Subbathal Vs. Arunachala Gounder (Died) and ors. - Court Judgment

A. Kulasekaran, J.

1. The Plaintiff is the appellant in this second appeal who has filed the suit in O.S. No. 217 of 1977 on the file of District Munsif Court, Thiruppur for injunction which was decreed. The appeal in A.S. No. 16 of 1981 filed by the defendants 1 and 2/respondents 1 and 2 herein before the Sub Court, Tiruppur was allowed on 20.03.1982, which was challenged by the appellant by filing the above said Second Appeal No. 1463 of 1982 and the same was disposed of, the matter was remanded back to the trial court for fresh disposal by Order dated 30.03.2001. In and by the said order dated 30.03.2001, the appellant was also permitted to include the relief of declaration. As against the same, respondents 5 and 6 herein have filed Civil Appeal No. 7620 of 2002 before the Honourable Supreme Court, which remitted back the matter to this Court by Order dated 22.11.2002 wherein it was held thus:

For the aforegoing reasons, the impugned order of the High Court is partly modified. Instead, it is directed that:

(i) The order to the extent remanding the case to trial court is set aside. The High Court shall retain seisin of the case;

(ii) The legal representatives shall be brought on record in the appeal itself;

(iii) The plaintiffs shall be permitted to add the relief of declaration in the plaint, as allowed by the High Court and after affording the defendant an opportunity of incorporating consequential amendment, the additional evidence shall be recorded under the orders of the High Court in the manner prescribed by Order 41 Rule 27-28-29 of the CPC;

(iv) The appeal shall thereafter be heard afresh on merits and disposed of in accordance with law.

The appeal stands disposed of in the above terms.

2. Pursuant to the said order passed by the Honourable Supreme Court the appellant herein has filed CMP No. 13772 of 2005 praying for amendment of the plaint in O.S. No. 217 of 1977 to include the relief of declaration and the same was allowed by this Court on 02.12.2005. The appellant herein filed CMP No. 10389 of 2006 to delete the names of the respondents 3 and 4 in the appeal which was also allowed on 16.11.2006 as the respondents therein have not opposed.

3. Before the trial court, the Plaintiff has marked Exs. A1 to A94 and the Plaintiff examined herself as PW1, Murugaswami Gounder, Periaswami Gounder, P. Ramaswami and Venkitaraman were examined as Pws 2 to 5 respectively. On behalf of the defendants, Exs. B1 to B15 were marked and 2nd and 3rd defendants were examined as Dws 1 and 2 respectively.

4. For the sake of convenience, the parties are referred to as they were arrayed in the second appeal.

5. The appellant is sister of the second respondent. The first respondent is the husband of the second respondent. The respondents 5 and 6 are sons of Respondents respondents 1 and 2 who were impleaded as legal heirs after the death of respondents 1 and 2.

6. The case of the appellant is as follows:

The plaint mentioned properties originally belonged to Palani Gounder, father of the appellant herein. The said Palani Gounder died leaving behind his wife Ponnammal, son Easwaran and four daughters namely Palanathal/2nd respondent herein, Meenakshi, Perumathal and Subbathal @ Nanjammal/appellant herein. According to the appellant, she was married to Subramania Gounder @ Subbanna Gounder, as second wife. The first wife of the said Subramania Gounder was the said Perumathal, one of her sister. After the death of the appellant's father namely Palani Gounder, his wife Ponnammal along with her minor son Easwaran were in possession and enjoyment of the suit properties. The said Easwaran died unmarried. Thereafter, the appellant and her mother were in possession and enjoyment of the suit property. After the death of her mother, the appellant alone has been in possession and enjoyment of the suit properties as an absolute owner by paying taxes and charges to the authorities concerned. The appellant has also installed an oil engine and obtained agriculture electricity service connection in SC No. 285. In the meanwhile, the first respondent herein has filed a suit in O.S. No. 354 of 1953 before the District Munsif Court, Thirupur for recovery of possession and arrears of rent against Subramania Gounder @ Subbana Gounder, Paramathal, Palani Ammal, Meenakshi Ammal and the appellant herein. In other words, the said suit was filed against his wife, sisters-in-law and co-brother. The said suit was dismissed on 13.02.1956 on the ground that the relationship of lessor and lessee was not proved. As against the dismissal of the said suit, no appeal has been filed and it reached finality. The authorised Officer under the Land Reforms Act Coimbatore has issued a Memo dated 05.08.1974 for acquisition of three out of eight items of suit properties and the State Government has also issued Gazzette Notification in Part VI dated 06.02.1974 notifying the said three items of lands in S.F. Nos. 359, 24 and 20 as surplus lands, which support her claim that she was in possession and enjoyment. On 28.04.1977, the respondents 3 and 4 attempted to interfere with the appellant's possession and enjoyment of the suit properties, which was prevented by her, hence, the suit was filed for bare injunction. Now, an additional relief of declaration is included.

