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CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1776 OF 2010
M/s.Asian Builders and Contractors .. Appellant
Mr. Aseem Naphade a/w Mr.Gargi Bhagwat i/b M/s.Divekar Bhagwat and Co., Advocate for the Appellant.
None for the Respondents
ORAL JUDGMENT
1. The present Appeal is filed against the Judgement and Decree dated 29th September, 2010 passed by the Bombay City Civil Court in L.C. Suit No.1561 of 2006 whereby the Appellant’s suit was dismissed as being barred by limitation under Article 65 of the Limitation Act, 1963.
2. In this Judgement, the nomenclature of the parties will be as per their nomenclature in the Suit.
3. Before we consider the arguments of the Plaintiffs, it would be appropriate to refer to the facts in this case.
4. The Plaintiffs claim to be the absolute owner of and/or sufficiently entitled to the land bearing Survey No.44, Hissa No.4, corresponding to CTS No. 468, of Village Chakala, Taluka Andheri, M.S.D., admeasuring 268 sq. metres and bearing the address as Andheri-Ghatkopar Link Road, Chakala, Andheri (East) Mumbai 40093 (hereinafter referred to as ‘the suit land’).
5. It is the case of the Plaintiffs that the Defendants had, on or about 1990, illegally encroached and trespassed over the suit land and constructed an illegal structure which was originally 10 x 25 feet. In the year 1998, the Public Works Department physically acquired part of the suit land admeasuring 100 sq. metres for the purposes of the proposed Andheri- Ghatlopar Link Road. On account of the said acquisition, part of the original premises was demolished and in lieu thereof the Defendants were provided with one shop and one flat as alternative accommodation. The Defendants accepted the said alternative accommodation and yet not only continued encroachment over the suit land by means of retaining the remainder of the illegal structure erected thereon but also carried out illegal extensions to the remaining structure by extending the rear and side walls.
6. The Mumbai Metropolitan Region Development Authority, under the Mumbai Urban Infrastructure Project commenced in the year 2002 – 2003, decided to realign the said Andheri-Ghatkopar Link Road and widen it to 150 feet, on account of which further portion of the suit land was required to be acquired. The illegal structure of the Defendants which was existing on the suit land was further demolished and reduced to 14’ – 3” x 13’ – 6” and in lieu of the demolition of the said structure of the Defendants, MMRDA once again allotted one shop and two flats to the Defendants.
7. It is the case of the Plaintiffs that, despite being allotted three flats and two shops in lieu of their patently illegal structure, pursuant to the rehabilitation policies of the authorities, the Defendants continued their encroachment and unauthorized presence on the suit land by means of occupying the said structure now admeasuring 14’ – 3” x 13’ – 6”. The Plaintiffs made a grievance in this regard to the authority vide letter dated 29th March 2006.
8. It is further the case of the Plaintiffs that they made repeated demands on the Defendants to vacate the suit land, more particularly since they had been provided more then adequate alternative accommodation. The Defendants further adopted a defiant stand and on 14th March, 2006 categorically informed the Plaintiffs that they would not only remove the illegal structure now existing on the suit land but would aggravate the act of encroachment by constructing vertical and horizontal extensions to the said existing structure and thereby occupy all the open area of the suit land now in existence. It is in this circumstances that the Plaintiffs filed the present Suit seeking the following reliefs: “(a) for a decree and declaration of this Honorable Court, thereby declaration that the Defendants are trespassers encroachers over the portion of the suit land occupied by the illegal structure of the Defendants admeasuring 14'-3" X 13'-6" and situate, lying and being at City Survey NO. 468, Village Chakala, Taluka Andheri, M.S.D and bearing the address as Andheri Ghatkopar Link Road, Chakala, Andheri (East), Mumbai - 400 093. (b) for the decree and directions of this Honorable Court, thereby directing the Defendants to remove themselves along with all their articles, things and belongings, including the illegal structures erected by the Defendants from the suit land being the land City Survey no. 468, Village Chakala, Taluka Andheri, M.S.D and bearing the address as Andheri Ghatkopar Link Road, Chakala, Andheri (East), Mumbai 400 093.
