1. The plaintiffs are the appellants.
2. The appeal arises out of O. S. 18 of 1974 on the file of the Sub-Court, Madurai. The said suit is for declaration, recovery of possession and mesne profits.
3. The averments in the plaint are shortly as under - (i) The suit property bearing door No. 41, Sokkappa Naicken St. Madurai was originally purchased by one Subbanna Iyer by a registered sale deed dated 5-6-1924. He died in the year 1927, leaving behind his widow Lakshmi Animal and his only daughter Vengalakshmi. By a registered adoption deed Ex. A6 dated 16-7-1936, the third defendant was adopted by Sethurama Iyer the husband of Vengalakshmi and Vengalakshmi as their son. On the death of Lakshmi Animal in 1939 Vengalakshmi, the daughter succeeded to the property and was enjoying the same, 2& woman's estate. Vengalakshmi died in 1945. On her death, her adopted son the third defendant succeeded to the property.
(ii) By a registered sale deed Ex. Al dated 22-6-1972, the plaintiffs purchased the property for a valuable consideration of Rs.32,000.
(iii) Pursuant to the sale, the third defendant wrote a registered letter on 11-7-1972, calling upon defendants I and 2 to attorn their tenancy in favour of plaintiffs, informing them of the sale that has taken place in their favour. Likewise, the plaintiffs also issued a registered notice under Ex. A2 on 10-7-1972, to the defendants I and 2 requesting them to vacate the house and deliver vacant possession. Under Ex. A4, dated 4-8-1972, the defendants 1 and 2 sent a reply denying the right of the third defendant to sell the house and setting up title on the first defendant. Thereupon, the plaintiffs contacted the third defendant to inform them that the allegations in the reply notice were wholly unfounded. They learnt from the third defendant that the second defendant was given to limitations and profligate ways of life. He never cared for the family or the first defendant. It was under these circumstances, the third defendant taking pity permitted the first defendant to live in the suit house and she was permitted to collect the rents from the tenants and utilise the same towards her maintenance after paying the taxes and kits for the properties. The possession of the first defendant was, therefore, permissive. The third defendant persuaded the plaintiffs not to rush to court promising to prevail upon the defendants 1 and 2 to abandon their untenable claim. But that promise has not been fulfilled. Therefore, the present suit has come to be filed.
4. Defendants 1 and 2 in their written statement contended as follows: - (i) It is true the suit property originally belonged to Subbanna Iyer. He had no son. The mother of the first defendant viz. Vengalakshmi was his only daughter. Since the first defendant is the only daughter of Vengalakshmi, Subbanna lyer, the grand-father had great affection towards the first defendant. As a matter of fact, the marriage of the first defendant itself was celebrated by Subbarma lyer. Ever since the marriage, defendants 1 and 2 were living with Subbanna Iyer and his wife. In 1923, Subbanna Iyer executed a will in respect of his property. Under the said Will, he had bequeathed all the properties in favour of his wife, Vengalakshmi, the suit property was purchased subsequent to the will. Out of affection for the first defendant, in or about January 1936, the suit property was orally gifted as Stridhanarn to the first defendant by Subbanna Iyer. The first defendant, therefore, has been in possession and enjoyment of the suit property in her own right as full owner thereof. On the death of Subbanna Iyer, Lakshmi Arnmal was in enjoyment of the property till 1939. Thereafter, the first defendant and her husband, the second defendant along with Vengalakshmi was in enjoyment of the property. Vengalakshmi was living in Pudukottai. She came to Madurai in 1937, when her husband died, and lived with defendants 1 and 2. The registry of the house was mistakenly transferred in the name of Vengalakshmi, since she happened to be the daughter of Subbanna lyer. It was duly transferred to the name of the first defendant on the death of Vengalakshmi in 1945. Therefore, right from 1936 the first defendant alone has been in enjoyment of the suit property by paying taxes and dealing with the property as the rightful owner. At no point of time the third defendant had any right in it.
(ii) Disputes arose between defendants 1and 2 on the one hand and the third defendant on the other, as a result of the second daughter of the first defendant during marriage being provided with costly presents. The third defendant began putting forth a claim to the suit property. Therefore, apprehending some trouble, the first defendant under Ex. B74, caused a publication in a daily newspaper 'TamilNadu' on 19-1 1-1961 asserting her title to the suit property. The third defendant kept silent for sometime Under Ex. B 75 dated 19-4-1961 a registered simple mortgage was also created over this property. Under Ex. A23, the third defendant issued a registered notice putting forth his claim on 14-9-1966. That was promptly replied under Ex. A24 dated 21-9-1966 repudiating the claim of the third defendant. Thereafter, also he kept quiet. In 1972 the third defendant requested financial assistance for the celebration of the marriage of his daughters. The first defendant did not agree. It was therefore' he had brought about the sale in favour of plaintiffs. The notice issued by the plaintiffs has been suitably raped. It is not correct to contend that the first defendant and her husband are in permissive possession, much less could they be called as tenants. At all relevant points of time the defendants 1 and 2 alone have been in possession and enjoyment in their own right. It is incorrect to state that out of pity the first defendant was permitted to live in the suit house and that the second defendant was abdicted to evil ways.
