Case Note & Summary
The appellant, Pedro do Rosario Fernandes, filed a suit for declaration of title in May 1999, claiming that he obtained a certified copy of survey records in August 1996 and discovered an encroachment. The trial court decreed the suit, but the Lower Appellate Court reversed the decree, holding that the suit was barred by limitation under Article 58 of the Limitation Act, 1963, because the survey records were kept for objection and the suit was not filed within three years thereof. The appellant filed a second appeal in the Bombay High Court at Goa. The High Court framed two substantial questions of law: whether the Lower Appellate Court misconstrued Article 58 to hold the suit barred by limitation when no adverse possession was claimed, and whether the finding that the appellant failed to identify the suit property was perverse given that the respondents did not deny the plaint averments. The appellant argued that the limitation period runs from the date of knowledge of encroachment, not from the publication of survey records, and that the plaint averments were not disputed. The respondents supported the appellate judgment. The High Court allowed the appeal, set aside the impugned judgment, and remanded the matter to the Lower Appellate Court for fresh disposal on merits, holding that the suit was not barred by limitation and that the finding on identification was perverse.
Headnote
A) Limitation Act - Article 58 - Declaration of Title - Suit for declaration of title is not barred by limitation merely because survey records were published for objection; limitation runs from the date of knowledge of encroachment or when the right to sue accrues, not from the date of publication of survey records. The Lower Appellate Court misconstrued Article 58 by holding that the suit was barred by limitation when no adverse possession was claimed by the respondents. (Paras 2-3) B) Civil Procedure - Perverse Findings - Non-denial of Plaint Averments - Where the respondents did not deny the contents of paragraphs 1 and 2 of the plaint in their written statement, the finding of the Lower Appellate Court that the appellant failed to identify the suit property is perverse. (Para 2)
Issue of Consideration
Whether the Lower Appellate Court misconstrued Article 58 of the Limitation Act, 1963 to hold that the suit for declaration of title was barred by limitation when no claim of adverse possession was raised by the respondents; Whether the finding that the appellant failed to identify the suit property is perverse in view of the fact that the contents of paragraphs 1 and 2 of the plaint were not denied by the respondents in their written statement.
Final Decision
The appeal is allowed. The impugned judgment of the Lower Appellate Court is set aside. The matter is remanded to the Lower Appellate Court for fresh disposal on merits in accordance with law. The parties are directed to appear before the Lower Appellate Court on 17.02.2014.
Law Points
- Limitation for declaration of title runs from date of knowledge of encroachment
- not from survey record publication
- Article 58 Limitation Act
- 1963
- Suit for declaration of title not barred by limitation when no adverse possession claimed
- Perverse findings when plaint averments not denied
