Shri. Chandrahas Jethalal Patel And Others vs Smt. Nirmalaben Shambhuprasad Patel (D/H) And Others

CNR No : HCBM010512912013

Neeta Sawant SA-758-2013-.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 758 OF 2013
Shri. Chandrahas Jethalal Patel & Ors. ...Appellants
: Versus :
Smt. Nirmalaben Shambhuprasad Patel
...Respondents
& Ors.
Mr. R.D. Soni, i/b Ram & Co., for Appellant
Mr. D.S. Mhaispurkar , for Respondent No. 2
, for Respondent Nos. 5 & 6
Mr. Rajendra M. Haridas
CORAM: SANDEEP V. MARNE, J.
Reserved On: 5 OCTOBER 2026.
Pronounced On: 21 OCTOBER 2026.
Judgment:
1)
The Appellants have filed the present Appeal under Section
100 of Code of Civil Procedure, 1908 (Code) challenging the judgment
and decree dated 22 October 2013 passed by the Ad-Hoc District Judge-2,
Kalyan dismissing Civil Appeal No. 38 of 2010 and confirming the
judgment and decree dated 29 December 2009 passed by the Civil Judge
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Senior Division, Kalyan in Special Civil Suit No. 325 of 1997. The Trial
Court has decreed the Suit by directing the Appellants/Defendants No.1
to 6 to deliver vacant possession of the suit property to the Plaintiff by
demolishing the structure/construction standing thereon. The Trial
Court has also restrained the Appellants/Defendant Nos. 1 to 6 from
transferring the suit property or parting with possession thereof to the
extent of their respective occupation, in favour of any third party.
2)
Respondent Nos.1 to 4 are the original Plaintiffs, who
instituted Special Civil Suit No. 325 of 1997 in the Court of Civil Judge
Senior Division, Kalyan. Land bearing Survey No.1, Hissa No.3/3/C at
Village-Mohone, Taluka-Kalyan, District-Thane is the “suit property”.
According to the Plaintiffs, the suit property was purchased by Mr.
Shambhuprasad Patel, the husband of Plaintiff No. 1 and father of
Plaintiff Nos. 2 to 4, along with Mr. C. G. Mahant, by way of registered
Sale Deeds dated 25 November 1947, in respect of 9 gunthas, and dated 2
January 1948, in respect of 15 gunthas. A registered Partition Deed dated
26 January 1949 was effected, under which entire suit property
comprising of Survey No.1, Hissa No.3/3/C admeasuring 9 + 15 gunthas
came to the share of Mr. Shambhuprasad Patel. According to the
Plaintiff, the office of City Survey measured the land and prepared a plan
by assigning Chalta Nos. 447A to 452A, 453, 539, 594 and 403A to the
land.
3)
According to the Plaintiff, sister of Shambhuprasad, Smt.
Maniben Jethalal Patel came to reside at Mohone with her two minor
sons and 2 daughters in the year 1952 (
after the death of her husband in
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1951 ). According to the Plaintiff, Maniben constructed a house adjoining
the suit property on land now bearing Chalta Nos.457 and 459. Since
Maniben was a family member, she started looking after the suit
property after the death of Shambhuprasad on 29 July 1964. According to
the Plaintiffs, Maniben took disadvantage of the trust and faith reposed
by the Plaintiff in her and constructed one storey structure on the suit
property without the knowledge and concurrence of the Plaintiff.
Maniben passed away in the year 1985. In the proceedings filed before
the Revenue Authorities being RTS Appeal No.49 of 1985, Defendant
Nos.1 to 6 claimed title based on adverse possession in respect of the
suit property. Plaintiffs accordingly filed Special Civil Suit No. 325 of
1997 seeking recovery of possession of the suit property from the
Defendants and for various other reliefs.
4)
The suit was resisted by Defendant Nos.1 to 6/Appellants
raising a plea of acquisition of title in the suit property by adverse
possession contending that the structure was constructed in the suit
property in the year 1962 with full knowledge of
Plaintiff/Shambhuprasad. The suit was also opposed on the plea of
limitation. The suit was amended and additional written statement was
filed by Defendant Nos.1 to 6. Defendant Nos.7 and 8, who are tenants
inducted by Defendant Nos.1 to 6, also filed their written statement
resisting the suit. Defendant No.9 also filed a separate Written
Statement. Parties led evidence in support of their respective claims.
After considering the pleadings, documentary and oral evidence, the
Trial Court proceeded to decree the Suit by judgment and order dated 29
December 2009. The Trial Court directed Defendant Nos.1 to 6 to deliver
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vacant possession of the suit property to the Plaintiffs by demolishing
the structure/construction standing thereon. They are also restrained
from transferring the suit property or parting with possession thereof.
