1996 Supreme(Mad) 306

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE P. SATHASIVAM
Valliammal (late) & Others
Versus
Pachaiammal
Second Appeal No. 1965 of 1982
Decided On :Decided On : 01-03-1996

A co-owner can acquire title to the entire property by adverse possession against the other co-owners, if he is in exclusive possession of the property for a long period of time, and the other co-owners do not assert their rights during that time.

Headnote:

ADVERSE POSSESSION - PARTITION - LIMITATION - EXTINCTION OF TITLE - ADVERSE POSSESSION BY CO-OWNER - OUSTER - EXCLUSION - HOSTILE POSSESSION - LAPSE OF TIME - PRESUMPTION OF GRANT - LOST GRANT - ADVERSE POSSESSION AGAINST STRANGERS - ADVERSE POSSESSION AGAINST CO-OWNERS - DISTINCTION - ELEMENTS OF ADVERSE POSSESSION - OPEN, ADEQUATE, CONTINUOUS POSSESSION - HOSTILE ANIMUS - KNOWLEDGE OF TRUE OWNER - PRESUMPTION OF JOINT OWNERSHIP - OUSTER OF CO-OWNER - EXCLUSIVE POSSESSION - HOSTILE, OPEN DENIAL AND REPUDIATION OF OTHER CO-OWNERS RIGHT - LONG CONTINUED POSSESSION - LAPSE OF TIME - DISAPPEARANCE OF EVIDENCE - PREJUDICE TO OTHER SIDE - LOSS OF EVIDENCE BY LAPSE OF TIME - INACTIVITY OF CO-OWNER - CONSEQUENCES - DELAY IN BRINGING SUIT - LACHES - ACQUIESCENCE - ESTOPPEL - PARTITION SUIT - DISMISSAL - ADVERSE POSSESSION ESTABLISHED.

Fact of the Case:

Plaintiff filed a suit for partition of the suit property into two equal shares and allotment of one share to her, and also directing the defendants to pay mesne profits. The defendants contended that they were tenants under the 1st defendant who was in exclusive possession of the suit property and had perfected his title by adverse possession. The plaintiff claimed that she was a co-owner with the 1st defendant and that her right to the property had not been extinguished by adverse possession.

Finding of the Court:

The court found that the 1st defendant had been in exclusive possession of the suit property for over 35 years, had constructed several houses on the property, and had leased out the property to various tenants. The plaintiff had not made any claim to the property during this time. The court held that the 1st defendant had perfected his title to the property by adverse possession and that the plaintiff's right to the property had been extinguished.

Issues: 1. Whether the plaintiff's claim to the suit property was barred by adverse possession and limitation, having regard to the admitted facts and circumstances of the case? 2. Whether the plaintiff would have full absolute rights to the suit property but for the lapse of 32 years, and is not the frame of suit as one for partition, misconceived and liable to be dismissed as not maintainable?

Ratio Decidendi: The court held that the 1st defendant had perfected his title to the suit property by adverse possession and that the plaintiff's right to the property had been extinguished. The court relied on the following principles: * Adverse possession is a hostile possession, i.e. a possession which is expressly or impliedly in denial of the title of the true owner. * Possession to be adverse, must be possession by a person who does not acknowledge the others rights, but denies them. * The principle of law if firmly established that a person who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. * For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. * Adverse possession is commenced in wrong and is aimed against right. * A person is said to hold the property adversely to the real owner when that person, in denial of the owners right excluded him from the enjoyment of his property. * Setting up adverse possession by the person in adverse possession is not wrong; it is not shameful on his part to do so. * The plea is allowed with the laudable intention of giving a quietus to long possession. * In fact, under the Civil Procedure code, when a suit in ejectment or for possession is filed by the plaintiff he is required to show prima facie that it is within time. * Now the party claiming to hold the immovable property adversely must at least go on to prove that it was in denial of the owners title and that he excluded him from the enjoyment of his property. * Where a stranger is in possession it is not necessary to do so to the knowledge of the true owner, but it is sufficient if the possession is hositile, notorious and exclusive, so that the owner could perceive the same. * In Halsbury, Volume I, Hailshams Edn. 1053, the law is put thus: "At the determination of the statutory period limited to any person for making an entry or bringing an action, the right or title of such person to the land, rent or advowson, for the recovery of which such entry or action might have been made or brought within such period is extinguished and such title cannot afterwards be reviewed either by re-entry or by subsequent acknowledgment. The operation of the state is merely negative, it extinguished the right and title of the dispossessed owner and leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the right of the owner to eject him," * The classical requirements of adverse possession are that the possession must be nec vi clam nec precario , that is to say, the possession required must be adequate in continuity in publicity and in extent. * It is sufficient that the possession be overt and without any attempt at concealment so that a person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening. * In Secretary of State v. Debendralal Khan their Lordships negatived the contention that it was necessary for the trespasser to bring the facts of his adverse possession to the notice of the real owner. * Mere exercise of possession exclusively and continuously would not be enough in all cases to show that the true owner if vigilant would be aware of what was happening. * Permissive possession does not become hostitle till there is an assertion of an adverse possession to the knowledge of the owner. * Sheodhari Rao v. Suraj Prasad Singh . The permissive character of the possession can be inferred from the attending circumstances even without direct evidence. * If possession is found to be permissive at the inception, the possession cannot prescribe or sustain title or any claim adversely to the grantor of the possession Ousuph v. Mathen Marimamma.

Final Decision: The Second Appeal was allowed, the judgment and decree of the courts below were set aside, and the suit filed by the plaintiff was dismissed.