Adverse possession cannot be claimed by a permissive occupant without admitting the true owner's title.

J U D G M E N T

This appeal raises a limited question, because of the order of remand by this Court in S.A No.232/1998.

2. The brief facts necessary for the disposal of the appeal are as follows:-

The plaintiff filed a suit for declaration of title and recovery of possession in respect of 25 cents of land because of a building therein. According to the plaintiff, the property was allotted to him in a partition deed and prior to that partition, the grand mother of the plaintiff permitted the husband of the defendant to occupy the property and that occupation was thus purely permissive. The defendant resisted the suit by contending that when there was a threat to her possession, O.S No.429/1982 was preferred by her and that in the said suit, the possession of the appellant herein was upheld. The plaintiff in the present suit, who was the defendant in O.S No.429/1982, pleaded a different devolution of title which was not accepted by the trial court and the said suit was decreed. The trial court on appreciation of the oral and documentary evidence came to the conclusion that the defendant has perfected the title over the property by virtue of adverse possession and limitation and hence the plaintiff is not entitled to recovery of possession. Aggrieved, the plaintiff preferred A.S No.111/1993 and by judgment dated 23.06.1997 confirmed the judgment of the trial court, upholding the findings regarding the adverse possession and limitation. Aggrieved, the plaintiff preferred S.A No.232/1998 by judgment dated 01.07.2011, this Court set aside the judgment of the First Appellate Court and remanded the matter back to the First Appellate Court to consider the question of adverse possession and limitation set up by the defendant. Pertinently, the issue regarding title as found by the courts below was confirmed by this Court. Resultantly, the title of the plaintiff stood confirmed and the matter was remanded only for the limited purpose of deciding the question of adverse possession and limitation. On remand, the First Appellate Court by judgment dated 25.10.2011, allowed the appeal and granted a decree in favour of the plaintiff, declaring the plaintiff’s title over the plaint schedule property and also the recovery of possession from the defendant and hence the present appeal.

3. On 12.04.2012, this Court admitted this appeal on the following substantial questions of law:-

(i) Was it not quite permissible to raise the issue of adverse possession and limitation as an alternative plea?

(ii) Was not setting up a plea of tenancy under a different person equivalent to setting up a plea of title, which will not debar the defendant from pleading adverse possession and limitation against the true owner?

4. Heard Shri.V.V.Asokan, the learned Senior Counsel, assisted by Adv.Uthara Asokan appearing for the appellant and Shri.T.Krishnanunni, the learned Senior Counsel assisted by Adv.Meena A, appearing for the respondent.

5. The learned Senior Counsel appearing for the appellant contended that the First Appellate Court erred egregiously on finding that the plaintiff is entitled for recovery of possession. The defendant never admitted the title of the plaintiff and the specific case was that he came into possession of the property through one Nani Amma of Thaikadu family and he continued to hold the property until a sale deed was executed in the year 1982. Thus the possession of the defendant in the plaint schedule property having been found by the courts below and also in the earlier proceedings in O.S No.429/1982, the possession holds good against even the true owner and no further requirement is there to prove that the possession was brought to the specif