Vs. A. Vedanayagam & Ors  Insc 1051 (12 October 2007)
Sinha & Harjit Singh Bedi
out of SLP (C) No.6500 of 2006) S.B. Sinha, J.
Plaintiffs-Respondents are owners of the property in question. They purchased
the same from Corporation of Madras by a registered deed of sale dated
19.4.1944. The owners of the property, namely Krishnadoss Lala and his brother,
however, partitioned their suit properties on or about 5.5.1968 whereupon the
suit properties were allotted to the share of Krishnadoss Lala. After his
demise, the same vested in his heirs and legal representatives. They, along
with one Mohamed Idris and one K. Peer Mohideen entered into an agreement
whereby and whereunder, it was agreed that the property should be released from
the notification of the year 1973 issued by the Tamil Nadu Slum Clearance
Plaintiffs-Respondent herein purchased the suit properties not only from the
heirs and legal representatives of the said Krishnadoss Lala but also from the
said Mohamed Idris and K. Peer Mohideen for valuable consideration by a
registered deed of sale dated 30.9.1986.
Defendants claimed possession of the suit properties described in Schedule
A of the plaint therein since 1957. On or about 1.12.1972, the
Government of Tamil Nadu designated an area including the suit properties as
slum area. It was transferred to Tamil Nadu Slum Clearance Board.
Pursuant to a scheme undertaken by the World Bank in regard to sale of land
situated in Corporation Division No.122, Kamraja Puram, T. Nagar slum areas to
the persons who were in occupation of the portions thereof, the Department of
House and Urban Development, Government of Tamil Nadu issued two GOMs bearing
No.1117 dated 27.6.1979 and GOMs No.1100 dated 29.8.1980 in that behalf
suit property was allotted to the husband of the appellant as appears from a
letter dated 18.3.1981 which is to the following effect :
pursuance of the orders stated above, action is being taken to allot land
extending 18.5 sq. mtrs.
Puram Scheme Plot No.17 is allotted to you. You have to pay the necessary
amount in the following manner. A sum of Rs.89/- should be paid along with the
application. Later on you have to pay Rs.13/- as monthly installment (including
interest) for period of 10 years. On completion of 10 years and after payment
of all the installments the land will be given to you through a sale deed.
this you have to pay a sum of Rs.8/- per month towards development charges and
Rs.2/- per month towards water and drainage charges.
are hereby requested to apply in the pro forma annexed herein and to execute a
lease cum sale agreement document in favour of Slum Clearance Board within 7
days from the date of receipt of this notice. If you fail to send this
application with advance payment receipt, it is construed that you are not in
need of the land allotted to you and the same will be allotted to some other
person after evicting you from the premises.
Plaintiffs-respondents, however, moved the High Court by way of filing a writ
petition in the year 1989 for issuance of a writ of or in the nature of
mandamus directing the State of Tamil Nadu to denotify the land in question as a slum area and put them back in
the possession thereof. By a judgment and order dated 10.1.1990, the said writ
petition was allowed. The area in question was directed to be denotified and
the respondents herein were found entitled to obtain vacant possession of the
Appellant and other persons similarly situated were not parties therein. They
preferred a Writ Appeal before the Division Bench of the High Court which was
numbered as writ appeal No.272 of 1990. The Division Bench of the High Court by
a judgment and order dated 21.3.1990 found the title of the respondent herein
having regard to the admitted facts in the said proceedings, but upon holding
that as the appellants have ventured to put forth a case that their occupation
of the property relate back to 60 years which conferred the right to them
de hors the said proceedings and as direction to hand over the vacant
possession would result in dispossession of the third parties to which the
learned Single Judge had no occasion to advert to and adjudicate upon the
rights of the third parties, because they were not parties in the said writ
petition, directed :
there is a grievance, expressed by the learned counsel for the parties, that
without even a prayer, therefore, the learned Single Judge has directed
respondents 1 and 2 to declare that the property ceased to be a slum area. This
grievance is a tenable one and requires amelioration. There was no prayer at
all to the above effect. The enquiry into that question will take us into a
different sphere. Hence, we do not think it will be in order to make a
declaration that the property ceased to be a slum area.
said circumstances, we find a warrant to vacate and we do vacate the directions
of the learned single Judge to respondents 1 and 2 to declare that the property
ceased to be a slum area and also to hand over vacant possession of the
property to the petitioners. The prayer in the writ petition to the extent of
the denotification asked for alone could be and is being sustained. The other
controversies with reference to recovery of possession from the third parties
and the declaration with reference to the property ceasing to be a slum area
are left open.
