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
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
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.
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
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. 
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-
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.
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: