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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Mr. P. Ananthakrishnan Nair, for Appts.
  • Mr. S. Padmanabhan, for Respts.
Judges
  • Sethuraman, J.
Acts
  • Limitation Act, 1963, Arts. 64 and 65 correspond to Arts. 142 and 144 of the Limitation Act of 1908. Art. 142
  • LIMITATION ACT 1963
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Mr. P. Ananthakrishnan Nair, for Appts.
  • Mr. S. Padmanabhan, for Respts.
Judges
  • Sethuraman, J.
Acts
  • Limitation Act, 1963, Arts. 64 and 65 correspond to Arts. 142 and 144 of the Limitation Act of 1908. Art. 142
  • LIMITATION ACT 1963
See more information ...
Smart Summary

Structured Summary of the Legal Opinion

Factual and Procedural Background

The plaintiffs (appellants) instituted a suit for eviction, removal of buildings, delivery of vacant possession and costs in respect of a portion (about 8 cents) of survey No. 6610, which forms part of a larger garden of 83 cents. The plaintiffs traced title through family partitions and a release dated 20 March 1928 (Ex. A-5), and alleged the defendants had erected small buildings with permission of an earlier family head (Karnavan) and therefore must vacate.

Defendants 1 and 2 filed a written statement asserting ancestral possession and title dating back prior to M.E. 1020 (c.1845) and alleging that the plaintiffs had lost title prior to M.E. 1120 (c.1945), relying on limitation. Defendants 3–8 were sons of defendants 1 and 2; defendants 9–13 were tenants at will of defendants 1 and 2.

The trial court examined documentary exhibits (including partition deeds Exs. B-1, B-2, B-3 and Ex. A-5) and found in favour of the plaintiffs' title, held that the defendants had no title and were tenants at will, and decreed the suit.

Defendants 1 and 2 appealed to the Subordinate Judge (first appellate court), which agreed that plaintiffs had title but found that (a) the plaint was vague, (b) permissive possession by defendants had not been disproved, and (c) defendants had been in possession since year 1087 M.E (1912), concluding the suit was barred by limitation. The appellate court set aside the trial court decree.

The plaintiffs then pursued a second appeal to the present court, challenging the appellate court's reliance on limitation and its allocation of the burden of proof regarding possession and permission.

Legal Issues Presented

  1. Whether the defendants had established adverse possession of the suit property for the statutory period sufficient to defeat the plaintiffs' title under the Limitation Act, 1963.
  2. What is the proper allocation of the burden of proof in a suit for possession based on title filed after the Limitation Act, 1963 came into force — specifically, whether the plaintiff must prove possession within 12 years prior to suit or whether the defendant must prove adverse possession for 12 years.
  3. Whether the finding of the lower appellate court that permissive possession was not proved (and therefore the suit was barred by limitation) was binding on the second appeal court, given the changed legal position under the Limitation Act, 1963 and the evidence on record.

Arguments of the Parties

Appellants' (Plaintiffs') Arguments

  • There were concurrent findings on title in favour of the plaintiffs by both the trial and the first appellate court, so the only real question for the second appeal was whether the defendants had proved adverse possession for the requisite period.
  • The defendants failed to set up a consistent case as to how they acquired the property and when possession became adverse; allegedly new bases (usufructuary mortgage, purchase) were raised only in oral evidence and were not pleaded in the written statement.
  • Admissions in evidence (including payment of tax to a plaintiff named Jennie) supported the plaintiffs' title and undermined any claim of adverse possession by defendants.
  • The burden was wrongly shifted onto the plaintiffs by the lower appellate court; under the Limitation Act, 1963, defendants must prove adverse possession.

Respondents' (Defendants') Arguments

  • The plaintiffs had to show possession of the suit property within 12 years prior to the suit; this had not been established.
  • On the plaint and plaintiffs' evidence, the property had been in defendants' possession for a long time; possession and dispossession dated as early as 1087 M.E (1912), so the suit was barred by limitation.
  • The real question was whether plaintiffs had proved that the defendants' possession was permissive; permission is a question of fact and the lower appellate court's appreciation of evidence on that question should not be disturbed in second appeal.
  • The respondents relied on historical possession assertions made in evidence and contended the Limitation Act, 1963 did not revive rights already extinguished prior to its commencement.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Alam Khan Sahib v. A.L.M. Karuppanasami Nadar Where a plaintiff in an ejectment suit pleads that the defendant is his tenant, that pleading may amount to an assertion of possession and dispossession such that Article 142 (predecessor provision) applies; effectively the pleading can be treated as alleging dispossession within the limitation context. The court considered the principle but held it did not assist the respondents because the doctrine requires that repudiation/denial of the landlord's title occur at least 12 years prior to the date the Act came into force (i.e., prior to 1 Jan 1952). No evidence of repudiation prior to that date was produced in the present case, so the precedent did not support the respondents' case.
Govindaraj v. Kandasami Gounder Prohibition on a plaintiff abandoning his pleaded case to adopt the defendants' case and claiming relief on that footing. The court held the precedent inapplicable: the plaintiffs in the present case did not abandon their own pleaded title to adopt defendants' pleas, and were not seeking relief based on the defendants' written statement; the decision therefore provided no assistance to the respondents.

