PETITIONER:
JOSE DA COSTA & ANOTHER
Vs.
RESPONDENT:
BASCORA SADASHIVA SINAI NARCORNIM & ANR.
DATE OF JUDGMENT07/04/1976
BENCH:
GOSWAMI, P.K.
BENCH:
GOSWAMI, P.K.
KHANNA, HANS RAJ
CITATION:
1976 AIR 1825 1976 SCR (3)1067
1976 SCC (3) 766
ACT:
Ownership by prescription or adverse possession-
Knowledge of possession-Possession for a long time-Peaceful-
Permissible possession whether sufficient.
Portuguese Civil Code-Articles 474, 505, 510, 528 and
529.
HEADNOTE:
The respondent plaintiffs instituted a suit in 1961 in
accordance with the Portuguese law then in force in those
territories for ejectment of the defendant-appellants from
the suit property. It was alleged in the plaint that on the
death of father of the plaintiff No. 1. Sadashiva the suit
land was assigned to Sitabai mother of plaintiff No. 1 and
that on the death of Sitabai the property devolved on the
respondent No. 1 and his 6 sisters. It was also contended
that the house built on a portion of the land in dispute and
occupied by the defendants should be removed by the
defendants and the defendants should be directed to hand-
over vacant possession of the plot to the respondents. The
appellants in their written statement pleaded that the suit
property was given on perpetual lease to the ancestors of
the appellants and that no rent was paid for over 40 years.
The appellants further contended that the suit property was
in their open peaceful and continuous possession including
that of their predecessors in interest as owners for a
period of more than 50 years and that the have acquired a
title by prescription.
The trial court decreed the suit. An appeal filed by
the appellants before the learned Additional Judicial
Commissioner was dismissed. When the matter came up before
this Court by special leave this Court remanded the matter
to the court of the Judicial Commissioner for a finding on
the plea of prescription raised by the appellants. The
learned Judicial Commissioner after remand came to the
conclusion that the appellants have failed to prove the
acquisition of full title to the suit property by
prescription under the law in force at the relevant time.
The learned Judicial Commissioner also held that the
appellants failed to establish their plea of perpetual
lease.
Partly allowing the appeal.
^
HELD: (1) In view of the earlier decision of this,
Court this Court would be justified in deciding the appeal
only on the question of plea of prescription. The appellants
had been in continuous possession of the entire plot of land
described in para 1 of the plaint which has a larger area
including the portion where the house of the appellant
stands. In the year 1920, the respondents sought to make
their construction on the vacant portion of the land close
to the appellants' house which led to opposition and
obstruction from the appellants. Later on, the appellants
agreed to the construction by the respondents. However, so
far as the land on which the appellants had their house is
concerned there was no proof nor any evidence of any change
on the part of the appellants to their open hostility to the
respondents' title to the same. The respondents did not give
any evidence of any such amicable solution. On the other
hand, it is admitted that they had reported to the
Administrator without even caring to know the result of such
action against the appellants. The further fact that the
respondents annexed to the plaint a certified copy of the
partition deed of 1920 which was obtained as early as in
1920 goes to show that they were fully cognizant of the
public assertion by the appellants of their own title, to
the land on which their house stands repudiating that of the
respondents. The learned Judicial Commissioner has erred in
holding that the appellants have not been able to prove an
overt act of possession to the knowledge of the respondents.
According to Art. 474 of the Portuguese Civil Code
possession is defined as holding or fruition of anything or
right. The acts done by licence or permission do not
constitute possession. According to Article 505 things and
rights are acquired by virtue of possession, just as
obligations are extinguished by reason of not demanding
their fulfillment. The law lays down conditions and the
period of time
1068
that are necessary for one as well as for the other thing
and that is called prescription. Under Article 528 of the
Portuguese Code in the absence of registration of possession
or title of acquisition prescription with respect to
immovable property or rights to immovable will operate by
virtue of possession for 15 years. Under Art. 529 when the
possession of immovable property or rights to immovable
property has lasted for a period of 30 years prescription
will operate. Under the Portuguese law what appears to be
clear is that permissive possession is not sufficient to
prescribe title of the owner of the land. There is no
evidence whatsoever for the conclusion of the Judicial
Commissioner that the possession of the appellants was
permissible under the respondents. On the other hand,
evidence is against recognition by the appellants of any
title in the respondents. We are, therefore, left with the
long continuous and peaceful, possession by the appellants
of the land with the residential house thereon since the
time of their ancestors after a clear repudiation of the
title of the respondents to the land in 1920. The fact that
the appellants set up title in Vishnu Narcornim describing
him as respondents' ancestor does not affect the position in
view of the respondents' denial that Vishnu had anything to
do with the land. The Judicial Commissioner fell into an
error by not keeping the distinction between Vishnu's title
and the respondents' title. The origin of ownership of land
being dipped in the misty past what emerges from the
evidence in the absence of proof of lease or permission by
the respondents' own ancestors is that the appellants have
been in long and open possession of the land over which they
have constructed their house for a period long enough for
that possession to ripen into ownership. The appellants have
acquired title to the said land by prescription. Since there
is no proof of permissive possession under the respondents
or their ancestors there is no question of application of
Article 510. The learned counsel for the appellants has
confined his claim in this case only to the land on which
appellants have their house. The suit of the respondents so
far as it relates to the portion of the land on which the
appellants have their house is dismissed and in respect of
the remaining portion of land is decreed. [1070G, 1072A-D,
1073A-H, 1074A-C, 1075D-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1521 of
1968
Appeal by special leave from the judgment and decree
dated the 20th January, 1968 of the Court of Addl. Judicial
Commr., Goa Daman Diu in Civil Appeal No. 213 of 1966.
