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PETITIONER: PARWATABAI

       Vs.

RESPONDENT: SONABAI & ORS.

DATE OF JUDGMENT:       12/08/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (7)   661        1996 SCALE  (6)375

ACT:

HEADNOTE:

JUDGMENT:                                  THE 12TH DAY OF AUGUST,1996 Present:                Hon’ble Mr.Justice K.Ramaswamy                Hon’ble Mr.Justice G.B.Pattanaik U.U.Lalit, Adv. for the appellant S.V.Leshpande, Adv. for the Respondents                          O R D E R The following order of the Court was delivered: Parwatabai V. Sonabai & Ors.                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      The admitted  facts  are  that  the  lands  in  dispute belonged to  Punjab and  on his demise, his widow Parwatabai had succeeded  to his  estate  in  1941.  Consequently,  she became the  owner of a limited estate. It is the appellant’s case that  Parwatabai had executed a registered gift deed in favour of  her husband  in 1941  and eversince  they are  in possession and  enjoyment  of  the  lands.  Admittedly,  the respondents are  daughter of  Parwatabai. It  is their  case that on  the demise  of their mother, they became the owners of the  property and were in possession of the property till 1976 when  they were  dispossessed and  as a consequence the suit was  filed for possession based on title. Though it was specifically  not  pleaded  on  title,  admittedly  on  fact situation suit was filed under Article 65 of the Schedule to the Limitation  Act, 1963  [for short, the "Act"]. The trial Court negatived  the respondents’  claim and  dismissed  the suit. On  appeal, the  trial Court  decreed the suit holding 3that the  respondents had  on the demise of their mother in 1966 succeeded  to the  estate of  their father.  Therefore. they are entitled to the possession since the suit was filed within 10  years under  Article 65  of the  Act. Thus,  this appeal by special leave.

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    Shri U.R.  Lalit, learned  counsel for  the  appellant, contended that  since the  husband of the appellant remained in  possession,  pursuant  to  the  gift  deed  executed  by Parwatabai, by  operation of  explanation (b) to Article 65, burden is  on the  respondents to  establish as  to when the possession of  the appellant  became adverse and they failed to discharge  the same.  Therefore, the  appropriate article applicable to  the facts would be Article 64 and not Article 65. We  find no  force in  the contention. Admittedly, after the demise  of  Panjuba,  Parwatabai  succeeded  as  widow’s estate prior  to 1941 and that, therefore, she was only life estate holder  to enjoy  the estate for her life time. Under the gift deed, what she could bequeath was enjoyment of life estate and  not right  and title of the property of Punjuba. Consequently, on  her demise,  the appellants being heirs of Punjab are entitled to assert their right to the property of their father on the basis of their title.      Article 65 of the Act postulates that for possession of immovable property  or any  interest therein based on title, when the  possession of the defendant becomes adverse to the plaintiff, the  suit  has  to  be  filed  within  12  years. Therefore, when  the plaintiffs  asserted their title on the basis of succession to the estate of their father, it is for the appellant  to prove  as to on which date the appellant’s possession has  become adverse to the respondents’ title. In this case, the appellate Court and the High Court found that the appellant  had not  established as to what was the exact date from  which the  adverse  possession  started  running. Since Parwatabai died in 1966, admittedly, the plaintiff had filed  the  suit  in  1966  within  10  years.  Under  those circumstances, the  appellant had not perfected the title by prescription. The  courts below have rightly applied Article 65 and  decreed the suit. It is not vitiated by any error of law warranting interference.      The  appeal   is  accordingly  dismissed,  but  in  the circumstances, without costs.