Case Note & Summary
The case involves a property dispute between two sets of parties over a house and land in Bicholim, Goa. The respondents/plaintiffs (Shaikh Mohammad Ali and Sakhina Bi) filed a suit for declaration of ownership, deletion of entries of the appellants/defendants (Shaikh Mohammad Sharif Ibrahim Mamlekar and Hawa Bi) from the occupant's column, and for possession and permanent injunction. The plaintiffs claimed that the father of plaintiff No.1 had purchased 1/7th part of the property in a public auction in 1915, and another 1/7th part originally belonged to them. The defendants/appellants filed a counterclaim asserting ownership by adverse possession. The trial court (CJJD at Bicholim) dismissed the counterclaim and decreed the plaintiffs' suit. The first appellate court (Additional District Judge, Mapusa) confirmed the dismissal of the counterclaim. The appellants then filed a second appeal in the Bombay High Court at Goa. The High Court framed a substantial question of law regarding whether the courts below erred in dismissing the counterclaim. However, upon examining the evidence, the High Court found that the concurrent findings of fact were based on proper appreciation of evidence. The appellants failed to prove that their possession was hostile, open, continuous, and exclusive to the knowledge of the true owners for the statutory period. The courts below had noted that the appellants were in permissive possession and had not ousted the true owners. The High Court held that no substantial question of law arose and dismissed the second appeal, confirming the dismissal of the counterclaim.
Headnote
A) Property Law - Adverse Possession - Burden of Proof - The appellants claimed ownership by adverse possession but failed to prove that their possession was hostile, open, continuous, and exclusive to the knowledge of the true owners. The courts below concurrently held that the appellants did not establish ouster of the respondents/plaintiffs. (Paras 2-10)
B) Civil Procedure - Second Appeal - Substantial Question of Law - The High Court, in second appeal, cannot re-appreciate evidence unless the findings are perverse or based on no evidence. The concurrent findings of fact by the trial court and first appellate court were based on evidence and did not give rise to any substantial question of law. (Paras 1, 10)
C) Limitation - Adverse Possession - Period of Limitation - The appellants failed to prove that their possession was adverse for the statutory period of 12 years. The courts below found that the appellants were in permissive possession and their claim of adverse possession was not established. (Paras 5-8)
Issue of Consideration
Whether the appellants/defendants have perfected their title by adverse possession over the suit property and whether the concurrent findings of the courts below warrant interference in second appeal.
Final Decision
The High Court dismissed the second appeal, confirming the dismissal of the counterclaim by the courts below.
Law Points
- Adverse possession
- burden of proof
- ouster of true owner
- concurrent findings of fact
- second appeal limited to substantial question of law
Case Details
2010 LawText (BOM) (08) 120
Second Appeal No. 51 of 2006
Mr. Parag Rao for the appellants, Mr. M. Amonkar for the respondents
Shaikh Mohammad Sharif Ibrahim Mamlekar and Smt. Hawa Bi
Shaikh Mohammad Ali Abdul Razad Mamlekar and Smt. Sakhina Bi
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Nature of Litigation
Civil suit for declaration of ownership, possession, and permanent injunction, with counterclaim for adverse possession.
Remedy Sought
Appellants sought reversal of dismissal of their counterclaim for declaration of ownership by adverse possession.
Filing Reason
Appellants claimed ownership of suit property by adverse possession, which was denied by the courts below.
Previous Decisions
Trial Court (CJJD, Bicholim) dismissed counterclaim and decreed plaintiffs' suit; First Appellate Court (Additional District Judge, Mapusa) confirmed dismissal of counterclaim.
Issues
Whether the appellants have perfected their title by adverse possession over the suit property?
Whether the concurrent findings of the courts below warrant interference in second appeal?
Submissions/Arguments
Appellants argued that they have been in possession of the suit property for over 12 years and have perfected their title by adverse possession.
Respondents contended that the appellants were in permissive possession and failed to prove ouster or hostile possession.
Ratio Decidendi
The appellants failed to prove that their possession was adverse to the true owners for the statutory period. The concurrent findings of fact by the lower courts were based on evidence and did not give rise to any substantial question of law. In a second appeal under Section 100 CPC, the High Court cannot re-appreciate evidence unless the findings are perverse.
Judgment Excerpts
This second appeal questions the dismissal of the counterclaim in RCS No.49/1998/C and its endorsement in RCA No.6/2004 by the Trial Court- CJJD at Bicholim and the First Appellate Court – Additional District Judge, Mapusa respectively.
The respondents /plaintiffs prayed for declaration that they are the absolute owners of the suit property including the house bearing No.23 in occupation of the appellants /defendants being the part of the property popularly known as Gharbhatule surveyed under Survey No.40/15 of Bicholim, Muslimwada, Goa and for consequential deletion of entries of the names of the defendants in occupant's column of the suit property, and for the order directing the defendants to vacate the said house and deliver its vacant possession and further for permanent injunction restraining them from interfering in any manner in the suit property.
Procedural History
The respondents/plaintiffs filed RCS No.49/1998/C in the Court of Civil Judge, Junior Division at Bicholim for declaration of ownership and possession. The appellants/defendants filed a counterclaim for adverse possession. The trial court dismissed the counterclaim and decreed the plaintiffs' suit. The appellants appealed to the First Appellate Court (Additional District Judge, Mapusa) in RCA No.6/2004, which confirmed the dismissal. The appellants then filed Second Appeal No. 51 of 2006 in the Bombay High Court at Goa, which was dismissed.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
- Indian Limitation Act, 1963:
