T. Raja, J.@mdashThe present Second Appeal has been directed against the Judgment and Decree dated 31.03.2005 passed in A.S. No. 2 of 2003 on the file of the Subordinate Judge, Ponneri, reversing the Judgment and Decree dated 07.11.2002 passed in O.S.No. 111 of 2001 on the file of the District Munsif-cum-Judicial Magistrate, Thiruvottiyur. The brief facts which led to file this second appeal, are as follows:
(i) The present second appeal has been filed against the finding of the first appellate Court that reversed the judgment and decree passed by the trial Court.
(ii) The appellant/plaintiff has filed a suit in O.S. No. 111 of 2001 for declaration of title and permanent injunction restraining the defendant from tresspassing into the suit property from cutting and carrying away the trees standing thereon and for peaceful possession and enjoyment of the same.
(iii) Pappathiammal, who is the grandmother of the appellant/plaintiff, has purchased ''A'' Schedule property, which is marked as ABCD in the plaint, in the year 1907 under Ex.A.1 registered sale deed dated 4.9.1907 and since then she has been in possession and enjoyment of the same. The said Pappathiammal had four sons and one daughter namely, Subramania Naicker, Vedachalam Naicker, Masilamani Naicker, Manikka Naicker and Jagadhambal. Out of the entire extent, measuring 28 cents of land, she has sold 0.10 cents of land (marked as MNOD in the plaint) to her sons Vedachalam Naicker and Manikka Naicker, each 0.5 cents under Ex.A.2 registered sale deed dated 26.9.1949 and the remaining 0.18 cents of land is mentioned as ''B'' schedule of property in the plaint. While Pappathiammal, grandmother of the appellant/plaintiff was in possession and enjoyment of the same, she gave her daughter Jagadhambal in marriage who gave birth to one Lakshmi and Ranganathan, the appellant/plaintiff. Thereafter, Jagadhambal who was the only daughter of Pappathiammal predeceased her mother on 10.12.1952. It was stated that after the death of Papathiammal on 28.12.1953 the appellant/plaintiff has been in possession and enjoyment of the suit ''B'' schedule property whereas Lakshmi who was the daughter of Jagadhambal never came near to the suit property for enjoyment of the same. The said Lakshmi also died after giving birth to one son and thereafter, her husband and her only son also died. Subsequently, the respondent/ defendant wife of maternal uncle had started to interfere with the possession and enjoyment of the suit property, hence, the appellant/plaintiff was constrained to file the suit for declaration of title and for permanent injunction restraining the defendant from tresspassing into the suit property for cutting and carrying away the trees standing thereon.
(iv) Now, after the death of the said Pappathiammal and Jagathambal and Jagathambal''s daughter Lakshmi and Jagathambal''s son, Ranganathan - plaintiff/ appellant herein is entitled to inherit his mother''s property, consisting of 18 cents, as it is Stridhana property of late Pappathiammal. Since the Lakshmi had no Class 1 heir and the plaintiff/appellant herein, Ranganathan, who being a brother of Lakshmi, is Class 2 heir, the appellant herein is entitled to inherit the property, as it is admittedly a stridhana property of Pappathiammal by following the rule of succession that stridhana property will devolve on daughter and then daughter''s daughter in preference to maternal uncle-Manaicka Naicker''s wife Gnanasundar, who is the defendant/ respondent herein.
(v) On the other hand, the case of the defendant/respondent herein is that the defendant''s husband is one of the four brothers of Jagathambal, and that she is not only entitled to inherit the suit property as heir of Pappathiammal, but also entitled to retain the suit property, as she has prescribed the title by adverse possession, for the reason that she has been in enjoyment of the property from 1951.
(vi) The respondent/defendant has filed a written statement contending that during the year 1967, Virudachalam Naciker has sold his half share, which was marked as MNOD in the plaint and undivided 1/3rd share in ''B'' schedule property to the respondent/ defendant by executing a sale deed dated 27.9.1967 and since then the respondent/ defendant and her husband have been in continuous possession of the entire extent. As such, if at all the appellant/plaintiff has got title on the suit property, the same has been lost by adverse possession in view of enjoyment of ''B'' schedule property as they own openly and continuously for more than the statutory period.
