Bombay High Court
Nitesh Prataprai Kothari vs John Braganza And Jerson John ... on 26 April, 2016
Bench: S.C. Gupte
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 659 OF 2014
IN
SUIT NO. 2975 OF 2007
Jerson John Braganza ...Applicant
In the matter between
Nitesh Prataprai Kothari ...Plaintiff
vs.
John Braganza & Ors. ....Defendants
NOTICE OF MOTION NO. 4016 OF 2007
WITH
IN
SUIT NO. 2975 OF 2007
Nitesh Prataprai Kothari ...Plaintiff
vs.
John Braganza & Ors. ....Defendants
Mr. R.A. Thorat, Senior Advocate alongwith Mr.P.J. Thorat for the Plaintiff.
Mr.Anil D'souza for Respondents.
CORAM : S.C. GUPTE, J.
RESERVED ON : 08 DECEMBER 2015
PRONOUNCED ON : 26 APRIL 2016
ORDER :
The Plaintiff has filed the present suit for possession of the suit
premises. The Plaintiff has taken out a notice of motion in the suit (Notice of
Motion No.4016/2007) for appointment of Court Receiver and interlocutory
injunction restraining the Defendants from creating third party rights in respect of
the suit premises. During the pendency of the suit, the original Defendant expired
and his heirs were brought on record as Defendant Nos.1(a), 1(b) and 1(c).
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These Defendants object to the maintainability of the suit on the ground of bar of
limitation and have moved a notice of motion (Notice of Motion No.659/2014) for
framing and deciding a preliminary issue in that behalf. By his order dated 29
January 2015, a learned Single Judge of this Court was pleased to frame the
following issue as a preliminary issue :
"Whether the suit is filed within the period provided under
Law of Limitation?"
The parties have chosen not to lead any oral evidence on the preliminary issue
and instead argue the same on pleadings and admitted documents. This order
disposes of the preliminary issue.
2. The Plaintiff's case in brief may be set out thus:
The Plaintiff claims to be an absolute owner and as such seized and
possessed of the suit property. The suit property is part of a larger property
consisting of a plot of land admeasuring 14770.60 sq.mtrs. being part of Survey
Nos.32, 33 and 36 and bearing CTS Nos.70, 71, 72, 73, 74, 75, 84A and 84/7 of
Village Kurar and situate at Pratap Nagar, Daftary Road, Malad (East), Mumbai -
400 097. Out of this larger property, the Defendant is said to be in possession of
a plot of land admeasuring 1474 sq.yards bearing Survey No.33, Hissa No.1
corresponding CTS No.72 of Village Kurar together with the structures standing
thereon (hereinafter referred to as "the suit premises"). The Plaintiff has traced
his title to the larger plot of land, including the suit premises. By a Deed of
Conveyance dated 13 June 1975 duly registered with the Sub-Registrar of
Assurances, Bombay, the larger plot of land, originally jointly owned by one
Shantaram Bhalchandra Sukhtankar ("Shantaram") and Sitaram Bhalchandra
Sukhtankar ("Sitaram"), was released and transfered unto Sitaram by Shantaram.
By a Deed of Partnership dated 30 November 1976 Sitaram entered into
partnership with Prataprai Nandlal Kothari ("Prataprai"), father of the Plaintiff
herein, to carry on business in the firm name and style as Nilesh Construction
Company for redevelopment of the larger plot of land. The larger plot of land was
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brought into the joint stock of the firm as capital of Sitaram. The partnership was
subsequently dissolved by a duly registered Deed of Dissolution dated 30 April
1977 executed between the partners. By that Deed of Dissolution, Sitaram
released his right, title and interest in the larger plot of land in favour of Prataprai
for consideration received thereunder. The larger plot of land is shown in the
revenue records in the name of Prataprai. Prataprai exercised his ownership
rights in respect of the land inter alia by filing an application for exemption under
Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 as also
converting the same from agricultural to non-agricultural use by N.A. orders.
