{"id":27586,"date":"1976-04-07T00:00:00","date_gmt":"1976-04-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jose-da-costa-another-vs-bascora-sadashiva-sinai-on-7-april-1976"},"modified":"2015-01-14T14:58:45","modified_gmt":"2015-01-14T09:28:45","slug":"jose-da-costa-another-vs-bascora-sadashiva-sinai-on-7-april-1976","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jose-da-costa-another-vs-bascora-sadashiva-sinai-on-7-april-1976","title":{"rendered":"Jose Da Costa & Another vs Bascora Sadashiva Sinai … on 7 April, 1976"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Jose Da Costa & Another vs Bascora Sadashiva Sinai … on 7 April, 1976<\/div>\n
Equivalent citations: 1976 AIR 1825, \t\t 1976 SCR (3)1067<\/div>\n
Author: P Goswami<\/div>\n
Bench: Goswami, P.K.<\/div>\n
           PETITIONER:\nJOSE DA COSTA & ANOTHER\n\n\tVs.\n\nRESPONDENT:\nBASCORA SADASHIVA SINAI NARCORNIM & ANR.\n\nDATE OF JUDGMENT07\/04\/1976\n\nBENCH:\nGOSWAMI, P.K.\nBENCH:\nGOSWAMI, P.K.\nKHANNA, HANS RAJ\n\nCITATION:\n 1976 AIR 1825\t\t  1976 SCR  (3)1067\n 1976 SCC  (3) 766\n\n\nACT:\n     Ownership\tby   prescription  or\tadverse\t possession-\nKnowledge of possession-Possession for a long time-Peaceful-\nPermissible possession whether sufficient.\n     Portuguese Civil  Code-Articles 474,  505, 510, 528 and\n529.\n\n\n\nHEADNOTE:\n     The respondent  plaintiffs instituted a suit in 1961 in\naccordance with\t the Portuguese\t law then  in force in those\nterritories for\t ejectment of  the defendant-appellants from\nthe suit  property. It was alleged in the plaint that on the\ndeath of  father of  the plaintiff No. 1. Sadashiva the suit\nland was  assigned to  Sitabai mother of plaintiff No. 1 and\nthat on\t the death  of Sitabai\tthe property devolved on the\nrespondent No.\t1 and  his 6  sisters. It was also contended\nthat the house built on a portion of the land in dispute and\noccupied  by   the  defendants\tshould\tbe  removed  by\t the\ndefendants and\tthe defendants\tshould be  directed to hand-\nover vacant  possession of  the plot to the respondents. The\nappellants in  their written statement pleaded that the suit\nproperty was  given on\tperpetual lease\t to the ancestors of\nthe appellants\tand that no rent was paid for over 40 years.\nThe appellants\tfurther contended that the suit property was\nin their  open peaceful\t and continuous possession including\nthat of\t their predecessors  in interest  as  owners  for  a\nperiod of  more than  50 years\tand that the have acquired a\ntitle by prescription.\n     The trial\tcourt decreed  the suit.  An appeal filed by\nthe  appellants\t  before  the  learned\tAdditional  Judicial\nCommissioner was  dismissed. When  the matter came up before\nthis Court  by special\tleave this Court remanded the matter\nto the\tcourt of  the Judicial Commissioner for a finding on\nthe plea  of prescription  raised  by  the  appellants.\t The\nlearned Judicial  Commissioner\tafter  remand  came  to\t the\nconclusion that\t the appellants\t have failed  to  prove\t the\nacquisition  of\t  full\ttitle\tto  the\t  suit\tproperty  by\nprescription under  the law  in force  at the relevant time.\nThe  learned   Judicial\t Commissioner  also  held  that\t the\nappellants failed  to  establish  their\t plea  of  perpetual\nlease.\n     Partly allowing the appeal.\n^\n     HELD: (1)\tIn view\t of the\t earlier decision  of  this,\nCourt this  Court would\t be justified in deciding the appeal\nonly on the question of plea of prescription. The appellants\nhad been in continuous possession of the entire plot of land\ndescribed in  para 1  of the  plaint which has a larger area\nincluding the  portion where  the  house  of  the  appellant\nstands. In  the year  1920, the\t respondents sought  to make\ntheir construction  on the  vacant portion of the land close\nto  the\t appellants'  house  which  led\t to  opposition\t and\nobstruction from  the appellants.  Later on,  the appellants\nagreed to  the construction  by the respondents. However, so\nfar as\tthe land  on which the appellants had their house is\nconcerned there\t was no proof nor any evidence of any change\non the part of the appellants to their open hostility to the\nrespondents' title to the same. The respondents did not give\nany evidence  of any  such amicable  solution. On  the other\nhand,  it   is\tadmitted  that\tthey  had  reported  to\t the\nAdministrator without even caring to know the result of such\naction against\tthe appellants.