Civil Appeal No 1521 of 1968 Appeal by special leave from the judgment and decree dated the 20th January 1968 of the Court of Addl
Judicial Commr Goa Daman Diu in Civil Appeal No 213 of 1966
U R Lalit K Rajendra Chowdhary Mrs Veena Khanna and section L Setia for the appellants
V M Tarkunde V N Ganpule and A G Ratnaparkhi for the respondents
The Judgment of the Court was delivered by GOSWAMI J
The appellants in this appeal by special leave Jose da Costa and his wife Isabela Braganca are the defendants and the respondents Bascora Sadashiva Sinai Narcornim and his wife Durgabai Narcornim are the plaintiffs in the original suit
The plaintiffs instituted a suit in the court of Judge of Quempem Comarca on February 27 1961 in accordance with the Portuguese law then in force in those territories for ejectment of the defendants from the suit property
It was alleged that on the death of Sadashiva father of the plaintiff Bascora in partition proceedings with minors inventario this plot was assigned to Bascora s mother Sitabai towards her moiety in the estate
On Sitabai s death the property devolved on the plaintiffs Bascora and his six sisters
Before the partition of the property among the legal heirs of Sitabai Bascora 1069 acquired the rights from some of his sisters and became the owner of the suit property with other heirs
Bascora s parents had inherited this property from their ancestors
The father of Bascora had permitted the ancestors of the defendants to build a house for their residence on a part of the property subject to the condition that they shall have to vacate the plot when called upon to do so
In the latter event they shall be entitled to remove the super structures of the building raised by them
Even so the plaint goes on to say that Caetana Esperanca Fernandes the mother of the appellant Jose da Costa executed a deed on November 16 1920 before the notary public of Comarca which indicated that she and her family members were owners of the plot
On the basis of this deed the defendants asserted ownership of that part of the plot on which stands the house built by their ancestors and now in their occupation
On the above allegations the plaintiffs prayed for a declaration that the plaintiff Bascora and the other heirs of his mother Sitabai are the only owners of the plot in dispute and that the house in the occupation of the defendants on a part of that plot was constructed in the circumstances and subject to the terms mentioned in the plaint
They further prayed that the defendants be directed to vacate the plot after removing the materials of their house
The defendants denied the allegations and pleaded that it was Vishnu Bascora Sinai Narcornim an ancestor of the plaintiffs who had given the suit property on perpetual lease to Pascoal da Costa an ancestor of the defendants in the year 1875 at an annual rent of rupees 24 
It was stated further that no such rent has been paid for over forty years before the suit nor has any rent ever been claimed by the family of the plaintiffs for such a long time
It was Pascoal da Costa who possessed the plot as his own and originally built one house on it but subsequently his descendants constructed more houses so that at present there are three houses and one stable on the plot in dispute
On Pascoal de Costa s death in inventario proceedings this property on November 16 1920 was consolidated in full ownership in the patrimony of the descendants of the said Pascoal da Costa The defendants further aver in their written statement that the suit property has been in their open peaceful and continuous possession including that of their predecessors in interest as owners for a period of more than 50 years and that they have acquired title by prescription
The trial court decreed the suit on April 30 1966 directing the defendants to remove their superstructures on the land or in the alternative to receive from the plaintiffs Rs 1084 which was found to be the value of the materials of the house in question as per estimate of the experts appointed for the purpose
On appeal the learned Additional Judicial Commissioner dismissed the same on January 20 1968 and affirmed the decree of the trial court
The defendants came to this Court by special leave against the judgment of the Additional Judicial Commissioner and this Court by its order dated August 1 1070 1975 which has since been reported in AIR 1975 SC 1853 remanded the appeal to the Judicial Commissioner for a finding on the plea of prescription raised by the defendants by observing as follows The plea of prescription goes to the root of the matter
It was raised by the defendants in their pleadings and the matter was put in issue
It was again taken up in the grounds of appeal filed in the Court of the Judicial Commissioner but was left undecided
For the purpose of doing complete justice in the case we think it necessary to have the advantage of the finding of the court below on this issue
Accordingly we remit this case to the Court of the Judicial Commissioner Goa Daman and Diu with the direction that it should after rehearing the parties record a specific finding on the issue as to whether the defendants had acquired full title to the suit property by prescription under the law in force at the relevant time
The Judicial Commissioner shall submit his report with reasons therefor to this Court within four months from the date on which the records are received in his court
