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PETITIONER: K.V. SWAMYNATHAN AND ORS.

       Vs.

RESPONDENT: E.V. PADMANABHAN AND ORS.

DATE OF JUDGMENT21/12/1990

BENCH: SAIKIA, K.N. (J) BENCH: SAIKIA, K.N. (J) FATHIMA BEEVI, M. (J)

CITATION:  1990 SCR  Supl. (3) 709  JT 1991 (1)    83  1990 SCALE  (2)1326

ACT:     Constitution  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.     Code of Civil Procedure, 1908--Order 7, rule I--Suit for possession--Delivery  pursuant  to  Court’s   decree--Effect of--Question of adverse possession--When arises.     Transfer   of   Property   Act,   1882    Sections   54, 55(f)--Sale--Delivery  when  takes  place--Duty  of   seller indicated.

HEADNOTE:     The  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.     The 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.     On  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.     On  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).     On  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. On  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.     On  12.12.1942.  Ellayyar, another aurasa  son,  entered into an agreement with the father of the appellants for  the

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sale of his 1/3rd share.     Defendants  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.     On  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.     The 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.  666. The  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.      As per 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.     It  is  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 Municipal- ity.     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.     The 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 suit.     When  their appeal was dismissed, by the Division  Bench of  the  High  Court, the  appellants-plaintiffs  fried  the instant suit (O.S. 298/ 1976).     Defendant 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

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properties  in T.S. No. 666/2 and he was in  possession  and enjoyment thereof directly and through tenants.     On  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.     On the 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.     The 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 plaintiffs.     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.     In the 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 years.     The 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.     The  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 No. 268. 713     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 between them.

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   All  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.     During  the pendency of the suit, the defendant  No.  15 was impleaded, being the legal representative of the defend- ant No. 1, on her death.     Dismissing  the  suit,  the trial Court  held  that  the appellantsplaintiffs’  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.     In 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.     The  respondents-defendants  contended  that  the  title having  been  found in their favour, the  suit  was  rightly dismissed.      Dismissing 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  suit-properties. The High Court also declined the leave to appeal.      In  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.     It  was  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

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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.     The 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. Dismissing  the  appeal of the  appellants-plaintiffs,  this Court,     HELD:  1.01.  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. [731B-D]     1.02.  In an appeal by special leave there has to  be  a substantial question of law. [731D] 1.03. Interpretation of a document of title is a question of law. [731H]     1.04. Construction of a document of title which was  the foundation  of  the rights of parties necessarily  raises  a question of law. [732B]     1.05.  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, [1989] 2 SCC 95: J.T. 1989 (1) SC 275, Distinguished.     Kaolapati  v. Amar, AIR 1939 PC 249:44 CWN’66;  Chunilal V. Mehta & Sons, Ltd v. The Century Spinning and Manufactur-

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ing Co. Ltd., AIR 1962 SC 1314: [1962] 3 Supp. SCR 549; Jadu Gopal.  Panna  Lal, AIR 1978 SC 1329: [1978] 3 SCR  855  and Meenakshi Mills, Madurai v. The Commissioner of  Income-tax, Madras, AIR 1956 SC 49: [1956] SCR 691, followed. 716     State  Bank of Travancore v. A.K. Panikkar, AIR 1971  SC 996;  Kesar Singh v. Balwant Singh, AIR 1957 SC 487:  [1962] 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. [1912] AC 323, 325; Sarju v.  Jwaleshwari, AIR  1951 SC 120: [1950] SCR 781; Radha Prasad v.  Gajadhar, AIR  1960 SC 115: [1960] 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, [1947] AC 484,  486;  Sara Veeraswami  v. Talluri, AIR 1949 PC 32:1949 Mad.  487:75  IA 252; Benmak v. Austin Motor Co. Ltd. [1955] 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.     The  path  of the Law (1897) in collected  Legal  Papers Page 173; Best 11th Ed. S. 12-Referred to.     2.01. 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. Facts  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  certain. Delivery  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 accepted. [745B-D]     2.02  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]     2.03. 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 occupant. [745F]     3.01. 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]     3.02.  In the instant case the father of the  appellants was  never  proved to have acquired ownership  of  T.S.  No.

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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.

JUDGMENT: