-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 137 OF 2011 1. Shri Digambar Ganesh Govekar, major, married, and his wife, 2. Smt. Rati Digambar Govekar, both residents of House No. 291/4A Voilovadda, Sodiem, Siolim, Bardez, Goa. …... Appellants V e r s u s Shri Vithal D. Naik Banaulikar son of late Devarshi Vithal Naik Resident of House no. 233/3, Tropa Sodiem, Siolim, Bardez, Goa. (since deceased through his legal representatives) I. Smt. Sumitra Vithal Naik Banaulikar, widow. II Shri Venkatesh Davarshi Banaulikar III Smt. Kalindi Venkatesh Naik Banaulikar, All residents of House no. 744/1, 'Dewarshi' NH-17, Porvorim Bardez, Goa. All above are the registered addresses …... Respondents Mr. Melwin Viegas, Advocate for the Appellants. Coram :- F. M. REIS, J Date : 18 th November, 2011. ORAL JUDGMENT Heard Shri Viegas, the learned Counsel appearing for the Appellants. The above Second Appeal challenges the Judgment passed by the Lower Appellate Court in Regular Civil Appeal no. 229/2010, whereby the Appeal -2- preferred by the Respondent came to be allowed and the suit filed by the Respondent came to be decreed in terms of prayers (a) and (b) and the Appellants were directed to deliver vacant possession of the encroached area of 375 square metres to the Respondent. 2. Shri Viegas, learned Counsel appearing for the Appellants has assailed the impugned Judgment essentially on the ground that according to the learned Counsel, the Appellants were in possession of the disputed portion from the year 1982 and, considering that the suit was filed in December, 2005, such suit for recovery of possession was barred by law of limitation. Learned Counsel further points out that there were sufficient averments in the written statements to the effect that the Appellants were in possession of the disputed portion inasmuch as it was their contention that they had encroached into the said portion and further that they had planted some trees, etc., in exercise of such possession. Learned Counsel further submitted that the Lower Appellate Court has totally misdirected itself in allowing the Appeal and not considering the fact that the Appellants were in possession of the disputed portion for the requisite period of time which has created a title over the disputed portion by adverse possession. The learned Counsel further pointed out that though the title of the Respondents was disputed in the written statement, nevertheless, the Lower Appellate Court has come to the conclusion that the Respondents have established their title and ownership over the disputed portion. Learned Counsel further points out that immediately after the Appellants have purchased an area of 200 square metres in the year 1982, it is their case that they had encroached in the disputed portion of land and, as such, the question of seeking such possession in the year 2005 by the Respondents -3- does not arise at all. Learned Counsel as such submitted that the impugned Judgment deserves to be quashed and set aside. 3. Having heard the learned Counsel and on perusal of the records, pleadings of the parties as well as the impugned Judgment, I find that on the basis of the material on record, the Lower Appellate Court has come to the conclusion that the title and ownership in respect of the disputed portion of the land was of the Respondents. In fact, Shri Viegas, the learned Counsel appearing for the Appellants, during the course of the hearing, was unable to point out any infirmity in the findings in the impugned Judgment as far as the title is concerned. Once the title of the disputed portion of the land cannot be disputed, it is well settled that the possession follows title. In the present case, the Lower Appellate Court whilst appreciating the evidence on record has come to the conclusion that there are no averments in the pleadings on the part of the Appellants to claim title by adverse possession. As the Appellants are disputing the title of the Respondents the claim of adverse possession cannot be sustained. In order to claim adverse possession, such person has to admit the title of the true owner and then establish by cogent evidence that he has been in possession hostile to the owner. There are no pleadings to that effect nor any plea on that count raised by the Appellants in their written statement. On account of lack of such pleadings on the part of the Appellants, there was no issue framed by the Court below on that count. 4. It is well settled that mere possession of the property cannot by itself create a title by adverse possession in favour of such person. Considering that the claim of the Appellants that they are in adverse possession of the suit property has -4- been rejected nor there is any foundation of such claim in the pleadings or in the evidence of the Appellants, I find that the Lower Appellate Court has not committed any error whilst passing the impugned Judgment allowing the Appeal filed by the Respondents. 5. Dealing with the contentions of the learned Counsel appearing for the Appellants to the effect that the suit is barred by limitation, I find that there is no claim of hostile title alleged or pleaded by the Appellants to claim such plea of adverse possession. Considering that there is no averment nor pleadings to that effect, the question of contending that the suit is barred by limitation under Article 65 of the Limitation Act, cannot accepted. The learned Trial Judge erred in coming to the conclusion that the Respondents failed to establish ownership of the suit property. The lower Appellate Court rightly set aside such findings on the basis of the admission of the Appellants and the compromise deed. The Trial Court also erred that the area encroached admeasuring an area of 375 square meters had not been established. The Lower Appellate Court rightly found that the Appellants only purchased 200 square meters and the area encroached was 375 square meters on the basis of the evidence on record. 6. In view of the above and considering the facts and circumstances of the case, I find that there is no substantial question of law which arises in the above appeal which requires consideration by this Court under Section 100 of the Civil Procedure Code. Hence, the Appeal stands dismissed. F .M. REIS, J. arp/*