(iii) In any event, the title of the first defendant has come to be perfected by adverse possession.
(iv)The plaintiffs have absolutely no case. They have put chased litigation with open eyes and the suit is liable to be dismissed.
5. The third defendant filed a written statement admitting the original title of Subbanna Iyer. However, he would state that can the death of Vengalakshmi he became entitled to the property. Taking pity on the first defendant, who was not maintained by the second defendant, she was permitted to live in the suit property. He also married the first daughter of the first defendant. He had to be away from Madurai since he was employed outside. The suit property belonged to the third defendant absolutely. Out of trust and confidence, the third decadent had with the first defendant lie allowed the first defendant to act in the nature of a trustee. For valid consideration, Ex. Al sale has come to be executed in favour of plaintiffs, Since the first defendant refused to vacate the property and since the third defendant has no funds to take proceedings against the first defendant, he is unable to hand over possession of the property to plaintiffs. Defendant's 1and 2 when questioned, apologised in the presence of mediators and assured them that they would not claim title to the suit property. They also requested the third defendant not to evict them from the suit property. Thereafter good relationship prevailed between the parties. Thus, the plaintiffs are entitled to succeed.
6. Defendants 1 and 2 in their additional written statement contended that the first defendant has acquired title to the property under S. 14(l) of the Hindu Succession Act. That is an additional ground to hold that the
Plaintiffs are not entitled to succeed in recovering possession of the suit property.
7. The plaintiffs filed a reply statement contending that the suit property was placed in the possession of the first defendant not in lieu of maintenance, by the third defendant. As a matter of fact, the third defendant is not liable to provide maintenance for the first defendant. Therefore, S. 14(l) of the Hindu Succession Act will not apply. For the application of that section possession by the Hindu female must be one as of right and not a mere licence or permissive occupation.
8. The second plaintiff adopted the reply statement of the first plaintiff.
9. On the above pleadings the following issues were set down for trial -
(1) Whether the plaintiffs have title to the suit property?
(2) Whether the oral gift of the suit property alleged to have been made in favour of the first defendant by Subbanna Iyer is true and valid?
(3) Whether the plaintiffs are entitled to the relief of possession prayed for?
(4) Whether the plaintiffs are entitled to mesne profits? If so, to what amount?
(5) To what relief, the plaintiffs are entitled?
Additional Issues framed on 21-11-1975 -
(1) Whether, the first defendant has in any event, acquired title to the suit property by adverse possession?
(2) Whether the third defendant and the plaintiffs are estopped from disputing the first defendant's title to the suit property?
Additional Issues framed on 5-2-1976 -
(1) Whether the first defendant is in permissive possession of the suit property as stated by the defendant?
(2) Whether in any event, the first defendant has acquired absolute title to the suit property under S. 14(1) of the Hindu Succession Act 1956?
10. (i) The learned Subordinate Judge, on a careful consideration of the oral and documentary evidence, came to the conclusion on issues 1 and 2 and additional issue No. I framed on 21-11-1975 and additional issue No. I framed on 5-2-1976 that the plaintiffs have no title to the suit property, that the oral gift of the suit property, alleged to have been made in favour of the first defendant by Subbanna Iyer is neither true nor valid, that the first defendant has acquired title to the suit property by adverse possession, that the first defendant has not been in permissive possession of the suit property as alleged by the third defendant.
(ii) As regards additional Issue No. 2, framed on 5-2-1976 he was of opinion that the contention of the first defendant that she had acquired absolute title to the suit property under S. 14(1) of the Hindu Succession Act was not tenable. On additional issue No. 2 framed on 21-11-1975, he held that the third defendant and plaintiffs were estopped from disputing the first defendant's title to the suit property. On issues Nos. 3 and 4 it was concluded that the plaintiffs are not entitled to the reliefs either for recovery of possession or for mesne profits and therefore the question of quantum of mesne profits did not arise.
(iii) Having regard to the above pleadings under issue No. 5 it was held that the plaintiffs were not entitled to either declaration or recovery of possession or even mesne profits. In the result, the suit was dismissed with costs. Hence, the present appeal.
11-12. Mr. M. Srinivasan, learned counsel for the appellants, urges the following propositions: -
(i) We may straightway say that the only point that is urged by the learned counsel is 'adverse possession' which has been upheld in favour of the first defendant. According to Mr. Srinivasan the case of adverse possession will have to be divided into three periods. -
(1) between 1945 and 1960
(2) From 1961 to 1966
(3) 1966 onwards
(ii) During 1945 to 1960 there was mere collection of rent by the first defendant that alone will not constitute adverse possession, in view of the close relationship between the parties. A reading of the correspondence between the parties clearly shows that the first defendant was taking care of not only the suit property of the third defendant, but also the landed property and yet another house in Avaniyapuram, Madurai. Therefore for this period there is absolutely no animus on the part of the first defendant to prescribe title adverse to that of the third defendant, viz., the predecessor-in-title of the appellants-plaintiffs, who are the vendees from the third defendant.