In the meantime the appeal shall remain pending in this Court
 We have actually taken the facts of this case from the above decision
The Judicial Commissioner has since submitted his report dated December 5 1975 and the appeal has come up before us for final hearing
After examining the entire evidence oral and documentary the Judicial Commissioner has come to the conclusion that the defendants have failed to prove their acquisition of full title to the suit property by prescription under the law in force at the relevant time
During the hearing we did not have before us any printed Portuguese Civil Code or any standard legal treatise to which we would have ordianily liked to refer
Counsel for the appellants however produced certain extracts from various articles to which counsel for the respondents has not taken any exception
There is also reference to certain articles from the Portuguese Civil Code in the earlier judgment of this Court as also in the Report submitted by the Judicial Commissioner Both the parties accept those articles as correct although the original books are not before us
In view of the earlier decision of this Court and after hearing the parties we feel that we will be justified to decide this appeal only on the question relating to the plea of prescription
Since the original perpetual lease was not produced in court and a certified copy of the original translation of the perpetual lease issued on November 23 1920 was alone produced we have no reason to disagree with the conclusion of the Judicial Commissioner that the defendants failed to establish their plea of perpetual lease of the land
Before we may proceed further it will be appropriate to note that even the plaintiffs themselves laid a nucleus for the plea of adverse 1071 possession to be easily taken up by the defendants
Para 5 of the plaint may therefore be quoted 5
Notwithstanding this the mother and mother in law of the defendants Caetana Esperanca Fernandes with the ambition of alleging to the said plot of the plaintiffs rights that do not assist her participated as an executing party in a deed drawn up on 16 November 1920 by the former notary public of this Comarca Salinho da Silva wherein a plot having the denomination of Deulacodil tucda or Mordi was partitioned one third of which was assigned to the said Caetana and with basis in that partition the defendants allege to be the owners of the ground whereon the said house raised by their ascendants is situate Indeed this repudiation of title of the plaintiffs by the defendants gave rise to the cause of action
We cannot accept the submission of Mr Tarkunde on behalf of the respondents that the word allege in the above paragraph in the present tense makes any difference in the matter of the plea
Not only in the plaint but also in the evidence the plaintiff Bascora gave further reinforcement to the plea of adverse possession when he stated thus  in 1920 the deponent that is the plaintiff desiring to build the house existing in the plot of land there were disputes raised by defendant s mother and by one Santana Costa and then the deponent that is the plaintiff notified them through the Administration Office of Sanguem to vacate the plot land
He does not know what subsequent course his petition had  Mr Tarkunde submits that there might have been some dispute which however was settled and the plaintiffs built the house on the suit land and the defendants also continued on the land under the earlier permissive arrangement
Mr Tarkunde draws our attention to the following passage in the evidence of defendant No 1 In 1920 more or less the plaintiff built a house in the plot in question and begun to stay there
The same house was built very near the house where the deponent that is the defendant No 1 stays and which already existed at the time of that building
The dependent was about 14 or 15 years old
The grandfather of the deponent Pascoal da Costa and his uncle Francisco Piedade Costa and even the deponent s mother opposed the said building raised by the plaintiff
The question was amicably solved at the house of Narcornins Bencares to which the plaintiff belongs to the effect that the plaintiff should build the house and reside in it as well as the said persons who had their houses in it should continue to reside therein
The deponent came to know of these facts regarding the dispute and its solution after hearing his said uncle Francisco Piedade da Costa
 1072 Apart from the fact that the above is hearsay evidence we are clearly of the view that the statement is not sufficient to annihilate the theory of repudiation of the title of the plaintiffs to the property
It stands to reason that the defendants had been in continuous possession of the entire plot of land described in para 1 of the plaint which is a larger area including the portion where the house of the defendants stands
In the year 1926 the plaintiffs sought to make their construction on the vacant portion of the land close to the defendants  house which led to opposition and obstruction from the defendants
At that time apparently the defendants later agreed to the construction by the plaintiffs and that seems to be the reference to the amicable solution in the above extract
