Case Note & Summary
The case involves a second appeal filed by Namdeo Khedkar (appellant/defendant) against the judgment of the Joint District Judge, Chandrapur, which reversed the trial court's decree dismissing the suit of Shahi Gupta Masjid Chandrapur (respondent/plaintiff-trust). The trust, a registered public trust, claimed ownership of 1,16,325 sq. ft. of Plot No.21/1 in Chandrapur. It alleged that in 1981, the defendant encroached upon 765 sq. ft. of the land and constructed a house. The trust issued a notice on 21.6.1988 to remove the encroachment, but the defendant failed to comply, leading to the filing of Regular Civil Suit No.279 of 1990 for removal of encroachment, recovery of possession, and permanent injunction. The trial court dismissed the suit, holding that the trust failed to prove its title and that the suit was barred by limitation. The lower appellate court reversed this decision, decreeing the suit. The defendant then appealed to the High Court. The key legal issues were whether the suit was barred by limitation under the Limitation Act, 1963, and whether the defendant had acquired title by adverse possession. The High Court held that encroachment on trust property is a continuing wrong under Section 23 of the Limitation Act, and the suit is not barred as long as the encroachment continues. The court also found that the defendant failed to prove adverse possession for 12 years. The appeal was dismissed, and the decree of the lower appellate court was confirmed.
Headnote
A) Limitation Act - Adverse Possession - Continuing Wrong - Section 23 of Limitation Act, 1963 - The court held that encroachment on trust property is a continuing wrong, and the suit for possession is not barred by limitation as long as the encroachment continues. The defendant's plea of adverse possession fails because the trust's right to sue accrues de novo each day the encroachment persists. (Paras 10-15) B) Trust Property - Encroachment - Possessory Title - Burden of Proof - The plaintiff-trust, being the owner, is entitled to possession unless the defendant proves adverse possession for 12 years. The defendant failed to establish exclusive, hostile, and continuous possession for the statutory period. (Paras 16-20) C) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 of Code of Civil Procedure, 1908 - The appeal involved a substantial question of law regarding limitation and adverse possession, warranting interference by the High Court. (Paras 1, 22)
Issue of Consideration
Whether the suit for possession filed by the plaintiff-trust against the defendant-encroacher was barred by limitation, and whether the defendant had acquired title by adverse possession.
Final Decision
The High Court dismissed the second appeal, confirming the decree of the lower appellate court. The suit for removal of encroachment, recovery of possession, and permanent injunction was decreed in favor of the plaintiff-trust.
Law Points
- Adverse possession
- Limitation Act
- 1963
- Section 23
- Continuing wrong
- Trust property
- Encroachment
- Possessory title
- Burden of proof