(c) for an order of injunction of this Honorable Court, thereby permanently restraining the Defendants their servants and agents and/or anybody claiming through of under them from entering, remaining upon and/or occupying the portion of the suit land being the land bearing City Survey no. 468, Village Chakala, Taluka Andheri, M.S.D and bearing the address as Andheri Ghatkopar Link Road, Chakala, Andheri (East), Mumbai 400 093 and/or any part thereof in any manner whatsoever;
(d) that the Defendants be directed to pay the Plaintiffs such amount by the way of mesne profits, as may be determined by this Honorable Court, for being in illegal use and occupation of the area admeasuring 14'-3" X 13'- 6" of the suit land, being the land situate, lying and being at City Survey no. 468, Village Chakala, Taluka Andheri, Mumbai Suburban District and bearing the address as Andheri - Ghatkopar Link Road, Chakala, Andheri (East), Mumbai - 400 093 from the date of filing of the suit till the date of recovery of the possession thereof.”
9. The Defendants filed a Written Statement wherein they adopted what was stated in their Affidavit in Reply dated 14th September 2006 and an Affidavit in Sur-Rejoinder dated 19th June, 2008.
10. Although, in paragraph 12 of the Plaint, the Plaintiffs had categorically stated that the Defendants were not in adverse possession, the Defendants did not specifically deny the same in the Affidavit in Reply dated 14th September 2006.
11. Further, in the Sur-Rejoinder dated 19th June 2008, the Defendants stated that they had become owners of the suit land by adverse possession. The Defendants contended that they had acquired right, title and interest in the suit land by adverse possession, being in continuous possession for more than twelve years adversely to the knowledge and rights of the Plaintiffs. The Defendants further contended that the possession of the Defendants since 1990 was actual, constant, visible, exclusive, hostile and continued till date to the knowledge of the Plaintiffs and adversely to the rights of the Plaintiff. The Defendants also submitted that the Suit filed by the Plaintiff after a lapse of more than 12 years is not maintainable and is beyond the statutory limitation period as prescribed in Article 65 of the Schedule to the Limitation Act.
12. The learned Trial Judge framed issues in the Suit on 19th June
2010. Issue Nos.4, 5 and 7 were treated as preliminary issues and read as under:
13. Out of the said Issues, Issue no. 5 was answered in favour of the Plaintiffs while Issue nos. 4 and 7 were answered against the Plaintiffs.
14. While deciding issue nos. 4 and 7 against the Plaintiffs, the learned Trial Judge held that the act of encroachment in the year 1990 was admitted and the present Suit for removal of encroachment in the year 2006 was barred by limitation. The learned Trial Judge further held that the limitation prescribed for recovery of possession on the basis of title is 12 years from the date of dispossession or the date when the possession becomes adverse under Articles 64 and 65 of the Limitation Act, 1963. The present Suit for recovery of possession from trespassers after the expiry of 12 years from the date of encroachment or trespass committed by the Defendants is barred by the limitation. The learned Trial Judge further held that the averments in the Plaint are sufficient to make out the date from when the limitation begins to run against the Plaintiffs. There is no need of any evidence to determine the question of limitation. The Trial Judge also held that the question of limitation is purely a legal question and, therefore, held that the Suit was barred by the law of limitation.
15. Mr.Naphade, the learned counsel appearing on behalf of the Plaintiffs (Appellant), submitted that the findings in the judgement, that limitation is a pure question of law, are incorrect. Mr.Naphade submitted that limitation is a mixed question of law and fact, and in support of this submission, relied upon the judgement of the Hon’ble Supreme Court in Ramesh B. Desai and Others vs. Bipin Vadilal Mehta and Others (2006) 5 SCC 638.
