Judgment:
U.V. Bakre, J.
This Second Appeal is directed against the Judgment and Decree dated 25/02/2004 passed by the learned Additional (III) District Judge, South-Goa at Margao (First Appellate Court), in Regular Civil Appeal No.24 of 2001.
2. The said Regular Civil Appeal No.24 of 2001 was filed against the Judgment and Decree dated 30/12/2000 passed by the learned Civil Judge Junior Division, Margao (Trial Court) in Regular Civil Suit No.6/1988/F.
3. The Appellant before this Court as well as before the First Appellate Court was the plaintiff who had filed the said suit for removal of portion of a cowshed constructed by the respondents (defendants) in the property of the plaintiff. The plaintiff had also claimed mesne profits.
4. The case of the plaintiff, in short, was as follows :
He purchased a plot of the property known as "Predio Urban" admeasuring 707 square metres, from Antonio Manuel Fernandes and his wife, by sale deed dated 29/12/1966 and thereafter constructed two houses in the said plot. At that time, he noticed a cowshed belonging to the defendants partly falling in his property and partly in the property of Rosario. The elders of the defendants were permitted by the vendors in title of the property to construct the cowshed partly in the plot purchased by the plaintiff. Previously the cowshed was of palm leaves and later on the defendants changed the same with mud walls, stone pillars and the roof of Mangalore tiles. As the said cowshed was causing nuisance to the plaintiff, he by notice dated 9/7/1987 requested the defendants to remove the same within 15 days of the receipt of the said notice which notice was received by the defendants and they replied the same thereby claiming permissive use of the land. Therefore, the plaintiff sent another notice dated 31/08/1987 to the defendants informing that the permission given is withdrawn. As the defendant did not remove the cowshed, the plaintiff filed the suit.
5. The defendants resisted the suit. In their written statement, they stated as follows :
Their cow-shed is shown under Chaltas No.60 and 61 of the P.T. Sheet No.74 and that the same was existing prior to the purchase of the plot by the plaintiff and the plaintiff has purchased the said plot with knowledge of existence of the cowshed. The repairs to the roof of the cow-shed were carried out by obtaining license from Margao Municipality, in the month of May,1987. The said cowshed was constructed with the knowledge and consent of predecessor in title of the vendors of the plaintiff. The plaintiff has no right to say that the permissive use is withdrawn. They are in peaceful, open and exclusive possession and enjoyment of the land covered by cowshed since the time of their ancestors and for more than 100 years and as such they have derived prescriptive right to the land wherein the cowshed is situated.
6. The Trial Court held that the plaintiff had failed to prove that the defendants' use of the property was permissive. He held that the defendants were in possession of the same since more than 100 years and have derived prescriptive right to the land occupied by cowshed. The Trial Court further held that even assuming that the construction of the cowshed was done with the permission of predecessors in title of the plaintiff, the same is of permanent nature and the same becomes irrevocable licence by virtue of Section 60(b) of the Indian Easement Act. The Suit, thus, came to be dismissed.
7. The learned Additional (III) District Judge dismissed the First Appeal confirming the Judgment and Decree of the Trial Court. The First Appellate Court held that the learned Trial Court erred in holding that the defendants acquired title by adverse possession to the suit cowshed. The First Appellate Court agreed with the finding of the Trial Court that the defendants erected a cowshed of permanent character in Chalta No.60 of P.T. Sheet No.74, which presently belongs to the plaintiff and this license is irrevocable which could not be revoked merely by notice given by the plaintiff to the defendants.
8. The present Second Appeal has been admitted on the following substantial questions of law :
(a) Whether the Courts below were right in holding that provisions of Indian Easement Act regarding revocability of license would be applicable to the license granted prior to coming into force of the said Act?
(b) Whether the Courts below have committed an error of law by recording the finding about the license being irrevocable in favour of the respondents for which there was no plea by the respondents in their pleadings nor there was any issue framed or evidence led to record such finding?
