@JUDGMENTTAG-ORDER
1. The two second appeals arise out of two suits between the same parties in respect of the same suit property. S.A.No.1213 of 2000 arises out
of O.S.No.238 of 1997 filed by the respondent against the appellants for declaration and recovery of possession. S.A.No.1214 of 2000 arises
out of O.S.No.229 of 1997 filed by the appellant herein against the respondent for bare injunction in respect of the same property. By appellant,
we refer to the 1st appellant in S.A. 1213 of 2000, who is the sole appellant in S.A.1214 of 2000.
2. The facts briefly are as follows:
The suit property belonged to one Marudhamuthu, father of the respondent M.Subramanian, having purchased it on 27.9.1955 under a sale deed
Ex.A1. Since the father of the respondent had to leave for Malaysia, he entrusted the property to the first defendant who had been managing it on
behalf of the respondent''s father and after his death, the respondent. In 1997, O.S.No.229 of 1997 was filed and temporary injunction was sought
for. Only then, the respondent realized that the first appellant in S.A.No.1213 of 2000, who is the sole appellant in S.A.No.1214 of 2000 had
altered the names in the property records taking advantage of the fact that the respondent''s father''s name Marudhamuthu which was similar to his
name Muradhai which he had subsequently altered to Marudhai @ Murudhamathu. The respondent tried to compromise the matter by inviting the
elders of the community as well as the relatives to resolve the dispute. Since it failed, the other suit O.S. No.238 of 1997 was filed. The suit for
injunction was dismissed and the dismissal was confirmed by the first appellate court and so, S.A.No.1214 of 2000 was filed. Similarly, the suit for
declaration and recovery of possession was decreed, which was confirmed by the first appellate court and so S.A.No.1213 of 2000 has been
filed. In both the suits, the case of the appellants was that the respondent''s father had never entrusted the property for management on his behalf;
on the contrary, there was an oral sale for Rs.2,000 and there was also a promise by the respondent''s father to execute the sale deed and
therefore, according to the appellants, they had been managing the property in their own right and it was not true that the appellant had altered the
records by falsely stating that his name was Marudhai @ Marudhamuthu. According to him, the authorities after a detailed enquiry, had come to
the conclusion that it was only the appellant who was entitled to the suit property. Both the courts declined to accept the case of the appellants
regarding the oral sale or the plea of adverse possession.
3. The substantial question of law framed in these second appeals is, whether the facts do not establish the title of the appellants by adverse
possession. In addition, Mr.S.V. Jayaraman, learned senior counsel for the appellants also pointed out that it was the case of the respondent in his
plaint that the suit property was entrusted to the defendant for management, whereas in the evidence, it is their case that the suit property was
entrusted to the respondent''s father. Learned senior counsel submitted that there can be no decree in favour of a plaintiff whose case is not based
on pleading. Learned senior counsel would submit that when the respondent had based his case on the pleading that he and his father entrusted the
suit property to the appellant for management, it ought to have been established by acceptable evidence. The evidence on the contrary, both of
P.W.1 and P.W.2 who is the brother of the appellant is that the suit property was entrusted to the appellant''s father. This case cannot be accepted
in the absence of pleadings and therefore, the manner in which the appellant came into possession has not been established. Of course, learned
senior counsel would concede that there can be no oral sale of a property which is worth Rs.2,000, but, nonetheless, if the possession of the suit
properly by the respondent is not traceable either through permission or through a valid transfer of property, then necessarily, the possession by the
said person is adverse to the true owner and when admittedly, the appellant had come into possession in 1955 itself, Ihe possession had continued
uninterrupted till [997 and therefore, the court ought to have accepted the plea of the appellant regarding the.possession having become adverse.
4. The learned counsel relied on the following decisions to support his case:
(i) Shankar Narayan Ranade Vs. Union of India (UOI), in which the appellants before the Supreme Court claimed compensation for diver sion of
water from river on the ground, he had title to the flowing water. This was not accepted by the court and thereafter, he set up Ihe alternative case
on the ground of his rights as riparian owner. The Supreme Court held that the reliefs claimed by the appellant were-based only On one ground
and that was title, and it was hot open to the appellants in the absence of pleadings to stake a claim on the ground that he is a riparian owner.
