& Ors Vs. E.V. Padmanabhan & Ors  INSC 399 (21 December 1990)
K.N. (J) Saikia, K.N. (J) Fathima Beevi, M. (J)
1990 SCR Supl. (3) 709 JT 1991 (1) 83 1990 SCALE (2)1326
of India, 1950--Article 136--Concurrent findings of trial Court and High
Court--Interpretation of document of title and finding of existence of adverse
pos- session--Whether questions of law.
of Civil Procedure, 1908--Order 7, rule I--Suit for possession--Delivery
pursuant to Court's decree--Effect of--Question of adverse possession--When
of Property Act, 1882 Sections 54, 55(f)--Sale--Delivery
when takes place--Duty of seller indicated.
appellants-plaintiffs instituted a suit (O.S. No. 298/76) against the
respondents-defendants, for title and exclusive ownership of the
suit-properties in T.S. No. 666/2 and for recovery of possession and for
damages for wrongful use and occupation of the properties by the defendants.
appellants-plaintiffs' case was that originally the suit-properties were
joint-family properties of one Annay- yar, who adopted one Vakil Ramaswamy as
his son. After the adoption he had three aurasa sons-Ellayar, Sankaranarayana
Iyar and Meenakshisundaram Iyer.
21.8.1896, a partition was entered into between the Annayyar and his sons and
the properties including the suit-properties were allotted to the aurasa sons.
31.5.1926 over the properties, the aurasa sons exe- cuted a mortgage deed in favour
of one Yaghasami Iyer, who obtained a decree filing a suit (O.S. No. 147/1932).
4.7.1934 when the hypotheca was brought to sale by the mortgagee in execution
of the decree in O.S. No. 147/1932, the aurasa sons executed a subsequent
mortgage deed in favour of one Salem Bank.
9.12.1942, the Bank mortgaged the properties to the father of 710 the
appellants. While so, he also purchased vide a sale deed an undivided 1/3rd
share of the equity of redemption in the properties from Sankaranarayana Iyar,
one of the aurasa sons of Annayyar.
12.12.1942. Ellayyar, another aurasa son, entered into an agreement with the
father of the appellants for the sale of his 1/3rd share.
13 and 14, meanwhile, in collusion with Ellayyar brought into existence a sale
deed in their favour by antedating an agreement for sale of his share. This
forced the father of the appellants to file a suit (O.S. No. 202 of 1942)
against Ellayyar and his sons and the defend- ants 13 and 14, for specific
performance of the agreement for sale. The suit was decreed in favour of the
father of the appellants, against which appeal preferred, was also dismissed.
7.2.1945, in pursuance to the decree, the Court executed a sale deed in favour
of the father of the appel- lants, and symbolic possession of the properties
was taken by him.
appellants contended that their father had mortgage rights over the
suit-properties in T.S. No. 666/2 and he had become the owner of the equity of
redemption in respect of 2/3rd of the properties in T.S. No. 665 and T.S. No.
balance share of 1/3rd was purchased by the defendants 13 and 14 from Meenakshisundaram,
the youngest aurasa son of Annayyar, on 29.12.1942. The
father Of the appellants filed a suit for partition and separate possession of
the 2/3rd share (O.S. No. 54 of 1950) against the defendants 13 and 14. On
28.3.1950, a preliminary decree for partition and separate possession was
passed by consent Of the parties. When
the final decree proceedings were pending a compromise was entered into by the
parties, according to which, final decree was passed on 6.10.1950.
the final decree the properties were demarcated and allotted between the
parties and on 19.1.1953 the father of the appellants was issued possession
receipt, who could take only the symbolic possession of the properties, because
tenants were there in the properties. Since then the father of the appellants
and the appellants were in possession of the suit-properties. 711
Further the appellants-plaintiffs averred in the instant suit-plaint that a
portion of the land was acquired by the Municipality and in C.C. No. 3 of 1957
the Municipality was ordered to pay the appellants compensation for the land
acquired by it.
stated that the names of the appellants were recorded in Revenue Records and in
the Town Survey Field Register and the House Tax Demand Register of the
appellants were paying the Municipal Property tax of the house Door Nos. 268,
269, 270, 271, 271-A and 272 in T.S. No. 666/2 from 1.4.1964 to 30.9.1969, when
respondents-defendants 1 to 3 made objections and the Munic- ipality registered
the Door Nos. 272 in the name of the defendant No. 1, whereas Door Nos. 269,
270, 271 and 271-A were registered in the names of the defendants Nos. 2 and 3
and Door No. 268 in one Kalyana Sundaram's name.
appellants filed a writ petition against such alter- nations made by the
Municipality, which was dismissed by the High Court, as remedy was available by
their appeal was dismissed, by the Division Bench of the High Court, the
appellants-plaintiffs fried the instant suit (O.S. 298/ 1976).