(c) Whether the Courts below failed to consider that the respondents having taken plea of prescriptive title and led evidence to prove it, it was not permissible to hold that it was irrevocable licence?
(d) Whether the Trial Court's finding recorded on mere assumption could be considered as the finding of fact by the Appellate Court?
9. Shri Sudesh Usgaonkar, learned counsel, argued on behalf of the plaintiff whereas Mr. C.A. Ferreira, learned counsel, argued on behalf of the defendants.
10. As far as the first substantial question of law is concerned, the learned counsel for the plaintiff submitted that the Indian Easement Act, 1882 (said Act) came into force in Goa on 01/11/1978 whereas the cowshed of the plaintiff was existing since much prior to that and therefore the provisions of the said Act cannot be applied to the license, in the present case. He submitted that there are express corresponding provisions relating to licenses in Articles 476 and 2307 of the Portuguese Civil Code and hence the question of applying the principles underlying section 60(b) of the said Act, on the ground of justice, equity and good conscience, does not arise. He therefore contended that the provisions of the said Act regarding revocability of the license are not applicable to the present case.
11. Insofar as the second and the fourth substantial questions are concerned, the learned counsel for the plaintiff invited my attention to the written statement filed by the defendants and submitted that in paragraph 3 thereof, the defendants have denied that the vendors in title of the property had permitted elders of the defendants to construct the cowshed partly in the plot purchased by the plaintiff. He further pointed out that in the entire written statement there is no pleading that the license is irrevocable. He also contended that upon transfer of the land, right of the license is lost. He also argued that there is no evidence on record on the point of the irrevocability of alleged license. He submitted that the Trial Court has held that permissive use of the property has not been proved but assuming that the same is proved then, the same becomes irrevocable licence by virtue of section 60 of the said Act. Therefore, the learned counsel contended that in the absence of pleadings, the lower courts could not have recorded finding about the licence being irrevocable, in favour of the defendants and further since the finding of the Trial court was on mere assumption, the First Appellate Court could not have considered the same as finding of fact.
12. With regard to the third substantial question of law, It is the submission of learned counsel for the plaintiff that the plea of prescriptive title and irrevocable license are contradictory pleas which destroy each other. He pointed out that though the Trial Court had held that the defendants had proved prescriptive title however the First Appellate Court has negatived such a finding. In the circumstances above, Mr. Usgaonkar prayed that the appeal be allowed and the Suit be decreed as prayed for.
13. Reliance has been placed by learned counsel for the plaintiff, upon following citations:
I) Mahadeo Tatu Naik Vs. Ramakant Atmaram and another [AIR 1985 BOMBAY 347]
II) Sheodhari Rai and others Vs. Suraj Prasad Singh and others [AIR 1954 SC 758]
III) Chevalier I. I. Iyyappan and another Vs. The Dharmodayam Co., Trichur [AIR 1966 SC 1017]
IV) Panchugopal Barua and others vs. Umesh Chandra Goswami and others [1997 (4) SCC 713]
V) Ramesh Radhunath and ors. Vs. Pandurangrao Ambadasrao Ratnalikar [2006 (4) Bom. C.R. 910]
VI) Thakur Kishan Singh (Dead) Vs Arvind Kumar [(1994) 6 SCC 591]
VII) Vimal Chand Ghevarchand Jain Vs Ramakant Eknath Jadoo [(2009) 5 SCC 713]
VIII) State Of Orissa Vs Sudhansu Sekhar Misra [(1968) 2 SCR 154]
IX) The Regional Manager and anr. Vs Pawan Kumar Dubey [(1976) 3 SCC 334]
X) Yesu Sadhu Nimagre and ors. Vs. Kundalika Babaji Nimagre and another [1977 Mh.L.J. 130]
Xi) Bachhaj Nahar Vs Nilima Mandal and another [(2008) 17 SCC 491]
XII) Judgment dated 26/9/2011 of this court in Second Appeals No.19/07; 20/07 and 68/07.
