IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH MONDAY, THE SECOND OF JUNE TWO THOUSAND AND FOURTEEN PRESENT THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO
A.S.No.149 of 1994
Between :
Girajala Subbarao (Died per LRs.A.2 to A.7), S/o.Seshayya, Hindu, Aged : 78 years, Cultivation, R/o.Konda Gunturu, East Godavari District and others.
…Appellants/Plaintiffs Vs.
Kamireddi Satyanarayana, S/o.Sooranna, Hindu, aged : 50 years, Agriculture, R/o.Kadiepulanka, H/o.Kadiyam, East Godavari District and others.
…Respondents/Defendants Counsel for the Appellants : Sri M.V. Suresh Counsel for 2nd respondent : Sri T.V.S. Prabhakar Rao Counsel for respondent Nos.7 to 13 : Sri K.V.L. Jayasimha The Court made the following : [order follows] THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
A.S.No.149 of 1994
JUDGMENT :
This appeal is filed challenging the judgment and decree dt.08.11.1993 in OS.No.37 of 1990 on the file of the II Addl. District Judge, East Godavari, at Rajahmundry.
2. The appellant is the plaintiff in the above suit. Originally the suit was filed as OS.No.214 of 1981 on the file of the Subordinate Judge, Rajahmundry. It was later transferred to the Court of the II Addl. District Judge, East Godavari District at Rajahmundry and renumbered as OS.No.37 of 1990.
3. The said suit was filed for a declaration of title and recovery of possession of plaint ‘A’ and ‘B’ schedule properties and to hold the sale deed Ex.A.3 dt.23.01.1981 as void and for costs.
4. At the time of the filing of the suit, item No.1 of plaint ‘A’ schedule is in possession of 1st defendant/1st respondent; item Nos.2 and 3 of plaint ‘A’ schedule were in possession of defendant Nos.2 and 3; and plaint ‘B’ schedule/house was in possession of 2nd defendant.
5. Pending appeal, the appellant died and his legal representatives are brought on record as appellants Nos.2 to 7. The 3rd respondent died pending appeal and respondent Nos.4 to 6 were brought on record as his legal representatives. The 2nd respondent also died pending appeal and respondent Nos.7 to 13 were brought on record as his legal representatives.
6. One Pemmanaboina Nagamma (for short, ‘Nagamma’) was the second wife of one Pemmanaboina Chowdarayya (for short, ‘Chowdarayya’). The said Chowdarayya died leaving behind Nagamma and a son by name Pemmanaboina Suryanarayana Murthy (for short, ‘Suryanarayana’), born through his first wife. The said Suryanarayana married one Pemmanaboina Subbayamma (for short, ‘Subbayamma’). The appellant/plaintiff is the brother of the said Subbayamma. One Girijala Chinnamma (for short, ‘Chinnamma’) was the sister of Chowdarayya. The plaint schedule properties are the properties of Chowdarayya.
7. Subbayamma executed a registered Settlement Deed Ex.A.2 dt.08.09.1939 in favour of Nagamma and Chinnamma giving them a life estate in respect of plaint schedule properties. Subbayamma subsequently executed Ex.A.1 registered Settlement Deed dt.25.02.1957 giving vested remainder therein to the plaintiff after the demise of Nagamma and Chinnamma.
On 25.10.1985, Subbayamma died. Nagamma sold item No.1 of plaint ‘A’ schedule property to 1st defendant under Ex.A.3 registered sale deed dt.23.01.1981. In 1981, the said Nagamma died. It is not disputed that Chinnamma also died although the date of her death is not proved.
8. The plaintiff filed the suit contending that once Subbayamma succeeded to the properties of Suryanarayana on his death, she executed Ex.A.2 Settlement Deed dt.08.09.1939 and under the said deed, item No.1 of plaint ‘A’ schedule property was settled on Nagamma for her lifetime and item Nos.2 and 3 of plaint ‘A’ schedule and “B” schedule house were settled on Chinnamma for her lifetime; that after the death of Nagamma and Chinnamma, they would devolve upon plaintiff since under Ex.A.1 dt.25.02.1957 the vested remainder in these properties were settled on him by Subbayamma (to take effect after the death of Nagamma and Chinnamma). He contended that Nagamma had no right to alienate item No.1 of plaint ‘A’ schedule property in favour of 1st defendant under Ex.A.3 dt.23.01.1981, since she had only a limited estate therein under Ex.A.2 dt.08.09.1939 and therefore, the sale deed is void and does not him. He therefore contended that since under Ex.A.1 Settlement Deed dt.25.02.1957, the vested remainder in item Nos.1, 2 and 3 of plaint schedule were settled on him by Subbayamma, he is entitled for recovery of possession thereof from the defendants.