(ii) Next, the learned senior counsel relied on the case of Sri Venkataramana Devaru and Others Vs. The State of Mysore and Others, . In this
case, before the Supreme Court, the plaintiffs had throughout maintained that the suit temple belonged to a certain community and that it was not a
public temple. Their claim that it was a denominational temple was not accepted. The appellants attempted to raise a plea before the Supreme ''
Court for the first time that the temple was a private one and not within the purview of Madras Temple Entry Authorisation Act (5 of 1947 as
amended by Act 13 of 1949). The Supreme Court held that it would be neither legal nor just to refer to the evidence adduced with reference to a
matter which was actually in issue and on the basis of that evidence to come to a finding on a matter which was not in issue.
(iii) Next, the learned senior counsel relied on the case of Om Prabha Jain Vs. Abnash Chand and Another, , where Ihe Supreme Court held:
The ordinary rule of law is that evidence is !o be given only on a plea properly raised and not in contradiction of the plea.
That case was with reference to the charge of bribery. The learned senior counsel therefore submitted that the case of the respondent that the suit
property was entrusted to the appellant''s father cannot be accepted in the absence of pleading and furthermore, once the origin of possession as
claimed by the respondent has not been legally proved, the case of the appellant of adverse possession would have to be accepted. In any event,
the learned senior counsel would submit that the suit filed by the respondent O.S.No.238 of 97 necessarily have to be dismissed.
5. Mr. V.K. Muthusamy, learned senior counsel for the respondent, on the other hand, submitted that both the courts had rejected the plea of
adverse possession and neither before the trial court, nor before the appellate court, had this plea been advanced namely, the contradiction
regarding the person to whom the properties were entrusted by the father of the respondent for management in his absence. In any event, the
learned Senior Counsel submitted, the discrepancy is not so vital as to warrant dismissal of the suit. The fact that the respondent''s father was the
owner of the suit property is not in dispute. The fact that he went to Malaysia during which time properties had to be entrusted to someone to take
care is also not in dispute. The appellant''s case of oral sale must be disregarded since there is nothing to support it. The only other case is that
propounded by the respondent of entrustment of the suit property to the appellant. No doubt, in the plaint, it is stated that the appellant was asked
to manage the suit property, whereas in the evidence, it is stated that initially, it was with the appellants father and after his death, it was the
appellant who was managing. The learned senior counsel submitted, looked at from any point of view, it is clear that the respondent had pleaded
and proved that they had permitted the appellants to be in possession of the suit property. The learned Senior Counsel therefore submitted that
once the possession of the respondent has originated under permission granted by the owner, then unless there is an unambiguous clear, claim of
adverse possession, possession however long cannot become adverse. He also submitted that once the title of the plaintiff namely the respondent is
declared in his favour, possession must follow under Article 65 of the Limitation Act, unless the appellant is able to establish adverse possession.
So, even assuming there is a discrepancy in the pleading and evidence, that cannot defeat the suit. He also submitted that there is absolutely no
evidence or pleading regarding the date from which the appellant''s possession became adverse and he also submitted that the vital ingredients of
adverse possession were totally absent.
6. He relied on the following decisions in support of his case:
(i) T. Subbiah Vs. S.K.D. Ramaswamy Nadar, , where it was held that a permissive possession will not become adverse unless it is demonstrated
that the person in possession had asserted his adverse title to the knowledge of the real owners for a period of 12 years or more.
(ii) Thakur Kishan Singh (dead) Vs. Arvind Kumar, in which again, the Supreme Court held that heavy burden lies on the person whose
possession was initially permissive to establish that it became adverse and that mere possession for however long a time does not convert
possession which is permissive to one that is adverse.