Consequent upon the said decision of the Division Judge, the Government of
Tamil Nadu cancelled the earlier notification dated 1.12.1972 notifying the
suit properties as slum area.
Respondents filed a suit on 26.9.1995 which was marked as CS No.1485 of 1995
(re-numbered as 14770 of 1990) praying, inter alia, for the following reliefs :
direct the defendants to quit and deliver vacant possession of the premises
mentioned in Schedule B, C, D and E and remove all structures put up by the
defendants and in default direct the plaintiffs to remove the structure and
recover the cost from the defendants.
award past mesne profits at Rs.3,60,000/- jointly and severally towards past mesne
award future mesne profit at the rate of Rs.10,000/ per month jointly and
award future mesne profit at the rate of Rs.10,000/- per month jointly and
their written statement, the appellant, inter alia, contended :
That the Plaintiffs have not filed a suit for declaration of title but merely a
suit for possession which is not maintainable inasmuch as the title of the
Plaintiffs/Respondents herein have been denied in all proceedings.
That the Plaintiffs/Respondents herein are not the owners of the property and
have not been in possession of the property from 19.4.1944 onwards.
The Defendant/Petitioner herein are in continuous uninterrupted possession and
have perfected title by adverse possession.
That the allotment of the Slum clearance Board was only a recognition given to
the Defendants right to continue in possession forever.
The learned Trial Judge dismissed the said suit opining that the suit land had
been in occupation of the appellants for a long time and that they have
acquired title by adverse possession. The suit was also held to be barred by
reason of the impugned judgment, the High Court allowed the appeal filed by the
respondents herein directing the appellant to deliver possession of the
property to the respondents.
Mr. Dayan Krishnan, learned counsel appearing on behalf of the appellants,
would submit that the High Court proceeded on an erroneous basis that the title
of the suit property was not in dispute.
submitted that the High Court committed a serious error in opining that the
appellant had no animus to possess the suit property adverse to the interest of
Evidences on record would clearly show, Mr. Krishnan would submitted, that the
appellant had been in continuous possession for more than 60 years and, thus,
they had perfected their title by adverse possession.
urged that the Respondents having not sought for any relief in regard to
declaration of their title, the suit will be governed by Article 64 and the
Schedule appended to Article 65 of the Limitation Act, 1963.
Mr. V. Raghavachari, learned counsel appearing on behalf of the respondents, on
the other hand, drew attention of this Court not only to the findings of the
Division Bench of the High Court in Writ Appeal No.272 of 1990 but also to
another writ application filed by the appellant herein in the year 1989 and the
judgment passed therein as also in the writ appeal to contend that in view of
the findings of the Division Bench of the High Court in the aforementioned writ
proceedings which was disposed of in the year 1991, limitation, if any, would
start running only from the said date and not prior thereto. It was contended
that the petitioner had never asserted any right in them but had all along
being asserting their title under the settlement made by the Corporation of
The fact that title of the land was with Corporation of Madras is not in
dispute. It is furthermore not in dispute that the Corporation of Madras had
transferred the suit property in favour of Mr. Krishnadoss Lala. Despite the
fact that the Corporation of Madras had divested itself of the said property,
it erroneously transferred the same in favour of Tamil Nadu Slum Clearance
Board on 1.12.1973. Pursuent thereto, certain development activities were taken
by the Board. At that point of time, Shri Krishnadoss Lala submitted a
representation to the Corporation of Madras stating that although the property
belonged to him, the same was illegally transferred to the Tamil Nadu Slum
Clearance Board. The Corporation accepted the said mistake on its part and
informed the Tamil Nadu Slum Clearance Board thereabout. A request was made to
the Board to exclude the said property from the list of properties owned by the
Slum Clearance Board. The predecessors and representatives of the respondent
thereafter paid the development charges incurred by the Slum Clearance Board. A
request was made by the Board to denotify the Slum area but the State did not
take any action thereupon.
was in the aforementioned factual scenario, the writ petition was filed.