(iii) For the period from 1961 to 1966 it is well settled that assertion of hostile title, in order to defeat the title of the third defendant, must be to the knowledge of the origin Towner, viz. the third defendant. Therefore, unless and until such knowledge is attributed to the third defendant, no question of adverse possession will arise.
(iv) The three acts, which according to the first defendant, would constitute assertion of hostile title are -
(1) Mutation in the municipal registry. There is nothing on record to show that this was done after intimation to the third defendant. Mere mutation is not sufficient to transfer title as has been laid down in Bharat Singh v. Bliagirathi, : 1SCR606 .
(2) Then comes the mortgage under Ex. B75 dated 19-4-1961. That mortgage is in favour of none else than the second son-in-law of first defendant. If really, as the evidence discloses, that the first defendant was well to do it is most unlikely that such a mortgage would have been executed for a paltry sum of Rs.500. The mere fact that the mortgage came to be registered will not give credence to this transaction. It being an internal family affair it was a secret transaction and it must be proved that this was done to the knowledge of the third defendant. That has not been so established leave alone the circumstances attendant to the transaction.
(3) The third is the publication in the newspaper Ex. B74 dated 19-11-1961. It is not known why such a publication was caused. Even otherwise, there is nothing to show that this was brought to the knowledge of the third defendant Strangely in the evidence of D.W.1, she would say that she sent a copy of this publication to the third defendant. But, there is absolutely no proof concerning the same, while P.W. 2 is categorical in his evidence that he was wholly unaware of this publication in the Tamil Nadu newspaper. If really there were disputes between the parties normally one would have expected the third defendant be issued a notice asserting the claim of title by the first defendant. Why that was not done has not been explained. There is no evidence of any dispute before 1960.
(v) From 1966 onwards admittedly there was cordial relationship between the parties. Ex. A19 will clearly establish the existence of such a cordial relationship. Otherwise, such a letter would not have been written.
(vi) Then again, the first defendant has absolutely no consistent case. In one breath she would contend that there was an oral gift, which has been found to be untrue. In the other breath she would urge that the money was set apart by Subbanna Iyer for purchasing a house for the benefit of the first defendant.
(vii) It was next contended that she inherited the same from her mother as Stridhana property.
(viii) As against this inconsistent case if the case of the third defendant is looked at his assertion that it is only permissive possession is well established. The law is also laid down in Thangavelu Chetti v. Mangathayee Ammal, 1913 MWN 674 and Ouseph v. Mathan Mariyamma, AIR 1954 TC 297, that permissive possession can be inferred from the attendant circumstances even without direct evidence.
(ix) In Puttathayamma v. Rathanarajiah, AIR 1955 Mys 33 it has been laid down that where the parties are close relations, substantial and clear evidence is necessary to prove adverse possession. Applying this ratio to the facts of this case, it is clear that there is a close relationship both as brother and as son-in-law between the third defendant and the first defendant In so far as the first defendant has not proved that she asserted hostile title to the knowledge of the third defendant, it is impossible to accept the plea of adverse possession.
(x) Then again State Bank of Travancore v. A. K. Panicker, : AIR1971SC996 states that permissive possession of a tenant cannot be converted into adverse possession unless the owner had knowledge of such adverse possession.
(xi) Such a knowledge is attributable to the third defendant is entirely lacking in this case.
(xii) Lastly, the learned counsel cites Mitra's Law of Limitation, Volume II page 1473 as to what are the principles to be applied for upholding adverse possession. If those principles were applied this case does not satisfy the requirements for upholding adverse possession. ,
13. Mr. M. R. Narayanaswami learned counsel for the respondents 1 and 2 in meeting these contentions, submits as under -
(i) This is a case in which the plaintiffs file a suit in ejectment. They must succeed on the strength of their own tide. They cannot hope to succeed on the defects of the defendant's title. Plaintiffs trace their tide to Ex. Al dated 22-6-1972. However, the suit comes to be filed only nearly 1-2 years later,viz.on 19-1 2- 973.In any event , on date of the suit, the plaintiffs' title is lost by adverse possession.
(ii) The most important thing to be noted is Ex. A1 which contains a recital as to the non-delivery of possession. That constitutes strange reading, apart from being wholly untrue. If really rent control proceedings, as those recitals would state, cannot be availed of by the third defendant, equally it cannot be availed of by the plaintiffs who claim title under the third defendant.
(iii) Then again, if the purchaser had applied for encumbrance certificate he would have easily known about the mortgage, Ex. B75 dated 19-4-1961. All these have not been done by plaintiffs, who have merely purchased litigation as venture some persons.
