- (1.)THE two second appeals arise out of two suits between the same parties in respect of the same suit property. S.A.No.1213 of 2000 arises out of O.S.No.238 of 1997 filed by the respondent against the appellants for declaration and recovery of possession. S.A.No.1214 of 2000 arises out of O.S.No.229 of 1997 filed by the appellant herein against the respondent for bare injunction in respect of the same property. By appellant, we refer to the 1st appellant in S.A. 1213 of 2000, who is the sole appellant in S.A.1214 of 2000.
(2.)THE facts briefly are as follows: THE suit property belonged to one Marudhamuthu, father of the respondent M.Subramanian, having purchased it on 27.9.1955 under a sale deed Ex.Al. Since the father of the respondent had to leave for Malaysia, he entrusted the property to the first defendant who had been managing it on behalf of the respondent's father and after his death, the respondent. In 1997, O.S.No.229 of 1997 was filed and temporary injunction was sought for. Only then, the respondent realized that the first appellant in S.A.No.1213 of 2000, who is the sole appellant in S.A.No.1214 of 2000 had altered the names in the property records taking advantage of the fact that the respondent's father's name Marudhamuthu which was similar to his name Muradhai which he had subsequently altered to Marudhai @ Murudhamathu. THE respondent tried to compromise the matter by inviting the elders of the community as well as the relatives to resolve the dispute. Since it failed, the other suit O.S. No.238 of 1997 was filed. THE suit for injunction was dismissed and the dismissal was confirmed by the first appellate court and so, S.A.No.1214 of 2000 was filed. Similarly, the suit for declaration and recovery of possession was decreed, which was confirmed by the first appellate court and so S.A.No.1213 of 2000 has been filed. In both the suits, the case of the appellants was that the respondent's father had never entrusted the property for management on his behalf; on the contrary, there was an oral sale for Rs.2,000 and there was also a promise by the respondent's father to execute the sale deed and therefore, according to the appellants, they had been managing the property in their own right and it was not true that the appellant had altered the records by falsely stating that his name was Marudhai @ Marudhamuthu. According to him, the authorities after a detailed enquiry, had come to the conclusion that it was only the appellant who was entitled to the suit property. Both the courts declined to accept the case of the appellants regarding the oral sale or the plea of adverse possession.
The substantial question of law framed in these second appeals is, whether the facts do not establish the title of the appellants by adverse possession. In addition, Mr.S.V. Jayaraman, learned senior counsel for the appellants also pointed out that it was the case of the respondent in his plaint that the suit property was entrusted to the defendant for management, whereas in the evidence, it is their case that the suit property was entrusted to the respondent's father. Learned senior counsel submitted that there can be no decree in favour of a plaintiff whose case is not based on pleading. Learned senior counsel would submit that when the respondent had based his case on the pleading that he and his father entrusted the suit property to the appellant for management, it ought to have been established by acceptable evidence. The evidence on the contrary, both of P.W.1 and P.W.2 who is the brother of the appellant is that the suit property was entrusted to the appellant's father. This case cannot be accepted in the absence of pleadings and therefore, the manner in which the appellant came into possession has not been established. Of course, learned senior counsel would concede that there can be no oral sale of a property which is worth Rs.2,000, but, nonetheless, if the possession of the suit property by the respondent is not traceable either through permission or through a valid transfer of property, then necessarily, the possession by the said person is adverse to the true owner and when admittedly, the appellant had come into possession in 1955 itself, the possession had continued uninterrupted till 1997 and therefore, the court ought to have accepted the plea of the appellant regarding the possession having become adverse.