(vii) The trial Court, after appreciating the correct possession of the plaintiff, has held that, as per the General rules of succession in the case of males provided u/s 8 of the Hindu Succession Act, 1956, the plaintiff, being grandson of Pappathiammal through her daughter, Jagathambal and also the brother of Lakshmi, who is daughter''s daughter and who has no other Class 1 heir and the plaintiff being only Class 2 heir, is entitled for the suit property. In respect of the plea of adverse possession, learned trial Court has also held that the defendant/respondent herein has not mentioned anything about the date from which they were in possession of the suit property, hence, they have not proved their possession by giving documentary evidence.
(viii) As against that when appeal was preferred by the defendant, learned Subordinate Judge held that on the death of Lakshmi, granddaughter of Pappathiammal, as there is no issues, the branch of Lakshmi has come to an end, for, neither her husband nor her child was alive, hence, the plaintiff, being the brother of Lakshmi, cannot claim the property as the heir of Lakshmi and the plaintiff cannot have any right or title to the suit property and the same has to be decided only as per the Hindu Succession Act. In respect of the plea of adverse possession, it was held that the defendants/respondents herein are in enjoyment of the property for more than statutory period and further, it was held that they have prescribed title by adverse possession.
2. Heard Mrs. S. Radha Gopalan for Mr. S. Chakravarthi, learned Counsel appearing for the appellant and Mr. S. Mukunth, learned counsel appearing for the respondent.
3. At the time of admission of the above second appeal, the following substantial questions of law were framed by this Court:
i) On the admitted case of both sides in regard to the relationship of parties to Pappathiammal, the dates of death of the different parties whether the lower appellate Court is right in law in holding that due to the death of the appellant''s mother without leaving stridhana heirs, the stridhana property was inherited by the male heirs of Pappathiammal?
ii) Whether the lower appellate Court is right in law in holding the Hindu Succession Act, 1956 did not apply to the case on hand?
iii) Whether the lower appellate Court has not committed serious error in law in admitting additional documents Ex.B.3 to B. 12 ignoring mandatory provisions of Order 41 Rule 27, CPC?
4. The following Geneological Tree may be usefully seen for appreciating the contentions of the parties:-
5. From the above, Geneology an interesting question has arisen in the present second appeal;-
whether the "Stridhana property" inherited by a daughter from her mother will go to the daughter''s son, in the absence of any legal heir to the Lakshmi, who is daughter''s daughter of Pappathiammal? or, will it go to daughter''s brother or to granddaughter''s maternal uncle of the said Pappathiammal?
6. The learned counsel for the appellant has pleaded that the decision of Full Bench of this Court in Subramanian Chetti and others v. Arunachelam Chetti and others (ILR (XXVIII) 1 (Madras Series) gives quietus to the issue that ''the daughter''s stridhana property is entitled to be taken by daughter''s daughter in preference to daughter''s son.'' She added her submission that the learned first appellate Court without considering the settled legal position, has erroneously reversed the judgment and decree passed by the trial Court giving different theory that after the death of Lakshmi and her son, the lineage has broken down and therefore, the stridhana property of grand mother Pappathiammal after the death of her daughter Jagadhambal and grand daughter Lakshmi and her son, should have gone to the male heir, viz., maternal uncle side in preference to brother of Lakshmi is quiet opposite to the settled law, hence the same is liable to be interfered with in the light of the principle laid down by the Full Bench mentioned supra.
7. Again by reling on the decision of the Hon''ble Apex Court in
8.Per contra Mr. S. Mukunth, learned counsel appearing for the respondent would contend that Pappathiammal was having four sons namely Subramania Naicker, Vedachalam Naicker, Masilamani Naicker and Manikka Naicker and the only one daughter namely Jagadhambal. The Jagadhambal after her marriage gave birth to one daughter and one son, namely Lakshmi and Rangathan, the appellant/plaintiff and predeceased to Papathiammal and the said Pappathiammal, during her life time, sold 10 cents i.e., each 5 cents of land to Vedachalam Naicker and Manikka Naicker out of total extent of land 28 cents, which is known as ''A'' schedule property, under Ex.A.2 sale deed dated 26.9.1949. Lakshmi Ammal daughter of Jagadhambal and grand daughter of Pappathiammal could have succeeded to the property i.e. remaining 18 cents of land of Pappathiammal. But, she never came to take possession of the suit property. Therefore, ''B'' schedule property, which consists of 18 cents of land is in possession and enjoyment of the respondent/defendant. Therefore, if any title was acquired by the appellant/plaintiff, the same had been lost by adverse possession in view of the continuous possession and enjoyment of the ''B'' schedule property by the respondent/defendant to the knowledge of the appellant/plaintiff for more than the statutory period.