14. Per contra, Mr. C.A. Ferreira, learned counsel on behalf of the defendants, argued that the plaintiffs had pleaded in paragraph 3 of the plaint that the defendants were permitted by the vendors in title of the property to construct the cowshed partly in the plot purchased by the plaintiff and it is this fact which has been denied by the defendants, in paragraph 3 of the written statement. He pointed out that in the same paragraph 3 of the written statement, the defendants have specifically pleaded that the cowshed in question was constructed with the knowledge and consent of the predecessors in title of the vendors of the plaintiff. He further submitted that the plea of irrevocability of license need not to be taken in so many words when license is specifically pleaded and construction of permanent structure is also pleaded. It is his contention that as long as the parties are put to notice as to what is the case of the other party and have gone for trial, the question of minute specific pleas does not arise. It is further contended by Mr. Ferreira that transfer of interest by licensor does not extinguish the license.
15. Relying upon the provisions of Rule 22 of Order 41 of the Civil Procedure Code (C.P.C.), the learned counsel for the defendants, submitted that defendants have right to state that the finding against them in the court below in respect of any issue ought to have been in their favour, even without filing cross-objection or cross-appeal. He pointed out that in terms of Rule 1 of Order 42 of C.P.C. the Rules under Order 41 apply to Second Appeals also. He then submitted that what is pleaded by the defendants is a prescriptive right and not a prescriptive title. He invited my attention to Article 535 of the Portuguese Civil Code which, according to him, lays down that 20 years of possession of land in good faith gives prescriptive right to that land. The learned counsel for the defendants argued that in the present case the sale deed of the plaintiff is of the year 1966 and it is an admitted fact that the defendants are in possession of the said plot upon which the cow-shed is situated since much prior to that. He therefore argued that by 1986, the period of 20 years of possession was undoubtedly completed and that the plaintiff had approached the Court in 1988 by giving notice of removal of cowshed in the year 1987. It is his contention, therefore, that the defendants have acquired prescriptive right to the said portion of land upon which the cow-shed is situated. He further contended that the First Appellate Court has wrongly discussed about adverse possession to knock the defendants out of prescriptive right. He further argued that since no action was taken for removal of cowshed till 01/11/1978 that is till the date of coming into force of the said Act in Goa, the prescriptive right of the defendants had crystallized in their favour and hence the provisions of the said Act will not take away that right. According to him, the said rights are saved by the said Act.
16. Learned counsel for the defendants further submitted that the plea of permissive use and irrevocability of license could be considered in the alternative and if the said Act is not applicable, then the principles of justice, equity and good conscience will always come to the aid of the defendants.
17. Mr. Ferreira, on behalf of the defendants, has relied upon following citations:
I) Dayaram and another Vs. Deorao and another [AIR 1926 Nag. 376]
II) Mathuri Vs. Bhola Nath and others [AIR 1934 Allahabad 517]
III) Raghubir Saran and ors Vs. Param Kirti Saran [AIR 1962 Allahabad 444]
IV) Postgraduate Institute of Medical Education and Research and anr. Vs. A. P. Wasan and ors. [(2003) 5 SCC 321]
V) Ravinder Kumar Sharma vs. State of Assam and others, [(1999) 7 SCC 435]
VI) Syndicate Bank Vs. Prabha D. Naik and anr. [(2001) 4 SCC 713]
18. I have gone through the entire material on record in the light of the arguments advanced by the learned counsel for both the parties and the citations relied upon.
Substantial question: (a)
19. In the memo of appeal filed by the plaintiff, before the First Appellate Court, ground No.VI was that the licence claimed to have been granted by either parties was the license granted prior to coming in force of the said Act and that the nature of such license and the laws relating to it are not at all controlled by the said Act and therefore Section 60 of the said Act, at no stretch of imagination, would be applicable to the license granted under the previous law. However, the First Appellate Court has not at all considered this submission of the plaintiff.