9. The 1st defendant filed a written statement admitting that the properties originally belong to Chowdarayya and also admitted the relationship between the parties but contended that item No.1 of the plaint schedule property was given by Subbayamma to Nagamma for her maintenance; that Ex.A.2 Settlement Deed was superfluous and was not acted upon since item No.1 of plaint ‘A’ schedule was given to Nagamma for maintenance by Suryanarayana, the husband of Subbayamma till his lifetime; that Subbayamma herself had only a right to claim maintenance over the estate as per the then prevailing law; after the advent of the Hindu Succession Act, 1956, the limited estate given to Nagamma in respect of item No.1 of plaint ‘A’ schedule ripened into an absolute estate in view of Section 14 (1) of the said Act and therefore, she was entitled to sell the said property to him under Ex.A.3 dt.23.01.1981 and the said sale deed is true and valid and is not liable to be set aside. He contended that Subbayamma had no interest in item No.1 of plaint ‘A’ Schedule land and could not have executed Ex.A.1 Settlement Deed dt.25.02.1957 settling the vested remainder in item No.1 of plaint ‘A’ schedule to the plaintiff.
10. Defendant Nos.2 and 3 filed a written statement denying that the properties belonged to Subbayamma or that she succeeded to the properties from her husband Suryanarayana or that she executed Ex.A.1 and A.2 Settlement Deeds. They further contended that Nagamma had no possession to or title to plaint schedule properties at any time; that they and their predecessors-in-title were in possession and enjoyment of item Nos. 2 and 3 of plaint ‘A’ schedule and ‘B’ schedule properties with absolute title for more than 40 years and enjoyed the properties openly, publicly and to the knowledge of all, including the plaintiff.
11. The Trial Court framed the following issues :
“1. Whether the suit schedule properties originally belonged to Pemmanaboina Surya Rao and his wife Subbayamma succeeded to the properties in 1938 after his death ?
2. Whether the settlement-deed giving life interest executed by Pemmanaboina Subbayamma in 1939 in favour of P. Nagamma and Girajala Chinnamma was nominal ?
3. Whether the settlement deed dated 26.02.1957 executed by P. Subbayamma is valid in law and binding on the defendants ?
4. Whether the suit schedule properties originally belonged to Pemmanaboina Chowdarayya and Nagamma was his second wife as contended by the first defendant ?
5. Whether Item No.1 of the suit schedule property was given to P. Nagamma by Suryanarayana and whether she got absolute rights in the said property by virtue of Hindu Succession Act ?
6. Whether the sale deed executed by Nagamma in favour of the first defendant is void as contended by the plaintiff?
7. Whether the defendants 2 and 3 have perfected their title to items 2 and 3 of the plaint A and B Schedule properties by adverse possession ?
8. Whether the plaintiff is entitled for the declaration prayed for ?
9. Whether the plaintiff is entitled for recovery of possession ?
10. Whether the suit is not properly valued and the court-fee paid is incorrect ?
11. To what relief ?”
12. Before the Trial Court, the plaintiff examined PWs.1 and 2 and marked Exs.A.1 to A.7. The defendants examined defendant Nos.1 to 3 and marked Exs.B.1 and B.2.
