IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 80 OF 2008 MRS. PRECIOSA FERNANDES E DIAS ALIAS PRECIOSA FERNANDES AND ANR., ... Appellants Versus CRISTALINA FERNANDES (EXPIRED) THROUGH LR'S ... Respondents Mr. S.G. Dessai, Senior Advocate with Mr. A. Gaonkar, Advocate for the Appellants. Mr D. Andrade, Advocate for Respondents No.1 to 4. Coram:- N. A. BRITTO, J. Date:- 8th April, 2010 P.C.: This is plaintiffs' second appeal arising from Special Civil Suit No.116/1998/B. The plaintiff no.1 and the deceased husband of defendant no.1 were sister and brother, respectively. They are two out of four siblings of Joaquim Sebastiao Fernandes. The dispute is regarding the house property having Survey No.237/2 and 238/6 belonging to the said Joaquim Sebastiao Fernandes. It appears that in the year 1952, after his death, Inventory Proceedings were held in which plaintiff no.1 got 1/4th undivided share in the said property and the deceased husband of defendant no.1 got another 1/4th. By virtue of a deed of gift from her other sisters in the year 1983 or thereabout, plaintiff no.1 acquired 3/4th share in the suit property. 2. There is no dispute that the suit house and the suit property remained in the occupation of defendant no.1, he being the son of his parents whiles the sisters after their marriage moved away from the said house. The plaintiffs called upon the defendants (the widow and children of the said brother Agostinho Fernandes) by notice dated 15/12/1995 to partition the suit property along with the house and then the suit was filed on or about 27/03/1998 for partition. The suit was contested by the defendants stating that they were in actual physical possession of the suit property along with the house. Issue No.2 was framed by the learned trial Court and that was in relation to the claim of adverse possession set up by the defendants. The said issue was answered by the learned trial Court by judgment/decree dated 27/08/2002 in favour of the defendants and against the plaintiffs and as a result of which the plaintiffs suit came to be dismissed. The plaintiffs filed an appeal and the said appeal also came to be dismissed by judgment dated 7/04/2008 of the learned District Judge-3, Panaji. Shri Dessai, the learned Senior Counsel appearing on behalf of the plaintiffs submits that the time for filing the suit in terms of Article 65 of the Limitation Act, 1963 ought to have been reckoned from the date the notice was sent by the plaintiffs to the defendants. Learned Counsel further submits that the period of 12 years ought to have been computed from 4/01/1996 when the defendants in writing claimed hostile title to the suit property. The learned Senior Counsel therefore submits that there is a basic fallacy in terms of law as to when the adverse possession had started to run as against plaintiffs and in that regard learned Senior Counsel has placed reliance on the decision in the case of Hemaji Waghaji Jat V/s. Bhikabhai Khengarbhai Harijan & Ors. (AIR 2009 (SC) 103), wherein the Apex Court has reviewed the law as regards adverse possession, observing inter alia that adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. 3. It appears that the said Agostinho Fernandes, the deceased husband of defendant no.1 had even re-constructed the house without any objection from his sisters including plaintiff no.1 who were residing elsewhere after their marriage and not only that the plantation of the property was also enjoyed by him exclusively. It appears that the plaintiffs made an effort in the year 1975 or thereabout to claim a right or share in the property which was denied to the plaintiffs by the family of Agostinho Fernandes. It appears that another effort was made in the year 1984 probably after the plaintiffs got the gift deed executed in their favour from the other two sisters along with their respective spouses and this attempt also was resisted by the defendants. The learned trial Court came to the conclusion that the evidence of the plaintiffs clearly showed that the defendants had asserted their exclusive right to the suit property in the year 1975, then again in the year 1983 and yet again in the year 1988 by showing hostility to the plaintiffs. The house appears to have been reconstructed in the year 1978 or thereabout without any murmur from the plaintiffs. The learned first appellate Court observed that the period of limitation for filing the suit was 12 years and if in terms of Article 65, the limitation was to be calculated from the year 1975, the suit ought to have been filed before the year 1987 and in case it was to be calculated from the year 1983, the suit ought to have been filed in the year 1995 and the suit filed on 27/03/1998 is beyond the period of limitation. The evidence produced by the defendants clearly showed that the defendants were exclusively enjoying and occupying the suit property after the death of their parents and had asserted hostile title to the suit property in the year 1975 or thereabout. 4. In my view, there is no merit in the submissions of learned Senior Counsel. Both the courts below have given concurrent findings that the defendants are in exclusive possession of the suit property from the year 1975 by asserting a hostile title as against the plaintiffs. 5. That being the position, there is no merit in this Second Appeal and consequently the same is hereby dismissed. N. A. BRITTO, J. NH