The Trial Court also directed an inquiry into mesne profits under Order
20 Rule 12 of the Code.
5) Only Defendant Nos.1, 2 and 4 to 6 got aggrieved by the
decree passed by the Trial Court and filed Civil Appeal No. 38 of 2010 in
the Court of Ad-hoc District Judge, Kalyan. The Appeal is however
dismissed by the Ad-hoc District Judge by judgment and decree dated 22
October 2013 by confirming the judgment and order of the Trial Court.
Aggrieved by the concurrent findings recorded by the Trial and Appellate
Courts, the Appellants, who are Original Defendant Nos.1, 2 and 4 to 6,
have filed the present Appeal.
6) In the present Appeal, the interim protection granted by the
First Appellate Court has been continued by this Court by order dated 20
December 2013. The said protection continues throughout the pendency
of the Appeal.
7)
By order dated 10 February 2015, the Appeal has been
admitted by framing following substantial questions of law:
(i) Whether the burden of proof would shift on real owner at any time in
case of defence taken by the defendant of title by adverse possession?
(ii) Whether the suit as filed for removal of encroachment and
possession on the basis of title is maintainable in view of Order VII,
Rule 3 Code of Civil Procedure?
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8) So far as the issue of limitation is concerned, this Court has
not admitted the Appeal by framing a question of law relating to
limitation. This is possibly because of the fact that limitation is a mixed
question of law and fact. However, Mr. Soni has insisted that the
additional issue of limitation be framed. Since both the parties have
canvassed submissions on the issue of limitation, I deem it appropriate
to frame a question to answer the issue of limitation. In his usual
fairness, Mr. Mhaispurkar has consented for framing of additional issue.
Accordingly, the additional issue of limitation is framed as under:
Q.3. Whether the Suit of the Plaintiff was barred by limitation?
9) Mr. Soni, the learned counsel appearing for the Appellants,
submits that the Trial Court and the Appellate Court have erred in
decreeing the suit filed by the Plaintiffs by ignoring the provisions of
Order VII Rule 3 of the Code, which require not only a proper description
of the suit property with necessary particulars but also the production of
a sketch map where the suit alleges encroachment by a neighbouring
owner. That since the suit was for removal of alleged encroachment, the
same ought not to have been tried by the Court in absence of proper
description of the suit property. That in the entire suit, there is no
description of the portion of Hissa No.3/3/C which is alleged to be
encroached by the Appellants. That the extent of alleged encroachment
is not known. In such circumstances, the suit ought to have been
dismissed by the Trial Court by having recourse to the provisions of
Order 7 Rule 3 of the Code.
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10) Mr. Soni further submits that the Suit was ex-facie barred by
limitation since house/structure has been constructed by Defendant
Nos.1 to 6/Maniben in the year 1962. That in any case, Plaintiffs
admitted acquisition of knowledge in respect of alleged encroachment in
the year 1978. That the suit was filed beyond the period of limitation of
12 years as prescribed under Article 65 of the Limitation Act. He submits
that since the Appellants raised the issue of limitation in the Written
Statement, which is decided by the Trial Court and the Appellate Court, a
specific question of law in that regard needs to be framed in the present
Appeal as well. He submits that the evidence clearly indicates knowledge
on the part of the Plaintiffs about occupation of portion of suit property
by the structure constructed by Defendant Nos.1 to 6. That partition
proceedings of 1985 are irrelevant and for the purpose of ascertaining
the date of knowledge of possession, Defendant Nos.1 to 6 claimed title
in the RTS proceedings based on adverse possession. Therefore, what
may have been acquired by the Plaintiffs in the year 1985 is merely claim
of title. However, the structure has been constructed right in front of the
house of Shambhuprasad/his heirs in the year 1962. That no objection
was ever raised relating to the construction. That the suit for recovery of
alleged encroached portion is clearly barred by limitation.
