Bombay High Court
-4] Shailabai Madhukar Chaudhari vs 5] Kamalabai on 27 October, 2010
Bench: S.V. Gangapurwala
1
S.A.No. 1435 of 2005
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
SECOND APPEAL No. 1435 OF 2005
Shri Khandu Shankar Choudhari
Through since died his L.Rs.
1-1] Vimlabai Khandu Chaudhari
Age 65 yrs, Occu. Household,
1-2] Magan Khandu Chaudhari,
Age 45 yrs, Occu. Agril
1-3] Vasant Khandu Chaoudhari
Age 36 yrs, Occu. Agril,
All R/o Dhanora Bazar Lane
Tq. & Dist. Nandurbar
1-4] Shailabai Madhukar Chaudhari,
Age 40 yrs, Occu. Labour,
R/o taloda Shani Lane,
Dist. Nandurbar .. APPELLANTS
VERSUS
1] Shri Yeshwant Dhaku Khatri,
Age 60 years, Occu. Service,
R/o Bhopal (M.P.)
2] Vasudeo Dhaku Patil,
Age 73 years, occu. Nil
since deceased through L.Rs.
2-A] Bhaskar Vasudeo Daneje
Age Adult, Occu. Business,
Deleted as per order of
Hon'ble Court dated 28-03-2009 and
29-04-2009.
2-B] Gotya Vasudeo Daneje,
::: Downloaded on - 09/06/2013 16:35:02 :::
2
S.A.No. 1435 of 2005
Age Adult, Occu. Business,
R/o Surat (Gujrath)
Place Khatodara Colony
Near Hinglaj Temple,
Surat
Deleted as per order of
Hon'ble Court dated 28-03-2009 and
29-04-2009.
3] Dhaudibai @ Dhudkibai W/o
Tulshiram Choudhari,
Age 61 years, Occu. Household
R/o Khetiya Tq. Sendhwa (M.P.)
4] Dhanabai W/o Makkan Chaudhari
Age 55 years, Occu. Household,
R/o Khetiya, Tq. Sendhwa (M.P.)
Deleted as per order of
Hon'ble Court dated 28-03-2009 and
29-04-2009.
5] Kamalabai W/o Santosh Choudhari,
Age 35 years, Occu. Household,
R/o Nandurbar,
Dist. Nandurbar ...RESPONDENTS
...
Shri A.S. Abhyankar, Advocate for appellants
Shri S.K. Shinde , Advocate for the respondent
No. 1
Shri A.R. Kale, for respondent Nos. 3 & 5.
CORAM : S.V. GANGAPURWALA, J.
Date of Judgment : 27th October,2010
JUDGMENT :
S.A.No. 1435 of 2005
The present respondent No. 1/Ori.
Plaintiff instituted Regular Civil Suit No. 85 of
1972 against the present appellant and the
respondent No. 2 for possession of land bearing
Survey No. 261 at Village Dhanora. The possession
was sought from the defendant No. 1 i.e. the
present appellant by the plaintiff on the basis
of title. The Trial Court decreed the suit of the
plaintiff
ig i.e. present respondent No. 1,
directing the legal representatives of the
deceased defendant No. 1 to hand over the
possession of the suit field to the plaintiff,
and also pay damages of Rs. 1,500/- One of the
legal representative of original defendant No. 1
Khandu preferred Regular Civil Appeal bearing No.
229 of 1990 before the District Court, Nandurbar.
The Adhoc Additional District Judge, Nandurbar
dismissed the said appeal. It also allowed the
cross objection filed by the plaintiff regarding
separate inquiry for future mesne profit. The
Khandu preferred the present Second Appeal
against the afore said Judgments.
S.A.No. 1435 of 2005
2. The Second Appeal has been admitted on
following substantial question of law :-
"A] Whether the District Court
committed error in not appreciating
the question of limitation in
proper perspective and holding that
the suit is not barred by
limitation?