No. 1's case was that the portion of the suit properties, consisting of Door
Nos. 269 to 272 became her father-in-law's properties under a family
arrangement, as he being the adopted son of Ammyyar. On his death, his son, the
husband of the defendant No. 1, became entitled to the properties in T.S. No.
666/2 and he was in possession and enjoyment thereof directly and through
1.5.1945 defendant No. 1's husband leased out a vacant site in T.S. No. 666/2
to the father of the defend- ants 2 to 4 for a period of 10 years, whereon the
lessee put up Door Nos. 269, 270, 271 and 271-A.
death of her husband, the defendant No. 1 granted fresh lease to the defendants
2 to 4, who sublet the build- ings to defendants 5 to 8.
defendant No. 1 stated that her predecessors and she was in continuous and
uninterrupted possession of the suit- properties in T.S. No. 666/2 for more
than 60 years and had perfected title to the suit- 712 properties by adverse
possession and the appellants-plain- tiffs did not have any right, title or
interest over the suit-properties. She also denied all other contentions of the
second defendant corroborated the facts stated by the first defendant and
adopted the written statement of the defendant No. 1. The
sixth defendant stated that he took Door No. 270 on lease from the father of
the defendants 2 to 4 to do busi- ness and the father-in-law of the defendant
No. 6, the de- fendant No. 7, took the Door No. 271 lease from the father of
the defendant Nos. 2 to 4 and later on the defendant No. 6, the
son-in-law of defendant no. 7 took possession of Door No. 271 from defendant
No. 7 and the business run by him therein. The defendant No. 6 adopted the
written statement of his lessors-defendants 2 to 4.
joint-written statement, the defendants 9 and 10 claimed to be in possession of
Door No. 272, which was belonging to the Mahaganapathi Dhandayathapani Swamy
temple of the Sambanda Swamy Matam. According to the defendants 9 and 10, their
father had been in occupation of the Door No. 272, as he was doing the services
in the temple and on his death, the defendants 9 and 10, being his sons, were
in possession and enjoyment thereof. They also averred that the proceedings in
O.A. No. 28 of 1970 were pending before the Deputy Commissioner, Hindu
Religions and Charitable Endow- ment with respect to Door No. 272. They had
perfected title to the property, which was in their possession for more than 50
contentions of the defendant No. 11 were that he was running petty shop in Door
No. 272 for more than 25 years and the H.R.& C.E. Board had issued notices
to all occupiers like him to surrender possession to the Sambanda Swamy Matam,
as the suit-properties belonged to the Matam.
12th defendant stated that Door No. 268, where he was residing originally
belonged to Ellayyar's family. On 14.11.1896, under a feed executed by the
members of Ellay- yar's family, the paternal grand father of the defendant 12
was permitted to live in Door No. 268, and to perform puja in their family
temple. The defendant had been performing pooja after the deaths of his grand
father and father. The defendant no. 12 stated that ever since 14.11.1896 he
and his pre-decessors-in-interest had been in possession and enjoyment of Door
Defendants 13 and 14 stated that in O.S. No. 54/1950 the properties were
divided between them and the father of the appellants plaintiffs' and same was
allotted and delivered to them. They took delivery of possession of the same,
wherein they had put up superstructures and subsequently affected partition
the respondents-defendants claimed that the appel- lantsplaintiffs had no
right, title or interest on the suit-properties in T.S. No. 666/2; that the
suit was barred by limitation; that plaintiff-appellants could not claim any
relief from them; and that all of them have perfected title, as they were in
uninterrupted and peaceful possession and enjoyment of the suit properties in
T.S. No. 666/2 since a long time.
the pendency of the suit, the defendant No. 15 was impleaded, being the legal
representative of the defend- ant No. 1, on her death.
the suit, the trial Court held that the appellants plaintiffs' had no title to
the suit properties, that the husband of the defendant No. 1 and his heirs had
been in possession and enjoyment of Door Nos. 269 to 272 through their tenants
for over the prescriptive period, that Door No. 272 and T.S. No. 666 were not
temple properties as contended by defendants 9 and 10, that the 12th defendant
was entitled to be in occupation of a portion of Door No. 268 in lieu of his
services to the temple.
