1976 (4) TMI 192 - SC - Indian Laws

Whether the defendants had acquired full title to the suit property by prescription under the law in force at the relevant time? Held that - Appeal partly allowed. The plaintiffs suit for title to the land in occupation of the defendants and for their eviction so far as that portion of the land with their house on its concerned in dismissed. The plaintiffs suit for declaration in respect of the remaining portion of the land, however, is decreed. As there is no prayer for eviction of any person other than the defendants, that claim is rejected. No opinion with regard to the claim of persons who may be in occupation of the land other than the defendants who are not impleaded in the suit and against whom no relief has been claimed. The judgment and decree of the Additional Judicial Commissioner to the extent indicated in this judgment are set aside.

Issues Involved:
1. Ownership of the disputed plot.
2. Validity of the perpetual lease claimed by the defendants.
3. Acquisition of title by prescription.
4. Permissive possession versus adverse possession.
5. Application of Portuguese Civil Code provisions.

Issue-wise Detailed Analysis:

1. Ownership of the Disputed Plot:
The plaintiffs initiated a suit for the ejectment of the defendants from the disputed plot, asserting that the plot was inherited by Bascora from his mother, Sitabai, and subsequently by Bascora and his sisters. The defendants claimed ownership based on a deed executed by their ancestor, Caetana Esperanca Fernandes, in 1920, which indicated that they were owners of the plot.

2. Validity of the Perpetual Lease Claimed by the Defendants:
The defendants contended that their ancestor, Pascoal da Costa, was given the property on a perpetual lease in 1875 by Visnum Bascora Sinai Narcornim, an ancestor of the plaintiffs. However, the original perpetual lease was not produced in court, and only a certified copy of a translation was available. The court found no reason to disagree with the Judicial Commissioner's conclusion that the defendants failed to establish their plea of perpetual lease of the land.

3. Acquisition of Title by Prescription:
The defendants argued that they had acquired title to the property by prescription, having been in "open, peaceful and continuous" possession for over 50 years. The Judicial Commissioner initially concluded that the defendants failed to prove this claim. However, upon further examination, the court found that the defendants had indeed been in long and open possession of the land since 1875, with a clear repudiation of the plaintiffs' title in 1920. The court concluded that the defendants should be held to have acquired title to the land by prescription.

4. Permissive Possession versus Adverse Possession:
The court noted that permissive possession is not sufficient to prescribe the title of the owner of the land. The Judicial Commissioner erroneously held that the defendants' possession was permissive under the plaintiffs. The court found no evidence to support this conclusion and determined that the defendants' possession was adverse to the plaintiffs' title, establishing their claim of adverse possession.

5. Application of Portuguese Civil Code Provisions:
The court referred to various articles of the Portuguese Civil Code, including Articles 474, 505, 528, and 529, which define possession and prescription. The court clarified that permissive possession does not constitute possession under Article 474, and that prescription operates by virtue of possession for 15 years (Article 528) or 30 years (Article 529). The court found that the defendants' long continuous and peaceful possession met the criteria for prescription under these articles.

Conclusion:
The appeal was partly allowed. The plaintiffs' suit for title to the land in occupation of the defendants and for their eviction from that portion with their house was dismissed. The plaintiffs' suit for declaration in respect of the remaining portion of the land was decreed. The judgment and decree of the Additional Judicial Commissioner were set aside to the extent indicated in this judgment. There was no order as to costs.

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