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CASE NO.: Appeal (civil)  4880 of 2007

PETITIONER: Annakili

RESPONDENT: A. Vedanayagam & Ors

DATE OF JUDGMENT: 12/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.6500 of 2006)

S.B. Sinha, J.

1.      Leave granted. 2.      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 Board.  3.      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. 4.      Defendants claimed possession of the suit properties described in  Schedule \021A\022 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.   5.      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 6.      The 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 : \023In pursuance of the orders stated above, action is  being taken to allot land extending 18.5 sq. mtrs.   In Kamaraja 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.   Besides 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. You are hereby requested to apply in the pro forma

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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.\024

7.      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 said property.   8.      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\022 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 : \023Further, 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. In the 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.\024

9.      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.   10.     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 : \023(a) 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. (b)     to award past mesne profits at Rs.3,60,000/-

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jointly and severally towards past mesne profits. (c)     to award future mesne profit at the rate of  Rs.10,000/ per month jointly and severally. (d)     to award future mesne profit at the rate of  Rs.10,000/- per month jointly and severally.\024

10.     In their written statement, the appellant, inter alia, contended : (1)     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. (2)     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. (3)     The Defendant/Petitioner herein are in  continuous uninterrupted possession and  have perfected title by adverse possession. (4)     That the allotment of the Slum clearance  Board was only a recognition given to the  Defendants right to continue in possession  forever.\024 11.     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 limitation.  12.     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.  13.     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.        It was 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 the plaintiff-respondent.   14.     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.   It was 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.  15.     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 Madras. 16.     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

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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.   17.     It 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 situated.   18.     We 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 : \023In 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.\024        19.     It 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 : \023We 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.   That 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

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learned single Judge cannot be said to be unjust.   In any 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.\024   20.     Even 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.   21.     We 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 extinguished.   22.     Claim by adverse possession has two elements : (1) the possession of  the defendant should become adverse to the plaintiff; and (2) the defendant  must continue to remain in possession for a period of 12 years thereafter.   Animus 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.   23.     In Saroop Singh v. Banto & Ors. [(2005) 8 SCC 330], in which one of  us was a member, this Court held : \02329. 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 defendant\022s  possession becomes adverse. (See Vasantiben  Prahladji Nayak v. Somnath Muljibhai Nayak).    30. \023Animus possidendi\024 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.)\024

24.     The said statement of law was reiterated in T. Anjanappa & Ors. v.  Somalingappa & Anr. [2006) (8) SCALE 624 = (2006) 7 SCC 570], stating :

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\023It 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 owner\022s 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 former\022s hostile action.\024   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 : \023Therefore, 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.\024

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 : \023The 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.\024

27.     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.   28.     For the views we have taken, there is no infirmity in the judgment of  the High Court.  The appeal is dismissed.  No costs.