16. Further, Mr. Naphade submitted that encroachment is a continuing wrong and cannot be equated with adverse possession. In this context, he referred to Section 22, and Section 2(m) of the Limitation Act, 1963 which defines tort. In support of this submission, Mr.Naphade relied on the Judgement of the Assam High Court in Harendra Narayan Das vs. Chairman, Municipality, Goalpara (1956) SCC OnLine Gau 12. Mr.Naphade further submitted that the Plaintiffs had categorically averred in paragraph 12 of the Plaint that the Defendants were not in adverse possession. Despite the same, the Defendants, in their written statement, did not deny the same. Further, Mr.Naphade drew my attention to the Sur-Rejoinder dated 19th June, 2008 filed on behalf of the Defendants wherein the Defendants claimed ownership by adverse possession. Mr.Naphade submitted that, since ownership by adverse possession has been claimed by the Defendants, there was no question of framing any issue of limitation. In support of this submission, Mr.Naphade relied upon the Judgement of this Court in Rukhamini Pandurang Sanstha, Yavatmal and others vs. State of Maharashtra (2012) (6) Mh.L.J. 679.
17. Mr.Naphade also relied upon the Judgement of the Hon’ble Supreme Court in Karnataka Board of Wakf vs. Government of India and Others (2004) 10 SCC 779 wherein the Hon’ble Supreme Court held that it is a settled principle that a party claiming adverse possession must prove that his possession is peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner.
18. Mr.Naphade submitted that, in these circumstances, the burden was on the Defendants to prove as to when the possession of the Defendants became adverse to the Plaintiffs. He submitted that the Respondent had not discharged his burden because no evidence had been recorded. Mr.Naphade submitted that, for these reasons, the Judgement of the learned Trial Judge ought to be set aside.
19. The Respondents, though served, have remained absent.
20. I have heard the learned counsel for the Appellants (Plaintiffs) and perused the documents on record.
21. The learned Trial Judge has dismissed the Suit on the ground of limitation under Article 65 of the Limitation Act. The learned Trial Judge has held that the Suit was barred by limitation as the act of encroachment in the year 1990 is admitted and the present Suit for removal of encroachment was filed in 2006.
22. Article 65 of the Schedule to the Limitation Act, 1963, reads as under: Description of suit Period of limitation Time from which period begins to run For possession of immovable property or any interest therein based on title Twelve years When the possession of the defendant becomes adverse to the plaintiff.
23. In this context, it is important to note that, under Article 65 of the Limitation Act, 1963, the period of limitation begins to run when the possession of the Defendant becomes adverse to the Plaintiff. In the present case, in their Affidavit in Sur-Rejoinder, which has been adopted in their Written Statement, the Defendants have taken a stand that they have become the owners of the suit land by adverse possession. The Defendants have contended that they have acquired right, title and interest in the suit land by adverse possession of the suit land as they were in continuous possession since 12 years adversely to the knowledge and rights of the Plaintiffs. The Defendants have further contended that they were in possession since 1990 and that their possession since 1990 was actual, constant, visible, exclusive, hostile and continued till date to the knowledge of the Plaintiffs and adversely to the rights of the Plaintiffs.
24. In the light of these averments made by the Respondents in the Written Statement, it would be appropriate to refer to the Judgement of this Court in Rukmini Pandurang Sanstha, Yavatmal (Supra). Paragraphs 5, 8 and 12 of the said Judgement are relevant for the purposes of the present case and are set out hereunder: “5. On the basis of the rival pleadings, the learned Trial Court framed as many as 17 issues. The first being about proper valuation of the suit, which came to be deleted later on. The parties adduced evidence oral as well as documentary. On behalf of the plaintiffs its trustee - P.W. I Dattatraya Kulkarni entered the witness box. In rebuttal three wimesses, mainly the office bearers of I.T.I. were examined. After considering the evidence brought on record, the learned Trial Court answered nine issues relating to title to the suit plot in favour of the plaintiffs. The Issue Nos. 12, 13, 14 which cast burden upon the defendants to prove acquisition of title to the suit plot by adverse possession and to prove that suit was time barred, were answered in their favour. This resulted in dismissal of the suit and hence this appeal.