\t The further  fact that\t the\nrespondents annexed  to the  plaint a  certified copy of the\npartition deed\tof 1920\t which was  obtained as\t early as in\n1920 goes  to show  that they  were fully  cognizant of\t the\npublic assertion  by the  appellants of\t their own title, to\nthe land on which their house stands repudiating that of the\nrespondents. The  learned Judicial Commissioner has erred in\nholding that  the appellants  have not been able to prove an\novert act of possession to the knowledge of the respondents.\nAccording  to\tArt.  474   of\tthe  Portuguese\t Civil\tCode\npossession is  defined as holding or fruition of anything or\nright. The  acts  done\tby  licence  or\t permission  do\t not\nconstitute possession.\tAccording to  Article 505 things and\nrights\tare  acquired  by  virtue  of  possession,  just  as\nobligations are\t extinguished by  reason  of  not  demanding\ntheir fulfillment.  The law  lays down\tconditions  and\t the\nperiod of time\n1068\nthat are  necessary for\t one as\t well as for the other thing\nand that  is called  prescription. Under  Article 528 of the\nPortuguese Code in the absence of registration of possession\nor  title   of\tacquisition  prescription  with\t respect  to\nimmovable property  or rights  to immovable  will operate by\nvirtue of  possession for  15 years. Under Art. 529 when the\npossession of  immovable property  or  rights  to  immovable\nproperty has  lasted for  a period  of 30 years prescription\nwill operate.  Under the  Portuguese law  what appears to be\nclear is  that permissive  possession is  not sufficient  to\nprescribe title\t of the\t owner of  the\tland.  There  is  no\nevidence whatsoever  for  the  conclusion  of  the  Judicial\nCommissioner that  the\tpossession  of\tthe  appellants\t was\npermissible  under  the\t respondents.  On  the\tother  hand,\nevidence is  against recognition  by the  appellants of\t any\ntitle in  the respondents.  We are, therefore, left with the\nlong continuous\t and peaceful,\tpossession by the appellants\nof the\tland with  the residential  house thereon  since the\ntime of\t their ancestors  after a  clear repudiation  of the\ntitle of  the respondents to the land in 1920. The fact that\nthe appellants\tset up\ttitle in Vishnu Narcornim describing\nhim as respondents' ancestor does not affect the position in\nview of\t the respondents' denial that Vishnu had anything to\ndo with\t the land.  The Judicial  Commissioner fell  into an\nerror by  not keeping the distinction between Vishnu's title\nand the\t respondents' title. The origin of ownership of land\nbeing dipped  in  the  misty  past  what  emerges  from\t the\nevidence in  the absence  of proof of lease or permission by\nthe respondents'  own ancestors\t is that the appellants have\nbeen in long and open possession of the land over which they\nhave constructed  their house  for a  period long enough for\nthat possession to ripen into ownership. The appellants have\nacquired title to the said land by prescription. Since there\nis no  proof of\t permissive possession under the respondents\nor their  ancestors there  is no  question of application of\nArticle 510.  The learned  counsel for\tthe  appellants\t has\nconfined his  claim in\tthis case  only to the land on which\nappellants have\t their house. The suit of the respondents so\nfar as\tit relates  to the  portion of the land on which the\nappellants have\t their house  is dismissed and in respect of\nthe remaining  portion of  land is decreed. [1070G, 1072A-D,\n1073A-H, 1074A-C, 1075D-E]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1521 of
\n1968<\/span>
\n     Appeal by\tspecial leave  from the\t judgment and decree
\ndated the  20th January, 1968 of the Court of Addl. Judicial
\nCommr., Goa Daman Diu in Civil Appeal No. 213 of 1966.\n<\/p>\n
     U. R.  Lalit, K.  Rajendra Chowdhary, Mrs. Veena Khanna
\nand S. L. Setia, for the appellants.\n<\/p>\n
     V. M.  Tarkunde, V.  N. Ganpule  and A. G. Ratnaparkhi,
\nfor the respondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     GOSWAMI, J.-The  appellants in  this appeal  by special