Appellant herein indisputably had been claiming title only on the basis of
purported settlement made in their favour by the Tamil Nadu Slum Clearance
Board. It was not their case that even prior to 1.12.1972 when the area was
declared as slum area, they have acquired title by adverse possession. Indisputably,
therefore, the Corporation of Madras or Tamil Nadu Slum Clearance Board did not
have any title in the suit property. They could not have transferred any right,
title and interest in the said land to the appellants and others similarly
may notice that the appellant, in him writ application filed before the High
Court of Judicature at Madras being writ petition No.7785 of
1987, stated :
accordance with the scheme the slum dwellers of Kamarajapuram were provided
with the bank loan for constructing their houses or putting up construction. We
understand that financial assistance was availed from World Bank for
construction drainage, toilet and bathroom facilities and as well as for making
water supply to the slum dwellers of Kamarajapuram. We obtained the Loan form
bank as already submitted through the Slum Clearance Board and put up new
constructions after obtaining sanction from the Corporation, and are in
possession and enjoyment of our respective land and superstructure. We were paying
the installments towards sale consideration and towards bank loan and also
development charges etc., since 1981.
was under the said title, therefore, the appellant and others had been claiming
the land. They had been paying installments to the Slum Clearance Board. In the
writ petition filed by the appellants and others, a prayer was made for
issuance of direction to the Slum Clearance Board to accept instalments from
them. The said writ petition was dismissed. A writ appeal preferred thereagainst,
inter alia, by the appellant herein, was dismissed by a Division Bench of the
High Court, holding :
have heard learned counsel for the parties at length and perused the materials
on record. It is seen from the facts narrated above, that after 19.4.1944 sale,
the property in question does not belong to the Corporation of Chennai. The
transfer of the property thereafter to the Slum Clearance Board on 17.12.1973
is only a mistake.
apart, the owners of the property have said the amounts spent by the Slum
Clearance Board for the development of the property and had also paid
compensation to most of the slum dwellers for their resettlement. They have
also agreed to pay compensation to the remaining slum dwellers for their
resettlement. The order directing denotification has been upheld by the
Division Bench in W.A. No.272 of 1990 and the appellants had not agitated this
issue at the appropriate time, when they had the knowledge of the decision
dated 21.3.1990 and also when G.O. was issued on 16.5.1991 pursuant thereto.
Civil Suit is pending only for possession. Under the circumstances, the
arguments advanced by the appellants now are not sustainable, as the same had
not been agitated at the appropriate time. As such, the order of the learned
single Judge cannot be said to be unjust.
view of the matter, in the facts of the given case, we do not find any error or
illegality in the order of the learned single Judge so as to call for
interference. The writ appeal is, therefore, dismissed.
in the said writ petition, the appellant did not claim any independent right on
the basis of adverse possession or otherwise. We have noticed hereinbefore that
the writ application filed by the respondents herein directing the Government
of Tamil Nadu to issue a notification denotifying the area as Slum area was
allowed by the learned Single Judge. The said finding of the learned Singel
Judge was not overturned. The Division Bench, while upholding the title of the
respondents in relation to the said land, was of the opinion that the learned
Single Judge was not correct in directing handing over of possession of the
suit properties in favour of the respondents, although the appellant and
persons similarly situated were in possession thereof. In the aforementioned
premise, it was not necessary for the respondents to file a suit for a
declaration of their title. Appellant had preferred the said appeal. The
decision of the Division Bench was rendered in presence of the appellant. The
judgment of the Division Bench of the High Court operates as res judicata. The
finding in regard to the title of the respondents had attained finality.
cannot accept the submission of Mr. Dayan Krishnan that it was obligatory on
the part of the respondent to file a suit for declaration of their title also.
As the title of the respondents in the suit property had already been
adjudicated upon, a suit for recovery of possession on the basis of the said
title attracted Article 65 of the Schedule appended to the Limitation Act 1963.
