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Judgment
A.H. Joshi, J.—This is a first appeal by un-successful defendants.
Krishna Nagvekar is common predecessor in title of husband of respondent No. 1 and father of respondent No. 2, 4, 6, 7, 10 and 11.
Shambhu is common predecessor in title of defendants being father of defendants/respondents No. 1, 3, and 5.
Facts as admitted by defendant present appellant as seen in the pleadings and in present appeal can be summarised as follows:
(a) Deceased Shambu Purchottam Nagvenkar and late Krishna Pandurang Nagvenkar purchased jointly suit property which was recorded in the Land Registration Office under No. 16633 and enrolled in the Land Revenue Office under No. 530.
(b) Shambhu and Krishna resided in the suit house together till Krishna opened a Goldsmith shop at Margao in partnership with 3 others and said Krishna thereafter went to stay at Margao to reside there.
(c) Suit house was reconstructed. Licence for the construction of the suit house was obtained in the name of Shambu.
It must be acknowledged with appreciation that the appellant has carried out and presented for the convenience of parties and of the Court the question which falls for determination which reads as follows:
Whether the Trial Court committed illegality in not realising that it is not impermissible for one c-owner to acquire title by prescription, by adverse possession on account of continuous possession for 30 years to the exclusion of other co-owners with his ouster.
Whether the Trial Court committed illegality in not appreciating oral evidence in its proper perspective.
In the light of oral submissions advanced at the bar, this Court has scrutinised the pleadings and evidence.
All that is seen from crucial pleading is as follows:
(a) Paras 7 and 9 of plaint at pages 49 and 50 of paper book.
The plaintiffs further submit that some time in the year 1955 or thereabout the said Shambu and Krishna opened a Goldsmith Shop at Margao in Partnership with three others. The said Krishna therefore went to stay at Margao temporarily. The plaintiffs further submit that they have their religious celebrations such as Ganesh festival etc. which is celebrated in their ancestral house at Kakoda. During the festival the plaintiffs go and reside in the suit house. They have their household goods in the said house and part of the house is permanently occupied for the residence of plaintiff No. 2 and 3. The plaintiffs No. 2 and 3 are in exclusive possession of four rooms including kitchen and sharing drawing hall, entrance, and place of worship in the house in common. Similarly the bathing place, w. c. is also in common and the well existing in the said property is also being enjoyed in common.
The plaintiffs submit that the defendants have raised the dispute regarding the divisions of the suit properties and therefore the plaintiffs desire to have a judicial partition of the same by metes and bounds. The plaintiffs further submit that they gave a notice dated 18.1.1990 to the defendants through their advocate stating therein that on account of certain situation created by the defendants on account of enjoyment of the suit properties the plaintiffs wish to partition their share in the suit properties by metes and bounds and further the defendants were called upon to intimate within 7 days from the said notice of the advocate whether they are ready and willing for amicable division of the property as per the share being half to the plaintiffs and help to the defendants for which the defendants did not agree. The defendants have not sent any reply to the notice dated 18.1.1990 thereby showing their unwillingness to partition the suit properties amicably.
Defendants reply to paras 7 and 9 of plaint, as seen in written statement at pages 59 and 60.
With reference to para 7 it is denied that said Krishna went to stay at Margao temporarily. Said Krishna started residing at Margao with his family since 1955 permanently and never came to stay at Curchorem thereafter. Said Krishna or the plaintiff have no ancestral house at Kakoda and have no religious celebrations at Kakoda. The plaintiffs never resided in the suit house after 1955. The plaintiffs are not having any house hold goods in the said house or they are not occupying any part of the house either permanently or otherwise. It is denied that the plaintiffs 2 and 3 are in exclusive possession of four rooms or any rooms in the house or any common sharing. The plaintiffs have no right to the said house or any portion thereof. The entire house is in possession and occupation of the defendants No. 1 to 6. It is denied that bathing place, W.C. is common and the well existing in the said property is enjoyed in common. Hence the contents of para 7 are denied.
12....
With reference to para 9 it is denied that the there is any disputes regarding the enjoyment of the suit properties. The plaintiffs never raised any dispute regarding the exclusive possession and enjoyment of the suit properties by the defendants and their parents. The plaintiffs have no right to these properties and there is no question of division or any dispute regarding division. The plaintiffs cannot demand any division either judicially or otherwise. The notice has no meaning and there was no question of any reply as to the knowledge of the plaintiffs they have no right to the suit properties. However, after the receipt of the notice the plaintiffs were told that there is no question of any partition as they have no right to the suit properties and that their notice deserves no reply.
Now therefore the appellants have confined their stand to the story of ouster or exclusion i.e the defendants having denied the plaintiffs right.
Due to the grounds of opposing the suit contained in the pleadings, admissions contained therein and from over all tenor of stand taken before Trial Court, and before this Court, the defendants have shouldered the burden to prove certain facts namely:
(a) Though Krishna was co-owner, he was physical dispossessed on a particular day or date.
(b) If defendant Krishna was not forcibly dispossessed, any date on which Krishna''s right of entry or access to suit house was denied. Thus, of defendants'' plea seen precisely is the bar of remedy due to the possession of the defendants'' having become openly and to the knowledge of Krishna, hostile to his rights i.e. a ''negative prescription'' as understood by portuguese civil code.
Perusal of testimony of defendant No. 1 discloses that it was recorded on 23rd January 2001. On that date he has deposed that his age is 56 years. In the cross examination he has admitted as follows:
While said Krishna Pandurang Nagvekar left Kakoda and went to reside at Margao permanently in year 1955 he was told that he has no right in the suit property.
What he DW1 has deposed in 2001 is about what happened in 1955 i.e. exactly 45 years prior to the date when he may have been an infant. Meaning thereby that the fact which he was trying to prove was the matter which may have been the knowledge of his father Shambu at the most.
Other witnesses of the plaintiff travel in the same boat, as to they may be of the age of around 10.
Moreover it has not come in the testimony of these witnesses as to what is their source of their knowledge that Shambu had ousted ousting Krishna from the property or Krishna''s right was otherwise denied on any particular day by Shambhu.
Be if that the said denial is not by Shambu, but by either of the defendants who could be of age of understanding and memory. In such an eventuality as well any of the defendants could have been the witnesses. The defendants do not have a story to that effect..
In these premises this Court has to arrive at the conclusion that Shambu''s having become hostile to rights of Krishna is thus a fiction than the fact.
The negative prescription pleaded and relied upon by the defendants is nothing but the plea of being in possession hostile to the rights of Krishna.
The period of said negative prescription/hostility/adversity requires such period to be of 30 years, which is required under portuguese civil code. The date of shambhu''s possession having became hostile, is not proved.
In case of Swapan Kumar Handique and Others Vs. Padma Dhar Deka and Others, , and in Zacarias Durate Dmoingos Pereira Vs. Camilo Inacil Evaristo Pereira, , two judgments relied upon by the advocates are of no use and assistance for the plaintiffs.
Appeal has no merit and is dismissed with costs.