Holding

The appeal is dismissed because the appellants failed to prove title to the suit properties and the lower courts' findings of fact were not perverse, while the interpretation of the documents of title is a question of law.

Summary

The appellants, sons of K.S. Vaiyapuri Chettiar, claimed ownership of six house doors in Town Survey No. 666/2 based on sale deeds executed in the 1940s and a decree for specific performance. The respondents, occupying the doors, argued that they held the property by long‑term permissive leases and had acquired title by adverse possession. The trial court found no title in the appellants and held the respondents' possession to be adverse; the High Court affirmed this finding. The appellants contended that the questions of interpreting the sale deeds and the existence of adverse possession were questions of law, seeking special leave to appeal. The Supreme Court held that the interpretation of a document of title is a question of law, but the lower courts' concurrent factual findings were not perverse and there was no miscarriage of justice. Consequently, the Court dismissed the appeal, confirming that the appellants had no title to the suit properties and that the question of adverse possession did not arise.

Issues considered

The appellants' right to title over the suit properties in T.S. No. 666/2.
Whether the respondents acquired title by adverse possession and limitation.
Whether the interpretation of the sale deeds and documents of title constitutes a question of law.
Whether the concurrent findings of fact by the trial court and High Court can be disturbed on appeal.

Legislation cited

Code of Civil Procedure, 1908s. Order 7, Rule I
Constitution of Indias. Article 136
Transfer of Property Act, 1882s. Section 54, s. Section 55(f)

Subjects

title of propertyadverse possessioninterpretation of documents of titlelimitationpartition decreesale deeddelivery under Transfer of Property Actconcurrent findings of factspecial leave under Article 136

Judgment

K.V. SWAMYNATHAN AND ORS.
A
v.
E.V. PADMANABHAN AND ORS.

DECEMBER 21, 1990.

[K.N. SAIKIA AND M. FATHIMA BEEVI JJ.] B

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 possession-Whether questions of law.

Code of Civil Procedure, 1908---0rder 7, rule I-Suit for posses- C
sion-Delivery pursuant to Court's decree-Effect, of-Question of
adverse possession-When arises.

Transfer of Property Act, 1882-Sections 54, 55(f)-Sale-De/i-
very when takes place-Duty of seller indicated.
D
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.
E
The appellants-plaintiffs' case was that originally the suit-pro-
perties were joint-family properties of one Annayyar, 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 F
and his sons and the properties including the suit-properties were allot-
ted to the aurasa sons.

On 31.5.1926 over the properties, the aurasa sons executed. a
mortgage deed In favour of one Yaghasami Iyer, who obtained a decree
f"tling a suit (O.S. No. 147 /1932). G

On 4. 7 .1934 when the hypotheca was brought to sale by the mort-
gagee 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 H

709
710 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.

A the appellants. While so, he also purchased vide a sale deed an undi-
vided l/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
B 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. 202of1942) against Ellayyar and his sons and the
C defendants 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 appellants, and symbolic possession
0
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
E 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.
F
On 28.3.1950, a preliminary decree for partition and separate
possession was passed by consent of the parties. When the fmal decree
proceedings were pending a compromise was entered into by the
parties, according to which, final decree was passed on 6.10.1950.
G As per the fmal decree the properties were demarcated and allot-
ted between the parties and on 19.1.1953 the father of the appellants
was issued possession receipt, who could take only the symbolic posses-
sion of the properties, because tenants were there in the properties.
Since then the father of the appellants and the appellants were in pos-
session of the suit-properties.
H
SWAMYNATHAN v. PADMANABHAN 711

Further the appellants-plaintiffs averred in the instant suit-plaint A
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 com-
pensation for the land acquired by it.

It is stated that the names of the appellants were recorded iu
Revenue Recor~ and in the Town Survey Field Register and the House B
Tax Demand Register of the Municipality.

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 Municipality registered the Door Nos. 272 in the C
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 \ll!ainst such alternations made
by the Municipality, which was dismissed by the High Court, as remedy D
was available by suit.

When their appeal was dismissed, by the· Division Bench of the
High Court, the appellants-plaintiffs filed the instant suit (O.S. 298/
1976).
E
Defendant No. l's case was that the portion of the suit properties,
consisting of Door Nos. 269 to 272 became her. father-in-law's proper-
ties under a family arrangement, as be being the adopted son of
Annayyar. On his death, his son, the husband of the defendant No. 1,
became entitled to the properties in T,S. No. 666/2 and be was in
possession and enjoyment thereof directly and through tenants. F

On 1.5.1945 defendant No. l's husband leased out a vacant site in
T .S. No. 666/2 to the father of the defendants 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 G
lease to the defendants 2 to 4, who sublet the buildings 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 bad perfected title to the suit- H
712 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.

A properties by adverse possession and the appellants-plaintiffs 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
B 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 business and the Cather-in-
law of the defendant No. 6, the defendant No. 7, took the Door No. 271
on 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 •
C 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 IO claimed to
be in possession of Door No. 272, which was belonging to the
D
Mahaganapathi Dhandayathapani Swamy temple of the Sambanda
Swamy Matam. According to the defendants 9 and IO, 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 IO, 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
E
Commissioner, Hindu Religions and Charitable Endowment 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
a petty shop in Door No. 272 for more than 25 years and the R.R.&
F
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 resid-
ing originally belonged to Ellayyar's family. On 14.11.1896, under a
G deed executed by the members of Ellayyar'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 perform-
ing pooja after the deaths of his grand fa titer 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.
H
SWAMYNATHAN v. PADMANABHAN 713

Defendants 13 and 14 stated that in O.S. No. 54/1950 the proper-
A
ties were divided between them and the father of the appellants-
plaintiffs and same was allotted and delivered to them. They took deli-
very of possession of the same, wherein they had put up superstructures
and subsequently affected partition between them.

All the respondents-defendants claimed that the appelalnts- B
plaintiffs had no right, title or interest on the suit-properties in T .S. No.
666/2; that the suit was barred by limitati~n; 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
c
impleaded, being the legal representative of the defendant No. 1, on her
death.

Dismissing the suit, the trial Court held that the appellants-
plaintiffs had no title to the suit properties, that the husband of the D
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. E

1n their appeal to the High Court, the appellants-plaintiffs con-
tended that the trial Court erred in coming to the conclusion that the
plaintiffs bad 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 F
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 G
as the appellants-plaintiffs had not proved their title over the suit-
properties, 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 contend-
ing that this appeal against the concurrent findings of the Courts below H
714 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.

to be dismissed. The appellants contended that the questions formu-
A
lated by the High Court were questions oflaw.

It wa~ 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
B 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
specific performance; that the defendants 13 and 14 purchased I/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
c the sale deeds-the documents of title-expressly included the suit-
properties; 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 suit-
D properties were not the subject matter in the partition suit in O.S. No.
54 of 1950, between the father of the appellants-plaintiffs and defen-
dants 13 and 14, it would not affect their title to the instant suit-
properties; 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
E 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 posses-
F sion 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 l(respondent No.
8) made sales of the suit properties to respondents 9 to 12.
G
The respondents-defendants, on the other hand, contended that
the concurrent f"mdings 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
H be entitled only to 2 /3rd share in the suit properties under the sale deeds
SWAMYNATHAN v. PADMANABHAN 715

in Ext. A. S and A.8, and defendants 13 and 14 would be entitled to the A
remaining l/3rd share and the instant plaint could have proceeded on
the basis that the appellants-plaintiffs 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 plairit had been filed.

Dismissing the appeal of the appellants-plaintiffs, this Court, B

HELD: 1.01. Concurrent fmdings of fact will not be disturbed
unless it is shown that there has been a miscarriage 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 C
.or failed to receive due _emphasis, or that the forms of legal ' process
· were disregarded or principles of natural justice were violated or sub-
'1stantial 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
evidence of an unrelial>le witness should not as accepted without cor-
roboration has been departed from. It is also true that they will not be D
disturbed on the ground that inadmissiable 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
questionoflaw. [7310] E

1.03. Interpretation of a document of title is a question of law. [73111]

1.04. Construction of a document of title which was the foundation
of the rights of parties necessarily raises a question of law. [732B]
F
• 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. G

Kaolapati v. Amar, AlR 1939 PC 249: 44 CWN 66; Chunilal V.
Mehta & Sons, Ltd v. The Century Spinning and Manufacturing Co.
Ltd., AlR 1962 SC 1314: [1962] 3 Supp. SCR 549; Jadu Gopalv. Panna
Lal, A1R 1978 SC 1329: [1978] 3 SCR 855 and Meenakshi Mills,
Madurai v. The Commissioner of Income-tax, Madras, AIR 1956 SC H
49: [ 1956] SCR 691, followed.
716 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

A State Bank of Travancore v. A.K. Panikkar, AIR 1971 SC 9%;
Kesar Singh v. Ba/want Singh, AIR 1957 SC 487: [1962] Supp. (1) SCR
325; Sabapathiv. Huntlay, AIR 1938 P.C. 91: 173 IC 19; Sitalakshmiv.
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.
B 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] l All. E.R. 326, H.L. Bodhraj
v. Sitaram, 40 CWN 257: 160 IC 45; AIR 1936 PC 60 and Virappa v.
Periakaruppan, 49 CWN 211: AIR 1945 PC 35, referred to.
•
c 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 consideration what the Parties
D themselves intended. Quia non refert out quis intionem suam declarat,
verbis out rebus ipsis vel factis. It Is immaterial whether the Intention he
collected from the words used or the acts done. Intention was man-
ifested in the acts performed by tbe parties concerned pursuant thereto.
It was immaterial that T.S. No. 666 was there In the deeds. lntentio mea
imponit nomen operi meo. My intent gives name to my act. Facta sunt
E potentiora verbis. Facts are more powerful than words. Factum cuique
suum adversarie nocere debet. A party's own act should prejudice him-
self, not his adversary. Traditio loqui facit certam. Delivery makes a
deed speak. Delivery gives effect to the words of a deed. What was
delivered purusant to the decree on interpretation of the sale deeds has
to be accepted as the parties themselves after night-long deliberation
F fixed and accepted. [745B-D]

2.02 The right to T .S. No. 666/2 having not been acquired 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]
G
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 rightful owner of the property
under a different title, the possession of the former Is said to he adverse
possession with reference to the latter. Adverse possession Is a statutory
H method of acquiring title to land by limitation. It depends on animus or
'
SWAMYNATHAN v. PADMANABHAN (SAIK!A, J.] 717

intent of occupant to claim and bold real property in opposition to all
A
the world; and also embodies the idea that the owner of the property bas
knowledge oftbe 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 be directs, in possession of the property. Under section B
SS(f) of that Act the seller is to give, on being so required, the buyer, or
such person as be directs, such possession of the property as its nature
permits. [746CJ

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 evi-
dence of T .S. No. 666/2 rter having been delivered to him. On the other C
band 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 appellants also could
not inberittbe same. [746B, DI -
D
Austin on Jurisprudence P, 177, referred to.