Court's Reasoning and Analysis

The court proceeded by first identifying the relevant statutory framework under the Limitation Act, 1963. It noted that Arts. 64 and 65 of the 1963 Act correspond broadly to Arts. 142 and 144 of the Limitation Act, 1908, and then explained the effect of the 1963 revisions:

  • Art. 64 (of the 1963 Act) pertains to suits based on possession: if the plaintiff, while in possession, was dispossessed or discontinued possession, the limitation period is 12 years from dispossession, and title need not be proved for Art. 64 purposes.
  • Art. 68 (as the opinion describes it) relates to suits for possession based on title; in such cases the limitation period is 12 years from when the defendant's possession became adverse to the plaintiff.
  • Where a suit falls under the provision corresponding to Art. 65 (residuary provision for possession based on title), a defendant seeking to defeat the plaintiff must establish adverse possession for 12 years, which extinguishes the owner's title by operation of section 27 of the Act.

Applying these principles, the court emphasised that because the suit was filed after the Limitation Act, 1963 came into force (the suit was filed in 1967), the onus was on the defendants to show they had adverse possession for the statutory period of 12 years. The court examined the evidence and materials on record and reached the following analytical conclusions:

  • The trial court had relied on documentary evidence (including Ex. A-5, a 1928 release) and other exhibits to hold that plaintiffs had title. The defendants had failed to trace any consistent documentary title from the family of Govindan Udayan to rebut Ex. A-5 and were therefore open to attack on collusion, in the trial court's view.
  • The defendants' pleaded case in the written statement relied on ancestral possession and title, but the documentary and oral evidence they later produced were inconsistent, shifting between a purported usufructuary mortgage and a purchase — claims which were not pleaded and for which no documentary evidence was produced.
  • There was no reliable evidence showing when defendants' possession became adverse to the plaintiffs; therefore the statutory requirement for proof of adverse possession for 12 years was not met by the defendants.
  • The appellate court's finding that the plaint was vague and that permissive possession had not been disproved was based on an incorrect allocation of the burden of proof in light of the 1963 Act. Because the suit was post-1963, defendants bore the burden to show adverse possession; the appellate court did not properly consider whether defendants had discharged that burden.
  • Evidence relied upon by the respondents (including selective reliance on P.W.1's statement about possession from 1087 M.E) could not be treated partially — if the respondents adopted parts of P.W.1's evidence to fix a starting date, they could not simultaneously assert that from that date the possession was adverse when the written statement did not so plead and no evidence supported it.

Because the defendants failed to show adverse possession for the requisite statutory period and because the appellate court's contrary finding was based on a misapplication of the burden of proof, the court held the appellate finding on permissive possession was not binding and restored the trial court's judgment.

Holding and Implications

Core Ruling: The second appeal is allowed.

Direct effects on the parties:

  • The court held that the defendants did not establish adverse possession for the statutory period of 12 years; the plaintiffs had proved title to the suit property.
  • The judgment and decree of the trial court are restored: the plaintiffs are entitled to possession of the disputed portion of S. No. 6610 and the defendants were treated as having only permissive possession (tenants at will) insofar as the trial court had found.
  • The defendants are to pay costs (the second appeal was allowed with costs).

Broader implications:

The opinion applies and clarifies the effect of the Limitation Act, 1963 on the allocation of the burden of proof in suits for possession based on title filed after the Act's commencement: defendants bear the burden of proving adverse possession for the statutory 12-year period to defeat an owner's claim. The opinion did not purport to declare or state that it was laying down a novel precedent beyond applying the statutory change to the facts of the case.

End of summary.

Show full summary ...

