Sadasiva Gounder And Another v. Purushothaman .

The Judgment of the Court was delivered by

K. Sampath, J.:— The plaintiffs in O.S No. 1925 of 1981 on the file of the Principal District Munsif, Tindivanam, are the appellants in the second appeal. They filed the suit for declaration, recovery of possession, mesne profits and for a mandatory injunction to the defendant/respondent to remove the 3 Horse Power Motor pumpset and the thatched shed from the suit property on the following averments:

2. The suit item 1 is of an extent of 20 cents in S. No. 156/2. The suit item 3 is a well and pumpset in suit item 1. (So far as suit item 2 is concerned, the defendant does not claim any right in the same and it is not necessary to deal with item No. 2). The suit item 1 and other properties originally belonged to the joint family of one Venkatasamy Naidu. There was a partition in the said family on 7.12.1959 Individual items and undivided shares in properties including lands and wells were in the possession and enjoyment of individual shares. The plaintiffs purchased the suit property among others from one of the branches. viz., Ramanujalu Naidu's branch under a sale deed dated 27.4.1980 for a valuable consideration of Rs. 13,000/-. By virtue of purchase they have clear and unimpeachable title and in any event, they have prescribed for title by adverse possession on account of uninterrupted and notorious possession by the predecessors in interest of the plaintiffs and by the plaintiffs. There is a well in suit item No. 1 in a land of 20 cents. There is a electric motor and pumpset installed by one Subramania Gounder with the permission of the plaintiffs and their vendors. The plaintiffs' vendor Ramanujalu Naidu was working as Deputy Superintendent of Police and he was away from the village most of the time on account of his occupation. His other family members were also elsewhere on account of studies and job. The family members of Ramanujalu Naidu enjoyed their shares in the lands by leasing out to others. In respect of the suit property and other lands the plaintiffs were cultivating the lands on lease on oral basis. The water from the well in R.S No. 156/2 - 20 cents was not used by and was also not required for purpose of irrigation by any other sharers. The well in suit item No. 1 is not a common well. There is a well in R.S No. 156/1 which the plaintiffs have got ⅔rd share while one Kottaiah Naidu had ⅓rd. One of the brothers Kottaiah Naidu sold his share to Subramania Gounder on 14.6.1965 The suit item were not the subject matter of conveyance under the said sale deed. Subramania Gounder sold what he purchased to one Ranganayaki Ammal on 2.4.1979 and from Ranganayaki Ammal the defendant purchased on 21.4.1980 The suit properties were not subject matter of these three sale deeds. The defendant does not therefore have any right in the suit properties. Subramania Gounder, after his purchase in 1965, expressed difficulty in getting supply of water from the common well. Therefore, he sought for permission from Ramanujalu Naidu and his sons and also the plaintiffs to put up an electric motor and pumpset in the suit well situate in R.S No. 156/2 and accordingly, he put up an electric motor and pumpset in the suit well in R.S No. 156/2. Since Subramania Gounder had no independent title or possession with regard to installation of electric motor in R.S No. 156/2 and he was only a permissive user, he could not prescribe title to have this electric motor inside the well in R.S No. 156/2. In fact, the electric motor itself was put up in 1968 and when he sold it to Ranganayaki Ammal on 2.4.1979, 12 years had hot elapsed. There was no question of adverse possession to have a right to retain the electric motor in the suit well.

3. On 23.7.1981 the plaintiffs caused a notice to be issued to the defendant who claimed right in the well and motor and pumpset in the suit item 1, to which a reply was given by the defendant on 27.7.1981 stating that the well in S. No. 156/2 had become dilapidated and non-existent and that Subramania Gounder dug a well in 1968. Subramani Gounder did not dig the well at all. Even at the time of filing of the suit only the original well continued to exist. The further contention in the reply that he got title to an extent of 20 cents by virtue of an oral exchange from Ramanujalu Naidu by Subramania Gounder is also false. No such exchange took place. In fact, Subramania Gounder was measuring two bags of paddy to the plaintiffs' vendor in lieu of the aforesaid permission granted by Ramanujalu Naidu to have the motor and the pumpset installed and take water. The further contention that Subramania Gounder was enjoying the 20 cents of land was also false and fraudulent. The defendant started giving trouble to the plaintiffs' enjoyment necessitating the filing of the suit. The case of the defendant in the written statement is as follows:

4. The suit item 1 land and well and the electric motor and the pumpset and thatched shed which is item 3 belonged to Subramania Gounder exclusively and in his enjoyment. Subramania Gounder by virtue of an oral exchange with Ramanujalu Naidu got the suit property in 1965 and eversince he had been in possession and enjoyment. The well in suit item 1 was dug by Subramania Gounder. It belonged to him exclusively. He fixed the electric motor and pumpset in 1968 and put up a thatched shed and obtained electricity service connection and was in enjoyment. Neither Ramanujalu Naidu nor his successors in interest had any right in the well motor and pumpset. The oral permission set up in the plaint is not true. Neither Subramania Gounder nor Ranganayaki Ammal gave any paddy to Ramanujalau Naidu in consideration of their using the well and installing the motor and pumpset and using the water. Ranganayaki Ammal on 2.4.1979 purchased suit item 1 along with the well and pumpset from Subramania Gounder and on 21.4.1980 she sold the same to the defendant and eversince the defendant was in enjoyment of items 1 and 3. He and his purchasers in interest had been in possession and enjoyment of suit items 1 and 3 for over 12 years and had prescribed for title by adverse possession. The plaintiffs were trying to take advantage of the mistake in the survey number in the sale deed in favour of Ranganayaki Ammal and the defendant. The well in suit item 1 had become dilapidated and Subramania Gounder dug a new well. Even in the common well, in S. No. 156/1 the defendant was entitled to ⅓rd share. Even in respect of 156/1 the survey number had been wrongly given. The suit third item had not been properly valued.

5. In the additional written statement filed by the defendant, it is stated as follows:

6. In the sale deed in favour of the defendant the suit first item had been omitted. Instead of that more extent than actual had been included in S. No. 156/1. The defendant as well as his vendor had purchased the suit first item and the suit third item under their respective sale deeds and the suit first item was portion of 1.46 acres comprised in the sale deed in favour of the defendant as well as in favour of the defendant's vendor. The plaintiffs have no title to the suit first item. The Commissioner's report also would probabilise that Subramania Gounder is a necessary party to the proceedings. Unless the plaintiffs prove mat they obtained permission from Subramania Gounder, they cannot succeed. The suit is bad for non-joinder. There is no electric motor and pumpset in S. No. 156/1 but only in S. No. 156/2.

7. On the above pleadings, the learned District Munsif framed the necessary issues. Exs. A-1 to A-8 were marked on the side of the plaintiffs and P.Ws 1 and 3 were examined. On me side of the defendant Exs. B-1 to B-14 were marked and D.Ws 1 to 6 were examined. The learned District Munsif found that the suit properties belonged to the plaintiffs, that the sale deed dated 27.4.1980 in favour of the plaintiffs is true, ???d and binding on the defendant, that suit items 1 and 2 were in the possession of the plaintiffs, that Subramania Gounder renovated the well in suit item and fixed motor and pumpset, that the defendant is not entitled to the suit properties on the basis of his possession, that proper Court fee had been paid and that there was no bar of limitation and so holding by judgment and decree dated 30.1.1987 the trial Court decreed the suit.

8. However, on appeal by the defendant in A.S No. 19 of 1987 the learned Subordinate Judge, Tindivanam, reversed the decision of the trial Court, allowed the appeal and dismissed the suit by judgment and decree dated 12.10.1988 It is as against this the present second appeal has been filed and at the time of admission the following substantial question of law was framed for decision in the second appeal:

“Whether the lower appellate Court was legally right in upholding the claim of the defendant of his perfection of title by adverse possession, especially when the sale deed does not include the suit property and the documents stand only in the name of Subramanian?”

9. In the course of me arguments Mr. A.K Kumarasamy, learned counsel for the respondent, submitted that the defendant/respondent is not claiming title and he is rest content with his stand that he and his predecessors in interest had prescribed for title by adverse possession.