\nleave Jose  da Costa and his wife, Isabela Braganca, are the
\ndefendants and\tthe  respondents,  Bascora  Sadashiva  Sinai
\nNarcornim  and\t his  wife,   Durgabai\tNarcornim,  are\t the
\nplaintiffs in the original suit.\n<\/p>\n
     The plaintiffs  instituted a suit in the court of Judge
\nof Quempem  Comarca on February 27, 1961, in accordance with
\nthe Portuguese\tlaw then  in force  in those territories for
\nejectment of  the defendants  from the suit property. It was
\nalleged that  on the  death  of\t Sadashiva,  father  of\t the
\nplaintiff, Bascora,  in partition  proceedings\twith  minors
\n(inventario), this  plot was  assigned to  Bascora’s mother,
\nSitabai, towards  her moiety  in the  estate.  On  Sitabai’s
\ndeath, the  property devolved on the plaintiffs, Bascora and
\nhis six\t sisters. Before the partition of the property among
\nthe legal heirs of Sitabai, Bascora
\n1069<\/span>
\nacquired the  rights from some of his sisters and became the
\nowner of  the suit  property  with  other  heirs.  Bascora’s
\nparents had  inherited this  property from  their ancestors.
\nThe father  of Bascora\thad permitted  the ancestors  of the
\ndefendants to build a house for their residence on a part of
\nthe property  subject to  the condition that they shall have
\nto vacate  the plot when called upon to do so. In the latter
\nevent, they shall be entitled to remove the super-structures
\nof the building raised by them.\n<\/p>\n
     Even so,  the  plaint  goes  on  to  say  that  Caetana
\nEsperanca Fernandes,  the mother  of the  appellant, Jose da
\nCosta, executed\t a deed\t on November  16, 1920,\t before\t the
\nnotary public  of Comarca,  which indicated that she and her
\nfamily members were owners of the plot. On the basis of this
\ndeed, the  defendants asserted ownership of that part of the
\nplot on\t which stands the house built by their ancestors and
\nnow in their occupation.\n<\/p>\n
     On the  above allegations,\t the plaintiffs prayed for a
\ndeclaration that the plaintiff, Bascora, and the other heirs
\nof his\tmother, Sitabai,  are the only owners of the plot in
\ndispute\t and  that  the\t house\tin  the\t occupation  of\t the
\ndefendants on  a part  of that\tplot was  constructed in the
\ncircumstances and  subject to  the terms  mentioned  in\t the
\nplaint. They  further prayed that the defendants be directed
\nto vacate  the plot  after removing  the materials  of their
\nhouse.\n<\/p>\n
     The defendants  denied the allegations and pleaded that
\nit was\tVishnu Bascora\tSinai Narcornim,  an ancestor of the
\nplaintiffs, who\t had given  the suit  property on  perpetual
\nlease to  Pascoal da Costa, an ancestor of the defendants in
\nthe year  1875, at  an annual  rent of\trupees 2\/4\/-. It was
\nstated further\tthat no\t such rent  has been  paid for\tover
\nforty years  before the\t suit nor  has any  rent  ever\tbeen
\nclaimed by  the family\tof the\tplaintiffs for\tsuch a\tlong
\ntime. It  was Pascoal da Costa who possessed the plot as his
\nown and\t originally built  one house  on it but subsequently
\nhis descendants\t constructed more  houses so that at present
\nthere are  three houses\t and  one  stable  on  the  plot  in
\ndispute.  On   Pascoal\tde   Costa’s  death,  in  inventario
\nproceedings,  this   property  on  November  16,  1920,\t was
\n“consolidated in  full ownership  in the  patrimony  of\t the
\ndescendants of the said Pascoal da Costa.”\n<\/p>\n
     The defendants  further aver in their written statement
\nthat the suit property has been in their “open, peaceful and
\ncontinuous” possession including that of their predecessors-
\nin-interest, as\t owners for  a period  of more than 50 years
\nand that they have acquired title by prescription.\n<\/p>\n
     The trial\tcourt decreed  the suit\t on April  30, 1966,
\ndirecting the  defendants to remove their superstructures on
\nthe  land   or\tin  the\t alternative  to  receive  from\t the
\nplaintiffs Rs. 1084\/- which was found to be the value of the
\nmaterials of  the house\t in question  as per estimate of the
\nexperts appointed  for the  purpose. On\t appeal the  learned
\nAdditional  Judicial  Commissioner  dismissed  the  same  on
\nJanuary 20,  1968, and\taffirmed the  decree  of  the  trial
