JOSE DA COSTA & ANOTHER versus BASCORA SADASHIVA SINAI NARCORNIM & ANR.

Citation: [1976] 3 S.C.R. 1067 · Decided: 07-04-1976 · Supreme Court of India · Bench: HANS RAJ KHANNA · Disposal: Case Partly allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

JOSE DA COSTA & ANOTHER 
V. 
BASCORA SADASHIVA SINAI NARCORNIM & ANR. 
April 7, 1976 
[H. R. KHANNA AND P. K. GOSWAMI, JJ.] 
10 67 
A 
Ownership by prescription or adverse possessio11-K11owledge of possession-
Posse,~sion for a long tin1e-Peaceful-Pennissible 
posJession 
whether 
su!Ji-
B 
cient. 
Porruraiese Civil Code-Articles 474, 505, 510, 528 and 529. 
The respondent plaintiffs instituted a suit in 1961 in accordance with the 
Portuguese law then in force in those territories for ejectmcnt 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 pro-
perty devolved on the respondent No. 1 and his 6 sisters. 
It was also con-
tended that the house built on a portion of the land in dispute and occ.upied 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 pre-
dece:i;sors in interest as owners for a period of more than 50 years and that they 
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 prescrip-
tion 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 appel-
lants failed to establish their plea of perpetual lease. 
Partly allowing the appeal, 
c 
D 
E 
HEID : (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 pres· 
cription. The appellants had been in continuous possession of the enitre plot 
of land described in para 1 of the plaint which has a larger area includin·g 
the portion where the house of the appellant stands. In the year 1920, the 
F 
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 
G 
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 Art. 474 
of the Portuguese Civil Code oossession is defined as holding or fruition of 
H 
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 demand~ 
ing their fulfilment. The law lays do'\vn conditions and the period of time 
A 
B 
c 
D 
1066 
SUPREME COURT REPORTS 
[1976] 3 S.C.R. 
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 tit

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