11) Mr. Soni further submits that the Trial and Appellate Courts
have grossly erred in not framing an issue/point relating to failure to
properly describe the suit property. That the extent of encroachment is
still unknown. Therefore, at the stage of execution of the decree, it
would be difficult to ascertain which part of the structure is required to
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be demolished and which portion of the suit property is required to be
handed over to the Plaintiffs. That even as of today, the exact area of
encroachment has not been ascertained before this Court. So far as the
issue relating to adverse possession is concerned, Mr. Soni submits that
all the elements of adverse possession are clearly established in the
present case. That the Trial and Appellate Courts have grossly erred in
rejecting the plea of adverse possession. That once construction of house
in the year 1962 by Defendant Nos.1 to 6 is established and knowledge
on the part of the Plaintiffs about construction of the house is admitted
at least in the year 1978, both the Courts ought to have accepted the
defence of the Appellants about acquisition of title in the suit property
by adverse possession. That the burden was on the Plaintiffs to establish
that they had no knowledge of the Defendants’ adverse possession on
the suit property. That Plaintiffs have thoroughly failed to discharge the
said burden and therefore it needs to be inferred that Plaintiffs always
knew about possession of part of the suit property by Defendant Nos.1 to
6. On above broad submissions, Mr. Soni prays for setting aside the
orders passed by the Trial and the Appellate Courts.
12) Mr. Haridas, the learned counsel appearing for Respondent
Nos.5 and 6 supports the case of the Appellants and adopts the
submissions of Mr. Soni. Additionally, he submits that Defendant Nos.1
to 6 are the landlords of his clients. That there is lawful creation of
tenancy between the parties. That under the guise of arrangement,
tenancy rights in favour of Respondent Nos.5 and 6 cannot be disturbed.
That the aspect of tenancy rights on Respondent Nos.5 and 6 is totally
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ignored by the Trial and the Appellate Courts. He also prays for setting
aside the impugned decree of the First Appellate Court.
13) Per-contra , Mr. Mhaispurkar, the learned counsel appearing
for Respondent No.2, who is the original Plaintiff No.2 opposes the
Appeal submitting that the suit property has been correctly described in
the plaint. He submits that the Survey Map of the property was produced
at Exh.83 and the City Survey Officer was also examined as a witness. He
submits that the Plaintiff’s title in respect of the suit property bearing
Hissa No.3/3/C is fully established. That Defendants never created any
dispute with regard to description of the suit property or the extent to
which the same is encroached. That therefore the said issue cannot be
permitted to be raised directly before this Court. That there are
concurrent findings of fact recorded by both the Courts and there is no
warrant for interference in such concurrent findings. He submits that
Maniben being sister of Shambhuprasad was merely permitted to reside
in the suit property. That, therefore, if she has carried out any activities
in respect of the permissive use of the suit property, a claim of adverse
possession cannot be raised or established. He submits that Maniben was
merely looking after the suit property and that if she constructed any
structure on the suit property, no claim for adverse possession can be
raised. He further submits that the suit is well within the period of
limitation, as held by both the Courts below. He submits that the case
concerns permissive user indulging in the illegal activity of encroaching
upon the land, she was permitted to occupy. That therefore the Suit for
recovery of possession from permissive user can never be held to be
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barred by limitation. That in any case, the question of limitation is not
framed by this Court. He accordingly prays for dismissal of the Appeal.
14) Rival contentions raised by the parties now fall for my
consideration.
Question No.1
(i) Whether the burden of proof would shift on real owner at any time in case
of defence taken by the defendant of title by adverse possession?
15) In the present case, the Plaintiff has alleged that Defendant
Nos. 1 to 6 and Maniben took undue advantage of the trust and
confidence reposed in them by the Plaintiff by constructing a structure
on the suit property bearing Hissa No. 3/3/C. It appears that Maniben
and Defendant Nos.1 to 6 are owners of adjoining piece of land bearing
Hissa No.3/3/A. It is Plaintiff’s case that since the suit property owned by
them adjoins the property of Maniben/Defendant Nos.1 to 6, portion of
the suit property is encroached upon by those Defendants while
constructing their structure(s).
16) There is no dispute to the position that the suit property
bearing Survey No.1, Hissa No.3/3/C was owned and possessed by
Shambhuprasad, who was the husband of Plaintiff No.1 and father of
Plaintiff Nos.2 to 4. The suit property bearing Hissa No.3/3/C were later
allotted Chalta Nos. 447A to 452A, 453, 539, 594 and 403A.
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17) Maniben is the sister of Shambhuprasad. According to the
Plaintiffs, Maniben’s husband expired in the year 1951 and thereafter she
shifted to Village Mohone in 1952 alongwith her children and started
residing with her brother, Shambhuprasad as a family member. According
to the Plaintiffs, they were residing at Mumbai and had reposed faith in
Maniben who used to look after the suit property by collecting rent from
the tenants. According to the Plaintiffs, Maniben took disadvantage of
the trust and faith reposed in her and unauthorizedly constructed a
structure(s) on the portion of the suit property. It appears that while
constructing the houses/structures in her own property bearing Hissa
No.3/3/A she encroached upon substantial portion of land bearing Hissa
No.3/3/C which belongs to the Plaintiffs.