\ncourt. The  defendants came  to this  Court by special leave
\nagainst the judgment of the Additional Judicial Commissioner
\nand this Court by its order dated August 1,
\n1070<\/span>
\n1975, which  has since\tbeen reported in AIR 1975 S.C. 1853,
\nremanded the  appeal to\t the  Judicial\tCommissioner  for  a
\nfinding on the plea of prescription raised by the defendants
\nby observing as follows:-\n<\/p>\n
\t  “The plea  of prescription goes to the root of the
\n     matter. It\t was  raised  by  the  defendants  in  their
\n     pleadings and the matter was put in issue. It was again
\n     taken up in the grounds of appeal filed in the Court of
\n     the Judicial  Commissioner, but was left undecided. For
\n     the purpose  of doing  complete justice in the case, we
\n     think it necessary to have the advantage of the finding
\n     of the court below on this issue. Accordingly, we remit
\n     this case\tto the\tCourt of  the Judicial Commissioner,
\n     Goa Daman\tand Diu\t with the  direction that  it should
\n     after rehearing  the parties  record a specific finding
\n     on the  issue as to whether the defendants had acquired
\n     full title\t to the\t suit property by prescription under
\n     the law  in force\tat the\trelevant time.\tThe Judicial
\n     Commissioner  shall  submit  his  report  with  reasons
\n     therefor to this Court within four months from the date
\n     on which  the records are received in his court. In the
\n     meantime  the  appeal  shall  remain  pending  in\tthis
\n     Court.”<\/p><\/blockquote>\n
     We have  actually taken the facts of this case from the
\nabove decision.\n<\/p>\n
     The  Judicial  Commissioner  has  since  submitted\t his
\nreport dated  December 5,  1975, and  the appeal has come up
\nbefore us for final hearing.\n<\/p>\n
     After  examining\tthe  entire   evidence,\t  oral\t and
\ndocumentary, the  Judicial  Commissioner  has  come  to\t the
\nconclusion that\t the defendants\t have failed  to prove their
\nacquisition  of\t  full\ttitle\tto  the\t  suit\tproperty  by
\nprescription under the law in force at the relevant time.\n<\/p>\n
     During the\t hearing we  did  not  have  before  us\t any
\nprinted Portuguese Civil Code or any standard legal treatise
\nto which we would have ordianily liked to refer. Counsel for
\nthe appellants,\t however,  produced  certain  extracts\tfrom
\nvarious articles  to which  counsel for\t the respondents has
\nnot taken  any exception. There is also reference to certain
\narticles from  the Portuguese  Civil  Code  in\tthe  earlier
\njudgment of  this Court\t as also  in the Report submitted by
\nthe Judicial  Commissioner, Both  the parties  accept  those
\narticles as  correct, although\tthe original  books are\t not
\nbefore us.\n<\/p>\n
     In view of the earlier decision of this Court and after
\nhearing the  parties we\t feel that  we will  be justified to
\ndecide this appeal only on the question relating to the plea
\nof prescription.\n<\/p>\n
     Since the\toriginal perpetual lease was not produced in
\ncourt and  a certified\tcopy of\t the original translation of
\nthe perpetual  lease issued  on November 23, 1920, was alone
\nproduced, we  have no reason to disagree with the conclusion
\nof the\tJudicial Commissioner  that the defendants failed to
\nestablish their plea of perpetual lease of, the land.\n<\/p>\n
     Before we may proceed further it will be appropriate to
\nnote that  even the plaintiffs themselves laid a nucleus for
\nthe plea of adverse
\n1071<\/span>
\npossession to  be easily  taken up by the defendants. Para 5
\nof the plaint may, therefore, be quoted:-\n<\/p>\n
\t  “5. Notwithstanding  this, the  mother and mother-
\n     in-law of\tthe defendants\tCaetana Esperanca  Fernandes
\n     with the  ambition of  alleging to the said plot of the
\n     plaintiffs rights\tthat do not assist her, participated
\n     as an  executing party,  in  a  deed  drawn  up  on  16
\n     November, 1920,  by the  former notary  public of\tthis
\n     Comarca, Salinho  da Silva,  wherein a  plot having the
\n     denomination  of  “Deulacodil  tucda”  or\t“Mordi”\t was
\n     partitioned, one-third  of which  was assigned  to\t the
\n     said Caetana,  and with  basis in\tthat  partition\t the