7. The case of the respondents 1, 2, 5 and 6 are as follows:

The suit properties belonged to the appellant by virtue of long possession is false. The suit properties never belonged to the father of the appellant, but belonged to Periyasami Gounder, who executed Ex.B4, Will dated 13.01.1947 in favour of Subbanna Gounder, brother of Palani Gounder and father of respondents 3 and 4 herein (given up). The said Subbanna Gounder has entered into a deed of partition dated 23.03.1949 with the first respondent and one Peramiah. The said Perammiah got his share separated and the first respondent and Subbanna Gounder was allotted the suit properties and other properties. Subbanna Gounder, under Ex.B7 dated 27.04.1950 settled his share in favour of his wife Karunai Ammal, who is the sister of the first respondent herein and also mother of the 3rd and 4th respondents. The suit property was let out on lease by the first respondent to Ponnammal, mother of the appellant and second respondent, for non payment of rent and for recovery of possession, O.S. No. 354 of 1953 was filed, which was dismissed on 13.02.1956. The appellant was never in possession of the suit property. The averment that appellant is paying kist is incorrect. Neither the father of the appellant namely Palani Gounder, her mother Ponnammal, her brother Easwaran nor the appellant were in possession of the suit property at any point of time and their plea of exclusive or adverse possession are not true.

8. When the above second appeal was disposed of on 30.03.2001, this Court observed that the respondents 3 and 4 herein were not necessary parties, hence, the appellant herein has filed CMP No. 10389 of 2006 praying to delete their name, which was not opposed by the respondents and the same was allowed on 16.11.2006.

9. The respondents 3 and 4 are given up. The respondents 5 and 6 are legal heirs of deceased respondents 1 and 2, as between whom the matter is substantially in issue has to be decided in this second appeal.

10. After the order of remand passed by the Honourable Supreme Court, the below mentioned substantial questions of law arise for consideration:

(i)Is not the plaintiff entitled to declaration of title by adverse possession especially when the suit filed by the first defendant in O.S. No. 354 of 1953 based on Lessor and Lessee relationship has been dismissed?

(ii)On the fact of the dismissal of O.S. No. 354 of 1953 filed by the first defendant as early as on 13.02.1956, holding that there is no relationship of Lessor and Lessee and especially when the first defendant had not filed any suit for recovery of possession, has not the plaintiff perfected title by adverse possession at any rate from the date of the dismissal of the suit on 13.02.1956 ?

(iii)When once it is held that plaintiff has title, is she not entitled to injunction based on possession ?