So far as the land on which the defendants had their house there was no proof nor any evidence of any change on the part of the defendants to their open hostility to the plaintiffs  title to the same
The plaintiffs did not give any evidence of any such amicable solution
On the other hand it is admitted that they had reported to the Administrator without even caring to know the result of such action against the defendants
The further fact that along with the plaint the plaintiffs annexed a certified copy of the partition deed of November 16 1920 which copy was obtained as early as on December 22 1920 goes to show that they were fully cognizant of the public assertion by the defendants of their own title to the land on which their house stands repudiating that of the plaintiffs
Mr Tarkunde submits that there is no evidence that this document had been actually obtained by the plaintiffs but production of the document without any explanation from the side of the plaintiffs speaks a volume about their knowledge of the repudiation of title
Mr Tarkunde also invited our attention to the statement of defendant No 1 to the effect that the plaintiff for reasons of enmity does not receive this rent nor he ever asked for its payment to the deponent that is defendant No 1 and other members of his family This statement cannot be torn from the context of the alternative plea set up by the defendants
This statement is fairly consistent with the alternative plea of perpetual lease of the land set up by the defendants
According to the defendants the land had been in their occupation on perpetual lease from Vishnu Narcornim the plaintiffs  paternal uncle and once that would have been acknowledged by the plaintiffs the defendants would perhaps be willing to pay even to the plaintiffs the annual rent
But it is the clear case of the plaintiffs that the story of perpetual lease was false and fraudulent and besides that Visnum Narcornim had no interest in the land and was not competent or authorised to lease out the same
We therefore cannot accept the exaggerated importance to the above statement of the defendant No 1 in his cross examination
The Judicial Commissioner however rightly observed that an overt act of possession to the knowledge of the plaintiffs and their 1073 ascendants must be shown to have taken palce
 From the above discussion we have no hesitation in arriving at the conclusion that the defendants have been able to establish the same and the Judaical Commissioner is not right in taking a contrary view
According to Article 474 of the Portuguese Civil Code Possession is defined as holding or fruition of any thing or right
Para 1
The acts done by licence or permission do not constitute possession  According to Article 505 things and rights are acquired by virtue of possession just as obligations are extinguished by reason of not demanding their fulfillment
The law lays down conditions and the period of time that are necessary for one as well as for the other thing
This is called prescription
Proviso
The acquisition of things and rights is known as positive prescription the discharge of the obligations by reason of not demanding their fulfillment is known as negative prescription
 Article 528 reads thus In the absence of registration of possession or title of acquisition prescription with respect to immovable property or rights to immovable will operate by virtue of possession for 15 years
 Article 529 of the Code is as follows When however the possession of immovable property or rights to immovable property referred to in the foregoing article has lasted for a period of 30 years prescription will operate and no mala fide or absence of title can be averred except the provisions of Article 510 Thus even under the Portuguese law what appears to be clear is that permissive possession is not sufficient to prescribe title of the owner of the land
The Judicial Commissioner was not right in holding that possession of the defendants was permissive under the plaintiffs
There is no evidence is against recognition by the defendants of any title the evidence is against recognition by the defendants of any title in the plaintiffs as such
The Judicial Commissioner mistook the defendants  admission of the alleged perpetual lease under Visnum Narcornim as permissive occupation under the plaintiffs even after holding that the defendants failed to establish perpetual lease
We are therefore left with the long continuous and peaceful possession by the defendants of the land with the residential house thereon since the time of their ancestors after a clear repudiation of the title of the plaintiffs to the land in 1920
The fact that the defendants set up title in Visnum Narcornim describing him as plaintiffs  ancestor does not affect the position in view of the plaintiffs  avowed denial that Visnum Narcornim had anything to do with the land
Visnum Narcornim is survived by his own descendants and we are not dealing with a case where Visnum Narcomim s heirs as such have sought 1074 eviction of the defendants from the land
The plaintiffs do not accept Visnum Narcornim s title to the land as their title
The Judicial Commissioner fell into an error because of not keeping the distinction between Visnum Narcornim s title to the land and the plaintiffs  title to the same
