Hemandas J. Soni vs I.T. Zariwalla

This is an appeal against the judgment and order of the then Addl Principal Judge, city civil court, bombay, dismissing the appeallant;s suit on the ground that it was barred by limitations.

2.The appellant id the owner of a building situated at Chowpaty Road. There is no dispute that the respondent is the tenant of flat No. 5 therein. It was the applleant''s case in the plaint that the respondent had, on or about 8th Sep., 1958, encroached upon a room adjoining flat No.5 and he sought a dectee for possession thereof.

In his written statement the respondent stated that the appellant''s predecessor-in-title to the said building had contended that he said room and had instituted a criminal proceeding in this behalf. The respondent had been acquitted of the alleged offence on 10th Mar., 1959. The respondent denied that he had on or about 8th September, 1958 encroached and trespassed upon the said room. He averred that he was the tenant of flat No.5 "included the room alleged to have been trespassed by the defendant." The Written Statement raised neither the plea of limitation nor the plea of adverse possession.

In the judgment under appeal the learned Judge summarized the pleadings and set out the issues. He stated that an issue in regard to limitation had been framed because S. 3 of the Limitation Act laid down that "every suit instituted after the prescribed period shall be dismissed although limitation has not been set up as a defense." The suit, he said, had been placed upon his board for hearing of the preliminary issuer of limitation. The learned Judge noted the provisions of Art. 65 of the Limitation Act and observed that, for the purpose , the significant date was 10th Mar., 1959., when the respondent was acquitted of the charge of trespass. This fixed the appellant with the awareness that the respondent was a trespasser. The suit ought to have been instituted within 12 years of this date because, according to the appellant, the respondent completed his trespass on that day. But counsel for the appellant argued that the respondent, who claimed to be a tenant of the said room, could not in law set up the claim of adverse possession thereto. This argument raised the further question; did the law recognise adverse possession in respect of a limited interest in property. The appellant''s allegation was that the respondent had unlawfully annexed the adjoining room and claimed to be the tenant thereof. It was common ground that the respondent had not claimed ownership by adverse possession. The respondent claimed, according to the learned Judge, "that he has perfected his title to the tenancy of the suit premises by adverse possession." This ''distinction'' of the respondents claim, which was known to the appellant, had to be borne in mind. The law in India recognized adverse possession of a limited interest. It was not stated that in all cases adverse possession for the period of prescription completed title as owner. The title could be of a limited interest like tenancy. The learned Judge referred to the judgment of this court in Vishvanath Haibatrao Deshpande Vs. Ranganath Dhondo Deshpande, : the judgment of the Privy Council in Kamakhya Narayan Singh v. Ram Rakssha Singh 55 Indian Appeals 212: and the judgment of the Patna High Court in Baldeb Jiu Thakur and Others Vs. Jogi Sahu and Others, . Upon these judgments the learned Judge concluded that "a person may claim adverse possession only as a tenant or owner of other limited interest in property ". He therefore, rejected the submission on behalf of the appellant that adverse possession as a tenant was unknown to law. the respondent could he said annex , as he had claimed. Of 12 years "assert as a tenant". On the appellant''s own showing the respondent had committed the trespass on 10th May, 1959. The respondent claimed tenancy and not ownership. It was permissible to the respondent, the learned Judge said, "to claim adverse possession and complete his title as a tenant. In my opinion, on the plaintiff''s own showing the defendant''s possession become adverse in 1959 not as owner but as a tenant. This suit, which is brought nearly 17 years later is clearly barred by the law of limitations" Accordingly, the learned Judge dismissed the suit.

I asked counsel appearing before me to assist me in finding the averment in the pleading of the respondent to which the learned Judge referred , namely, that the respondent "claims that he has perfected his tittle to the tenancy of the suit premises by adverse possession." We have not found it .Nor do I find a claim by the respondent that he could annex property by trepass and, upon the completion of 12 years, assert as a tenant.

The case of the respondent, as I read his Written Statement , is that he is the tenant of flat no.5 including the said room.

The appellants suit is a suit on title : he being the owner of the said building. The respondent''s defence is of tenancy of the said room derived from or under the owner. The defence is not of its possession adverse to the owner. A suit on title can on the ground of limitation, be defeated only by a claim of possessions , adverse to the owner, this is by reason of Art, 65 of the Limitation Act , the relevant portion of which reads thus:

"Art 65 - for possession of immovable property Twelve years when the possession of the or any interest therein based on title.

Defendant becomes adverse to the plaintiff."

It is settled that adverse possession has to be claimed. It has to be put in issue. And it has to be established. There has to be proof of hostile possession which is, expressly or impliedly. In denial of the owner ''s title. To constitute adverse possession it must be proved to be asequate in continuity" in publicity and in extent. It must be open and continuous and hostile enough to be capable of being known by parties interested in the property. The claim of adverse possession raises a mixed question of law and fact and is not conductive to decision as a preliminary issue.

It was submitted by Miss Gonsalves, learned counsel for the respondent, that the suit which was on trespass, was barred by reason of Art. 65 of the Limitation Act after the lapse of 12 years , for the trespasser then automatically acquired title by decided only upon the basis of the averments in the plaint. The submissions are wholly untenable.

The judgments that were referred to by the learned judge deal with disputes prior to 1963 when the present Limitation Act was enacted. At that time there was no provision equivalent to the present Article 65 on the statute book. Article 65 deals specifically by with the suits for possession of immovable property which are based on title and the period of limitation prescribed thereby is twelve years from the time when the possession of the defendant becomes adverse to the plaintiff. To attract Art, 65 therefore, the possession of the defendant becomes adverse to the plaintiff''s title. The respondent who claims to be appellants tenant in respect of the said room. Does not claim adversely to the appellant. He claims from and under the appellant. He cannot be held to be in possession adverse to the appellant.

In the result, it must be held that the decision that the appellant''s suit was barred by limitation under the provisions of Art. 65 of the Limitation Act , 1963, is erroneous.

The appeal is allowed. The impugned judgment and order are set aside. The suit shall be restored to the board of the City Civil Court and shall be heard and disposed of on merits. The parties shall be at liberty to move the learned judge hearing such suits for a fixed date for expeditious disposal.

The respondent shall pay to the appellant the costs of the appeal.

Appeal Allowed.