11. Mr. S.V. Jayaraman, learned Senior Counsel appearing for the appellant submits as follows:

The appellant herein has filed a suit in O.S. No. 217 of 1977 for permanent injunction, which was decreed on 28.08.1980. The appellant has pleaded in paras 5 and 6 of the plaint with respect to adverse possession. In para 13, the appellant has stated that the respondents have no right or title to the suit property; that even assuming, they have any right or title, they are the ousters; that the appellant has perfected her title by prescription by adverse possession in the suit properties. The trial Court after perusal of Exs. A.1 to A.94 marked by the appellant herein, discussed with respect to possession relying on the said documents and found that the appellant is in possession of the suit properties for more than 12 years. In para 17 of the judgment, it is specifically found that the plaintiff has proved her adverse possession. P.Ws.4 and 5, the Village Munsif and Village Karnam respectively have categorically deposed that the appellant is in continuous possession of the suit properties. The suit in O.S. No. 354 of 1953 has been filed by the first defendant herein against the appellant, her husband and her sisters for eviction and for arrears of rent on the ground that they were tenants, which was dismissed on 13.02.1956, rejecting the plea of the relationship of Lessor and Lessee claimed by the plaintiff in that suit. Even if the said date of dismissal is taken into account, the appellant has been in possession for over the statutory period thereby prescribed her title by adverse possession; that even after the amendment of the plaint seeking additional relief of declaration is ordered, the respondents have not filed any additional written statement. The trial Court rightly decreed the suit and granted the relief of injunction, but the first appellate Court erroneously found that the appellant is not in possession and enjoyment of the property which is not referable to the title. Now the Honourable Supreme Court permitted the appellant to amend the plaint, thereby included the relief of declaration of her title to the suit property. Any event, taking into account the date of dismissal of the suit in O.S. No. 354 of 1953, ever since the said date, the appellant is in undisturbed continuous possession for over a statutory period till the date of filing the suit in O.S. No. 217 of 1977. Hence, she is entitled to the relief of declaration as well as the consequential relief of injunction also and prayed for setting aside the judgment decree passed by the first appellate Court.

12. In support of his contention, the learned Senior Counsel appearing for the appellant placed reliance on the decision reported in Bondar Singh v. Nihal Singh : [2003]2SCR564 wherein in para 5 and 6 it was held as follows:

5. According to the notice, the plaintiffs were trespassers on the suit land and were liable to hand over its possession to the defendants. This notice is an admission on the part of the defendants that the plaintiffs were in possession of the suit land at least on the date of the notice i.e. 16-4-1956. The notice was followed by an application dated 8-5-1956 (Exhibit P-3), filed by the defendants under Section 58 of the Madhya Bharat Land Revenue and Tenancy Act, 1950 before the Revenue Authorities. In the said application the defendants admit that the land in question was in possession of the plaintiffs since the lifetime of their father. It is further admitted that the land was being cultivated by the plaintiffs. It was prayed in the said application that the plaintiffs be declared trespassers over the suit land and possession of the land be given to the defendants. In their reply to the application, the present plaintiffs denied the allegation that they were trespassers on the suit land; they refer to the sale deed of 9-5-1931 by Fakir Chand in favour of their predecessor. Thus the plaintiffs were all along asserting that they were in possession of the land in their own right. The Tahsildar vide his order dated 3-10-1959 dismissed the said application of the defendants. He relied on an admission on the part of Punam Chand, eldest son of Fakir Chand that the present plaintiffs were in possession for the last 26-27 years. Relying on the said statement the Revenue Authorities held that since possession of the present plaintiffs was continuing for the last 26-27 years they could not be dispossessed from the suit land. The application of the defendants was dismissed. The defendant filed an appeal against the said order which was also dismissed on 6-8-1962. A copy of the order of the Tahsildar is Exhibit P-8 while a copy of the order of the Appellate Authority i.e. SDO is Exhibit P-9. These judgments of the Revenue Authorities establish that at least till 1962 the plaintiffs were in possession of the suit land. They also totally nullify the assertion of the defendants in their written statement in the present suit that they had taken possession of the suit land in 1957-58. If they had taken possession of the suit land in 1957-58, why were they pursuing the matter before the Revenue Authority till 1962 when the appeal was contested before the SDO and the decision of the SDO was given on 6-8-1962?

6. It appears that having failed to obtain possession of the suit land through lawful means, the defendants tried to dispossess the plaintiffs forcibly which led to the present suit being filed on 15-4-1972. The claim of the defendants regarding taking possession of suit land from the plaintiffs in 1957-58 having been found to be false, it follows that the defendants never came into possession of the suit land. Another significant conclusion which follows from these facts is that the defendants started asserting their title to the suit land since at least 1956 when they issued the notice Exhibit P-6 while the plaintiffs have been denying their title to the suit land and were setting up their own title to the same. This lends support to the plea of adverse possession set up by the plaintiffs. It will be seen from this clear and clinching evidence on record that the plaintiffs were in continuous and uninterrupted possession of the suit land since 1931 and they had been setting up a hostile title thereto as against the defendants. The defendants were asserting their title to the land since 1956. They had, however, failed to get possession of the suit land. The plea of adverse possession raised by the plaintiffs is thus clearly established'

