1997 Supreme(Mad) 514

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI
Roohnisha Beevi & Others
Versus
A.M.M. Mahudu Mohamed & Others
S.A. No. 623 of 1989
Decided On :Decided On : 12-04-1997

A person pleading adverse possession has no equities in his favour and the burden is on him to clearly plead and establish all the facts necessary to establish his adverse possession.

Headnote:

ADVERSE POSSESSION - PLEADING - BURDEN OF PROOF - ADMISSION - ORAL SALE - POSSESSION - EVIDENCE - BOUNDARIES - IDENTIFICATION - EXTENT - SURVEY NUMBERS - LEKHOMS - ADVERSE POSSESSION - PLEA - OUSTER - ORAL GIFT - SETTLEMENT DEED - ANIMUS - OVERT ACT - MORTGAGE - ENJOYMENT - TITLE - DECLARATION - INJUNCTION.

Fact of the Case:

Plaintiffs filed a suit for declaration of title and consequential injunction, or in the alternative for recovery of property from defendants. The scheduled property is described as Survey Nos. 256 and 257 having a total area of nearly 10 acres of which the plaintiffs claim the western one half. The property is included in Patta No. 471. Plaintiffs claimed the western half in Survey Nos. 256 and 257 was purchased by late Kuppai son of Kattu Vava as per Ex.A-1 dated 27-8-1873, and Ex-A-2 dated 18-5-1874. It is further alleged that the acquirer was in possession of the property, and on his death, his rights devolved on his two sons Mohammed Mohideen and Mohammed Ibrahim Sahib. It is further said that in a partition between the members of the family, plaint property was allotted to Mohammed Mohideen and he was in absolute possession. Patta for the property was given in the name of Mohammed Mohideen and his brother Mohammed Ibrahim Sahib, as per Patta No. 109 and kist was also being paid under the said patta. On the death of Mohammed Mohideen, the right devolved on his children, namely, Mohideen Syed Ibhrahim Sahib and Kitur Mohideen, and also 4th plaintiff and 8th defendant. Plaintiffs have given the genealogy and the same has been marked as Ex. A-3 in this suit. The eldest member of the family Mohammed Syed Ibrahim Sahib son of Mohammed Mohideen, died long back, and the second son Kittur Mohideen, for the purpose of his business, used to visit Ceylon. Even at the time of Revenue Settlement, the property stood in the name of Mohammed Mohideen and Mohammed Ibrahim Sahib, named above. Thereafter, while patta for the property was being granted and the property was converted into ryotwari, plaintiffs were not in India, and during that time, the eastern property owner, i.e. , father of defendants 1 to 6, in collusion with the Karnam, obtained patta for the entire property. On coming to know about the same on their return to India, Kithur Mohideen, second son of Mohammed Mohideen represented the matter to the local Tahsildar. After enquiry, the Tahsildar passed an order to issue joint patta along with others. Third defendant was aggrieved by that order, and he took the matter in appeal. The Appellate Authority was of the view that the order to grant joint patta was without hearing the affected person, and accordingly set aside the order and remanded the matter for fresh consideration. At that time third defendant put forward a contention that the entire property belonged to him. It is alleged that the said claim put forward by the third defendant is not correct. Even on the date of suit, they are in possession. Plaintiffs are in possession of the western portion of the entire property of 10 and odd acres. It is further said that the third defendant cannot claim any right over the western portion on the principle of estoppel, and at no point of time, defendants 1 to 6 were in possession of the western portion of the entire plaint schedule. The cause of action is stated to be the attempt made by third defendant to encroach upon the plaint property on 1-4-1972 and continuously thereafter. Third defendant died subsequent to the institution of the suit, and his legal representatives have been impleaded as defendants 33 to 39.

Finding of the Court:

The Court found that the plaintiffs had obtained title under Exx.A-1 and A-2, but that is only for 3 acres 15 cents, and not for 5 and odd acres as claimed in the plaint, and that is also lost by adverse possession and limitation. The Court also found that the claim of the third defendant that there was an oral sale in respect of the western portion is not true. The Court further found that the reference to one Mohammed Ibrahim Sahib in paragraph 21 of the written statement can only be regarding plaintiffs predecessor. This, According to there learned counsel for the appellants is a misstatement, for, even the third defendant has admitted in paragraph 26 of the written statement that Mohammed Ibrahim Sahib mentioned at para 21 is not plaintiffs predecessor, but a stranger. It is further found that there is no documentary evidence to show that the third defendant or his father ever obtained title to the western half and in 1958, the alleged oral gift in respect of the western portion also is not true. It was further found that as per Ex.B-10, the defendant No. 3 also did not get any right over the western half of the plaint schedule survey number, but it was found that the third defendant might have been in possession and the title of the plaintiffs is barred by limitation and adverse possession. The trial Court as well as the lower Appellate Court relied on Exx.B-4 and B-5 for the said purpose, and also various revenue receipts, which are marked as Exx. B-32 to B-81. So holding, conclusion was arrived at by the Courts below that under Exx. A-1 and A-2 plaintiffs obtained title, but that is only for 3 acres 15 cents, and not for 5 and odd acres as claimed in the plaint, and that is also lost by adverse possession and limitation.

Issues: None

Ratio Decidendi: The Court held that the plea of adverse possession could not be sustained, and the claim of the plaintiffs for 5 and odd acres also could be sustained. The Court found that the property has been identified and the plaintiffs are entitled to half right over the same. The Court also found that the boundary description of the plaint schedule taken along with the description in Exx.A-1 and A-2 is correct. The Court further found that the claim of the third defendant that he came into possession of the entire Pattanathu Maraikkar Thottam is to be disbelieved. The Court also found that the plea of adverse possession itself could not be accepted as the third defendant failed to prove that he had obtained possession of the property in a hostile manner and that he had denied the title of the true owner. The Court also found that the claim of the third defendant over the plaint schedule property is rejected and the appellants are found to be in possession of the same.

Final Decision: The Court allowed the Second Appeal, set aside the judgment of the trial Court, as copied by the lower Appellate Court, and declared that the appellants are entitled to ABTGHQPOA Plot which has an extent of 5-18 acres. The Court also granted a consequential injunction as prayed for.