their appeal to the High Court, the appellants-plain- tiffs contended that the
trial Court erred in coming to the conclusion that the plaintiffs had no title
to the suit properties; and that when once the title of the plaintiffs to the
suit properties was found in their favour, it was for the defendants to
establish that they had prescribed title to the suit properties by adverse
possession and limitation.
respondents-defendants contended that the title having been found in their favour,
the suit was rightly dismissed.
the appeal of the appellants, the High Court held that as the
appellants-plaintiffs had not proved their title over the suitproperties, they
were not entitled to a decree for recovery of possession of the
High Court also declined the leave to appeal.
this Court, the respondents raised a preliminary point contending that this
appeal against the concurrent findings of the Courts below 714 to be dismissed.
The appellants contended that the questions formulated by the High Court were
questions of law.
the contentions of the appellants that their father had derived title to suit
properties-the 2/3rd shares of the aurasa sons as Annayyar, on the basis of
sale deeds dated 19.12.1942 and 7.2.1945 executed in his favour about 38 years
prior to the filing of the instant suit, which were executed by the Court in
pursuance of the decree for specif- ic performance; that the defendants 13 and
14 purchased 1/3rd share of the 3rd aurasa son by the sale deed dated
29.12.1942; that all the three sale deeds expressly referred to the
suit-properties in T.S. No. 666/2, even though there was no reference as to the
boundaries and the High Court erred in not mentioning in its judgment the vital
fact that the sale deeds-the documents of title-expressly included the suitproperties;
that other documents like the mortgage deed dated 4.7.1934, the deed of
assignment of mortgage right dated 9.12.1942, the deed of mortgage dated
31.5.1921, the sketch and the revenue map etc. expressly referred to the
suit-properties; that though the instant suitproperties were not the subject
matter in the partition suit in O.S. No. 54 of 1950, between the father of the
appellants-plaintiffs and defendants 13 and 14, it would not affect their title
to the instant suitproperties; that by a process of argumentative inference
title was to be found in the certified copy of the original plaint; that the
defendant No. 1 only claimed title or possession related to Door Nos. 269 to
272 and defendant No. 12 (respondent No. 7) claimed the Door No. 268 on the
basis of permissive possession vide document dated 14.11.1896, that on the
questions of adverse possession of Door Nos. 269 to 272 by defendant No. 1 was
not justified, as per the witness evidence it was stated that the father-in-law
of defendant No. 1 was in possession only over Door No. 272 and it had
commenced by way of permissive possession only at the time of partition between
the father-in-law of defendant No. 1 and other members of the family and
permissive possession could not be converted into adverse possession because
the defendant No. 1 did not set up any evidence to prove that there was such
hostile title to the knowledge of the true owner; that the defendant
1(respondent No. 8) made sales of the suit properties to respondents 9 to 12.
respondents-defendants, on the other hand, contended that the concurrent
findings of the Court's below were based on the Exts. and the conduct of the
appellants-plaintiffs and their father through-out the litigation. Further they
contended that if really T.S. No. 666/2 belonged to the aurasa sons under the
partition deed, the plaintiffs' father would be entitled only to 2/3rd share in
the suit properties under the sale deeds 715 in Ext. A. 5 and A.8, and
defendants 13 and 14 would be entitled to the remaining 113rd share and the
instant plaint could have proceeded on the basis that the appellants-plain-
tiffs were entitled to only 2/3rd share and defendants 13 and 14 were entitled
to the remaining 1/3rd share, which was not the basis on which the present
plaint had been filed.
the appeal of the appellants-plaintiffs, this Court,
Concurrent findings of fact will not be disturbed unless it is shown that there
has been a miscar- riage of justice or the violation of some procedure or
principle or that they have been arrived at by reason of any error or method or
mistake through neglect of any aspect of the evidence, or important aspects of
the case escaped notice or failed to receive due emphasis, or that the forms of
legal:process were disregarded or principles of natural justice were violated
or substantial and grave injustice resulted or that it cannot be supported by
the evidence or it is perverse, or that the rule of prudence that the evi- dence
of an unreliable witness should not as accepted with- out corroboration has
been departed from. It is also true that they will not be disturbed on the
ground that inadmis- siable evidence was received, when the findings cannot on
any reasonable view be regarded as based or dependent upon such evidence.
In an appeal by special leave there has to be a substantial question of law.
