R.Prakash vs Mahendran Ramdas
2021 Latest Caselaw 3001 Mad

                                                                                     A.S.No.385 of 2017

                                IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 09.02.2021

                                                        CORAM

                                THE HONOURABLE MR.JUSTICE T.RAJA
                                              and
                          THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN

                                     A.S.No.385 of 2017 and CMP.No.14381 of 2017


                      1. R.Prakash

                      2. Parimala                                        ... Appellants

                                                           -vs-
                      Mahendran Ramdas                                   ... Respondent


                             First Appeal filed under Order 41 Rule 1 read with Section 96 of Civil

                      Procedure Code seeking to set aside the judgment and decree dated

                      29.04.2017 made in O.S.No.445/2014 on the file of the I Additional District

                      Judge, Coimbatore.

                                          For Appellants    : Mr.K.S.Karthik Raja

                                          For Respondent     : Mr.R.Bharath Kumar




                                                     JUDGMENT

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(Judgment of the Court was pronounced by T.RAJA, J.)

The First Appeal has been preferred against the judgment and decree

dated 29.04.2017 passed in O.S.No.445/2014 by the learned I Additional

District Judge, Coimbatore, thereby decreeing the suit for declaration in

favour of the plaintiff as absolute owner of the suit property along with

granting consequential reliefs of recovery of possession and damages.

2. The case of the plaintiff/respondent herein is that he claims to be

the absolute owner of the suit property which is a house property in Meena

Estate, Sowripalayam, Coimbatore, by virtue of a Registered Sale Deed

dated 15.12.1982. After purchase of the suit property, the plaintiff also

claims to have constructed a house thereon bearing Door No.11, present

Door No.82. It is the further claim of the plaintiff/respondent that the 1 st

defendant's father and the plaintiff's father are brothers. Since the 1st

defendant's father late K.Ramachandran was the elder brother of the

plaintiff's father K.Ramdas, the plaintiff's family wanted to accommodate

their uncle and aunt, namely, Ramachandran and his wife in their house

property as a token of gratitude. The father of the plaintiff informed the

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plaintiff to allow the parents of the 1st defendant to use the house property

during their life time. Accepting the wishes of his father, the plaintiff

granted license and permission to the 1st defendant's parents to use the suit

property for their residence. Thus, the 1st defendant's parents

K.Ramachandran and his wife were residing in the suit property on leave

and license as licensees, therefore, their possession was only permissive

possession. However, in view of the close relationship between the parties,

no formal document was executed for the licence granted and the licence is

only an oral permission granted. This is how the 1 st defendant stays with his

parents continuously occupying the suit property without any manner of

right. After some time in 1983, when the 1st defendant's parents were

granted licence and permission to reside in the house by the plaintiff, the

said Ramachandran, father of the 1st defendant died in the year 1986 and

four years thereafter, his wife died.

3. It was also the claim of the plaintiff/respondent herein that on

the death of the 1st defendant's parents, the license ipso facto was terminated

as the 1st defendant has no right whatsoever to continue to be in possession

of the suit property. Subsequently, when the 1st defendant/1st appellant

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herein has inducted a third party to occupy a portion of the suit property and

has started enriching himself unjustly in derogation of the nature of his

occupation, the plaintiff called upon the 1st defendant/1st appellant herein to

leave and vacate the suit property. In spite of the protest and request calling

upon the defendants to leave and vacate the suit property, the 1st defendant

and his wife 2nd defendant continue to live in the suit property. Therefore, a

Legal Notice dated 12.07.2014 terminating the licence and calling upon the

defendants to surrender vacant possession of the suit property by

31.07.2014 was issued. After the receipt of the said notice also, the

defendants/appellants failed to comply with the same. Hence, the suit in

O.S.No.445/2014 was filed seeking declaration declaring that the plaintiff is

the owner of the suit property with a consequential direction, directing the

defendants to surrender the suit schedule property and also to pay damages

for use and occupation/mesne profits at Rs.30000/- p.m. from the date of the

suit till the delivery of possession.

4. A detailed Written Statement has been filed by the 1st

defendant.