(iv) In this case, one of the stands taken by the third defendant is that after 1945, the first defendant was put in permissive possession. Unless the third defendant establishes at what point, of time the possession become permissive, or to put in other words, when she was granted permission by the third defendant to remain in. permissive possession he cannot succeed at all. On the contrary, physical possession has always been with the first defendant. There is not any evidence whatever that the third defendant exercised any right as owner either in 1945 or at any time thereafter. The third defendant admits that the first defendant was paying taxes, not only that. He also admits that he was never aware about the enjoyment of their rental income.
(v) One thing is certain. The first defendant has been in possession. The third defendant is, therefore, hard put to explain this possession. He takes different stands to explain Away the possession. In Ex. A23, notice by the advocate on 14-9-1966 it is stated that the first defendant was allowed to manage the property. That is promptly replied to under Ex. A24 on 21-9-1966, that the first defendant never agreed either with the third defendant or anybody to manage the -house on his behalf. Under Ex. A3 on 11-7-1972 the third defendant through his advocate puts forth the theory of tenancy and calls upon the first defendant to pay rent
(vi) In the written statement in paragraph 3 the theory of permissive possession on compassionate grounds is put forth.
(vii) In paragraph 6 of the written statement, yet another theory of trust is advanced.
(viii) Giving a go-by to all these, in the evidence it is candidly admitted that the first defendant was residing free of rent in the house.
(ix) In so far as the first defendant had asserted her title in 1961 both by execution of the mortgage under Ex. B75 dated 19-4-1961 and by the publication in the newspaper on 19-11-1961, illustration (d) to S. 114 of the Evidence Act, would squarely apply. The scope of this illustration has come to be construed in Ambika Prasad v. Ram Ekbal Rai AIR 1966 SC 605 . Therefore, that ratio has to be applied to the facts of this case.
(x) When the first defendant has come out in open denying permissive possession from 1966 itself, the third defendant remaining quiet even after Ex.A24 reply, would render the original arrangement of the first defendant remaining in possession, is valid. If, therefore, that theory of permissive possession goes, then it amounts to open exclusive possession.
(xi) As between close relations there is no question of bringing adverse possession to the notice of the rightful owner. This is not a case of co-ownership, which is applicable to this case. In support of this argument, learned counsel relies on Ibramsa Rowtber v. Sheik Meeasa Rowther, : AIR1972Mad467 . The Secretary of State for India in Council v. Debendralal Khan .
(xii) If, therefore, by operation of S. 28 of the Limitation Act if title is lost merely writing letters, exhibiting cordial relationship like Ex. A21 will not revive that title when once it is lost.
(xiii) Learned counsel cites Salmond on Jurisprudence, l2th Edn. Page 434 paragraph 118, as to what would constitute prescription of title.
(xiv) It was further submitted that long want of possession destroys title. What is important in this case is the animus of the first defendant. To exercise right as a true owner, which right has come to be exercised by mutation of names, by payment of taxes, 'for a long period, by enjoyment of rental income, by execution of mortgage under Ex. B75 and the publication in the newspaper.
(xv) As against this, unequally the third defendant remained silent in spite of assertion of title under Ex. A24. He is totally ignorant of the tenants and the enjoyment of rental income. He does not take steps for mutation. He also never- paid tax at any point of time.
That would never be the conduct of a person who seeks to establish his title. For all these reasons it is submitted that no ground has been made out to interfere with the findings of the Court below on adverse possession.
14. Having regard to the above arguments the one and the only question that arises for our consideration is, whether the first defendant has prescribed title to the suit property by adverse possession.
15. We will first state briefly the law relating to adverse possession: - The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights, but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor.
What is adverse possession? Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person, in denial of the owner's right excluded him from the enjoyment of his property
Setting up adverse possession by the person in adverse possession is not wrong; it is not shameful on his part to do so. This plea is, allowed with the laudable intention of giving a quietus to long possession. In fact under the Civil Procedure Code, when a suit in ejectment or for possession is filed by the plaintiff he is required to show prima facie that it is within time.
Now the party claiming to hold the immovable property adversely must at least go on to prove that it was in denial of the owner's title and that he excluded him from the enjoyment of his property.
Where a stranger is in possession it is not necessary to do so to the knowledge of the true owner, but it is sufficient if the possession is hostile, notorious and exclusive, so that the owner could perceive the same.
In Halsbury Volume I, Hailsham's Edn. 1953, the law is put thus: -
'At the determination of the statutory period limited to any person for making an entry or bringing an action, the right or title of such person to the land, rent or advowson, for the recovery of which such entry or action might have been made or brought within such period is extinguished and such title cannot afterwards be reviewed either by re~ entry or by subsequent acknowledgment. The operation of the statute is merely negative, it extinguished the right and title of the dispossessed owner and leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the r right of the others to eject him'.
