S.A No. 681 of 1984: The defendant in O.S No. 281 of 1979 on the file of the District Munsif, Nagapattinam and the appellant in A.S No. 48 of 1981 on the file of the Subordinate Judge of Nagapattinam is the appellant in the Second Appeal. The plaintiffs in the said suit and the respondents in the first appeal are the respondents in the Second Appeal.

Second Appeal No. 682 of 1984: The plaintiff in O.S No. 280 of 1979 on the file of the District Munsif, Nagapattinam and the appellant in A.S No. 47 of 1981 is the appellant in the Second Appeal. The defendants in the suit and the respondents in the appeal are the respondents in the Second Appeal.

2. The subject matter of the two suits is the eastern portion of the property in T.S No. 58, Miah Street, Nagur. There were two sisters Fathuma Gani and Azeez Nachiar. They had a cousin by name Jainabu Gani. Jainabu Gani and Fathima Gani sold T.S No. 58 to one Fathima Beevi by a sale deed dated 2.5.1939 which is Ex.A1 The daughter of Fathima Beevi is Ameena Ammal. The plaintiff in O.S No. 280 of 1979 and the defendant in O.S No. 281 of 1979. Fathima Beevi settled the property covered by Ex.A1 in favour of the present appellant under a settlement deed, Ex.A2 dated 15.6.1973 Jahabar Nachiar, the first plaintiff in O.S No. 281 of 1979 is the daughter of Azeez Nachiar. Her husband is Aliah Maricair the second defendant in O.S.N 280 of 1979 and the second respondent in S.A No. 682 of 1984. There is no dispute that Azeez Nachiar is entitled to the neighbouring land T.S No. 59 on the east of T.S No. 58. On the death of Azeez Nachiar, Jahabar Nachiar succeeded to the said property. On 21.3.1960 Jahabar Nachiar sold the property to Jainabugani Ammal. Jahabar Nachiar and through her Jainambugani Ammal put forth a claim to the eastern portion of T.S No. 58 and this gave rise to the litigation. As already stated, the suit O.S No. 280 of 1979 was filed by the appellant for declaration of title, for possession and for a permanent injunction. O.S No. 281 of 1979 was filed by Jahabar Nachiar and Jainambugani Ammal for a permanent injunction. The two suits were tried together by the learned District Munsif of Nagapattinam. He accepted the case of Jahabar Nachiar and Jainambugani Ammal and dismissed the suit O.S No. 280 of 1979 filed by the appellant and decreed the suit O.S No. 281 of 1979 filed by Jahabar Nachiar and Jainambugani Ammal. The present appellant preferred appeals A.S No. 47 and 48 of 1981 and they were disposed of by a common judgment. On 26.11.1981 by the learned Subordinate Judge, Nagapattinam. The learned Subordinate Judge allowed both the appeals, decreed O.S No. 280 of 1979 and dismissed O.S No. 281 of 1979. Questioning the decisions against them respondents filed Second Appeal Nos. 257 and 258 of 1982 and this Court found that on the question of title regarding the disputed property no case had been made out for interference, and confirmed the decision of the lower appellate court on the question of title. However on the question of adverse possession, this Court remitted the matter to the lower appellate court for re-appraisal of the evidence on record in the cases regarding adverse possession. This Court also directed the lower appellate court to consider the parties' request, if any, for placing any additional evidence, if a warrant for the same was made out in law.

3. After remand, the lower appellate court, by its common judgment and decree dated 23.2.1984 found that the respondents had established adverse possession and dismissed the appeals. Aggrieved, the present Second Appeals have been filed.

4. At the time of admission, the following substantial question of law was framed for consideration in the two Second Appeals:

“Whether the lower appellate court has committed material error in law in holding that the respondents have title to the suit property by documents of title when that question was finally decided by this Court in favour of the appellant herein in S.A Nos. 257 and 258 of 1982”.

