In suits governed by Article 65 of the Limitation Act, 1963, the burden is on the defendant to prove adverse possession, and the plaintiff needs to establish title and possession. The legal position under the old Act and the 1963 Limitation Act has changed, shifting the burden of proof.

JUDGMENT

M. S. Sonak, J. - Heard Mr. J. E. Coelho Pereira, learned Senior Advocate with Mr. B. Fernandes for the Appellants and Mr. Sudesh Usgaonkar with Ms. A. Pereira learned counsel for the Respondents.

2. This Second Appeal was admitted on 31st March 2009 on the following substantial question of law.

"Whether the Courts below fell in error in holding that the suit was barred by limitation and that Article 65 of the Limitation Act applies ?"

3. The Appellants are the original Plaintiffs and the Respondents are the original Defendants in Regular Civil Suit No.11/2006/D instituted in the Court of the Civil Judge Junior Division, Vasco, seeking inter alia the reliefs of restoration of possession, permanent and mandatory injunction.

4. By the judgment and decree dated 25th September 2007, the learned Civil Judge Junior Division, Vasco, (Trial Court) partly decreed the suit. However, the relief of restoration of possession of the suit property by demolishing the construction put up by the Defendants therein was denied.

5. The Plaintiffs, appealed to the District Court (First Appellate Court), which has dismissed the appeal vide judgment and decree dated 18th February 2008. Hence, the present Second Appeal on the aforesaid substantial question of law.

6. Mr. Coelho Pereira, learned Senior Advocate for the Appellants submits that the Plaintiffs' suit was clearly and substantially seeking the restoration of possession based upon the title of the Plaintiffs. He, therefore, submits that in terms of Article 65 in the Schedule to the Limitation Act, 1963 ( the said Act ) the suit was not barred by the limitation prescribed therein. He submits that the two Courts erred in adverting to residuary provisions under Article 113 of the Schedule and non-suit the Plaintiffs on the ground that the suit was instituted beyond the period of three years from the date of accrual of the cause of action.

7. Mr. Pereira submits that though the Defendants had pleaded that they had put up the constructions on the property of the Plaintiffs somewhere in the year 1962 with the permission of the predecessor in title of the Plaintiffs, there was no proof whatsoever adduced by the Defendants in support of such pleadings. He pointed out that the two Courts have recorded the finding of fact that the Defendants encroached upon the portion of the suit property sometime in the year 2000. Therefore, in terms of Article 65 of the Schedule to the said Act, the suit which was filed well within 12 years from the date of accrual of the cause of action could not be said to have been barred by the law of limitation.

8. Mr. Pereira submits that the First Appellate Court completely misdirected itself in adverting to the aspect of alleged non- executability of the decree or holding that the burden lay on the Plaintiffs to establish when user portion of possession by the Defendants became adverse or hostile. He submits that such reasoning is contrary to the law laid down by the Hon'ble Supreme Court in C. Natrajan Vs Ashim Bai and another, (2007) 14 SCC 183, MD. Mohammad Ali Vs Jagadish Kalita and others, (2004) 1 SCC 271 and Sant Lal Jain Vs Avtar Singh, (1985) AIR SC 857.

9. For all these reasons, Mr. Pereira submits that this appeal may be allowed and the Plaintiffs' suit be decreed in its entirety.

10. Mr. Sudesh Usgaonkar, learned counsel for the Respondents submitted that the substantive relief applied for by the Plaintiffs was that of mandatory injunction to demolish the construction put up by the Defendants on the property of the Plaintiffs. He submits that the Defendants are mundkars in respect of the construction put up and consequently, the possession of the suit property continues to vest with the Plaintiffs. He submits that this was not a case for recovery or restoration of possession but this was a case where the Plaintiffs were seeking a decree of mandatory injunction to demolish the construction put up by the Defendants way back in the year 1962. He, therefore, submits t