Case: Jose Da Costa &amp; Another Vs. Bascora Sadashiva Sinai Narcornim &amp; Anr

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.13. 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 tit le 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 Narcomims heirs as such have sought eviction of the defendants from the land. The plaintiffs do not accept Visnum Narcornims title to the land as their title. The Judicial Commissioner fell into an error because of not keeping the distinction between Visnum Narcornims 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 rip en 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 n o question of application of the rule laid down under Article 510, relied upon by Mr. Tarkunde.14. Article 510 reads thus:"One who possesses a thing in anothers 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)."15. 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 ones 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 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).16. 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.17. 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.18.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 ordinarily liked t o 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 an d after hearing the parties we feel that we will be justified to decide this appeal only on the question relating to the plea ofto 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 ones 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 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).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 adversemay 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 their474 of the Portuguese Civil Code