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1990 Supreme(SC) 880
SUPREME COURT OF INDIA
K.N. Saikia, M. Fathima Beevi, JJ.
K.V. Swamynathanand - Appellants
Versus
E.V. Padmanabhanand - Respondents
Civil Appeal No. 1224 of 1980
Decided On : 21-12-1990
Headnote:
Transfer of Property Act - Section 54 - Agreement for sale – Transfer from shares – Claim of compensation - suit ended in a decree for specific performance being granted in favors of the plaintiffs/father - Appeal from that decree was dismissed by Ext. A.9 Judgment dated 11.7.1946. On 7.2.1945, the Subordinate Judge, Coimbatore executed sale deed in in execution of the decree for specific performance, and he is said to have taken symbolic possession of the properties. Thus, the plaintiffs' father plaintiff claimed, had mortgage rights over T.S. Nos. 665 and 666, which were allotted to auras a sons of under partition deed and he became the owner of the equity of redemption in respect of ?rd of the said properties under balance of ?rd share in T.S. Nos. 665 and 666 which was vested under youngest of three sons of was admittedly purchased by defendants 13 and 14 on 29.12.1942 under Ext.A.6 with a direction to discharge the ?rd share of the mortgage debt due to the plaintiffs' father under– Held, Adverse possession by nature implies the ownership of another. Where one person is in possession of property under any title, and another person claims to be the rightful owner of the property under a different title, the possession of the former is said to be adverse possession with reference to the later. Adverse possession is a statutory method of acquiring title to land by limitation. It depends on animus or intent of occupant to claim and hold real property in opposition to all the world; and also embodies the idea that the owner of the property has knowledge of the assertion of ownership by the occupation. 'Ownership of property is", says Austin, "a species of jus in rem. It is a right residing in a person, over or to a person or thing; and availing against other persons universally or generally. The obligations implied by it are also negative as well as universal - It is a right imparting to the owner a power of indefinite user, capable of being transmitted to universal successors by way of descent, and imparting to the owner the power of disposition from himself and his successors per universities and from all other persons who have a under any existing concession or disposition in favor of such person or series of persons as he may choose, with the like capacities and powers as he had himself, and under such conditions as the municipal or particular law allows to be annexed to the dispositions of private persons - In the instant case Vaiyapuri was never proved to have acquired ownership of Under Section 54 of Transfer of Property Act, delivery of tangible property takes place when the seller places the buyer, or such person as he directs; in possession of the property. Under Section 55(f) of that Act the seller is to give, on being so required buyer, or such person as he directs, such possession of the property as its nature permits. There is no evidence of ever having been delivered to - On the other hand the Commissioner's plan and the partition decree did not include - Appeal dismissed
JUDGMENT :
K.N. Saikia, J. - This plaintiffs' appeal by special leave is from the Judgment of Madras High Court, dated 18.12.1979 in A.S. No. 919 of 1975, dismissing the appeal against the judgment and decree of the Subordinate Judge, Erode, dismissing the suit. The plaintiffs in O.S. No. 298 of 1970 sought a declaration that they were the exclusive owners of the plaint schedule properties and for recovery of possession thereof alongwith a prayer that the defendants 1-12 and 15 or such of them as were liable should be directed to pay Rs. 3,600/- as damages for wrongful use and occupation of the suit properties.
2. The suit property as described in schedule B to the plaint is comprised in Town Survey (shortly, T.S.) No. 666/2 in Erode Municipality. There are in all six house-doors in the suit property bearing Door Nos. 268, 269, 270, 271, 271-A and 272.
3. The parties for tracing their title admit the following genealogy :-
Genealogy :-
4. The four instant appellants K.V. Swamynathan, K.V. Ganesan, V. Samasundaram and V. Samigasundaram, all sons of K.S. Vaiyapuri Chettiar instituted O.S. No. 298 of 1970 aforesaid against the 14 original defendants, namely, (1) R. Nagammal, widow of R. Ellusubramania Iyer, (2) E.V. Padmanabhan, son of R.K. Venkatasami Naicker, (3) E.V. Gopinath, son of R.K. Venkatasami Naicker, (4) Srimathi Audal, wife of G. Venkatakrishnan, (5) P. Thambayya Naidu, resident of Door Nos. 268, 269 and 270, (6) P. Rangasami, carrying on business at Door Nos. 271 and 271-A, (7) A.K. Pangianna, father-in-law of (6) above, (8) Venkatachalam, shopkeeper at Door Nos. 271 and 271-A, (9) S. Seshadri Iyer of Door No. 272, (10) Lakshmi Ammal, resident of Door No. 272, (11) A. Ramasamy of Door No. 272, (12) N.S. Narayanasami Sastri, resident of Door No. 268, (13) A. Marimuthu Mudaliar, businessman at door No. 275-A, and (14) A. Arumuga Mudaliar, carrying on business at Door No. 275. By order dated 29.1.1974 in I.A. 1283/73, Meenammal, wife of R. Ramamoorthy Iyer was added as defendant No. 15. A. Marimuttu Mudaliar and R. Nagammal having died, their legal representatives were brought on record. In this appeal, however, there are only 12 respondents.
5. Ext. A-1 reproduced herein is the sketch map for the site T.S. No. 666 in Ward 1, Brough Road, Erode Town.
6. The plaintiffs' case was : The buildings and the vacant sites in original T.S. No. 666 and T.S. No. 665 which lay north of T.S. No. 666 were the joint family properties of the propositus Ellayyer alias Annayyar, hereinafter called Annayyar. Before the aurasa sons were born to Annayyar, he adopted one Ramasamy Iyer, who later came to be known as Vakil Ramasamy Iyer. Besides the adopted son Vakil Ramasamy Iyer, Annayyar had, as would be clear from the genealogical table, three aurasa sons, namely, R.A. Ellayar, R.A. Sankaranarayanan Iyer and R.A. Meenakshisundaram Iyer. Vakil Ramasamy Iyer had three sons, namely, Ellusubramania Iyer, Kalayanarama Subramania Iyer and Sivasubramania Iyer. The first defendant, Nagammal is the widow of Ellusubramania Iyer and daughter-in-law of Vakil Ramasamy Iyer. On 21.8.1896 a partition was entered into among Annayyar and his aurasa sons and his adopted son Ramasamy Iyer. Under the partition deed, the suit properties were allotted to R.A. Ellayer, R.A. Sankaranarayana Iyer and R.A. Meenakshi Sundaram Iyer, the aurasa sons Annayyar. On 31.5.1921, the aurasa sons of Annayyar executed a mortgage over the properties, obtained by them under Ext. B.5 partition deed including the suit properties, to one Yaghasami Iyer who filled O.S. No. 147 of 1932 in the Sub-Court, Coimbatore and obtained a decree. When the hypothecate was brought to sale by the mortgagee in execution of the decree, the mortgagors, namely, the aurasa sons executed on 4.7.1934 the subsequent Ext. A.3 mortgage in favour of Salem Bank Limited. The mortgagee, Salem Bank Limited in turn assigned their rights under Ext. A.3 mortgage to K.S. Vaiyapuri Chettiar, the deceased father of the pla