3. Shri A.S. Abhyankar, learned Counsel
for the appellant with all his persuasive
skills canvassed following propositions :-
i] The suit would be governed by Article
64 of the Indian Limitation Act, 1963, and as per
Section 3 of the Indian Limitation Act,the Courts
were duty bound to address on the said aspect of
limitation. For the said purpose he relied on the
Judgment of the Apex Court in a case of "
Rajender Singh & others V/s. Santa Singh and
others, reported in 1974 Mh.L.J. 1".
ii] The plaintiff had revoked the authority
of the defendant No. 2 in the year 1959 and still
the defendant No. 2 continued in possession. The
S.A.No. 1435 of 2005
defendant No. 1 was inducted in possession by the
defendant No. 2 and the possession of defendant
No. 2 shall be tagged /tacked with the possession
of the defendant No. 1, and the suit filed in the
year 1972,is barred by limitation. The learned
Counsel relied on the Judgment in a case of "
Gurubinder Singh and another V/s. Lal Singh and
another, reported in AIR 1965 SC 1553".
iii] Even if the suit is shown to have
been based on title, still if it is shown that
the plaintiff was dispossessed prior to 12 years
of the filing of the suit, then still Article 64
can be invoked, and for the said purpose, the
learned Counsel relied on the Judgment of the
Apex Court in a case of " Ramaiah V/s. N Narayana
Reddy (dead) by L.Rs., reported in AIR 2004 SC,
4261", an unreported Judgment of learned Single
Judge of this Court in Appeal No. 740 of 1971
decided on 23rd November, 1977, and the Judgment
of the Apex Court in a case of "Nair Service
Society Ltd., V/s. K.C. Alexander and others,
reported in AIR 1968 SC, 1165"
S.A.No. 1435 of 2005
iv] The defendant No. 2 was acting adverse
to the interest of the plaintiff, at least since
1958 which can be seen from the Judgment of the
Revenue Tribunal in the proceedings between one
Dawaji and defendant No. 2 in respect of the suit
property, wherein Dawaji had claimed that he was
inducted by the present defendant No. 2. The said
Judgment would be relevant and would be
admissible, even though plaintiff was not party
in the said proceedings, for the said purpose,
learned Counsel relied on the Judgment of the
Apex Court in a case of " Tirumala Tirupati
Devasthanams V/s. K.M. Krishnaiah, reported in
AIR, 1998, SC, 1132".
v] Though the amendment application was
rejected by the lower appellate court,
introducing plea of limitation. The same was
challenged by filing writ petition which was
withdrawn, but the High Court in the said order
had allowed the present appellant to agitate the
point of limitation in arguments and the same is
required to be considered in Second Appeal.
S.A.No. 1435 of 2005
vi] The plaintiff glossed over the earlier
proceedings. The issue of tenancy was referred to
the tenancy Court. The Tenancy Court negatived
the case of defendant that they were tenants.
The same was challenged before the High Court,
and the High Court vide its Judgment in Writ
Petition 65 of 1985 decided on 05th March, 1986
had held that the defendant No. 2 was a
trespasser
igand taking advantage of plaintiffs
absence from Nandurbar, he kept on doing acts
destructive of plaintiff's right title and
interest over the land, with such a finding no
evidence is required to show that the acts of
defendant No. 2 were hostile to the ownership
rights of the plaintiff at least from 1958 and
the suit filed in the year 1972 is barred by
limitation.
vii] As the suit was not brought within 12
years as per Article 64 of the Indian Limitation
Act, the right of the plaintiff in the property
itself stands extinguished as per Section 27 of
the Indian Limitation Act, 1963, and the suit
itself was not maintainable. As such, no question
S.A.No. 1435 of 2005
arises of going to the pleadings of the parties
also.
4. Per contra, Shri Shinde learned Counsel
for the respondent No. 1/ Original plaintiff
strenuously contended that both the defendants
pleaded that they are in permissive possession,
both the defendants claimed tenancy rights and
they had
ig never claimed adverse possession,
pleadings of the parties would govern the
applicability of the relevant provision governing
limitation. The pleadings show that they were in
permissive possession, as such no question arises
of applicability of Article 64 of the Indian
Limitation Act, 1963. The learned Counsel further
contended that the suit of the plaintiff being
based on title, the same would be governed by
Article 65 and as adverse possession is not
claimed by the parties no question arises of suit
being barred by law of Limitation. The learned
Counsel relied on the un-reported Judgment of the
learned Single Judge of this Court in Second
Appeal No. 1498 of 2005 decided on 14th August,
2008.
S.A.No. 1435 of 2005
5. I have heard learned Counsel for the
respective parties extensively on the substantial
question of law framed by this Court, while
admitting the appeal. Before proceeding to deal
with their arguments,it would be appropriate to
reproduce the relevant provisions of Limitation
Act, 1963, necessary to adjudicate the
controversy.
