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High Court of Judicature at Madras
THE HONOURABLE MS. JUSTICE R. MALA
Rajamanickam @ Kamal Basha
Versus
Mohammed Yassin
S.A.No.1108 of 1999 & C.M.P.No.10770 of 1999
Decided On :26-02-2010
ADVERSE POSSESSION - LIMITATION ACT - SUIT FOR DECLARATION OF TITLE AND RECOVERY OF POSSESSION - BURDEN OF PROOF - ANIMUS POSSIDENDI - HOSTILE POSSESSION - CONTINUOUS POSSESSION - OPEN AND UNINTERRUPTED POSSESSION - KNOWLEDGE OF TRUE OWNER - ADVERSE TO THE INTEREST OF TRUE OWNER - STATUTORY PERIOD.
Fact of the Case:
The plaintiff filed a suit for declaration of title and recovery of possession of the suit property, claiming that he inherited the suit property from his father and a share in the grandmother's property, and by way of release deed executed in his favor by the other heirs. The defendant raised his contention stating that he prescribed title to the suit property by adverse possession.
Finding of the Court:
The court held that the defendant had failed to prove that he was in possession of the suit property with the knowledge of the true owner, adverse to the interest of the true owner. The court further held that the defendant's possession was not open and continuous, and that he had not proved that his possession was adverse to the interest of the true owner for the statutory period.
Issues: 1. Whether the defendant had proved that he was in possession of the suit property with the knowledge of the true owner, adverse to the interest of the true owner? 2. Whether the defendant's possession was open and continuous? 3. Whether the defendant had proved that his possession was adverse to the interest of the true owner for the statutory period?
Ratio Decidendi: The court held that the defendant had failed to prove that he was in possession of the suit property with the knowledge of the true owner, adverse to the interest of the true owner. The court further held that the defendant's possession was not open and continuous, and that he had not proved that his possession was adverse to the interest of the true owner for the statutory period. The court relied on the following principles: * A person claiming title by adverse possession must prove three nec nec vi, nec clam and nec precario. In other words, must show that his possession is adequate in continuity, in publicity and in extent. * 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. * The plea of adverse possession is an essential question based upon provable facts and cannot rest upon mere surmises and stories weaved out in the course of the trial and in the witness box.
Final Decision: The court allowed the second appeal, set aside the judgments and decrees of both the courts below, and dismissed the suit O.S.No.768 of 1996 in the trial court.
Second appeal filed against the decree and judgment passed in A.S.No.22 of 1999 dated 17.6.99 on the file of III Additional District Judge, Pondicherry in confirming the judgment and decree dated 24.6.98 made in O.S.No.768 of 1996 on the file of Additional Sub-Judge, Pondicherry .
2. The averments made in the plaint O.S.No.768 of 1999 are as follows:-
(a) The plaintiffs grand father Yusuff Sahib donated a portion of the suit property to his wife Kadar Bi and another portion to his son Haniff Sahib under a registered donation deed dated 12.6.1934. From the date of gift, both were in possession and enjoyment of their respective shares. After the death of Haniff Sahib. his son, the plaintiff herein inherited the property and also he has a share in the grand mothers property. The defendant colluded with one tenant Abdul Aziz filed a suit in O.S.No.295 of 1981 for declaration of title to the suit property and the suit has been dismissed. The defendant preferred appeal in A.S.No.65 of 1983 which was also dismissed. He has not preferred any second appeal. Hence the judgment is final and conclusive and binding the parties.
(b) The plaintiff herein filed O.S.No.551 of 1983 for eviction of the persons namely Abdul Aziz, Shaffia bi, Ibrahim and Muthu. The suit was dismissed. Against the dismissal of the suit, he preferred an appeal in A.S.183 of 1990 which was allowed. Against the appeal suit this defendant and one Abdul Aziz have preferred second appeal in S.A.No.1854 of 1981 which was dismissed at the stage of admission itself. So the plaintiff filed E.P.No.8 of 1992 which was pending.
(c) The defendant shifted his residence from the Kaderbi s property to Hanif Sahibs property on 5.1.1990 when the plaintiff was out of station. The defendant is a tress passer and unauthorised occupier of the plaintiffs property. The co-sharer of the suit property executed a release deed in favour of the plaintiff. So the plaintiff alone is having exclusive and absolute title over the suit property. The defendant is trying to obtain electricity service connection in his name by furnishing false information to the Electricity Department. The plaintiff took possession of the house from Abdul Aziz, Shaffia Bi, Ibrahim and Muthu.
(d) The plaintiff issued legal notice on 20.6.1994 for delivery of possession. The defendant received the notice and gave a belated reply with false allegation. Hence the plaintiff has come forward with the suit for declaration of title to the suit property and recovery of possession and prayed for a decree.
3. The gist and essence of written statement in O.S.No.768 of 1996 filed by the defendant is as follows:-
(a) The defendant is not a party to the suit O.S.No.551 of 1983 filed by the plaintiff and so the judgment and decree passed in the said suit is not binding on him. He has not trespassed upon the plaintiffs property on 5.1.1990. From 5.4.1962 onwards, he is in possession and enjoyment of property measuring 25 x 50 feet . He is enjoying the property for more than a statutory period openly, peacefully, continuously and without any interruption from any body and this fact is well known to this plaintiff and the children of the defendants were born at the place where he resides now. Thereby he is in possession and enjoyment of the suit property for more than 35 years and has perfected both proprietary and possessory title to the same against all true owners.
4. The learned trial court after considering the averments both in plaint and written statement had framed 9 issues and considering the oral and documentary evidence of P.W.1 & P.W.2 and D.W.1 , Ex.A.1 to Ex.A.19, Ex.B.1 to Ex.B.17 decreed the suit as prayed for in the plaint. Against the judgment and decree of the trial court, the defendant/appellant herein preferred appeal in A.S.No.22 of 1999 before III Additional District Judge, Pondicherry. The learned first appellate Judge after framing 9 points for determination concurred with the findings of the trial
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