5. Mr. Gunalan, learned counsel for the appellant in both the appeals contended that the lower appellate court had once again gone into the question of title and given a finding against the appellant and this was unwarranted. On the question of adverse possession, the lower appellate court has held that the appellant had not proved her possession and therefore, by default, adverse possession of the respondents stood established. The further contention of the learned counsel for the appellant was that the appellant had produced abundant material to show her possession. He also relied on the following decisions:

1. Karmega Kone v. Udayar Kone (1979 (1) M.L.J 419 = 92 L.W 299).

2. Ponnaiyan v. Munian (died) And Others (1995 I L.W 680).

3. Natesan v. Chinnachi Kandar and 4 others (1996 (II) L.W 344).

4. Bhagavathy Pillai v. Savarimuthu (AIR 1976 Madras 124 = 89 L.W 72).

6. Mr. Palaniappan, learned counsel for the respondents contended that in the nature of things there could not be a decision on adverse possession without reference to title. Learned counsel also pointed out that the prayer for recovery of possession by the appellant is enough to show that possession was not with the appellant. The very lie of the property would show that the possession was only with the respondents. This possession was with them from the date of Ex.B1 dated 27.11.1942 D.W.2 had also spoken about the possession of the respondents. The learned counsel in support of his submissions relied on the following decisions:

1. Kashinath Gyanoba Kikle v. Ganesh Sitaram Kulkarni and another (1923 Bombay 361).

2. Mohammad Mahmud v. Balloo and others (A.I.R 1934 Oudh 21).

3. Pandit Raghubarprasad v. Balloo And Others (ILR 1941 Nagpur 691)

4. Sukadev Ram And Another v. Kulamani Sen and others (A.I.R (31) 1944 Patna 74).

5. Smt. Samundra Devi v. Chand Singh (A.I.R 1979 Himachal Pradesh 24) and

6. Secretary of State v. Debendra Lal Khan (A.I.R 1934 P.C 23 = 39 L.W 257).

7. The learned counsel further submitted that the plans filed in the suits clearly established that the disputed property had access only from T.S No. 58 and this would establish that the property had been only in the enjoyment of the respondents. The learned counsel also drew attention to the observation by the Commissioner that the access on the side of the appellant to the disputed property had been closed long ago.

8. Meeting these points, the learned counsel for the appellant submitted that the respondents had not placed any material as to when the access doorways on the side of the appellant were closed and unless that was clearly established, the respondents' case of adverse possession must fail. The learned counsel also submitted that the respondents should also establish as to from which date, they had access. There is also oral evidence about fixing a door in the year 1953 and in Ex.A1 there is definite reference to T.S No. 58 “According to the learned counsel for the appellant, there was total lack of animus regarding adverse possession claimed by the respondents”.

9. The first plaintiff in O.S No. 281 of 1978- the first respondent in the appeals admitted in the plaint that the entire built up area in T.S No. 58 belonged to the appellant. In all the documents, namely Exs.A1, A2, A12, B1 and B2 the description of the property is given as T.S No. 58.

(9A). Let us therefore start on the premise that title had been found in favour or the appellant, that it has become final and it cannot be reopened and reagitated. The question is whether the respondents have proved their adverse possession of the southern portion of ABCD verandah downwards in the plaint plan and DEFG. in Ex.C3 plan of the Commissioner. The Commissioner's report in O.S No. 281 of 1979 cannot be relied upon so far as suit O.S No. 280 of 1979 is concerned. He was appointed for a different purpose in the other suit. Admittedly, there is no documentary evidence produced to show the possession of the respondents. After remand by this Court, one Naina Mohamed was examined as D.W.2 He stated that he had gone to the respondents' house during functions and that he had noticed that the disputed property had access on the side of the respondents' house and that they had possession. He is a relation of the respondents. There is no other independent evidence. Mere oral evidence for proving possession in respect of house property is wholly inadequate. More concrete evidence is necessary. The lower appellate court has erroneously relied on interested oral evidence and this coupled with its reasoning that the appellant had not shown her possession for a long time prompted it to find adverse possession in favour of the respondents. The lower appellate court had misdirected itself in casting the onus on the appellant. After the new Limitation Act it is wholly unnecessary for the plaintiff to prove possession within 12 years prior to the suit.