13. The learned Counsel appearing for the 5th respondent submitted that the suit in O.S. No. 217 of 1977 filed by the appellant for bare injunction was decreed on 28.09.1980 erroneously by the trial Court. However, the appeal filed by their father and mother in A.S. No. 16 of 1981 was allowed holding that the appellant has no right over the suit property. Mere dismissal of O.S. No. 354 of 1953 does not confer any right to the appellant. The claim of adverse possession set up by the appellant herein is not legally sustainable. There is no valid evidence to prove that the appellant was in uninterrupted continuous possession of the property for a statutory period in hostile to the real owners, viz. parents of respondents 5 and 6. There is no substantial question of law involved in the second appeal and prayed for dismissal of the same.

14. In support of his contention, the learned Counsel for the 5th respondent has placed reliance on the decision reported in (P.S.M. Ahamed Abdul Khader v. T.K. Mohammed Abubucker) : AIR2002Mad213 , in which, a Division Bench of this Court held as follows:

Even though the defendants have stated in their written statement that they were in possession of the suit property far more than the statutory period, they have not indicated as against whom they were possessing property adversely, when the adverse possession started and when they have perfected their title by adverse possession.

15. He further placed reliance on the decision reported in (Kashi Bai v. Sudha Rani Ghose) : [1958]1SCR1402 wherein in para 7, it was held thus:

7. Even though it may not be necessary for the purpose of establishing adverse possession over a coal mining area to carry on mining operation continuously for a period of 12 years, continuous possession of the mining area and the mine would be a necessary ingredient to establish adverse possession. What has been proved by the appellant is that the two inclines opened by Bennett were worked in 1917 or 1918 by the predecessor in interest of the appellant, there were no mining operations till 1923 when they were restarted and were continued till 1926. The operations ceased in 1926 and were recommenced in 1931 and carried on till 1933 when they ceased again till 1939 and whether they were carried on in 1939 or not is not quite clear but there were no operations from 1939 to 1944 when they were recommenced by the appellant. During the period when there were no mining operations no kind of possession of the appellant has been proved and thus the presumption of law is not rebutted that during the period when the operations had ceased to be carried on the possession would revert to the true owner.

16. The appellant herein has marked Exs.A.1 to A.94 and examined herself as P.W.1, one Murugaswami Gounder as P.W.2, Periaswami Gounder as P.W.3, Ramaswami Gounder as P.W.4 and one Venkitaramanan as P.W.5. The respondents have marked Exs.B.1 to B.15 and examined the second defendant as D.W.1 and one Eswaramurthi as D.W.2.

17. The trial Court found that in Exs. A.89 to A.94 - Adangal for the fasli 1382 to 1387 the name of the appellant is found mentioned; that in Ex.A.11 to A.13 - the settlement proceedings also issued in her name; that Exs.A.50 and A.78 dated 12.08.1974 and 06.02.1974 respectively are the communications to the appellant by the authorities under Land Ceiling Act; that Exs.A.47 to A.49 dated 05.06.1978, 12.06.1978 and 12.06.1978 respectively are the copies of the receipts stating that the appellant has borrowed loans; that Ex.A.4 is the deposition of Paramathal in O.S. No. 354 of 1953, wherein she claimed right over the suit property denying the title of the respondents herein; that Ex.As.51 to A.57 are the electricity receipts between the period from 1975 to 1978; that Ex.14, proceedings of Agricultural Income Tax Officer; Exs. A15 to to A.17 are demand notices issued by the Agricultural Income Tax Officer, A.20, A.21, A.79, A.82 dated 26.10.1974, 28.03.1974, dated: Nil and 08.07.1972 respectively are the kist receipts in the name of the appellant by the department; that Ex.A.81 - re-survey settlement register dated 27.02.1979; that Ex.A.45 - the ownership certificate issued by the Tahsildar relating to the property comprised in S. No. 29; the trial Court also considering the evidence of P.Ws.4 and 5, the Village Munsif and Village Karnam respectively, who spoke about the possession of the appellant as well as patta issued in her name, came to the conclusion that the appellant herein has proved her possession for more than the prescribed period.