Date of suit Period of Time from which
limitatio period begins
n to run
64. For possession of Twelve The date of
immovable property years dispossession.
based on previous
possession and not on
title, when the
plaintiff while in
possession of the
property has been
dispossessed.
65. For possession Twelve When the
of immovable property years possession of
or any interest the defendant
therein based on becomes adverse
title. to the
plaintiff.
Explanation- For the
purposes of this
Article -
(a) Where the
suit is by a
remainderman, a
reversioner (other
than a landlord)
S.A.No. 1435 of 2005
or a devisee, the
possession of the
defendant shall be
deemed to income
adverse only when
the estate of the
remainderman,
reversioner or
devisee, as the
case may be falls
into possession;
(b) Where the
suit is by a Hindu
or Muslim entitled
to the possession
of
property
immovable
on
death of a Hindu
the
or Muslim female,
the possession of
the defendant
shall be deemed to
become adverse
only when the
female dies;
(c) Where the
suit is by a
purchaser at a
sale in execution
of a decree when
the Judgment-
debtor was out of
possession at the
date of the sale,
the purchaser
shall be deemed to
be a resentative
of the judgment-
debtor who was out
of possession.
" Section 27 :- Extinguishment of right
to property -
S.A.No. 1435 of 2005
At the determination of the period
hereby limited to any person for
instituting a suit for possession of
any property, his right to such
property shall be extinguished."
6. It would be also necessary to refer to
the pleadings of the parties which are in
vernacular language i.e. Marathi. The said
pleadings are reproduced in English by the Court
below. The same can be culled out as under :-
Pleadings of plaintiff /respondent No.
1 :
"i] It is the case of respondent No. 1/ Ori
plaintiff that the land Sr.No. 261, situated at
Dhanore, admeasuring 13 Acres 23 Gunthas, is
owned by him,thus land was being cultivated by
respondent No. 1 personally. However, as
respondent No. 1 was residing at a long distance,
he instructed his elder brother i.e. original
defendant No. 2 to supervise his land. As
original defendant No. 2 was not giving proper
accounts to the respondent No. 1, he instructed
the original defendant No. 2 to stop supervising
the suit property.
ii] As plaintiff is in service and is
residing at a long distance, he is unable to come
at village Dhanore repeatedly. By taking
S.A.No. 1435 of 2005
disadvantage of this facts, the original
defendant No. 1 had cultivated the suit land
unauthorisedly since 1966-67. Therefore,
plaintiff issued a notice dated 28.23.1992 to
original defendant No. 1, she gave a false reply
to that notice alleging that she had given Rs.
4,000/- to original defendant No. 2.
iii] Respondent No. 1/ plaintiff had never
empowered original defendant No. 2 to assign his
land forig cultivation to any other person.
Respondent No. 1 has not received any amount from
the original defendant NO. 2. So also, he is not
having any knowledge about the so called
transaction taken place, in between original
defendant Nos. 1 & 2.
iv] Inspite of giving notice to the
original deceased defendant No. 1, she had not
delivered possession of the suit property to
respondent No. 1. Therefore, respondent No. 1 is
constrained to file suit for possession against
her. As original deceased defendant NO. 1 alleged
that she had given an amount of Rs. 4,000/- to
original defendant NO. 2, defendant No. 2 is
added as party to the suit.
v] The suit land is of good quality. The
income more than Rs. 1,000/- P.A. can be fetched
from it. The original deceased defendant No. 1 is
cultivating the suit land illegally and,
therefore, respondent No. 1 claimed past mesne
S.A.No. 1435 of 2005
profits @ of Rs. 500/- P.A. for preceding three
years from filing of the suit. He also prayed for
possession of the suit property as an owner from
deceased defendant No. 1, alongwith future mesne
profits.
Pleadings of Defendant No. 1/ Appellant
vi] Deceased defendant NO. 1 resisted the
suit by filing her written statement Exh. 21, she
admitted igthat the suit property is owned by
respondent No.1. She further alleged that on
account of service, respondent No. 1 is residing
at different stations. Therefore, defendant NO. 2
is looking after the suit property, as power of
attorney of respondent No. 1.
vii] The original defendant No. 2 obtained
an amount of Rs. 2,000/- from her in the year
1964 and again an amount of Rs. 2,000/- in the
year 1965, on behalf of respondent No. 1. That
amount was obtained by defendant No. 1 for making
the payment of "Vihir Tagai" and also for another
purposes. In lieu of that amount, defendant No. 2
gave this suit property to the possession of
deceased defendant No. 1 in the year 1964-65. It
was agreed in between them that there will be no
interest to the amount, so also there will be no
rent of that agricultural land. Defendant NO. 2
had executed two separate agreements dated
14-5-1964 and 14-04-1965 while giving the suit
land in her possession.
