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BOUNDARIES WILL PREVAILS OVER THE EXTENT AND SURVEY NUMBER

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Statue of Manu Needhi Cholan in the premises o...

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DATED: 17/09/2010

CORAM
THE HONOURABLE MS.JUSTICE R.MALA

S.A.No.648 of 1999

Samayana Thevar .. Appellant

Vs.

1. Abdul Razack
2. Selva Mohammed .. Respondents

Second Appeal against the judgment and decree dated 16.11.1998 in A.S.No.1
of 1998 on the file of the Subordinate Court, Sivagangai, confirming the
judgment and decree dated 15.4.1996 in O.S.No.209 of 1993 on the file of the
District Munsif Court, Manamadurai.

!For appellant … Mr.A.Sivaji
^For respondents… Mr.K.Govindarajan

****

:JUDGMENT
The Second Appeal is filed by the third defendant against the
judgment and decree dated 16.11.1998 in A.S.No.1 of 1998 on the file of the
Subordinate Court, Sivagangai, confirming the judgment and decree dated
15.04.1996 in O.S.No.209 of 1993 on the file of the District Munsif Court,
Manamadurai.
2. The averments in the plaint are as follows:
The respondents/plaintiffs purchased the suit property from one Samayana
Thevar/father of the defendants on 1.7.1967. From that date onwards they are in
possession and enjoyment of the suit property. Since the property is not fit
for cultivation, they are enjoying the fruits of Palm tree situated in the suit
property. The re-survey proceedings in patta No.500 has been granted in favour
of the plaintiffs. At that time, he came to know that the boundaries are not
correlated with Survey No.169/6. Hence, he approaches the revenue officials.
The correct survey No.169/11A has been given in favour of this third defendant
who is none other than the son of vendor of the suit property. When he
approached, the defendants wantonly avoiding to change the patta in favour of
the plaintiffs. From the date of purchase, the respondents/plaintiffs are in
possession and enjoyment of the property situated in Survey No.169/11A. But in
the sale deed, it was mentioned as 169/6. The defendants 1 and 2 Attestors of
the sale deed executed in favour of the respondents/ plaintiffs. The
appellants/defendants are estopped from questioning the same. The
respondents/plaintiffs constrained to file the suit for declaration of title to
the suit property and for consequential permanent injunction alternatively for
the recovery of possession and prayed for decree.
3. The gist and essence of the written statement filed by the third
defendant are as follows:
The suit property is absolutely belongs to this defendant/appellant. The
respondents/plaintiffs never in possession and enjoyment of the suit property
and patta has been given in his name. The revenue records clearly proved that
the respondents/plaintiffs were not in possession of the suit property. In the
sale deed, it contains survey No.169/6. Patta also transferred in the name of
the respondents/plaintiffs in respect of the property bearing survey No.169/6.
The respondents/plaintiffs never in possession and enjoyment of the property in
survey No.169/11A. No mutation of revenue records has been done. Since the
sale deed contain incorrect boundary, now the respondents/plaintiffs want to
take advantage and claiming property situated at survey No.169/11A, but that
property has not been sold in favour of the respondents/plaintiffs. So, the
respondents/plaintiffs are not the owner of the property. The appellant/third
defendant was in possession and enjoyment of the suit property. The suit survey
No.169/11A is originally belonging to Kandappa Devar. After his death, his two
sons Samayana Devar, father of the defendants and Ramu Devar succeeded the suit
property. They partitioned the property. The suit property was allotted to
this defendant Samayana Devar. East of the suit property was allotted to Ramu
Devar. Ramu Devar was in possession, after his death, his wife Irulayee was in
possession and enjoyment of the suit property. Irulayee sold the property to
one Sakaralingam. The suit property was in possession of the defendants 1 to 3
till the partition taken place in the year 1956. In the partition during the
year 1956, the suit property was allotted to the appellant/ third defendant. In
pursuance of that only mutation of revenue records has been made and sub
division has been effected and patta has been issued under Patta No.419. After
resurvey, the patta number has been changed as 163 which stands in the name of
the appellant/third defendant. The appellant/third defendant has mortgaged the
property with Tamilnadu Khadi and Industries Board and obtained loan and repaid
the loan amount. So, the appellant/third defendant is in exclusive possession
and he has also prescribed title by adverse possession. The suit is bad for
misjoinder of necessary parties as the defendants 1 & 2 and 4 & 5 were
unnecessary parties. No cause of action has arisen to lay the suit. Hence he
prayed for dismissal of the suit.