9. The learned counsel for the respondent/defendant would further contend by relying upon Sections 14 and 15 of the Hindu Succession Act, 1956 that after the death of Jagadhambal, the daughter of Pappathiammal, the suit property shall devolve upon Lakshmi, daughter of Jagadhambal. But, since the said Lakshmi, her husband and their son also died without any issue, the suit property shall devolve according to the rules set out u/s 15 of the Hindu Succession Act, 1956. Because, Section 15 of the Act says that the property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,-
(a) firstly upon the sons and daughters (including the children of any pre-deceased son or daughter) and husband.
(b) Secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father and
(e) lastly, upon the heirs of the mother.
10. He would further contend that as per Section 15 of the Hindu Succession Act, 1956, the property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16. He pleaded further that while revising the order of succession among the heirs to a Hindu female, the Joint committee have provided that property inherited by her from her father reverts to the family of the father in the absence of issue and similarly property inherited from her husband or father-in-law reverts to the heirs of the husband in the absence of issue.
11. The admitted case of both sides is that the suit property originally belonged to one late Pappathiammal, great grant mother of the plaintiff, as she purchased the same by sale deed dated 4.9.1907. Therefore, the suit property is Sridhana property. From this angle if a question is raised whether the defendant-wife of Manicka Naicker, maternal uncle of plaintiff, one of the sons of Pappathiammal is entitled to the suit property either on the death of plaintiff''s sister Lakshmi or their mother Jagadhambal or on the death of plaintiff''s grand mother Pappathiammal, the position of property inherited from a female heir, either from male or from female, is now well settled and this Court also had an occasion to consider the same issue in Subbiah Chetti V. Veerajinnu Ammal (died) & Ors (91 LW 596) wherein it is held as under:
"It is stated in Mullah''s Hindu Law, 14th Edition, paragraph 130-
(1)A woman may inherit the ordinary property of a male such as her husband, father, son and the rest. She may also inherit the stridhanam of a female such as her mother, daughter and the rest.
(2)According to the Dayabhaga School, as well as the Benares, Mithila and Madras Schools property inherited by a woman whether from a male or from a female, does not become her stridhana. She takes only a limited interest in the property, and on her death the property passes not to her heirs, but to the next heir of the person from whom she inherited it.
Again in paragraph 169, it is stated-
According to the Bengal, Benares, Mithila and Madras Schools the rule laid down in paragraph 168, sub-paragraph (3), as to property inherited by a female from a male. Consequently a female inheriting property (stridhana) from a female takes only a limited estate in such property, and at her death the property passes not to her heirs, but to the next stridhana heir of the female from whom she inherited it.
These propositions are indisputable.
12. In the said judgment, the decision rendered by the Andhra Pradesh High Court in Venkateswaralu v. Chinna Raghavalu(AIR 1957 A.P.604) is mentioned and the Andhra Pradesh High Court has also considered how a stridhana property will go to the stridhana heirs on the death of mother. This can be seen from the words of Subba Rao, C.J. as he then was, in
Under Hindu Law, a female succeeding to the property of an absolute owner, whether a female or a male, does not take an absolute interest. She never becomes a fresh stock of descent. After her death, it reverts back to the heirs of the last male or female holder as the case may be.
In the case of a stridhana holder, after the death of a daughter the property reverts back to the mother, but the next heir of the stridhana holder is the daughter''s daughter, and the daughter''s takes it not as the heir of her mother, but as the stridhana heir of her grandmother.