18) When the suit was filed seeking removal of the
encroachment and demolition of the portion of the structures standing
on the encroached land, Defendant Nos. 1 to 6 raised a defence that they
had acquired title by adverse possession. By raising the defense of
adverse possession, Defendant Nos.1 to 6 admitted two aspects. Firstly,
they admitted that Plaintiffs are the owners of the suit property bearing
Hissa No.3/3/C ( Chalta Nos. 447A to 452A, 453, 539, 594 and 403A ).
Secondly and more importantly, Defendant Nos.1 to 6 admitted the
position that they have encroached upon the suit property. Thus, raising
of defence of adverse possession narrowed down the scope of inquiry
about encroached land. Ordinarily, in a typical suit involving
encroachment, the primary factual issue before the Court is whether
there has been any encroachment and, if so, the extent of the encroached
portion. This is because the Defendant would ordinarily deny having
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encroached upon the Plaintiff’s property and contends that the portion
in his possession forms part of his own property. Therefore, usually suits
involving allegation of encroachment relating to boundary disputes, a
fact finding inquiry needs to be conducted by the Court for ascertaining
the allegation of encroachment. In the present case, however Defendants
Nos.1 to 6 relieved Plaintiffs of burden of establishing encroachment
since they have raised the defense of adverse possession. By raising the
defense of adverse possession, they admitted having committed
encroachment on Plaintiff’s property.
19) Defendants however did not file any counterclaim for a
declaration of acquisition of ownership in the encroached portion of the
suit property. The plea of adverse possession was only raised as a defence
to ensure dismissal of the suit. The plea of acquisition of title by adverse
possession can also be raised by the Plaintiff to seek declaration of title.
The Defendants however did not seek any such declaration. Upon being
accused of encroaching upon Plaintiffs land, they sheepishly sought to
raise the defence of adverse possession. Plaintiffs however established
during the course of the trial in the suit that Maniben was merely
permitted to occupy the suit property by Shambhuprasad since she was
his sister. The case thus involves occupation of a suit property by a
relative who was a permissive user. Neither settled possession can be
claimed by permissive user nor claim of title adverse to the true owner
can be raised by him/her. The Plaintiffs have successfully established
that they had no knowledge of the activities of Maniben and her children
in relation to the suit property, as they were residing in Mumbai.
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Maniben and her children took disadvantage of permission granted to
them to occupy the suit property and constructed portion of structure
thereon. Such activity does not entitle them to raise the plea of adverse
possession.
20) Once permissive use is established, the plea of adverse
possession fails. Since Maniben entered the suit property through the
permission granted by Shambhuprasad, the plea of adverse possession
could neither have been raised nor established in the facts and
circumstances of the present case by Defendant Nos.1 to 6. Permissive
use of the property is antithetical to a plea of adverse possession. This is
because, to establish the plea of acquisition of title in the immovable
property by prescription, it needs to be established that the claimant is
in settled possession. A permissive user can never claim settled
possession, as held by the Apex Court in Maria Margadia Sequeria
1
Fernandes & Ors vs Erasmo Jack De Sequeria (D) Tr.Lrs.& Ors . It is
held by the Apex Court in para-97 of the judgment as under:
97 . Principles of law which emerge in this case are crystallized as
under:-
1. No one acquires title to the property if he or she was allowed to
stay in the premises gratuitously. Even by long possession of years
or decades such person would not acquire any right or interest in
the said property.
2. Caretaker, watchman or servant can never acquire interest in the
property irrespective of his long possession. The caretaker or servant
has to give possession forthwith on demand.
1
2012 (5) SCC 370
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3. The Courts are not justified in protecting the possession of a
caretaker, servant or any person who was allowed to live in the premises
for some time either as a friend, relative, caretaker or as a servant.
4. The protection of the Court can only be granted or extended to the
person who has valid, subsisting rent agreement, lease agreement or
license agreement in his favour.
5. The caretaker or agent holds property of the principal only on behalf
of the principal. He acquires no right or interest whatsoever for himself
in such property irrespective of his long stay or possession.

(emphasis added)
21)
For establishing the plea of acquisition of title by adverse
possession, it is necessary to fulfill all the three classic requirements of
nec-vi i.e. adequate in continuity, nec-clam i.e., adequate in publicity and
nec-precario i.e. adverse to the competitor, in denial of title and his
2
knowledge. In the Apex Court
Ravinder Kaur Grewal vs Manjit Kaur
has held in paras-56 to 60 of the judgment as under :
56 . There is the acquisition of title in favour of Plaintiff though it is
negative conferral of right on extinguishment of the right of an owner
of the property. The right ripened by prescription by his adverse
possession is absolute and on dispossession, he can sue based on 'title'
as envisaged in the opening part Under Article 65 of Act. Under Article
65, the suit can be filed based on the title for recovery of possession
within 12 years of the start of adverse possession, if any, set up by the
Defendant. Otherwise right to recover possession based on the title is
absolute irrespective of limitation in the absence of adverse possession
by the Defendant for 12 years. The possession as trespasser is not
adverse nor long possession is synonym with adverse possession.
