This Second Appeal has been directed against the judgment in A.S.No.109/1991, on the file of learned Additional Sub-Judge, Tiruchi, which had arisen out of a decree and judgment in O.S.No.1062/1988, on the file of the learned II Additional District Munsif's, Tiruchi.
2.The appellants are the plaintiffs, who have filed a suit for partition to divide the suit property into six equal parts and to allot 1/6 share to the plaintiffs. They have succeeded in the trial Court by getting an allotment of 1/4 share, but, have lost before the first appellate Court. Against which, they have preferred the present appeal. During the pendency of the suit, the first plaintiff died and the LRs, are brought on records as defendants 10 to 12 and during the pendency of the second appeal, the first appellant died and the L.Rs are brought on record as 12 to 14 appellants. The contesting defendant is the first respondent who was the 6th defendant.
3.The brief case of the plaintiff is that the suit property originally belonged to one Senbagathaammal, who died somewhere in 1930 and her property devolved on her only daughter Annathammal. The said Annathammal also died somewhere in 1940. The said Annathammal had six daughters and two sons. Out of them, Ayyammal died unmarried. One more daughter named Chandra, also died issue less. Yasoda died leaving behind her four sons and four daughters, who are the plaintiffs. The other heirs are defendants 1 to 5. D1 to D3 are daughters, D4 and D5 are sons. Six daughters have inherited the property of Annathammal, which belongs to the Senbagathaammal and therefore, it has to be divided into six shares and the plaintiffs being the legal heirs of one of the sharers viz., Yasoda. they are entitled to 1/6th share in the property. The first defendant is in possession of the property with her daughter. The sixth defendant claims a right over the property alleging that he had purchased the property from one Kannu Pillai who alleged to have purchased the property in a court auction in a suit were the 5th defendant was the judgement debtor. According to the Plaintiffs the property belonged to the daughters and the plaintiffs are claiming 1/6 share.
4.The brief case of the first defendants in her written statement, as adopted by the defendants 2 to 4, is as follows:-
Senbagathaammal purchased the suit property from one Nachiar Ammal on 10.03.1931 and it is her absolute property. After her death, it devolved on her only daughter Annathammal and on her death, the property was inherited by her daughters and her sons have no right or interest in the property. Therefore, the suit property devolved only on Yasodha, Meenakshi, Dhanam, and Subathra, who are the remaining four daughters of Annathammal and each entitled to 1/4th share. The defendants 4 and 5 have no interest in the property and the defendants have no objection for decree being passed for 1/4th share and allotment of such share also to D1 to D3
5.The 6th defendant filed a written statement stating the following facts:-
Senbagathaammal had no source to purchase the property. It was purchased from and out of the funds of her husband Duraisami Pillai. After the death of Senbagathaammal and Annathammal, Duraisami Pillai had mortgaged the property to one Periasami Pillai. The plaintiffs and others are aware of the mortgage and they are now estopped from questioning the right of Duraisami Pillai. The 5th defendant, who is the son, had performed the last rites of Duraisami Pillai and he discharged his debts. The 4th defendant had executed a release deed on 04.03.1955 giving up his right in the suit property. Duraisami Pillai died in the year 1955 and therefore, the Hindu Succession Act, will not be applicable. The 5th defendant enjoyed the property as his own and the revenue records are in his name. For his debt, the property was sold in a court auction in O.S.No.473 of 1973 and the Court permitted the decree holder, Kannu illai, to purchase the property and the sale was confirmed on 15.06.1976. He took delivery on 24.07.1978. The 4th defendant's son Manikkam and the first defendant's husband Vadivelu were the witnesses for the delivery. Kannupillai rented out the property to one Vadivelu for Rs.25/- p.m. On 24.11.1995, this defendant purchased the property from the said Kannu Pillai for a valid consideration of Rs.7,999/-. After Vadivelu's death, the first defendant and her daughter continued to reside in the said property as tenants. They have not paid any rent. Therefore, this defendants filed H.R.C.O.P.No.361/1982 and an eviction was ordered on 19.04.1993. While so, the plaintiffs and his brother and sister have colluded together and has filed the present suit for partition.
