Bombay High Court
Smt. Sardadevi Wd/O Devidin Gupta ... vs Jayshree W/O Avinash Banait And ... on 12 September, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.417 OF 2017
APPELLANT: Smt. Sardadevi wd/o Devidin Gupta
(Dead) through LRs
1. Govind S/o Devidin Gupta, Aged about
50 years, Occ: Business,
2. Madhukar S/o Devidin Gupta, Aged
about 50 yrs., Occ: Business
Both R/o F-18, Pratima Apartments,
Laxminagar, Nagpur.
-VERSUS-
RESPONDENTS: 1. Jayshree W/o Avinash Banait, Age 53
years, Occ: Private, R/o Congressnagar,
Opp Dhanwate National College,
Nagpur.
2. Smt. Kumudini Wd/o Prakashchandra
Banait (Deceased) hence deleted.
Shri S. V. Bhutada, Advocate for the appellant.
Dr. R. S. Sundaram , Advocate for the respondents.
CORAM: A.S. CHANDURKAR, J.
DATED: SEPTEMBER 12, 2017.
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ORAL JUDGMENT :
1. The appellants are the original defendants who are
aggrieved by the decree for possession passed by the appellate
Court in the suit filed by the respondent.
2. The brief facts giving rise to the present litigation are
that the respondent alongwith one Kumudini claims to be the
owner of land admeasuring 464.40 square meters which is part of
Khasra Nos.22,23 and 30 situated at mouza Ajni. It is claimed that
this land has been purchased by virtue of sale deed dated
18-9-1991 from Shri Deo Balkrushna Devghar Deosthan, Sitabuldi.
According to the plaintiff, the defendant purchased land
admeasuring 5000 sq. ft from the same vendor on 15-11-1968.
The defendant's land is situated in Khasra No.29. As the
defendant's land was adjacent to the plaintiff's land, the defendant
committed encroachment and hence the common vendor issued a
notice on 18-3-1985 calling upon the defendant to vacate the
property. The defendant refused to do so by giving reply.
Ultimately on 28-12-1993 the plaintiffs filed suit for possession by
seeking eviction of the defendant from the suit property.
3. The defendant in her written statement denied the
claim as made. According to her, she was in possession of land
admeasuring 6700 sq. ft. since 25-10-1968 openly, peacefully and
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continuously. It was further pleaded that being in such open
possession, she had perfected her title to the suit property. The
title of the plaintiffs was denied and it was pleaded that the suit
was liable to be dismissed.
4. The trial Court after considering the evidence on
record held that though the plaintiff had purchased the suit
property on 18-11-1991, the defendant had perfected her title by
way of adverse possession. On that basis the suit came to be
dismissed. The first appellate Court held that the trial Court erred
in holding the plea of adverse possession in favour of the
defendant. It observed that the defendant had not proved as to
when she had come in possession for claiming title on the basis of
adverse possession. Accordingly, the judgment of the trial Court
was set aside and the suit came to be decreed. Being aggrieved
the defendant has filed this appeal.
5. Shri S. V. Bhutada, learned Counsel for the defendant
submitted that the appellate Court erred in setting aside the decree
of the trial Court. Referring to the documents on record it was
submitted that the suit as filed on 28-12-1993 was barred by
limitation inasmuch as the encroachment as alleged was in the
year 1980. Though the trial Court did not frame any issue as to
whether the suit was filed within limitation, it was for the plaintiffs
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to demonstrate as to how the suit filed by them was within
limitation. He referred to provisions of Section 3 of the Limitation
Act, 1963 (for short, the said Act) to urge that the plea of
limitation goes to the root of the matter and such plea could be
raised at any stage of the proceedings. In that regard, he placed
reliance on the judgments of the Hon'ble Supreme Court in State
of Gujarat Vs. Kothari and Associates (2016)14 SCC 761,
Vasantiben Prahladji Nayak and others v. Somnath Muljibhai Nayak
and others AIR 2004 SC 1893 and judgment of learned Single
Judge in Ajab Enterprises v. Jayant Vegoiles and Chemicals Pvt. Ltd.
AIR 1991 Bombay 35. It was therefore submitted that having
failed to initiate the proceedings within the prescribed period of
limitation the suit was liable to be dismissed. He also referred to
the evidence of the parties to support his submissions.
6. On the other hand, Dr. R. S. Sundaram, learned
Counsel for the respondents supported the impugned judgment.
He submitted that the appellate Court on a proper consideration of
the material on record rightly decreed the suit. The suit was filed
within limitation as prescribed by Article 65 of the said Act. It was
for the defendant to come up with specific pleadings as to when
she had come in actual possession of the suit property on the basis
of which the time would begin to run against the real owner. He
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submitted that on the contrary as per the reply dated 4-4-1985
issued by the plaintiff she had claimed ownership in herself
without admitting the plaintiff's title. The defendant had failed to
satisfy the ingredients for claiming title on the basis of adverse
possession. In support of his submissions, learned Counsel placed
reliance on the judgment of the Hon'ble Supreme Court in Girja
Kumar & others Vs. State of Himachal Pradesh and another (2007)
14 SCC 90 and judgment of learned Single Judge in Punja vs.
Shivaji 2017 (2) Mh.L.J. 111. It was thus submitted that the suit
was rightly decreed by the first appellate Court.