In terms of the said provision, it was for the appellant to show that she and
her predecessor had been in possession of the suit property on the basis of the
hostile title and as a result whereof the title of the plaintiff- respondent
Claim by adverse possession has two elements :
possession of the defendant should become adverse to the plaintiff; and
defendant must continue to remain in possession for a period of 12 years
possidendi as is well known is a requisite ingredient of adverse possession. It
is now a well settled principle of law that mere possession of the land would
not ripen into possessory title for the said purpose. Possessor must have
animus possidendi and hold the land adverse to the title of the true owner. For
the said purpose, not only animus possidendi must be shown to exist, but the
same must be shown to exist at the commencement of the possession. He must
continue in said capacity for the period prescribed under the Limitation Act.
Mere long possession, it is trite, for a period of more than 12 years without
anything more do not ripen into a title.
Saroop Singh v. Banto & Ors. [(2005) 8 SCC 330], in which one of us was a
member, this Court held :
In terms of Article 65 the starting point of limitation does not commence from
the date when the right of ownership arises to the plaintiff but commences from
the date the defendants possession becomes adverse. (See Vasantiben Prahladji
Nayak v. Somnath Muljibhai Nayak).
Animus possidendi is one of the ingredients of adverse possession.
Unless the person possessing the land has a requisite animus the period for
prescription does not commence. As in the instant case, the appellant
categorically states that his possession is not adverse as that of true owner,
the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd.
Ali v. Jagadish Kalita Para 21.)
The said statement of law was reiterated in T. Anjanappa & Ors. v. Somalingappa
& Anr. [2006) (8) SCALE 624 = (2006) 7 SCC 570], stating :
is well-recognised proposition in law that mere possession however long does
not necessarily mean that it is adverse to the true owner. Adverse possession
really means the hostile possession which is expressly or impliedly in denial
of title of the true owner and in order to constitute adverse possession the
possession proved must be adequate in continuity, in publicity and in extent so
as to show that it is adverse to the true owner. The classical requirements of
acquisition of title by adverse possession are that such possession in denial
of the true owners title must be peaceful, open and continuous. The
possession must be open and hostile enough to be capable of being known by the
parties interested in the property, though it is not necessary that there
should be evidence of the adverse possessor actually informing the real owner
of the formers hostile action. 25. Yet recently, in P.T. Munichikkanna
Reddy & Ors. v. Revamma & Ors. [(2007) 6 SCC 59], this Court noticed
the recent development of law in other jurisdiction in the context of property
as a human right to opine :
it will have to be kept in mind the courts around the world are taking an
unkind view towards statutes of limitation overriding property rights. 26.
We may also notice that this Court in M. Durai v. Muthu & Ors. [(2007) 3
SCC 114], noticed the changes brought about by Limitation Act, 1963, vis-`-vis,
old Limitation Act, holding :
change in the position in law as regards the burden of proof as was obtaining
in the Limitation Act, 1908 vis-a-vis the Limitation Act, 1963 is evident.
Whereas in terms of Articles 142 and 144 of the old Limitation Act, the
plaintiff was bound to prove his title as also possession within twelve years
preceding the date of institution of the suit under the Limitation Act, 1963,
once the plaintiff proves his title, the burden shifts to the defendant to
establish that he has perfected his title by adverse possession.
Appellant herein, it will bear repetition to state, did not raise any claim on
adverse possession prior to the filing of the aforementioned writ appeal. She
and her husband has been claiming title only through or under the Board. No
independent title was claimed. Respondents, on the one hand and the Corporation
of Madras, Slum Board and the Government of Tamil Nadu on the other were
litigating since 1973. They accepted the title of the respondents. Respondents
also reimbursed the Board in regard to the expenditure incurred by them. In the
aforementioned fact situation, it is not possible to hold as has been contended
by Mr. Dayan Krishnanan, that the Division Bench posed unto itself a wrong
question leading to a wrong answer or the appellant had acquired title by
adverse possession or otherwise.
For the views we have taken, there is no infirmity in the judgment of the High
Court. The appeal is dismissed. No costs.