U. R. Lalit, K. Rajendra Chowdhary, Mrs. Veena Khanna
and S. L. Setia, for the appellants.
V. M. Tarkunde, V. N. Ganpule and A. G. Ratnaparkhi,
for the respondents.
The Judgment of the Court was delivered by
GOSWAMI, J.-The appellants in this appeal by special
leave Jose da Costa and his wife, Isabela Braganca, are the
defendants and the respondents, Bascora Sadashiva Sinai
Narcornim and his wife, Durgabai Narcornim, are the
plaintiffs in the original suit.
The plaintiffs instituted a suit in the court of Judge
of Quempem Comarca on February 27, 1961, in accordance with
the Portuguese law then in force in those territories for
ejectment of the defendants from the suit property. It was
alleged that on the death of Sadashiva, father of the
plaintiff, Bascora, in partition proceedings with minors
(inventario), this plot was assigned to Bascora’s mother,
Sitabai, towards her moiety in the estate. On Sitabai’s
death, the property devolved on the plaintiffs, Bascora and
his six sisters. Before the partition of the property among
the legal heirs of Sitabai, Bascora
1069
acquired the rights from some of his sisters and became the
owner of the suit property with other heirs. Bascora’s
parents had inherited this property from their ancestors.
The father of Bascora had permitted the ancestors of the
defendants to build a house for their residence on a part of
the property subject to the condition that they shall have
to vacate the plot when called upon to do so. In the latter
event, they shall be entitled to remove the super-structures
of the building raised by them.
Even so, the plaint goes on to say that Caetana
Esperanca Fernandes, the mother of the appellant, Jose da
Costa, executed a deed on November 16, 1920, before the
notary public of Comarca, which indicated that she and her
family members were owners of the plot. On the basis of this
deed, the defendants asserted ownership of that part of the
plot on which stands the house built by their ancestors and
now in their occupation.
On the above allegations, the plaintiffs prayed for a
declaration that the plaintiff, Bascora, and the other heirs
of his mother, Sitabai, are the only owners of the plot in
dispute and that the house in the occupation of the
defendants on a part of that plot was constructed in the
circumstances and subject to the terms mentioned in the
plaint. They further prayed that the defendants be directed
to vacate the plot after removing the materials of their
house.
The defendants denied the allegations and pleaded that
it was Vishnu Bascora Sinai Narcornim, an ancestor of the
plaintiffs, who had given the suit property on perpetual
lease to Pascoal da Costa, an ancestor of the defendants in
the year 1875, at an annual rent of rupees 2/4/-. It was
stated further that no such rent has been paid for over
forty years before the suit nor has any rent ever been
claimed by the family of the plaintiffs for such a long
time. It was Pascoal da Costa who possessed the plot as his
own and originally built one house on it but subsequently
his descendants constructed more houses so that at present
there are three houses and one stable on the plot in
dispute. On Pascoal de Costa’s death, in inventario
proceedings, this property on November 16, 1920, was
“consolidated in full ownership in the patrimony of the
descendants of the said Pascoal da Costa.”
The defendants further aver in their written statement
that the suit property has been in their “open, peaceful and
continuous” possession including that of their predecessors-
in-interest, as owners for a period of more than 50 years
and that they have acquired title by prescription.