4. The trial Court, after considering the averments both in the
plaint and in the written statement and considering the arguments advanced by
the learned counsel on either side, framed necessary issues and considering the
oral and documentary evidence decreed the suit. Against that, the third
defendant preferred the appeal which was dismissed by the First Appellate
Court. Against that, the present Second Appeal has been preferred by the third
defendant.

5. At the time of admission of the Second Appeal, the following
substantial questions of law were framed for consideration:
“(i) Whether the courts below are right in granting relief to the
plaintiff when the claim of the plaintiff is barred by limitation ?”
(ii) Whether the Courts below are right in decreeing the suit based on
the plea of adverse possession, when the plaintiff himself claimed title based
on Exhibit A-1 without proving animus etc. ?

6. Heard both sides.
7. The learned counsel appearing for the appellant/third defendant
would submit that the plaintiffs/ respondents herein purchased the property to
an extent of 36 cents bearing survey No.169/6. But, he now claiming declaration
of title in respect of survey No.169/11A stating that four boundaries are
correlated in respect of survey No.169/11A instead of 169/6. But the trial
court and the first appellate Court have committed an error in granting decree
in favour of the plaintiffs/respondents herein. Ex.A1 sale deed contain
specific survey No.169/6 – 36 cents. In pursuance of the purchase, the patta
has also been issued in favour of the respondents/plaintiffs under Patta No.500.
They also paid kist. Further, he submitted that the Commissioner appointed by
the trial court has stated in his report that there is Survey No.169/6 and
Survey No.169/11A and 11B. In respect of survey No.169/11 total extent of land
is 84 cents. It was allotted to the share of Samayana Devar during partition
between the father and his brother Ramu Devar. The appellant/third defendant’s
father was allotted 42 cents of land and Ramu Devar was allotted 42 cents of
land. After the death of Ramu Devar, his wife Irulayee has succeeded the
property. During the partition taken place in the year 1956 as per Ex.B16, the
suit property has been allotted to the third defendant/appellant herein. From
that date onwards, the third defendant/ appellant herein was and is in
possession and enjoyment of the suit property. So, he has prescribed title
over the suit property by adverse possession. Hence, the suit is barred by
limitation. The first appellate Court has not considered the issues in proper
perspective. Hence, he prayed for allowing the appeal. To substantiate his
case, he has relied upon the various judgments of the High Courts and Apex
court.
8 The learned counsel appearing for the respondents/plaintiffs
would contend that it is true that in the sale deed in Ex.A1 the survey number
is 169/6 but the boundaries it has been mentioned as survey No.169/11A. He
further submitted that boundary will prevail over survey number and extent that
has been considered by both the Court below and granted relief in favour of the
respondents/ plaintiffs. Further more, to substantiate his arguments, he has
relied upon various judgments of High Courts and Apex Court. He further submits
that till resurvey, he is in possession and enjoyment of the property by
enjoying the fruits of Palm tree. But during the resurvey only, the patta has
been changed in the name of the appellant/third defendant. At the time of
execution of sale deed Ex.A1 wherein the defendants 1 and 2 are Attestors. So
they are estopped from questioning the title to the suit property. The trial
court and the first appellate court considering the same in proper perspective
and granted decree in favour of the respondents/plaintiffs. Hence, judgment and
decree granted by both the Court below does not warrant any interference by this
Court. Hence, he prayed for dismissal of the Second Appeal.