CIVIL APPELLATE JlJRISDICTION: Civil Appeal No. 1224
of 1980.
-
..
From' the Judgment and Order dated 18.12.1979 of the Madras E
High Court in Appeal No. 919 of 1975.

Shanti Bhushan, P.N. Ramalingam, S.V. Ramesh, S. Balakrish-
nan, Ramesh N. Keshwani andNijay Kumar for the Appellants.

U.R. Lalit, S. Srinivasan and P.K. Chokkalingam for the F
Respondents .
•
The Judgment of the Court delivered by

K.N. SAIK.IA, J. This plaintiffs' appeal by special leave is from
the Judgment of the Madras High Court, dated 18.12.1979 in A.S. No. G
919 of 1975, dismissing the appeal against the Judgment and decree of
the Subordinate Judge, Erode, dismissing the suit. The plaintiffs in
O.S. No. 298 of 1970 sought a declaration that they were the exclusive
owners of the plaint schedule properties and for recovery of possession
thereof alongwith a prayer that the defendants 1-12 and 15 or such of
them_as were liable should be directed to pay Rs.3,600 as damages for H
718 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

A wrongful use and occupation of the suit properties.

The suit property as described in schedule B to the plaint is
comprised in Town Survey (shortly, T.S.) No. 666/2 in Erode Munici-
pality. There are in all six house-doors in the suit property bearing
Door Nos. 268, 269, 270, 271, 271-A and 272.
B
The parties for tracing their title admit the following genealogy:

GENEALOGY
Ellayyar

c Ellayyar alias Kalyanasundaram Pattabirama Iyer
Annayyar (dead) Ayer (dead) (dead)

R.P. Seetharama Iyer R.P. Ramahadran R.P. Ellurama
J)
(dead) (dead) Iyer (dead)

R.S. Kothandaraman R. Lokabiraman
Iyer (dead)

·r
E
(adopted son) R.A. Ellayar R.A. Sankara R.A. Meenakshi
Vakil Ramasamy (dead) narayana Iye._r Sundaram Iyer
Iyer (dead) (dead) (dead)

F
R. Ellusubramania Kalyanarama Subramania R. Sivasubramania
Iyer(dead) Iyer (dead) Iyer (dead)
wife Nagammal (D-1)

The four instant appellants K.V. Swamynathan, K.V. Ganesan,
V. Ramasundaram and V. Sam.igasundaram, all sons of K.S. Vaiya-
G puri Chettiar instituted O.S. No. 298 of 1970 aforesaid against the 14
original defendants, namely, (1) R. Nagammal, widow of R. Ellusubra-
mania Iyer, (2) E.V. Padmanabhan, son of R.K. Venkatasami
Naicker, (3) E.V. Gopinath, son of R.K. Venkatasami Naicker, (4)
Srimathi Audal, wife of G. Venkatakrishnan, (5) P. Thambayya
Naidu, resident of Door Nos. 268, 269 and 270, (6) P. Rangasami,
H carrying on business at Door Nos. 271and271-A, (7) A.K. Pangianna,
SWAMYNATHAN v. PADMANABHAN [SAIKIA, J.] 719

father-in-law of (6) above, (8) Venkatachalam, shopkeeper at Door
A
Nos. 271 & 271-A (9) S. Beshadri Iyer of Door No. 272, (10) Lakshmi
Ammal, resident of poor No. 272, (11) A. Ramaswamy of Door No.
272, ( 12) N.B. Darayanasami Sastri, resident of Door No. 268, (13) A.
Marimuthu Mudaliar, businessman at Door No. 275-A and (14) A.
Arumuga Mudaliar, carrying on business at Door No. 275. By order
dated 29.1.1974 in I.A. 1283/73, Meenammal, wife .of R. Rama- B
moorthy Iyer was added as defendant No. 15. A. Marimuttu Mudaliar
and A. Nagammal having died, their legal representatives were
brought on record. In this- appeal, however, there are only 12
respondents.

Ext. A-1 reproduced herein is the sketch map for the site T.S.
No. 666 in Ward 1, Brough Road, Brode Town. c
The plaintiffs' case was: The buildings and the vacant sites in
original T.S. No. 666 and T.S. No. 665 which lay North ofT.S. No. 666
were the joint family .properties of the propositus Ellayyar alias
Annayyar, hereinafter called Annayyar. Before the aurasa sons were D
born to Annayyar, he adopted one Ramasamy Iyer, who later came to
be known as Vakil Ramasamy Iyer. Besides the adopted son Vakil
Ramasamy Iyer, Annayyar had, as would be clear from the gendslogi-
cal table, three aurasa sons, namely, R.A. Sllayar, R.A. Sankaranar-
-, ... ayana Iyar and R.A. Meenakshisundaram Iyer. Vakil Ramasamy Iyer
had three sons, namely, Ellusubramania Iyer, kalayanarama Subra- E
mania Iyer and Sivasubramania Iyer. The first defendant, Nagammal
is, the widow of Ellusubramania Iyer and daughter-in-law of Vakil
Ramasamy Iyer. On 21.8.1896 a partition was entered into among
Annayyar and his aurasa sons and his adopted son Ramasamy Iyer.
Under the partition deed, the suit properties were allotted to R.A.
Ellayar, R.A. Sankaranarayana Iyer and R.A. Meenakshisundaram p
Iyer, the aurasa sons of Annayyar. On 31.5.1921, the aurasa sons of
Annayyar executed a mortgage over the properties, obtained by them
under Ext. S. 5 partition deed including the suit properties, to one
Yaghasami Iyer who filed O.S. No. 147 of 1932 in the Sub Court,
Coimbatore and obtained a decree. When the hypotheca was brought
to sale by the mortgagee in execution of the decree, the mortgagors, G
namely, the aurasa sons executed on 4.7.1934 the subsequent Ext. A. 3
mortgage in favour of Salem Bank Limited. The mortgagee, Salem
Bank Limited in turn assigned their rights under Ext. A. 3 mortgage to
K.S. Vaiyapuri Chettiar. the deceased father of the plaintiffs under
Ext. A. 4 dated 9.12.1942. While so, the said Vaiyapuri Chettiar
purchased an undivided 1/3rd share of the equity of redemption in T.S. H
720 SUPREME COURT REPORTS ]1990] Supp. 3 S.C.R.

A Nos. 665 and 666 from R.A. Sankaranarayana Iyer, one of the aur11sa
sons of Annayyar. The· sale- deed is marked as Ext. A. 5. On
12. 12.1942, R.A. Ellayyar, one of the aurasa sons of Annayyar
entered into an agreement with Vaiyapuri Chettiar for the sale of his
1/3rd share in the equity of redemption over T.S. Nos. 665 and 666.
Then defendants 13 and 14 in collusion with the said Ellayar brought
B into existence a sale deed in their favour by antedating an agreement
for sale. Therefore, the plaintiffs' father Vaiyapuri Chettiar filed O.S.
No. 202 of 1942 in the Sub-court, Coimbatore against R.S. Ellayyar
and his sons for specific performance of the agreement for sale of the
l/3rd share of the equity of redemption in T.S. No. 665 and 666. The
defendants 13 and 14 were also made party defendants to the said suit.
The suit ended in a decree for specific performance being granted in
c favour of the plaintiffs' father Vaiyapuri Chettiar. Appeal from that
decree was dismissed by Ext. A. 9 Judgment dated 11. 7. 1946. On
7.2.1945, the Subordinate Judge, Coimbatore executed Ext. A. 5 sale
deed in favour of Vaiyapuri Chettiar in execution of the decree for
specific performance, and he is said to have taken symbolic possession
D of the properties. Thus, the plaintiffs' father Vaiyapuri Chettiar, the
plaintiffs claimed, had mortgage rights over T.S. Nos. 665 and 666,
when which were. allotted to the aurasa sons of Annayyar under Ext.
S. 5, partition deed and he became the owner of the equity of redemp-
tion in respect of 2/3rd of the said properties under Exts. A. 5 and A. 6.
The balance of l/3rd share in T.S. Nos. 665 and 666 which was vested ..
E under R.K. Meenakshisundaram Iyer, the youngest of the three
aurasa sons of Annayyar was admittedly purchased by defendants 13
and 14 on 29.12.1942 under Ext. A. 6 with a direction to discharge the
l/3rd share of the mortgage debt due to the plaintiffs' father under
Ext. A. 4 assignment of Ext. A.3.

F The plaintiffs' father Vaiyapuri Chettiar, it is averred, then filed
O.S. No. 54 of 1960 in the Sub Court. Coimbatore against defendants
13 and 14 for partition and separate possession of the 2/3rd share in the •
buildings and lands in T.S. Nos. 665 & 666. A preliminary decree for parti-
tion and separate possession was passed by consent of parties on
28.3. 1950. Exhibit A. 11 is the certified copy of the preliminary decree
G in that suit. When the final decree proceedings were pending,
Vaiyapuri Chettiar and defendants 13 and 14 entered into a com-
promise. Accordingly, a final decree was passed on 6.10.1960 under
Ext. S. 1. Iris the case of the plaintiffs that as per Ext. S. 1 final decree
the northern portion of T.S. No. 665 and a portion in the western
extremity of T.S. No. 664 were allotted to defendants 13 and 14 and
H the remaining portions of the property in the suit O.S. No. 64 of 1950
SWAMYNATHAN v. PADMANABHAN [SAIKIA, J.) 721

were allotted to the plaintiffs' _father. The plaintiffs claimed that their
A
father obtained symbolical possession of the properties allotted to him
under the final decree on 19.1.1953 under Ext. A. 13 possession
receipt passed in fevour of Vaiyapuri Chettiar in S.P. No. 23 of 1961 in
0.S. No. 54 of 1960. According to the plaintiffs symbolic possession
happened to be taken by the plaintiffs' father because there were
tenants in the buildings on the suit properties. Since that date it is B
claimed, the plaintiffs' father and the plaintiffs have been in possession
of the buildings and vacant portions in T.S. Nos, 665, 666 and 664.