57 . In Article 65 in the opening part a suit "for possession of immovable
property or any interest therein based on title" has been used.
Expression "title" would include the title acquired by the Plaintiff by
way of adverse possession. The title is perfected by adverse possession
has been held in a catena of decisions.
2
AIR 2019 SC 3827
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58 . We are not inclined to accept the submission that there is no
conferral of right by adverse possession. Section 27 of Limitation Act,
1963 provides for extinguishment of right on the lapse of limitation
fixed to institute a suit for possession of any property, the right to such
property shall stand extinguished. The concept of adverse possession as
evolved goes beyond it on completion of period and extinguishment of
right confers the same right on the possessor, which has been
extinguished and not more than that. For a person to sue for possession
would indicate that right has accrued to him in presenti to obtain it, not
in futuro. Any property in Section 27 would include corporeal or
incorporeal property. Article 65 deals with immovable property.
59 . Possession is the root of title and is right like the property. As
ownership is also of different kinds of viz. sole ownership, contingent
ownership, corporeal ownership, and legal equitable ownership. Limited
ownership or limited right to property may be enjoyed by a holder.
What can be prescribable against is limited to the rights of the holder.
Possession confers enforceable right Under Section 6 of the Specific
Relief Act. It has to be looked into what kind of possession is enjoyed
viz. de facto i.e., actual, 'de jure possession', constructive possession,
concurrent possession over a small portion of the property. In case the
owner is in symbolic possession, there is no dispossession, there can be
formal, exclusive or joint possession. The joint possessor/co-owner
possession is not presumed to be adverse. Personal law also plays a role
to construe nature of possession.
60 . The adverse possession requires all the three classic requirements
to co-exist at the same time, namely, nec-vi i.e. adequate in continuity,
nec-clam i.e., adequate in publicity and nec-precario i.e. adverse to a
competitor, in denial of title and his knowledge. Visible, notorious and
peaceful so that if the owner does not take care to know notorious facts,
knowledge is attributed to him on the basis that but for due diligence
he would have known it. Adverse possession cannot be decreed on a
title which is not pleaded. Animus possidendi under hostile colour of
title is required. Trespasser's long possession is not synonym with
adverse possession. Trespasser's possession is construed to be on behalf
of the owner, the casual user does not constitute adverse possession.
The owner can take possession from a trespasser at any point in time.
Possessor looks after the property, protects it and in case of agricultural
property by and the large concept is that actual tiller should own the
land who works by dint of his hard labour and makes the land
cultivable. The legislature in various States confers rights based on
possession.
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22) In my view, since Maniben’s entry into the suit property as a
permissive user has been established, the plea of adverse possession
cannot be sustained. Therefore, merely because the Defendant has raised
a defence of adverse possession, there is no question of shifting the
burden of proof onto the true owner. The burden would continue on the
shoulders of possessor to prove that possession is settled, is adverse to
the title of owner and that the same was made known to the owner. Here
the test of possession being adverse to the owner is not established since
the same was permissive. Question No.1 is answered accordingly.
Question No.2.
(ii) Whether the suit as filed for removal of encroachment and possession on
the basis of title is maintenable in view of Order VII, Rule 3 Code of Civil
Procedure?
23)
It is strenuously sought to be urged on behalf of the
Appellants that the suit ought to have been dismissed for failure to
establish the extent of encroachment in the plaint. Mr. Soni has taken
me through the description of the suit property in the plaint in support
of his contention that the exact portion of the suit property of which
recovery of possession is sought, is not properly described in the plaint.
He has relied upon provisions of Order 7 Rule 3 of the Code, which reads
thus:
3. Where the subject-matter of the suit is immovable property.—
Where the subject-matter of the suit is immovable property, the plaint
shall contain a description of the property sufficient to identify it, and,
in case such property can be identified by boundaries or numbers in a
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record of settlement or survey, the plaint shall specify such boundaries
or numbers.
