The Bombay High Court has dismissed a second appeal challenging concurrent findings that a structure built by a sister of the original owner on his property constituted permissive use, not adverse possession, affirming that the burden of proving adverse possession never shifts to the true owner when possession originates in permission.
Background & Facts
The Dispute
The suit property comprises land bearing Survey No.1, Hissa No.3/3/C at Village Mohone, Taluka Kalyan, District Thane, admeasuring 24 gunthas (9 + 15 gunthas). The property was purchased by Shambhuprasad Patel (husband of Plaintiff No.1, father of Plaintiffs Nos.2-4) along with C.G. Mahant by registered sale deeds dated 25 November 1947 (9 gunthas) and 2 January 1948 (15 gunthas). A registered partition deed dated 26 January 1949 allotted the entire suit property to Shambhuprasad Patel. The City Survey office later assigned Chalta Nos. 447A to 452A, 453, 539, 594 and 403A to the land.
Key Facts
- Shambhuprasad Patel died on 29 July 1964
- His sister, Smt. Maniben Jethalal Patel, shifted to Mohone in 1952 after her husband's death in 1951, residing with her brother as a family member
- Maniben constructed a house on adjoining land (Hissa No.3/3/A) and, according to Plaintiffs, encroached upon the suit property by constructing a structure thereon without their knowledge or concurrence
- Maniben passed away in 1985
- Defendant Nos.1 to 6 (Maniben's children) claimed title by adverse possession in RTS Appeal No.49 of 1985 before Revenue Authorities
- Plaintiffs filed Special Civil Suit No. 325 of 1997 seeking recovery of possession, demolition of encroaching structure, mesne profits, and injunction
- Defendants resisted the suit pleading adverse possession and limitation
- Defendant Nos.7 and 8 are tenants inducted by Defendant Nos.1 to 6; Defendant No.9 filed separate written statement
Procedural History
- 29 December 2009: Trial Court (Civil Judge Senior Division, Kalyan) decreed the suit, directing Defendant Nos.1 to 6 to deliver vacant possession by demolishing the structure, restraining transfer, and ordering inquiry into mesne profits under Order 20 Rule 12 CPC
- 22 October 2013: First Appellate Court (Ad-hoc District Judge, Kalyan) dismissed Civil Appeal No. 38 of 2010, confirming the Trial Court's judgment and decree
- 20 December 2013: Bombay High Court continued interim protection granted by First Appellate Court
- 10 February 2015: Second Appeal admitted by framing substantial questions of law on burden of proof in adverse possession and maintainability under Order VII Rule 3 CPC
- 5 October 2026: Arguments concluded, judgment reserved
- 21 October 2026: Judgment pronounced dismissing the appeal
Relief Sought
Appellants sought setting aside of the concurrent decrees, dismissal of the suit on grounds of limitation and non-compliance with Order VII Rule 3 CPC, and acceptance of their plea of title by adverse possession over the encroached portion.
The Legal Issue
The Court framed three questions: (i) Whether the burden of proof shifts to the real owner when a defendant raises the defence of title by adverse possession; (ii) Whether a suit for removal of encroachment and possession based on title is maintainable under Order VII Rule 3 CPC where the extent of encroachment is allegedly not properly described; (iii) Whether the Plaintiffs' suit was barred by limitation under Article 65 of the Limitation Act, 1963.
Arguments Presented
For the Appellants
Mr. R.D. Soni submitted that the Trial and Appellate Courts erred in ignoring Order VII Rule 3 CPC (as amended in Bombay) requiring a sketch map showing the location and extent of encroachment. The plaint failed to describe the specific portion of Hissa No.3/3/C allegedly encroached, making execution of the demolition decree impossible. The suit was barred by limitation since the structure was constructed in 1962 and Plaintiffs admitted knowledge of encroachment by 1978 - well beyond the 12-year period under Article 65. The RTS proceedings of 1985 were irrelevant for limitation purposes; the Defendants' claim of adverse possession in those proceedings demonstrated Plaintiffs' knowledge. All elements of adverse possession (nec vi, nec clam, nec precario) were established: continuous, open, and hostile possession since 1962. The burden shifted to Plaintiffs to prove lack of knowledge, which they failed to discharge.
For the Respondents
Mr. D.S. Mhaispurkar (for Respondent No.2) contended the suit property was correctly described in the plaint with survey numbers, boundaries, and Chalta numbers. The Survey Map at Exhibit 83 and the City Survey Officer's testimony established the extent of encroachment. Defendants never disputed the description in their written statement or first appeal. Maniben, being Shambhuprasad's sister, was merely permitted to reside on the property; permissive use cannot mature into adverse possession. The suit was within limitation because permissive possession does not become adverse to the owner, so the limitation period never commenced. Concurrent findings of fact by both lower courts warranted non-interference.