The classical requirement of adverse possession are that the possession must be nec vi nec clam nec precario, that is to say, the possession required must be adequate in continuity, in publicity and in extent. It is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running out, if he exercises due vigilance~ to be aware of what is happening In Secretary of State v. Debendralal Khan their Lordships negatived the contention that it was necessary for the trespasser to bring the facts of his adverse possession to the notice of the real owner. More exercise of possession exclusively and continuously would not be enough in all cases to show that the true owner if vigilant would be aware of what was happening. Permissive possession does not become hostile till there is an assertion of an adverse possession to the knowledge of the owner. (Sheodhari Rai v. Suraj Prasad Singh : AIR1954SC758 ). The permissive character of the possession can be inferred from the attending circumstances even without direct evidence~ If possession is found to be permissive at the inception the possessor cannot prescribe or sustain title or any claim adversely to the grantor of the possession (Ouseph Ouseph v. Mathen Mariamma, AIR 1954 T C 297 : 1954 KLT 8.
16. It is in this background we propose to analyse the facts of this case This is a case in which ever since 1936 to the knowledge of the third defendant, the first defendant has been in possession and enjoyment of the suit property. In the plaint. in paragraph 8, it is averred thus -
'The plaintiffs learnt from the third defendant that the second defendant had been given licentious and profligate ways of life, that the first defendant had been not only left uncared for but had also been treated in an inhuman way by him (the second defendant) that taking pity on her and her children they were being allowed to live in the suit house even during the days of Venegalakshmi Ammal - her mother, that even after Venegalakshmi Ammars death they were allowed to remain in the suit house by him (third defendant) as he happened to be not only the brother but also the somin-law of the first defendant and that in addition she was a1so permitted to collect the rents from the other tenants in the' house and from his (third defendants) other properties in Avaniapuram village and utilise the same for her maintenance after paying the taxes and kists for the properties. -
9. The plaintiffs further submit that on the very allegations in the reply notice dated 4-81972, of defendants 1 and 2 the rust defendant! s claim for title to the property is untenable Her mother Venegalaksi Arrimal had just a widow's state in the property and on her death in 1945, the third defendant alone could have succeeded to the property. The first defendant's claim of title is t6reiore untenable Her possession was therefore only purely permissive, so too was the possession of the second defendant.'
We may straightway say that as to when exactly permission was given by third defendant to the first defendant to continue in possession has not been stated In order to explain the possession of the first defendant this theory of permissive possession is urged
17. In Ex. A 23 dated 14-9-1966 it is stated in paragraph-2 as under-
'You were allowed to manage the properties of my client and live in the above house. It appears that you are trying to claim right in the property and had recently transferred the house in the municipal registry and also trying to encumber the same with a view to create evidence of title and had also created a nominal deed without any consideration.'
This is the lawyer's notice issued on behalf of the third defendant to the first defendant. Therefore, in this letter the theory of management is put forth.
18. Promptly, under Ex.A 24, dated 2J-91966, the first defendant through her advocate, replies to this letter. She states -
'My client did not get possession as your agent or through you. My client has inherited the property as daughter and heir of her mother and her father and has paid taxes to the Municipality in her own right from 1945 till this date. In addition to her title as heir of her mother's stridhana house, my client has been in open absolute exclusive possession as of right and is in the house in her own right for long, over 12 years from 1945 when her mother died.'
Again it is stated-
'My client never agreed with your client or anybody to manage the house on your behalf.'
19. Then comes Ex. A. 3 letter, which is also advocate's notice issued by the third defendant to, defendants 1 and 2, a copy of which was marked to the first plaintiff. That clearly puts forth the plea of tenancy. It is stated therein that the building in door No. 41 Sokkappa Naicken St, Madur4 belonging to the third defendant, in which-the defendants 1, and 2 were in occupation as Jenants, was sold to plaintiffs under Ex. A1 dated 22-6-1972 and that defendants 1 and 2 were a No requested to pay the rents accruing from and after 22-6-1972 to plaintiffs and get receipts from them. Therefore, for the first time a theory of tenancy is advanced. In paragraph 3 of the written statement of the third defendant a case of permissive possession on compassionate grounds is urged, because, of the second defendant's indifference in maintaining the family as well as the first defendant. However, in paragraph 6 of the same written statement it is urged that the suit-base belongs absolutely to this defendant. It vowel on &behalf; of this defendant the first defendant has been renting out and enjoying the rental income and was paying the taxes and was spending towards the upkeep of the property. Therefore, inasmuch as these things were allowed to be done in view of the trust and confidence, she was bound to act in the nature of a trustee. Strangely during chief examination of the third defendant, who was examined on the side of the plaintiff as P. W. 2, he states that the first defendant is residing with her family in the suit house free of rent. This statement occurs in more than one place -in-the chief examination itself. One thing is very clear. P. W.2 in cross-examination admits the following-
'From 1936 the first defendant alone has been in possession along with her family, since the third efendant saw her Sethurama Iyer never paid the house tax from 1936 till date and it was only the first defendant who was paying the taxes .The municipal registry got changed in the name of the first defendant in 1966, to the knowledge of the third defendant After the death of her adoptive mother in 1945, no step was taken for changing the municipal registry in his name .He did not attempt to pay the house tax Certain portions of the suit house were let out only by the first defendant. The actual income was enjoyed by her. She also paid the tax. The shop in the front portion was let out by her. From 1945, till date not on one occasion, the third defendant ever did not let out any portion, nor again did he demand rent from the first defendant. Likewise, the first defendant never wrote about the rental income. It never occurred to him that the municipal registry should be changed in his name and therefore no application was filed in this regard.'
If this is the admitted case of the third defendant certainly he is hard put to explain the continued possession and enjoyment of the first defendant from 1936. That is why the various inconsistencies in the stand of the third defendant, as we have pointed out above, occur.
20. It is the contention of Mr. M. Srinivasan, learned counsel for the appellants; that mere permissive possession cannot get altered into one of adverse possession. To this statement of law there cannot be any demur. We have also mentioned that in the beginning of our judgment. But, this theory of permissive possession cannot be accepted at all and it will be clear from the following discussion- it is the contention of the learned counsel for the appellant that assertion of hostile title to constitute adverse possession must be to the knowledge of the third defendant. According to him, it should be viewed from the three periods, viz. -
(1) from 1945 to 1960.
(2) from 1961 to 1966 and
(3) 1966 onwards.
Between 1945 to 1960, according to the learned counsel, there was mere collection of rent, by the first defendant, and that will not constitute adverse possession in view of the close relationship between the first defendant and the third defendant. The correspondence between the parties during this period is sought co be pressed into service to show that cordial Relationship existed between the two.
21. As regards the period from 1961 to 1966 no doubt there has been mutation of name in favour of the first defendant. There was a mortgage under Ex. B 75 dated 19-4-1961 in favour of the second son-in-law of the first 0efendant and there was publication in. The newspaper TamilNadu under Ex. B 74 date 19-11-1961. None of them, according to the learned counsel, would constitute adverse possession because there was no knowledge attributable to the third defendant with regard to any one of these transactions. The correctness of this contention requires to be examined at this stage.
22. As regards mutation. it has already been seen that after Venegalakshinmi's death in 1941 is, the first defendant continued to pay the taxes and she had the registry changed in her name in 190 1, which the third defendant was aware, at any rate in 1966. Strangely no step was taken even thereafter. On the contrary, he would say, as we have noted above, that it did not occur to him to have the registry changed and therefore he did not file any application in that regard. We are totally unable to accept this explanation.
23. Coming to the mortgage under Ex. B75, that was for a sum of Rs.500 executed by the first defendant in favour of her second son-in-law Ramasubbu and his brother Raniachandran. That document, recites that there was an outstanding under the promissory note dated 15-6-1959 for a sum of Rs.400 and to pay off the same together with the amount outstanding, this mortgage came to be executed. We are unable to accept the argument that merely because the promissory note referred to in Ex. B-75 is not produced, this Ex. B-75 mortgage cannot be accepted. First of all, this is a registered mortgage. Secondly, this was executed long before the disputes arose between the parties. Certainly it would not have occurred to the first defendant to create this mortgage to defeat the rights of the third defendant in this manner. For the same reason, we reject the contention advanced on behalf of the appellant that because this happens to be executed by the first defendant in favour of her second son-in-law, it should' not be accepted. We are of considered view' that this is a clear case of assertion of title since the first defendant in her own right dealt with the property as owner.
24. We do no think that having regard to the close relationship in that the third defendant is not only the son-in-law but also the brother of the first defendant, he would not have been aware of this transaction.
25. As to the publication in the Tamil Nadu newspaper on 19-11-1961, it is clearly stated that the suit property absolutely belongs to the first defendant as the Stridhana heir of Venegalakshmi and the third defendant has no right whatever in it. In chief examination P. W. 2 (third defendant) would state that he was not aware of this publication in the newspaper. As against this, the first defendant, who was examined as D. W. 1, would state that because the third defendant was attempting to execute a mortgage she caused this publication to be made in Nov. 1961. In cross-examination she stated that it was she who furnished the necessary information to the advocate. D. W. 1 claims to have sent a copy of this publication to the third defendant, but there is no evidence concerning the same.
26. Lastly, as to the period from 1966 onwards, according to the evidence of P. W. 2 there was mediation in 1967. The mediators were Krishna Iyer, Kuppuswarni and Nagiah Chettiar and the mediation took place during the marriage of first defendant's last daughter. The first defendant is stated to have regretted for the execution of the mortgage and is further stat6d to have admitted the title of the third defendant. The letters passed between the parties during this period are relied upon. Not one of these letters could be in any way helpful to the appellants to show that the first defendant ever gave up possession. In Ex. A 21, it is stated by the second defendant to the wife of the third defendant that thereafter attempt should be made to live amicably, forgetting the past. Though in the oral evidence, to which a reference has been made, P. W. 2 would claim that there was a mediation in 1967, not one of the mediation-s was examined. It is admitted that Kuppuswami, and Krishna Iyer Alive.