24) Mr. Soni has also relied on Bombay High Court Amendment
to Order 7 Rule 3 of the Code which reads thus:
In Order VII, in rule 3, at the end, insert the words "In case of
encroachment, sketch showing as approximately as possible the
location and the extent of the encroachment shall also be filed along
with the plaint." (w.e.f. 1-10-1983)
25) In paragraphs 1 and 3 of the plaint, the suit property is
described thus:
1. The plaintiffs are the absolute owners and well sufficiently entitled to
the immovable property situated at village Mohone, Taluka Kalyan,
Dist. Thane bearing
Survey No. Hissa No. Area Assessmant Rs.
1 3/3/C 9 Gunthas 00-12
1 3/3/C 15 Gunthas 00-22
(hereinafter referred as the said property). The boundaries of the said
property is as under
North-Survey No. 1, Hissa No.3/3/A of defendants
South-Gaothan.
East Survey No. 1 Hissa No. 3/3/D(pt) of the plaintiffs
West-Survey No. 1 Hissa No. 3/2.
3. The plaintiffs state that the District Land record officer & inquiry
officer No 1 (City Survey officer) measured the said property & prepared
the plan & decided chalta Nos. 447A to 452A, 453, 539, 594, & 403A
(hereinafter referred as the suit property) are in Survey No 1, Hissa No.
3/33C i e, in the said property of the plaintiffs
The boundaries of the suit property is as under:-
North: Survey No. 1, Hissa No. 3/3/A own by the defendaves Nos. 142.
South: Survey No.1, Hissa No.3/3/C own by the plaintiffs
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East: Survey No. 1, Hissa No. 3/3/C own by the plaintiffs
West: Survey No. 1, Hissa No. 3/3/C own by the plaintiffs
26) In their plaint, Plaintiffs had sought following prayers:
15. The plaintiffs, therefore, pray that this Hon'ble Court may be
pleased-
(a) to order & decree the defendants Nos. 1 to 6 & 9 to remove at their
own costs the building/structure standing on the suit property (City
Survey chalta Nos 447A to 452A, 453, 539, 594, & 403A) & deliver
vacant possession of the suit property to the plaintiffs
(b) to order & decree to each defendant Nos. 1 to 6 to pay Rs. 200/- per
month for their use & occupation of saut property for 3 years prior (Rs
43,200/- to the filing of suits
(b-1) to order & decree to each defendant Nos. 1 to 2 to pay Rs. 5000/-
per month from the date of said alleged interest created in favour of
defendant Nos. 7 to 9 pending the suit in respect of suit property of
chalta Nos. 594 & 403A till final realization of possession suit property.
(b-2) to order & direct to defendant Nos. 1 & 2 to pay &/or deposit in
court the money received from the defendant Nos. 7 to 9 with 18%
interest forthwith in respect of chalta Nos. 594 & 403A pending the suit
(c) to restrained permanently the defendants &/or their agents &/or
their servants &/or their relatives &/or anybody acting in their capacity
from transferring or parting with possession of the suit property in
their respective possession/occupation to any third party by sub-letting
&/or licensee &/or in any manner whatsoever
(d) to grant ad-interim injunction in terms of prayed (c)
(c) to order the defendants to pay full costs with 12% interest of this
suit to the plaintiffs,
(f) And grant any relief/reliefs in favour of the plaintiffs as may be just
& proper.
27)
Thus, the portion of the building/structure constructed by
Defendant Nos. 1 to 6 and 9, which stands on the suit property, was
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sought to be removed by way of prayer clause 15(a) of the plaint. It is
pertinent to note that no objection regarding the absence of a proper
description of the suit property was raised in the Written Statement. In
paragraph 7 of the Written Statement, a vague plea was raised as under :
७ . वादींचा दावा मोघम स्वरूपाचा असुन वादी म्हणत आहेत , त्याप्रमाणे या प्रतितवादींनी
, ,
वादींचे तथाकथीत किकती जागेवर किकती क्षेत्रफळाचे बांधकाम केले केव्हां केले या बाबतचा
. सबब वादीचे
कोणताही जरूर तो तपशील व खुलासा आपल्या दाव्यात केलेला नाही
दाव्यास किदवाणी व्यवहार संकिहतेचे तरतुदींची देखील बाध येत असल्याने वादींचा दावा
खचा/सुध्दा रद्द करण्यात यावा .
28) The above objection in paragraph 7 is not with regard to the
improper description of the suit property.