\n     defendants allege\tto  be\tthe  owners  of\t the  ground
\n     whereon the  said house  raised by\t their ascendants is
\n     situate.”\n<\/p><\/blockquote>\n
Indeed this  repudiation of  title of  the plaintiffs by the
\ndefendants gave\t rise to  the cause  of\t action.  We  cannot
\naccept the  submission of  Mr. Tarkunde\t on  behalf  of\t the
\nrespondents that the word “allege” in the above paragraph in
\nthe present  tense makes any difference in the matter of the
\nplea.\n<\/p>\n
     Not only  in the  plaint, but also in the evidence, the
\nplaintiff Bascora  gave further reinforcement to the plea of
\nadverse possession when he stated thus:\n<\/p>\n
\t  “… in 1920 the deponent (that is the plaintiff),
\n     desiring to  build the  house existing  in the  plot of
\n     land, there  were disputes raised by defendant’s mother
\n     and by one Santana Costa and then the deponent (that is
\n     the plaintiff) notified them through the Administration
\n     Office of\tSanguem to vacate the plot land. He does not
\n     know what subsequent course his petition had..”<\/p><\/blockquote>\n
     Mr. Tarkunde  submits that\t there might  have been some
\ndispute which, however, was settled and the plaintiffs built
\nthe house on the suit land and the defendants also continued
\non the\tland under  the earlier\t permissive arrangement. Mr.
\nTarkunde draws our attention to the following passage in the
\nevidence of defendant No. 1:-\n<\/p>\n
\t  “In 1920 more or less, the plaintiff built a house
\n     in the  plot in  question and  begun to stay there. The
\n     same house\t was built  very near  the house  where\t the
\n     deponent (that  is the defendant No. 1) stays and which
\n     already existed  at the  time  of\tthat  building.\t The
\n     dependent was about 14 or 15 years old. The grandfather
\n     of\t the   deponent\t Pascoal  da  Costa  and  his  uncle
\n     Francisco Piedade\tCosta and even the deponent’s mother
\n     opposed the  said building raised by the plaintiff. The
\n     question was amicably solved at the house of Narcornins
\n     Bencares to  which the plaintiff belongs, to the effect
\n     that the plaintiff should build the house and reside in
\n     it as  well as the said persons who had their houses in
\n     it should continue to reside therein. The deponent came
\n     to know  of these\tfacts regarding\t the dispute and its
\n     solution after hearing his said uncle Francisco Piedade
\n     da Costa.”<\/p><\/blockquote>\n
1072<\/span><\/p>\n
     Apart from\t the fact that the above is hearsay evidence
\nwe are\tclearly of  the\t view  that  the  statement  is\t not
\nsufficient to  annihilate the  theory of  repudiation of the
\ntitle of the plaintiffs to the property. It stands to reason
\nthat the defendants had been in continuous possession of the
\nentire plot  of land described in para 1 of the plaint which
\nis a  larger area  including the  portion where the house of
\nthe defendants\tstands. In  the\t year  1926  the  plaintiffs
\nsought to  make their  construction on the vacant portion of
\nthe land  close\t to  the  defendants’  house  which  led  to
\nopposition and obstruction from the defendants. At that time
\napparently the\tdefendants later  agreed to the construction
\nby the\tplaintiffs and that seems to be the reference to the
\n“amicable” solution in the above extract.\n<\/p>\n
     So far  as the  land on  which the defendants had their
\nhouse, there  was no proof nor any evidence of any change on
\nthe part  of the  defendants to\t their open hostility to the
\nplaintiffs’ title  to the  same. The plaintiffs did not give
\nany evidence  of any  such amicable  solution. On  the other
\nhand,  it   is\tadmitted  that\tthey  had  reported  to\t the
\nAdministrator without even caring to know the result of such
\naction against\tthe defendants.\t The further fact that along
\nwith the  plaint the  plaintiffs annexed a certified copy of
\nthe partition  deed of\tNovember 16,  1920, which  copy\t was
\nobtained as  early as on December 22, 1920 goes to show that
\nthey were  fully cognizant  of the  public assertion  by the
\ndefendants of  their own  title to  the land  on which their
\nhouse  stands\trepudiating  that  of  the  plaintiffs.\t Mr.