18. The first appellate Court discussed the oral and documentary evidence and pointed out that Ex.A1, kist receipts for the suit property relating to 1946 not in the name of the appellant at all but jointly in the name of the first respondent and her mother; Ex.A10, patta book in the name of the appellant, but date of issue is not mentioned; Ex.A11 and A12 are proceedings under Section 22(1) of Tamil Nadu Minor Inams Act (Act 30/43) both dated 08.08.1970 not support the plea of adverse possession; Ex.A13, Patta, no date of issue is found, based on it, no decision can be arrived as to whether the appellant was in continuous possession for more than 12 years; Ex.A14 to A17, A20 and A21, demand notices from Agricultural Income Tax Department to appellant after 1970; Exs. A18 to A23 for 1971, 1973-1974, 1972-1973, 1970-1971 etc., Ex.A23 issued in the name of Paramathal, others in the name of appellant; Ex.A24 to A34 kist receipts in which Exs. A24 and A25 were issued jointly to appellant, Peramathal and one Subramania Gounder, hence, those documents not help the appellant herein for the plea of adverse possession; Exs. A35 to A44, kist receipts which are issued after 1967; Ex. A45, certificate issued by Tahsildar, which not support the appellant's case; Ex.A47 to A49, loan borrowed after the suit by the appellant; Exs. A51 to A77, Electricity Board receipts not support the case of the appellant to prove that she was in exclusive possession of all suit properties; Exs. A72, Gazzette Publication dated 06.02.1974 not valid evidence to support the appellant's right or possession; Ex.A81, Exs. A88 to 94 are after the suit which not support the appellant's case.

19. The first appellate Court pointed out that the appellant herein given up three issues before the trial court which are (i) whether the suit properties belonged to her father (ii) whether her father and mother enjoyed the suit properties or not and (iii) whether she perfected her title to the suit properties by adverse possession. When the said issues were not pressed, it is not explained how the second respondent and Meenakshi, who are also her sisters not entitled to share in the suit properties which is originally belonged to her father as she claimed. It is further pointed out by the lower appellate Court that it is admitted by the appellant in her evidence the suit properties originally belonged to Periyasamy Gounder; that her husband not related to him and there is no documents to show how the suit properties came to her father. In view of the said admissions, the first appellate Court found that her claim, if at all be laid on only adverse possession, which was also given up before the trial court, hence the only issue to be decided is whether injunction be granted against true owner, which is sought for by the appellant and held that she is not entitled to the relief of injunction against the true owner i.e., respondents herein.

20. The appellant has not let in any additional evidence. The respondents 5 and 6 also not filed any additional written statement.

21. It is contended by the appellant in the plaint that the suit property originally belonged to her father, after his demise, her mother Ponnammal and his brother Easwaran were in possession and after demise of his brother brother Easwaran, the suit property was possessed by her along with her mother Ponnammal and after her death, she has been in possession and enjoyment of the suit property as her absolute property exclusively. It is further averred in the plaint that the defendants 1 and 2/respondents 1 and 2 herein have filed O.S. No. 354 of 1953 for eviction and recovery of arrears of rent on the ground that the appellant's mother Ponnammal was a lessee, after her death Subbanna Gounder and Paramathal, daughter of Ponnammal were in possession of the suit property and in view of the default of arrears of rent, the said suit was filed. The said suit was dismissed on 13.02.1956 and thereafter no steps were taken by the first respondent herein, who is the plaintiff in the said suit for recovery of possession; that if the said date of dismissal is taken as starting point for seeking adverse possession, she has perfected her title by adverse possession since she is in occupation of the suit property for more than the prescribed period. In Para-13 of the plaint, it is averred by the appellant that the defendants have no right or title to the suit properties. Even assuming that the defendants have any right or title, they are ousters.