In 1954; a portion of T.S. No. 666 was compulsorily acquired by
the Erode Municipality. Subsequently T.S. No. 666 came to be sub-
divided and T.S. No. 666/1 was allotted to the acquired portion and to C
the remaining portion T,S. No. 666/2. Compensation for the acquired
portion in T.S. No. 666 was, it is stated, ordered to be paid to the
plaintiffs in C.C.. No. 3 of 1957. Subsequently, it is stated, the
plaintiffs were registered as the sole and exclusive owners of T.S. No.
666/2 in the revenue records. The Erode Municipality also said to have
registered the names of the plaintiffs in the Town Survey Field Regis- D
ter. Again in March-April, 1964 the Erode Municipality is said to have
registered the names of the plaintiffs in the House Tax demand regis-
ter in respect of house doors Nos. 268, 269, 270, 271, 271-A and 272,
situated in T.S. No 666/2. The plaintiffs claim to have been paying the
property tax to the Municipality from 1st April, 1964 to 30th
September, 1969, Whereat defendants 1 to 3 having raised objections E
the names in the property tax register were altered and Door No. 272
was registered in name of the first defendant and Door Nos. 269, 270,
271, & 271-A were registered in the names of the defendants 2 and 3.
Door No: 269 was registered in the name of Kalyanasundaram Iyer.
When the plaintiffs came to know of these alterations they filed Writ
Petition No. 2790 of 1967 against the alterations but the Writ Petition F
was dismissed on the ground that the remedy of the plaintiffs lay in
• civil suit. Their writ appeal also failed. Subsequently they filed the
instant suit O.S. 298 of 1970 for aforesaid reliefs. According to the
plaintiffs, the defendants have no manner of right or title over the suit
properties.
G
Defendants 1, 2, 6, 9, 10, 11, 12, 13, and 14 filed separate written
statements .

.The first defendant has denied that the building and the vacant
site in T.S. Nos. 666 and 665 belonged to Annayyar and his three
i'Urasa sons. According to her, her father-in-law Vakil Ramasamy Iyer H
722 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

bacame entitled to the portion consisting of Door Nos. 269 to 272,
A
Brough Road, Brode under a family arrangement. On his death, his
son, her husband Ellusubramania Iyer, became entitled to the proper-
ties and he was in possession and enjoyment thereof directly and
through tenants. On 1.5.1945, the first defendant's husband Ellusu-
bramania Iyer based out the vacant site comprised in then T.S. No.
R · 666 to one R.K. Venkatasamy Naicker, deceased father of defendants
2 to 4 for a period of ten years under Ext. S. 34. The said Venkatasamy
Naicker put up Door Nos. 269, 270 and 271-A in T.S. No. 666. On the
death of her husband and Venkatasami Naicker the first <lefendant
herself granted a fresh lease in respect of Door Nos. 269, 270, 271 and
271-A to defendants 2 and 4. They in turn have sublet the said build- •
ings to defendants 5 to 8. According to the first defendant, her pre-
c decessors and she have been in possession of the suit properties for
more than 60 years and the three aurasa sons of Annayyar had abso-
lutely no manner of right, title or interest over T.S. No. 666. It is
categorically stated by the first defendant that the plaintiffis' father
Vaiyapuri Chettiar did not obtain T.S. No. 666 or Door Nos. 269 to
D 272 under Exts. A. 5. and A. 8. The first defendant has also denied
that defendants 13 and 14 obtained rights over I/3rd share in T.S. No.
666/2 under the sale taken by them from Meenakshisundaram Iyer under
Ext. A. 6. sale deed. The allegation that the plaintiffs' father took
symbolical possession of T.S. No. 666/2 and the buildings thereon in
execution of Ext. B.1 final decree in O.S. No. 54 of 1960, Sub-court,
E Coimbatore, has also been denied. On the other hand, it is categorically
stated by the first defendant that the plaint schedule in 0.S. No. 54 of
1960, on the file of the sub-court, Coimbatore .filed by the plaintiffs'
father for partition of the 2/3rd share purchased by him under Ext. A.
5. and A. 8. did not include T.S. No. 666 or Door Nos. 268 to 272
standing thereon; and that she was not aware of the acquisition pro-
F ceedings in O.P. No. 3 of 1957, sub-court, Erode, she claims to be the
owner of Door Nos. 268 to 272. The Erode Municipality according to
her' ordered registration to be effected in her name in respect of the
houses after due enquiry and after giving notice to the plaintiffs: and
that, in any event, she and her predecessors-in-title have been in open,
uninterrupted, and continuous possession of the suit properties for
G more than 60 years and that they have perfected title to the suit pro-
perties by adverse possession and limitation.

In his written statement, the second defendant corroborated that
the first defendant's deceased husband Ellusubramania Iyer leased out
the vacant site to his deceased father Venkatasamy Naicker for a
H period of two years under Ext. A. 30 dated 1.5.1946. The lessee was ~
SWAMYNATHAN v. PADMANABHAN ISAIKIA, J.] 723

\ permitted to construct buildings· at his own expenses and at the end of
ten years period, the lessee was to surrender possession of the pro- A
perty with the buildings to the lessor. There was an option given to the
lessee to continue in possession of the property for a further period of
five years, provided he increased the rent to Rs. 30 from Rs. 15 as
originally fixed. According to him, pursuant to the lease deed
Venkatjlsamy Naicker, father of defendants 2 to .4 constructed the B
buildiIJgs hearing Door Nos. 269, 270, 271 and 271-A. On 26.3.1963,
the first defendant executed another lease deed in favour of Venkata-
samy~ Naicker leasing out the site and the buildings bearing Door Nos.
269, ·270 & 271, on a monthly rent of Rs.70. The said lease deed is
marked as Ext. B. 3 and the period of lease was ten years. Venkata-
samy Naicker died in 1964, and thereafter defendants 2 to 4 have been
in possession and enjo;·ment of the said buildings and the site. Subse- c
quently there was a family arrangement among defendants 2 to 4 under
which the leasehold properties have been allotted to defendants 2 and
3. In other respects the second defendant has adopted the written
statement of the first defendant.
D
The sixth defendant claims to be the sub-tenant under the father
of defendants 2 to 4 in respect of Door No. 270. According to him, he
took the lease from the father of defendants 2 to 4 in 1954 for the
purpose of running a cycle shop and milk depot. subseqently he has
been carrying a soda factory and milk depot in the buildings. Door No.
271 was taken on lease by the 7th defendant from the father of E
defendants 2 to 4 in 1953. He was continuing a hotel and beeda busi-
ness. The sixth defendant is his son-in-law. Subsequently the 7th
defendant has left the management of the hotel and beeda business to
the 6th defendant who has also stated that he has made improvements
in Door Nos. 270 and 271 by spending more than Rs.2500 and has paid
electricity security deposit for Door No. 270. In other respects he has F
adopted the written statement of his lessors-defendants 2 to 4.

Defendants 9 and 10 have filed a joint written statement. They
claimed to be in possession of Door No. 272 Brough Road, Brode.
According to them, this property, which is a portion of T.S. No. 666
belongs fo Mahaganapathi Dhandayuthapani Swamy temple belonging G
to Sambanda Swamy Matam. The plaintiffs have no manner of right,
title or interest over the said property. Originally the father of these
defendants had been in occupation of this property. He was then doing
services in the temple. He diedin 1915 and thereafter defendants 9 and
10 have been in possession and enjoyment thereof. They have further
1. I, averred that the proceedings in 0.A. No. 28 of 1970 are pending H
724 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
,.
before the Deputy Commissioner, Hindu Religious and Charitable '
A
endowment, Coimbatore with respect to the property. They aver that
the plaintiffs are not entitled to any relief; and they filed an additional
written statement stating that in any event, they have perfected title to
the site and Door No. 272, which has been in their possession for more
than 50 years.
B
The 11th defendant stated that he has been running a petty shop
in Door No. 272 in T.S. No. 666 for more than 25 years, and that T.S.
Nos. 637 to 669 are all properties belonging to Sambanda Swamy
Matam and the H.R. & C.E. Board had issued notices to all occupiers
of T.S. Nos. 637 to 669 to surrender possession to Sambanda Swamy
Matam. He also denied any right of the plaintiffs to the property in his
c possession.

The 12th defendant is in Door No. 268. According to him Door
No. 268 in T.S. No. 666 belonged to Ellayyar's family; and that his
paternal grandfather, one Narayana Iyer, was employed as a Poojari in
D Dhandeswaran Maha Genapathi and Dhandapani temples belonging
to Ellayyar's family and as early as on 14.11.1896 a document was
executed by the members of the family of Ellayar in favour of his
paternal grandfather under which his paternal grandfather was permit-
ted to live in the building and perform pooja in their temple. After the
death of his grandfather his father was performing pooja and after his
E death, he has been performing pooja in the temple. He also has denied
the right of the plaintiffs in Door No. 268 in T.S. No. 666 either under
Ext. A. 3. mortgage or under Ext. A. 5. The plea that the plaintiffs'
father took symbolical possession of Door No. 268 is also denied.
According to him Door ~o. 268 was not the subject matter of Ext. B. 1
final decree. Since his property was not acquired by the municipality,
F he says, there was no necessity at all for him to intervene in the land
acquisition proceedings. Ever since 14.11.1896 he and his predeces-
sors-in-interest have been in possession and enjoyment of Door No. .;
268 and the suit is barred by limitation.

Defendants 13 and 14 stated that in O.S. No. 54 of 1950 the
G properties were divided between them and the plaintiffs' father, and
that the suit properties were allotted to them according to_ the Com-
missioner's pfan Ext. B. 2. Further, they stated, 'A' portion in the plan
was delivered to them and the 'B' portion was allotted to the decree-
holder Vaiyapuri Chettiar. They have denied the averment of the
plaintiffs that only symbolical possession was given to Vaiyapuri
H Chettiar. they state that in the order in E.S. No. 200 of 1954, the ~ .....
SWAMYNATHAN v. PADMANABHAN [SAIKIA, J.] 725

executing court held that the decree-holder had obtained actual deli- A
very of possession of the properties after demarcation and division
thereof by the construction of the contemplated walls and on the pro-
perties taken delivery of by them under the said decree, they had put
up superstructure and subsequently affected partition of the properties
among themselves. According to them, no relief could be claimed by B
the plaintiffs against them.

The plaintiffs filed a reply statement to the contentions raised by
the various defendants in their written statements.

During pendancy of the suit, the first defendant died and the
15th defendant was impleaded as her legal representative. C

On the above pleadings, thirteen issues were framed of which the
following need be mentioned:

"1. Whether the first defendant's father-in-law bacame D
entitled to Door Nos. 268 to 272 Brough Road, Erode,
under a family arrangementZ

2. Whether the first defendant's husband became entiled
to the said items under a family arrangement?
E
3. Whether the plaintiffs have title to the suit properties?

