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CASE NO.: Appeal (civil)  6432 of 1998

PETITIONER: Vasantiben P. Nayak & Ors.       

RESPONDENT: Somnath M. Nayak & Ors.          

DATE OF JUDGMENT: 09/03/2004

BENCH: ASHOK BHAN & S.H. KAPADIA

JUDGMENT: J U D G M E N T

KAPADIA, J.   

       Appellants (Plaintiffs) filed a suit bearing no.116 of  1968 in the court of Civil Judge, Narol for a declaration  that they were owners of ancestral house site land  bearing G.P. No.497 in Sarkhej, district Ahmedabad and  for recovery of possession thereof from the respondents  (defendants) and also for permanent injunction restraining  respondents from interfering with their possession over  the disputed land.  According to the appellants, the suit  land was ancestral property belonging to father-in-law of  Vasantiben (appellant no.1) and after his death the  property came in possession of her husband.  According  to the appellants, in the lifetime of the husband of  appellant no.1, the respondents used to tell the husband  of appellant no.1 to allow them to make construction on  the land.  According to appellant no.1, her husband did  not permit the respondents to make construction till his  death, i.e. six years prior to the institution of the suit.  That  even before his demise, the respondents used to tell  appellant no.1 to donate the land to the community which  she refused and soon thereafter the respondents started  constructing a compound wall without her permission.  In  the circumstances, she filed a suit on 25th March, 1968 to  prevent the respondents from disturbing her possession.

       The respondents inter alia denied in the suit that the  husband of appellant no.1 was in possession of the suit  land till he died or that after his demise, the appellants  were in possession of the suit land.  In the suit, they  contended that they were in possession of the suit land  for more than twelve years and that they were owners by  adverse possession.  They also contended that the suit  was barred by limitation.  In the suit, there was a dispute  regarding the identity of the land.  In the suit, there was a  dispute regarding title of the appellants over the suit land.   By the judgment and order dated 10th November, 1975,  the trial court dismissed the suit on the ground that the  appellants have failed to prove their title over the suit  land.  Being aggrieved, the appellants went by way of civil  appeal no.133 of 1976 to the District Court, Ahmedabad  which came to the conclusion that the appellants had  identified the suit land.  Further, the District Court came to

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the conclusion that the appellants had proved their title to  the suit land.  Consequently, the appeal was allowed vide  judgment and order dated 27th March, 1978.   

Being aggrieved, the respondents herein went by  way of second appeal under section 100 CPC to the High  Court being appeal no.360 of 1978.  By judgment and  order dated 22nd January, 1997, the High Court came to  the conclusion that the lower appellate court could not  have passed the decree for possession in favour of the  appellants without deciding the issue of limitation and  adverse possession.  Consequently, keeping the Second  Appeal pending before it, the High Court called for the  findings on the above two issues from the District Court,  Ahmedabad.  On remand of the above issues, the District  Court found that the respondents were in possession  since 1934 as indicated by the books of accounts and  revenue receipts for payments made to its revenue  assessment.  The District Court further found that the  respondents have been paying land revenue from 1940.   The District Court further found that the gram panchayat  had even permitted the respondents to construct the  compound wall vide a resolution (Ex.132).  In the  circumstances, the District Court came to the conclusion  that the respondent had acquired title by way of adverse  possession.  On the point of limitation, the District Court  found that the respondents were in possession from 1935  or in any event from 1941 whereas the suit has been filed  only on 25th March, 1968 for possession and  consequently the suit was barred by law of limitation.   Therefore, both the issues were decided in favour of the  respondents herein by the District Court vide judgment  dated 30th April, 1997. The High Court which was seized  of the second appeal no.360 of 1978 after hearing the  parties confirmed the findings of the District Court on  above two issues and accordingly disposed of the second  appeal vide impugned judgment dated 28th April, 1998.   Hence, the original plaintiffs have come by way of civil  appeal to this Court.

