The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Bibi Sakina in the following terms: (AIR p.1256, para 5) 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.(emphasis supplied) A bare and plain reading of the above excerpts would indicate and show that the plea of adverse possession cannot be assumed and presumed unless there are clinching evidence to prove the same.
Madras High Court
Abdul Khasim(Deceased) vs Mrs.Nagalakshmi on 27 June, 2011
This Second appeal is focussed by the defendants, animadverting upon the judgment and decree dated 23.9.2005 passed by the Subordinate Judge, Poonamallee, in A.S.No.37 of 2004 reversing the judgment and decree dated 8.4.2004 passed by the District Munsif cum Judicial Magistrate, Ambattur, in O.S.No.789 of 1996, which was filed for mandatory and permanent injunctions.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:
(a) The respondent herein, as plaintiff, filed the suit seeking the following reliefs:
"To pass a judgement and decree
"a.for declaration of plaintiff's title to the 'B' schedule property and
b) for recovery of vacant possession of the 'B' schedule property after ejecting the defendants therefrom and after removing the superstructure, put-up by the defendants.
c) directing the defendants too pay future damages at the rate of Rs.1,000/-p.m.from the date of the plaint till the date of delivery.
d) directing the defendants to pay the cost of this suit." (extracted as such)
(b)Written statement was filed resisting the suit.
(c) Whereupon the trial Court framed the issues. On the plaintiff's side, the husband of the plaintiff examined himself as P.W.1 and Exs.A1 to A3 were marked. The husband of D5 examined himself as D.W.1 and Exs.B1 to B22 were marked. (e) Ultimately the trial Court dismissed the suit, as against which, the appeal was filed. Whereupon the first appellate Court reversed the judgment and decree of the trial Court and decreed the suit as prayed for.
4. Being aggrieved by and dissatisfied with the said judgment and decree of the first appellate Court, this second appeal has been filed by the defendants on various grounds and also suggesting the following substantial questions of law: "1.Whether the lower appellate Court failed to consider the adverse possession of appellants in the suit property for more than 4 decade?
2. Whether the lower appellate Court considered the non-joinder of necessary parties to the case?
3. Whether the lower appellate Court considered the respondent paid court fee according to the value of the suit property?
4. Whether the lower appellate Court considered the respondent seeking the declaration relief only for 'B' schedule mentioned property and not for the entire 'A' schedule property?
5. Whether the lower appellate Court considered the appellants had acquired a title by adverse possession for over the statutory period?"
(extracted as such)
5. However, my learned predecessor thought fit to frame the following substantial question of law:
"Whether the lower appellate Court failed to consider the adverse possession of the appellants in the suit property for more than four decades?"
6. The gist and kernel, and the pith and marrow of the arguments as put forth and set forth by the learned counsel for the appellants/defendants would run thus:
(i) The first appellate Court upset the discernible judgment of the trial Court, by mis-understanding the gamut of the case.
(ii) The schedule of property itself is not clear. The antecedent title deed to the plaintiff's title deed has not been produced, but the first appellate Court did not take note of it. (iii) The documents filed on the appellants/defendants' side would exemplify and demonstrate that for about four decades anterior to the filing of the suit, the defendants had been in possession and enjoyment of the suit property and thereby acquired title by adverse possession, which fact was not considered by the first appellate Court. (iv) No Advocate Commissioner was appointed to locate the suit property and identify the same.
(v) The unregistered sale deed of the year 1961 executed by the same vendor, who subsequently sold the suit property to the plaintiff, would demonstrate and display that the defendants purchased the suit property. (vi) The plaintiff, at no point of time, enjoyed the 'B' scheduled property and the averments in the plaint as though during the year 1986 the defendants barged into the suit 'B' scheduled property and occupied it was not proved. Accordingly, the learned counsel for the appellants/defendants would pray for setting aside the judgment and decree of the first appellate Court and for restoring the judgment and decree of the trial Court in dismissing the original suit.