9 Considering the rival submissions made on either side, the
admitted facts are as follows:
The suit property is originally owned by one Samayana Devar. He sold the
property in favour of the respondents/plaintiffs under sale deed Ex.A1 dated
1.7.1967. In Ex.A1, the description of the property is mentioned as follows:
“brhj;J tpguk;”
,uhkehjg[uk; khtl;lk;. ,sa';Fo rg;o. D& jhYfh. ,sa';Fo a{dpad;.
nkyha{h; g”;rhaj;J nghh;L nkyha{h; fpuhkj;jpy; 57 ePh; glhtpy; fz;l S.169-6
ePlh; kzy; g[“;ir brz;L 36 khy; tpguk; fkhy;ghl;rh fpuak; g[“;irf;Fk; nkw;F.
cilahh;nfhd; e”;irf;F tlf;F. Kj;Jf;nfhd; g[“;irf;Fk; fpHf;F. fpHnky; bkap;d;
nuhl;Lf;F bjw;F ,jw;Fl;gl;lJ nkytug;gpy; epw;fpd;w gidJ}h; 4k; rpW tplypfSk;
nrh;j;J fpuak;/”
But patta number in respect of the property bearing S.No.169/6 has been changed
as 500 and the plaintiffs have paid kist as per Ex.A3. To prove the same,
survey No.169/6 was not sold to them and the respondents/plaintiffs have
purchased the property only in survey No.169/11. He has filed documents in
Ex.A4 to 8 and examined P.W.2. P.W.2 is the owner of the property bearing
survey No.169/6. At this juncture, it is appropriate to consider the
Commissioner’s report Ex.C1 and C2. While perusing the Ex.C1 and C2 along with
four boundaries mentioned in Ex.A1 has clearly proved that the property
purchased under Ex.A1 is only in respect of Survey No.169/11 and not 169/6.

10 At this juncture, It is appropriate to consider the following
decisions relied upon by the learned counsel appearing for the
respondents/plaintiffs to the effect that the four boundaries will prevail over
survey number and extent.
(i) 1995-2 L.W. 169 (Kannu Reddiar Vs T.Palanirajan and four others
wherein the Division Bench of this Court has held as follows:
“25. Mr.K.Yamunan, learned counsel for the respondents, attempted to
establish that the construction was within the boundary description contained in
Ex.A1 lease deed, as found by the Advocate Commissioner in Ex.A22, even though
the boundary description relates to R.S.No.20/10 which was sought to be included
in Ex.A1 lease deed dated 27.8.1981 through Ex.A16, alleged rectification deed
dated 25.3.1982. He placed reliance on the well established general principles
of law that the boundary descriptions shall prevail over survey number, extent,
etc., when there is conflict. In this regard, he placed reliance on the
decisions reported in The Palestine Kupat Am Bank Co-op Society ltd. V. Govt. of
Palestine (A.I.R. 1948 P.C. 207); Sheodyhyan Singh V Sanichara Kuer (A.I.R.
1963 S.C. 1879) and 82, Law Weekly 142. There can be no quarrel over this
proposition of law.”

(ii) A.I.R. 1984 NOC 300 (A.P.) (Y.Subba Rao (died) and others Vs
Amizunnisa Begum and others)
“Held, the approach of the Court in appointing a Surveyor for the purpose
of going into the question whether the applicants have purchased the same
property which is now in the possession of the distributor and to decide the
dispute with regard to the survey number of suit property was erroneous. As
regards the dispute with regard to survey of suit property the Court below
failed to note the well-known proposition that clear boundries as to the
identity of the property prevail over any mistake in the survey number.”

11 Considering the judgments cited supra, it is well settled
principle of law that if there is any dispute in respect of survey number and
extent, the boundaries only prevail over extent and survey number. As already
stated as per Commissioner’s report, Ex.C1 and C2 along with Ex.A1 has clearly
proved that the suit property is purchased by the respondents/plaintiffs under
Ex.A1 even though it was mentioned as Survey No.169/6, it is only 169/11A.
12 The learned counsel appearing for the appellant would contend
that even though the plaintiffs/respondents herein have purchased the property
they are not in possession and enjoyment of the same. It is further contended
that it is the duty of the respondents/plaintiffs to prove that they were and
are in possession of the suit property till the date of filing the suit. He
further submitted that after purchase of the property, mutation of revenue
records were
made and kist has been paid by the respondents/plaintiffs only in respect of
S.No.169/6.

13 At this juncture, it is appropriate to consider the decision
reported in A.I.R. 1997 SC 2719 = 1997(7) SCC 137 (Balwant Singh and another
etc. Vs Daulat Singh (dead) by L.Rs. and others) wherein the Hon’ble Supreme
Court has held as follows:
21…… “Mutation of a property in the revenue record does not create or
extinguish title nor has it any presumptive value on title. It only enables the
person in whose favour mutation is ordered to pay the land revenue in question.

Thus, mere mutation of property in revenue records does not create or extinguish
title nor has it any presumptive value on title. In such circumstances, merely
because the patta has been changed, in pursuance, it will not confer or
extinguish title of the plaintiffs/respondents herein or the third
defendant/appellant herein.

