PARWATBAI A v.

SONABAI AND ORS.

AUGUST 12, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] B

Limitation Ac~ 1963 : Attic/es 64 and 65.

Immovable propertJAdverse possession-Suit-Limitation period fo,.._/)eatp of landowner-Widow succeeding to Estate as a limited C owner-1 ereafter widow executed a registered gift deed in favour of husblll!d in 1941 a'nd eversince they enjoyed possession and enjoyment of lands-After the death of widow in 1966 her daughter-respondents in possession of land till 1976-Dispossession of daughter-respondents-Suit for possession based on title-Dismissal of suit by Trial Courr-Suit decreed by Appellate Coult-Appellate Cowt and High Coult holding that appel/llllt had not D established ti1e date from which the adverse possession slatted running-Appeaf--, Held when the plaintiffs assetted their title on the basis of succession to the estate of their father, it was for the appellant to prove as to on which date the appellant's possession has beco1ne adverse to the respondents' title-The plaintiff had filed the suit in 1966 within 10 years-Under those E circumstances, the appellant had not peifected the title by prescription-Coutts below have rightly applied Article 65 and decree the suit.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11401 of 1996.

From the Judgment and Order dated 20.2.95 of the Bombay High Court in S.A. No. 161 of 1983.

U. U. Lalit for the Appellant.

S.V. Deshpande for the Respondents.

The following Order of the Court was delivered :

Leave granted.

We have heard learned counsel on both sides.

SUPREME COURT REPORTS [1996) SUPP. 4 S.C.R.

The admitted facts are that the lands in dispute belonged to Punjaba 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 that 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 D Article 65 of the Act. Thus, 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 hy Parwatabai, by operation of explanation (b) to Article 65, burden is on the respondents to establish as to when the possession of E 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 Punjuba, Parwatabai succeeded as widow's estate prior to 1941 and that, therefore, she was only life estate holder to enjoy the estate F 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.

Consequently, on her demise, the respondents being heirs of Punjuba are entitled to assert their right to the property of their father on the basis of their title.

G Article 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. Therefore, 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 H to on which date the appellant's possession has become adverse to the

PARWATBA!v.SONABAI 573

respondents' title. In this case, the appellate Court and the High Court A found that the appellant had not established as to what was the exact date from which the adverse possession started running. Since Parwatabai 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.

The appeal is accordingly dismissed, but in the circumstances, without costs.

T.N.A.

Appeal dismissed.