7. In a bid to mincemeat the arguments as put forth and set forth on the side of the appellants/defendants, the learned counsel for the respondent/plaintiff would develop his arguments, which could pithily and precisely be set out thus: (a) The contentions as advanced on the side of the appellants/defendants are ex facie and prima facie untenable for the reason that in one breathe the defendants would admit the title of the plaintiff's vendor over the 'B' scheduled property and claim as though the defendants 1 to 4 purchased the 'B' scheduled property from the said plaintiff's vendor; and in another breathe, they would hasten to plead as though they acquired title over the 'B' scheduled property by adverse possession by enjoying it for over four decades. As such, the defendants antithetical pleas are untenable and cannot be canvassed legally before the Court. (b) The trial Court miserably failed to understand the gamut of the case. It went to the extent of holding that the suit was bad for want of a prayer for declaration of title relating to the 'A' scheduled property when the suit property in stricto sensu itself is 'B' scheduled property. ) The plaintiff appropriately and appositely, correctly and legally in the prayer column of the plaint sought for the relief of declaration of title with regard to 'B' scheduled property and for recovery of possession of the same. The trial Court, therefore, was wrong in assuming and presuming as though the law was to the effect that the prayer for declaration of title should be in respect of the 'A' scheduled property. (d) The first appellate Court-being the last Court of facts took into account the relevant evidence and applied correctly the law, warranting no interference in second appeal.
Accordingly, the learned counsel for the respondent/plaintiff would pray for the dismissal of the second appeal.
8. At the outset itself I hark back to the principles as found embodied in the following judgments of the Honourable Apex Court:
(2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL;
"24. ........(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." and the other precedents emerged in this regard.
(ii) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus:
"19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. (iii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.
(iv) 2009-1-L.W.1 STATE BANK OF INDIA & OTHERS vs. S.N.GOYA:
9. A bare perusal of the above precedents would exemplify and demonstrate that unless there is any perversity or illegality in the decisions rendered by the Courts below, the question of interfering in second appeal on the finding of facts would not arise and there should be valid legal grounds also for interference.
10. Here, before this Court the point to be pondered over and adjudged would be relating to the fact as to whether the defendants acquired title by adverse possession over the 'B' scheduled property.
11. Trite the proposition of law is, that the plea of adverse possession should be proved by the person who pleads it.
12. There are catena of decisions to the effect that by invoking the plea of adverse possession, the defendant admits the title of the plaintiff, and the onus of proof is on the defendant to prove his plea.
13. In this case, it has to be seen as to whether such plea was proved, convincingly by the defendants. I would like to hark back to the following maxims:
(i) Affirmatis est probare He who affirms must prove.
(ii) Affirmanti, non neganti incumbit probatio The burden of proof lies upon him who affirms, not upon one who denies.
14. It is the duty of the person who affirms a particular fact to prove it and he cannot call upon the other side to prove the negative aspect.
15. On the defendants side none of the defendants examined themselves as witnesses. Only D5's husband one Sabesan examined himself as D.W.1.
16. At this juncture, my mind is reminiscent and redolent of the following maxim:
"nec vi, nec clam, nec precario" Not by violence, stealth or permission (In order that a person may acquire title to land by adverse possession, his possession has to be characterised by these attributes.
17. At the outset itself I would like to point out that none of the defendants figured as a witness and they shunned the witness box and in such a case, it remains inexplicable as to how the defendants can claim before the High Court in second appeal that their plea of adverse possession was proved.