13. The above ruling clearly shows that the Stridhana property of Pappathiammal, on her death goes to her daughter Jagathambal, but not to her son, namely, the defendant''s husband-Manicka Naicker, and even after the death of Jagathambal, it goes to her daughter-Lakshmi. Since in the present case, Jagathambal has got two children, Lakshmi-daughter and Ranganathan-plaintiff- son, after the death of grand daughter of Pappathiammal, Lakshmi''s husband and her son also died leaving no issue, therefore, Lakshmi''s brother-plaintiff who is also son of Jagathambal would inherit the suit property, but not the defendant, who is wife of Manicka Naicker, brother of Pappathiammal. This is in consonance with the principles applied in inheriting the stridhana property. Therefore, the accepted principle followed in stridhana property is that what one has descended as stridhana does not revert back to Class II heir in the place of Class I heir. In this case, the plaintiff being brother of Lakshmi, is the next heir of his grandmother, hence the plaintiff includes his maternal uncle''s with defendant herein.
14. Another Full Bench judgment of our High Court rendered in Narayani Ammal v. Govindaswami Naidu (1975 MLJ 259 = (1975) 88 L.W. 129 (F.B.)) has restated the same principle and in paragraph 12, the Full Bench has held as under:
12....It seems to us that having regard to this trend of legislation reflecting the changing social approach to succession, we will be justified in interpreting the word daughter in the original text as including an illegitimate daughter as well. We are also of opinion that once an illegitimate daughter is an heir, as we hold she is, to succeed to her mother''s stridhana property, so long as she is available, the son, who is not in the nearer line of stridhana heirs, cannot have preference and exclude an illegitimate daughter. On that view, we are of opinion that Meenakshi v. Muniandi, should be overruled.
15. The above Full Bench judgment has gone to a long extent of proclaiming that stridhana property will go to daughter alone in preference to son and while interpreting the word "daughter" in the original text, they also held "daughter" includes "illegitimate daughter" in preference to the "legitimate son" to succeed her stridhana property so long as she is available. The son who is not in the nearer line of stridhana heirs, cannot have preference and exclude illegitimate daughter. In view of this settled legal position, the plaintiff who is in the nearer line of stridhana heirs will have preference by excluding the defendant in inheriting the suit property.
16. In the present case also, it is an admitted fact by both sides that Pappathiammal, grandmother of the appellant/plaintiff by virtue of Ex.A.1 sale deed dated 4.9.1907 has purchased 28 cents of land i.e., ''A'' schedule property. Thereafter, she sold 10 cents of land, each 5 cents of land to her two sons namely, Vedachala Naicker and Manickka Naicker by executing Ex.A.2 sale deed dated 26.9.1949. Thereafter, Papathi Ammal died on 28.12.1953. It is also an admitted fact by the respondent/defendant that the entire land measuring to an extent of 28 cents was purchased by Pappathiammal under Ex.A.1 sale deed dated 4.9.1907, which is found in the written statement, is again extracted hereunder:
It is true that Papathi Ammal purchased the ''A'' schedule property in 1907. It is admitted that the remaining extent shows as ''B'' schedule was with Pappathiammal till her death in the year 1953.
Pappathiammal had 3 sons and a daughter. They were Subramania Naicker, Jagadhambal, Vedhachalam, Masilamani Naicker and Manikka Naicker. Of them Subramania Naicker died without issues.
Jagadhambal was given in Marriage in Otteri, Madras. She had a daughter Lakshmi Lakshmi was age at the time of the death of Jagadhambal, had been married and also had a male issue. Lakshmi being the daughter, she alone could have succeeded to Papathi Ammal. But she never came near the suit property nor took possession.
17. Therefore, it is clear that the suit land is admittedly a stridhana property of Pappathiammal. It is further seen that the very same Pappathiammal after begetting four sons, sold 10 cents of land to her two sons, namely Vedachala Naicker and Manikka Naicker, each 5 cents of land, by executing Ex.A.2 sale deed dated 26.9.1949. The balance 18 cents of land which belongs to Pappathiammal shall automatically go to Jagadhambal, the daugher of Pappathiammal. But, Jagadhambal predeceased Pappathiammal on 10.12.1952 leaving behind her daughter Lakshmi and her son Ranganathan, the appellant/plaintiff. Lakshmi and Ranganathan are sister and brother. Hence, it is an admitted fact by the defendant, which is found in the written statement that Lakshmi being the only daughter, she alone could have succeeded to the property of Pappathiammal, who also died leaving her husband and son. But she never came near to the suit property for taking possession and thereafter, her husband and her son also died, leaving no issues. Under these background if we look for an answer, the answer can be traced from Section 8 of Hindu Succession Act as well as the Schedule as contained in Hindu Succession Act, which are extracted hereunder:-
Registration of Hindu marriages:- (1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.