4. Whether the first defendant has perfected title to Door
Nos. 269 to 272 by adverse possession?

5. Whether defendants 2 and 3 are tenants?
F
.. 6. Whether Door No. 272 and T.S. No. 666 are temple
properties?

7. Whether the 12th defendant is antitled to Door No.
268?"
G
During the trial the plaintiffs marked Ext. A. 1 to A. 154, and
examined_ the first plaintiff as P. W. 1 and two independant witnesses
as P. Ws. 2 and 3. The defendants marked Exts. B. 1. to No. 217 and
e.xamined the husband of th~ 15th defendant and the defendants 6; 2,
13 and9asS. Ws. lto5. H
726 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.

A On a consideration of the oral and documentary evidence, the
trial Court found on issue No. 3 that the plaintiffs have no title to the
suit properties. Deciding issues 1, 2, 4, and 5 in favour of the
defendants the trial Court found that Ellusubramania Iyer and his
heirs have been in possession and enjoyment of Door Nos. 269 to 272
through their tenants for over the prescriptive period and that fact
B probabilised the family arrangement pleaded by the first defendant.
On issue No. 6, it was held that Door No. 272 and T.S. No. 666 were
not temple properties as contended by defendants 9 and 10. On issue
No. 7, the trial Court found that the 12th defendant was entitled to be
in occupation of a portion of Door No. 268 shown as 'C' plot in Ext.
A. I. in lieu of his services to the temple. In the result, the trial Court
C dismissed the suit with costs by Judgment dated 31st January, 1975.
Plaintiffs appealed.

In the Hight Court the appellants contended that the Subordinate
Judge, Brode erred in coming to the conclusion that the plaintiffs have
no title to the suit properties; and that "when once the title of the
D plaintiffs to the suit properties is found in their favour, it is for the
defendants to establish that they have prescribed title to the suit pro-
perties by deverse possession and limitation." The respondents' con-
tention was that the title having been found in their favour the suit was
rightly dismissed.

E The High Court formulated the following two questions for
determination:

"I. Whether the plaintiffs have title to the suit properties?

2. Whether the defendants have prescribed title to
F the suit properties by adverse possession and limitation?"
-,
Naturally, the secqnd question would arise only if the first ques-
tion was answered in the affirmative. The High Court observed that if
according to the plaintiffs, the suit properties originally belonged to
Annayyar and that under Exhibit P-5 partition deed the suit proper-
G ties devolved on Annayyar's aurasa sons, namely, R.A. Bllayyar,
R.A. Sankaranarayanan Iyer and R.A. Meenakshisundaram Iyer and
the plaintiffs' father Vaiyapuri Chettiar purchased the 2/3rd share of
R.A. Bllayyar and R.A. Sankaranarayanan Iyer over the suit proper-
ties, if the plaintiffs have to succeed in the suit, it has to be found that
under Exhibit P. 6 partition deed among Annayyar, his aurasa sons .,
H and Vakil Ramasamy Iyer, father-in-law of the first defendant, the suit
SWAMYNATHAN v. PADMANABHAN [SAIKIA, J.[ 727

properties were allotted to the aurasa sons, and that by subsequent
A
purchase from Ellayyar and R.A. Sankaranarayana Iyer, Vaiyapuri
Chettiar obtained 2/3rd share over the suit properties. The High Court
has come to the conclusion that on the face of the overwhelming evi-
dence it is not possible to accept the case of the plaintiffs that they are
owners of the suit properties. As the plaintiffs have not proved there
title over the suit properties, they are not entitled to a decree for B
recovery of possession of the suit properties. The High Court accord-
ingly affirmed the findings of the trial cqurt on all the issues and
confirmed the Judgment and Decree of the trial oourt and dismissed
the appeal with costs; and also declined leave to appeal.

At the hearing before us a preliminary point was raised by Mr.
U.R. Lalit, the learned counsel for the respondents, that this appeal
c
having been against concurrent findings arrived at by the courts below
it has to be dismissed; and he relies on paragraph 6 of the decision in
Mithilesh Kumari v. Prem Behari Khare, [1989] 2 SCC 95: JT 1989 (1)
SC 275. Mr. Shanti Bhushan, learned counsel for the appellants, sub-
mits that both the questions formulated by the High Court are ques- D
tions of law; and he relies on the decisions i:rt Chunilal V. Mehta &
Sons. Ltd. v. The Century Spinning and Manufacturing Co. Ltd., AIR
1962 SC 1314: [1962] (3) Supp. SCR 549; Jadu Gopal v. Panna Lal,
AIR 1978 SC 1329: [1978] (3) SCR 855; Meenakshi Mills, Madurai v.
The Commissioner of Income-tax,· Madras, AIR 1956 SC 49: [1956]
SCR 691; State Bank of Travancore v. A.K. Panikkar, AIR 1971 SC E
996 and Kesar Singh v. Ba/want Singh, AIR 1957 SC 487: [1962] Supp.
( 1) SCR 325.

The preliminary objection need not detain us for long. In
Mithilesh Kumari (supra) in paragraph 6 this Court ovserved:
F
..._, "It has been said in a series of decisions that ordinarily this
Court in an appeal will not interfere with a finding of fact
which is not shown to be perverse or based on no evidence
Babu v. Dy. Director, AIR 1982 SC 766 but will interfere if
material circumstances are ignored by the High Court.
G

It was noted in Ganga Bishan v. Jay Narayan, AIR
1966 SC 441 that ordinarily this Court, under Article 136 of
the Constitution, would be everse to interfere with concur-.
rent findings of fact recorded by the High Court and the
Trial Court. But where there are material irregularities H
728 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

affecting the said findings or where the court feel that
A
justice has failed and the findings are likely to result in
unduly excessive hardship this Court could not decline to
interfere merely on the ground that findings in question are
findings on fact. So also in Uday Chand Dutt v. Saibal Sen,
AIR 1968 SC 367 it was said that in an appeal by special
B leave under Article 136 of the Constitution of India where
there are concurrent findings of the courts below this Court
is not called upon to reconsider the entire evidence in detail
to ascertain whether the findings are justified. In Ram
Singh v. Ajay Chawla, AIR 1988 SC 514, where the concur-
rent finding was that the appellants were in unauthorised
occupation of premises of which the respondents were the
c owners this Court did not interfere with the concurrent
finding of fact."

The question, however, is whether the findings on the above two
questions formulated by the High Court are pure findings of fact as
D distinguished from questions of law or mixed questions of law and fact.
A 'fact' as distinguished from 'law' may be said to be that out of which
the point of law arises. Law is a principle; fact is an event. The law,
with respect to any particular set of facts is a decision of a court with
respect to those facts so far as that decision affects that particular
person. Mr. Justice Holmes, in 'The Path of the Law' (1897) in Col- ~
E lected Legal Papers at page 173 said: "The prophecies of what the
courts will do in fact and nothing more preteniious are what I mean by
the law."

An issue may be of fact or law or partly of fact and partly of law,
raised by the pleadings, or otherwise and if decided may likely to be
F decisive of the litigation. If a party intends to raise a point of law on
the facts pleaded, he may raise the point in pleading.
.,.
A party may by pleading raise any point of law. The facts alleged
by a party may not be sufficient to raise the legal inference, or to
afford the ground for relief. A party's own allegation may be insuffi-
G cient to support the conclusion which he puts forward.

"Fact" means l!Jld·includes-any thing, state of things, or relation
of things, capable of being perceived by the senses; any mental condi-
tion of which any-person is conscious. The expression "facts in issue"
means and includes- any fact from which, either by itself or in connec-
H tion with other facts, the existence, non-existence, nature or extent of
SWAMYNATHAN v. PADMANABHAN [SAIKIA, J.] 729

any right, liability, or disability, asserted or denied in any suit or
A
proceeding, necessarily follows.

Benthan has classified facts into physical and psychological. By
"physical facts" are meant such as either have their seat in some inani-
mate being or if in one that is animate, then not by virtue of the
qualities which constitute it such; while "psychological facts" are those B
which have their seat in an animate being by virtue of the qualities by
which it is con~tituted animate. Thus, the existence of visible objects,
the outward acts of intelligent agents, the res gestae of a law suit, etc,
, range themselves under the former class; while to the latter belong
such as only exist in the mind of an individual: as for instance the
sensations and recollections of which he is conscious, his animus or
intention in doing particular acts, etc. It was formerly considered that C
psychological facts were incapable of direct proof by the testimony of
witnesses and their existence could only be ascertained either by con-
fession of the party whose mind.is their seat, or by presumptive infe-
rence from physical facts. But it is now recognised that the state of a
man's mind is as much the subject of evidence as the state of his D
digestion (see also Sabapathi v: Huntley, AIR 1938 PC 91: 173 IC 19)
and accordingly witnesses are permitted to testify directly as to their
own mental condition, although not generally to that of others. (Best,
11th Ed s. 12). A man's mental condition may be indicated by his
'' conduct or by assertions. The former evidence is circumstantial and
the latter direct. E

Best has also divided facts into two other classes viz, one is, that
they were either, events or states of things. The fall of a tree is 'an
event', the existence of tree is 'a state of things'. The other is, positive
or affirmative and nagative.
F
, , There is always due importance on trial court's findings of fact.
In Sitalakshmi v. Venkata, 34 CWN 593, 597 the Judicial Committee
again drew the attention of the appellate courts to the principle laid
down in Khoo Sit v. Lim Thean, [ 1912] AC 323, 325 that a trial Judge
sees, bears and questions witnesses and a finding of fact arrived at by
him on oral testimony should not be disturbed except in rare cases G
where some error susceptible of being dealt with wholly by argument is
disclosed, such as omission to take account of circumstances or pro-
babilites material to an estimate of the evidence or giving credence to
testimony which turns out one more careful analysis to be substantially
< inconsistant with itself or with indisputable fact. See also Sarju v.
'Jwaleshwari, AIR 1951 SC 120: [1950] SCR 781: Radha Prasad v. H
730 SUPREME COURT REPORTS [1990) Supp. 3 S.C.R.
j •
A Gajadhar, AIR 1960 SC 115: [1960) (!) SCR 663; Karbada v. Chhagan-
lal, AIR 1969 SC 395. As to the exceptions to the rules, see Robin v.
National Trust Ltd., 101IC903: AIR 1927 PC 66. The gist of the many
decisions has been summarised by VISCOUMT SIMON in a case
where he said:

B " ... This is not to say that the judge of first instance can be
treated as infallible in determining which side is telling the truth
or is refraining from exaggeration" Watt v. Thomas, [1947) AC
484, 486; followed in Sara Veeraswami v. Talluri, AIR 1949 PC
32; 1949 Mad 487: 75 IA 252).