7. I have heard the learned Counsel for the parties at
length and I have also gone through the material placed on record.
The plaintiff claims title on the basis of sale deed dated 18-9-1991
in respect of 464.40 sq. mtrs. land that was purchased from
Khasra Nos.22, 23 and 30 of mouza Ajni. According to the
plaintiff, prior to purchasing this land, their vendor on 18-3-1985
had issued a notice to the defendant alleging that though the
defendant had purchased 5000 sq. ft. land from Khasra No.29 vide
sale deed dated 15-11-1968, the said defendant had encroached
upon land admeasuring 6700 sq. ft. from Khasra No.23/1. The
defendant was therefore called upon to vacate the encroached
portion. The defendant as per her reply at Exhibit-69 admitted that
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she was in possession of the said land. It was further stated that an
agreement for purchasing a plot admeasuring 50 ft x 100 ft. had
been entertained into with the erstwhile Vendor. Similarly, extra
land to the extent of 1700 sq. ft. was also intended to be
purchased. It was then stated that as the defendant was in
possession since 25-10-1968 she had become owner having
perfected her title by adverse possession.
8. From the aforesaid, it can be seen that though the
defendant was the owner of 5000 sq. ft. land from Khasra No.29,
she was found in possession of further land to the extent of 6700
sq. ft. from Khasra No.23/1. According to the defendant, she was
in possession since 1968 and had therefore perfected her title by
way of adverse possession. There is no evidence on record placed
by the defendant to indicate her possession of this land
admeasuring 6700 sq. ft. from Khasra No.23/1. Moreover, in the
reply at Exhibit No.69 dated 4-4-1985, the defendant admitted the
erstwhile vendor's title by relying upon an agreement to purchase
that land. There are no details given regarding this agreement of
the defendant. Having recognized the Vendor's title, the claim of
title having been perfected by way of adverse possession would
arise only if there was evidence to indicate open and hostile
possession of the defendant qua the real owner. Except the reply
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dated 4-4-1985, there is no evidence on record to indicate open
and hostile possession of the defendant. Moreover, the erstwhile
owner is also not a party to the proceedings. The appellate Court,
therefore, rightly found that the evidence on record was not
sufficient to justify the claim of the defendant of having perfected
title by way of adverse possession.
9. As regards the submission that the suit filed by the
plaintiff on 28-12-1993 for possession was barred by limitation, it
ought to be seen that the plaintiff acquired title as per sale deed
dated 18-9-1991. She then issued a notice on 8-12-1993 to the
defendant and thereafter filed the suit for possession. There is no
evidence on record to indicate as to when the defendant came into
actual possession of the suit property. There is also no evidence to
indicate the open and hostile possession of the defendant to the
exclusion of the real owner. According to the plaintiff's vendor, the
defendant was in occupation as a trespasser prior to three years
from issuance of the notice dated 18-3-1985. Thus, even if it is
assumed that the defendant was in possession since the year 1982
and the plaintiff acquired title on 18-9-1991, the suit was filed
within a period of twelve years from March, 1982 as required
under Article 65 of the said Act.
10. Though it is true that under Section 3 of the said Act,
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it is the duty of the Court to examine if the claim as made in the
suit is within limitation, it cannot be lost sight of that when a
defence is raised that title has been perfected by way of adverse
possession, the question of limitation is always a mixed question of
fact and law. In State of Gujarat (supra), it was held that even if
the defendant did not raise the issue of limitation before the trial
Court, a duty was cast on the Court to consider this aspect on its
own initiative. The legal question as regards bar of limitation
could be raised in appeal. At the same time, it was also observed
that in said case the Court was not confronted with the situation
where the plea of limitation was a mixed question of fact and law.
Considering the nature of pleadings in the present suit and the
defence of title having been perfected by way of adverse
possession, it is clear that the issue of limitation as sought to be
raised is a mixed question of fact and law. There cannot be any
dispute that the plea of limitation cannot be waived as held in Ajab
Enterprises (supra). At the same time, such question needs to be
considered in the light of the evidence on record. Thus, after
considering the entire material on record and in view of the
discussion in paragraph 9 herein above, I am satisfied that the suit
has been filed within limitation.
I do not find that the defendant has succeeded in
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making out a case that the suit as filed was barred by limitation.
I, therefore, do not find any reason to interfere with the judgment
of the appellate Court. In view thereof, the appeal stands
dismissed with no order as to costs.
JUDGE
/MULEY/