20. The said Act was extended to Goa, Daman and Diu on 1/11/1978 and admittedly the cowshed of the defendants has been existing in the said property since prior to 1966. In the case of "Mahadeo Tatu Naik" (supra), a suit for possession was filed by the respondent no.1 against the appellant and the respondent No.2, therein, on the grounds that there existed a house bearing Gram Panchayat No.74 situated at Vithalpur, Sanquelim. The land where the house was standing belonged to one Dattaram Vithoba Fatarpenkar and was purchased on 13th September, 1966 by the plainitff/respondent no.1. According to the said respondent, the father of the appellant was in possession of the said house as a licensee and although he was not entitled to let the house, he allowed the respondent No.2 to carry on works as a Mechanic in the said house. Therefore, the plaintiff/respondent No.1 had requested the appellant to deliver vacant possession of the house, but he failed to do so. The District Judge had held that the provisions of Article 2307, Civil Code, were attracted to the case and that, therefore, the principles of the said Act were not applicable. This court agreed with the said view of the District Judge. The learned Single Judge of this Court has held that in view existence of express corresponding provisions relating to licenses in Portuguese Civil Code, principles underlying the said Act could not be applied to case prior to extension of the said Act to this territory. The learned single Judge has further held that the decision of the Allahabad High Court in the case of "Mathuri" (Supra) is based on the circumstance that there was no provision corresponding to the said Act, applicable to the cases of licenses, before the coming of the said Act and therefore since the principles underlying Chapter VI of the Act are in consonance with justice, equity and good conscience, the same were to be applied.
It has been further held in the case of "Mahadeo Tatu Naik" (supra) that the situation was quite different in this Union Territory where there existed provisions in the Civil Code regulating the matter. It has been held that the judgment dated 2/1/1975, of the learned Additional Judicial Commissioner of Goa, Daman and Diu in Second Civil Appeal No.41 of 1973 based upon the case of "Mathuri" (supra), holding that though the said Act does not expressly apply to cases of licenses before the coming into force the said Act, however, the principles underlying Chapter VI of the said Act being in consonance with justice, equity and good conscience, may well be applied, is not good law. In the case of "Panchugopal Barua" (supra), licence was granted in 1963 for two years with permission to make temporary construction on the land but with the understanding to remove the construction and deliver khas possession of the land after two years. Licensee having failed to deliver possession after two years, suit was filed in 1966 for khas possession. Suit was decreed by the trial court and first appellate court. But in the second appeal, High Court took the view that the licensee had raised the structure of permanent nature on the land and that even though Easements Act was not applicable in State of Assam, Section 60(b) thereof was applicable on the principle of equity, justice and good conscience. The Apex Court held that the High Court erred in applying section 60(b) once it found that the Act itself was inapplicable to State of Assam.
The Apex Court further held that once it was found that the Easements Act had no application to the State of Assam, the question of "clearing the way for Section 60(b) of the Act to operate" cannot at all arise. It has been observed that the principles of justice, equity and good conscience on which Section 60(b) of the Easements Act rests may apply in the facts and circumstances of a given case but that is not to say that though the Easements Act does not apply, provisions of Section 60(b) of the Easements Act still operate. The Apex Court has further observed that since the legislature did not intend the Act to apply to Assam, The High Court could not have defeated that intendment by holding that "the defendant of the present case was protected by Section 60(b) of the Act." It is not permissible to extend the provisions of an Act, made not applicable by the legislature to a State, by a Judicial order as it amounts to enacting legislation by the High Court, a power not vested in the judiciary. In the present case, the licence was granted under the erstwhile Portuguese Law under which, to the knowledge of the parties to the licence, there was no provision of irrevocability. The question of bringing in the law of irrevocability of licence on the principles of justice, equity and good conscience, which goes to the prejudice of the plaintiff, does not arise.