10. It is in evidence that there were doors on the west of the property under dispute. It is in evidence that they were closed soon after the death of the settlor with the idea of having a doorway in front of the street so as to make the property an independent unit. The trial court relied on the plan of the Commissioner in the other suit viz., O.S No. 281 of 1978. The Commissioner in that suit at the request of the respondents consciously did something beyond the scope of the Commission warrant issued to him. He has also mentioned about it in his report. It is also strange as to how the Advocate Commissioner stated in his report that the entrances to the property in dispute were closed long back and not recently. The basis for this conclusion by the Advocate Commissioner does not appear from the report. The trial court erroneously relied on that report and decided the issue. The present position is that possession follows title, unless the persons claiming adverse possession clearly established possession for 12 years and more with the necessary animus to hold hostile title.

11. Now let us have a look at the decisions relied on by the learned counsel for the respondents since the onus is on the respondents to prove adverse possession.

12. In Kashinath Gyanoba Kikle v. Ganesh Sitaram Kulkarni and another (1923 Bombay 361), referring to Section 110 of the Evidence Act, a Division Bench of the Bombay High Court observed as follows:

“The presumption, that the plaintiff having the title, also has possession, can properly be made in the case of the jungle or waste land, where there is no proof or very little proof of acts of ownership having been exercised on either side, or in cases where the evidence as to such acts of ownership is very nearly equal. Though S. 110 recognised a presumption that the person in possession also has a good title there is no corresponding Section saying that the person with the title should be presumed to be in possession. This presumption is one that can only come under S. 114 of the Evidence Act which allows the Court to presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events”.

This was before the advent of the new Limitation Act. The decision cannot apply to the facts of the present case. The onus is clearly on the respondents to prove adverse possession.

13. In Mohammad Mahmud v. Muhammad Afaq (A.I.R 1934 Oudh 21), a Bench of the Oudh High Court stated the law on adverse possession as follows:

“Title by adverse possession cannot be acquired by mere possession per se for any length of time. In order to acquire such title, the possession must not only be open and exclusive, but it must also be shown to have been adverse for the full statutory period. Notoriety of possession may, in some cases, justify a presumption that the true owner was aware of the character of the possession being adverse. But whether in the absence of direct proof of actual knowledge on the part of the true owner, such a presumption should be raised against him or not, must depend upon the special facts and circumstances of each case”.

So far as this decision is concerned, it is clearly laid down that whether a presumption should be raised against the true owner or not, must depend on the special facts and circumstances of each case. It does not in any way help the case of the respondents.

14. In Pandit Raghubarprasad v. Ballon and others (I.L.R 1941 Nagpur 691), the case arose under Article 144 of the old Limitation Act. It was observed by the Nagpur High Court, as follows:

“It is not necessary that adverse possession in order to perfect a title should be shown to have been brought to the knowledge of the person against whom time is running. It is sufficient that the possession is overt and without any attempt at concealment so that the person against whom time is running ought, if he exercises due diligence, to be aware of what is happening”.

The ratio of the decision is that it is enough if possession is overt.

15. In Sukadev Ram and another v. Kulamani Sen and others (A.I.R(31) 1944 Patna 740), the same principle with regard to adverse possession in respect of waste land was reiterated.

16. In Smt. Samundra Devi v. Chand Singh (AIR 1979 Himachal Pradesh 24), a Bench of the said High Court observed as follows:

“The requirements of law in cases where adverse possession is claimed are that the possession must be adequate in continuity, in publicity, and in the extent to show that it is adverse to competitor. As between co-sharers, there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.