6.The trial Court found the property as 'Sridhana property' of Senbagathaammal, which was inherited only by her grand-daughters through Annathammal and therefore, had passed the preliminary decree of 1/4th share each to the Plaintiffs and to the defendants 1 to 3. On appeal, the first appellate Court found that the property belonged to only Senbagathaammal and negatived the claim of the 6th defendant that her husband Duraisami Pillai, had purchased the property in the name of his wife and later mortgaged the property. However, the first appellate Court proceeded and found that the 5th defendant was alone in possession of the suit property from 1955 to 24.08.1978 and he has perfected the title by adverse possession against the original owners and he has ousted all others and the rights were obtained by him, has been validly conveyed to the 6th defendant, who has purchased the property for valuable consideration Therefore, neither the plaintiff nor the defendants 1 to 3, have no right or interest in the property. The first appellate Curt has dismissed the suit as such, setting aside the decree and judgment of the trial Court. This appeal is filed by the plaintiffs on the ground that the first appellate Court was wrong in deciding that the 5th defendant had perfected title by adverse possession and while admitting the Second Appeal, this Court has framed the following substantial question of law.
"Whether in law the lower appellate Court is right in holding that the fifth defendant had perfected title by adverse possession, when his possession was only permissive?"
7.It is admitted that the suit property originally belonged to one Senbagathaammal. Her husband is Duraisamy Pillai. They had a daughter by name Annathammal. The property was purchased under Ex.A1, dated 10.03.1931. Annathaammal's husband name was Laxmana Pillai. They had two sons and five daughters. Senbagathaammal died after the purchase of the property in 1931 and prior to 1940, Annathuammal also died.. After the death of Senbagathaammal, Duraisami Pillai executed a mortgage deed in favour of one Periyasami Pillai, under Ex.B.23, dated 22.12.1943. After the death of Duraisami Pillai, Thangaiyan one of the sons of Senbagathaammal and Duraisami Pillai had executed a release deed in favour of his only brother Ramalingam, under Ex.B24, dated 04.03.1955.
8.According to the 6th defendant, who is the contesting defendant, Ramalingam Pillai was in possession and enjoyment of the property. A suit was filed in O.S.No.476/1973, by one Kannu Pillai, from whom, the said Ramalingam had obtained certain loan and the suit was decreed and in E.P.No.121/1976, the decree holder Kannu Pillai purchased the property in Court auction. He also took possession under Ex.B26, dated 24.08.1978. Again the suit property was let out to one of the grandsons of Senbagathaammal and Duraisami Pillai. Kannu Pillai sold the property to the 6th defendant under Ex.B5, dated 26.11.1981. A rent control proceedings was initiated against the said tenant and an eviction was ordered.
9.Therefore, the case of the 6th defendant is that the property was purchased by the said Duraisami Pillai in the name of his wife Senbagathaammal. he dealt with property and after his death, the male members of the family, had inherited the property and one of the brother has released his share in favour of the other brother namely, Ramalingam Pillai, who lost the property in a Court auction and one Kannupillai, had purchased the property, who sold the property to the 6th defendant and it has become his absolute property. It is also contended that even otherwise the defendant and his predecessor title had prescribed title by adverse possession.
10.As stated earlier, the trial Court has accepted the plea of the Plaintiffs and decreed the suit for partition of 1/4th to the plaintiffs. As against that, 6th defendant, who is the purchaser, preferred an appeal and the first appellate Court has reversed the judgment and found that the 5th defendant viz., Ramalinga Pillai, had perfected the title by adverse possession, though it has found the property belong to the said Senbagathaammal. The learned counsel for the appellant would submit that the lower appellate Court, though held that the suit property belonged to the grandmother of the plaintiffs i.e., Senbagathaammal, it had erroneously proceeded to hold that the Plaintiffs have lost their title against adverse possession when there was no such plea. The learned counsel pointed out that deviating from its finding, the Court has held that the 5th defendant, who is one of the grandson of Senbagathaammal and Duraisami Pillai had perfected title by adverse possession without any basis and also without any plea to that effect.