21. Article 2307 of the Portuguese Civil Code provides that if works are done, crops raised or cultivations made in a land belonging to others, the owner of the land may demand that such cultivations, crops and works be removed and the land restored to its initial condition at the cost of the one who has raised the crop and done the works or the plantations, if such works, crops or cultivations are done in bad faith. Article 2307 further provides that the owner of the land, however, can keep for himself the works, crops or cultivations on payment of the value thereof to the owner of the works, crops and cultivations. Thus, where one occupies the land of another and executes works, raises crops or makes cultivations thereon in bad faith then the owner of the land can demand the removal of the same. Article 476 of the Civil Code provides that possession in good faith is the one which is preceded by title vices of which are not known to the possessor and possession in bad faith is the one which occurs in opposite hypothesis. Hence, possession to be in good faith should necessarily be preceded by title.
Relying upon the Judgment dated 24/6/1949, of the Supreme Court of Portugal, reported in "Boletim do Ministerio Justica, year 1949, No.13, 291", the learned Single Judge of this Court in the case of "Mahadeo Tatu Naik" (supra), has held that in a case where a person possesses a thing and his possession is not preceded by title, a presumption that such possession is in bad faith arises by virtue of Article 476 of the Civil Code, which presumption is rebuttable. Thus, unless rebutted, such possession is in bad faith. In the present case, the possession of the defendants is not preceded by title and the presumption under Article 476 has not been rebutted. Hence the same is in bad faith. The submission of the learned counsel for the defendants that the possession of the defendants is in good faith, has therefore no strength. The submission of the learned counsel for the defendants that the provision of Article 2307 applies to crops, cultivations and plantations and not to structures, has also no substance since the expression "works done" include the structures. In terms of Article 2307 of the Civil Code, therefore, the continuation of occupation of the land of the plaintiff by the defendants, in spite of the request in writing made by the plaintiff to the defendants to vacate the said portion of the land, is unlawful.
22. In view of the above, the lower courts were wrong in holding that the provisions of the said Act regarding revocability of license would be applicable to the license granted prior to the coming into force of the said Act, in Goa. Substantial question: (a) is answered, accordingly, in favour of the plaintiff.
Substantial question: (b)
23. It is the submission of the learned counsel for the plaintiff that there is no plea of permissive use of the cowshed and more particularly of irrevocability of licence, made by the defendants in their written statements and on the contrary the plea of the defendants was of prescriptive right hence the lower Courts could not have made out a new case for the defendants. In the case of "Sheodhari Rai" (supra), relied upon by the learned counsel for the plaintiff, it has been held that where the defendant in his written statement sets up title to the disputed lands as the nearest reversioner, the court cannot, on the failure of the defendant to prove his case, make out a new case for him which is not only made in the written statement but is wholly inconsistent with the title set up by the defendant, namely, that the defendant was holding under a shikmi settlement from the nearest reversioner. The submission of the plaintiff's counsel that that the defendants, in the present case, had not set up the case of permissive use, is not correct. The contention of the learned counsel for the plaintiff that in paragraph 3 of the Written Statement, the defendants have denied permissive use (license), is also not true. In paragraph 3 of the plaint, the plaintiff has averred that the elders of the defendants were permitted by the vendors in title of the property to construct the said cowshed. The defendants specifically pleaded in paragraph 3 of the written statement that the cowshed in question was constructed with the knowledge and consent of the predecessors in title of the vendors of the plaintiff. Therefore, there is a plea in the written statement relating to license. However, there is no specific plea in the written statement to the effect that the license is irrevocable.
In the case of "Iyyappan" (supra), there was no plea of license or its irrevocability, at all, raised and what was pleaded was the validity of the trust. It was for the first time in the appeal that the ground of Section 60 of the said Act was sought to be raised as an alternative plea. The Apex Court has held that it is not open to a party to change its case at appellate stage. In the case of "Ramesh Raghunath" (supra), the defendants, in their written statement, had denied that they were licensees and had specifically taken plea of ownership by adverse possession. It was because of the above that the appellants were held to have failed to prove that the license was irrevocable. As already stated above, in the present case, there is specific plea in the written statement that the cowshed was constructed with the knowledge and consent of the predecessors in title of the vendors of the plaintiff and that the plaintiff has no right and locus standi to submit that the permissive use is withdrawn. There is also a plea in the written statement that cowshed was constructed and the same was even repaired with the permission of the Margao Municipality. Hence, the facts of the present case are different from the facts of the cases of "Iyyappan" and "Ramesh Raghunath"(supra). In the case of "Ram Sarup Gupta (Dead) by L.RS. Vs. Bishun Narain Inter College and others", [AIR 1987 SC 1242], the Apex Court has held that when necessary pleadings were taken, though not in specific words, and parties were aware about the point in dispute and the parties had also led the evidence, merely because the plea of irrevocability was not taken in so many words, it is not sufficient to reject the case of licensee.