14 The learned counsel appearing for the appellant/third defendant
would contend that the respondents/plaintiffs have not proved their possession
and even though they have purchased the property in the year 1967. The third
defendant/appellant herein has prescribed title by adverse possession. But the
plaintiffs/respondents ought to have proved that they were in possession and
enjoyment of the suit property till the date of filing the suit.

15 At this juncture, the learned counsel appearing for the
respondents/plaintiffs relied upon the decision stating that old article 142,
143 is not applicable after new limitation Act 1963 came into force in which
Art.64 and 65 applicable since the respondents/plaintiffs have filed the suit
for declaration of title on the basis of the title deed. Hence, the
respondents/plaintiffs have proved the title. It is the duty of the third
defendant/appellant herein who pleaded adverse possession must prove the same.
For that reason, he relied upon the decision reported in 2007 STPL(LE)37845 SC =
(2007)3 SCC 114 (M.Durai Vs Muthu and others).
9. ……..”28. The statutory provisions of the Limitation Act have
undergone a change when compared to the terms of Articles 142 and 144 of the
Schedule appended to the Limitation Act, 1908, in terms whereof it was
imperative upon the plaintiff not only to prove his title but also to prove his
possession within twelve years, preceding the date of institution of the suit.
However, a change in legal position has been effected in view of Articles 64 and
65
of the Limitation Act, 1963. In the instant case, the plaintiff-respondents have
proved their title and, thus, it was for the first defendant to prove
acquisition of title by adverse possession. As noticed hereinbefore, the first
defendant-appellant did not raise any plea of adverse possession. In that view
of the matter the suit was not barred.”
Thus, once the respondents/plaintiffs proved their title, it is for the
appellant/third defendant should prove acquisition of title by adverse
possession in the same proposition.

16 Further, the learned counsel appearing for the
respondents/plaintiffs relied upon the decision reported in 2009(12) SCC 101
(Vishwanath Bapurao Sabale Vs Shalinibai Nagappa Sabale and others) wherein the
Hon’ble Supreme Court has held as follows:
“20. The suit filed by Nagappa however was based on title. Once he proved
his title the onus was on Laxmibai and consequently upon the appellant to prove
that they started possessing adversely to the interest of Shivappa. For the
purpose of arriving at a finding as to whether the appellant and Laxmibai
perfected their title by adverse possession, the relationship of the parties may
have to be taken into consideration.

23. Furthermore for claiming title by adverse possession, it was necessary
for the plaintiff to plead and prove animus possidendi. A peaceful, open and
continuous possession being the ingredients of the principle of adverse
possession as contained in the maxim nec vi, nec clam, nec precario, long
possession by itself would not be sufficient to prove adverse possession.”

The person who pleaded adverse possession must prove that there is ‘Animus
Possidendi’. He also relied upon the decision reported in A.I.R. 1999 SC 1549
(Indira Vs Arumugam and another) wherein the Hon’ble Supreme Court has held as
follows:
“4. The aforesaid reasoning of the learned Judge, with respect, cannot be
sustained as it proceeds on the assumption as if old Article 142 of the earlier
Limitation Act was in force wherein the plaintiff who based his case on title
had to prove not only title but also possession within 12 years of the date of
the suit. The said provision of law has undergone a metamorphic sea change as we
find under the Limitation Act, 1963 Article 65 which reads as under:
Description of suit
Period of Limitation
Time from which period begins to run
65. For possession of immovable property or any interest therein based on title
Twelve years
When the possession of the defendant becomes adverse to the plaintiff.

5. It is, therefore, obvious that when the suit is based on title for
possession, once the title is established on the basis of relevant documents and
other evidence unless the defendant proves adverse possession for the
prescriptive period, the plaintiff cannot be non-suited. Unfortunately, this
aspect of the matter was missed by the learned Judge and, therefore, the entire
reasoning for disposing of the second appeal has got vitiated. Only on that
short ground and without expressing any opinion on the merits of the question of
law framed by the learned Judge for disposing of the second appeal, this appeal
is allowed. The impugned decision rendered is set aside and the second appeal is
restored to the file of the High Court with a request to proceed further with
the hearing of the appeal with respect to the substantial question
aforementioned in accordance with law. No costs.
17 He further submits that the appellant/defendant ought to have
prove adverse possession and he must plead and prove ‘Animus Possidendi’. But
here he has stated that on the basis of the partition deed he is in possession
and enjoyment of the property. Hence he submits that third defendant/appellant
herein has not proved Prescribed title by adverse possession. He further
submitted that partition deed is not admissible evidence since it is not
registered. At this juncture, it is appropriate to consider Sec.17 of the
Registration Act.