Prataprai also obtained municipal sanction to the building plans for construction
of building/s on the larger plot of land. It is the Plaintiff's case that the Defendant
is an encroacher in respect of a portion of the larger plot of land, namely, the suit
premises. Sometime in 1981, the Defendant filed a suit, being Suit No.3120/1981,
against Prataprai in the City Civil Court at Bombay for permanent injunction
restraining Prataprai from disturbing the alleged possession of the Defendant in
respect of the suit premises otherwise than in accordance with due process of
law. The City Civil Court, after recording evidence of both parties, decreed the
suit in favour of the Defendant. That decree was challenged by Prataprai before
this Court, in First Appeal No.348/1983. The Defendant also filed his own appeal
before this Court, being First Appeal No.407/1983. The appeal filed by the
Plaintiff was allowed by a learned Single Judge of this Court, whilst the
Defendant's appeal was dismissed. The Defendant filed a letters patent appeal,
being LPA No.87/1989, before a Division Bench of this court against both the
judgments. The Division Bench allowed the letters patent appeal and set aside
the judgments of the learned Single Judge in both First Appeals and restored the
judgment of the trial court. That order was carried by Prataprai before the
Supreme Court. By a judgment and order dated 4 May 1999, the Supreme Court
confirmed the judgment delivered by the Division Bench in the letters parent
appeal. On or about 6 May 2006, Prataprai expired. The Plaintiff, as the only
legal heir of Prataprai, succeeded to the larger plot of land, including the suit
premises. The Plaintiff has now filed the present suit for possession based on his
title.
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3 In his written statement, it is the case of the original Defendant that
the Defendant at all material times was seized and possessed of the suit
premises under a registered Lease Deed dated 27 May 1964 duly registered with
the Sub-Registrar of Assurances. The Defendant relies on various documents
showing his possession from the date of the lease. The Defendant also puts the
Plaintiff to the strict proof of the latter's ownership of the larger plot of land,
including the suit premises. On limitation, the Defendant's case is that the
Defendant has been in long and continuous possession of the property since
about 1963, having also filed an injunction suit in 1981, which was contested
between the parties till 1999. It is submitted by the Defendant that the period of
limitation for filing the present suit for recovery of possession, namely, 12 years,
has lapsed long back and the suit is liable to be dismissed as barred by limitation.
4 At the outset, it is important to note that the Defendants have not so
far proved any of their documents showing possession since 1963. As I have
noted above, the parties have chosen to argue the present preliminary issue only
on the basis of pleadings and admitted documents. At the hearing of the
preliminary issue, learned Counsel for the Defendants submitted that the
Defendants would rely on the Plaintiff's own admission that the Defendant
encroached the suit premises in or about 1979-80, having constructed structures
thereon illegally and unauthorisedly. Secondly, it is submitted that in 1981 the
Defendant also filed Suit No.3120/1981 before the City Civil Court at Bombay for
a permanent injunction restraining the predecessor-in-title of the Plaintiff from
disturbing the possession of the Defendant of the suit premises otherwise than by
due process of law, which suit was decreed by an order and judgment dated 26
April 1982, the judgment being finally confirmed by the Supreme Court in the year
1999. It is submitted that having regard to the Plaintiff's own admission of
encroachment by the Defendant of the suit premises in 1979-80 and also by
reason of the Defendant having filed a suit asserting his possession in the year
1981 against the predecessor-in-title of the Plaintiff, the present suit, filed more
than 12 years thereafter, is clearly barred by the law of limitation.
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5 It is common ground that the suit, being a suit for possession based
on title, is governed by Article 65 of the Schedule to the Limitation Act, 1963. The
Article is quoted below :
Description of suit As is Period of Time from which period
limitation begins to run
"65. For possession of immovable property Twelve When the possession of
or any interest therein based on title. years the defendant becomes
adverse to the plaintiff
Explanation.-For the purposes of this
article-
(a) Where the suit is by a remainderman, a
reversioner (other than a landlord) or aig
devisee, the possession of the defendant
shall be deemed to become adverse only
when the state of the remainderman,
reversioner or devisee, as the case may be,
falls into possession;
(b) where the suit is by a Hindu or Muslim
entitled to the possession of immovable
property on the death of a Hindu or Muslim
female, the possession of the defendant
shall be deemed to become adverse only
when the females dies;
(c) where the suit is by a purchaser at a
sale in execution of a decree when the
judgment-debtor was out of possession at
the date of the sale, the purchaser shall be
deemed to be a representative of the
judgment-debtor who was out of
possession.
6 As is plain from its language, the Article provides that the starting
point of limitation is the date when the defendant's possession becomes adverse
to the plaintiff. On a plea of limitation, therefore, the question is whether or not the
possession of the defendant has become adverse to the plaintiff more than 12
years prior to the filing of the suit.