The learned counsel relied on the following decisions to support his case:

(i) S.N. Banade v. Union of India, A.I.R. 1964 S.C. 24 in which the appellants before the Supreme Court claimed compensation for diversion of water from river on the ground, he had title to the flowing water. This was not accepted by the court and thereafter, he set up the alternative case on the ground of his rights as riparian owner. The Supreme Court held that the reliefs claimed by the appellant were based only on one ground and that was title, and it was not open to the appellants in the absence of pleadings to stake a claim on the ground that he is a riparian owner. (ii) Next, the learned senior counsel relied on the case of Venkatar-mana Devaru v. State of Mysore, A.I.R. 1958 S.C. 255. In this case, before the Supreme Court, the plaintiffs had throughout maintained that the suit temple belonged to a certain community and that it was not a public temple. Their claim that it was a denominational temple was not accepted. The appellants attempted to raise a plea before the Supreme Court for the first time that the temple was a private one and not within the purview of Madras Temple Entry Authorisation Act (5 of 1947 as amended by Act 13 of 1949). The Supreme Court held that it would be neither legal nor just to refer to the evidence adduced with reference to a matter which was actually in issue and on the basis of that evidence to come to a finding on a matter which was not in issue. (iii) Next, the learned senior counsel relied on the case of Om Prabha v. Abnash Chand, A.I.R. 1968 S.C. 1083, where the Supreme Court held: "The ordinary rule of law is that evidence is to be given only on a plea properly raised and not in contradiction of the plea." That case was with reference to the charge of bribery. The learned senior counsel therefore submitted that the case of the respondent that the suit property was entrusted to the appellant's father cannot be accepted in the absence of pleading and furthermore, once the origin of possession as claimed by the respondent has not been legally proved, the case of the appellant of adverse possession would have to be accepted. In any event, the learned senior counsel would submit that the suit filed by the respondent O.S.No.238 of 97 necessarily have to be dismissed.

Mr. V.K. Muthusamy, learned senior counsel for the respondent, on the other hand, submitted that both the courts had rejected the plea of adverse possession and neither before the trial court, nor before the appellate court, had this plea been advanced namely, the contradiction regarding the person to whom the properties were entrusted by the father of the respondent for management in his absence. In any event, the learned Senior Counsel submitted, the discrepancy is not so vital as to warrant dismissal of the suit. The fact that the respondent's father was the owner of the suit property is not in dispute. The fact that he went to Malaysia during which time properties had to be entrusted to someone to take care is also not in dispute. The appellant's case of oral sale must be disregarded since there is nothing to support it. The only other case is that propounded by the respondent of entrustment of the suit property to the appellant. No doubt, in the plaint, it is stated that the appellant was asked to manage the suit property, whereas in the evidence, it is stated that initially, it was with the appellants father and after his death, it was the appellant who was managing. The learned senior counsel submitted, looked at from any point of view, it is clear that the respondent had pleaded and proved that they had permitted the appellants to be in possession of the suit property. The learned Senior Counsel therefore submitted that once the possession of the respondent has originated under permission granted by the owner, then unless there is an unambiguous clear, claim of adverse possession, possession however long cannot become adverse. He also submitted that once the title of the plaintiff namely the respondent is declared in his favour, possession must follow under Article 65 of the Limitation Act, unless the appellant is able to establish adverse possession. So, even assuming there is a discrepancy in the pleading and evidence, that cannot defeat the suit. He also submitted that there is absolutely no evidence or pleading regarding the date from which the appellant's possession became adverse and he also submitted that the vital ingredients of adverse possession were totally absent.

He relied on the following decisions in support of his case:

(i) Subbiah Chetti v. Veerajinnu Ammal, A.I.R. 1970 Mad. 85, where it was held that a permissive possession will not become adverse unless it is demonstrated that the person in possession had asserted his adverse title to the knowledge of the real owners for a period of 12 years or more. (ii) Thakur Kishan Singh v. Arvind Kumar, A.I.R. 1995 S.C. 73 in which again, the Supreme Court held that heavy burden lies on the person whose possession was initially permissive to establish that it became adverse and that mere possession for however long a time does not convert possession which is permissive to one that is adverse. (iii) Next, learned senior counsel relied on the case of S.Subha Reddiar and others v. Bhagyalakshmi Ammal and another, 1996 (2) L.W.31, where the learned Judge held, it is for the person claim-ing title by adverse possession to prove that in respect of the existence of hostile title, the true owner remains silent. "Mere silence or keeping animus in mind cannot make the title lost to the real owner. "
(iv) Then again, in Kannappan v. Pargunan, 2000 (II) C.T.C. 219 in which case, the plaintiff seeking declaration of title claimed adverse possession. The learned Judge held, the plea of adverse possession can be raised only when the person admits the title in another and demonstrates that he had the animus to hold the property against that person and he also brought it to their notice. (v) Next, he referred to Thakur Kishan Singh v. Arvind Kumar, 1998 (1) CTC 241, where it was held that when initially possession is with permission, the burden of proof is very heavy on the person claiming adverse possession. (vi) Finally, he referred to the case of Santhosh Hazari v. Purushottam Tiwari, 2001 (1) C.T.C. 505 to support his case that unless there is substantial question of law, there can be no interference in second appeal and also for the proposition that a new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter.
(3.)IN any event, the learned counsel submitted that the appellant had not proved factually, when, his possession became adverse and both the courts had therefore held against him and therefore there is no substantial question of law for consideration in the second appeal.
The title of the respondent is not denied because it is the appellant's own case that the respondent's father transferred the property to him by oral sale. It is no doubt true as the learned senior counsel for the respondent pointed out in the written statement in O.S. No.238 of 1997 and in the plaint in O.S.No. 229 of 1997, there is reference to the suit property being a 'Poorviga Sothu' of the appellant, but that has not been the case of the appellant. Though in the suit for bare injunction O.S.No.229 of 1997, he had stated that the suit property belonged to him and it was ancestral, in the written statement filed in O.S.No.238 of 1997, he had clearly stated as follows: There is also a specific reference to, Ex.A1, the sale deed in favour of the respondent's father. The evidence of the appellant as D.W.1 also shows that he has admitted that the respondent's father purchased the property under Ex.Al and that he promised to sell the property and took Rs.2,000 as consideration thereof. But, no sale deed was registered since the respondent's father had to rush to Malaysia and that he promised to execute the sale deed on his return. It is an admitted fact that in 1957, the respondent father visited India once, but the appellant did not make any request or demand for execution of the sale deed in his favour. This, he admits even in the cross-examination. He also states that no one knew that his father gave the respondent's father money to purchase the suit property. There has been a partition deed in the family of the appellant amongst the appellant and his 3 brothers. This is Ex.A6. It is admitted both in chief and in cross-examination that the suit property which is claimed to have been purchased by his father was not included in the properties to be partitioned. It is on a consideration of the pleadings and the evidence that the court below came to the conclusion that it is difficult to accept the case of the appellant regarding the oral sale and the purchase for Rs.2,000. The finding of the courts below that there was no oral sale is one of fact and I cannot interfere with the same. The courts below also declared the title of the respondent that his father had purchased the suit property under Ex.Al, which is also admitted by the appellant, and as his heir, he had acquired title to the suit property. Therefore, the finding regarding title' to the suit property is also liable to be confirmed. The only other question which remains to be tested is whether the appellant has proved adverse possession and whether the discrepancy regarding the person to whom the suit property was entrusted raises a substantial question of law.

The adverse possession has been defined in Ejas Ali v. Special Manager, Court of Wards by the Privy Council as follows:

" The principle of law is firmly established that 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."
In S.M. Karim v. Mst.Bibi Sakina, A.I.R. 1964 SC 1254, the Supreme Court held thus:
"... Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. A mere suggestion in the relief clause that there was an uninterrupted possession for 'several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea "
Both these paragraphs are relied on by the learned Judge in the decision reported in S.Subha Reddiar and others v. bhagyalakshmi Ammal and another, 1996 (2) L.W. 31. As held by the learned Judge in this case, what was the adverse character and when it began, are matters within the exclusive knowledge of the person claiming it. He is the only person who knows when he had the positive animus against the title of the true owner and he should state it in the pleadings.