22. The defendants 1 and 2 have filed their written statement contending that the second respondent herein namely Ponnammal was a lessee under the first respondent, who committed default in paying rent, hence, O.S. No. 354 of 1953 was filed for eviction and recovery of arrears of rent. In the said suit, it is stated that Ponnammal was a lessee and after her demise, Subbanna Gounder and Paramathal, daughter of Ponnammal and sister of the appellant herein were in possession of the suit property and in view of the default of arrears of rent, the said suit was filed for eviction and arrears of rent. In the said suit, the second respondent herein, one Meenakshi and appellant herein were arrayed as defendants 3 to 5 as proforma parties. In the said suit, the possession said to have been with Subbanna Gounder and Paramathal and not with the appellant. It is not explained by the appellant how or when she came into exclusive possession. The suit properties belonged to Periyasamy Gounder, who executed Ex.B4, Will in favour of Subbanna Gounder bequeathing the suit properties; that Subbanna Gounder and first respondent herein entered into partition, Ex.B5 dated 23.05.1949 thereby the suit properties were allotted to both of them. The said Subbanna Gounder executed Ex.B7, settlement deed dated 27.04.1950 in favour of his wife Karunai Ammal, who filed O.S. No. 30 of 1964 which was decreed. Exs.B9 and B10 are certified copies of decree and judgment in O.S. No. 30 of 1964. Subsequent to the preliminary decree passed in the said suit, Karunai Ammal died and her legal heirs, the respondents 3 and 4 (given up in this second appeal) had initiated final decree proceedings as the said respondents 3 and 4 are also joint owners of the suit properties. In view of the partition deed, Ex.B5, the second respondent is entitled to half share in the suit property.

23. In view of the fact that since respondents 3 and 4 are given up in this second appeal, this Court need not traverse into Exs. B5, B7, B9 and B10.

24. It is evident from the plaint averments that the appellant herein has alleged that her father originally owned the suit property, she later acquired the same after the demise of her father, brother and mother, whereas, in her oral evidence, the appellant herein admitted that originally the suit property belonged to one Periyasamy Gounder, who is not related to her husband Subbanna Gounder. It is further admitted by her that she was not aware how the suit properties came to her father Palani Gounder. She further admitted in her evidence that the second respondent, Paramathal and Meenakshi also her sisters. The appellant also admitted in her evidence that after the death of Ponnammal, no partition took place between her sisters and the Patta was issued to her on the basis that she is one of the legal heirs of Ponnammal. The said oral evidence is contrary to the averments made in the plaint. It is also not explained by the appellant when their sisters were ousted from the suit properties.

25. In Para-13 of the plaint, it is alleged that all the defendants are ousters. The burden of making out ouster is on the person claiming to displace the others by his adverse possession. In normal course, the possession of one heir is considered in law as possession of all the co-heir. When one co-heir is found to be in possession of the properties, it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession, merely by any secret hostile animus on his own part any derogation of other co-heir in title. 'In deciding whether the acts alleged by a person constitute adverse possession, regard must be had to the animus of the person doing these acts, which must be ascertained from the facts and circumstance of each case'.... Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession could be referred to a lawful title will not be permitted to show that his possession was hostile to another's title' Followed (Annasaheb Bapusaheb Patil and Ors. v. Balwant @ Balasaheb Babusaheb Patil (dead) by Lrs & heirs etc.,) : [1995]1SCR88 .

26. In the decision reported in (P. Lakshmi Reddy v. L. Lakshmi Reddy) : 1995(5)SCALE509 , it is held by the Honourable Supreme Court in Para No. 4 as follows:

4. ...It is a settled Rule of Law that as between co-heirs, there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster....

27. In this case, when we look into the averment in the plaint as well as in the oral evidence of the appellant, though she claims as one of the co-heirs, there is no open assertion of hostile title. Mere occupation, enjoyment or management of the joint property by co-sharer does not constitute adverse possession as against the other co-sharers. Assuming the appellant herein has proved her long possession, mere possession of the land, however long it may be, would not ripen into possessory title unless the possessor has animus possidendi to hold the land adverse to the title of the co-sharer. In this case, the appellant claims that the respondents are ousters. Neither in the pleading nor in the evidence, the appellant has established when the respondents were ousted from the suit property. For reckoning the statutory period to perfect title by prescription both the possession as well as the animus possidendi must be shown to exist, but the fact that animus possidendi is not established by the appellant.