(iii) Next, learned senior counsel relied on the case of S.Subha Reddiar and others v. Bhagyalakshmi Ammal and another, 1996 (2) L.W.31,
where the learned Judge held, it is for the person claiming title by adverse possession to prove that in respect of the existence of hostile title, the
true owner remains silent. ""Mere silence or keeping animus in mind cannot make the title lost to the real owner.
(iv) Then again, in Kannappan Vs. Pargunan and 9 others, in which case, the plaintiff seeking declaration of title claimed adverse posses- sion. The
learned Judge held, the plea of adverse possession can be raised only when the person admits the title in another and demonstrates that he had the
animus to hold the property against that person and he also brought it to their notice.
(v) Next, he referred to Thakur Kishan Singh (dead) Vs. Arvind Kumar, , where it was held that when initially possession is with permission, the
burden of proof is very heavy on the person claiming adverse possession.
(vi) Finally, he referred to the case of Santhosh Hazari v. Purushottam Tiwari, 2001 (1) C.T.C. 505 to support his case that unless there is
substantial question of law, there can be no interference in second appeal and also for the proposition that a new point raised for the first time
before the High Court is not a question involved in the case unless it goes to the root of the matter.
7. In any event, the learned counsel submitted that the appellant had not proved factually, when, his possession became adverse and both the
courts had therefore held against him and therefore there is no substantial question of law for consideration in the second appeal.
8. The title of the respondent is not denied because it is the appellant''s own case that the respondent''s father transferred the property to him by
oral sale. It is no doubt true as the learned senior counsel for the respondent pointed out in the written statement in O.S. No.238 of 1997 and in
the plaint in O.S.No. 229 of 1997, there is reference to the suit property being a ''Poorviga Sothu'' of the appellant, but that has not been the case
of the appellant. Though in the suit for bare injunction O.S.No.229 of 1997, he had stated that the suit property belonged to him and it was
ancestral, in the written statement filed in O.S.No.238 of 1997, he had clearly stated as follows:
There is also a specific reference to, Ex.A1, the sale deed in favour of the respondent''s father. The evidence of the appellant as D.W.I also shows
that he has admitted that the respondent''s father purchased the property under Ex.Al and that he promised to sell the property and took Rs.2,000
as consideration thereof. But, no sale deed was registered since the respondent''s father had to rush to Malaysia and that he promised to execute
the sale deed on his return. It is an admitted fact that in 1957, the respondent father visited India once, but the appellant did not make any request
or demand for execution of the sale deed in his favour. This, he admits even in the cross-examination. He also states that no one knew that his
father gave the respondent''s father money to purchase the suit property. There has been a partition deed in the family of the appellant amongst the
appellant and his 3 brothers. This is Ex.A6. It is admitted both in chief and in cross-examination that the suit property which is claimed to have
been purchased by his father was not included in the properties to be partitioned. It is on a consideration of the pleadings and the evidence that the
court below came to the conclusion that it is difficult to accept the case of the appellant regarding the oral sale and the purchase for Rs.2,000. The
finding of the courts below that there was no oral sale is one of fact and I cannot interfere with the same. The courts below also declared the title of
the respondent that his father had purchased the suit property under Ex.A1, which is also admitted by the appellant, and as his heir, he had
acquired title to the suit property. Therefore, the finding regarding title'' to the suit property is also liable to be confirmed. The only other question
which remains to be tested is whether the appellant has proved adverse possession and whether the discrepancy regarding the person to whom the
suit property was entrusted raises a substantial question of law.
9. The adverse possession has been defined in Ejas Ali v. Special Manager, Court of Wards by the Privy Council as follows:
The principle of law is firmly established [hat person, who bases his tide 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 tide to the property claimed.
In S.M. Karim Vs. Mst. Bibi Sakina, , the Supreme Court held thus:
... 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 affecled can be found. A mere suggeslion in the relief clause that there was an
uninterrupted possession for ""several 12 years"" or that the plaintiff had acquired ""an absolute title"" was not enough to raise such a plea. Long
possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.....
