Court emphasizes that possession by relative with permission does not amount to adverse possession; suit for possession remains within limitation despite imperfect property description.
In a significant judgment delivered on October 21, 2026, the Bombay High Court dismissed the second appeal filed by Shri Chandrahas Jethalal Patel and others, thereby affirming the decision of the lower courts that decreed possession in favor of Smt. Nirmalaben Shambhuprasad Patel and others. The case concerned an encroachment dispute over a property situated at Village Mohone, Taluka Kalyan, District Thane, bearing Survey No.1, Hissa No.3/3/C.
The background reveals that the plaintiffs acquired the suit property through registered sale deeds in 1947-48 and a partition deed in 1949. The property was managed by the plaintiffs' family members, including Smt. Maniben Jethalal Patel, who was the sister of the original owner Mr. Shambhuprasad Patel. After her husband's death in 1951, Maniben moved to Mohone and resided on an adjoining plot. Plaintiffs alleged that Maniben, taking advantage of the familial trust, constructed a one-storey structure encroaching upon their property without their consent.
Defendants contested the suit by claiming title through adverse possession, asserting that the structure was erected in 1962 with the plaintiffs' knowledge. They also challenged the suit's maintainability on grounds of improper property description and limitation.
The Trial Court and the First Appellate Court both rejected the defense of adverse possession, holding that Maniben's possession was permissive since it originated from familial permission. The courts ruled that a permissive user cannot claim settled possession adverse to the true owner's title. Furthermore, the courts found the suit property sufficiently described by survey and chalta numbers, boundaries, and an official survey map, noting that defects in description are curable even at the execution stage under CPC Sections 47 and 152. The suit was also held to be within the prescribed limitation period under Article 65 of the Limitation Act, 1963, since limitation does not run against the true owner while possession remains permissive.
The High Court, presided over by Mr. Justice Sandeep V. Marne, reiterated the principles underlying adverse possession, referencing landmark Supreme Court decisions including Maria Margadia Sequeria Fernandes v. Erasmo Jack De Sequeria (2012) and Ravinder Kaur Grewal v. Manjit Kaur (2019). The Court emphasized that adverse possession requires possession to be continuous, open and hostile (nec-vi, nec-clam, nec-precario), and that permissive occupation cannot ripen into title by prescription. By raising adverse possession, defendants effectively admitted the plaintiff's title and the existence of encroachment, narrowing factual controversies.
Regarding the suit's maintainability, the Court held that the description of the suit property by survey numbers, boundaries, and survey maps sufficed to identify the encroached land. It dismissed the belated objection to imperfect description, noting the defect was curable and did not affect the merits.
On limitation, the Court held that knowledge of possession by a permissive user does not trigger the limitation period under Article 65. Since the defendants' possession was permissive, the limitation clock had not started against the plaintiffs. Hence, the suit filed in 1997 was within limitation.
Consequently, the High Court dismissed the appeal with costs, affirming the decree directing the defendants to remove encroachments and deliver vacant possession to the plaintiffs.
This judgment reinforces the settled legal position that permissive users, including relatives residing with permission, cannot claim adverse possession and that suits for possession based on title remain maintainable despite technical defects in property description, which are curable under procedural law. It also underscores the importance of the limitation principle that the period runs only when possession becomes adverse and hostile.
Bottom Line:
Adverse possession cannot be claimed by a permissive user; by pleading adverse possession, defendants admit the true owner's title and the fact of encroachment. A suit for possession/removal of encroachment is not liable to fail for imperfect property description when encroachment is otherwise identifiable and such defect is curable even at execution stage. Limitation under Article 65 does not begin against the true owner so long as possession remains permissive.
Statutory provision(s):
Code of Civil Procedure, 1908 - Order VII Rule 3, Order XX Rule 3, Sections 47 and 152;
Limitation Act, 1963 - Article 65
Chandrahas Jethalal Patel v. Nirmalaben Shambhuprasad Patel, (Bombay) : Law Finder Doc Id # 3000319
