Case Note & Summary
The case involves a second appeal filed by the original defendants against the judgment and decree dated 24.07.2012 passed by the learned District Judge-I, North Goa, in a suit for declaration and injunction. The plaintiff (respondent no.5) claimed that the suit property was ancestral and that the defendants were in permissive possession. The trial court dismissed the suit, holding that the defendants had acquired title by adverse possession. The first appellate court reversed the trial court's decision and decreed the suit. The defendants appealed to the High Court. The High Court admitted the appeal on the ground that the lower appellate court's judgment suffered from perversity in recording a finding of adverse possession without considering that the plaintiff was a co-owner and that possession of one co-owner is possession of all co-owners. The High Court held that the finding of adverse possession was not sustainable as there was no evidence of ouster. The appeal was allowed, the judgment of the first appellate court was set aside, and the trial court's decree was restored.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The High Court admitted the appeal on the ground that the lower appellate court's judgment suffered from perversity in recording a finding of adverse possession without considering that the plaintiff was a co-owner and that possession of one co-owner is possession of all co-owners. Held that the finding of adverse possession was not sustainable as there was no evidence of ouster. (Paras 2-5)
B) Property Law - Adverse Possession - Co-owner's Possession - The principle that possession of one co-owner is possession of all co-owners unless there is ouster was not considered by the lower appellate court. The trial court's finding that the defendants had perfected title by adverse possession was set aside. (Paras 4-5)
C) Civil Procedure - Second Appeal - Interference with Findings of Fact - Section 100 Code of Civil Procedure, 1908 - The High Court can interfere with findings of fact if they are perverse or based on no evidence. In this case, the finding of adverse possession was perverse as it ignored the co-ownership relationship. (Paras 2-5)
Issue of Consideration
Whether the trial court's finding that the defendants had acquired title by adverse possession was perverse and whether the appellate court failed to consider that possession of one co-owner is possession of all co-owners.
Final Decision
The appeal is allowed. The judgment and decree dated 24.07.2012 passed by the learned District Judge-I, North Goa, is set aside. The judgment and decree of the trial court is restored. No order as to costs.
Law Points
- Adverse possession
- Co-owner possession
- Ouster
- Perverse finding
- Substantial question of law
- Section 100 CPC
Case Details
Second Appeal No. 138 of 2012 with Stamp Number (Appln.) No. 2279 of 2013 and Civil Application No. 193 of 2012
Mr. S. G. Desai, Senior Advocate with Mr. V. R. Tamba and Mr. D. D. Zaveri for Appellants; Mr. S. D. Lotlikar, Senior Advocate with Mr. P. Lotlikar for Respondents
Shri Vishram alias Prasad Govekar, Smt. Sunita Govekar, Shri Harshad Govekar
Shri Sudesh Govekar, Smt Sushila Sudesh Govekar, Smt. Arti Govekar, Shri Sanjeev Sinai Usgaonkar (since deceased) through legal representatives, Shri Ramdas Gaonkar, Smt. Lilavati Govekar (since deceased)
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Nature of Litigation
Second appeal against judgment and decree in a suit for declaration and injunction regarding ancestral property.
Remedy Sought
Appellants (original defendants) sought to set aside the judgment of the first appellate court which decreed the suit in favor of the plaintiff.
Filing Reason
The appellants challenged the lower appellate court's judgment on the ground that it was perverse and failed to consider that the plaintiff was a co-owner and that possession of one co-owner is possession of all co-owners.
Previous Decisions
The trial court dismissed the suit holding that the defendants had acquired title by adverse possession. The first appellate court reversed and decreed the suit.
Issues
Whether the lower appellate court's finding that the defendants had acquired title by adverse possession was perverse?
Whether the lower appellate court failed to consider that the plaintiff was a co-owner and that possession of one co-owner is possession of all co-owners?
Submissions/Arguments
Appellants argued that the lower appellate court's judgment was perverse and that the finding of adverse possession was not sustainable.
Respondents supported the lower appellate court's judgment.
Ratio Decidendi
The possession of one co-owner is possession of all co-owners unless there is ouster. The finding of adverse possession by the lower appellate court was perverse as it ignored this principle and there was no evidence of ouster.
Judgment Excerpts
The above Appeal challenges the Judgment and Decree dated 24.07.2012, passed by the learned District Judge-I, North Goa.
The learned Senior Counsel appearing for the Appellants pointed out that the lower appellate court has recorded a finding that the Appellants have acquired title by adverse possession without considering that the plaintiff is a co-owner and that possession of one co-owner is possession of all co-owners.
In my view, the finding of the lower appellate court that the Appellants have acquired title by adverse possession is not sustainable.
The appeal is allowed. The judgment and decree dated 24.07.2012 passed by the learned District Judge-I, North Goa, is set aside.
Procedural History
The suit was filed by the plaintiff (respondent no.5) for declaration and injunction. The trial court dismissed the suit. The first appellate court reversed and decreed the suit. The defendants filed a second appeal before the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