    Bhagavathy Pillai And Another v. Savarimuthu And Another

    1. The plaintiffs are the appellants. They instituted a suit against the defendants for eviction and for removal of buildings and delivery of vacant possession of the property and for costs. The plaintiffs belong to a tar wad, which became divided on 2nd August 1907, under which the Karnavan and Velayudhan Narayanan got the entire property. The branch of the plaintiffs, who were the Seshakars of the said Velayudhan Narayanan, divided the property in 1926. The property devolved on the first plaintiff and her mother and on the death of her mother, the first plaintiff became entitled to the property. There was a partition between the first plaintiff and her children on 17th December 1953 and in the said partition the property set out in the schedule, comprising about 8 cents, fell to the share of the plaintiffs. Having traced in this manner the title to the said property in the aforesaid manner, the plaintiffs alleged that the defendants had put up small buildings with the permission of the Karnavan and that they had to be removed and the site restored to the plaintiffs. The property is comprised in S. No. 6610 and the total area is 83 cents. The entire area is said to be a garden, in a portion of which viz. 8 cents therein some buildings have been put up by the defendants.

    2. Defendants 1 and 2 filed a written statement, in which they have stated that S. No. 6610 became their property prior to M.E 1020, corresponding roughly to 1845. According to them their ancestors were in possession. Even so the basis that the plaintiffs had any right to the property, their case was that the plaintiffs had lost their title prior to 1120 M.E corresponding to approximately 1945. They, therefore, contended that the suit was barred by limitation. They challenged also the rights of the plaintiffs to effect a division of the said property. It was alleged by them that the property bad been allotted to the branch of one Govindan Udayan. Defendants 3 to 8 are the sons of defendants 1 and 2. Defendants 9 to 13 were tenants at will of defendants 1 and 2. Thus, the written statement of the defendants 1 and 2 is practically the foundation on which the whole defence is rested.

    3. The trial court examined the title of the plaintiffs to the property in the light of the exhibits filed by the plaintiffs and the defendants. Ex. B-1 is a deed of partition in the family of one Govindan Udayan in which S. No. 6610 was the subject of division. The division was followed up by a further division in Ex. B-2 and also Ex. B-3. However, by a document, which was marked as Ex. A-5, there was a release by one Lakshmi Parvathi Pillai, of the branch of Govindan Udayan in favour of plaintiffs 1 and 2. This document is dated 20th March 1928. Based on this exhibit and also on the other materials referred to by the learned trial Judge, he came to the conclusion that the plaintiffs had title to the suit property. It was pointed out that the defendants had not traced any title from the family of Govindan Udayan so that Ex. A-5 could be attacked as being collusive.

    4. The learned Judge thereafter went into the question as to whether the defendants or their predecessors-in-title were in possession of the property right from M.E 1020. On this aspect, he pointed out that defendants, 1 and 2 had not stated as to how they got the property prior to 1020. He then referred to the evidence of the second defendant as D.W 3 in which it was stated that the suit property was in the possession of the defendants under an othi and kuzhikanam right of the year 1020 M.E No particulars of the othi deed of 1020 were forthcoming and D.W 3 bad clearly admitted that he did not know whether his father had given evidence before the Settlement authorities claiming title or possession in respect of the suit property under any mortgage deed. This mortgage deed was referred to as Vellala document or a document in Palmyra leaves. Having found that there was no title in the defendants to the suit property, the learned Judge held that they were only tenants at will. The learned Judge referred to the fact that there was no direct evidence in support of the plaintiff's claim that there was, in favour of the defendants, a kuppakacha grant, which means that the tenant is permitted to be in the property subject to bis gathering of the coconut leaves and surrendering them to the landlord. The learned Judge held that there was no question of adverse possession, as the possession of the defendants was permissive in character. He, therefore, decreed the suit.

    5. The first two defendants filed an appeal. The learned Subordinate Judge, Nagarcoil, after referring to Exs. A-1 to A-5 and A-23 held, agreeing with the trial court, that the plaintiffs had got title to the suit property. The learned Judge thereafter examined the question of the loss of the plaintiff's title by adverse possession. He pointed out that the admittedly the defendants were in possession of the disputed property, the harden lay heavily on the plaintiffs to prove their case. According to him, the claim set up by the plaintiffs in the plaint was vague in character, and the evidence of permissive possession has not also been established. In view of the vague allegations made in the plaint, of the failure to prove permission and of the possession of the defendants from the year 1087 M.E, he held that the sail was barred by limitation. In the result, the judgment and decree of the lower court were set aside.