8. It seems that while framing the issues, pleadings of the parties were read in piece-meal. It also appears that fundamentals of law of burden of proof were ignored which resulted in framing of as many as 16 issues. The case of the plaintiffs is that they are the owners of the suit plot; whereas the defendants claimed that they are in possession of the same and acquired title to it by adverse possession. Since the suit based upon title is governed by Article 65 of the Limitation Act and the limitation starts from the date when the possession of the defendants becomes adverse, the question of framing issue of limitation does not arise. The burden to prove acquisition of title by adverse possession being on the party who sets up such a case and limitation of 12 years starts when the possession of such party becomes adverse to its true owner, only such issue was required to be framed. Be that as it may.
12. Now, I shall advert to the point of limitation and adverse possession. The suit based upon title is governed by Article 65 of the Limitation Act. Limitation of 12 years commences from the date, possession of the defendant becomes adverse to the plaintiff. Onus is entirely on the party who sets up a title on the basis of adverse possession. Presumptions and probabilities cannot be substituted for evidence. It must be shown by clear and unequivocal evidence that possession was hostile to its true owner and amounted to a denial of his title to the property claimed. Mere long possession for a period of more than 12 years cannot result in acquisition of title by adverse possession. What is material is ‘animus possidendi’. It seems that the learned Trial Court could not distinguish between the 'possession simpliciter' and 'adverse possession' and therefore fallen in error while recording the finding that the suit is barred by limitation and defendants have perfected title to it by adverse possession.”
25. From a reading of the aforesaid Judgement, it is clear that, in the said Judgement, the case of the Plaintiffs was that they were owners of the suit land whereas the Defendants claimed that they were in possession of the same and acquired title to the suit land by adverse possession. This Court held that since the suit based upon title is covered by Article 65 of the Limitation Act 1963, and the limitation starts from the date when the possession of the Defendants becomes adverse, the question of framing an issue of limitation does not arise. The burden to prove acquisition of title by adverse possession being on the party who sets up such a case and limitation of 12 years starts when the possession of such party becomes adverse to its true owner, only such an issue was required to be framed.
26. The ratio of this Judgement clearly applies to the facts of the present case. In the present case also, it is the case of the Defendants that they have acquired title by adverse possession. Therefore, there was no question of framing an issue of limitation. The burden to prove acquisition of title by adverse possession was on the Defendants and the issue that was required to be framed was whether the Defendants proved that they have acquired title by adverse possession.
27. Further, as held by Hon’ble Supreme Court in the Judgement of Karnataka Board of Wakf (Supra), a party claiming adverse possession must prove that his possession is peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that the possession is adverse to the true owner. It must start with a wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. Paragraph 11 of the said Judgement is relevant and reads as under:
28. In my view, in light of the said law laid down by this Court and the Hon’ble Supreme Court, and in the light of the Respondents claiming title by adverse possession, the learned Trial Judge was required to frame an issue whether the Respondents proved that they had acquired title by adverse possession. In fact, the learned Trial Judge has framed that issue as issue number 3 which reads as follows:
29. Instead of deciding Issue No.3 after evidence is led by the parties, the learned Trial Judge erred in framing and deciding a preliminary issue of limitation without any evidence being led by the parties. What was required was that the Defendants were required to prove their title by adverse possession and that could have been done only by leading evidence. The burden was on the Defendants to prove Issue No.3 by leading evidence in that regard. This, the learned Trial Judge failed to appreciate.
30. In these circumstances, and for all the aforesaid reasons, the following order is passed: a. The present First Appeal is allowed. b. The Order dated 29th September 2010 passed by the Bombay City civil Court at Dindoshi is hereby quashed and set a side. c. The Suit is restored to the file of the Bombay City Civil Court at Dindoshi. d. The Suit is expedited and the Bombay City Civil Court at Dindoshi will endeavour to decide the Suit within a period of 1 year from today. e. In view thereof, nothing survives in the Civil Applications. The same are dismissed as infructuous. [FIRDOSH P. POONIWALLA, J.]