18. At this juncture, I recollect and call up the following decisions of the Honourable Apex Court:
(i) AIR 1999 Supreme Court 1341 ( Iswar Bhai C. Patel v. Harihar Behera and another)
"29. Applying the principles stated above to the instant case, it would be found that in the instant case also the appellant had abstained from the witness-box and had not made any statement on oath in support of his pleading set out in the written statement. An adverse inference has, therefore, to be drawn against him. Since it was specifically stated by Respondent 2 in his statement on oath that it was at the instance of the appellant that he had issued the cheque on the account of Respondent 1 in Central Bank of India Ltd., Sambalpur Branch and the appellant, admittedly, had encashed that cheque, an inference has to be drawn against the appellant that what he stated in the written statement was not correct. In these circumstances, the High Court was fully justified in decreeing the suit of Respondent 1 in its entirety and passing a decree against the appellant also." (emphasis supplied)
(ii) AIR 1999 Supreme Court 1441 (Vidhyadhar v. Manikrao and another)
"15. It was Defendant 1 who contended that the sale deed executed by Defendant 2 in favour of the plaintiff was fictitious and the whole transaction was a bogus transaction as only Rs.500 were paid as sale consideration to Defendant 2. He further claimed that payment of Rs.4500 to Defendant 2 at his home before the registration of the deed was wholly incorrect. This plea was not supported by Defendant 1 as he did not enter the witness-box. He did not state the facts pleaded in the written statement on oath in the trial court and avoided the witness-box so that he may not be cross-examined. This, by itself, is enough to reject the claim that the transaction of sale between Defendant 2 and the plaintiff was a bogus transaction.
17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh case. The Allahabad High Court in Arjun Singh v. Virendra Nath held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box." (emphasis supplied)
19. A mere poring over and perusal of the above excerpts including the whole judgments would demonstrate and display, convey and portray that normally the party, who asserts certain facts, which are within the knowledge of that party, should not shun the witness box and such a person should figure as a witness and subject himself or herself for being cross-examined and in the absence of it, it cannot be held that the case of such a person is held to have been proved.
20. Here even though the defendants 1 to 4 claimed that they acquired title by adverse possession over the suit property, yet they did figure themselves as witnesses. There is no shared or shred, pint or scintilla, molicular or iota extent of evidence to show that they have been in possession and enjoyment of the suit property for over four decades anterior to the filing of the suit in the year 1996.
21. A mere perusal of Exs.B1 to B28 would unambiguously and unequivocally, pellucidly and palpably evidence that none of the documents are of 40 years old. Among the 22 documents, the oldest are Exs.B5-the electricity service connection order dated 4.7.1973 and Ex.B8-the House Tax Receipt dated 6.2.1973, which are far from being labelled or dubbed as reliable or clinching evidence to prove adverse possession.
22. At this juncture, it is just and necessary to refer to the following decisions of the Honourable Apex Court:
(i) 2007 (4) MLJ 912 (SC) (P.T.Munichikkanna Reddy and others vs. Revamma and others) certain excerpts from it would run thus:
"5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird; Arkansas Commemorative Commission v. City of Little Rock; Monnot v. Murphy; City of Rock Springs v. Sturm.)
6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one s right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p.81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim.
8. Also See Privy Council's decision in Chung Ping Kwan and Others v. Lam Island Development Company Limited (Hong Kong) (1997) Ac 38 in this regard.
9. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially wilful neglect element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.
10. It is interesting to see the development of adverse possession law in the backdrop of the status of right to property in the 21st century. The aspect of stronger property rights regime in general, coupled with efficient legal regimes furthering the rule of law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of human rights jurisprudence in recent times has also palpably affected the developments in this regard. New consideration in adverse possession law
11. In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom wherein the European Court of Human Rights while referring to the Court of Appeal judgment JA Pye (Oxford) Ltd. v. Graham made the following reference: Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol.
14. Importantly, intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialise.
21. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Govt. of India in the following terms: (SCC p.785, para 11) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading 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 facts necessary to establish his adverse possession.
22. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner.
32. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Bibi Sakina in the following terms: (AIR p.1256, para 5) 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."(emphasis supplied) A bare and plain reading of the above excerpts would indicate and show that the plea of adverse possession cannot be assumed and presumed unless there are clinching evidence to prove the same.
23. My discussion supra would highlight and spotlight the fact that the appellants/defendants miserably failed to prove their plea of adverse possession.
24. Candidly and categorically, the defendants would contend that during the year 1969, D2 intended to purchase the 'B' scheduled property and allegedly got executed a sale deed on insufficiently stamped papers and it remained unregistered. In fact, the learned counsel for the defendants, at last would submit that he took steps also to file the document as an additional evidence and to get it marked.