17. The last of the decisions on which considerable reliance was placed by the learned counsel for the respondents is Secretary of State v. Debendra Lal Khan (I.L.R 61 Calcutta 262 PC = A.I.R 1934 PC 23 = 61 Indian Appeals 78 = 147 Indian Cases 544 = 39 L.W 257). The Law Lords stated the law on the subject of adverse possession as follows:

“The classical requirement is that the possession should be nee vi nec clam, nec precario. Mr Dunne for the Crown appeared to desiderate that the adverse possession should be shown to have been brought to the knowledge of the Crown, but in their Lordship's opinion there is no authority for this requirement. It is sufficient that the possession be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening. If the rights of the Crown have been openly usurped it cannot be heard to plead that the fact was not brought to its notice”.

18. As against these decisions, the learned counsel for the appellant relied on several decisions. The first of the said decisions is S.M Karim Alias Tamanna Sabeb v. Mst Bibi Sakina . (AIR 1964 SC 1254), wherein the Supreme Court held as follows:

“Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. A mere suggestion in the relief clause that there was an uninterrupted possession for “several 12 years” or that the plaintiff had acquired “an absolute title” was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea”.

19. In Bhagavathy Pillai v. Savarimuthu (AIR 1976 Madras 124 = 89 L.W 72), it has been clearly held in paras 10, 14 and 16 that burden of proof is on the defendant who claims the right to property by way of adverse possession:

“Arts. 142 and 144 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 not 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. 65 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 Section 27 of the present Act. If he fails to do so, then the plaintiff cannot be nonsuited merely because he was not able to prove possession within 12 years.

14. 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 indicate 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 is for the defendants now to establish that their possession has been adverse for the requisite period of 12 years. This has not been done in the present case. In fact, learned counsel for the respondents is seeking to rely on the evidence of P.W.I in which he had stated that the ancestor of defendants 1 to 3 was one Maria Arulappen, 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.I, Viz, of possession from 1087 M.E and reject the other part Viz. of permission. 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.

16. For the above reasons, I hold that the defendants have not established their case of adverse 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 trial court has thus to be restored. I direct accordingly”.

20. In Karmega Kone v. Udayar Kone (1979 (1) M.L.J 419), Ramaprasada Rao, J (as he then was) relied on the decision in S.M Karim Alias Tamanna Sabeb v. Mst Bibi Sakina . (A.I.R 1964 S.C 1254), to hold that there must be a specific plea as to when adverse possession commenced.

21. In Ponnaiyan v. Munian (died) and others (1995 (1) L.W 680) the learned Judge has held that there can be no adverse possession if the person who claims does not know that he is enjoying somebody else's property.

22. In Natesan v. Chinnachi Kandar and 4 others (1996 2 L.W 344), P. Sathasivam, J. has held that exclusive possession coupled with intention to hold as owner is necessary.

23. Adverse possession commences in wrong, and is maintained against right. Propositions of law laid down by the various decisions cited by counsel on either side are beyond dispute. The question is whether they apply to the facts of the present case. It is vehemently argued by the learned counsel for the respondents that the very fact that the appellant had asked for possession would show that she was not in possession. Conceding that, does it prove the respondents' possession for over 12 years? The questions unanswered are as to when the possession commenced to make up the requisite 12 year period and what was the animus and what was the documentary proof to show her possession. As already stated, the discussion and consequent conclusion by the lower appellate court are cursory and the same cannot stand. It has already been noticed that the lower appellate court found that the appellant had not proved possession and that it therefore followed that the respondents were in possession for over 12 years. There has been a total wrong application of the principle of burden of proof on such a crucial question as adverse possession. There is thus a defect in procedure and the High Court is therefore entitled to interfere under Section 100 of the Code of Civil Procedure.

24. The lower appellate court went wrong in deciding the question of adverse possession in favour of the respondents. Now that it is found that the respondents have not proved adverse possession as required under law, the substantial question of law raised in the Second Appeal is answered in favour of the appellant in both the appeals and the Second Appeals will stand allowed. The judgments and the decrees of the courts below are set aside. The suit O.S No. 280 of 1979 will stand decreed and O.S No. 281 of 1979 will stand dismissed. No costs.

Pr/VCS