“17. Documents of which registration is compulsory-
(1) The following documents shall be registered, if the property to which they
relate is situate in a district in which, and if they have been executed on or
after the date on which, Act No.XVI of 1864, or the Indian Registration Act,
1866 (XX OF 1866), or the Indian Registration Act, 1871 (VIII of 1871), or the
Indian Registration Act, 18777 (III of 1877), or this Act came or comes into
force, namely:-
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport operate to create,
declare assign, limit or extinguish, whether in present or in future, any right,
title or interest, whether vested or contingent, of the value of one hundred
rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment
of any consideration on account of the creation, declaration, assignment,
limitation or extinction of any such right, title or interest;
(d) leases of immovable property from year to year, or for any term
exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or
order of a court or any award when such decree or order or award purports or
operates to create, declare, assign, limit or extinguish, whether in present or
in future, any right, title or interest, whether vested or contingent, of the
value of one hundred rupees and upwards, to or in immovable property:
[f) Instruments of agreement relating to construction of multiunit house
building on land by several persons as referred to in clause (i) of Article 5 of
the Schedule 1 to the Stamp Act 199 (Central Act II of 1899)]
Provided that the State Government may, by order published in the Official
Gazette, exempt from the operation of this sub section any leases executed in
any district, or part of a district, the terms granted by which do not exceed
five years and the annual rents reserved by which do not exceed fifty rupees.
(2) Nothing in clauses (b) and (c) of sub-section (1) applies to-
(i) any composition deed; or
(ii) any instrument relating to shares in a Joint Stock Company, notwithstanding
that the assets of such Company consists in whole or in part of immovable
property; or
(iii) any debenture issued by any such company and not creating, declaring,
assigning, limiting or extinguishing any right, title or interest, to or in
immovable property except in so for as it entitles the holder to the security
afforded by a registered instrument, whereby the company has mortgaged, conveyed
or otherwise transferred the whole or part of its immovable property or any
interest therein to trustees upon trust for the benefit of the holders of such
debentures or
(iv) any endorsement upon or transfer of any debenture issued by any such
company; or
(v) any document not itself creating, declaring, assigning, limiting or
extinguishing any right, title or interest of the value of one hundred rupees
and upwards to or in immovable property, but merely creating a right to obtain
another document which will, when executed, create, declare, assign, limit or
extinguish any such right, title or interest; or
(vi) any decree or order of a Court [except a decree or order expressed to be
made on a compromise and comprising immovable property other than that which is
the subject matter of the suit or proceeding]; or
(vii) any grant of immovable property by the Government; or
(viii) any instrument of partition made by a Revenue officer; or
(ix) any order granting a loan or instrument of collateral security granted
under the Land Improvement Act, 1871 (XXVI of 1871), or the Land Improvement
Loans Act, 1883 (XIX of 1883); or
(x) any order granting a loan under the Agriculturists Loans Act, 1884 (XII of
1884), or instrument for securing the repayment of a loan made under that Act;
or
[(x-a) any order made under the Charitable Endowments Act, 1890 (VI of 1890),
vesting any property in a Treasurer of Charitable Endowments or divesting any
such Treasurer of any property; or]
(xi) any endorsement on a mortgage deed acknowledging the payment of the whole
or any part of the mortgage money, and any other receipt for payment of money
due under a mortgage when the receipt does not purport to extinguish the
mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by
public auction by a Civil or Revenue officer.”