25. I would like to point out that an unregistered sale deed is not at all an admissible piece of document. I recollect the following decision of the Honourable Apex Court:
AIR 2001 Supreme Court 1158 (Bipin Shantilal Panchal vs. State of Gujarat and another). An excerpt from it would run thus:
"13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)
14. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses."
26. The above precedent would clearly show that simply for the purpose of marking a document, a document should not be allowed to be filed and marked. It should ex facie and prima facie a document which must be capable of being filed in Court and press into service as evidence.
27. But in this case, the document, which the defendants wanted to rely upon is not at all relevant and it is totally inadmissible and it is quite antithetical to their case also. As per Section 54 of the Transfer of Property Act, in the case of deposit more than Rs.100/- such transfer could be made only by a registered document.
28. The learned counsel for the appellants/defendants would submit that in the plaint there are averments relating to 'B' memo and also the enjoyment of certain portions of the poramboke land by the plaintiff.
29. I would like to clarify the position by pointing out that nowhere it is stated that the suit property happened to be the part of poramboke land. Incidentally in the plaint, the plaintiff detailed and delineated certain facts, which are not germane for adjudication of this case. Absolutely there is nothing to doubt the identity of the property. It is therefore just and necessary to extract the 'A' and 'B' schedules of properties. 'A' Schedule: Punja land of an extent of 0.26 cents in S.No.9/1 in Padi Village, Saidapet Taluk with a house thereon to the east of the 'B' schedule property, bearing Door No.9/1, Park Road, U.R.Nagar, Padi, bounded on the North by M.T.H.Road, South by T.C.Rajagopal Mudaliar's land, east by Road in S.No.9/2, and West by Masthan land. The said property is shown as ABCEFGH in the plaint plan. 'B' Schedule: The Western portion of the 'A' schedule measuring 0.12 cents in S.No.9/1 being a vacant land portion of the 'A' schedule property, bounded on the North by M.T.H.Road, South by T.C.Rajagopal Mudaliar Land, East by the remaining portion of the 'A' schedule property bounded on the North by M.T.H.Road, South by T.C.Rajagopal Mudaliar's land, East by the remaining portion of the 'A' schedule property and West by Masthan land. The said property is shown as ABCFGH in the plaint-plan."
30. The learned counsel for the respondent/plaintiff in all fairness would submit that the description could be in a better manner; however it does not create any confusion.
31. I recollect and call up the following maxim:
Id Certum est quod certum reddi potest That is certain which can be rendered certain.
32. Taking the evidence cumulatively, it is axiomatic and obvious that as per Ex.A2, the plaintiff purchased from her vendor an extent of 36 cents of land. Out of that, 10 cents, on the extreme East was acquired by the Housing Board and there remains 26 cents of land, out of which, 12 cents on the extreme West is the suit property found described as the 'B' schedule and in fact, the remaining 14 cents of land is situated to the East of the 'B' scheduled property.
33. It is not as though simply 'A' scheduled property is stated to be forming part of 'B' scheduled property. 'A' scheduled property comprised of 14 cents and 'B' scheduled property comprised of 12 cents both constitute 26 cents out of 36 cents contemplated in Ex.A2 and this is how it ought to have been understood by the trial Court, but it mis-understood and went on dilating tangentially and arrived at a wrong conclusion. In view of the glaring and clinching evidence buttressing and fortifying the title of the plaintiff over the suit property and that the defendants failed to prove their title by adverse possession over the suit property, the question of the plaintiff proving the defendants trespass during the year 1986 loses its significance and it becomes pococurante one. The first appellate Court, being the last Court of facts, au fait with law and au courante with facts analysed the evidence and applied the correct law and decided the lis, warranting no interference in second appeal.
34. In view of the ratiocination adhered to above, the substantial question of law is answered to the effect that the lower appellate Court has correctly taken into consideration the evidence and rejected the plea of adverse possession of the appellants/defendants over the suit property for more than four decades and decided the lis.
35. In the result, the second appeal shall stand dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.
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