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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 http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4
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 http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4
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 http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4
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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