Order
1. This appeal by special leave is at the instance of the first defendant A.S Vidyasagar whose effort is to establish title to a house in his possession by two means, which would presently be discussed hereafter.
2. One Meenakshi Iyer had three brothers two of whom had no male progeny, but there were females/daughters in their line. The 3rd one, however, had a son and a daughter named respectively as Kuppuswami and Kanthimathi. Meenakshi Iyer died issueless in the year 1939. His widow Thulasi Ammal claimed his properties on the basis of a will dated August 9, 1931 which was contested by Kuppuswami. During the course of litigation document Ex. A-3 was recorded in the year 1942 whereby Thulasi Ammal released the properties she had received under the will in favour of Kuppuswami in consideration of Rs 12,000 in cash for her exclusive use. By means of the said release deed, she obligated Kuppuswami to give ‘stridhana’ to the daughters of family in all the branches, separately categorised inclusive of Kanthimathi Ammal, the daughter in the fourth line.
3. It appears that Meenakshi Iyer during his lifetime had put Kanthimathi Ammal in possession of a house permissively. After his death in 1939, she continued to be in possession till she died in 1948 leaving behind the appellant herein as a four-year-old-child with her husband living in the same house. The father of the appellant later vacated the house when the appellant grew to be an adult. On the basis of the title perfected under the Release Deed Ex. A-3 Kuppuswami sold the house, which was in possession of Kanthimathi, to the present contesting respondents and left it to the vendees to secure possession from the appellant. On the appellant's refusal to vacate the house, a suit for possession was filed by the vendees. The appellant set up two pleas, namely, that his mother Kanthimathi had received the house towards her ‘stridhana’ and documents of title alone had to pass formally under the Release Deed Ex. A-3 and secondly that Kanthimathi and after her the appellant had perfected title to the house by adverse possession. The trial court as also the High Court in appeal came to the conclusion that the house could not have come to Kanthimathi as her ‘stridhana’ for there was no basis, documentary as well as oral supportive thereof. With regard to adverse possession, the High Court seemingly committed an error by observing that the plea as such had not been raised in the written statement, even though there was an issue framed to that effect and on that basis rejected the claim of adverse possession. It transpires that such a plea had in fact been taken in the written statement. On that basis, it was urged before us that the finding of fact recorded by the High Court was vitiated and we should re-examine the evidence on that score.
4. We had Ex. A-3 the release deed translated from Tamil. We were told at one stage that the recitals therein would reflect the house being given to Kanthimathi as ‘stridhana’. Now on translation there is no hint whatsoever in Ex. A-3 to suggest the house having come to Kanthimathi at all, much less as ‘stridhana’. Whether Meenakshi Iyer gave the house to Kanthimathi directly as her ‘stridhana’ was not the case set up at all. This being a question of fact obviously would have to stay because of the concurrence of views of both the courts below. The plea of adverse possession though set up was extremely vague. No particulars were disclosed in the written statement as to when and under what overt act was the possession of Kanthimathi, or for that matter the appellant, was open, hostile and notorious and assertive of adverse ownership qua the rightful owner.
5. Adverse possession is sought to be established on the supposition that Kanthimathi got possession of the premises as a licensee and on her death in 1948, the appellant who was 4 years of age, must be presumed to have become a trespasser. And if he had remained in trespass for 12 years, the title stood perfected and in any case, a suit to recovery of possession would by then be time-barred. We are unable to appreciate this line of reasoning for it appears to us that there is no occasion to term the possession of Kanthimathi as that of a licensee. The possession was permissive in her hands and remained permissive in the hands of the appellant on his birth, as well as in the hands of his father living then with Kanthimathi. There was no occasion for any such licence to have been terminated. For the view we are taking there was no licence at all. Permissive possession of the appellant could rightfully be terminated at any moment by the rightful owners. The present contesting respondents thus had a right to institute the suit for possession against the appellant. No oral evidence has been referred to us which would go to support the plea of openness, hostility and notoriety which would go to establish adverse possession. On the contrary, the Municipal Tax receipts, Exts. B-39 and 40, even though suggestedly reflecting payment made by the appellant, were in the name of Kuppuswami, the rightful owner. This negates the assertion that at any stage did the appellant assert a hostile title. Even by examining the evidence, at our end, we come to the same view as that of the High Court. The plea of adverse possession thus also fails. As a result fails this appeal. Accordingly, we dismiss the appeal, but without any order as to costs.