13. By judgment and decree dt.08.11.1993, the trial court dismissed the suit. It held that Nagamma is the second wife of Chowdarayya and the properties originally belonged to Chowdarayya; that on the death of Chowdarayya, the properties devolved upon his son Suryanarayana; that on the death of Suryanarayana in 1935 or 1938, Subbayamma being the first wife of the last male holder, would succeed to the properties. It relied upon the statement in Ex.A.1 Settlement Deed dt.25.02.1957 that item No.1 of plaint ‘A’ schedule property was settled by Subbayamma on Nagamma for her lifetime for the purposes of maintenance only and the admission of PW.2 that item No.1 of plaint schedule property was given to Nagamma for her maintenance and held that right of maintenance was claimed against the estate of the joint family and not against the present defendants in their personal capacity; Nagamma, being the widow of Chowdarayya, has a right to maintenance against the estate of Chowdarayya and since item No.1 of plaint ‘A’ schedule was given to her in lieu of her right to maintenance, by virtue of Section 14 (1) of the Hindu Succession Act,1956, the limited estate given to Nagamma becomes absolute. So Nagamma was competent to sell item No.1 of plaint ‘A’ schedule to 1st defendant and the sale deed is true, valid and binding on all the parties. Coming to item Nos. 2 and 3 of plaint ‘A’ schedule, it held that these items were in possession of defendant Nos.2 and 3 and plaint ‘B’ schedule property is in possession of 2nd defendant; that item Nos. 2 and 3 of plaint ‘A’ schedule were in possession of 2nd defendant since the date of execution of Ex.A.1 dt.25.02.1957; that these items had been given to Chinnamma as a life estate under Ex.A.2 dt.08.09.1939; that PW.1 stated in his evidence that she could have died in the year 1952 and that after the death of Chinnamma, Subbayamma did not make any attempt to take possession of property; and after the death of Subbayamma, he did not make any attempt to take Chinnamma’s share, but allowed Nagamma to enjoy Chinnamma’s share also till her lifetime as the remaining life estate holder. In view of statement of plaintiff that he did not know when defendant Nos. 2 and 3 took possession of item Nos.2 and 3 of plaint ‘A’ schedule and plaintiff’s admission that 2nd defendant was residing in plaint ‘B’ schedule house for the last fifty years, it held that defendant Nos.2 and 3 had perfected title thereto by adverse possession. It relied upon the fact that there was no mention in the plaint that Chinnamma delivered these items to defendant Nos. 2 and 3 and that the plaintiff admitted in his evidence that Subbayamma made attempts to recover possession of the properties after the death of Chinnamma in the year 1953, but she failed in those attempts; that Ex.A.1 Settlement Deed dt.25.02.1957 executed by Subbayamma in favour of the plaintiff specifically recited that Chinnamma had died and plaintiff has to take possession of the property and enjoy it, but since 1957, plaintiff did not make any attempt to take possession of the property. It observed that after the death of Chinnamma there is no proof that Subbayamma allowed Nagamma to enjoy the properties that were given to Chinnamma; that the attestors or scribes of Exs.A.1 and A.2 were not examined and unless an attestor is examined the Settlement Deeds cannot be taken as proved. It rejected the contention of the plaintiff that these documents were more than thirty years’ old and they should be accepted as authentic and concluded that plaint ‘B’ schedule property was acquired by adverse possession by 2nd defendant.
14. Challenging the same this appeal is filed.
15. Heard Sri M.V. Suresh, counsel for appellants;
Sri T.V.S. Prabhakar Rao, counsel for 2nd respondent; and Sri K.V.L. Jayasimha, counsel for respondent Nos.7 to 13.
16. The counsel for appellants contended that the judgment of the trial court is contrary to law and the evidence on record; that the trial court erred in holding that Exs.A.1 and A.2 are not proved because no attestor connected therewith has been examined; that since they are registered documents more than 30 years’ old they should have been accepted as true and valid in view of provisions of Section 90 of the Indian Evidence Act, 1872. As regards item No.1 of plaint ‘A’ schedule, he contended that this item was settled by Subbayamma on Nagamma only during her lifetime under Ex.A.2 dt.08.09.1939 and since Nagamma had not been given an absolute estate, she was not competent to sell this item to 1st defendant. As regards item Nos.2 and 3 of plaint ‘A’ schedule and ‘B’ Schedule, the counsel for appellants contended that defendant Nos.2 and 3 in the written statement merely stated that they were in long standing possession of item Nos.2 and 3 of plaint ‘A’ schedule and plaint ‘B’ schedule property with absolute title but did not say that such possession was “adverse”/“hostile” to plaintiff or Subbayamma anywhere therein; mere longstanding possession of defendant Nos.2 and 3 in respect of these items, without there being any adverse animus, would not result in vesting of title with them for these items; that the written statement does not show that defendant Nos.2 and 3 had admitted the title of anybody including Subbayamma or Chinnamma or Nagamma in respect of these items; and therefore, the trial court erred in accepting the plea of adverse possession raised by defendant Nos.2 and 3 for these items.