Both these paragraphs are relied on by the learned Judge in the decision reported in S.Subha Reddiar and others v. bhagyalakshmi Ammal and
another, 1996 (2) L.W. 31. As held by the learned Judge in this case, what was the adverse character and when it began, are matters within the
exclusive knowledge of the person claiming it. He is the only person who knows when he had the positive animus against the title of the true owner
and he should State it in the pleadings.
10. Article 65 of the Limitation Act lays down that the plaintiff should file a suit for recovery of possession on the basis of title within 12 years from
the date on which adverse possession began. So, unless there is a definite date, the true owner will not know from when, the person in possession
intended to hold the property adverse to his right. In this case, in the written statement filed by the appellant at para.4, it is merely averred that the
appellant and his ancestors had been enjoying the property as their own for over 42 years. The written statement is filed in 1998. Therefore,
according to him, even in 1956, he had been enjoying the property in his own right, whereas in para 2, it is stated that the respondent''s father
rushed off to Malaysia because his mother was very ill and he gave the possession of the property to the appellant''s father stating that he would
return and execute the sale deed. Even according to the appellant, they were put in possession with the consent of the true owner who promised to
execute a sale deed. So, the possession at its inception was definitely with in the consent of the true owner and not hostile to the true owner,
therefore, factually, it is not correct for the appellant to state that for over 42 years, he had been in possession of the property in his own right. The
lower court therefore, rightly held that the appellants had failed to prove by cogent evidence that they had held the property adverse to the true
owner for over 42 years.'' The lower appellate court had taken into account, the document Ex.Dll, which is a tenancy agreement between the
appellant and a tenant, wherein it was stated that the suit property is under the management of the appellant and D.W.3 who is the tenant had also
deposed that the appellant while inducting him into tenancy, had informed him that the owner of the suit property was at Malaysia and that he was
managing the property on his behalf. It is for this reason, the appellate court holds that the suit property had been in the possession of the appellant,
only with the permission of the respondent''s father and thereafter, the respondent, in order that he may manage the properties on their behalf, and
therefore came to the conclusion that adverse possession had not been proved.
11. The decision relied on by the learned senior counsel for the respondent in Thakur Kishan Singh (dead) Vs. Arvind Kumar, , comes to his aid:
As regards adverse possession, it was not disputed even by the trial Court that the appellant had entered into possession over the land in dispute
under a license from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the
appellant to establish that it became adverse. A possession of a co-owner or of a licensee or of an agent or a permissive possession to become
adverse must be established by cogent and convincing evident to show hostile animus and possession adverse to the knowledge of real owner.
Mere possession for howsoever length of time does not result in converting the permissive possession to adverse possession. Apart from it, the
Appellate Court had gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not
adverse. The learned counsel, despite strenuous argument, could not demolish the finding of adverse possession. Attempt was made to rely on the
evidence led on behalf of the parties and the evidence of the Commissioner who prepared the map. We are afraid that such an exercise is not
permissible even in second appeal, what to say of the jurisdiction exercised by this Court under Article 136 of the Constitution. Further, we do not
find that the appellant has suffered any injustice which requires to be remedied by this Court.
And again in the decision reported in T. Subbiah Vs. S.K.D. Ramaswamy Nadar, , it was held as follows:
It is now well-settled that a permissive possession cannot be converted into an adverse possession, unless it is proved that the person in
possession asserted an adverse title to the property to the knowledge of the true owners for a period of twelve years or more. As there is no
evidence of any assertion of any title hostile to any daughters by Govinda Chitti at any point of time earlier than 3.7.1963, the settlement under
Ex.A-1 can only be taken as such assertion on that particular date. The present suit has been filed within a period of three years from the said
assertion and, therefore, the defendant cannot derive any benefit under the said document"".
There is absolutely no evidence or pleadings to show that the appellant asserted his right hostile to the true owner before he filed the suit
O.S.No.229 of 1997. Therefore, if at all there is adverse possession, it can only start from that date. Therefore, the above decision also applies to
this case.