An appellate court should not differ lightly from the finding of
c the trial judge on a question of fact, but a distinction in this respect
must be drawn between the perception of facts and the evaluation of
facts. Where there is no question of credibility of witnesses, but the
sole question is the proper inference to be drawn from specific facts,
an appellate court is in as good a postion to evaluate the evidence as
o the trial judge, and should form its own independent opinion, though
it will give weight to the opinion of the trial judge (Benmak v. Austin
Motor Co. Ltd., [ 1955) 1 All E.R. 326, HL.

In a case where the Judicial Committee preferred view of the
subordinate Judge to that of the High Court in the matter of the <
E credibility of witnesses, it was observed that it is open to an appellate
court to differ from the court which heard the evidence where it is
manifest that the evidence accepted by such court of first instance is
contradictory or is so improbable as to be unbelievable or is for other
suffficient reasons unworthy of acceptance. But such grounds must
exist, if a conclusion as to credibility, opposed to that of the judge who
F had the great advantage of seeing and hearing the witnesses, is to be
justified (Bodhrajv. Sitaram, 40 CWN 257: 160 IC 45: AIR 1936 PC,,...
60). Where the trial judge has approached the evidence from a wrong
standpoint and has applied wrong standards of probability, it is not
merely a question of credibility of witnesses and the appeal court is not
obliged to accept the estimate of the trial judge. When the appellate
G court itself did commit such arrers it will not be acceptable to this
Court.

When the findings as regards facts have been drawn from
"argumentative inferences" from the testimony oral or documentary
produced by a witness, and depend upon "the weight of evidenced''r
H and "the inherent improbability of the story" and not on the credibility
, SWAMYNATHAN v. PADMANABHAN [SAIKIA, J.] 731

induced by his "whole demeanour in the witness-box", or "the manner
A
in which he answers questions"-the trial court is in no better position
than the court of appeal in discovering the truth (Virappa v. Peria-
karuppan, 49 CWN 211: AIR 1945 PC 35).

It is true that concurrent findings of fact will not be disturbed unless it
is shown that there has been a miscariage of justice or the violation of .B
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- c
dence of an unreliable witness should not be accepted without corro-
boration has been departed from. It is also true that they will not be
disturbed on the ground that inadmissible evidence was received,
when the findings
. .
cannot on any reasonable view be regarded . as based
or dependant upon such evidence (Kaolapati v. Amar, AIR 1939 PC 249: D
44CWN66).

In an apeal by special leave there has to be a substantial question
of law. The meaning of the expression "substantial question of law"
was given by this Court in Chunilal V. Mehta v. Century Spinning &
Manufacturing Co. Ltd., (supra) in the following terms: E

"The proper test for determining whether a question of law
raised in the case is substantial would, in our opinion; be
whether it is of general importance or whether it directly
and substantially affects thio rights of the parties and if so
whether it is either an open question in the sense that it is F
·~ not finally settled by this Court or by the Privy Council or
by the Federal Court or is not free from difficulty or calls
for discussion of alternative views. If the question is settled
by the highest court or the general principles to be applied
in determining the question are well-settled and there is a
mere question of applying those principles or that the plea, G
raised is palpably absurd, the question would not be a sub-
stantial question of law."

In that case the construction of a managing agency agreement, which
~- was neither simple nor free from doubt was held to be a substantial
question of law. Interpretation of a document of title is a question of H
law.
732 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.

In Chunnilal V. Mehta (supra) a Constitution Bench of this
A Court laid down that it was well settled that construction of a docu-
ment of title which was the foundation of the rights of parties necessa-
rily raises a question of law. It was said in paragraph 2:

Indeed it is well settled that the construction of a docu-
B ments of title or of a document which is the foundation of
the rights of parties necessarily raises a question of law."

In Jadu Gopal v. Panna Lal (supra) this Court observed m
paragraph 33:

"The existence or non-existence of both these primary facts
c depends on a construction of the basic documents: Deed of
trust (Ex.I), Deeds Ex.3 and Ex.2. Construction of these
basic documents which go to the root of the matter, is a
question of law and could be gone into in second appeal."

D As regards the question of adverse possession it has been held by
this Court that 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. In Meenakshi Mills, Madurai v. The
Commissioner of Income-tax, Madras, (supra) this Court observed:

E "The further question that has to be determined is whether
the above facts are sufficient to constitute adverse posses-
sion in law. Is the user continuous or fugitive? Is it as of
right or permissive in character? Thus for deciding whether
the defendant has acquired title by adverse possession, the
Court has firstly to find on an appreciation of the evidence
F what the facts are, so for, it is a question of fact. It has then
to apply the principles of law regarding acquisition of title
of adverse possession, and decide whether on the facts
established by the evidence, the requirements of law are
satisfied. That is a question of law."

G We accordingly overrule the preliminary objection and proceed
to decide this appeal on merits.

Mr. Shanti Bhushan argues that the father of the plaintiffs
Vaiyapuri Chettiar had derived title to T.S. No. 666 on the basis of
sale deeds executed in his favour about 90 years prior to the filing of \
H the instant suit. They are Ext. A. 6 dated 10.12.1942 and Ext. A. 3
SWAMYNATHAN v. PADMANABHAN [SAIKIA, J.J 733

dated 7.2.45 which were executed by the Court in pursuance of the
A
decree for specific performance.

As has already been said, by these two sale deeds 2/3rd share has

-
purchased by the plaintiffs' father Vaiyapuri Chattiar. The 3rd aurasa
son also sold his I/3rd share in favour of defandants 13 and 14 by Ext.
A. 6 dated 29.12.1942. According to counsel all these three sale deeds B
expressly referred to T.S. No. 666 which made it clear that even if no
reference to the boundaries was made yet the documents of title clearly
included T .S. No. 666 also, and the High Court erred in not mention-
ing in its Judgment the vital fact that these three documents of title
expressly included T.S. No. 666. According to counsel, even the mort-
gage deed dated 4. 7 .1936 Ext. A. 3. which has been executed by the 3
aurasa sons in favour of Salem Bank also expressly referred to not only c
T.S. No. 665 but also T.S. No. 666 in the description of the property.
This document also would declare that aurasa sons and title to T.S.
No. 666 also which they had conveyed by subsequent title in favour of
Vaiyapuri Chettiar and defendants 13 and 14. Similarly it is pointed
out that Ext. A.L. dated 9.12.1942 an assignment of mortgage right by D
Salem Bank to the plaintiffs' father Vaiyapuri Chettiar in which also
the property had been described by reference to T.S. No. 666 and it
included not only T.S. No. 666 but also T.S. No. 665. Even a reference
to the boundaries in Ext. A. 2 dated 31.5.1921 being the mortgage
deed by the aurasa sons would according to him make it clear that even
-, these boundaries could have reference only to T.S. No. 666 and to T.S. E
No. 665. The Southern boundary of the property therein had been
described as "North of Dandapani Temple and Chatram buildings'.
According to counsel T.S. No. 666 was partly to the north of T.S. No.
668 and partly to the north of T.S. No 637 as would be clear not only
from the Ext. Sketch A. I but also from the published revenue map Ext.
A. 213. A reference to that revenue map would, according io counsel, F
• show that T.S. No. 666 was partly to the north of 666 and partly to the

.. north of 667 and that was why in Ext. A. 2/1921 the boundaries of the
property therein was described as being to the north of Dandapani
Temple and Chatram etc. building. Counsel denies, in face of
emphatic assertion by the respondents, that there was a Chatram in
T.S. No. 666 also. According to him a Chatram existed in T.S. No. 668 G
only and the temple existed in T.S. No. 667 only, and there was no
Chatram in T.S. No. 666 but certain individual persons were occupying
T.S. No. 666 and that there was no document clearly establishing that
there was any Chatram in T.S. No. 666 but all established that there
was only one Chatram at Brough Road (perundurai Road) in Erode
that was in T.S. No. 668. That was the only document relied on by the H
(
734 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.

defendant as the power of attorney Ext. B. 170 dated 25.1.1904 and,
A •
accordinK to counsel, even this document did not refer to any two
C::hatrams but refer.red to only two Chatram prope_!ties. The original
Tamil entries which have been referred to in the High Court judgment
and the revenue map which was prepared on the basis of sketch and

B
map in 1899 Ext. S. 213, it is submitted, T.S. No. 668 contained the
Chatram (Chaultry) had two distinct buildings contained in the same ...
survey number. One to the West and other to the East as shown in
revenue map of 1899 and that it is clear that these were regarded as
two Chatram properties in the power of attorney dated 25.1.1904 Ext.
B. 170. The oral statement of D.W. 4 the Poo.jari, th.at the suit pro-
perty was known as 'Sudhra Chaultry' was, it is submitted, clarified
when he stated in cross examination: "To my knowledge the suit pro-
c perty was not used as a Chaultry at any time." As we shall see here-
after this assertion was belied by evidence on record.

Mr. Shanti Bhushan further submits that even the reference to
the boundaries in the partition deed of 1896 Ext. B. 5 dated 21.8.1986
D showed that the property which was allotted to the aurasa sons under
that partition deed include T.S. No. 666 also, namely, "East of the
house of Sivarama Chetty and Ponnaya Chetty," Interpreting the
statement it is submitted that a reference to the Town Survey Field
Register extract of Erode Town Ext. A. 150 would show that Sivarama
Chetty was the occupant of T.S. No. 662 and Ponnaya Chetty was the
E occupant of 663. A reference to records of measurement Ext. A. 134 .-
would also show, according to him, that Survey No. 662 was not the
West of Survey No. 666 at all and if 665 alone had been the subject
matter of partition deed of 1896 the Western boundary could have only
shown the house of Ponnaya Chetty and it could not have by any
possibility mentioned the house of Sivarama Chetty also. On the other
F hand, it is submitted , if both these survey Nos. 665 & 666 were the
>
subject matter of that partition deed then the houses of Sivarama
Chetty and Ponnaya Chetty both have to be of the Western boundaries
under partition. It may be mentioned that the High Court clearly . I

found a Chatram on T.S. No. 66,6.