27. Now we go to the case law that has been relied on. As to what would be the legal effect to mutation, in Bharat Singh v. Bhagirathi, : 1SCR606 , it has been stated thus-
'Mere fact of the mutation entry being made in favour of the widow on the death of her husband will not be a clear indication that there, was no joint Hindu family of the three brothers at the time of the death.'
The position in this case is entirely different. It has been already noted that from 1936 the first defendant has been. in possession and enjoyment. She has been paying taxes. It is so candidly admitted by the third defendant. At this juncture, we may refer to the letter, Ex. A 14, which is dated 8-10-1953.. In that 11ter the first defendant informs the third defendant that she has paid a sum of Rs. 66 towards house tax. Likewise another document that is relied on by the appellants is Ex. A. '22. That is a telegram-dated 15-11-1950. It reads-
'The house tax revision hearing tomorrow. Expedite'.
This telegram was issued by the second defendant to the third defendant. It has not been proved that either Ex. A.-14 or Ex.A.-22 relates to the suit house. Admittedly, there is another house in Avaniyapuram, Madurai. That was also looked after by the first defendant. Therefore, coupled with this fact of payment of tax from 1936 the mutation at any rate to the knowledge of the third ,defendant in 1966 certainly is a valuable piece of evidence to prove adverse possession.
28. In State of Travancore v. A. K. Panicker, : AIR1971SC996 it has been held in paragraph 9 as follows-
' 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 true owners for a period of twelve years or more.'
In this case, the suit property of Tharw ad was all along in the possession of the tenants. Though in Ex. A. 3 dated 11-7-1982 lawyer's notice, a theory of tenancy was advanced after the execution of Ex. A. 4, that is completely given a go-by in the evidence. Therefore, this ruling has no application.
28A. It is the argument of Mr. M. R. Narayanaswami that there is absolutely no consistency with regard to the stand of the third defendant as to how the first defendant is in possession of the suit property right from 1936. This argument is well founded since we have already noted the various inconsistent pleas urged by the third defendant in this regard. One thing is certain. In 1966 itself, the first defendant came out openly denying permissive possession. In Ex. A 24, to which we have already made a reference, in no unequivocal terms the first defendant denies the right of the third defendant and asserts her hostile title. It is rather strange that the third defendant remains quiet even after that. Therefore, it is urged that having regard to the assertion of title in 1966, the theory advanced on behalf of the third defendant that she was allowed to be in permissive possession cannot be accepted.
S. 114 of the Evidence Act reads as follows-
'The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case.'
Illustration (d) is as under-
The Court may presume. . . . . . .
(d) that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence;'
The scope of this section came up for consideration in Ambika Prasad v. Ram Ekbalraj, AIR 1966 SC 605. At p. 612 in Para 15 it was held-
'The survey records of 1892, 1895, 1904 and 1909 disclose that the ancestors of the plaintiffs held some of the frontier plots of Dubba MAL The Madra's High Court was, therefore, asked to draw the inference that their ancestors held those plots during 1845 to 1863 when the Taufir lands accreted The question is whether such an inference should be drawn. Now, if a thing or a state of things is shown to exist, an inference of its continuity within a reasonable proximate time both forwards and backwards may sometimes be drawn. The presumption of future continuance is noticed in illustration (d) to S. 114 of the Indian Evidence Act, 1872. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section, though on this point the section does not give a separate illustration. The rule that the presumption of continuance may operate retrospectively has been recognised both in India. See Anangamanjari Chowdrani v. Tirupurasoondari Chowdrani : AIR1934Cal707 and Hamendranath v. Inanedra Prasanna : AIR1935Cal702 that there is no rule of evidence by which one can presume the continuity of things backwards cannot be supported. The presumption of continuity weakens with the passage of time.'
On this basis it is contended that it should be presumed that there was assertion of hostile title. However, the decision reported in Secretary of State for India v. Chellikani Ramarao, 39 Mad 617: AIR 1916 P. C. 21 is relied on by the appellant that when the party asserting hostile title fails to prove adverse possession, it cannot bid presumed backwards. We do not think, we need go that far. Here, there are clear instances of assertion of hostile title,
(1) The first defendant is admittedly in possession from 1936 onwards;
(2) She was letting out portions of the suit house and was enjoying the income;
(3) At no point of time the third defendant ever let out any portion.
(4) The third defendant did not make any demand of rents;
(5) Admittedly from 1936 onwards the first defendant alone was paying the municipal taxes, even during the lifetime of Sethurama Iyer:
(6) The third defendant never paid house tax at any point of time.