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7 Before we answer this question, in the light of the facts of the
present case, let us note the law on the subject. In the first place, under Article
65, the onus is on the defendant to prove adverse possession. The Supreme
Court in the case of Saroop Singh vs. Banto1 noticed the change in the statutory
provisions of limitation in respect of suits for possession based on title. The court
noticed that the relevant provisions of the old Limitation Act (Limitation Act, 1908),
namely, Articles 142 and 144, required the plaintiff not only to prove his title but
also to prove his possession within 12 years preceding the date of institution of
the suit. The Court noticed the change in the legal position effected by Articles 64
and 65 of the Limitation Act, 1963, under which once the plaintiff proves his title,
the burden shifts to the defendant to establish acquisition of title by adverse
possession. This proposition was once again affirmed by the Supreme Court in
the case of M. Durai vs. Muthu2, holding as follows :
"7. The change in the position in law as regards the burden
of proof as was obtaining in the Limitation Act, 1908 vis-a-
vis the Limitation Act, 1963 is evident. Whereas in terms of
Articles 142 and 144 of the old Limitation Act, the plaintiff
was bound to prove his title as also possession within
twelve years preceding the date of institution of the suit
under the Limitation Act, 1963, once the plaintiff proves his
title, the burden shifts to the defendant to establish that he
has perfected his title by adverse possession.""
To the same effect are the observations of the Supreme Court in the case
of Annakili vs. A. Vedanaygam.3
8 Secondly, it is important to note that mere possession, however
long, does not necessarily mean that it is adverse to the true owner. What
adverse possession means is hostile possession asserted by the defendant in
express or implied denial of title of the true owner. In order to constitute adverse
possession, the possession proved must be adequate in continuity, in publicity
and in extent so as to show that it is adverse to the true owner. Such possession
1 (2005) 8 SCC 330
2 (2007) 6 SCC 59
3 (2007) 14 SCC 308
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must be coupled with 'animus possidendi'. The possessor claiming such
possession must show a requisite animus of asserting such possession through
the period of prescription. The law is laid down by the Supreme Court in T.
Anjanappa vs. Somalingappa4 in the following words :
"20. It is well-recognised proposition in law that mere
possession however long does not necessarily mean that it
is adverse to the true owner. Adverse possession really
means the hostile possession which is expressly or impliedly
in denial of title of the true owner and in order to constitute
adverse possession the possession proved must be
adequate in continuity, in publicity and in extent so as to
show that it is adverse to the true owner. The classical
requirements of acquisition of title by adverse possession
are that such possession in denial of the true owner's title
must be peaceful, open and continuous. The possession
must be open and hostile enough to be capable of being
known by the parties interested in the property, though it is
not necessary that there should be evidence of the adverse
possession actually informing the real owner of the former's
hostile action."
9 The Supreme Court asserted the importance of animus possidendi
in the case of Saroop Singh vs. Banto (supra) in the following words :
"30. "Animus possidendi" is one of the ingredients of
adverse possession. Unless the person possessing the land
has a requisite animus the period for prescription does not
commence. As in the instant case, the appellant
categorically states that his possession is not adverse as
that of true owner, the logical corollary is that he did not
have the requisite animus. (See Mohd.Mohd. Ali vs.
Jagadish Kalita [(2004)1 SCC 271], SCC para 21.)."
10 Let us now consider, in the light of the principles discussed above,
whether the Defendants have discharged the burden of establishing perfection of
their title by adverse possession, that is to say, the original defendant having
asserted hostile possession in express or implied denial of title of the true owner,
in this case, the Plaintiff, more than twelve years back and that such possession
4 (2006) 7 SCC 570 : (2006) 8 Scale 624
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having throughout the prescription period of twelve years been adequate in
continuity, publicity and extent so as to be adverse to the latter. What is urged in
support of such case is, firstly, the plea in the Written Statement that the
Defendant has been in possession of the suit premises for more than twelve
years prior to the filing of the suit and had even filed an injunction suit against the
Plaintiff in 1981. Whilst joining issues with the plaintiff's plea concerning
limitation, this is what the Defendant has to say in his Written Statement. (Para-
28):
"28. With reference to para 20 of the Plaint, this Defendant says and
submits that this Defendant is in long and continuous possession of
the suit property since 1963 and this Defendant filed injunction suit in
1981 bearing Suit No.3120 of 1981 in the Bombay City Civil Court, At
Bombay and contested till 1999 when the Civil Application
No.3263/91 filed by the father of the Plaintiff rejected by the Supreme
Court of India under order dated 16th May 1999 therefore, the
maximum limitation of filing the present suit for recovery of
possession is twelve years is lapsed and, the Plaintiff has filed the
present suit after twelve years therefore the present suit is not filed by
the plaintiff within the period of Limitation, hence the present suit is
liable to be dismissed with costs."