18 Along with that the learned counsel relied upon the decision
reported in (2004) 11 SCC 391 (C.T.Ponnappa Vs State of Karnataka).
“4. …… previous partition has been attempted to be proved by the
document dated 2-4-1996, Exhibit P-46, wherein there is a recital that partition
had already been effected by deed dated 31-3-1975, which has not been brought on
record. It is not known whether the 1975 deed was a deed of partition or a
memorandum of partition. In case partition was effected thereby, we do not know
whether the same was registered or unregistered. If it was unregistered, the
same could not be taken into consideration to prove partition between the
parties as it was inadmissible in evidence. It was pointed out that Exhibit P-46
further shows that apart from the partition effected by deed dated 31-3-1975,
parties partitioned their properties at least by the deed dated 2-4-1996,
Exhibit P-46. Learned counsel very fairly could not contend that the said deed
was a memorandum of partition. This document being not a registered one was
inadmissible in evidence and, therefore, it cannot be of any avail to the
prosecution to prove partition amongst the two brothers.”
19 At this juncture, it is appropriate to consider the decision
relied upon by the learned counsel for the appellant reported in (2007)5 M.L.J.
203 (Kasim Beevi and others Vs Sowr Beevi and others) wherein this Court has
held as follows:
“21.In a decision reported in the case of Roshan Singh V. Zile Singh
(supra), in paragraph 9, the Hon’ble Supreme Court has held as follows:
” It is well-settled that while an instrument of partition which operates
or is intended to operate as a decalred volition constituting or severing
ownership and causes a change of legal relation to the property divided amongst
the parties to it, required registration under Section 17(1)(b) of the Act, a
writing which merely recites that there has in time past been a partition, is
not a declaration of will, but a mere statement of fact and it does not require
registration.”
But while considering the above decisions along with Ex.B16, it is clearly
proved that on 29.6.1956 only the property has been divided/partitioned between
the three brothers. In such circumstances, the document is required
registration. Admittedly, the document is not registered. In such
circumstances, no relevance can be placed on Ex.B16.

20 The learned counsel appearing for the appellant would submit
that the plaintiffs/respondents were in possession and enjoyment of the the
property bearing survey No.169/6. As already decided in earlier paragraphs as
per Ex.A1 and the Commissioner report, the property alienated under Ex.A1 is
bearing survey No.169/11 not 169/6. Because that property is not belonging to
the appellant family. Merely because the revenue records stands in the name of
a person who hold patta, it will not confer or extinguish title to the holder
of the patta. At this juncture, it is appropriate to consider the decision
relied upon by the learned counsel appearing for the appellant reported in
(2003)1 MLJ 21 (lakshmana Gounder Vs The Special Deputy Collector (LA), Salem
Steel Plant, Salem and others) wherein the Division Bench of this Court has
held as follows:
“12. A patta is a record of possession represents a distinct fractional
part of lands. The said presumption has its roots in the system of land tenure
and in the custom of the area in which the lands are situate. Each pattadar
manages his lands and pays fixed share of the Government Revenue. Entries in
revenue records are not conclusive, but their importance in a case for
possession cannot be denied, until contrary is shown.”
Patta is record for possession. There is no quarrel over the proposition.

21 The learned counsel appearing for the appellant relied upon the
decision reported in (2001)4 SCC 713 (Syndicate Bank Vs Prabha D.Naik and
another) wherein the Hon’ble Supreme Court has held as follows:
“16. ……… A prescriptive right however, differs from adverse
possession, since prescription relates to incorporeal rights while adverse
possession applies to an interest in the title to property. “Prescription” is
usually applied to acquisition of incorporeal hereditaments and negative
prescription obviously is a negation of such an acquisition. “Prescription”
admittedly, is a part of substantive law but limitation relates to procedure, as
such prescription differs from limitation. The former is one of the modes of
acquiring a certain right while the latter viz. the limitation, bars a remedy,
in short, prescription is a right conferred, limitation is a bar to a remedy.
Chapter II of the Portuguese Civil Code provides detailed articles pertaining to
prescription. Corpus Juris Secundum, Vol. 72 described the word “prescription”
as below:
“In law prescription is of two kinds: it is either an instrument for the
acquisition of property or an instrument of an exemption only from the servitude
of judicial process. In the first sense, as relating to the acquisition of
property, prescription is treated in adverse possession. In the second sense, as
relating to exemption from the servitude of judicial process, prescription is
treated as Limitation of Actions.”