29)
The objective behind Order 7 Rule 3 of the Code is to
achieve clarity in respect of identification of the exact property in
respect of which decree for removal of possession or removal of
encroachment is sought. In the present case, the Defendants have
admitted that their construction extends beyond the boundaries of Hissa
No. 3/3/A and encroaches upon Hissa No. 3/3/C. The admission in the
Written Statement about encroachment is in paragraph 16 of the Written
Statement which reads thus :
१६ . खरी परिरस्थिस्थती अशी आहे की , मौजे मोहोने येथील स . नं . १ किह . नं . ३ / ३ / अ क्षेत्र सु . १
एकर २५ गुठे क्षेत्रफळ असलेली किमळकत प्रतितवादींचे मालकीची आहे . सदरची किमळकत
. ,
प्रतितवादींचे पुरोगामी हक्कदार कै जेठालाल पटेल यांनी त्यांचे हयातीत २ जानेवारी १९४८
रोजी कायम फरोक्तखताने श्री .
किवठु लडकु व शंभु लडकु कोळंबे यांचेकडुन संपादन केली
असुन त्यासंबंधीचा दस्तऐवज कल्याण येथील दुय्यम किनबंधक साहेब , कल्याण यांचे
. . .
काया/लयात अनु क्र ५ कडे नोंदण्यात आला आहे सदर किमळकतीचे दतिक्षण अगास लागुन सवL
नं . १ किह . नं . ३ / ३ / ड ची किमळकत आहे . प्रतितवादी व त्यांचे पुरोगामी हक्कदार कै . मणिणवेन पटेल
यांनी आपल्या किमळकतीवर इमला किमळकतीचे बांधकाम करण्याचे ठरवुन त्या वेळचे
ग्रामपंचायत मोहोने अस्थिस्तत्वात असतानांच बांधकाम करण्याचे काळात तळमज्याचे बांधकाम
.
जानेवारी १९६२ मध्ये केले व त्यानंतर टप्प्याने टप्याने सु १ वर्षाा/चे आत एक मजल्याचे
बांधकाम पतितवादींनी केले परंतु सदर बांधकामाची आकारणी त्या वेळचे गामपंचायत मोहोने
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- . - , - , - , - ,
सन् १९६५ ६६ चे सुमारास करून त्यांस वेगवेगळे घर नं २४ अ २४ ब २४ क २४ ड
२४ - ३ , २४ - एफ , २४ - ज पडलेले आहेत . त्याप्रमाणे सदरचे बांधकामापैकी काही भाग हा सवL
नं . १ किह . नं . ३ / ३ / अ या किमळकतीवर येतो . ह्या काही भाग सवL नं . १ किह . नं . ३ / ३ / क या
.
किमळकतीवर येतो प्रतितवादींनी केलेले बांधकाम हे वादींचे पुरोगामी हक्कदार के शभुप्रसाद पटेल
हे हयात असतांना त्यांचे व वादींचे ममक्ष त्यांचे जाणिणवेत त्यांना माकिहत असतांना उगड
उगडपणे त्यांची कोणत्याही प्रकारची सदर बांधकामास हरकत न येता अथवा कोणाचीही
कोणत्याही प्रकारची हरकत अडथळा न येता उघडउघडपणे केले आहे त्यावेळी म्हणजे
शंभुप्रसाद पटेल हे हयात असतांना ते प्रतितवादींचे कुलमुखत्यारी म्हणुन काम बघत होते . या
प्रमाणे प . वादींचे बांधकामचा जो भाग सवL नं . १ किह . नं . ३ / ३ / क मध्ये येतो , त्यास सिसटी सवL
. , , , .
चा चालता नं ४४७अ ते ४५२ ४५३ ५३९ ५९४ व ४०३अ असे पडलेले आहेत सदरचे
बांधकामा खालील जमीन या पतितवादींनी व त्यांचे पुरोगामी हक्कदार यांनी त्यांची मालकी
नाकारून उघडउघडपणे व अट्टहासपणे सतत व वादींचे जाणीवेत बारा वर्षाा/पेक्षा किकतीतरी
अतिधक काळ मालकी हक्काने आपले वकिहवाटीस असल्याने व जानेवारी , १९६२ पासुन ती
.
त्यांचे कबजात असल्याने प्रतितवादी हे किवरूध्द कब्जाने सदर चालता नं चे जमीनीचे मालक
झालेले आहेत . त्यामुळे वादींस मालकीच राकिहलेली नाही . वादीस अशा प्रकारचा दावा आणता
येणार नाही . वादीचा दावा मुदतीत नाही . कारण सदर दावा किमळकत प्र . वादींचे कब्जात गेली
१२ वर्षाा/ पेक्षा जास्त काळ व त्यांचे पुरोगामी हक्कदारांपासुन असल्याने व वादींनी १२ वर्षाा/चे
आत दावा न केल्याने त्यांचा तथाकथीत हक्क केव्हांच नष्ट झाला आहे . त्यांना दावा
. /
किमळकतीसंबंधी मालकीच णिशल्लक राकिहलेली नाही केवळ ७ १२ला त्यांची पोकळीस्त नांवे
असण्याचा गैरफायदा घेऊन वादींनी हा खोटा दावा दाखल केलेला आहे . तो खचा/ सुध्दा रद्द
करण्यात यावा .