12. In the decision reported, in Thakur Kishan Singh (dead) Vs. Arvind Kumar, , the Supreme Court held that the appellate court had gone into
great detail and only after considering the evidence on record had found as a fact that there was no adverse possession. In this case also, a perusal
of the judgment of the lower appellate court shows that the oral and documentary evidence has been considered in detail. Even in the oral evidence
of D.W.I, the appellant, there is no categoric statement as to, when, his possession became adverse.
13. In the decision reported in Kannappan Vs. Pargunan and 9 others, , the learned. Judge held as follows:
Apart from the same, parties are close relations. Being close relations something more is to be proved to prescribe title by adverse possession
than a case between two strangers. Animus to hold the property against relations must be brought to their notice.
In this case too, the parties are close relatives which is why the suit property was entrusted by the respondent''s father to the appellant and unless
there is an unmistakable evidence of the appellant bringing to the notice of the respondent, his animus to hold the property adverse to the true
owner; adverse possession cannot be held to be proved. Therefore, the issue regarding adverse possession which is the only substantial question
of law framed at the time of admission of the second appeals is also found against the appellant.
14. Now, we come to the point raised by the learned senior counsel for the appellant regarding the discrepancy as the person to whom the
property was entrusted. The decisions relied on by the learned senior counsel for the appellant do not apply to this case. In Om Prabha Jain Vs.
Abnash Chand and Another, , the discrepancy was with regard to the pleas regarding taking of bribery which contradicted each other and the
witnesses were also found to be unreliable and therefore, the Supreme Court held that evidence contrary to the pleadings cannot be accepted. In
the decision reported in Sri Venkataramana Devaru and Others Vs. The State of Mysore and Others, , where the question of the nature of the
temple came up for consideration, contrary to the pleading that it was a denominational temple and not a public temple, the appellants before the
Supreme Court stated an entirely new and different proposition that the suit temple was a private one. The Supreme Court rightly held that it was
not open to the party to state a case which was entirely different from that which was pleaded. In Shankar Narayan Ranade Vs. Union of India
(UOI), , after claiming rights on the ground of his title to the flowing water, the appellant altered his stand and submitted that he was a riparian
owner. The Supreme Court held that it was not open to do so. The reason for this is not far to seek. A party is required to put forth his case in the
pleadings so that the opposite party would have the opportunity to controvert the case and to put forth evidence in support of his own. If evidence
had not been adduced with reference to the point in issue, it would not be proper to rely on the basis of the same evidence and arrive at a finding
regarding a question which was not in issue. The Supreme Court therefore held that it would not be proper to decide the rights of the parties on the
basis of a finding with regard to a matter that was not in issue. This definitely will not apply to the instant case. Though in the plaint it was stated that
the respondent and his father had asked the first appellant to manage the properties on their behalf and had in the oral evidence, the respondent
had stated that in 1955, his father had entrusted the property to the appellant''s father, there is really no serious discrepancy with regard to the
case. In fact, even in the cross-examination, which is the earliest point when the appellant could have charged the respondent with changing his
case, there is absolutely no question asked regarding this. This is why, the lower appellate court had found as follows:
Further, it is the evidence of P.W.1 that
This is also supported by the evidence of P.W.2 who is the brother of the appellant, His evidence is:
Of course, there is a suggestion that because of ill-feeling between him and his brother, P.W.2 is giving evidence against the appellant. But when
Ex.P 11 is put to the appellant wherein he had stated that the suit property is in his management, the witness is unable to give any explanation for
this. If he had let out the property as the owner, it was not necessary for him to state that the property is in his management.
15. In these circumstances, the slight discrepancy in the evidence and the pleadings is not really a contradiction, which goes to the root of the
matter. In any event, once the title of the plaintiff has been accepted, it is for the defendant to show that he had held the property hostile to the right
of the true owner openly and continuously for over a period of 12 years. Otherwise, the plaintiff is entitled to recover possession of the suit
property. Both the courts below have elaborately considered the oral and documentary evidence and have come to the conclusion that the
respondent is entitled to a decree. I see no reason to interfere with the same. The second appeals are dismissed. No costs. C.M.P. Nos. 11726
and 13342 of 2000 are closed.
