Case Note & Summary
The case involves a second appeal filed by the original defendant, Mrs. Anjanabai Rajaram Gore, challenging the concurrent judgments and decrees of the trial court and the first appellate court directing her to deliver possession of the suit land to the plaintiff, Mrs. Manjulabai Baban Gaikwad, and to pay mesne profits. The suit property was originally owned by Baban Gaikwad, the plaintiff's husband, who died issueless on 13 January 1971. The plaintiff, then a minor, inherited the property. The defendant, the plaintiff's real sister, got her name recorded in the revenue records via Mutation Entry No.49 dated 7 December 1971. The plaintiff's father managed the property until his death in 1982. On 26 March 1984, the plaintiff allegedly learned for the first time about the mutation entry in the defendant's name. She applied for correction, and the defendant's name was deleted on 12 October 1984, with the plaintiff's name recorded by Mutation Entry No.182. However, the defendant remained in possession, prompting the plaintiff to file a suit for possession on 29 June 1987. The defendant claimed that she had acquired title by adverse possession, having been in possession for more than 12 years. The trial court decreed the suit in favor of the plaintiff, holding that the defendant failed to prove adverse possession and that the suit was within limitation. The first appellate court affirmed this decision. In the second appeal, the sole question of law was whether the suit was barred by limitation given the defendant's possession for over 12 years, even if adverse possession was not proved. The High Court held that the defendant must prove adverse possession with clear evidence of hostile possession against the true owner. Mere possession for 12 years does not automatically bar the suit. The plaintiff's suit was filed within 12 years of her knowledge of the defendant's encroachment, and the concurrent findings of fact were not perverse. The appeal was dismissed, and the decree for possession and mesne profits was upheld.
Headnote
A) Limitation Act, 1963 - Article 65 - Suit for Possession - Adverse Possession - The defendant must prove that her possession was adverse to the true owner for a continuous period of 12 years. Mere possession for 12 years without proof of hostile animus does not extinguish the plaintiff's title or bar the suit. The plaintiff's suit filed within 12 years of her knowledge of the defendant's encroachment is within limitation. (Paras 1-27) B) Civil Procedure Code, 1908 - Section 100 - Second Appeal - Concurrent Findings of Fact - The High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The trial court and first appellate court's findings that the defendant failed to prove adverse possession and that the suit was within limitation are findings of fact not open to challenge in second appeal. (Paras 1-27) C) Transfer of Property Act, 1882 - Section 54 - Sale - Title - The plaintiff's title to the suit property as the heir of her deceased husband is established by revenue records and mutation entries. The defendant's claim of title by adverse possession fails for lack of evidence of hostile possession. (Paras 2-27)
Issue of Consideration
Whether the suit for possession is barred by limitation when the defendant has been in possession for more than 12 years, even if the defendant fails to prove adverse possession?
Final Decision
The second appeal is dismissed. The concurrent judgments and decrees of the trial court and the first appellate court directing the defendant to deliver possession of the suit land and pay mesne profits are upheld.
Law Points
- Adverse possession must be proved by the defendant with clear and unequivocal evidence of hostile possession against the true owner
- mere possession for 12 years does not automatically bar the suit
- limitation period for possession suit runs from the date of knowledge of the defendant's adverse possession
- concurrent findings of fact cannot be interfered with in second appeal unless perverse or based on no evidence