11.The learned counsel pointed out that the 6th defendant was all along contending that the property was purchased by Duraisami Pillai in the name of his wife and he had dealt with the property by executing a mortgage deed and after his death, the grandsons have inherited and one of the grandson has released his share of the property to his brother and therefore, it is an absolute property of the 5th defendant. The learned counsel pointed out that when the 6th defendant has claimed an absolute right and title of the property to 5th defendant, the claim of adverse possession is not sustainable under law.
12. The learned counsel also pointed out that the lower appellate Court having found that the suit property belonged to Senbagathaammal and the plaintiffs as female descendants have inherited the property of the female ancestor,ought not to have extinguished the right by holding that the 5th defendant had perfected title by adverse possession as the possession was all along permissive.
13.The learned counsel also pointed out that the possession of the 5th defendant was not adverse and hostile to the rightful owner viz., the plaintiffs and other granddaughters of the Senbagathaammal and therefore, the plea of adverse possession is not sustainable. The learned counsel also pointed out that the lower appellate court was wrong in holding that the plaintiffs are ousted when there is absolutely no plea of ouster and the same can only be claimed against the co-sharers.
14.The learned counsel draw the attention of this Court to the judgment of the Hon'ble Supreme Court in Karnataka Board of Wakf Vs. Govt. of India reported in (2004 (10) SCC 779) for the proposition of essentials of adverse possession, wherein the Hon'ble Apex court has held that the essentials are exclusive physical possession and animus possidendi to hold as owner in exclusion to the actual owner and the plea of adverse possession and title are mutually inconsistent.
15.The learned counsel has also invited the attention of this Court to the judgment of the Hon'ble Apex Court in P.T.Munichikkanna Reddy Vs. Revamma reported in (2007 (6) SCC 59), wherein the Hon'ble Supreme Court has held that "the possession must be open, continuous and hostile to constitute adverse possession" and further held that "date of dispossession of the owner i.e., starting point of adverse possession is also important".
16.The learned counsel for the respondent would submit that 6th defendant had pleaded an independent title of the property for the 5th defendant, who is the predecessor in title and also pleaded adverse possession as the possession of the 5th defendant and his ancestors in title was open, continuous and adverse to the interest of his sisters, who knew very well that the 5th defendant was enjoying the property as that of his own in all aspects.
17.The learned counsel drawn the attention of this Court to the judgment of the Hon'ble Supreme Court in Binapani Paul Vs. Pratima Ghosh and Others reported in (2007 4 MLJ 1076 SC), wherein the Hon'ble Apex Court has held that to prove the plea of adverse possession, there should be hostile possession, which would amount to denial of title.
18.The law of adverse possession is very clear. The character of adverse possession is one sense based on the theory of presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile and acts and claims of the person in possession. It follows that sound quality of typical adverse possession lie in it being open, continuous and hostile.
19.It is well settled principle that to claim title by adverse possession the possession should be open, exclusive and continuous without any interruption or break. If the elements of adverse possession is not proved, even a long undisturbed possession, however long, it will not go to prove the adverse possession.
20.Here is a case, where the 6th defendant had claimed a title through the 5th defendant and has also claimed title by adverse possession to the 5th defendant. There is no bar in put forward both the pleas by the defendant. The person claims title by himself or through the predecessor in title, can set up the claim of title by adverse possession also.
21.In Kanna Gounder Vs. Arjuna Gounder reported in (AIR 2003 Madras 153), this Court has held that while claiming title, a person is entitled to make an alternative plea of adverse possession also.
22.In Sadasiva Gounder Vs. Purushothaman reported in (2003 (3) M.L.J.