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5. Mr.K.S.Karthik Raja, learned Counsel for the appellants

herein/defendants repeatedly canvassing before us that when the plaitniff's

father and the 1st defendant's father are bothers, out of mere love and

affection, the plaintiff's father has accommodated the defendant's father's

family including the defendants. When the plaintiff/respondent herein has

laid the claim for declaration declaring that that the plaintiff is the owner of

the suit property with a consequential direction directing the defendants to

surrender the suit schedule property and also to pay damages for use and

occupation/mesne profits at Rs.30000/- p.m. from the date of the suit till the

delivery of possession, in the plaint, it has been specifically averred by the

respondent that the defendants and his family members were accommodated

as a permissible occupant by granting oral licence. But as it is well settled

legal position that the plaintiff having filed the suit has to succeed on his

own pleadings, but, he has not substantially established as to how oral

permission or licence can be granted that shows that the defendants having

been in physical possession in the suit property continuously from 1983

onwards. This aspect has been completely overlooked by the trial court.

Moreover when the plaintiff/respondent has filed the suit for declaration of

the title of the suit property with consequential relief for recovery of

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possession and damages, the trial court has failed to frame the issue whether

any oral licence was granted by the plaintiff to the 1 st defendant's father or

not. When there was no such issue framed, the decree for declaration of the

suit property with consequential prayer for recovery of possession and

damages in favour of the plaintiff/respondent herein could not be granted.

6. Per contra, learned Counsel for the respondent herein/plaintiff

has brought to the notice of this Court that even in paragraph 3 of the

written statement, the 1st defendant has admitted the case of the plaintiff that

the suit property was in possession and enjoyment of the 1st defendant from

1983 onwards and the sale deed of the suit property stands in the name of

the respondent/plaintiff. Therefore, even on the date of filing of the written

statement by the 1st defendant/1st appellant herein, when it has been clearly

admitted that the sale deed stands in the name of the plaintiff/respondent

herein, it goes without saying that the plaintiff is the absolute owner of the

suit property. Again drawing our attention to the cross-examination of

D.W.1 Prakash, the 1st appellant herein by the respondent herein/plaintiff

before the trial court, the learned Counsel for the respondent stated that

when the 1st defendant came into the witness box before the trial court after

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admitting the fact that the sale deed stands in the name of the plaintiff, also

admitted yet another fact that only in the reply notice dated 18.09.2014 for

the notice of the plaintiff dated 12.07.2014, first time, they informed the

plaintiff/respondent herein that they have claimed adverse possession. On

this basis, it was pleaded before the trial court that when the 1st defendant in

his written statement has clearly and explicitly admitted that the title of the

suit property stands in the name of the plaintiff and again while giving

deposition before the trial court during cross-examination, has also admitted

clearly that for the first time he has set up adverse possession in the year

18.09.2014, it is well settled legal position that a person seeking adverse

possession should be in continuous adverse possession for a period of

minimum 12 years.

7. In support of his contention, learned Counsel for the respondent

herein relied on a decision of the Hon'ble Apex Court in Annakili vs.

A.Vedanayagam and Others reported in 2008 (1) CTC 329, wherein it has

been held that a claim by adverse possession has two elements. They are (1)

Possession of the defendant should become adverse to plaintiff and (2)

Defendant must continue to remain in possession for a period of 12 years

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thereafter- Ánimus possidendi' is a requisite ingredient of adverse possession

i.e. mere possession will not ripen into possessory title but same must be

held adverse to title of true owner and also shown to be existing at

commencement of possession. But the appellants have miserably failed to

prove their adverse possession as laid down by the Apex Court cited supra.

Therefore, the trial court, while accepting the case of the plaintiff/respondent

herein that the defendants/appellants have wrongly tried to set up adverse

possession from 1983, dismissing the counter claim of the defendants, has

rightly decreed the suit. Therefore, the present Appeal has to be dismissed,

it is pleaded.