Secondly, the Defendants rely upon the Plaintiff's own assertion in
the plaint (Para 7), which is as follows :
"7. The Plaintiff states that the Defendant encroached upon a
portion of land admeauring 1474 sq. yards in CTS No.72 totally
ameasuring 4635.1 sq. mtrs. in or about year 1979-80 and that he
constructed illegally and unauthorisedly a structure thereon
ameasuring 36'-3" x 21'-8" with extestion thereto ameasuring 11'
x 10'-10". The plaintiff states that the Defendant filed Suit
No.3120 of 1981 against Shri Prataprai Nandlal Kothari in the
Hon'ble Bombay City Civil Court at Bombay for permanent
Injunction restraining the said Defendant from disturbing alleged
possession of the Defendant in respect of the premises otherwise
than in due process of law. The Plaintiff states that the evidence
of parties was recorded in said suit No.3120 of 1981 and that by
Judgment dated 26th April, 1982 the said suit was decreed in
relation to the suit premises. The Plaintiff states that he is in
possession of the papers and proceedings in the said suit and he
craves leave to refer to and rely upon the same, when produced.
Hereto annexed and marked Exhibit-'L' is typed copy of Decree dated
26th April, 1982 in B.C.C.C. Suit No.3120 of 1981.
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11 It is plain, to my mind, that what these assertions show is simply
the Defendant's possession of the suit premises. What they do not show is that
the Defendant at any time claimed a title to the suit premises adverse to the true
owner ( i.e. the Plaintiff) either expressly or impliedly. Even the suit filed in 1981
was merely on the basis of his possession. What he claimed in the suit was the
right not be dispossessed otherwise than by due process of law. By definition,
such a plea does not rule out the true owner's right to recover possession from
him by adopting due process of law. In fact, in its judgment in the Defendant's
Suit (Suit No.3120 of 1981), the trial court noted as follows :
"Before parting with the case I would like to make it clear that
the relief granted to the plaintiff in this suit is based purely on
the question of his possession and threat of his being
dispossessed otherwise than by due process of law. The
question of title of both the parties and their rights and
remedies on the strength of title are left open including their
rights in respect of those portions of the property in regard to
which relief is granted in this suit."
These observations of the trial court were, in fact, quoted by the
Supreme court when it dismissed the Plaintiff's SLP, upholding the order of the
Division Bench of this court setting aside the order of the Single Judge in First
Appeal from the trial court's order. The Supreme court concluded its reasons in
the following words :
"(11) We have already extracted the summary of conclusions
arrived at by the learned Single Judge of the High Court. That
shows that his conclusions were vitiated by his view that the
appellant had title and possession followed title. It is quite
obvious that the learned Single Judge had not taken note of the
principle of possessory title or the principle of law that a person
who has been in long continuous possession can protect the
same by seeking an injunction against any person in the world
other than the true owner. It is also well settled that even the
owner of the property can get back his possession only by
resorting to due process of law."
What emerges from the foregoing is that there was simply a case of
long continuous possession on the part of the Defendant, which he was entitled to
protect against the world at large save and except the true owner. The owner
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himself is certainly entitled to recover possession based on his title, of course by
a due process of law.
12 Mere possession, however long, as we have seen above, does not
entitle the possessor to raise a plea of adverse possession. If there is no
assertion of title adverse to the true owner or at least, a denial of the title of the
true owner, expressly or by necessary implication, there cannot be
commencement of a claim of adverse possession. The defendant, as we have
seen above, not only has to show commencement of such claim of adverse
possession, but its continuation throughout the period of twelve years prior to the
filing of the plaintiff's suit. ig Only then does he establish his title by adverse
possession.
13 The Defendants in the present case have, thus, failed to establish
adverse possession for the statutory period of twelve years. Consequently, their
plea of bar of limitation fails.
14 The preliminary issue is, accordingly, answered in the affirmative, in
favour of the Plaintiff. Notice of Motion No.659 of 2014 is disposed of. Notice of
Motion No.4016 of 2014 shall now appear before the Court taking Motions for
hearing and final disposal.
(S.C.GUPTE, J.)