Mr. Rajendra M. Haridas (for Respondent Nos.5 & 6) supported the Appellants, arguing lawful tenancy rights created in their favour could not be disturbed under the guise of the suit.
The Court's Analysis
On Question No.1 (burden of proof in adverse possession), the Court held that by raising the defence of adverse possession, Defendants admitted Plaintiffs' ownership and their own encroachment. This narrowed the inquiry to whether the admitted possession was adverse. The Court found that Maniben entered the suit property as a permissive user - a family member allowed to reside by Shambhuprasad. Permissive use is antithetical to adverse possession; a permissive user can never claim settled possession or title adverse to the true owner. The Court relied on Maria Margadia Sequeria Fernandes & Ors vs Erasmo Jack De Sequeria (D) Tr.Lrs.& Ors (2012) 5 SCC 370, where the Supreme Court crystallised that no one acquires title by gratuitous stay, and caretakers, relatives, or servants cannot acquire interest regardless of long possession.
"Once permissive use is established, the plea of adverse possession fails. Since Maniben entered the suit property through the permission granted by Shambhuprasad, the plea of adverse possession could neither have been raised nor established in the facts and circumstances of the present case by Defendant Nos.1 to 6."
The Court further cited Ravinder Kaur Grewal vs Manjit Kaur (AIR 2019 SC 3827) on the three classic requirements of adverse possession: nec vi (adequate continuity), nec clam (adequate publicity), and nec precario (adverse to the competitor, in denial of title and his knowledge). Since possession was permissive, the nec precario element was absent. The burden of proving all three elements remains on the possessor; it never shifts to the true owner merely because the defence is raised.
On Question No.2 (maintainability under Order VII Rule 3), the Court examined the plaint's description: Survey No.1, Hissa No.3/3/C with boundaries, area (24 gunthas), and Chalta numbers (447A-452A, 453, 539, 594, 403A). The Bombay amendment to Order VII Rule 3 requires a sketch map in encroachment suits. However, Defendants' written statement (paragraph 16) explicitly admitted that part of their construction fell on Hissa No.3/3/C and identified the Chalta numbers. No objection to description was raised in the written statement, at trial, or in first appeal. The objection was raised for the first time at the second appellate stage. The Court held the suit property was sufficiently identified, and the encroachment was clearly understood by Defendants and visible from the measurement map (Exhibit 83). Even if a defect existed, it is curable under Section 47 CPC in execution proceedings, as held in Pratibha Singh v. Shanti Devi Prasad (2003) 2 SCC 330.
On Question No.3 (limitation), the Court held that since Maniben's possession was permissive, it never became adverse to the owner. Limitation under Article 65 begins only when possession becomes adverse. Knowledge of permissive possession does not trigger limitation. The RTS proceedings related to claim of title, not adverse possession. The suit filed in 1997 was well within limitation.
The Verdict
The Second Appeal was dismissed with costs. The concurrent decree of the Trial Court (29 December 2009) and First Appellate Court (22 October 2013) was upheld. Defendant Nos.1, 2 and 4 to 6 are directed to deliver vacant possession of the suit property (Chalta Nos. 447A to 452A, 453, 539, 594, 403A) by demolishing the structure standing thereon, and are restrained from transferring or parting with possession. The inquiry into mesne profits under Order 20 Rule 12 CPC shall proceed.
What This Means For Similar Cases
Permissive Use By Family Members Cannot Mature Into Adverse Possession
- When a relative occupies property with the owner's permission (gratuitous stay), the possession remains permissive regardless of duration
- Practitioners must establish the origin of possession - if entry was by permission, the nec precario element fails ab initio
- The burden of proving all three elements (nec vi, nec clam, nec precario) never shifts to the true owner; it remains on the claimant throughout
- Maria Margadia Sequeria Fernandes principles apply squarely: caretakers, relatives, servants acquire no interest even after decades
Technical Objections To Property Description Are Curable And Waivable
- Order VII Rule 3 CPC (with Bombay amendment) requires sufficient description and sketch map for encroachment suits
- However, if the defendant admits the encroachment in the written statement and identifies the encroached portion, the objection is waived
- Failure to raise the objection at trial or first appeal constitutes waiver; it cannot be raised for the first time in second appeal
- Even if a defect exists, Section 47 CPC empowers the executing court to ascertain the exact description - a decree should not be defeated on technical grounds
Limitation Does Not Run Against Permissive Possession
- Article 65 Limitation Act, 1963: 12-year period starts only when possession becomes adverse to the owner
- Mere knowledge of a permissive user's occupation does not convert possession into adverse possession
- The RTS proceedings or revenue claims by the permissive user are irrelevant for limitation in a possession suit
- Practitioners defending possession suits must prove the date possession became adverse, not merely the date of entry or construction