28. In this context, it is necessary to refer the below mentioned decisions:

i) In (A.P. Konda Lakshmana Bapuji v. Kanhaiyalal) : [2002]1SCR651 , the Hon'ble Supreme Court held in Para Nos. 53 and 61 thus:

53. The question of a person perfecting title by adverse possession is a mixed question of law and fact. The principle of law in regard to adverse possession is firmly established. It is a well settled proposition that mere possession of the land, however long it may be, would not ripen into possessory title unless the possessor has animus possidendi to hold the land adverse to the title of the true owner. It is true that assertion of title to the land in dispute by the possessor would, in an appropriate case, be sufficient indication of the animus possidendi to hold adverse to the title of the true owner. But such an assertion of title must be clear and unequivocal though it need not be addressed to the real owner. For reckoning the statutory period to perfect title by prescription both the possession as well as the animus possidendi must be shown to exist. Where, however, at the commencement of the possession there is no animus possidendi, the period for the purpose of reckoning adverse possession will commence from the date when both the actual possession and assertion of title by the possessor are shown to exist. The length of possession to perfect title by adverse possession as against the Government is 30 years.

61. In Balkrishna v. Satyaprakash, this Court held (SCC p.501, para 7)

7. The law with regard to perfecting title by adverse possession is well settled. A person claiming title by adverse possession has to prove three nec - nec vi, nec clam and nec precario. In other words, he must show that his possession is adequate in continuity in publicity and in extent. In S.M. Karim v. Bibi Sakina speaking for this Court Hidayatullah, J (as he then was) observed thus:

Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. In that case the requirement of animus possidendi was not adverted to as on facts it was shown to be present; the controversy, however, was about the other ingredient of adverse possession. It is clear that it must be shown by the person claiming title by prescription that he has been in possession of the land for the statutory period which is adequate in continuity, in publicity and in extent with the animus of holding the land adverse to the true owner.

ii) In (Deva (dead) by Lrs. v. Sajjan Kumar (dead) by Lrs) : AIR2003SC3907 , in Para No. 12, it was held thus:

12. ...Mere long possession of defendant for a period of more than 12 year without intention to possess the suit land adversely to the title of the plaintiff and to latter's knowledge cannot result in acquisition of title by the defendant to the encroached suit land. iii) In (Karbalai Begum v. Sayeed and Anr.) : [1981]1SCR863 , it is held in Para-7, thus:

7. ...It is well settled that mere non-partitipation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed, even if this fact be admitted, then the legal position would be that Mohd. Bashir and Mohd. Rashid, being co-sharers of the plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaintiff would be deemed to be protected by the trustees.... iv) In (D.N. Venkatarayappa and Anr. v. State of Karnataka and Ors.) : AIR1997SC2930 in Para No. 3, it was held thus:3. ...In the case of Lakshmi Reddy relied upon by Shri Narayana Rao at para 7 of the judgment, the Supreme Court, following the decision of the Privy Council in Secy. of State v. Debendra Lal Khan, has observed that the ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor....

29. Considering the peculiar facts and circumstances in this case, though the O.S. No. 354 of 1953 is dismissed, even accepting the contention of the appellant that no further action was taken by the first respondent, the appellant claimed herself as co-sharer of the second respondent and her mere denial of the title of others not give benefit of the statute of limitation of adverse possession, that too, in the absence of established animus possidendi, hence the findings of the first appellate Court that the appellant has not proved her plea of adverse possession is confirmed and the first and second substantial questions of law are decided against the appellant herein.