(2)Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.
(3)A11 rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made.
(4)The Hindu Marriage Register shall at all reasonable time be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts there from shall, on application, be given by the Registrar on payment to him of the prescribed fee.
(5)Notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry".
18. As per the General rules of succession in the case of males, the property shall devolve according to the provisions of the chapter, namely, upon the heirs, being the relatives specified in class I of the Schedule; secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and lastly, if there is no agnate, then upon the cognates of the deceased.
19. It is also relevant to note Section 14 of the Hindu Succession Act, which is extracted hereunder:-
Property of a female Hindu to be her absolute property:- (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation:- In this sub-section, "property" includes both moveable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before at or after the marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2)Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
THE SCHEDULE (See Section 8)
HEIRS IN CLASS I AND CLASS II
Class I
Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a predeceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son [son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son]. Class II
I. Father
II.(1)Son''s daughter''s son, (2) son''s daughter''s daughter, (3) brother, (4) sister. III.(1)Daughter''s Son''s son, (2)daughter''s son''s daughter, (3) daughter''s daughter''s son, (4) daughter''s daughter''s daughter.
IV.(1)Brother''s son, (2) sister''s son, (3) brother''s daughter, (4) sister''s daughter. V. Father''s father; father''s mother.
VI. Father''s widow; brother''s widow.
VII. Father''s brother; father''s sister. VIII. Mother''s father, mother''s mother. IX. Mother''s brother; mother''s sister.
Explanation- In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood.
20. As per Section 14, any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner and not as a limited owner. In this case, since the branch of Lakshmi had come to an end, who is the daughter''s daughter of Pappathiammal, and the plaintiff/appellant herein being a brother of Lakshmi, who is class 2 heir of Jagathambal, the plaintiff/appellant herein is legally entitled to inherit the "Streedhana property" of Jagathambal.
21. In respect of plea of adverse possession, the learned counsel for the respondent/ defendant has contended that the respondent/defendant is not in continuous possession and enjoyment of the entire extent of the suit property and, therefore, even if it is presumed that the appellant/plaintiff is the lawful owner of the suit property, the same has been lost by adverse possession, as the respondent/defendant is in enjoyment of the ''B'' schedule property as her own continuously for more than the statutory period of 12 years. Even this contention also does not hold good legally. The written statement filed by the respondent/defendant before the trial Court does not show from which year, the respondent/defendant has been in possession and what are the documents produced to prove the possession and enjoyment of the suit property.
22. In respect of adverse possession, during the course of hearing, this Court having gone into the soundness of acceptability of the documents produced by the respondent/appellant before the first appellate Court, I don''t find that the said documents are having any link or nexus between the respondent/ defendant and the suit land.
23. Be that as it may, when the respondent/ defendant has miserably failed to establish the plea of adverse possession, the first appellate Court by committing serious errors has wrongly reversed the well reasoned judgment of the trial Court without giving any basis, as a result, it has not only committed serious material irregularity but the impugned decision violates the above mentioned settled position of law, therefore, such an irregularity committed by the first appellate Court definitely warrants interference from this Court u/s 100 of C.P.C by setting aside the erroneous finding.
24. In fact, the first appellate Court, while allowing the interlocutory application filed by the respondent/defendant to receive the additional document, has not even properly considered the plea of adverse possession, whether the respondent/defendant has been in possession and enjoyment of the suit property for more than the statutory period to the knowledge of the appellant/plaintiff. When none of the evidence either oral or documentary to prove possession and enjoyment was produced by the respondent/defendant either before the trial Court or the first appellate Court, in my considered opinion, the finding of the first appellate Court holding that the respondent/defendant has perfected the title by adverse possession is wholly unjustifiable in the light of the ratio laid down by the Apex Court in State of Haryana v. Mukesh Kumar and others (2011 (8) MLJ 768 = 2011-5-L.W. 725) wherein the Apex Court has strongly advocated against the plea of adverse possession in the following paragraphs:
35. A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession. Though we got this law of adverse possession from the British, it is important to note that these days English Courts are taking a very negative view towards the law of adverse possession. The English law was amended and changed substantially to reflect these changes, particularly in light of the view that property is a human right adopted by the European Commission. This Court in P.T. Munichikkanna Reddy v. Revamma (supra) observed that to understand the true nature of adverse possession, Fairweather v. St Marylebone Property Co. (1962) 2 WLR 1020; (1962) 2 All ER 288 can be considered where House of Lords referring to Taylor v. Twinberrow (1930) 2 K.B. 16 termed adverse possession as a negative and consequential right effected only because somebody else''s positive right to access the court is barred by operation of law. As against the rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property.