785), this Court has again held, failing to prove title a person can still claim adverse possession. Therefore, there is no inconsistency in the plea of the 6th defendant. In the written statement, he definitely had put forward a claim by adverse possession. The 6th defendant would state as follows:-
"Late Duraisami Pillai was enjoying the property absolutely as owner and he was enjoying it openly, exclusively, continuously and adversely even during the life of Senbagathaammal and after and he has prescribed title by adverse possession and prescription.
23.After the death of Senbagathaammal, no doubt, her husband Duraisami Pillai had dealt with the property by creating a mortgage under Ex.B.23. It is also pointed out that the granddaughters have also attested the said documents. However, the lower appellate Court had disregarded this document as there is an addition of line to show that after the death of Senbagathaammal, the said Duraisami Pillai had inherited the property. The point urged by the 6th defendant was that the plaintiffs mother and other granddaughters are estopped from claiming any title from the property as they knew that the said Duraisamy pillai had dealt with the property . However, it is not an issue before this Court. But the point is the said Duraisami Pillai had possessed and enjoyed the property as that of his own from the year 1943, which was known to the granddaughters, who had attested the documents.
24.It is also proved that after the death of Duraisami Pillai, the 5th defendant was put on possession and enjoyment of the property till it was sold in a Court auction. Will such long possession and enjoyment of the property by Duraisami Pillai and his grandson, the 5th defendant, amount to adverse possession by prescription???
25.The learned counsel for the appellants would point out that starting point of such adverse possession was not pleaded and the possession is not hostile against the rightful owner. In (2003 (3) MLJ 785) cited supra, this Court has held as follows:-
"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 possession. 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 that 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 rise as to whether such a person can still claim adverse possession".
26.Therefore, there must be an admission that the property belonged to the other party and the possessor must have animus possidendi, the intention of such possession and it must be continuous and hostile to the title of the original owner.
27.Duraisami Pillai knew that the property stands in the name of his wife Senbagathaammal when he has mortgaged the property in 1943. The mortgager must be also aware of the same. Otherwise there is no necessity for the female members to attest the mortgage deed in the year 1943.The intention was to put the female heirs on notice of the intended alienation by a person who claims a title of his own. After Duraisami Pillai, one of the grandson executed the release deed in favour of the 5th defendant. It is an admitted fact that the 5th defendant continues to be in possession more than a statutory period. The 5th defendant was all along in possession of the property as that of his own and his sisters, who are all residing nearby had also witnessed such open possession and they never objected to it.
28.The animus of a person is that when he had intended in his mind to possess the property as his own. Hostile possession does not always mean that a person must be conscious that the property belongs to somebody else. The starting point of such possession will start running when that person or his predecessor in title started dealing with the property as his own.
29.The animus of the 5th defendant was that when he had intended in his mind to possess the property as his own which was acknowledged by his brother as early as 1955. The starting point of such possession has started when Duraisami Pillai dealt with property as that of his own and it continued thereafter through the 5th defendant, who possessed the property from 1955 and thereafter, enjoyed the same in all sense as that of his own against the adverse interest of the original owners viz., his sisters and their children.
30.The possession of the 5th defendant is not permissive and there is no evident to show either the plaintiff or the granddaughters of Senbagathaammal at any point of time permitted the 5th defendant to be in possession on behalf of them. The evidence is that all the sisters of the plaintiffs are living in and around the suit property and they knew that the 5th defendant was enjoying the property as that of his own.
31.In the present case, the 6th defendant and his predecessor, the 5th defendant and his father Duraisami Pillai have been in possession of the property and that possession was open, continuous, exclusive and hostile to the actual owners and the intention to hold his property is that of their own. Therefore, they have perfected title by adverse possession.
32.The Lower Appellate Court has rightly held so and I have no reason to interfere with. The substantial question of law arises in the second appeal is answered accordingly.
33.In the result, the Second appeal fails and the judgment and decree of the lower appellate Court is confirmed. No costs. Consequently, connected miscellaneous petition is also dismissed.
MPK To
1.The Ist Additional Sub Judge, Trichy.
2.The II Additional District Munsif Tiruchi.