LexM.DURAI versus MADHU AND ORS.
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A B c D E F M.DURAI v. MADHU AND ORS. JANUARY 11, 2007 [S.B. SINHA AND MARKANDEY KA TJU, JJ.] Adverse possession-Burden to prove-Suit claiming title by sale deed-Defendants claiming adverse possession-Dismissal of suit-First Appellate Court holding in favour of plaintiff-High Court formulated question as to whether the lower appellate court was correct putting the burden to prove the possession on defendant while it was on the plaintiff to prove his title-And was decided in favour of defendants-On appeal, held: Once the plaintiff proves his title, the burden shifts to the defendant to establish perfection of his title by adverse possession-High Court formulated a wrong question-Hence matter remitted to High Court- Limitation Act, 1908-Articles 142 and 144-Lirnitation Act, 1963- Evidence-Burden of proof Appellant-Plaintiff filed a suit claiming title over the suit property on the strength ofa sale deed. Respondents-defendants claimed to have perfected their title to the property by adverse possession. Trial Court accepting the plea of defendants, dismissed the suit. Order of trial court was reversed by First Appellate Court. In second appeal, High Court held that evidence adduced proves that only the defendants were in possession and enjoyment of the suit property for over the statutory period. It was for the plaintiff to establish his title over the suit property. Hence the present appeal. Allowing the appeal, the Court HELD: 1. The High Court formulated a wrong question. The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis-a-vis Limitation Act, 1963 is evident. G 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. H [Paras 7 and 8) [819-E-F] 816 ~- ...... - - M. DURAi v. MADHU [SINHA, J.] 817 Saroop Singh v. Banta and Ors., [2005) 8 SCC 330; T. Anjanappa A and Ors. v. Somalingappa and Anr., [2006) 7 SCC 570, relied on. 2. Impugned judgment cannot be sustained and the matter is remitted to the High Court for consideration of the Second Appeal afresh after formulating an appropriate substantial question of law arising, if any. [Para 11] [821-B-C\ CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6195 of2000. From the Final Judgment and Order dated 16.2.1999 of the High Court B of Judicature at Madras in S.A. No. 671/1987. C R. Nedumaran, S. Beno Bencigar and Rajiv Rufus, for the Appellant. The Judgment of the Court was delivered by S.B. SINHA, J.: 1. The Plaintiff is in appeal before us from a judgment D and decree dated 16.2.1999 passed by the High Court of Judicature at Madras in Second Appeal No. 671/87 whereby and whereunder the appeal preferred by the respondents herein from a judgment and order dated 25.11.1986 of the Subordinate Judge. Tiruvallur, Tamil Nadu which in tum E reversed the judgment and decree dated 10.9.1984 dismissing the Suit of the appellant was allowed. The plaintiff claimed title over the suit property by reason of a deed of sale dated 19.8.1978. The respondent, admittedly, are in possession of the said property. As the respondents refused to vacate the suit land, the aforementioned suit was filed. The respondents in their written F statement, inter alia, contended as follows : " ... The Plaintiff is not the owner of the suit items. These defendants are living in the Cherinatham and the defendants are in continuous, open and uninterrupted possession of the house site and the backyard. In the backyard, there are very huge Othia trees, date trees. Portia trees and other G trees which are there for generations. They were planted by the defendants' ancestors. These defendants have also perfected title to the said portions in their occupation for more than the statutory period" 2. The learned trial Judge framed several issues; one of them being H 818 SUPREME COURT REPORTS [2007] I S.C.R. A "Whether the defendants perfected title to the suit property by adverse possession?" B c D 3. As indicated hereinbefore, the learned trial Judge dismissed the suit of the appellant holding that the defendants have perfected their title by remaining in pos
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