    6. On behalf of the plaintiffs-appellants, the submission was that in view of the concurrent finding of both the courts below on the question of title, the only point that could arise for examination by the learned Subordinate Judge was whether the defendants had proved their title by adverse possession over the requisite period. It was submitted that the defendants did not at all set up any consistent case as to how they came into the property and when possession became adverse. The learned counsel urged that in the written statement, there was no plea of any title based on an alleged usufructuary mortgage, which was trotted out only during the oral evidence of the defendants' witnesses and that D.W 3 had gone, in contradiction of this, even to the extent of alleging a purchase by his grandmother of the suit property in the year, 1018, which case had not been put forward in the written statement. Counsel referred to the admission in the evidence in the defence witnesses that tax had been paid to Jennie thereby admitting the plaintiff's title to the suit property. It was pointed out that there was no question of any adverse possession on the facts herein and that the burden had been wrongly laid on the plaintiffs by the lower appellate court.

    7. For the respondent (defendants) the submission was that the plaintiffs had to show that they were in possession of the suit property within a period of 12 years prior to the suit and that this had not been established. It was argued that even on the basis of the plaint and the evidence of the plaintiffs, the property had been in the possession of the defendants for a long period, so that there was dispossession even as early as 1087 M.E It would, therefore, follow, according to the learned counsel for the respondents, that the suit was hopelessly barred by time, so that it was rightly dismissed by the lower appellate court. Counsel also argued that the real, question in the present suit was only whether the plaintiffs had proved any permissive possession in the bands of the defendants and that the question of permission is a question of fact on which the appreciation of the evidence by the lower appellate court could not be disturbed in second appeal.

    8. The suit itself was filed in the year 1967 after the Limitation Act of 1963 came into force. This Act has made certain changes in the Law of Limitation, which it is necessary to notice at this stage. Under the Limitation Act, 1963, Arts. 64 and 65 correspond to Arts. 142 and 144 of the Limitation Act of 1908. Art. 142 dealt with the suit for possession of immovable property, when the plaintiff, while in possession of the property, had been dispossessed, or had discontinued the possession. In such a case, the the period of limitation was 12 years from the date of the dispossession or discontinuance. Art. 144 related to suits for possession of immovable property or any interest therein not specifically provided for in the schedule to the Act of 1908. The period of limitation was 12 years from the date when the possession of the defendant became adverse to the plaintiff. It may be seen that Art. 144 was in the nature of a residuary article, which would come in for application only if there was no other specific provision in the other Articles of that Act. In other words, if in a given situation Art. 142 could apply, then the residuary Art. 144 would be ruled out of the application.

    9. Arts. 142 and 145 gave rise to a good deal of confusion with respect to suits for possession by owners of property. The law as it stood appeared to favour a trespasser as against an owner, because the decision had held that in an ejectment action by the owner of the property, it was cot sufficient for him to establish his title, but he had also to go further and establish that he was in possession of the property within 12 years before the date of the institution of the suit. In order to redress this anomaly, Arts. 64 and 65 were suitably altered. Art. 64 deals with suits based on possession and not on title. In such a case the plaintiff, who, while in possession had been dispossessed, could file a suit within a, period of 12 years from the date of dispossession. For the purpose of Art. 64 there is no question of proving any title. Art. 68 relates to suits for possession based on title, In such a case the period of limitation is 12 years when the possession of the defendant became adverse to the plaintiff. If in a suit falling under Art. 65, the defendant wants to defeat the rights of the plaintiff, he has to establish his adverse possession for a period of 12 years, which has the effect of extinguishing the title of the owner by the operation of S. 27 of the present Act. If he fails to do so, then the plaintiff cannot be non-suited merely because he was not able to prove possession within 12 years.

    10. The learned counsel for the respondent was aware of the change in the legal position emerging from the Act of 1963. His endeavour was, therefore, to show that the plaintiffs had lost their right to the property at the time when the new Act came into force and that the new Limitation Act did not revive any right, which had already been extinguished when it came into force. It is in this context that the learned counsel drew my attention to a decision of a Bench of this court in Alam Khan Sahib v. A.L.M Karuppanasami Nadar(1). The principle of this decision has been set out in the head note as follows:

    “Where in a suit for ejectment, the plaintiff sets up in hit plaint the case that the defendant is his tenant, it is tantamount to saying that the defendant, When he repudiated his title as landlord, dispossessed him, so that there is in effect an assertion of possession and dispossession-precisely what is contemplated under Art. 142 The mere fact that the recital in the plaint is false and the plaintiff was never in possession, but on the contrary strangers were in possession is not sufficient to attract Art. 144, for it might mean that there was independent trespass not connected as of right.”

