Vs. Sonabai & Ors  INSC 939 (12 August 1996)
K. Ramaswamy, K.G.B. Pattanaik (J)
JT 1996 (7) 661 1996 SCALE (6)375
12TH DAY OF AUGUST,1996 Present:
Mr.Justice K.Ramaswamy Hon'ble Mr. Justice G.B. Pattanaik U.U. Lalit, Adv. for
the appellant S.V.Leshpande, Adv. for the Respondents
O R D
following order of the Court was delivered:
V. Sonabai & Ors.
O R D
have heard learned counsel on both sides.
admitted facts are that the lands in dispute belonged to Punjab and on his demise, his widow Parwatabai
had succeeded to his estate in 1941. Consequently, she became the owner of a
limited estate. It is the appellant's case that Parwatabai had executed a
registered gift deed in favour of her husband in 1941 and eversince they are in
possession and enjoyment of the lands. Admittedly, the respondents are daughter
of Parwatabai. It is their case that on the demise of their mother, they became
the owners of the property and were in possession of the property till 1976
when they were dispossessed and as a consequence the suit was filed for
possession based on title. Though it was specifically not pleaded on title,
admittedly on fact situation suit was filed under Article 65 of the Schedule to
the Limitation Act, 1963 [for short, the "Act"]. The trial Court negatived
the respondents' claim and dismissed the suit. On appeal, the trial Court
decreed the suit holding 3that the respondents had on the demise of their mother
in 1966 succeeded to the estate of their father. Therefore. they are entitled
to the possession since the suit was filed within 10 years under Article 65 of
this appeal by special leave. Shri U.R. Lalit, learned counsel for the appellant,
contended that since the husband of the appellant remained in possession,
pursuant to the gift deed executed by Parwatabai, by operation of explanation
(b) to Article 65, burden is on the respondents to establish as to when the
possession of the appellant became adverse and they failed to discharge the
same. Therefore, the appropriate article applicable to the facts would be
Article 64 and not Article 65. We find no force in the contention. Admittedly,
after the demise of Panjuba, Parwatabai succeeded as widow's estate prior to
1941 and that, therefore, she was only life estate holder to enjoy the estate
for her life time. Under the gift deed, what she could bequeath was enjoyment
of life estate and not right and title of the property of Punjuba.
on her demise, the appellants being heirs of Punjab are entitled to assert their right to the property of their
father on the basis of their title.
65 of the Act postulates that for possession of immovable property or any
interest therein based on title, when the possession of the defendant becomes
adverse to the plaintiff, the suit has to be filed within 12 years.
when the plaintiffs asserted their title on the basis of succession to the
estate of their father, it is for the appellant to prove as to on which date
the appellant's possession has become adverse to the respondents' title. In
this case, the appellate Court and the High Court found that the appellant had
not established as to what was the exact date from which the adverse possession
died in 1966, admittedly, the plaintiff had filed the suit in 1966 within 10
years. Under those circumstances, the appellant had not perfected the title by
prescription. The courts below have rightly applied Article 65 and decreed the
suit. It is not vitiated by any error of law warranting interference.
appeal is accordingly dismissed, but in the circumstances, without costs.