30. Now, it is to be decided as to whether the appellant is entitled to injunction or not. If no assertion of hostile title, exclusion or ouster, destruction of property or conversion is made out, the plaintiff is not entitled to injunction, however, he may opt for proper remedy. In (Srinivasa Aiyangar and Anr. v. Narayana Aiyangar) AIR 1920 Mad 162 wherein in Page No. 163, it was held thus:.Each branch had a right to its share in the property in suit; and no branch was entitled to sole possession. In this view the plaintiff, not having alleged sole title to the property was not entitled to seek the protection of the Court by way of injunction. This is a well recognised rule of law in Damodaran Namboodri v. Govindan Nair (1). Moreover under Section 54 Specific Relief Act, plaintiff must bring his case under one of the five clauses enumerated in the second portion of the section, if he claims the discretionary relief. Mr. T. Narasimha Aiyangar suggested that the remedy is necessary to avoid multiplicity of suits. But there is no question of multiplicity at present; allthat is alleged is that there is a possibility of defendants breaking the law. For such an offence, there is appropriate remedy elsewhere. No cases have been quoted to show that when the plaintiff is entitled to sole possession and the defendant who has a right to part enjoyment is likely to enter upon property, such an entry can be prevented by injunction. Plaintiff can put an end to this position of affairs by suing for partition. That the remedy by any injunction should not ordinarily be granted to a member of a Hindu family has been well recognised in India....

31. The law governing relief of injunction is the one laid down in the Specific Relief Act, 1963 and Easements Act. The relief of permanent injunction may be granted where actual invasion of right has taken place and it likely to continue further applying Section 38 of Specific Relief Act, 1963 (Section 54 of Old Act). Injunction not to be granted to one member of joint family against others where plaintiff is not entitled to sole possession. A co-owner is not entitled to an injunction restraining the other co-owner from exercising his rights in the common property absolutely and simply on the ground of co-ownership and without reference to the amount of damage to be sustained by the one side.

32. If material and substantial injury will be caused to the defendant by the granting of injunction, the Court will no doubt be exercising proper discretion in withholding such relief. Each case has to be decided upon its own peculiar facts and will be left to the Court to exercise its discretion upon proof of circumstances showing which side the balance of convenience lies. That the Courts in exercise of its discretion will be guided by consideration of justice, equity and good conscience. In (Chhedi Lal and Anr. v. Chhotey Lal) : AIR1951All199 wherein in Para 25, it was held thus:

25. As a result of the foregoing discussion, it appears to us that the question of the right of co-sharers in respect of joint land should be kept separate and distinct from the question as to what relief should be granted to a co-sharer, whose right in respect of joint land has been invaded by the other co-sharers - either by exclusively appropriating and cultivating land or by raising constructions thereon. The conflict in some of the decisions has apparently risen from the confusion of the two distinct matters. While therefore a co-sharer is entitled to object to another co-sharer exclusively appropriating land to himself to the detriment of other co-sharers, the question as to what relief should be granted to the plaintiff in the event of the invasion of his rights will depend upon the circumstance of each case. The right to the relief for demolition and injunction will be granted or withheld by the Court according as to the circumstance established in the case justify. The Court may feel persuaded to grant both the reliefs if the evidence establishes that the plaintiff cannot be adequately compensated at the time of the partition and that greater injury will result to him by the refusal of the relief than by granting it. On the contrary if material and substantial injury will be caused to the defendant by the granting of the relief, the Court will no doubt be exercising proper discretion in withholding such relief. As has been pointed out in some of the cases, each facts will be decided upon its own peculiar facts and it will be left to the Court to exercise its discretion upon proof of circumstances showing which side the balance of convenience lies. That the Court in the exercise o f its discretion will be guided by considerations of justice, equity and good conscience cannot be overlooked and it is not possible for the Court to lay down an inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused.

33. In the case of immovable property owned each owner is in theory interested in every infinitesimal portion of the subject matter. If the assertion of hostile title is not proved, no injunction can be granted against others as held in (Khiaram v. Tahilram and Ors.) AIR 1947 Sind 134 wherein in Para-27, it was held thus:

27. In delivering the judgment of the Division Bench, Harington, J remarked:'In the present case, on what does the plaintiff base his claim? He cannot succeed in trespass because there has been no actual ouster; he cannot bring trover because there has been no destruction of the common property. The proper and legitimate use of the hill is to quarry stone on it. Having used the common property in the way in which it is proper to use it, no action in trover will lie, even if the lessee should have got more than his share from the hill. I am unable to see how he can call for an account, unless under some express or implied contract; and for such contract there was no consideration.'

34. As discussed above, the appellant is not entitled to injunction against the respondents herein, hence, the same is refused confirming the findings of the lower appellate Court and the third substantial question of law is also answered against the appellant.

35. In the result, the second appeal fails and is dismissed with costs.