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Makina Atchayya Patrudu Vs. JalaluddIn Sahib and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1938Mad454; (1938)1MLJ190
AppellantMakina Atchayya Patrudu
RespondentJalaluddIn Sahib and ors.
Cases ReferredKuthali Moothavar v. Peringati Kunharankutty
Excerpt:
- - ): when a person establishes his title to land and proves that he has been exercising during the currency of his title various acts of possession, then the quality of those acts, even though they might have failed to constitute adverse possession against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is required from any person challenging by possession the rightful title. 5. these observations apply to the facts here and we are clearly satisfied that the plaintiff was in possession within 12 years of the action......learned judge has found that the mosque, the defendant in the suit, has established its title by adverse possession. the question to decide is whether that view is right.2. the suit relates to a vacant site adjacent to the house of the plaintiff, who bases his title to it, upon a sale deed of 1899 executed by one ambu sarang saheb. there was some difficulty in obtaining possession and a suit was filed and a decree was obtained against the vendor in 1900. whether the decree has been executed or not is a matter in debate, but in our opinion nothing turns upon it. the claim has been resisted by certain persons on behalf of the mosque and the points to decide are, whether the plaintiff has been in possession within 12 years of the action and whether the mosque obtained title by adverse.....
Judgment:

Venkatasubba Rao, J.

1. This is a Letters Patent Appeal from the judgment of Mr. Justice King, in a second appeal reversing the decision of the lower Appellate Court. The learned Judge has found that the mosque, the defendant in the suit, has established its title by adverse possession. The question to decide is whether that view is right.

2. The suit relates to a vacant site adjacent to the house of the plaintiff, who bases his title to it, upon a sale deed of 1899 executed by one Ambu Sarang Saheb. There was some difficulty in obtaining possession and a suit was filed and a decree was obtained against the vendor in 1900. Whether the decree has been executed or not is a matter in debate, but in our opinion nothing turns upon it. The claim has been resisted by certain persons on behalf of the mosque and the points to decide are, whether the plaintiff has been in possession within 12 years of the action and whether the mosque obtained title by adverse possession.

3. On both these points it seems to us that the plaintiff is bound to succeed. First turning to the question of adverse possession, the acts relied upon are these: that an Arabic school was being conducted in a shed constructed on the site, that lectures were being delivered there and that meetings were being held. There can be no doubt on the evidence, that such sheds as there were, were temporary ones built of thatch. Granting that these acts have been fully proved, do they constitute evidence of adverse possession? The possession of the wrongdoer to avail him must be adverse in its character, importing a denial of the owner's title in the property claimed. It is settled law, that possession cannot be adverse unless it is held in such circumstances as are capable in their nature of notifying mankind that the party is on the land, claiming it as his own, openly and exclusively (see Rustomji on Limitation, 1922 Ed., page 604). There ought to be nothing equivocal in a possession which is relied upon as a bar (ibid., page 600). Possession cannot be adverse unless the owner is in denial of his title excluded from enjoyment. In other words, the test is, are the acts of the person in possession such, as to be irreconcilable with the rights of the true owner? Possession to be adverse must be notorious, exclusive and hostile and we agree with the Subordinate Judge that the acts relied on here are not sufficient to constitute adverse possession.

4. Then as regards the second point, namely, whether the plaintiff has been in possession within 12 years of the suit, the question is, what is the nature of the possession of which this particular property is capable? The kind of possession which will be sufficient in one may not be sufficient in another. In the case of vacant land such as the suit plot, the same kind of possession cannot be expected as in the case of an occupied land or building. Even apart from some slight acts of possession to which the plaintiff speaks, the principle of law that possession follows title would apply to a case of this sort. The owner would be considered as being in possession so long as there was no effective intrusion. As held by the Privy Council in Kuthali Moothavar v. Peringati Kunharankutty (1921) 41 M.L.J. 650 : L.R. 48 IndAp 395 : I.L.R. 44 Mad. 883 (P.C.):

When a person establishes his title to land and proves that he has been exercising during the currency of his title various acts of possession, then the quality of those acts, even though they might have failed to constitute adverse possession against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is required from any person challenging by possession the rightful title.

5. These observations apply to the facts here and we are clearly satisfied that the plaintiff was in possession within 12 years of the action.

6. It remains to mention that an attempt was made to show that even before the sale by Ambu Sarang Saheb, he made a dedication of the property to the mosque. The lower Appellate Court has found against this contention and there is no reason why this finding of fact should be disturbed. Apart from that, the contention is negatived by the very recitals of the sale deed and there is absolutely no substance in it.

7. The judgment of the learned Judge is set aside and the suit is decreed. In regard to the costs, this is our order : The plaintiff's costs in the two Courts below will be borne by defendants 2 to 5, his costs in the High Court in the second appeal will be borne by defendants 2 and 3 and in the Letters Patent Appeal by defendant 2. That is no reason why the mosque should be saddled with the costs.


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