(7) In 1960 there is a change in the municipal registry in favour of the first defendant;
(8) Under Ex. B 75 acting as owner on 19-4-1961 the first defendant executes a registered simple mortgage, which we have already accepted;
(9) In Ex. B. 74 she causes a publication asserting her title;
(1) Ex. A. 23 notice dated 14-9-1966 issued by the advocate for the third defendant is promptly replied under Ex. A 24 dated 1-9-1966, wherein there is a clear assertion of hostile title-
-This is the chain of events.
29. The only point that is harped upon by the appellants is that they had no knowledge of these transactions. We are of opinion that there is a great distinction between adverse possession as between strangers and ouster pleaded in the case of co-owners. There is a basic difference between the two. In the case of adverse possession, as against strangers it is enough that adverse possession is overt, which should be without any attempt or concealment that, the person against whom time is running if he had exercised due vigilance he would be able to be aware of what is happening. We do not think that it is necessary that adverse possession should be brought home to the knowledge of the owner. If the rights of the third defendant have been openly usurped and not secretly, as the above chain of events would disclose, he cannot be heard to complain that the fact of adverse possession was not brought to his knowledge. In this case, the adverse possession, for which the animus of the first defendant alone is necessary, is open, visible and notorious. If, therefore, the third defendant had remained ignorant and indifferent, it is his 'own fault. The observations in cases like Puttathayamma v. Rathnarajiah, AIR 1955 Mys 33, are general in character. Therefore, they do not help the appellants. In, the case of adverse possession (knowledge) on the part of the owner is not an essential element. For this view we are fortified by a ruling of the, Privy Council reported in the Secretary of State for India in Council v. Debendralal Khan, as follows-
As to what constitutes adverse possession, a subject which formed the topic of some discussion in the case, their Lordships adopt the language of Lord Robertson in delivering the judgment of the Board in Radhamoni Debi v. Collector of Kulna, (1900) 27 Ind App 136 : ILR27 Cal 943 where his Lordship said that 'the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor'. The classical requirement is that the possession should be nee vi nee clam nee precarious. Mr. Danne for the Crown appeared to desiderate that the adverse possession should be shown to have been brought to the knowledge of the Crown, but in their Lordships' opinion there is no authority for this requirement. It is sufficient-that the possession be overt and without any attempt at concealment so that the person against whom time is running ought., if he exercises due vigilance, to be aware of what is happening. If the rights of the Crown have been openly usurped it cannot be heard to plead that the fact was not brought to its notice.'
This principle has been followed by a Division Bench of this Court also, as seen from Ibramsa Rowther v. Sheik Meerasa Rowther, : AIR1972Mad467 . Therefore, this case not being that of a co-owner we do not think that any knowledge on the part of the third defendant need be proved. So long as there is intention on the part of the first defendant to assert her title, that intention is clearly manifest by the various events, to which we have alluded. It is a clear case to which the principle of adverse possession will clearly apply. In this case, it should be remembered that the plaintiffs seek for declaration of their title by virtue of Ex. A.1, sale deed dated 22-6-1972. It is rasher strange that this sale deed should contain a recital at the end of the document as to why possession could not be delivered. The recital is to the effect that the vendor, i.e., the third defendant had been living away in various places on account of his job, that his sister and mother-in-law have no other house in Madurai and that she is not affluent and that therefore she has been permitted to live in the suit house. It is also mentioned therein that she had agreed to vacate the house as and when required, that since the vendor is not living in Madurai and that since the House Rent Control Act does not provide remedy for him to evict her the vendees themselves may take steps to evict her.
30. Therefore, this is a clear case in which the plaintiffs have not proved as to when the first defendant was permitted to be in possession. That evidence is wholly lacking in this case. We must also advert to the fact that in spite of Ex. A.3 notice on 11-7-1972, which was replied under Ex. A.4 on 4-8-1972 where under the defendants 1 and 2 clearly denied their title, the suit comes to be filed only on 19-12-1973.
It is well settled as held in Jagdish Narain v. Nawab Said Ahmed Khan , that where the plaintiff sues in ejectment he can succeed on the strength of his own title. There is no obligation upon the defendant to plead possible defects in plaintiff's title and under this p lea he can avail himself of any defect, which such title discloses. This contention of Mr. M. R. Narayanaswami is well founded.
31. In the result, we hold that the first defendant has clearly prescribed her title by adverse possession and the trial Court is correct in its conclusion. The appeal is, therefore dismissed with costs.
32. After we pronounced the judgment in open Court, Mr. A. R. Lakshmanan learned counsel for the appellants prays for leave to appeal to the Supreme Court under Art. 133(1)(a) of the Constitution of India. This is opposed by Mr. N. S. Sivam, the learned counsel appearing for the first respondent stating that the case has been purely decided on facts and no' important question of law arises for determination by the Supreme Court.
33. We are of the view that this case does not involve any substantial question of law of general importance, which, in our opinion, needs to be decided by the Supreme Court. We have merely applied the law of adverse possession to the facts of the case and come to the conclusion that the first defendant has so prescribed her title. Hence, the oral request for leave is rejected.
34. Appeal dismissed.