8. We also find merit on the said submissions of the learned Counsel

for the respondent. The reason being that as rightly canvassed by the learned

Counsel for the respondent herein/plaintiff, when a suit for declaration of

title and consequential prayer for recovery of possession was filed before the

trial court, it was the 1st defendant, who on his own, filing the written

statement in paragraph 3 has admitted the title of the plaintiff in the suit

property. Therefore, it is relevant to extract para 3 of the written statement

hereunder:

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''The defendant submits that Para No.3 of the plaint is true that the sale deed stands in the name of plaintiff but the suit property was in possession and enjoyment of 1st defendant from 1983 onwards and it is in possession and enjoyment of the 2nd defendant from the date of her marriage.''

Supporting the same pleadings, while recording the deposition of the

1st defendant before the trial court during cross-examination, he has also

admitted the fact that when the plaintiff has issued a notice dated

12.07.2014 calling upon them to vacate and hand over possession of the suit

property by 31.07.2014, he has sent a reply dated 18.07.2014 first time

claiming adverse possession. It is relevant to extract the said portion of the

cross-examination of D.W.1 hereunder:

''th/,r;/m/6 gjpy; mwptpg;gpy; jhd; Kjd; Kjyhf jhth brhj;jpw;F chpik bfhz;lhoa[s;nsd; vd;whYk; mjw;F Kd;g[ xUnghJk; mt;thW brhd;djpy;iy vd;W brhd;dhy; rhpay;y/ 1983y; vd; bgw;nwhh; jhth brhj;jpw;F tUk;nghnj mth;fs; chpikahsh;fs; vd;W brhy;Yfpnwdh vd;why; mt;thWjhd; jhd;

brhy;Yfpnwd;/ ehd; vd; jfg;gdhUf;nf jhth brhj;J chpikahdJ

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vd;Wk; mjdhy; thhpR vd;w mog;gilapy; vdf;F ghj;jpak; vd;Wk;. khwhf vd;Dila RthjPdj;jpd; mog;gilapy; jhth brhj;jpy; ghj;jpak; bfhz;lhltpy;iy vd;whYk; rhpjhd;/ jhth brhj;jpy; vdf;F ghj;jpak; bfhz;lhLtjw;nfh RthjPdj;jpy; ,Ug;gjw;nfh ve;jtpj mUfija[k; ,y;iy vd;why; rhpay;y/ ''

But, as per Article 65 of the Limitation Act, the 1st defendant/1st appellant

ought to have been in physical and continuous adverse possession of the suit

schedule property continuously for 12 years. Since the 1 st defendant/1st

appellant herein has admitted explicitly that for the first time, he has tried to

set up adverse possession only on 18.09.2014 while admitting the title of the

suit property in favour of the plaintiff in paragraph 3 of the Written

Statement, we are unable to find any error or infirmity in the judgment of

the trial court granting decree for declaration for the suit property with

consequential reliefs in favour of the plaintiff.

9. The claim by adverse possession made by the defendants shall be

substantiated with two elements, as laid down by the Apex Court in

Annakili v. A.Vedanayagam and others, 2008 (1) CTC 329, wherein it is

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held that the claim by adverse possession has two elements, namely, (1) that

the possession of the defendants should become adverse to plaintiff and (2)

that the defendants 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. Mere long possession, it is trite, for a

period of more than 12 years without anything more do not ripen into a title.

While considering the plea of adverse possession, it has been held in

Annakili's case, 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

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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.

23. In Saroop Singh v. Banto & Ors., (2005) 8 SCC 330, in which one of us was a member, this Court held :

”29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prhaladji Nayak v. Somnath Muljibhai Nayak).

30. “Animus possidendi” is one of the ingredients of adverse possession.

Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession

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is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd.Mohd..Ali v. Jagadish Kalita, Para 21.)”

25. Yet recently, in P.T.Munichikkanna Reddy & Ors., v. Revamma & Ors., (2007) 6 SCC 59, this Court noticed the recent development of law in other jurisdiction in the context of property as a human right to opine :

“Therefore, it will have to be kept in mind the courts around the world are taking an unkind view towards statutes of limitation overriding property rights.”

26. We may also notice that this Court in M. Durai v. Muthu & Ors. (2007) 3 SCC 114, noticed the changes brought about by Limitation Act, 1963, vis-a-vis, old Limiation Act, holding:

“The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis-a-vis the Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove

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his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession.”