    In order that this decision may apply, it is necessary that there should have been a repudiation of the title of the landlord by the tenant 12 year prior to coming into force of the Act of 1963 on 1st January 1964. In others words there should have been a denial of the right of the landlord prior to 1st January 1952. Counsel was not in a position to place before me anything to show that there was any repudiation of the title of the landlord prior to 1st January 1952 in the present case. Thus, there is nothing in this decision, which supports the case of the respondents before me.

    11. As the present suit has been filed after the coming into force of the Limitation Act of 1963, the onus is clearly on the defendants to show that possession was adverse to the plaintiffs for a statutory period of 12 years. There is no evidence on record to show when the possession of the respondents became adverse to the plaintiff. The case of the respondents has been somewhat shifting and ambulatory. Initially, the case set up in the written statement was baled on title. This case has been found against by both the courts below. In the oral evidence there are two contradictory stands, viz. (1) of a usufructuary mortgage, and (2) of a purchase. For neither of these two stands is any evidence placed before the court. The defendants would be in possession of the documentary evidence either to support the case of the usufructuary mortgage or that of purchase. The defendants have not placed any material on this point. Thus, the case of title set up in the written statement has been found against. The case of usufructuary mortgage or purchase, even assuming one has to go into it when the plea has not been taken in the written statement, has not also been established.

    12. The learned counsel for the respondents drew my attention to a decision of Rajagopala Aiyangar, J. (as he then was) in Govindaraj v. Kandasami Gounder(2). It was held therein that the plaintiff could not be allowed to abandon his own case, adopt that of the defendants and claim relief on that footing. I am unable to see how this case has any application to the facts here. The plaintiffs in the present case are not seeking to abandon their case of title, which is set out in the plaint. They are not trying to take advantage of a plea taken by the defendants in the written statement. In fact, the plea taken in the written statement is completely contrary to the case of the plaintiffs throughout and the plaintiffs do not claim any relief based on any plea in the written statement as such. This decision is, therefore, of no assistance to the question before me.

    13. As already indicated, the contention of the learned counsel for the respondents is that the title of the plaintiffs was lost by adverse possession over the statutory period prior to the Limitation Act, 1963, coming into force. On this aspect, I have already Indicated, there is no evidence placed by the respondents. The learned counsel for the respondents contended that the burden of proving adverse possession cannot be thrown on the respondents. The present suit having been filed after the Limitation Act, 1963, came into force, the law enacted therein would apply to suits filed thereafter. In the case of a suit for possession based on title, the plaintiff has no longer to prove that he was in possession of the property for a period of 12 years. It it for the defendant now to establish that his possession has been adverse for the requisite period of 12 years. This has net been done in the present case. In fact, learned counsel for the respondents is seeking to rely on the evidence off P.W 1 in which he had stated that the ancestor of defendants 1 to 8 was one Maria Arulappan, who happened to live in the suit property as a Kuppa Kacha Kuzhi Kidappu Karan and that he came there under the permission of Velayudhan Narayanan in the year 1087 M.E, which corresponds to 1912. The defendants cannot seek to rely on one part of the evidence of P.W 1, viz, of possession from 1087 M.E and reject the other part, viz, of possession. If P.W 1's evidence as regards the starting point of the possession of the defendants' ancestors of the year 1087 is to be relied on by him, then he cannot turn round and say that at the said starting point, possession was not permissive, and, therefore, adverse. Even the case set up by the respondents' counsel before me of adverse possession, which was not in fact taken in the written statement, cannot thus be accepted.

    14. The question that now remains is whether finding of the lower appellate court that the plaintiffs have not proved permissive possession is binding on me. When the finding is based on a wrong application of the principle of burden of proof, then the finding cannot be said to be binding. In the present case, as I have already pointed out, it is for the defendants to establish that they had perfected title by adverse possession. The learned Subordinate Judge has not chosen to refer to any evidence on the defendants' side on the question as to whether this plea has been established or not. In these circumstances, it is clear that the finding of the lower appellate court is not binding on me.

    15. For the above reasons, I hold that the defendents have not established their case of adveres possession, that the plaintiffs having proved title to the property are entitled to the possession thereof, so long as the defence has not established the plea of adverse possession and that the judgment and the decree of the rial court has thus to be restored. I direct accordingly.

    16. The second appeal is allowed with costs.

    V.C.S

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    Comments

    Bhagavathy Pillai And Another v. Savarimuthu And Another
    (Apr 4, 1975)