The trial court decreed the suit on April 30, 1966,
directing the defendants to remove their superstructures on
the land or in the alternative to receive from the
plaintiffs Rs. 1084/- which was found to be the value of the
materials of the house in question as per estimate of the
experts appointed for the purpose. On appeal the learned
Additional Judicial Commissioner dismissed the same on
January 20, 1968, and affirmed the decree of the trial
court. The defendants came to this Court by special leave
against the judgment of the Additional Judicial Commissioner
and this Court by its order dated August 1,
1070
1975, which has since been reported in AIR 1975 S.C. 1853,
remanded the appeal to the Judicial Commissioner for a
finding on the plea of prescription raised by the defendants
by observing as follows:-
“The plea of prescription goes to the root of the
matter. It was raised by the defendants in their
pleadings and the matter was put in issue. It was again
taken up in the grounds of appeal filed in the Court of
the Judicial Commissioner, but was left undecided. For
the purpose of doing complete justice in the case, we
think it necessary to have the advantage of the finding
of the court below on this issue. Accordingly, we remit
this case to the Court of the Judicial Commissioner,
Goa Daman and Diu with the direction that it should
after rehearing the parties record a specific finding
on the issue as to whether the defendants had acquired
full title to the suit property by prescription under
the law in force at the relevant time. The Judicial
Commissioner shall submit his report with reasons
therefor to this Court within four months from the date
on which the records are received in his court. In the
meantime the appeal shall remain pending in this
Court.”
We have actually taken the facts of this case from the
above decision.
The Judicial Commissioner has since submitted his
report dated December 5, 1975, and the appeal has come up
before us for final hearing.
After examining the entire evidence, oral and
documentary, the Judicial Commissioner has come to the
conclusion that the defendants have failed to prove their
acquisition of full title to the suit property by
prescription under the law in force at the relevant time.
During the hearing we did not have before us any
printed Portuguese Civil Code or any standard legal treatise
to which we would have ordianily liked to refer. Counsel for
the appellants, however, produced certain extracts from
various articles to which counsel for the respondents has
not taken any exception. There is also reference to certain
articles from the Portuguese Civil Code in the earlier
judgment of this Court as also in the Report submitted by
the Judicial Commissioner, Both the parties accept those
articles as correct, although the original books are not
before us.
In view of the earlier decision of this Court and after
hearing the parties we feel that we will be justified to
decide this appeal only on the question relating to the plea
of prescription.
Since the original perpetual lease was not produced in
court and a certified copy of the original translation of
the perpetual lease issued on November 23, 1920, was alone
produced, we have no reason to disagree with the conclusion
of the Judicial Commissioner that the defendants failed to
establish their plea of perpetual lease of, the land.
Before we may proceed further it will be appropriate to
note that even the plaintiffs themselves laid a nucleus for
the plea of adverse
1071
possession to be easily taken up by the defendants. Para 5
of the plaint may, therefore, be quoted:-
“5. Notwithstanding this, the mother and mother-
in-law of the defendants Caetana Esperanca Fernandes
with the ambition of alleging to the said plot of the
plaintiffs rights that do not assist her, participated
as an executing party, in a deed drawn up on 16
November, 1920, by the former notary public of this
Comarca, Salinho da Silva, wherein a plot having the
denomination of “Deulacodil tucda” or “Mordi” was
partitioned, one-third of which was assigned to the
said Caetana, and with basis in that partition the
defendants allege to be the owners of the ground
whereon the said house raised by their ascendants is
situate.”
Indeed this repudiation of title of the plaintiffs by the
defendants gave rise to the cause of action. We cannot
accept the submission of Mr. Tarkunde on behalf of the
respondents that the word “allege” in the above paragraph in
the present tense makes any difference in the matter of the
plea.
Not only in the plaint, but also in the evidence, the
plaintiff Bascora gave further reinforcement to the plea of
adverse possession when he stated thus:
“… in 1920 the deponent (that is the plaintiff),
desiring to build the house existing in the plot of
land, there were disputes raised by defendant’s mother
and by one Santana Costa and then the deponent (that is
the plaintiff) notified them through the Administration
Office of Sanguem to vacate the plot land. He does not
know what subsequent course his petition had..”
Mr. Tarkunde submits that there might have been some
dispute which, however, was settled and the plaintiffs built
the house on the suit land and the defendants also continued
on the land under the earlier permissive arrangement. Mr.
Tarkunde draws our attention to the following passage in the
evidence of defendant No. 1:-
“In 1920 more or less, the plaintiff built a house
in the plot in question and begun to stay there. The
same house was built very near the house where the
deponent (that is the defendant No. 1) stays and which
already existed at the time of that building. The
dependent was about 14 or 15 years old. The grandfather
of the deponent Pascoal da Costa and his uncle
Francisco Piedade Costa and even the deponent’s mother
opposed the said building raised by the plaintiff. The
question was amicably solved at the house of Narcornins
Bencares to which the plaintiff belongs, to the effect
that the plaintiff should build the house and reside in
it as well as the said persons who had their houses in
it should continue to reside therein. The deponent came
to know of these facts regarding the dispute and its
solution after hearing his said uncle Francisco Piedade
da Costa.”