The origin of ownership of the suit land being dipped in the misty past what emerges from the evidence in the absence of proof of lease or permission by the plaintiffs  own ancestors is the defendants have been in long and open possession of the land over which they have constructed their house for a period long enough for that possession to ripen into ownership
The defendants in our opinion should be held to have acquired title to the said land by prescription
There being no proof whatsoever of permissive possession under the plaintiffs or their ancestors there is no question of application of the rule laid down under Article 510 relied upon by Mr Tarkunde
Article 510 reads thus One who possesses a thing in another s name cannot acquire it by prescription except if the title of possession has been inverted either due to an act of a third party or by objection raised by the possessor to the right of the other in whose name he was possessing it and not refuted by the latter but in such event the prescription shall run from the date of inversion of the title
Sole para The title is said to be inverted when it is substituted by another title capable of transferring the possession or ownership dominio
 According to the Judicial Commissioner the above Article is applicable and since the defendants could not prove that there had been at some time inversion of title their possession was merely detencao namely a precarious possession and such physical detencao without animus cannot be invoked for the purpose of claiming any effect that possession in one s own name or as of right connotes
It is difficult to see how Article 510 can be attracted to the instant case
The defendants had at no time possessed the land on which their house stands in the name of the plaintiffs
They were never accepting the position of permissive possession under the plaintiffs and had asserted perpetual lease under Visnum Narconim who even according to the plaintiffs was an unauthorised person
Article 510 would not be attracted to this case when the defendants alternatively were possessing in the name of Visnum Narornim or his descendants
Article 510 is therefore clearly out of the way
We are therefore not even required to consider whether there was any inversion of title in this case or not
It is clear that the defendants  ancestors and after them the defendants have been in possession of the land since 1875
Title of the plaintiffs was repudiated openly in the year 1920
The defendants are in possession by occupying the house standing on the land and the house was constructed by the defendants  ancestors
The plaintiffs had made a complaint about their conduct in denying their title to the land and in opposing their construction as early as in 1920
The 1075 passivity and inertness of the plaintiffs thereafter for over forty years till the institution of the suit in 1961 clearly establishes the plea of prescription set up by the defendants
It is significant that even the plaintiffs being out of possession of the land in suit for a long number of years and having constructed their house on a house on portion of the land only in the year 1920 sought to establish the title to the property by virtue of the prescription that operated in their favour see paragraph 3 of the plaint
Mr Tarkunde has made a further submission which appears to have received approval of the Judicial Commissioner that the defendants  witnesses while describing the land in suit acknowledged it as the plaintiffs  land
It may not be overlooked that the plaintiffs also have their own house on a part of the land
We therefore cannot agree that the defendants  witnesses by identifying the land in suit in that manner defeated the claim of the defendants with regard to the adverse possession
We may observe that Mr Lalit the learned counsel for the appellants fairly conceded that he was confining his claim in this case only to the land on which the defendants have their house
The appeal is therefore partly allowed
The plaintiffs  suit for title to the land in occupation of the defendants and for their eviction so far as that portion of the land with their house on it is concerned is dismissed
The plaintiffs  suit for declaration in respect of the remaining portion of the land however is decreed
As there is no prayer for eviction of any person other than the defendants that claim is rejected
We express no opinion with regard to the claim of persons who may be in occupation of the land other than the defendants who are not impleaded in the suit and against whom no relief has been claimed
The judgment and decree of the Additional Judicial Commissioner to the extent indicated in this judgment are set aside
There will be however no order as to costs
PHP Appeal allowed in part


Summary:
The respondent plaintiffs instituted a suit in 1961 in accordance with the Portuguese law then in force in those territories for ejectment of the defendant appellants from the suit property
It was alleged in the plaint that on the death of father of the plaintiff No 1
Sadashiva the suit land was assigned to Sitabai mother of plaintiff No 1 and that on the death of Sitabai the property devolved on the respondent No 1 and his 6 sisters
It was also contended that the house built on a portion of the land in dispute and occupied by the defendants should be removed by the defendants and the defendants should be directed to hand over vacant possession of the plot to the respondents