17. On the other hand, the counsel for 1st respondent contended that the judgment and decree of the trial court insofar as item No.1 of plaint ‘A’ schedule is concerned is correct; that Ex.A.2 Settlement Deed dt.08.09.1939 specifically recited that the property was given towards maintenance of Nagamma; that she, being the second wife of Chowdarayya and the plaint schedule properties being the properties of Chowdarayya, Nagamma had a right to seek maintenance from his estate and in recognition of the said right Ex.A.2 Settlement Deed was executed by Subbayamma in favour of Nagamma giving item No.1 of plaint ‘A’ schedule property to Nagamma; that as on the date of coming into force of the Hindu Succession Act, 1956 Nagamma was in possession of the said property; therefore, the limited estate given to Nagamma under Ex.A.2 expanded into an absolute estate in view of Section 14 (1) of the said Act; consequently, she was competent to sell item No.1 of plaint ‘A’ schedule property to 1st defendant under Ex.A.3 dt.23.01.1981.
18. The counsel for respondent Nos.2 and 3 contended that Chinnamma, the sister of Chowdarayya, was the paternal aunt of Suryanarayana, the husband of Subbayamma; that Chinnamma did not have any children; so she brought up 2nd defendant and treated him as her adopted son; that on the death of Chinnamma, the limited estate given to her under Ex.A.2 of item Nos.2 and 3 of plaint ‘A’ schedule devolved on 2nd defendant; that Subbayamma never raised any claim against the possession and occupation of 2nd defendant with regard to these properties ever since the death of Chinnamma in 1952; that the longstanding possession of item Nos.2 and 3 of plaint ‘A’ schedule and ‘B’ schedule properties was admitted by the plaintiff in his evidence and the trial court rightly concluded that this possession by defendant Nos.2 and 3 amounts to hostile possession to the real owner Subbayamma; and therefore contended that the trial court rightly accepted the plea of defendant Nos.2 and 3 that they have acquired title to these items by adverse possession.
19. I have noted the submissions of both sides.
20. The following points arise for consideration :
(a) Whether item No.1 of plaint ‘A’ schedule property was given towards maintenance by Subbayamma as a life estate and whether such life estate given to Nagamma was transformed into an absolute estate under the provisions of the Hindu Succession Act, 1956 enabling Nagamma to sell this item to 1st defendant under Ex.A.3 Settlement Deed dt.23.01.1981 ? and
(b) Whether title to item Nos.2 and 3 of plaint ‘A’ schedule and plaint ‘B’ schedule properties were acquired by adverse possession by defendant Nos.2 and 3 ?
Point (a) :
21. Nagamma is the second wife of Chowdarayya. Suryanarayana is the son of Chowdarayya. Subbayamma is the wife of Suryanarayana. Chinnamma is the sister of Chowdarayya.
22. There is no dispute between the parties that the plaint schedule properties are the properties of Chowdarayya. On his death they would devolve on his son Suryanarayana. In the plaint it is alleged that Suryanarayana died in 1938 but in his evidence the plaintiff as PW.1 stated that Suryanarayana died in 1935. On the death of Chowdarayya, his second wife Nagamma is entitled to be maintained out of the estate of Chowdarayya. After the death of Suryanarayana, Ex.A.2 Settlement Deed dt.08.09.1939 was executed by Subbayamma in favour of Nagamma and Chinnamma. Under this Settlement Deed item No.1 of plaint ‘A’ schedule was given as life estate to Nagamma and item Nos.2 and 3 of plaint ‘A’ and ‘B’ schedule properties were given to Chinnamma. Subsequently, Subbayamma executed Ex.A.1 registered Settlement Deed dt.25.02.1957 giving the vested remainder in item Nos.1 to 3 of plaint ‘A’ and ‘B’ schedule properties to plaintiff. The trial court did not believe these documents on the ground that these documents are compulsorily attestable and no attestor thereof is examined.
