TMI Blog1976 (4) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... etia, for the appellants. V. M. Tarkunde, V. N. Ganpule and A. G. Ratnaparkhi, for the respondents. JUDGMENT 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 Sadasiva., 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 66, directing the defendants to remove their superstructures on the land or in the alternative to receive from the plaintiff 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, 1975, which has since been reported in AIR 1975 SC 1853 (Jose da Costa v. Bascora Sadasiva Sinai Narcornim, (1976) 2 SCC 917), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 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 16th 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence 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 defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod 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 whatsoever for such a conclusion. On the other hand 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 positio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of permissive possession under the plaintiffs and had asserted perpetual lease under Visnum Narcornim, 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 Narcornim 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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