30)
The Defendants are thus fully aware about the exact portion
of construction which juts into the suit property bearing Hissa No.3/3/C.
It appears that the Plaintiff produced the survey map of the suit property
at Exhibit 83. Even from the Map at Exh-83, the extent of encroachment
is clearly visible.
31)
Since Defendants did not have any qualms about description
of the suit property, they did not raise any defence in that regard. Even in
their Appeal, no grievance was made about improper description of the
suit property. This is a reason why the Trial Court did not raise any issue
about description nor the Appellate Court framed point for
determination relating to description of the suit property. It is directly
before this Court that the Appellants have sought to raise the issue about
inadequate description of the encroached portion on the suit property.
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Even if this technical objection is to be momentarily ignored, it is seen
that the encroachment is clearly understood by the Defendants and is
otherwise visible from the measurement map. Therefore, the Suit cannot
be held to be not maintainable under Order 7 Rule 3 of the Code.
32)
Even otherwise, failure to not accurately describe the suit
property in the plaint is a curable defect and can be rectified even in
execution proceedings under Section 47 of the Code. In Pratibha Singh
3
v. Shanti Devi Prasad , the Apex Court has held thus:
17. When the suit as to immovable property has been decreed and the
property is not definitely identified, the defect in the court record
caused by overlooking of provisions contained in Order 7 Rule 3 and
Order 20 Rule 3 CPC is capable of being cured. After all a successful
plaintiff should not be deprived of the fruits of decree. Resort can be
had to Section 152 or Section 47 CPC depending on the facts and cir-
cumstances of each case — which of the two provisions would be more
appropriate, just and convenient to invoke. Being an inadvertent error,
not affecting the merits of the case, it may be corrected under Section
152 CPC by the court which passed the decree by supplying the omis-
sion. Alternatively, the exact description of decretal property may be
ascertained by the executing court as a question relating to execution,
discharge or satisfaction of decree within the meaning of Section 47
CPC. A decree of a competent court should not, as far as practicable, be
allowed to be defeated on account of an accidental slip or omission. In
the facts and circumstances of the present case, we think it would be
more appropriate to invoke Section 47 CPC.
33)
I am therefore of the view that the Suit did not warrant
dismissal on account of belated objection regarding the inaccurate
description of the suit property sought to be raised at the second
appellate stage. Question No.2 is answered accordingly.
3
(2003) 2 SCC 330
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QUESTION NO.3
Q.3. Whether the Suit of the Plaintiff was barred by limitation ?
34)
There are concurrent findings of the Trial and first
Appellate Courts on the issue of limitation in filing the suit. The first
Appellate Court has treated filing and decision of RTS proceedings as the
date of acquisition of knowledge of adverse possession of the Plaintiffs.
According to Mr. Soni, the RTS proceedings are relevant only for the
purpose of acquisition of knowledge about claim of title by Defendants.
He submits that for deciding the issue of limitation qua the prayer for
recovery of possession, the issue of title is irrelevant and what needs to
be taken into consideration is the factum of acquisition of knowledge
about possession.
35)
Under Article 65 of the Limitation Act, 1963, a suit for
recovery of possession of immovable property based on title must be
instituted within 12 years from the date on which the possession of the
Defendant becomes adverse to the Plaintiff. In the present case, though
Maniben was in possession of portion of the suit property, her
possession was permissive in nature. A permissive user cannot, by virtue
of such possession, acquire title by adverse possession against the owner.
A permissive possessor occupies the immovable property with the
permission of the owner and, so long as such permissive possession
.
continues, he/she cannot ordinarily set up a claim of adverse possession
As observed above, plea of adverse possession can never be raised by a
permissive user. Therefore, even if owner acquires knowledge about
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possession of immovable property by the permissive user, the same does
not become adverse to the owner and therefore the period of limitation
does not begin to run. In my view, therefore the suit filed by the Plaintiffs
was perfectly within limitation. Question No.3 is answered accordingly.
36)
In view of answer to the above 3 questions framed, there is
no warrant for interference in the impugned decree of the first Appellate
Court, which confirms Trial Court’s decree. The Second Appeal is devoid
of merits. It is accordingly dismissed with costs.
Digitally
signed by
NEETA
SHAILESH
SAWANT
Date:
2026.10.21
20:37:39
+0530
[SANDEEP V. MARNE , J.]
NEETA
SHAILESH
SAWANT
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