24. In the circumstance above, in my considered opinion, the absence of specific plea of irrevocability of license cannot preclude application of Section 60(2) of the said Act since such irrevocability is merely a consequence of law. Substantial question: (b), therefore gets answered in favour of the defendants. However that does not help the defendants since as already held above, the provisions of the said Act regarding the revocability of the license are not applicable to the present case and even principles underlying the said provisions cannot be applied on the ground of justice, equity and good conscience.
Substantial question: (c)
25. Learned counsel for the plaintiff submitted that the plea of prescriptive right is not only inconsistent with the plea of licence but both are mutually destructive pleas. He therefore contended that the lower courts ought not to have held that it was irrevocable licence since the case of the defendants was of prescriptive right. In the case of "Vimal Chand Ghevarchand Jain"(supra), relied upon by the learned counsel for the plaintiff, the difference between alternative and inconsistent pleas has been explained. It has been held that pleadings of the parties are required to be read as a whole and defendants are entitled to raise alternative and inconsistent pleas but are not permitted to raise pleas which are mutually destructive of each other. The reading of the written statement, as a whole, reveals that the defendants have pleaded that the cowshed was constructed with the consent and knowledge of the predecessors in title of the vendors of the plaintiff and that the plaintiff has no right and locus standi to say that the permissive use is withdrawn and that the defendants, being in peaceful, open and exclusive possession and enjoyment of the land covered by the cowshed for more than 100 years, have derived prescriptive right to the land. In my view, the above pleas are not mutually destructive of each other but the latter is flowing from the former. The substantive question: (c), therefore, is answered accordingly.
26. It is the submission of learned counsel for the defendants that in terms of Order 41 Rule 22 of C.P.C., though the defendants have not filed an Appeal challenging the finding of the First Appellate Court to the effect that the defendants have failed to prove that they have acquired title by adverse possession to the suit cowshed, however they can argue that the said finding against the defendants, ought to have been in favour of the defendants. In this regard, he has relied upon the case of "Postgraduate Institute of Medical Education and Research"(supra), wherein it has been held that filing a cross-objection against an adverse finding of a lower court is not obligatory and respondent could challenge such finding in his submissions to the appellate forum. As long as such challenge does not result in upsetting the relief granted, there can be no difficulty. In the case of "Ravinder Kumar Sharma" (supra), also relied upon by the learned counsel for the defendants, the Apex court has held that even without filing any appeal or cross-objections, the defendant-respondent can for the purpose of sustaining the impugned part of the decree, attack the findings on which the part of the decree passed against him was based. Learned counsel for the defendants contended that what the defendants have claimed is prescriptive right and not prescriptive title. He relied upon Article 535 of the Portuguese Civil Code which reads as under:
"Section III Negative Prescription:
Article 535 - Whoever has assumed an obligation to do for, or to do something to another, stands relieved of the obligation, if its performance is not demanded for a period of 20 years, and the obligant stands in good faith, at the end of the prescription period, or when the performance is not demanded for a period of 30 years, regardless of good faith or bad faith, except where special prescriptions are provided in law."
