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2021 Supreme(Online)(MAD) 5369
HIGH COURT OF MADRAS
G. Jayachandran, J
Nallapa Gounder – Appellant
Versus
Pazhanimuthu – Respondent
A.S.Nos.186 & 188 of 2019
For the Appellants/Petitioners: C.Ajith Kumar, S.Ramajayam
For the Respondents: N.Vijaya Baskar, Law Vision
A permissive occupant cannot claim title by adverse possession regardless of the duration of possession, as they lack the requisite open and hostile animus against the true owner required under Article 65 of the Limitation Act.
Headnote:(A) Limitation Act, 1963 - Article 65 - Suit for recovery of possession based on title - Possession of permissive occupant - Does not become adverse merely by long possession - Animus possidendi and open hostility to true owner required for adverse possession. (Paras 21-23, 29)
(B) Evidence Act, 1872 - Section 18 - Judicial admission in written statement - Admissions of permissive possession in written statement cannot be lightly brushed aside as typographical error without formal amendment or satisfactory explanation. (Paras 19)
(C) Revenue Records - Patta, Chitta, Adangal - Do not confer title - Mere change of patta by fraud or deceit does not validate transfer of title or create adverse possession. (Paras 24-25, 29)
Facts of the case:
The suit property was originally owned by ancestors of the plaintiffs. The defendants entered into possession via a sale agreement in 1978. While the defendants claimed the full consideration was paid and they became owners, they could not produce documentary proof. The plaintiffs contended that the defendants were merely permissive occupants for cultivation purposes. The defendants attempted to create documents of title such as partition and settlement deeds based on fraudulent revenue entries.
Findings of Court:
The Court found the defendants were permissive occupants and had failed to prove the payment of balance sale consideration. Revenue records were held not to be documents of title. The plea of adverse possession failed as the defendants could not establish open and hostile animus for the statutory period.
Issues: (1) Whether the appellants perfected title by adverse possession? (2) Whether the documents executed by the appellants were valid? (3) Whether the suit based on title is maintainable despite long possession by the defendants?
Ratio Decidendi: A permissive occupant cannot claim adverse possession. The plea of adverse possession requires proof of animus possidendi (hostile intention) manifested openly against the true owner from the inception. Mere long possession, even if accompanied by revenue entries obtained by deceit, does not extinguish the title of the true owner or confer title upon the occupant.
Result: Appeals dismissed.
| Table of Content |
|---|
| 1. overview of the property dispute and procedural history of the joint trial. (Para 1 , 10) |
| 2. evidence of permissive occupation supersedes claims of ownership. (Para 11 , 12 , 16 , 18) |
| 3. permissive possession cannot mature into adverse possession. (Para 21 , 22 , 23 , 29 , 30 , 31) |
| 4. revenue records do not constitute valid evidence of title. (Para 24 , 25) |
| 5. final confirmation of trial court's decision. (Para 32) |
Prayer in A.S.No.186 of 2019: First Appeal is filed under Section 96 of the Code of Civil Procedure read with Order XLI Rules 1 & 2 of C.P.C., 1908, against the judgment and decree dated 20.08.2018 made in O.S.No.142 of 2015 on the file of the III Additional District Judge, Salem.
Prayer in A.S.No.188 of 2019: First Appeal is filed under Section 96 of the Code of Civil Procedure read with Order XLI Rules 1 & 2 of C.P.C., 1908, against the judgment and decree dated 20.08.2018 made in O.S.No.63 of 2016 on the file of the III Additional District Judge, Salem.
COMMON JUDGMENT
The subject matter of these two Appeals is the land under 4 different survey numbers to a total extent of 1 acre 25 cents at Omalur Taluk, Amani Periyeripatti Village. This property originally belongs to one Ontha Gounder and his wife Sevakkal. They both died intestate leaving behind their only son Palaniappan. The said Palaniappan had two sons and two daughters by name Palanimuthu, Periyapaiyan, Nallammal and Chinnathangam.
2. As per the plaint in O.S.No.63 of 2016, (originally filed before District Munsif Court, Omalur as O.S.No.6 of 2010, renumbered after transfer to the III Additional District Court, Salem) the said property is an ancestral property. Ontha Gounder, his wife Sevakkal and his son Palaniappan were enjoying the property till their lifetime. Thereafter, it devolved upon the two sons of Palaniappan namely Palanimuthu (first plaintiff) and Periyapaiyan. They both were in possession and enjoyment of the property. After the demise of Periyapaiyan, his three sons namely Selvam, Anbarasu and Vekatachalam (plaintiffs 2 to 4) inherited his share and enjoying the property jointly along with Palanimuthu. Thus, the plaintiffs are in absolute possession and enjoyment of the suit property and none else have right over it.
3. In respect of the suit property, on 14.06.1978, Palanimuthu, the first plaintiff and Periyapaiyan father of plaintiffs 2 to 4, entered into a sale agreement with one Onthappa Goundar for consideration of Rs.5,500/- and received advance of Rs.2,000/-. The sale agreement was also registered. Onthappa Goundar was not able to pay the balance sale consideration and not ready and willing to perform the contract. He wanted the refund of advance money or to permit him to cultivate the land for 3 years period. Palanimuthu and Periyapaiyan permitted Onthappa Goundar to cultivate the land for a period of 3 years and same got renewed time to time since the first plaintiff and his brother Periyapaiyan were living away from Salem and not able to bestow their attention on the land. After the death of Periyapaiyan, his sons, who are the plaintiffs 2 to 4 became the joint owners of the property. On the demise of Onthappa Goundar, defendants 1 to 3, who are the sons and grandson of Onthappa Goundar were permitted to enjoy the suit properties on permissive basis. When the plaintiffs decided to dispose the property, they contacted the defendants 1 to 3 to vacate and handover the possession, they denied the plaintiff’s title and refuse to vacate. The notice dated 12.09.2008 to vacate the suit land returned unserved since the defendants 1 to 3 refused to receive it. Later, the plaintiffs came to know that, based on patta obtained by fraud, three documents were executed and registered in respect of the suit properties to defraud the plaintiffs. They are:-
(i). 19/02/2003: Onthappa Goundar during his lifetime along with his sons defendants 1 to 3 had executed a sale deed in respect of 4th defendant to an extent of 39½ cents and got th