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

11. However, that does not solve the problem on its own. We have to find out as to whether this was a case of Subramania Gounder being permitted by Ramanujalu Naidu for his digging a well and installing motor and pumpset. The lower appellate Court has adverted to the oral evidence of P.Ws 1 to 3 on the side of the plaintiffs where, according to the lower appellate Court, there is a vital admission that ever since 1965 Subramania Gounder was alone in enjoyment of the well, motor and the pumpset that adangal was in Subramania Gounder's name and therefore, from 1965 Subramania Gounder had been in possession and enjoyment of the suit property. In this context, the lower appellate Court has not adverted to the very evidence of Subramania Gounder himself as P.W 3, which has been referred to by the trial Court in paragraph 11 of its judgment. In his chief-examination he has said that he dug the well in the year 1965 and that he got electricity connection in his name. In his cross-examination he said that he did not know as to in which survey number the well dug up by him in 1965 was situate. From the mere fact that Subramania Gounder had dug a well, it would not necessarily follow that the well dug up by Subramania Gounder was in S. No. 156/2. From the documents relating to the sale deeds in favour of the plaintiffs it is seen that mere was a well already there in S. No. 156/2. If there was a well already in S. No. 156/2, there was realy no need for digging a new well in S. No. 156/2. From this the case of the plaintiffs is probabilised that Ramanujalu Naidu gave permission to Subramania Gounder to have the use of the well in S. No. 156/2 and to have the motor and pumpset installed for his use in the said well. When once it is found that the very possession and enjoyment of the suit well started on a permissive note, then unless the defendant showed that permission ceased at a particular point of time and thereafter, the possession started becoming adverse and in fact, became adverse on the date of the suit, the defendant's case cannot be accepted. The trial Court has also adverted to a particular aspect of the matter relating to Subramania Gounder obtaining electricity service connection from Electricity Department in his own name. The relevant documents are Exs. B-1 and B-14. However, significantly the application given by Subramania Gounder for electricity connection and the orders passed thereon were not exhibited in the suit by the defendant. Possibly Subramania Gounder renovated the well in S. No. 156/2. But that would not mean that he dug a new well and was in possession and enjoyment of the same in his own right and the same was passed on to Ranganayaki Ammal and then to the defendant. In 1965 or in 1968 Subramania Gounder could not have claimed any title in the suit property and as already noticed, the permissive possession set up by the plaintiffs is clearly established.

12. So far as adverse possession is concerned, it is claimed in derogation of the rights of the rightful owner. For proving adverse possession, something more than what has been shown in the instant case is required. Adverse possession as we all know commences in wrong and is maintained against right. There are several decisions touching this aspect and it is not necessary to quote chapter and verse. Suffice it to refer to only a few decisions.

13. “A person claiming adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession.” - (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma, (1996) 8 SCC 128 : (1996) 1 SCI 732). It has been held in Anantha Pillai v. Rathinasabapathy Mudaliar, (1968) 2 MLJ 574 as follows:

“The concept of adverse possession contemplates a hostile possession, i.e a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights, but denies them. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor.”

14. Since the right by adverse possession is exception to law of acquisition of title through lawful means, the same has to be pleaded with certainty and proved to hilt. In the instant case, we have already noticed that Subramania Gounder has given evidence to the effect that he did not know the survey number where he had dug me well. That would amount to saying that he did not know whether it was his property or somebody else's property. There is absolutely nothing to show that he had the necessary animus to hold the property as his own in derogation of the rights of the true owners. It cannot be said he had either the corpus or the animus. The respondent has not succeeded in showing that he had prescribed for title by adverse possession.

15. This is a case where the lower appellate Court had not focused its attention on the weighty reasons advanced by the trial Court and without examining the materials on record in that respect, decided the case on totally irrelevant circumstances omitting to draw proper inference from proved facts and to apply law in the proper perspective. There had been gross misappreciation of the evidence going to the root of the matter. The approach of the lower appellate Court was essentially an erroneous one.

16. In view of the discussion above, the judgment and the decree of the lower appellate Court cannot be sustained. The defendant cannot be held to have proved either title or possession on the basis of documents of title or on the basis of adverse possession. Consequently, the substantial question of law raised for decision in the second appeal is answered in favour of the appellants and the second appeal is answered in favour of the appellants and the second appeal succeeds. The judgment and the decree of the lower appellate Court are set aside and those of the trial Court restored. There will however, be no order as to costs.