G With reference to the partition suit OS No. 54 of 1950 it is sub-
milted that even if T.S. No. 666 had not been the subject matter of
partition in the suit between the plaintiff Vaiyapuri Chettiar and the
defendants 13 and 14, yet it would not affect their title to Survey No.
666 but would continue to be joint between them, and that it is settled
law that persons can bring a suit for possession over a property against
H persons who do not have any title to it particularly if they join all
) ,,
SWAMYNATIIAN v. PADMANABHAN [SAIKIA, J.] 735

; concerned as defendants. Since defendants 13 and 14 hav.e been imp-
A
leaded as defendants in the suit it would be immaterial as to whether in
suit OS No. 54 of 1950 T.S. No. 666 had or had not been divided
between them. Counsel points out that the certified copy of the origi-
nal plaint showed that the first part of the description of the property
was in Tamil which referred to T.S .. Nos. ·.665 & 666 ,and only there-
after something had been added by typing in English which might at B
the best introduce some ambiguity in the document relating to the
partition suit and, therefore, the document related to question of title
which arose out of the title deed executed in 1942 and 1945 i.e. Ext.
A.6. and A.8 could be referred to. Thus b_y a Jlrocess of argumentative
inference title is to be found in this document.
'
.
Counsel points out that the first defendant did not claim any title c
or possession to the whole of T.S. No. 666 but only to the part of that
T.S. number where Door Nos. 269 to 272 were situated as shown in
Sketch Plan shown as Ext. A. 1 and para 3 of her written statement
clearly showed that her sole claim to the title or possession related to
that portion only of survey No. 666 whereupon Door Nos. 269 to 272 D
were situated and DW-1, the sole witness of Defendant No. 1, said in
his evidence:

"During my father-in-law's childhood days itself his father
Ramaswamy Iyer died. Partition was effected. In it, under
-, Ex .. B. 5 in T.S. No. 666 there was no share given to Vakil E
Ramaswamy Iyer."

It is also submitted that the defendant No. 12 was the Poojari
N.G. Narayanasami Sastri who is respondent No. 7 herein and who
has given evidence as DW-4 acted as such on the basis of the permis-
sion given to him by document dated 14.11.1896 and since then he and F
his ancestors had been in possession of Door No. 268.

It is further submitted that in 1956 when a part of survey No. 666
was compulsorily acquired under the Land Acquisition Act for the
construction of a lane by the· Municipal Board that part was No. 666/ 1
and the rest of the Survey No. 666 was numbered as 666/2 and the G
Award dated 21.8.1953 was only in favour of the plaintiff Vaiyapuri
Chettiar which also indicated that he was the owner of T.S. No. 666
and was entitled to compensation and respondent No. 7 was a party
among others to the Land Acquisition Proceedings.

On the question of adverse possession it is submitted by Mr. H
736 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.

Shanti Bhushan that even the claim of adverse possession of Door •
A
Nos. 269 to 272 was not justified in law and DW-1 who is the son-in-
law of Defendant No. 1 clearly deposed:

"But a permission was given to Vakil Ramasamy Iyer to
stay in one portion ofT.S. No. 666 to continue his advocate
B practice. I do not know that, permission was given under
Ex. B. 5 or later. But at door No. 272 Ramaswamy Iyer was
residing and doing advocate practice."

According to counsel it is clearly a matter of admission that the
possession of Vakil Ramasamy Iyer was only over Door No. 272 and.
J
was limited to that portion of Survey No. 666 and it had commenced by '
c way of permissive possession only at the time of partition between him
and the rest of the family and no part of Survey No. 666 was given in
partition to Vakil Ramasamy Iyer except in Door No. 272 and that
permissive possession cannot be converted into adverse possession
unless clearly the hostile title is asserted by the person in possession to
D the knowledge of the true owner; and that no evidence was laid on
behalf of the defendant No. 1 that any such hostile title to the
knowledge of the true owner was ever set up, so as to prescribe any
kind of title to that portion of T.S. No. 666, and their possession could,
therefore, be regarded only as possession on behalf of the true owner.
It is pointed out that by the sale deeds dated 19.6.75, 21.8.84 and
E 22.8.84 the legal representatives of defendant No. 1, r.e. respondent •
No. 8 herein, had sold the entire suit property, namely, T.S. No. 666
to respondent Nos. 9 to 12. It should, however, be noted that the
question of permissive or hostile possession presupposes title of the
plaintiffs without which the question would not arise at all.

F Mr. U .R. Lalit, learned counsel appearing for the respondents,
submits in refutal that the concurrent findings of the courts below are
wholly based on the Exts. and the conduct of the plaintiffs and their . ,
father throughout the litigation. The plaintiffs' case to the extent that
their father Vaiyapuri Chettiar became entitled to 2/3rd share belong-
ing to R.A. Ellayyar and R.A. Sankaranarayana Iyer, the aurasa sons
G of Annayyar under Ext. A. 5 and from respondents 13 and 14 simi-
larly acquired 1/3rd share of Meenakshisundaram Iyer under Ext.
A. 8. is not denied. But it is pointed out that Vaiyapuri Chettiar then
filed O.S. 54 of 1950, in the Sub-court, Coimbatore against defendants
13 and 14 for partition and recovery of his 2/3rd share under Exts. A. 5
and A.8. Exhibit A. 10 is the copy of the plaint filed by Vaiyapuri
.H Chettiar where he averred that he had obtained an undivided 1/3rd 1
SWAMYNATHAN v. PADMANABHAN [SAIKIA, J.l 737
;
share of the plaint schedule properties from R.A. Sankaranarayana
A
Iyer under a sale deed dated 10.12.1942 Ext. A.5 and he obtained a
decree for specific performance against R.A. Ellayyar and his sons in
respect of his 1/3rd share in O.S. No. 202 of 1942 and in execution of
the decree in E.P. No. 82 of 1944, the Sub-court had executed a sale
deed Ext.A.8 in his favour on 7.2.1945 in respect of the said undivided
1/3rd share belonging to R.A. Ellayyar. It was therein admitted that B
for the remaining 1/3rd share defendants 13 and 14 had obtained a sale
deed, Ext. A.6, from Meenakshisundaram Iyer and his snos. It is
pointed out that the property schedule therein included only T.S. Nos.
664/Part and 665 and buildings bearing New Door Nos. 140 and 141
Brough Road (Ward No. 18) and New Door Nos. 273, 274 and 275 in
T.S. Nos. 664/Part and 665. The said property was described as
bounded on the East by perundurai Road, on the South by the c
Cha tram etc. buildings, belonging to Sankaranarayana Iyer, Ellayyar
and Meenakshisundaram Iyer, on the West by the scavenging lane
belonging to Sankaranarayana Iyer, Ellayyar and Meenakshisundaram
Iyer and the house of N.N. Krishnaswamy Mudaliar and on the North
by Easwaran Koil Road and Ellusubramania Iyer's house. Signifi- D
cantly the present suit properties which are T.S. No. 666/2 and the
buildings bearing Nos. 268 to 272 were not included in the plaint
schedule in O.S. No. 54 of 1950. If really the case of the plaintiffs was
that .what was conveyed to the aurasa sons of Annayyar under B.
Schedule of Ext. B. 5 included or covered Survey No. 666/2, there
' could be no earthly reason why the plaint in 0.S. No. 54 of 1950, E
which was a suit filed by Vaiyapuri Chettiar, the successor-in-interest
of Sankaranarayana Iyer and Ellayyar for partition and recovery of
possession of his 2/3rd share could not have included T.S. No. 666/2
and also door Nos. 268 to 272. It is not disputed that O.S. No. 54 of
1950 was filed by Vaiyapuri Chettiar for partition of his 2/3rd share of
the property obtained by him under Exts. A. 5 and A. 8. and that the F
plaint description did not include or cover Survey No. 666/2 and Door
Nos. 269 to 272. The fact that Vaiyapuri Chettiar omitted to include
T.S. No. 666/2 in the plaint schedule in O.S. No. 54 of 1950 parti-
cularly when he has described the plaint schedule properties with
meticulous care, mentioning T.S. number of the land as well as door
numbers of the buildings therein proves that he did not get any right, G
title or interest over T.S. No. 666/2 under Exts. A. 5. and A. 8-sale
deeds. We find the submission reasonable. Expressio unius est exc-
lusio altorious. Expression of one thing is the exclusion of another.
The submission that Vaiyapuri Chettiar in his anxiety to get rid of
defendants 13 and 14 from joint ownership of the properties. might
f have failed to correctly describe the properties in the plaint in O.S. No. H

l
738 SUPREME COURT REPORTS !1990] Supp. '.i S.CJt

A 64 of 1960 is not acceptable. It clearly showed what pwperties wete
required by Vaiyapuri Chettiar by dint of Exts. A. 5. and A. 8. Natur-
ally he could not have laid claim to more than what he teceived under
the two transactions evidenced by the two Exts. A. 5 and A. 8. This is
consistent with the jack that defendants 13 and 14 also did not raise
any claim to T.S. No. 666/2 at all in that suit. Again during the trial o(
lJ that suit both parties niade a joint endorcement on the basis of which a
preliminary decree Ext. A. 11 dated 26.3.1950 was passed granting :i
decree in favour of Vaiyapuri Chettiar for 1/3td share of the suit
properties. The description of the properties therein was, as it nece1r
sarily had to be, the same as in the plaint. Pursuant to the prelimhiary
decree the plaintiff, Vaiyapuri Chettiar filed I.A. No. 1452 of 199()
Ext. 139 in O.S. No. 54 of 1950 for the appointment or a Commilr'
c sioner to divide the properties in terms of the preliminary decrees.
Accordingly a Commissioner was appointed on 25.8.1950 and Ext. S,
215 was the Commissioner's report wherein the Commissioner had
stated that on 23.9.1950 he visited the properties and took Measure"
ments for dividing the properties into three equal shares. At abdtit 5
0 P.M. the plaintiff and the defendants represented to him that they
themselves had come to an agreement regarding the mode of division
of the properties in the presence of Panchayatdars. The Patties, the
Panchayatdars and the Commissioner set throughout the hight, discus-
sed the mode of division and ultimately came to an agteement with
regard to mode of division. An agreement was entered into on the ,
E same day and the said agreement was marked as Ext. A. 13.5 in that
suit. 'A' schedule in the agreement had been allotted to the present
defendants 13 and 14 while 'B' schedule had been allotted to Vaiyaputi
Chettiar. The property that had been allotted under 'B' schedule of
Ext. A. 135 to Vaiyapuri Chettiar comprised T.S. Nos. 664/Part and
665/part and Door Nos. 273 and 274 and the vacant site. The said property
F was said to be bounded on the North by Easwaran Koil Road and Ellustibra-
mania Iyer's house, on the West by Brough Road, oti the South by
Dhandapani Koil and the Chetram and building belonging to Pillar .,
yar, Sankaranarayana Iyer and Meenakshisundaram Iyer and on the
East by scavenging lane belonging io Ellayyar and the house of N.N. •·•
Krishnaswami Mudaliar. No portion of T.S. No. 666/2 and none of the
G door Nos. 268 to 272 had been included in the A. Schedule property
allotted to Vaiyapuri Chettiar under Ext. A. 135. The Commissioner
had further stated in Ext. B.215 that on the basis of the agreement he
took measurements and drew up a plan with the help of the kernam of
Brode and otie Surveyor. The plan prepared by the Commissioner has
been marked as Ext. A. 2. The portion marked 'A' in Ext. A. 2 has
H been allotted to defendants 13 and 14 and the portion marked as 'S; in