36. The right to property is now considered to be not only constitutional or statutory right but also a human right. Human rights have already been considered in realm of individual rights such as right to health, right to livelihood, right to shelter and employment etc. But now human rights are gaining a multi faceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context.
39. In Hemaji Waghaji Jat v. Bhikha bhai Khengar bhai Harijan and others (supra) case, this Court ultimately observed as under:
"32. Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.
33. We fail to comprehend why the law should place premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation.
Fifth Amendment of the U.S. Constitution a principle of a civilized society
42. We inherited this law of adverse possession from the British. The Parliament may consider abolishing the law of adverse possession or at least amending and making substantial changes in law in the larger public interest. The Government instrumentalities - including the police - in the instant case have attempted to possess land adversely. This, in our opinion, a testament to the absurdity of the law and a black mark upon the justice system''s legitimacy. The Government should protect the property of a citizen - not steal it. And yet, as the law currently stands, they may do just that. If this law is to be retained, according to the wisdom of the Parliament, then at least the law must require those who adversely possess land to compensate title owners according to the prevalent market rate of the land or property in question. This alternative would provide some semblance of justice to those who have done nothing other than sitting on their rights for the statutory period, while allowing the adverse possessor to remain on property. While it may be indefensible to require all adverse possessors - some of whom may be poor - to pay market rates for the land they possess, perhaps some lesser amount would be realistic in most of the cases. The Parliament may either fix a set range of rates or to leave it to the judiciary with the option of choosing from within a set range of rates so as to tailor the compensation to the equities of a given case.
43. The Parliament must seriously consider at least to abolish "bad faith" adverse possession, i.e., adverse possession achieved through intentional trespassing. Actually believing it to be their own could receive title through adverse possession sends a wrong signal to the society at large. Such a change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief.
44. In case, the Parliament decides to retain the law of adverse possession, the Parliament might simply require adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere 12 years. Such an extension would help to ensure that successful claimants have lived on the land for generations, and are therefore less likely to be individually culpable for the trespass (although their forebears might). A longer statutory period would also decrease the frequency of adverse possession suits and ensure that only those claimants most intimately connected with the land acquire it, while only the most passive and unprotective owners lose title.
45. Reverting to the facts of this case, if the Police department of the State with all its might is bent upon taking possession of any land or building in a clandestine manner, then, perhaps no one would be able to effectively prevent them.
46. It is our bounden duty and obligation to ascertain the intention of the Parliament while interpreting the law. Law and Justice, more often than not, happily coincide only rarely we find serious conflict. The archaic law of adverse possession is one such. A serious re-look is absolutely imperative in the larger interest of the people.
47. Adverse possession allows a trespasser - a person guilty of a tort, or even a crime, in the eyes of law - to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible.
48. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change.
49. If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country".
25. The above Ruling of the Apex Court has made this issue very clear ''that the adverse possession allows a trespasser; a person guilty of a tort, or even a crime, in the eyes of law; to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible''. Since the doctrine of adverse possession is troubled a great many law abiding citizens, a serious view will be taken in the larger interest of public. With this back ground, if we look at the case of the respondent/defendant the plea of the adverse possession, was neither proved nor established by any acceptable oral and documentary evidence before the first appellate Court by the respondent/defendant, hence, I am of the considered opinion that the findings arrived at by the first appellate Court to non suit the plaintiff by reversing the judgment and decree of the trial Court are liable to be set aside. Hence, by answering the substantial questions of law in favour of the appellant/plaintiff I hold that the impugned judgment miserably failed to follow the settled law both on the Rule of stridhana property and also on the adverse possession. In view of the above reasons, the second appeal deserves to be allowed. Accordingly, the second appeal is allowed. The judgment and decree passed by the first appellate Court are set aside confirming the judgment and decree passed by the trial Court. There is no order as to costs.