23. Ex.A.2 is admittedly a document more than thirty years old. There is no dispute that Ex.A.2 Settlement Deed was also filed in OS.No.87 of 1966 on the file of I Addl. Munsif-Magistrate, Rajahmundry, a suit filed by Nagamma against Subbayamma and others. The judgement in that suit was marked as Ex.B.2 in the present suit. It shows that the settlement deed dt.8.9.1939 was marked as Ex.B2 in O.S.No.87/1966. The said suit was filed seeking enhancement of maintenance under Section 25 of the Hindu Adoptions and Maintenance Act, 1956 by Nagamma and Subbayamma. In the said suit Nagamma contended that the maintenance being given to her by Subbayamma was meagre and sought enhancement of it. Subbayamma filed a written statement stating that under the Settlement Deed dt.08.09.1939, item No.1 of plaint ‘A’ schedule was given to Subbayamma/plaintiff in O.S.87/1966 towards her maintenance for her lifetime. The trial court held that the income from item No.1 of plaint ‘A’ schedule was more than sufficient for plaintiff’s/Nagamma’s maintenance. In the said suit, Ex.A.1 dt.25.02.1957 was also marked as Ex.B.3. The defendant Nos.2 and 3 herein are also parties to OS.No.87 of 1966 and they were arrayed as defendant Nos.5 and 7 therein. They did not dispute either the Settlement Deed dt.08.09.1939 or the Settlement Deed dt.25.02.1957 in O.S.87/1966. The doctrine of estoppel applies and the defendants 2 and 3 cannot be allowed to approbate and reprobate. It is therefore not open to defendant Nos.2 and 3 to dispute the correctness of these two documents in this suit, more so, when Ex.A.2 being a thirty year old document, is to be presumed to be genuine under Section 90 of the Evidence Act, 1872.
24. In Ex.A.1 settlement deed dt.25.02.1957 there is a recital by Subbayamma that she had given item No.1 of plaint ‘A’ schedule for maintenance of Nagamma under the registered Settlement Deed Ex.A.2 dt.08.09.1939. In this view of the matter, it is not open to the plaintiff to now contend that item No.1 of plaint ‘A’ schedule was not given to Nagamma by Subbayamma towards her maintenance, particularly when Subbayamma in OS.No.87 of 1966 has also contended that the property given to Nagamma under the Settlement Deed Ex.A.2 dt.08.09.1939 provides adequate maintenance to Nagamma and got the suit of Nagamma dismissed. Since Nagamma was in possession of item No.1 of plaint ‘A’ schedule property on the date when the Hindu Succession Act, 1956 came into operation, the limited estate given to her under Ex.A.2 became absolute estate by virtue of Section 14 (1) of the said Act. So I agree with the trial court that Nagamma was competent to sell it under Ex.A.3 dt.23.01.1981 to 1st defendant. Therefore, the appellant is not entitled to any relief as regards item No.1 of plaint ‘A’ schedule.
Point (b) :
25. Item Nos.2 and 3 of plaint ‘A’ and ‘B’ schedule properties are dealt with under this point. The plaintiff contends that these properties also belong to Chowdarayya and on his death they were inherited by Suryanarayana, his son, and on the death of Suryanarayana, Subbayamma got these properties, and that she gave these items to Chinnamma, the paternal aunt of her husband Suryanarayana, as a life estate only and on the death of Chinnamma, by virtue of Ex.A.1 Settlement Deed dt.25.02.1957, he is entitled to recover possession of these properties from defendant Nos.2 and 3. The defendant Nos.2 and 3, on the other hand, filed a common written statement stating that “the defendant Nos.2 and 3 and their predecessors-in-title have been in possession and enjoyment of item Nos.2 and 3 of plaint ‘A’ and ‘B’ schedule properties with absolute title”. They did not mention in the written statement what the source of this “absolute title” was and no document is filed by them in support of this plea.
26. They further pleaded that they are in possession of the properties in question over a long time, i.e., more than forty years and they and their predecessors enjoyed the property openly, publicly, and to the knowledge of all including the plaintiff and that they have perfected their title to item Nos.2 and 3 of plaint ‘A’ and ‘B’ schedule properties. The written statement does not mention the word “adverse”/”hostile” possession anywhere.