I
SWAMYNAT!IAill v. PADMANABHAN iSAJKIA, J.] 739
- i
Ext. B.2 has been allotted to Vaiyapuri Cheitiar. On the basis ofExts.
A
. B.215 report and A. 2 plan, a final decree was passed by the Sub-court,
Colmba:tote in terms of Ext. A. 135 on 6. J0.1930. Ext. 0. i is the said
final decte:e. Pnrsuant to the final dectee; Vaiyaputi Chettia:r obtained
possession of the property. Exhibit.A. 12 is the warrant of possession
dated 12.1.1953 alld it Showed that the property was delivered over
without dispossession of those who were shown to be occupying the B
buildings as found in Ext. B.2 plan. Mr. Lalit peints out that not a
whisper has been made in the present suit that the description of the
plaint property in Ext. A. 10 suit was not correct and that for some
cause or other T.S. No. 666/2 has been omitted to be included in the
plaint schedule. Counsel submiis that if really T.S. No. 666/2 belonged
_to tlie aurilSa sons u_nder the partition deed, the plaintiffs' father would C
be entitled only to 2/3rd share in the suit prop·erties under Exts. A. 5
and A. 8 and defendantS 13 and 14 would he entitled to the remaining
1/3rd share and the present plaint could have proceeded on the basis
th~t the plaintiffs were entitled to only 2/3rd share and defendants 13
and 14 were entitled to the remaining l/3rd share. But that is not the
basis on which the present plaint had been filed. We find force in this D
submission. As the High Court observed, no plausible explanation has
been given in the plaint as to why the plaintiff's father, who must have
known what exactly was the property that lie purchased under
Exts. A. 5 and A. 8 did not include t.S. No. 666/2 and Door nos. 268
to 272 in Ext. A. 10 plaint. P. W. 1 admitted that no objection was filed
' to Ex!. B. 2 plan (trepared by the Commissioner. P. W. 1 and stated E
that the Commissioner did not measure the property lying south of the
pdrtion marked as 'B' in Ext. H. 2 plan, for being measured by the
Commissioner. As Mr. Lalit submits; when Vaiyapuri Chettiar,
the Panchayatdars and defendants 13 and. 14 sat with the Commissioner
the whole of the night on 23.9.1950, they must have been aware of the
actual' situs and extent of the land which had to· be divided between F
Vaiyapuri· Chettiar oil one hand and defendants 13 and 14 on the
"' ot&er. If reaily il\ey were entiiled to t.S. No. 666/2 and Door Nos. 268
fo 212, either Vaiyapuri Chettiat or defendants 13 and 14 would surely
have insisted the said land being ihcluded and' divided therein. The
faifure on the part of Vaiya:puri Chettiar to include the suit properties
in 0.$. N6. 54 Of. 1950 and getting them divided therein is very signi- G
fieant arid' cannot be ignore& 'Fhere is· also· the mention of an agree-
ment a~~ived'. at betwe·en the parties. If dearly showed that the docu-
ments of tiffo by virtne of which· the· partition was claimed did not mean
to irtdude- T.S. No. 666/2. The proceedigs in O.S. No. 54 of 1950,
sub_mfts· Mr~ Lalit, commencing' from the filing of Ext. A. 10 plaint and
culminatin~ in delivery of p'OssesSion· under Ext. A. 135 are sufficient H'
740 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.

A to prove that the plaintiffs' father did not acquire any right over T.S
No. 666/2 and door Nos. 268 to 272. Quod per recordum probatum
non-debitesse negatum. What is proved by record ought not to be
denied.

Mr. Lalit refers to Ext. B. 170, the Power of Attorney dated
B 25.4.1904 executed in favour of one Kalyanasundaram Iyer for the
purpose of management of Temple properties shown in its B Schedule
in Tamil. From the text the High Court held that it was clear that there
were two Chatrams and a Pillaiyar Koil which belonged to the Ellayyar
family. This clearly belied the submission that there was no Chatram on
T.S. No. 666 and the only Chatram was on T.S. No. 668. It was the
C Chatram on T.S. No. 666 that formed the southern boundary, in Ext.
B-4 Sudhra Chathira tiled house and in Ext. B-5, B Schedule, Sudhra
Chaultry. Again, Mr. Lalit points out, the plaintiffs filed an applica-
tion before the Erode Municipality for permission to put up a con-
struction on the vacant site in the properties obtained by them in
execution of the decree in O.S. No. 54 of 1950. Exhibit A. 19 is the
D approved plan under which the plaintiffs obtained sanction for the
construction of the building. A perusal of Exhibit A. 19 sanctioned
plan shows that the construction was proposed only in T.S. Nos. 665/
Part and 664/Part. Apart from the site on which the construction was
proposed, the plan showed the then existing construction on the pro-
perty. The southern boundary was given as Door No. 268 and T.S. No.
•
E 666. If really the plaintiffs were entitled to T.S. No. 666/Part they
would not have shown, in Ext. A. 19, T.S. No. 666 as the southern
•
boundary of their properties. The High Court rightly observed that
this was one of the circumstances which went against the case of the
plaintiffs that they were entitled to the suit properties. P. W. 1 had
admitted that the northern boundary in Ex. A. 19 was the common
F wall which was shown in Ext. B. 2 plan as separating the portions
marked as A and B therein. He had further admitted that the measure-
ment on the southern side of the property shown in Ext. A. 19 was 139 . .-
feet, which tallied with the southern measurement shown in Ext. B. 2
plan. P. W. 1 had also not disputed the fact that the eastern boundary
shown in Ext. A. 19 and Ext. B. 2 was the same. The High Court
G observed that these circumstances clearly proved that the plaintiffs
were not entitled to any portion of T.S. No. 666/2 and the buildings
therein.

Admittedly under Ext. A. 13 the plaintiffs took symbolical
possession of the properties allotted to him under Ext. B. I final
H decree in O.S. No. 54 of 1950. Exhibit A. 13 itself showed that there ~
SWAMYNATHAN "· PADMANABHAN [SAIKIA, J.J 741

were occupants in the buildings found in the portions marked at A and
A
B in Ext. B. 2 plan. Therefore, symbolic possession was delivered. It
could by no means show, in view of T.S. No. 666/2 having not been
included in the decree, that symbolical possession of T.S. No. 666/2
was taken.

It is in evidence that one Devathi Rao was running a hotel in B
Door Nos. 273 and 274. Exhibit B.2 plan showed that a coffee club
building existed in the B marked portion. Therefore, Devathi Rao was
not in occupation of the building situa:ed in T.S. No. 666/2. The 12th
defendant was living in Door No. 268 which comprised portions marked
A, B and C in Ext. A. 1 sketch and performing poojas in the temple.
The 10th defendant was in possession of Door Nos. 271 and 271-A.
The 5th defendant Thambayya Naidu was in occupation of Door Nos. c
269 and 270. There is no evidence of the Bailiff having affixed notice of
symbolical delivery on Door. Nos. 268 to 272. It is in evidence that in
Ext. A. 13 possession receipt contained only the attestation of Devathi
Rao, who was conducting a coffee hotel in the B marked portio·n, in
Ext. B. 2. It is also in evidence that the plaintiffs did not pay house tax D
for buildings other then Door Nos. 273 and 274, nor they thought it fit
to enquire till 1964 as to who were paying the house tax in respect of
the buildings situated in the suit properties. The High Court has rightly
observed that it was rather strange that when the plaintiffs have come
forward with_ a case that they obtained symbolical delivery of the suit
properties under Ext. A. 13 possession reciept in O.S. No. 54 of 1950, E
they are not in a position even to say as to who were in occupation of
the buildings in the suit properties on the date of Ext. A. 13. If there
were tanants, as stated by P. W. 1, in the _p_rol'_erties at the time when
the plaintiff obtained symbolical possession under Exhibit A. 13, the
tenants must have attorned to him and as and when the old tenants left
the premises new tenants could have been inducted into the premises F
only with the knowledge of the plaintiffs, who claim to be the owners
•. ,
of the properties. The High Court has therefore concluded that there
was absolutely no evidence of any act of possession having been exer-
cised by the plaintiffs in respect of the properties prior to 1964 except
as regards the construction of a lavatory to an extent of 400 square
feet. Admittediy prior to 1964 no notice had been given to the contest- G
ing defendants by the plaintiffs. The High Court therefore concluded
that the failure to exercise any act of possession over the suit proper-
ties and coupled with the fact that the plaintiffs did not even attempt at
any time to find out as to how and under what right these various
defendants have been in possession of the suit properties can only lead
to the irressistible couclusion that the plaintiffs and their predecessors- H
742 SUPREM!l COURT REPORTS (1990] Supp. 3 5.CR,

A in-interest did not obtain any right, title or interest over the suit prop~
erties. We do not find any reason to differ in tllis regard.

Mr. Lalit refers us to Ext. B. 34 which is the registered lease
deed dated 1.5.1946, executed by Ellusubramania Iyer in fevour of
R.K. Venkataswamy Naicker, father of defendants 2 to 4 who claimed
B possession of Door Nos. 269, 270, 271 and 271A. The second defen-
dant in his written statement has stated that his father obtained Ext, B.
34 lease deed and then constructed Door Nos. 268, 270 and 271A. T[lis
plea of the second defendant was made out by Ext. B. 34 lease deed,
whereby a vacant site in T.S. No. 666was leased out to Venkataswamy
Naicker for a period of ten years on a monthly rent of Rs.15. The .'
C leassee had been permitted to put up building. There was a provision
that on the termination of the lease tbe land together with the build-
ings should be surrendered to the lessor. The lease had been renewed
subsequently by the first defendant himself. The High Court observed
that when P.W. I was confronted with Ext. B. 34 lease deed, he qid
not deny the fact that Ellusubramania Iyer executed Ext. B. 34 in
D favour of father of defendants 2 to 4. There is no evidence to show that
the plaintiffs or anybody else under the permission of the plaintiffs
constructed the buildings bearing Door Nos. 269 to 271, There is evi-
dence to show that the second defendant's father having taken lease
under Ext. B. 34 from Ellusubramania Iyer and having put up constru-

E
tions bearing Door Nos. 269 to 271. Exhibits B. 35 to B. 37 are the rent
receipts issued by Ellusubramania Iyer to the leassee for receipt of
•
rents. Exhibits B. 39 to B. 42 are records to show that the leassee
Venkataswamy Naicker sublet the buildings to various persons.
Exhibits B. 43 and B. 44 are the accounts maintained by Venkatas-
wamy Naicker for the construction of the buildings. The High Court
was rightly convinced that door Nos. 269 to 271 were put up by Ven-
F kataswamy Naicker pursuant to Ext. B. 34. High Court found it impos-
sible to believe that if really the plaintiffs were entitled to the suit
properties, they would have remained quiet when Venkataswamy
.. /

N aicker had constructed not one but three buildings over the suit
properties which would not have failed to attract the attention of the
plaintiffs. The explanation that the plaintiffs came to know about the
G lease deed and the occupation of the defendants 2 to 4 in portion of
T.S. No. 666 or any portion of the suit properties only at the time when
the plaintiffs filed a writ petition in the High Court, cannot be
accepted. It was not denied that the T.S. number referred to in Ext.
B. 34 is 666.

H In Ext. A. 132 dated 24.5.1911 entered into among Ellusubra-
SWAM):'NATH4N v. l'ADMANA!lHAN \SAll>.jA, J.j 743

µliln~a ~f.i:f 1!114 pttJ.ers, Ellusubramani11 [yer had b."!'n allotted 'A'
A
sroe!li!4e pr,opelfy. The property ,that fell to the sh.are of Va}<il
~am¥ [yer under(:. ·schedule under Ext. B. 5 partition deed, has
!~.n .ajlotted to Ellusubramania Iyer. The property is described as
~ying .on the South of Easwam Koil Street, on the North of the house of
li!l'.li!-yyar ;md the vac,ant site, .on the East by the house of Ramachandra
jRao and on ,the West by Perundurai Road. This property is shown in B
if):;i:t.. A- !sketch.as T.S. No ..!)64. Itis admitted by all parties to the suit
\that t!he survey number .of this portion is only T.S. No. 664. The
plaintiffs ;themselves have admitted that these defendants are in posses-
sion .of Door Nos ...268 to .272 and they were unable to give any explana-
,tj_on as to how and wiben these ,persons .came i.nto possession of the
r~sp.ecti¥e door.s -Occupied by them. Mr. Lalit submits that this pro-
babilis\l!l that the p"laintiffs !had no title to .the .suit properties. We are C
mc.line.d to agiee.

Mr. La:lit .also .explains two other facts in evidence. As has
;iire.ady been·said a p0rti0p of T.S. No. 666 was compulsorily acquired
!by '.!he State under ;the Land Acquisition Act Exhibit A. 15 shows that D
.tib.e Municipal Commissioner had applied for the acquisition of 582
sq:u::i~e feet of [and dn T:S. No. 666 for the formation of a scavenging
lwil. Exhibit A. 16 dated 21.3.1.966 was the Award passed by the
Tellsildar, Erode, -0f Rs:532-0-3. The names of the occupiers of the
pr.opeity were giv,en th.erein -0ne of .whom was Vaiyapuri Chettia.r.
EJ!'.hibit A. 17 is the .order passed dn C.C. No. 3 .of 1957, on .the file of E
it.lie .Sub,court., 'Ero.de .under Section 31(2) of the [,and Acquisition Act.
The 7th.•.cJaimantinC.C No. 3,of 1957 was Vaiyapuri Chettiar and he
•11.ayj.ng died, the ,pxesent plaintiffs were imp leaded as .claimants 8 to 11
,and 1they were found to be entitle to the compensation amount
.!!Warded iby ,the T.ehsilda.r under Ext. A. 16. Mr. Shanti Bhushan,
•e.arned counsel for the appellants, heavily relied upon 'Ext. A. 17 as an F
~nstance where •the title of the plaintiffs over T.S. No. 666 was recog-
-e;ised and wmpensation for the portion enquired from that survey
.number was given ·to the plaintiffs. Mr. Lalit refutes the claim submit-
•tiJ;l,g that n0 .(lotice was given to the defendants and as such they were
il}(i)t .aware •of .it. Counsel further submits that Ext. A. 17 contained a
'ist of documents <tiled therein •by .the ,present ,plaintiffs and that only G
il:l'ie ,documents which ·have been marked in this suit as Ext. A. 5. sale
l"1!leJi .executed by Sankaranarayana Iyer in favour of Vaiyapuri Chet-
Y!l:f, )Ext. A. i8 ..sa'ie odeed execµted by the •snb-judge, ·Coimbatore to
:Y.;tiyapur.i Qbettiar, iEW:. ;A. 3 rnQrtgage .deed .executed by R.A.
!E>!Jayy,ar ~n ~a;vour .-0f 'Salem iBarik .and iE><t. tA. 4 assignment .of mort-
,g::i,ge 1exe.cJ;l'te.d tlily \tl\.e :Sid1>m iBank in aavour of Vaiy.apuri 1Ghettiar had H
744 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

A been filed, along with a copy of revenue map of Erode Town Block
No. 23. This means none of the documents connected with 0.S. No. 54
of 1950, on the file of the Sub-court had been filed by the plaintiffs such
as Ext. A. 10 plaint, A 11 preliminary decree, B.213 Commissioner's
report, B. l final decree, .B.2 plan drawn by the Commissioner and
A .13 possession receipt. In the circumstances, the High Court rightly
B concluded that the mere fact that under Ext. A.17 order dated
30.11.1957 the plaintiffs were allowed to draw the compensation in
respect of a portion of T.S. No. 666, could not constitute any proof
that the plaintiffs had title to the suit properties. We see no reason to
differ.

Mr. Shanti Bhushan emphasised the fact of the plaintiffs erecting
c a lavatory in 1958 covering an area of 400 square feet inside T.S.
No.666/2. Mr. Lalit, however, points out that it was admitted that the
first defendant tried to prevent the plaintiffs from constructing it and
that notwithstanding the opposition, it was constructed. We agree with
the High Court that this opposition strengthened the case of the con-
D testing defendants showing that the plaintiffs were opposed by the first
defendant when they attempted to exercise their title over T.S. No.
666/2 by constructing a lavatory as early as 1959. Admittedly, the
plaintiffs had not taken any steps against the first defendant immedia-
tely thereafter till 1964. At that time Door Nos. 268 to 272 were
existing on the suit properties and the contesting defendants were
E admittedly in the possession thereof. There was no evidence of any
proceeding initiated earlier against them. Mr. Lalit submits that the
proceedings of the Erode Municipality with respect to the transfer of
registration in respect ofT.S. No. 666, in the name of one or the other
parties to the suit was not of much significance as the same had started
only in 1964 and the suit was filed in 1970. Therein also, at one stage
F the transfer of registration was effected by the Municipality in the
name of the plaintiffs. But immediately the first defendant raised
objection to the same and the Municipality got the registration trans- - -·
ferred back to the original name. Thereupon, the plaintiffs filed the
writ petition in the High Court and the same having failed they filed
writ appeal which also having failed they filed the present suit for
G declaration of their title to the suit properties and for possession
thereof.

On close consideration of the evidence on record, the arguments
advanced by the learned counsel for the parties and the reasons given
by the High Court affirming the decree of the trial court, and the
H historical introduction to the derivation of title by the plaintiffs as
SWAMYNATHAN v. PADMANABHAN [SAIKIA, J.} 745

given by Mr. Shanti Bhushan with analysis and precision, we had to
discuss the evidence in detail. However, from what the plaintiffs' A
father himself considered to have acquired by dint of Exts. A.5 and
A. 8 and the decree obtained by him in O.S. No. 54 of 1950 appeared
to us to be much more important than what the plaintiffs have claimed
in this suit. While interpreting the Exts. A. 5 and A. 8 and the decree
one has to take into consideration what the parties themselves B
intended. Q!'ia non refert out quis intionem suam dec/arat. verbis out
rebus ipsis ve/ factis. It is immaterial whether the intention be collected
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 nomon operi meo. My intent gives a name to my act. Facta
sunt potentiora verbis. facts are more powerful than words. Factum c
cuique suum adversario hocere debet. A party's own act should pre-
judice himself, not his adversary. Traditio logui facit certam. Delivery
ma)<:es a deed speak. Delivery gives affect 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 D
deliberation fixed and accepted.

In the above view of the matter, the right to T.S. No. 666(2
having, not been acquired 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. 'fhe second question posed E
by the High Court would not arise.

I
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 rightful owner of the property under a
different title, the possession of the former is said to be adverse posses- F
sion with reference to the latter. Adverse possession is a statutory
method of acquiring title to land by limitation. It depends on animus
or intent of occupant to claim and hold real property in opposition to
all the world; and also embodies the idea that the owner of the pro-
perty has knowledge of the assertion of ownership by the occupant.
"ownership of proper~ is, says Austin, "a species of jus in rem. It is a G
right residing in a person, over or to a person or thing; and availing

-
' against other persons universally or generally. The obligations implied
by it are also negative as well as universal" (Austin on Jurisprudence
p. 177). "It is a right imparting to the owner a power of indefinite user,
capable of being transmitted to universal successors by way of descent,
and imparting to the owner the power of disposition (from himself and H
746 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.

A his successors per universitatem and from all other persons who have a
spes successionis under any existing concession or disposition), in
favour of such person or series of persons as he may choose, with the
like capacities and powers as he had himself, and under such condi-
tions as the municipal or particular law allows to be annexed to the
dispositions of private persons." (Ibid, p. 412-13).
B
In the instant case Vaiyapuri Chettiar was never proved to have
acquired ownership of T.S. No. 666/2. Under section 54 of the Trans-
fer of Property Act, delivery of tangible property takes place when the
seller places the buyer, pr such person as he directs, in possession of
the property. Under section 55{f) of that Act the seller is to give, on
c being so required, the buyer, or such person as he directs, such posses-
sion of the property as its nature permits. There is no evidence of T.S .
. No. 666/2 ever having been delivered to Vaiyapuri Chettiar. 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 Vaiyapuri
Chettiar acquired any title to it.. Obviously, the plaintiffs also could not
D inherit the same.

This appeal accordingly fails and is dismissed. We leave the
parties to bear their own costs of the appeal.

V.P.R. Appeal dismissed.

I
,