1072
Apart from the fact that the above is hearsay evidence
we are clearly of the view that the statement is not
sufficient to annihilate the theory of repudiation of the
title of the plaintiffs to the property. It stands to reason
that the defendants had been in continuous possession of the
entire plot of land described in para 1 of the plaint which
is a larger area including the portion where the house of
the defendants stands. In the year 1926 the plaintiffs
sought to make their construction on the vacant portion of
the land close to the defendants’ house which led to
opposition and obstruction from the defendants. At that time
apparently the defendants later agreed to the construction
by the plaintiffs and that seems to be the reference to the
“amicable” solution in the above extract.
So far as the land on which the defendants had their
house, there was no proof nor any evidence of any change on
the part of the defendants to their open hostility to the
plaintiffs’ title to the same. The plaintiffs did not give
any evidence of any such amicable solution. On the other
hand, it is admitted that they had reported to the
Administrator without even caring to know the result of such
action against the defendants. The further fact that along
with the plaint the plaintiffs annexed a certified copy of
the partition deed of November 16, 1920, which copy was
obtained as early as on December 22, 1920 goes to show that
they were fully cognizant of the public assertion by the
defendants of their own title to the land on which their
house stands repudiating that of the plaintiffs. Mr.
Tarkunde submits that there is no evidence that this
document had been actually obtained by the plaintiffs, but
production of the document without any explanation from the
side of the plaintiffs speaks a volume about their knowledge
of the repudiation of title.
Mr. Tarkunde also invited our attention to the
statement of defendant No. 1 to the effect:
“that the plaintiff for reasons of enmity does not
receive this rent nor he ever asked for its payment to
the deponent (that is defendant No. 1) and other
members of his family.”
This statement cannot be torn from the context of the
alternative plea set up by the defendants. This statement is
fairly consistent with the alternative plea of perpetual
lease of the land set up by the defendants. According to the
defendants the land had been in their occupation on
perpetual lease from Vishnu Narcornim, the plaintiffs’
paternal uncle and once that would have been acknowledged by
the plaintiffs the defendants would perhaps be willing to
pay even to the plaintiffs the annual rent. But it is the
clear case of the plaintiffs that the story of perpetual
lease was false and fraudulent and besides that Visnum
Narcornim had no interest in the land and was not competent
or authorised to lease out the same. We, therefore, cannot
accept the exaggerated importance to the above statement of
the defendant No. 1 in his cross-examination.
The Judicial Commissioner, however, rightly observed
that “an overt act of possession to the knowledge of the
plaintiffs and their
1073
ascendants must be shown to have taken palce.” From the
above discussion, we have no hesitation in arriving at the
conclusion that the defendants have been able to establish
the same and the Judaical Commissioner is not right in
taking a contrary view.
According to Article 474 of the Portuguese Civil Code,
“Possession is defined as holding or fruition of any thing
or right. Para 1. The acts done by licence or permission do
not constitute possession…”
According to Article 505, things and rights are
acquired by virtue of possession, just as obligations are
extinguished by reason of not demanding their fulfillment.
The law lays down conditions and the period of time that are
necessary for one as well as for the other thing. This is
called prescription.
Proviso. The acquisition of things and rights is known
as positive prescription; the discharge of the obligations
by reason of not demanding their fulfillment is known as
negative prescription.”
Article 528 reads thus:
“In the absence of registration of possession or
title of acquisition, prescription with respect to
immovable property or rights to immovable will operate
by virtue of possession for 15 years.”
Article 529 of the Code is as follows:-
“When, however, the possession of immovable
property or rights to immovable property referred to in
the foregoing article has lasted for a period of 30
years, prescription will operate; and no mala fide or
absence of title can be averred, except the provisions
of Article 510.”
Thus even under the Portuguese law what appears to be
clear is that permissive possession is not sufficient to
prescribe title of the owner of the land.
The Judicial Commissioner was not right in holding that
possession of the defendants was permissive under the
plaintiffs. There is no evidence is against recognition by
the defendants of any title the evidence is against
recognition by the defendants of any title in the plaintiffs
as such. The Judicial Commissioner mistook the defendants’
admission of the alleged perpetual lease under Visnum
Narcornim as permissive occupation under the plaintiffs even
after holding that the defendants failed to establish
perpetual lease.