27. Mr. Ferreira, learned counsel, for the defendants, submitted that the plaintiff purchased the property by sale deed dated 29/12/1966 and admittedly the cowshed has been in existence since prior to that which means that period of 20 years was completed even prior to 1986. He further pointed out that notice of eviction was given in 1987 and the suit was filed in 1988 due to which 20 years in good faith passed of and the defendants have acquired prescriptive right. In this regard the learned counsel has relied upon "Syndicate Bank" (supra). However as has been rightly contended by Mr. Usgaonkar, learned counsel for the plaintiff, possession in good faith is that which is preceded by title. Section 535 of the Portuguese Civil Code pertains to contractual obligations and the question involved in the case of "Syndicate Bank" (supra) was of limitation. The Apex court, in paragraph 23 thereof, has observed thus:
"At the cost of repetition we say that while implied repeal is not to be readily inferred but in the contextual facts, upon scrutiny, we cannot but hold that in the wake of the factum of the Limitation Act coming into existence from 1.1.1964, Article 535 of the Portuguese Civil Code cannot but be termed to be impliedly repealed and it is on this score that the decision of this Court in Justiniano case stands overruled."
28. Article 535 of the Portuguese Civil Code cannot therefore be applied to the case at hand. It is seen from the written statement of the defendants as well as deposition of D.W. 1 that the claim of the defendants was that the cowshed was put in the land of J. Castel with his consent and is existing since last 100 years and as such they have derived prescriptive right to the said land wherein their cowshed is existing. By Judgment dated 26th September, 2011, in second Appeals No.19/07, 20/07, and 68/07 (Shri Conceicao Quadros, since deceased through L.Rs Vs. Shri Salvador Quadros), the learned Single Judge of this Court has held that the provision contained in Article 474 of the Portuguese Civil Code, itself stipulates that permissive possession cannot be termed to be possession in law. It has been further held that once the Appellant admitted in the pleadings that he was allowed to occupy the suit property by the said Philip Quadros, such permissive possession cannot be considered to be possession which would create any right in favour of the Appellants in prescription. Article 474 of the Civil Code provides as under:
"Possession is the retention or fruition of a thing or a right.
Para One - Permissive acts or acts out of tolerance do not constitute possession.
Para 2nd - The possession continues when the retention or fruition of the thing or the right lasts or the possibilities of its continuation lasts."
Article 510 of the Portuguese Civil Code provides as under:
"One who possesses a thing in another's name cannot acquire it by prescription except if the title of possession has been inverted, either due to an act of a third party, or by objection raised by the possessor to the right of the other in whose name he was possessing it and not refuted by the latter; but in such event the prescription shall run from the date of inversion of the title.
Sole para; The title is said to be inverted when it is substituted by another title capable of transferring the possession or ownership."
29. From the above, it is clear that when the use of the land is permissive, prescription does not operate unless there is inversion of title. In the present case, there is no inversion of title in favour of the defendants, which would create any right of prescription in their favour.
30. In case the prescription is claimed by way of adverse possession, then there is nothing on record to show that the defendants had asserted hostile title against the plaintiff or his predecessors in title.
Therefore, the case of prescription also falls flat.
Substantive question:(d)
31. The Trial Court had negatived the claim of permissive use of the property but had on its own held that even assuming that the construction of the cowshed was done with the permission of the predecessor in title of the plaintiff and that the cowshed was constructed under the license granted to the defendants for carrying out some repairs, which are of permanent nature, the same becomes irrevocable license by virtue of Section 60(b) of the said Act. The Trial Court further held that the defendants have proved that they have derived prescriptive right to the land occupied by the cowshed. The First Appellate Court, however, on the other hand, negatived the plea of prescriptive right taken by the defendants, but held that the use of plaintiff's property by the defendants was by way of license and that the said license was irrevocable. Therefore, the First Appellate Court has considered the Trial Court's finding recorded on mere assumption as the finding of fact, which could not have been done. The substantive question: (d), therefore gets answered in favour of the plaintiff.
32. In the result, the judgments of the Courts below, under the circumstances, cannot be sustained. The plaintiff's suit should have been partly decreed. This second appeal is bound to succeed and thus is partly allowed. The judgments and decrees of the lower courts are quashed and set aside. The Regular Suit No.6/88 is partly decreed insofar as the prayer (a) is concerned. The defendants shall remove the portion of the cowshed from the property of the plaintiff, within a period of three months from today. No order as to costs.