along with Ex.B16, it is clearly
\nproved that on 29.6.1956 only the property has been divided\/partitioned between
\nthe three brothers.  In such circumstances, the document is required
\nregistration.  Admittedly, the document is not registered.  In such
\ncircumstances, no relevance can be placed on Ex.B16.\n<\/p>\n
\t\t20\tThe learned counsel appearing for the appellant would submit
\nthat the plaintiffs\/respondents were in possession and enjoyment of the the
\nproperty bearing survey No.169\/6. As already decided in earlier paragraphs as
\nper Ex.A1 and the Commissioner report, the property alienated under Ex.A1 is
\nbearing survey No.169\/11 not 169\/6.  Because that property is not belonging to
\nthe appellant family.  Merely because the revenue records stands in the name of
\na person who hold patta, it will not  confer or extinguish title to the holder
\nof the patta.  At this juncture, it is appropriate to consider the decision
\nrelied upon by the learned counsel appearing for the appellant reported in
\n(2003)1 MLJ 21 (lakshmana Gounder Vs The Special Deputy Collector (LA), Salem
\nSteel Plant, Salem and others) wherein the Division Bench of this Court has
\nheld as follows:\n<\/p>\n
\t“12. A patta is a record of possession represents a distinct fractional
\npart of lands.  The said presumption has its roots in the system of land tenure
\nand in the custom of the area in which the lands are situate.  Each pattadar
\nmanages his lands and pays fixed share of the Government Revenue.  Entries in
\nrevenue records are not conclusive, but their importance in a case for
\npossession cannot be denied, until contrary is shown.”
\nPatta is  record for possession.  There is no quarrel over the proposition.\n<\/p>\n
\t\t21 The learned counsel appearing for the  appellant relied upon the
\ndecision reported in (2001)4 SCC 713 (Syndicate Bank Vs Prabha D.Naik and
\nanother) wherein the Hon’ble Supreme Court has held as follows:
\n\t“16. ……… A prescriptive right however, differs from adverse
\npossession, since prescription relates to incorporeal rights while adverse
\npossession applies to an interest in the title to property. “Prescription” is
\nusually applied to acquisition of incorporeal hereditaments and negative
\nprescription obviously is a negation of such an acquisition. “Prescription”
\nadmittedly, is a part of substantive law but limitation relates to procedure, as
\nsuch prescription differs from limitation. The former is one of the modes of
\nacquiring a certain right while the latter viz. the limitation, bars a remedy,
\nin short, prescription is a right conferred, limitation is a bar to a remedy.
\nChapter II of the Portuguese Civil Code provides detailed articles pertaining to
\nprescription. Corpus Juris Secundum, Vol. 72 described the word “prescription”
\nas below:\n<\/p>\n
\t“In law prescription is of two kinds: it is either an instrument for the
\nacquisition of property or an instrument of an exemption only from the servitude
\nof judicial process. In the first sense, as relating to the acquisition of
\nproperty, prescription is treated in adverse possession. In the second sense, as
\nrelating to exemption from the servitude of judicial process, prescription is
\ntreated as Limitation of Actions.”\n<\/p>\n
\t\t22 In A.I.R. 1977 SC 5 (Gurucharan Singh Vs Kamla Singh and others)
\nthe Hon’ble Supreme Court has held as follows:\n<\/p>\n
\t“21………”The word possession is sometimes used inaccurately as
\nsynonymous with the right to possess. (Words and Phrases, 2nd Edn., John B.
\nSounders, p. 151).\n<\/p>\n
\tIn the Dictionary of English Law (Earl Jowitt) 1959 at p. 1367
\n“possession” is defined as follows:\n<\/p>\n
\t“Possession, the visible possibility of exercising physical control over a
\nthing, coupled with the intention of doing so, either against all the world, or
\nagainst all the world except certain persons. There are, therefore, three
\nrequisites of possession. First, there must be actual or potential physical
\ncontrol. Secondly, physical control is not possession, unless accompanied by
\nintention; hence, if a thing is put into the hand of a sleeping person, he has
\nnot possession of it. Thirdly, the possibility and intention must be visible or
\nevidenced by external signs, for if the thing shows no signs of being under the
\ncontrol of anyone, it is not possessed; . . .”\n<\/p>\n
\tIn the end of all, however, the meaning of ‘possession’ must depend on the
\ncontext. (ibid, p. 153) May be, in certain situations, possession may cover
\nright to possess. It is thus clear that in Anglo-American jurisprudence also,
\npossession is actual possession and in a limited set of cases, may include
\nconstructive possession, but when there is a bare right to possess bereft of any
\ndominion or factum of control, it will be a strange legal travesty to assert
\nthat an owner is in possession merely because he has a right to possess when a
\nrival, in the teeth of owner’s opposition, is actually holding dominion and
\ncontrol over the land adversely, openly and continuously.”\n<\/p>\n
\t\t23 In (2001)2 M.L.J. 4 (S.C.) (Balkrishan Vs Satyaprakash and
\nothers) the Hon’ble Supreme Court has held as follows:\n<\/p>\n
\t“7. The law with regard to perfecting title by adverse possession is well
\nsettled.  A person claiming title by adverse possession has to prove three “nec”\n<\/p>\n
– nec vi, nec clam and nec precario.  In other words, he must show that his
\npossession is adequate in continuity, in publicity and in extent.”\n<\/p>\n
\t\t24 In 1998-1 L.W. 244 (Roohnisha Beevi and 15 others Vs A.M.M.