We are, therefore, left with the long, continuous and
peaceful possession by the defendants of the land with the
residential house thereon since the time of their ancestors
after a clear repudiation of the title of the plaintiffs to
the land in 1920. The fact that the defendants set up title
in Visnum Narcornim describing him as plaintiffs’ ancestor,
does not affect the position in view of the plaintiffs’
avowed denial that Visnum Narcornim had anything to do with
the land. Visnum Narcornim is survived by his own
descendants and we are not dealing with a case where Visnum
Narcomim’s heirs as such have sought
1074
eviction of the defendants from the land. The plaintiffs do
not accept Visnum Narcornim’s title to the land as their
title. The Judicial Commissioner fell into an error because
of not keeping the distinction between Visnum Narcornim’s
title to the land and the plaintiffs’ title to the same. The
origin of ownership of the suit land being dipped in the
misty past what emerges from the evidence, in the absence of
proof of lease or permission by the plaintiffs’ own
ancestors, is the defendants have been in long and open
possession of the land over which they have constructed
their house for a period long enough for that possession to
ripen into ownership. The defendants in our opinion should
be held to have acquired title to the said land by
prescription.
There being no proof whatsoever of permissive
possession under the plaintiffs or their ancestors, there is
no question of application of the rule laid down under
Article 510, relied upon by Mr. Tarkunde.
Article 510 reads thus:
“One who possesses a thing in another’s name
cannot acquire it by prescription except if the title
of possession has been inverted, either due to an act
of a third party, or by objection raised by the
possessor to the right of the other in whose name he
was possessing it and not refuted by the latter; but in
such event the prescription shall run from the date of
inversion of the title. Sole para: The title is said to
be inverted when it is substituted by another title
capable of transferring the possession or ownership
(dominio).”
According to the Judicial Commissioner the above
Article is applicable and since the defendants could not
prove that there had been at some time “inversion of title”
their possession was merely “detencao” (namely, a precarious
possession) and such physical detencao without “animus”
cannot be invoked for the purpose of claiming any effect
that possession in one’s own name or as of right connotes.
It is difficult to see how Article 510 can be attracted to
the instant case. The defendants had at no time possessed
the land on which their house stands in the name of the
plaintiffs. They were never accepting the position of
permissive possession under the plaintiffs and had asserted
perpetual lease under Visnum Narconim, who, even according
to the plaintiffs, was an unauthorised person. Article 510
would not be attracted to this case when the defendants
alternatively were possessing in the name of Visnum Narornim
or his descendants. Article 510 is, therefore, clearly out
of the way. We are, therefore, not even required to consider
whether there was any “inversion of title” in this case or
not.
It is clear that the defendants’ ancestors and, after
them, the defendants have been in possession of the land
since 1875. Title of the plaintiffs was repudiated openly in
the year 1920. The defendants are in possession by occupying
the house standing on the land and the house was constructed
by the defendants’ ancestors. The plaintiffs had made a
complaint about their conduct in denying their title to the
land and in opposing their construction as early as in 1920.
The
1075
passivity and inertness of the plaintiffs thereafter for
over forty years till the institution of the suit in 1961
clearly establishes the plea of prescription set up by the
defendants.
It is significant that even the plaintiffs, being out
of possession of the land in suit for a long number of years
and having constructed their house on a house on portion of
the land only in the year 1920, sought to establish the
title to the property “by virtue of the prescription that
operated in their favour” (see paragraph 3 of the plaint).
Mr. Tarkunde has made a further submission, which
appears to have received approval of the Judicial
Commissioner, that the defendants’ witnesses while
describing the land in suit acknowledged it as “the
plaintiffs’ land”. It may not be overlooked that the
plaintiffs also have their own house on a part of the land.
We, therefore, cannot agree that the defendants’ witnesses
by identifying the land in suit in that manner defeated the
claim of the defendants with regard to the adverse
possession.
We may observe that Mr. Lalit, the learned counsel for
the appellants, fairly conceded that he was confining his
claim in this case only to the land on which the defendants
have their house.
The appeal is, therefore, partly allowed. The
plaintiffs’ suit for title to the land in occupation of the
defendants and for their eviction so far as that portion of
the land with their house on it is concerned is dismissed.
The plaintiffs’ suit for declaration in respect of the
remaining portion of the land, however, is decreed. As there
is no prayer for eviction of any person other than the
defendants, that claim is rejected. We express no opinion
with regard to the claim of persons who may be in occupation
of the land other than the defendants who are not impleaded
in the suit and against whom no relief has been claimed. The
judgment and decree of the Additional Judicial Commissioner
to the extent indicated in this judgment are set aside.
There will be, however, no order as to costs.
P.H.P. Appeal allowed in part.
1076