Defendants claiming adverse possession must prove such claims with clear evidence, as the burden lies with them, and mere long possession does not equate to ownership.

JUDGEMENT :

FIRDOSH P. POONIWALLA, J.

1. The present Appeal is filed against the Judgement and Decree dated 29th September, 2010 passed by the Bombay City Civil Court in L.C. Suit No.1561 of 2006 whereby the Appellant’s suit was dismissed as being barred by limitation under Article 65 of the LIMITATION ACT , 1963.

2. In this Judgement, the nomenclature of the parties will be as per their nomenclature in the Suit.

3. Before we consider the arguments of the Plaintiffs, it would be appropriate to refer to the facts in this case.

4. The Plaintiffs claim to be the absolute owner of and/or sufficiently entitled to the land bearing Survey No.44, Hissa No.4, corresponding to CTS No. 468, of Village Chakala, Taluka Andheri, M.S.D., admeasuring 268 sq. metres and bearing the address as Andheri-Ghatkopar Link Road, Chakala, Andheri (East) Mumbai 40093 (hereinafter referred to as ‘the suit land’).

5. It is the case of the Plaintiffs that the Defendants had, on or about 1990, illegally encroached and trespassed over the suit land and constructed an illegal structure which was originally 10 x 25 feet. In the year 1998, the Public Works Department physically acquired part of the suit land admeasuring 100 sq. metres for the purposes of the proposed Andheri- Ghatlopar Link Road. On account of the said acquisition, part of the original premises was demolished and in lieu thereof the Defendants were provided with one shop and one flat as alternative accommodation. The Defendants accepted the said alternative accommodation and yet not only continued encroachment over the suit land by means of retaining the remainder of the illegal structure erected thereon but also carried out illegal extensions to the remaining structure by extending the rear and side walls.

6. The Mumbai Metropolitan Region Development Authority, under the Mumbai Urban Infrastructure Project commenced in the year 2002 – 2003, decided to realign the said Andheri-Ghatkopar Link Road and widen it to 150 feet, on account of which further portion of the suit land was required to be acquired. The illegal structure of the Defendants which was existing on the suit land was further demolished and reduced to 14’ – 3” x 13’ – 6” and in lieu of the demolition of the said structure of the Defendants, MMRDA once again allotted one shop and two flats to the Defendants.

7. It is the case of the Plaintiffs that, despite being allotted three flats and two shops in lieu of their patently illegal structure, pursuant to the rehabilitation policies of the authorities, the Defendants continued their encroachment and unauthorized presence on the suit land by means of occupying the said structure now admeasuring 14’ – 3” x 13’ – 6”. The Plaintiffs made a grievance in this regard to the authority vide letter dated29^th March 2006.

8. It is further the case of the Plaintiffs that they made repeated demands on the Defendants to vacate the suit land, more particularly since they had been provided more then adequate alternative accommodation. The Defendants further adopted a defiant stand and on 14^th March, 2006 categorically informed the Plaintiffs that they would not only remove the illegal structure now existing on the suit land but would aggravate the act of encroachment by constructing vertical and horizontal extensions to the said existing structure and thereby occupy all the open area of the suit land now in existence. It is in this circumstances that the Plaintiffs filed the present Suit seeking the following