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 first appellate court directing her to deliver possession of the suit land to the plaintiff, Mrs. Manjulabai Baban Gaikwad, along with mesne profits. The suit property was originally owned by Baban Gaikwad, the plaintiff's husband, who died issueless on 13 January 1971. Upon his death, the property devolved upon the plaintiff, who was then a minor aged 17. 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 as guardian 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 and applied for correction. After inquiry, the defendant's name was deleted on 12 October 1984, and the plaintiff's name was recorded. However, the defendant remained in possession, leading the plaintiff to file a suit for possession on 29 June 1987. The defendant claimed adverse possession, asserting that she had been in possession for more than 12 years. The trial court decreed the suit, and the first appellate court confirmed it. The second appeal was admitted on the substantial question of law whether the plea of adverse possession, even if not established, can save the starting point of limitation. The High Court held that the defendant failed to prove the essential elements of adverse possession, namely hostile possession for the statutory period with the requisite animus. The court noted that the defendant's possession was permissive or at best without animus, and the suit was filed within 12 years from the date the plaintiff's possession became adverse, which was after she attained majority and discovered the mutation. The concurrent findings of fact were not perverse, and no interference was warranted. The appeal was dismissed with costs.
Headnote
A) Limitation Act, 1963 - Adverse Possession - Burden of Proof - The defendant must prove possession hostile to the true owner for the statutory period of 12 years. Mere long possession does not constitute adverse possession unless it is open, continuous, and hostile to the knowledge of the owner. The court held that the defendant failed to prove the requisite animus and possession for the prescribed period. (Paras 1-27) B) Civil Procedure Code, 1908 - Second Appeal - Substantial Question of Law - The High Court cannot interfere with concurrent findings of fact unless perverse or based on no evidence. The question framed regarding limitation and adverse possession was answered against the appellant as the findings were based on proper appreciation of evidence. (Paras 1-27) C) Limitation Act, 1963 - Article 65 - Suit for Possession - The plaintiff's suit for possession based on title is governed by Article 65, where the limitation period is 12 years from the date of possession becoming adverse. The court held that the suit was filed within time as the defendant's possession was not adverse until after the plaintiff attained majority and discovered the mutation entry. (Paras 2-27)
Issue of Consideration
Whether the defendant's plea of adverse possession can save the starting point of limitation even if the defendant fails to establish adverse possession, and whether the suit is barred by limitation.
Final Decision
The second appeal is dismissed with costs. The concurrent judgments and decrees of the trial court and first appellate court are confirmed. The defendant is directed to deliver possession of the suit land and pay mesne profits as determined.
Law Points
- Adverse possession
- Limitation
- Burden of proof
- Concurrent findings
- Substantial question of law