       Shri Ramesh Singh, learned counsel appearing on  behalf of the appellants submitted that the appellants  became owners of the suit land as reversioners under  registered deed of partition dated 29th November, 1965  and consequently the suit filed by the appellants was  neither barred by limitation nor by adverse possession.   He contended that the High Court had erred in holding  that adverse possession in respect of suit land begin to  run against the appellants prior to 29th November, 1965.   In this connection, he has placed reliance on explanation  (a) to Article 65 of the Limitation Act (hereinafter referred  to as "the said Act").   In support of his above argument,  learned counsel for  the  appellants has also placed  reliance  on  the  judgment  of this Court in the case of  Ram Kisto Mandal & Anr. v. Dhankisto Mandal  reported in [(1969) 1 SCR 342].

We do not find merit in the above argument  advanced on behalf of the appellants.  In the case of Ram  Kisto Mandal & Anr. v. Dhankisto Mandal (supra), it  has been held by this Court that the right of the  reversioner to recover possession of the property within  twelve years from the death of the widow is not only  based on provisions of the limitation act but on the  principles of Hindu Law and the general principles that the

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right of a reversioner is in the nature of spes successionis  (estate in expectancy) and such reversioner does not  trace his title through the widow.  Under the common law,  there are two types of estates namely, estates in  possession and estates in expectancy.  Estates in  remainder/reversion are estates in expectancy as  opposed to estates in possession.  Consequently,  adverse possession against a life-tenant will not bar the  reversioner/remainder from succeeding to the estate on  the demise of the life-tenant.  This is the reason for  enacting explanation (a) to Article 65 of the said Act,  which has no application to the facts of this case.

       At this stage, it is important to bear in mind that  partition is really a process by which a joint enjoyment of  the property is transformed into an enjoyment severally.   In the case of partition, each co-sharer has an antecedent  title and, therefore, there is no conferment of a new title.  (See Transfer of Property Act by Mulla 9th Edition Page  77).  In the circumstances, the appellants cannot be  heard to say that they became the owners of the property  only when the partition deed was executed on 29th  November, 1965.  Lastly, the facts above-mentioned  show that the appellants had asserted not only their own  possession, they had also asserted the possession of  Prahladji (husband of appellant no.1 and father of  remaining appellants) prior to his death.  In the case of  Hanamgowda v. Irgowda reported in [AIR 1925 Bom. 9],  it has been held that in cases of adverse possession, the  starting point of limitation does not commence from the  date when the right of ownership arises to the plaintiff but  it commences from the date when the defendants’  possession became adverse.  Therefore, in the present  case, the starting point of limitation for adverse  possession cannot be taken as 29th November, 1965 and  one has to take the date when the respondents’  possession became adverse.  For all the above reasons,  there is no merit in the above arguments advanced on  behalf of the appellants.

Shri Ramesh Singh, learned counsel appearing on  behalf of the appellants next contended that in the  present case the respondents have failed to prove the  ouster along with other three circumstances, namely,  hostile intention; long and uninterrupted possession; and  exercise of the right of exclusive ownership openly and to  the knowledge of the owner.  We do not find any merit in  this argument.  It is correct to say that the defendants  have to prove three elements mentioned above to  establish ouster in cases involving claim of adverse  possession.  However, in the present case, there is a  concurrent finding of fact recorded by the courts below to  the effect that the respondents are in possession of the  suit land from 1935 or in any event from 1941; that they  have paid revenue cess from 1940; that they have paid  property taxes; that their names were recorded in the  revenue records and they were granted permission by the  panchayat to construct compound wall.  Moreover, in her  deposition before the trial Court, appellant no.1 had  deposed that her husband had died six years prior to the  institution of suit; that the suit land was in possession of  her father-in-law and after his death it came in possession  of Prahlad (husband); that during the life time of Prahlad,  the defendants had told Prahlad to allow them to  construct a building on the land which he refused and that

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the respondents constructed the compound wall without  their permission. In view of the above concurrent findings  of fact recorded by the courts below on the issue of  adverse possession, we do not see any reason to  interfere in the matter.  

       For the aforestated reasons, civil appeal stands  dismissed, with no order as to costs.                                               

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