27. In Karnataka Board of Wakf v. Government of India and others
[1]
, the Supreme Court held :
“11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina, Parsinni v. Sukhi and D.N. Venkatarayappa v. State of Karnataka.) 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. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma.] 12. A plaintiff filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See S.M. Karim v. Bibi Sakina.) In P. Periasami v. P. Periathambi this Court ruled that: (SCC p. 527, para 5) “Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.”
The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced ”
28. They also did not state in the written statement who according to them was the owner of the property and whether they had any adverse animus against that owner. Moreover, the adverse animus must be directed against the plaintiff and must be in denial of the title of the plaintiff, who became the owner of these items on the death of Chinnamma under Ex.A.1 dt.25.02.1957. Nowhere in the written statement the defendant Nos.2 and 3 admit the title of plaintiff at any point of time, therefore there is no question of their having adverse animus against the plaintiff.
29. It is true that the plaintiff had not taken any steps to recover possession of the property from defendant Nos.2 and 3 after the death of Chinnamma and he also stated that on the death of Chinnamma, Subbayamma tried to take Chinnamma’s share but failed. He further stated that Subbayamma allowed Nagamma to enjoy Chinnamma’s share also till her lifetime as the remaining life estate holder. Nagamma, according to PW.1, died in the year 1980. It is also true that the plaintiff admitted the long possession of defendant Nos.2 and 3 of item Nos.2 and 3 of plaint ‘A’ and ‘B’ schedule properties.
[2]
In Deva v. Sajjan Kumar , the Supreme Court held :
“The above quoted admission contained in the defendant’s deposition, does not make out a case in his favour of having acquired title by adverse possession. Mere long possession of the defendant for a period of more than 12 years without intention to possess the suit land adversely to the title of the plaintiff and to the latter’s knowledge cannot result in acquisition of title by the defendant to the encroached suit land.”
31. In Annakili v. A. Vedanayagam
[3]
, the Court reiterated the principle that mere long possession without adverse animus will not ripen into title. It held:
“24. … … It is now a well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into a title.
25. In Saroop Singh v. Banto in which one of us was a member, this Court held: (SCC p. 340, paras 29- 30) “29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant’s possession becomes adverse. ( S e e Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak) 30. ‘Animus possidendi’ is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Md. Mohammad Ali v. Jagadish Kalita, SCC para 21.)”
26. The said statement of law was reiterated in T. Anjanappa v. Somalingappa stating: (SCC p. 577, para 20) “20. It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action.”
32. In view of lack of specific plea by defendant no.s 2 and 3 that their possession was adverse or hostile to plaintiff, they cannot be said to have acquired title to these items by merely being in possession for a long time without any adverse animus towards him.
33. There is no dispute that Chinnamma had died even by the date of Ex.A.1 Settlement Deed dt.25.02.1957 although the date of her death is not exactly known. PW.1 stated in his evidence that she might have died in 1952. Chinnamma had no right to seek maintenance from Chowdarayya or his estate under the law unlike Nagamma who had such a right being the second wife of Chowdarayya. Therefore, the life estate given to Chinnamma under Ex.A.2 dt.08.09.1939 would continue to be a life estate till her death and under Ex.A.1 the Settlement Deed dt.25.02.1957, it would vest in the plaintiff thereafter.
34. I therefore disagree with the conclusion of the trial court that the assertion on the part of defendant Nos.2 and 3 of their long possession of the property amounts to hostility to the title of the real owner, i.e., Subbayamma. The trial court has made out a new case which is not pleaded by defendant Nos.2 and 3 that Subbayamma is the owner of the property in spite of the fact that she had executed ExA.1 Settlement Deed in favour of the plaintiff giving him the vested remainder in these items of properties after the demise of Chinnamma.
35. Therefore, the judgment of the trial court insofar as item Nos.2 and 3 of plaint ‘A’ schedule and ‘B’ Schedule properties is concerned, is set aside; the appeal is partly allowed; and the appellant is declared as owner of item Nos.2 and 3 of plaint ‘A’ schedule and plaint ‘B’ schedule properties and for recovery thereof from defendant no.s 2 and 3. No costs.
36. Miscellaneous applications, pending if any, in this appeal, shall stand closed.
JUSTICE M.S. RAMACHANDRA RAO Date : 02-06-2014 Ndr/*
[1] (2004) 10 SCC 779
[2] (2003) 7 SCC 481
[3] , (2007) 14 SCC 308