\nMahudu Mohamed and 29 others) this Court has held as follows:
\n\t“22. In (1995)2 SCC 543 (Annasaheb Bapusaheb Patil V Balwant), in pargraph
\n14 of the judgment, their Lordships further said thus:-
\n\t“Adverse possession means a hostile assertion, i.e., a possession which is
\nexpressly or impliedly in denial of title of the true owner.  Under Article 65,
\nburden is on the defendants to prove affirmatively.  A person who bases his
\ntitle on adverse possession must show by clear and unequivocal evidence i.e.
\npossession was hostile to the real owner and amounted to a denial of his title
\nto the property claimed.  In deciding whether the acts, alleged by a person,
\nconstitute adverse possession, regard must be had to the animus of the person
\ndoing those acts which must be ascertained from the facts and circumstances of
\neach case, the person who bases his title on adverse possession, therefore, must
\nshow by clear and unequivocal evidence, i.e. possession was hostile to the real
\nowner and amounted to a denial of his title to the property claimed.”\n<\/p>\n
\t\t25 In (2000)7 SCC 702 (Dilboo (Smt) (Dead) by LRS. and others) the
\nHon’ble Supreme Court has held as follows:\n<\/p>\n
\t“20…… As the title of the rank trespasser would get perfected by
\nadverse possession on the expiry of 12 years so also the title of such
\ntransferee would get perfected after 12 years. The period of 12 years has to run
\nfrom the date of knowledge by the plaintiff of such transfer. It is always for
\nthe party who files the suit to show that the suit is within time. Thus in cases
\nwhere the suit is filed beyond the period of 12 years, the plaintiff would have
\nto aver and then prove that the suit is within 12 years of his\/her knowledge. In
\nthe absence of any averment or proof, to show that the suit is within time, it
\nis the plaintiff who would fail. Whenever a document is registered the date of
\nregistration becomes the date of deemed knowledge. In other cases where a fact
\ncould be discovered by due diligence then deemed knowledge would be attributed
\nto the plaintiff because a party cannot be allowed to extend the period of
\nlimitation by merely claiming that he had no knowledge.”\n<\/p>\n
\t\t26 In 2007(6) SCC 59 (P.T.Munichikkanna Reddy and others Vs Revamma
\nand others) the Hon’ble Supreme Court has held as follows:
\n\t“7…….. He is in possession by his own right, so far as it is a right:
\nand it is a right so far as the statutes of limitation which govern the matter
\nprescribe both when the rights to dispossess him are to be treated as accruing
\nand when, having accrued, they are thereafter to be treated as barred. In other
\nwords a squatter has as much protection as but no more protection than the
\nstatutes allow: but he has not the title or estate of the owner or owners whom
\nhe has dispossessed nor has he in any relevant sense an estate ‘commensurate
\nwith’ the estate of the dispossessed. All that this misleading phrase can mean
\nis that, since his possession only defeats the rights of those to whom it has
\nbeen adverse, there may be rights not prescribed against, such, for instance, as
\nequitable easements, which are no less enforceable against him in respect of the
\nland than they would have been against the owners he has dispossessed.”
\n\tAlso see Privy Council’s decision in Chung Ping Kwan v. Lam Island
\nDevelopment Co. Ltd.9 in this regard.\n<\/p>\n
\t8. Therefore, to assess a claim of adverse possession, two-pronged enquiry
\nis required:\n<\/p>\n
\t1. Application of limitation provision thereby jurisprudentially “wilful
\nneglect” element on part of the owner established. Successful application in
\nthis regard distances the title of the land from the paper-owner.\n<\/p>\n
\t2. Specific positive intention to dispossess on the part of the adverse
\npossessor effectively shifts the title already distanced from the paper-owner,
\nto the adverse possessor. Right thereby accrues in favour of adverse possessor
\nas intent to dispossess is an express statement of urgency and intention in the
\nupkeep of the property.”\n<\/p>\n
\t\t27 Since the respondents\/plaintiffs herein proved their title, it is
\nthe duty of the third defendant\/appellant herein to prove that he has
\nprescriptive title by adverse possession.  To prove the same, he has filed Ex.B1
\nand B2 in respect of the patta which shows dry land in survey No.167\/11
\ninherited by him.  The patta number is 84.  It stands in the name of both
\nSamayana Dever and Irulayee.  After sub division, patta number has been changed
\nto 419 as  per Ex.B3.  It was sub divided as 169\/11A 0.18.0 ares stands in the
\nname of the third defendant\/appellant herein. He also filed Ex.B17 and B18
\nsettlement registers pertaining to S.No.169\/11A and S.No.169\/6 stands in the
\nname of the plaintiffs\/respondents and S.No.169\/11A stands in the name of
\nSamayana Devar, the appellant herein as already stated.   The kist receipts were
\nmarked as Ex.B4 to B13  from Fasali No.1376 to 1403.  But it is true that these
\ndocuments are related to property bearing S.No.169\/11A.  He also filed document
\nin Ex.B14 dated 11.8.1982 wherein it is stated that he mortgaged the property to
\nTamilnadu Khadi and Village Industries Board and he dealt with the property.
