JUDGMENT

GOSWAMI, J:— The appellants in this appeal by special leave, Jose da Costa and his wife, Isabela Braganca are the defendants and the respondents, Bascora Sadashiva Sinai Narcornim and his wife, Durgabai Narcornim, are the plaintiffs in the original suit.

2. The plaintiffs instituted a suit in the court of Judge of Quempem Comarca on February 27, 1961, in accordance with the Portuguese Law then in force in those territorities for ejectment of the defendants from the suit property. It was alleged that on the death of Sadasiva, father of the plaintiff, Bascora, in partition proceedings with minors (inventario), this plot was assigned to Bascoras mother, Sitabia, towards her moiety in the estate. On Sitabais death, the property devolved on the plaintiffs, Bascora and his six sisters. Before the partition of the property among the legal heirs of Sitabai, Bascora acquired the rights from some of his sisters and became the owner of the suit property with other heirs. Bascoras parents had inherited this property from their ancestors. The father of Bascora had permitted the ancestors of the defendants to build a house for their residence on a part of the property subject to the condition that they shall have to vacate the plot when called upon to do so. In the latter event, they shall be entitled to remove the super-structures of the building raised by them.

3. Even so, the plaint goes on to say that Caetana Esperanca Fernandes, the mother of the appellant. Jose da Costa, executed a deed on November 16, 1920, before the notary public of Comarca, which indicated that she and her family members were owners of the plot. On the basis of this deed, the defendants asserted ownership of that part of the plot on which stands the house built by their ancestors and now in their occupation.

4. On the above allegations, the plaintiffs prayed for a declaration that the plaintiff, Bascora, and the other heirs of his mother, Sitabai, are, the only owners of the plot in dispute and that the house in the occupation of the defendants on a part of that plot was constructed in the circumstances and subject to the terms mentioned in the plaint. They further prayed that the defendants be directed to vacate the plot after removing the materials of their house.

5. The defendants denied the allegations and pleaded that it was Visnum Bascora Sinai Narcornim, an ancestor of the plaintiffs, who had given the suit property on perpetual lease to Pascoal da Costa, an ancestor of the defendants in the year 1875 at an annual rent of Rs. 2/4/-. It was stated further that no such rent has been paid for over forty years before the suit nor has any rent ever been claimed by the family of the plaintiffs for such a long time. It was Pascoal da Costa who possessed the plot as his own and originally built one house on it, but subsequently his descendants constructed more houses so that at present there are three houses and one stable on the plot in dispute. On Pascoal da Costas death, in inventaria proceedings, this property on November 16, 1920, was "consolidated in full ownership in the patrimony of the descendants of the said Pascoal da Costa."

6. The defendants further aver in their written statement that the suit property has been in their "open, peaceful and continuous" possession including that of their predecessors-in-interest. as owners for a period of more than 50 years and that they have acquired title by prescription.

7. The trial Court decreed the suit on April 30 1966, directing the defendants to remove their superstructures on the land or in the alternative to receive from the plaintiffs Rs. 1084/- which was found to be the value of the material of the house in question as per estimate of the experts appointed for the purpose. On appeal the learned Additional Judicial Commissioner dismissed the same on January 20, 1968, and affirmed the decree of the trial Court. The defendants came to this Court by special leave against the judgment of the Additional Judici