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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.

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^      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

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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

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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

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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

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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

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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,

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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

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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