\nDemand notice Ex.B15 dt.12.8.1995 has also been filed.  As already stated, even
\nthis Court presumes that third defendant\/ appellant herein is in possession, the
\nthird defendant\/appellant herein has to prove that he is in possession after
\nknowing the property belonging to the respondents\/plaintiffs adverse to the
\ninterest and title to the plaintiffs\/respondents herein, openly and
\ncontinuously, uninterruptedly with the knowledge of the true owner for more than
\nstatutory period.  But his averments is only in respect of the property was
\nallotted to the appellant herein under Ex.B16.  In pursuance of that he is in
\npossession and enjoyment of the same.  The respondents\/plaintiffs were not owner
\nof the property bearing S.No.169\/11. They are the owners of the property bearing
\nS.No.169\/6. In such circumstances, the basic principle of adverse possession as
\ncontained in maxim nec vi, nec clam, nec precario, long possession by itself
\nwould not be sufficient to prove adverse possession.  There must be animus
\nPossidendi.  So the appellant herein has to prove that he is in possession after
\nknowing the property belonging to the respondents\/ plaintiffs, adverse to the
\ninterest and title to the plaintiffs\/respondents herein, he was and is in
\npossession and enjoyment of the same. But he has not adduced evidence that he
\nwas and is in possession adverse to the interest and title to the
\nrespondents\/plaintiffs and enjoying the property for more than statutory period.
\nIn such circumstances, the appellant herein has not proved that he has
\nprescribed title by adverse possession.\n<\/p>\n
\t\t28 So, the first appellate Court and the trial court considered all
\nthe aspects in proper perspective and came to the correct conclusion that the
\nthird defendant\/ appellant herein has not prescribed title by adverse
\npossession. The plaintiffs\/respondents herein has purchased the property under
\nEx.A1 even though it was mentioned as S.No.169\/6.  It is only related to
\nS.No.169\/11 as per the well settled principle of law that boundary will prevail
\nover the survey number and extent of a property.  Hence, that aspect  has been
\ncorroborated by P.W.2.  P.W.2 in his evidence has stated that the property in
\nS.No.169\/6 is belongs to him.  He executed a simple mortgage in favour of one
\nKoothakkal under Ex.A4.  Subsequently, he sold the same under Ex.A5 on
\n10.11.1986 to one Periyasamy.  So P.W.2 has proved that the suit property is
\nonly under S.No.169\/11.  Hence, the trial court and the first appellate court
\nconsidered all the materials on record  in proper perspective and came to a
\ncorrect conclusion.  Hence, Judgment and decree of both the Court below does not
\nsuffer any irregularity or infirmity.  Hence, it does not warrant any
\ninterference by this court and the appeal is liable to be dismissed.\n<\/p>\n
\t\t29 Accordingly, the Second appeal is dismissed.  Both the parties
\nare directed to bear the cost.\n<\/p>\n
vaan<\/p>\n
To\n<\/p>\n
1. The Subordinate Court, Sivagangai,\n<\/p>\n
2. The District Munsif Court, Manamadurai.\n<\/p>\n
3. The Record Keeper, V.R. Section, High Court, Madras.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Samayana Thevar vs Abdul Razack on 17 September, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17\/09\/2010 CORAM THE HONOURABLE MS.JUSTICE R.MALA S.A.No.648 of 1999 Samayana Thevar .. Appellant Vs. 1. Abdul Razack 2. Selva Mohammed .. Respondents Second Appeal against the judgment and decree dated 16.11.1998 in A.S.No.1 of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-48085","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSamayana Thevar vs Abdul Razack on 17 September, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/samayana-thevar-vs-abdul-razack-on-17-september-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Samayana Thevar vs Abdul Razack on 17 September, 2010 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/samayana-thevar-vs-abdul-razack-on-17-september-2010\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2010-09-16T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2016-06-03T00:12:35+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"32 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/samayana-thevar-vs-abdul-razack-on-17-september-2010#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/samayana-thevar-vs-abdul-razack-on-17-september-2010\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Samayana Thevar vs Abdul Razack on 17 September, 2010\",\"datePublished\":\"2010-09-16T18:30:00+00:00\",\"dateModified\":\"2016-06-03T00:12:35+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/samayana-thevar-vs-abdul-razack-on-17-september-2010\"},\"wordCount\":6387,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"High Court\",\"Madras High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/samayana-thevar-vs-abdul-razack-on-17-september-2010#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/samayana-thevar-vs-abdul-razack-on-17-september-2010\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/samayana-thevar-vs-abdul-razack-on-17-september-2010\",\"name\":\"Samayana Thevar vs Abdul Razack on 17 September, 2010 - 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