\nTarkunde  submits  that\t there\tis  no\tevidence  that\tthis
\ndocument had  been actually  obtained by the plaintiffs, but
\nproduction of  the document without any explanation from the
\nside of the plaintiffs speaks a volume about their knowledge
\nof the repudiation of title.\n<\/p>\n
     Mr.  Tarkunde   also  invited   our  attention  to\t the
\nstatement of defendant No. 1 to the effect:\n<\/p>\n
\t  “that the plaintiff for reasons of enmity does not
\n     receive this  rent nor he ever asked for its payment to
\n     the deponent  (that  is  defendant\t No.  1)  and  other
\n     members of his family.”\n<\/p><\/blockquote>\n
This statement\tcannot be  torn\t from  the  context  of\t the
\nalternative plea set up by the defendants. This statement is
\nfairly consistent  with the  alternative plea  of  perpetual
\nlease of the land set up by the defendants. According to the
\ndefendants  the\t  land\thad  been  in  their  occupation  on
\nperpetual  lease  from\tVishnu\tNarcornim,  the\t plaintiffs’
\npaternal uncle and once that would have been acknowledged by
\nthe plaintiffs\tthe defendants\twould perhaps  be willing to
\npay even  to the  plaintiffs the  annual rent. But it is the
\nclear case  of the  plaintiffs that  the story\tof perpetual
\nlease was  false and  fraudulent  and  besides\tthat  Visnum
\nNarcornim had  no interest in the land and was not competent
\nor authorised  to lease\t out the same. We, therefore, cannot
\naccept the  exaggerated importance to the above statement of
\nthe defendant No. 1 in his cross-examination.\n<\/p>\n
     The Judicial  Commissioner, however,  rightly  observed
\nthat “an  overt act  of possession  to the  knowledge of the
\nplaintiffs and their
\n1073<\/span>
\nascendants must\t be shown  to have  taken palce.”  From\t the
\nabove discussion,  we have  no hesitation in arriving at the
\nconclusion that\t the defendants\t have been able to establish
\nthe same  and the  Judaical Commissioner  is  not  right  in
\ntaking a contrary view.\n<\/p>\n
     According to  Article 474 of the Portuguese Civil Code,
\n“Possession is\tdefined as  holding or fruition of any thing
\nor right.  Para 1. The acts done by licence or permission do
\nnot constitute possession…”\n<\/p>\n
     According\tto   Article  505,  things  and\t rights\t are
\nacquired by  virtue of\tpossession, just  as obligations are
\nextinguished by\t reason of  not demanding their fulfillment.