The appellants in their written statement pleaded that the suit property was given on perpetual lease to the ancestors of the appellants and that no rent was paid for over 40 years
The appellants further contended that the suit property was in their open peaceful and continuous possession including that of their predecessors in interest as owners for a period of more than 50 years and that the have acquired a title by prescription
The trial court decreed the suit
An appeal filed by the appellants before the learned Additional Judicial Commissioner was dismissed
When the matter came up before this Court by special leave this Court remanded the matter to the court of the Judicial Commissioner for a finding on the plea of prescription raised by the appellants
The learned Judicial Commissioner after remand came to the conclusion that the appellants have failed to prove the acquisition of full title to the suit property by prescription under the law in force at the relevant time
The learned Judicial Commissioner also held that the appellants failed to establish their plea of perpetual lease
Partly allowing the appeal
 HELD 1 In view of the earlier decision of this Court this Court would be justified in deciding the appeal only on the question of plea of prescription
The appellants had been in continuous possession of the entire plot of land described in para 1 of the plaint which has a larger area including the portion where the house of the appellant stands
In the year 1920 the respondents sought to make their construction on the vacant portion of the land close to the appellants  house which led to opposition and obstruction from the appellants
Later on the appellants agreed to the construction by the respondents
However so far as the land on which the appellants had their house is concerned there was no proof nor any evidence of any change on the part of the appellants to their open hostility to the respondents  title to the same
The respondents did not give any evidence of any such amicable solution
On the other hand it is admitted that they had reported to the Administrator without even caring to know the result of such action against the appellants
The further fact that the respondents annexed to the plaint a certified copy of the partition deed of 1920 which was obtained as early as in 1920 goes to show that they were fully cognizant of the public assertion by the appellants of their own title to the land on which their house stands repudiating that of the respondents
The learned Judicial Commissioner has erred in holding that the appellants have not been able to prove an overt act of possession to the knowledge of the respondents
According to article 474 of the Portuguese Civil Code possession is defined as holding or fruition of anything or right
The acts done by licence or permission do not constitute possession
According to Article 505 things and rights are acquired by virtue of possession just as obligations are extinguished by reason of not demanding their fulfillment
The law lays down conditions and the period of time 1068 that are necessary for one as well as for the other thing and that is called prescription
Under Article 528 of the Portuguese Code in the absence of registration of possession or title of acquisition prescription with respect to immovable property or rights to immovable will operate by virtue of possession for 15 years
Under article 529 when the possession of immovable property or rights to immovable property has lasted for a period of 30 years prescription will operate
Under the Portuguese law what appears to be clear is that permissive possession is not sufficient to prescribe title of the owner of the land
There is no evidence whatsoever for the conclusion of the Judicial Commissioner that the possession of the appellants was permissible under the respondents
On the other hand evidence is against recognition by the appellants of any title in the respondents
We are therefore left with the long continuous and peaceful possession by the appellants of the land with the residential house thereon since the time of their ancestors after a clear repudiation of the title of the respondents to the land in 1920
The fact that the appellants set up title in Vishnu Narcornim describing him as respondents  ancestor does not affect the position in view of the respondents  denial that Vishnu had anything to do with the land
The Judicial Commissioner fell into an error by not keeping the distinction between Vishnu s title and the respondents  title
The origin of ownership of land being dipped in the misty past what emerges from the evidence in the absence of proof of lease or permission by the respondents  own ancestors is that the appellants have been in long and open possession of the land over which they have constructed their house for a period long enough for that possession to ripen into ownership
The appellants have acquired title to the said land by prescription
Since there is no proof of permissive possession under the respondents or their ancestors there is no question of application of Article 510
The learned counsel for the appellants has confined his claim in this case only to the land on which appellants have their house
The suit of the respondents so far as it relates to the portion of the land on which the appellants have their house is dismissed and in respect of the remaining portion of land is decreed
1070G 1072A D 1073A H 1074A C 1075D E