10. In the light of the above settled legal position, when we are able to

see that the defendants/appellants have not even substantiated their physical

and continuous adverse possession of the suit schedule property

continuously for 12 years, we are unable to accept the argument of the

learned Counsel for appellants to interfere with the impugned judgment.

11. Secondly, as found supra, when the first defendant's father and

the father of the plaintiff were brothers, the younger brother accommodated

his elder brother's family to continue in his house, as a token of gratitude.

Subsequently, the father of the plaintiff also informed the plaintiff to allow

the parents of the first defendant to use the house property during their

lifetime. This has been admitted by both parties. In view of the above facts,

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when the defendants attempted to convert the permissive possession into

adverse possession, two elements constituting adverse possession, namely,

(a) that the defendants must continue to remain in possession for a period of

12 years and (ii) that the permissive possession thereby becoming adverse

possession, should be established. But the defendants have miserably failed

to establish these two elements.

12. The Apex Court also, disapproving the concept of adverse

possession, in the case of State of Haryana v. Mukesh Kumar and others,

(2011) 10 SCC 404, has held that a person pleading adverse possession has

no equities in his favour since he is trying to defeat the rights of the true

owner. People are often astonished to learn that a trespasser may take the

title of a building or land from the true owner in certain conditions and such

theft is even authorised by law, therefore, the theory of adverse possession is

also perceived by the general public as a dishonest way to obtain title to

property. In this context, discouraging and negativing the plea of setting up

of adverse possession, in paragraphs 40 & 41 of the judgment, the Apex

Court held as follows:-

“40. Parliament must seriously consider at least to

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abolish "bad faith" adverse possession, i.e., adverse possession achieved through intentional trespassing, actually believing it to be their own could receive title through adverse possession sends a wrong signal to the society at large. Such a change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief.

41. In case, Parliament decides to retain the law of adverse possession, Parliament might simply require the adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere 12. Such an extension would help to ensure that the successful claimants have lived on the land for generations, and are therefore less likely to be individually culpable for the trespass (although their forebears might). A longer statutory period would also decrease the frequency of adverse possession suits and ensure that only those claimants most intimately connected with the land acquire it, while only the most passive and unprotective owners lose title.”

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13. A close reading of the above paragraphs and paragraphs 44 & 45,

which are not extracted for the sake of brevity, would show that the Apex

Court has disapproved the very concept of adverse possession on the

premise that a person guilty of crime in the eye of law, must not only be

allowed to gain legal title of land, which he has illegally possessed for 12

years, but also must be denied any benefit thereof in the larger interest of

public. In view of the above settled legal position, we are unable to find any

merit whatsoever on the plea of setting up of adverse possession, in this

case.

14. When we are inclined to impose exemplary cost for wrongly

setting up adverse possession by the defendants since the defendants and

their family members were granted permission to occupy the suit property

by the father of the plaintiff with goodwill and also with an intention that

after sometime, they will leave without denying the title of the respondent

herein, it appears that the learned trial court rightly appreciating the

anguish faced by the plaintiff/respondent herein has also ordered the

defendants/appellants to pay a sum of Rs.15,000/- p.m. from the date of suit

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till they vacate the suit property towards damages and for use and

occupation. Therefore, four weeks time is granted to the defendants to

vacate and hand over the suit property to the respondent/plaintiff. Further,

as held by the trial court, the respondent is also entitled to recover

Rs.15,000/- p.m. towards damages from the date of suit till the

defendants/appellants herein vacate the suit property and if the appellants

herein failed to vacate and hand over vacant possession of the suit property

within four weeks from the date of receipt of a copy of this Order, the

appellants shall pay interest at 9% p.a. for the amount payable to the

respondent herein.

15. With the above observation and direction, the Appeal Suit is

dismissed. No costs. Consequently, connected Miscellaneous Petition is

closed.

                      Index : yes                           (T.R.J.,)     (G.C.S.J.,)
                      Speaking                                    09.02.2021

                      tsi

                      To

The I Additional District Judge, Coimbatore.

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T.RAJA, J.

and G.CHANDRASEKHARAN,J.

tsi

A.S.No.385/2017

09.02.2021

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