\nThe law lays down conditions and the period of time that are
\nnecessary for  one as  well as\tfor the other thing. This is
\ncalled prescription.\n<\/p>\n
     Proviso. The  acquisition of things and rights is known
\nas positive  prescription; the\tdischarge of the obligations
\nby reason  of not  demanding their  fulfillment is  known as
\nnegative prescription.”\n<\/p>\n
     Article 528 reads thus:\n<\/p><\/blockquote>\n
\t  “In the  absence of  registration of possession or
\n     title of  acquisition,  prescription  with\t respect  to
\n     immovable property\t or rights to immovable will operate
\n     by virtue of possession for 15 years.”\n<\/p><\/blockquote>\n
     Article 529 of the Code is as follows:-\n<\/p><\/blockquote>\n
\t  “When,  however,   the  possession   of  immovable
\n     property or rights to immovable property referred to in
\n     the foregoing  article has\t lasted for  a period  of 30
\n     years, prescription  will operate;\t and no mala fide or
\n     absence of\t title can be averred, except the provisions
\n     of Article 510.”<\/p><\/blockquote>\n
     Thus even\tunder the  Portuguese law what appears to be
\nclear is  that permissive  possession is  not sufficient  to
\nprescribe title of the owner of the land.\n<\/p>\n
     The Judicial Commissioner was not right in holding that
\npossession  of\tthe  defendants\t was  permissive  under\t the
\nplaintiffs. There  is no  evidence is against recognition by
\nthe  defendants\t  of  any  title  the  evidence\t is  against
\nrecognition by the defendants of any title in the plaintiffs
\nas such.  The Judicial\tCommissioner mistook the defendants’
\nadmission  of  the  alleged  perpetual\tlease  under  Visnum
\nNarcornim as permissive occupation under the plaintiffs even
\nafter  holding\tthat  the  defendants  failed  to  establish
\nperpetual lease.\n<\/p>\n
     We are,  therefore, left  with the long, continuous and
\npeaceful possession  by the  defendants of the land with the
\nresidential house  thereon since the time of their ancestors
\nafter a\t clear repudiation of the title of the plaintiffs to
\nthe land  in 1920. The fact that the defendants set up title
\nin Visnum  Narcornim describing him as plaintiffs’ ancestor,
\ndoes not  affect the  position in  view of  the\t plaintiffs’
\navowed denial  that Visnum Narcornim had anything to do with
\nthe  land.   Visnum  Narcornim\t is  survived\tby  his\t own
\ndescendants and\t we are not dealing with a case where Visnum
\nNarcomim’s heirs as such have sought
\n1074<\/span>
\neviction of  the defendants from the land. The plaintiffs do
\nnot accept  Visnum Narcornim’s\ttitle to  the land  as their
\ntitle. The  Judicial Commissioner fell into an error because
\nof not\tkeeping the  distinction between  Visnum Narcornim’s
\ntitle to the land and the plaintiffs’ title to the same. The
\norigin of  ownership of\t the suit  land being  dipped in the
\nmisty past what emerges from the evidence, in the absence of
\nproof  of   lease  or  permission  by  the  plaintiffs’\t own
\nancestors, is  the defendants  have been  in long  and\topen
\npossession of  the land\t over which  they  have\t constructed
\ntheir house  for a period long enough for that possession to
\nripen into  ownership. The  defendants in our opinion should
\nbe  held  to  have  acquired  title  to\t the  said  land  by
\nprescription.\n<\/p>\n
     There  being   no\tproof\twhatsoever   of\t  permissive
\npossession under the plaintiffs or their ancestors, there is
\nno question  of application  of the  rule  laid\t down  under
\nArticle 510, relied upon by Mr. Tarkunde.\n<\/p>\n
     Article 510 reads thus:\n<\/p>\n
\t  “One who  possesses  a  thing\t in  another’s\tname
\n     cannot acquire  it by  prescription except if the title
\n     of possession  has been  inverted, either due to an act
\n     of a  third  party,  or  by  objection  raised  by\t the
\n     possessor to  the right  of the  other in whose name he
\n     was possessing it and not refuted by the latter; but in
\n     such event\t the prescription shall run from the date of
\n     inversion of the title. Sole para: The title is said to
\n     be inverted  when it  is substituted  by another  title
\n     capable of\t transferring the  possession  or  ownership
\n     (dominio).”\n<\/p>\n
     According\tto   the  Judicial  Commissioner  the  above
\nArticle is  applicable and  since the  defendants could\t not
\nprove that  there had been at some time “inversion of title”
\ntheir possession was merely “detencao” (namely, a precarious
\npossession) and\t such  physical\t detencao  without  “animus”
\ncannot be  invoked for\tthe purpose  of claiming  any effect
\nthat possession\t in one’s  own name or as of right connotes.