22 In A.I.R. 1977 SC 5 (Gurucharan Singh Vs Kamla Singh and others)
the Hon’ble Supreme Court has held as follows:
“21………”The word possession is sometimes used inaccurately as
synonymous with the right to possess. (Words and Phrases, 2nd Edn., John B.
Sounders, p. 151).
In the Dictionary of English Law (Earl Jowitt) 1959 at p. 1367
“possession” is defined as follows:
“Possession, the visible possibility of exercising physical control over a
thing, coupled with the intention of doing so, either against all the world, or
against all the world except certain persons. There are, therefore, three
requisites of possession. First, there must be actual or potential physical
control. Secondly, physical control is not possession, unless accompanied by
intention; hence, if a thing is put into the hand of a sleeping person, he has
not possession of it. Thirdly, the possibility and intention must be visible or
evidenced by external signs, for if the thing shows no signs of being under the
control of anyone, it is not possessed; . . .”
In the end of all, however, the meaning of ‘possession’ must depend on the
context. (ibid, p. 153) May be, in certain situations, possession may cover
right to possess. It is thus clear that in Anglo-American jurisprudence also,
possession is actual possession and in a limited set of cases, may include
constructive possession, but when there is a bare right to possess bereft of any
dominion or factum of control, it will be a strange legal travesty to assert
that an owner is in possession merely because he has a right to possess when a
rival, in the teeth of owner’s opposition, is actually holding dominion and
control over the land adversely, openly and continuously.”

23 In (2001)2 M.L.J. 4 (S.C.) (Balkrishan Vs Satyaprakash and
others) the Hon’ble Supreme Court has held as follows:
“7. The law with regard to perfecting title by adverse possession is well
settled. A person claiming title by adverse possession has to prove three “nec”
- nec vi, nec clam and nec precario. In other words, he must show that his
possession is adequate in continuity, in publicity and in extent.”
24 In 1998-1 L.W. 244 (Roohnisha Beevi and 15 others Vs A.M.M.
Mahudu Mohamed and 29 others) this Court has held as follows:
“22. In (1995)2 SCC 543 (Annasaheb Bapusaheb Patil V Balwant), in pargraph
14 of the judgment, their Lordships further said thus:-
“Adverse possession means a hostile assertion, i.e., a possession which is
expressly or impliedly in denial of title of the true owner. Under Article 65,
burden is on the defendants to prove affirmatively. A person who bases his
title on adverse possession must show by clear and unequivocal evidence i.e.
possession was hostile to the real owner and amounted to a denial of his title
to the property claimed. In deciding whether the acts, alleged by a person,
constitute adverse possession, regard must be had to the animus of the person
doing those acts which must be ascertained from the facts and circumstances of
each case, the person who bases his title on adverse possession, therefore, must
show by clear and unequivocal evidence, i.e. possession was hostile to the real
owner and amounted to a denial of his title to the property claimed.”

25 In (2000)7 SCC 702 (Dilboo (Smt) (Dead) by LRS. and others) the
Hon’ble Supreme Court has held as follows:
“20…… As the title of the rank trespasser would get perfected by
adverse possession on the expiry of 12 years so also the title of such
transferee would get perfected after 12 years. The period of 12 years has to run
from the date of knowledge by the plaintiff of such transfer. It is always for
the party who files the suit to show that the suit is within time. Thus in cases
where the suit is filed beyond the period of 12 years, the plaintiff would have
to aver and then prove that the suit is within 12 years of his/her knowledge. In
the absence of any averment or proof, to show that the suit is within time, it
is the plaintiff who would fail. Whenever a document is registered the date of
registration becomes the date of deemed knowledge. In other cases where a fact
could be discovered by due diligence then deemed knowledge would be attributed
to the plaintiff because a party cannot be allowed to extend the period of
limitation by merely claiming that he had no knowledge.”

26 In 2007(6) SCC 59 (P.T.Munichikkanna Reddy and others Vs Revamma
and others) the Hon’ble Supreme Court has held as follows:
“7…….. He is in possession by his own right, so far as it is a right:
and it is a right so far as the statutes of limitation which govern the matter
prescribe both when the rights to dispossess him are to be treated as accruing
and when, having accrued, they are thereafter to be treated as barred. In other
words a squatter has as much protection as but no more protection than the
statutes allow: but he has not the title or estate of the owner or owners whom
he has dispossessed nor has he in any relevant sense an estate ‘commensurate
with’ the estate of the dispossessed. All that this misleading phrase can mean
is that, since his possession only defeats the rights of those to whom it has
been adverse, there may be rights not prescribed against, such, for instance, as
equitable easements, which are no less enforceable against him in respect of the
land than they would have been against the owners he has dispossessed.”
Also see Privy Council’s decision in Chung Ping Kwan v. Lam Island
Development Co. Ltd.9 in this regard.
8. Therefore, to assess a claim of adverse possession, two-pronged enquiry
is required:
1. Application of limitation provision thereby jurisprudentially “wilful
neglect” element on part of the owner established. Successful application in
this regard distances the title of the land from the paper-owner.
2. Specific positive intention to dispossess on the part of the adverse
possessor effectively shifts the title already distanced from the paper-owner,
to the adverse possessor. Right thereby accrues in favour of adverse possessor
as intent to dispossess is an express statement of urgency and intention in the
upkeep of the property.”

