Bom HC | Permissive possession different from adverse possession; Cause of action arises to plaintiff only when defendant sets up adverse title

Bombay High Court: S.C. Gupte, J., dismissed a second appeal filed against the orders of courts below where the suit filed by the respondent-plaintiff for possession of the suit property was decreed.

The plaintiff’s suit was based on his title to the suit property. Plaintiff’s grandfather was the owner of the suit property. According to the request of the defendant’s father, the plaintiff’s grandfather had put him in permissive possession of the property. The same arrangement continued even after the death of both, the plaintiff’s grandfather and the defendant’s father. Now, the plaintiff approached the defendant for evicting the suit property as it was required by the plaintiff’s family. The defendant, however, refused. Consequently, the plaintiff filed the subject suit for possession of the suit property based on his title derived from his grandfather and father.

The defendant contended, inter alia, that the defendants and their predecessor in the title were in possession of the suit property ever since the plaintiff’s grandfather purchased the same and that the suit for possession was clearly barred by the law of limitation.

The High Court was of the view that there was no merit in the defence of limitation. The Court explained: “In a suit for possession based on the plaintiff’s title, the cause of action accrues to him when the defendant sets up a title adverse to him, that is to say, when the possession of the defendant becomes adverse to the plaintiff.”

Considering the facts of the instant case, the Court observed: “It is the plaintiff’s own case here, and which is not disbelieved by either of the courts below, that all along, till possession of the suit property was demanded from the defendants, their possession was permissive, first through the predecessor of the plaintiff (deceased Rama) and later through the plaintiff and his father (also deceased). It was only on 15 May 2006, when possession was demanded by the plaintiff and his father and denied by the defendants that the cause of action to seek recovery of possession on the basis of their title accrued unto the plaintiff and his father and the suit filed immediately thereafter was within time.”

Finding no merit in the challenge to the impugned orders, the High Court dismissed the instant appeal. [Balasaheb Govind Basugade v. Rajendra Shivaji Kumthekar, 2019 SCC OnLine Bom 5608, decided on 28-11-2019]

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