\nIt is  difficult to  see how Article 510 can be attracted to
\nthe instant  case. The\tdefendants had\tat no time possessed
\nthe land  on which  their house\t stands in  the name  of the
\nplaintiffs.  They  were\t never\taccepting  the\tposition  of
\npermissive possession  under the plaintiffs and had asserted
\nperpetual lease\t under Visnum  Narconim, who, even according
\nto the\tplaintiffs, was\t an unauthorised person. Article 510
\nwould not  be attracted\t to this  case when  the  defendants
\nalternatively were possessing in the name of Visnum Narornim
\nor his\tdescendants. Article  510 is, therefore, clearly out
\nof the way. We are, therefore, not even required to consider
\nwhether there  was any\t“inversion of title” in this case or
\nnot.\n<\/p>\n
     It is  clear that\tthe defendants’ ancestors and, after
\nthem, the  defendants have  been in  possession of  the land
\nsince 1875. Title of the plaintiffs was repudiated openly in
\nthe year 1920. The defendants are in possession by occupying
\nthe house standing on the land and the house was constructed
\nby the\tdefendants’ ancestors.\tThe plaintiffs\thad  made  a
\ncomplaint about\t their conduct in denying their title to the
\nland and in opposing their construction as early as in 1920.
\nThe
\n1075<\/span>
\npassivity and  inertness of  the plaintiffs  thereafter\t for
\nover forty  years   till the institution of the suit in 1961
\nclearly establishes  the plea  of prescription set up by the
\ndefendants.\n<\/p>\n
     It is  significant that  even the plaintiffs, being out
\nof possession of the land in suit for a long number of years
\nand having  constructed their house on a house on portion of
\nthe land  only in  the year  1920, sought  to establish\t the
\ntitle to  the property\t“by virtue  of the prescription that
\noperated in their favour” (see paragraph 3 of the plaint).\n<\/p>\n
     Mr. Tarkunde  has\tmade  a\t further  submission,  which
\nappears\t to   have  received   approval\t of   the   Judicial
\nCommissioner,\tthat   the   defendants’   witnesses   while
\ndescribing  the\t  land\tin  suit  acknowledged\tit  as\t“the
\nplaintiffs’  land”.  It\t may  not  be  overlooked  that\t the
\nplaintiffs also\t have their own house on a part of the land.
\nWe, therefore,\tcannot agree  that the defendants’ witnesses
\nby identifying\tthe land in suit in that manner defeated the
\nclaim  of   the\t defendants   with  regard  to\tthe  adverse
\npossession.\n<\/p>\n
     We may  observe that Mr. Lalit, the learned counsel for
\nthe appellants,\t fairly conceded  that he  was confining his
\nclaim in  this case only to the land on which the defendants
\nhave their house.\n<\/p>\n
     The  appeal   is,\ttherefore,   partly   allowed.\t The
\nplaintiffs’ suit  for title to the land in occupation of the
\ndefendants and\tfor their eviction so far as that portion of
\nthe land  with their  house on it is concerned is dismissed.
\nThe plaintiffs’\t suit for  declaration\tin  respect  of\t the
\nremaining portion of the land, however, is decreed. As there
\nis no  prayer for  eviction of\tany person  other  than\t the
\ndefendants, that  claim is  rejected. We  express no opinion
\nwith regard to the claim of persons who may be in occupation
\nof the\tland other than the defendants who are not impleaded
\nin the suit and against whom no relief has been claimed. The
\njudgment and  decree of the Additional Judicial Commissioner
\nto the\textent indicated  in this  judgment are\t set  aside.
\nThere will be, however, no order as to costs.\n<\/p>\n
P.H.P.\t\t\t\t     Appeal allowed in part.\n1076<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Jose Da Costa & Another vs Bascora Sadashiva Sinai … on 7 April, 1976 Equivalent citations: 1976 AIR 1825, 1976 SCR (3)1067 Author: P Goswami Bench: Goswami, P.K. 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-27586","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nJose Da Costa & Another vs Bascora Sadashiva Sinai ... on 7 April, 1976 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jose-da-costa-another-vs-bascora-sadashiva-sinai-on-7-april-1976\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jose Da Costa & Another vs Bascora Sadashiva Sinai ... on 7 April, 1976 - 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