Interpretation of a document of title is a question of law. [731H]
Construction of a document of title which was the foundation of the rights of
parties necessarily raises a question of law. [732B]
The question as to whether the possession of a person can be regarded in law as
adverse possession is partly a question of fact and partly a question of law.
[732D] Mithilesh Kumari v. Prem Benahi Khare,  2 SCC 95: J.T. 1989 (1) SC
v. Amar, AIR 1939 PC 249:44 CWN'66; Chunilal V. Mehta & Sons, Ltd v. The
Century Spinning and Manufactur- ing Co. Ltd., AIR 1962 SC 1314:  3 Supp.
SCR 549; Jadu Gopal. Panna Lal, AIR 1978 SC 1329:  3 SCR 855 and Meenakshi
Mills, Madurai v. The Commissioner of Income-tax, Madras, AIR 1956 SC 49:  SCR 691,
State Bank of Travancore v. A.K. Panikkar, AIR 1971 SC 996; Kesar Singh v. Balwant
Singh, AIR 1957 SC 487:  Supp. (1) SCR 325; Sabapathi v. Huntlay, AIR
1938 P.C. 91:173 IC 19; Sitalakshmi v. Venkata, 34 CWN 593, 597; Khoo Sit v.
Lim Thean.  AC 323, 325; Sarju v. Jwaleshwari, AIR 1951 SC 120: 
SCR 781; Radha Prasad v. Gajadhar, AIR 1960 SC 115:  1 SCR 663; Karbada
v. Chhaganlal, AIR 1969 SC 395; Robin v. National Trust Ltd., 101 IC 903: AIR
1927 PC 66; Watt v. Thomas,  AC 484, 486; Sara Veeraswami v. Talluri, AIR
1949 PC 32:1949 Mad. 487:75 IA 252; Benmak v. Austin Motor Co. Ltd.  1
All. E.R. 326, H.L. Bodhral v. Sitaram, 40 CWN 257:160 IC 45; AIR 1936 PC 60
and Virappa v. Periakaruppan, 49 CWN 2 11: AIR 1945 PC 35, referred to.
path of the Law (1897) in collected Legal Papers Page 173; Best 11th Ed. S.
In the instant case, while interpreting the Exts. A. 5 and A. 8, and the decree
one has to take into consider- ation what the Parties themselves intended. Quia
non refert out quis intionem suam declarat, verbis out rebus ipsis velfactis.
It is immaterial whether the intention be col- lected from the words used or
the acts done. Intention was manifested in the acts performed by the parties
concerned pursuant thereto. It was immaterial that T.S. No. 666 was there in
the deeds. Intentio mea imponit nomen operi meo. My intent gives name to my
act. Facta sunt potentiora verbis.
are more powerful than words. Factum cuique suum adversarie nocere debet. A
party's own act should prejudice himself, not his adversary. Traditio loqui facit
makes a deed speak. Delivery gives effect to the words of a deed. What was
delivered pursuant to the decree on interpretation of the sale deeds has to be
accepted as the parties themselves after night-long deliberation fixed and
The right to T.S. No. 666/2 having not been ac- quired at all, no question of
adverse possession against the plaintiffs would arise at all. The plaintiffs
case has to fail for want of proof of title to T.S. No. 666/2. [745E]
Adverse possession by nature implies the ownership of another. Where one person
is in possession of property under any title, and another person claims to be
the right- ful owner of the property under a different title, the possession of
the former is said to be adverse possession with reference to the latter.
Adverse possession is a statu- tory method of acquiring title to land by
limitation. It depends on animus or 717 intent of occupant to claim and hold
real property in oppo- sition to all the world; and also embodies the idea that
the owner of the property has knowledge of the assertion of ownership of the
Under Section 54 of the Transfer of Property. Act, delivery of tangible property
takes place When the seller places the buyer, or such person as he directs, in
posses- sion of the property. Under section 55(1) of that Act the seller is to
give, on being so required, the buyer, or such person as he directs, such
possession of the property as its nature permits. [746C]
In the instant case the father of the appellants was never proved to have
acquired ownership of T.S. No. 666/2. there is no evidence of T.S. No. 666/2
ever having been delivered to him. On the other hand the Commissioner's plan
and the partition decree did not include T.S. No. 666/2. It cannot, therefore,
be said that the father of the appellants acquired any title to it. Obviously
the appel- lants also could not inherit the same. [746B, D] Austin on
Jurisprudence P. 177, referred to.