27 Since the respondents/plaintiffs herein proved their title, it is
the duty of the third defendant/appellant herein to prove that he has
prescriptive title by adverse possession. To prove the same, he has filed Ex.B1
and B2 in respect of the patta which shows dry land in survey No.167/11
inherited by him. The patta number is 84. It stands in the name of both
Samayana Dever and Irulayee. After sub division, patta number has been changed
to 419 as per Ex.B3. It was sub divided as 169/11A 0.18.0 ares stands in the
name of the third defendant/appellant herein. He also filed Ex.B17 and B18
settlement registers pertaining to S.No.169/11A and S.No.169/6 stands in the
name of the plaintiffs/respondents and S.No.169/11A stands in the name of
Samayana Devar, the appellant herein as already stated. The kist receipts were
marked as Ex.B4 to B13 from Fasali No.1376 to 1403. But it is true that these
documents are related to property bearing S.No.169/11A. He also filed document
in Ex.B14 dated 11.8.1982 wherein it is stated that he mortgaged the property to
Tamilnadu Khadi and Village Industries Board and he dealt with the property.
Demand notice Ex.B15 dt.12.8.1995 has also been filed. As already stated, even
this Court presumes that third defendant/ appellant herein is in possession, the
third defendant/appellant herein has to prove that he is in possession after
knowing the property belonging to the respondents/plaintiffs adverse to the
interest and title to the plaintiffs/respondents herein, openly and
continuously, uninterruptedly with the knowledge of the true owner for more than
statutory period. But his averments is only in respect of the property was
allotted to the appellant herein under Ex.B16. In pursuance of that he is in
possession and enjoyment of the same. The respondents/plaintiffs were not owner
of the property bearing S.No.169/11. They are the owners of the property bearing
S.No.169/6. In such circumstances, the basic principle of adverse possession as
contained in maxim nec vi, nec clam, nec precario, long possession by itself
would not be sufficient to prove adverse possession. There must be animus
Possidendi. So the appellant herein has to prove that he is in possession after
knowing the property belonging to the respondents/ plaintiffs, adverse to the
interest and title to the plaintiffs/respondents herein, he was and is in
possession and enjoyment of the same. But he has not adduced evidence that he
was and is in possession adverse to the interest and title to the
respondents/plaintiffs and enjoying the property for more than statutory period.
In such circumstances, the appellant herein has not proved that he has
prescribed title by adverse possession.

28 So, the first appellate Court and the trial court considered all
the aspects in proper perspective and came to the correct conclusion that the
third defendant/ appellant herein has not prescribed title by adverse
possession. The plaintiffs/respondents herein has purchased the property under
Ex.A1 even though it was mentioned as S.No.169/6. It is only related to
S.No.169/11 as per the well settled principle of law that boundary will prevail
over the survey number and extent of a property. Hence, that aspect has been
corroborated by P.W.2. P.W.2 in his evidence has stated that the property in
S.No.169/6 is belongs to him. He executed a simple mortgage in favour of one
Koothakkal under Ex.A4. Subsequently, he sold the same under Ex.A5 on
10.11.1986 to one Periyasamy. So P.W.2 has proved that the suit property is
only under S.No.169/11. Hence, the trial court and the first appellate court
considered all the materials on record in proper perspective and came to a
correct conclusion. Hence, Judgment and decree of both the Court below does not
suffer any irregularity or infirmity. Hence, it does not warrant any
interference by this court and the appeal is liable to be dismissed.

29 Accordingly, the Second appeal is dismissed. Both the parties
are directed to bear the cost.

vaan

To
1. The Subordinate Court, Sivagangai,
2. The District Munsif Court, Manamadurai.
3. The Record Keeper, V.R. Section, High Court, Madras.

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