S.A.No. 1435 of 2005
viii] It is her further case that her son
received the notice of Assistant Gram Sevak,
Dhanore. He inquired about the cultivation of
the suit property. After completion of that
inquiry, her name is recorded in the possession
column of 7/12 extract, since 1966-67. Therefore,
unless and until, the respondent No. 1 is not
paying Rs. 4,000/- to her, she is entitled to
cultivate the suit property. Consequently,
respondent NO. 1 is not entitled for possession
of the suit property.
ix] It is her alternative contention that as per
Bombay Tenancy and Agriculture Lands Act, she is
a tenant of suit property. In order to have
finding on this point, she prayed for making
reference to Tenancy Tahasildar. On the basis of
this pleading, she further averred that Civil
Court is not having jurisdiction to pass a decree
for possession of the suit land.
x] The transaction between defendant Nos.
1 & 2, has taken place with the consent of
respondent No. 1. Therefore, those transactions
are binding upon respondent No. 1. After giving
notice by respondent NO. 1, she gave its reply.
Thereafter, respondent NO. 1 started R.T.S.
Proceeding NO. 18/1972 and it is pending.
xi] Respondent No. 1 and original defendant
NO. 2 both are real brothers. Both of them, by
S.A.No. 1435 of 2005
collusion, have filed this false suit, with
intention to grab Rs. 4,000/- of deceased
defendant No. 1 or to snatch away her right to
possess the suit property as tenant. Therefore,
prayed for dismissal of the suit.
Pleadings of Defendant No. 2/
Respondent No. 2 :-
xii] Defendant NO. 2 resisted the suit by
filing his written statement at Exh. 14. This
defendant also admitted the title of respondent
No. 1. It is his case that the suit property is
being cultivated by him since long back.
Therefore, he is a tenant of the suit land. Civil
Court is not having jurisdiction to pass a decree
for possession, in favour of landlord from the
tenant. He further averred that as a tenant, he
is cultivating the suit land by engaging deceased
defendant NO. 1 as a labour. She is not having
any concern or interest in the suit property.
Even if it is revealed that the suit property is
given in possession of deceased defendant No. 1,
then at the most, it can be said that he has sub-
let agriculture land in her favour for
cultivation. In such circumstances, the present
suit is not tenable in the Civil Court.
xiii] He further averred that income of
Rs. 1,000/- P.A. cannot be fetched from the suit
property. At the most, after deduction of
S.A.No. 1435 of 2005
expenses Rs. 150/- to 200/- will be earned yearly
from the suit property. He further averred that
the deceased defendant No. 1 had taken the income
from the suit property for last three years,
prior filing of the suit. Therefore, he prayed
for dismissal of the entire suit."
7. In appeal the defendant No. 1/ present
appellant preferred amendment application,
thereby ig sought to introduce the plea of
limitation. Vide the said amendment application
the appellant tried to contend in alternative
that the High Court in Writ Petition No. 65 of
1985 in the proceedings arising out of Tenancy
Reference had given a finding that since, 1959
the possession of the defendant is adverse, as
such in the year 1972, the plaintiff's ownership
rights stand extinguished as the said finding
operates as res-judicata.
8. Though the application for amendment
was rejected, in Writ Petition filed against the
same the High Court had allowed the appellant to
agitate the point of limitation. The Second
Appeal is admitted on the question of limitation
itself and same is required to be adjudicated.
S.A.No. 1435 of 2005
9. Under the present Limitation Act, 1963,
all suits for possession of immovable property
have been brought under two categories namely :-
1] Suits based on the right to claim
possession based on previous possession and
not on proprietary title and
2]
The suits based on proprietary title.
The first class of suits will attract
Article 64 and the suits based on title will be
governed by Article 65 and the time would begin
to run when the possession of defendants becomes
adverse.
10. The suit under Article 64 must be
brought within 12 years from the date of
dispossession. As such, for applicability of
Article 64 of the Limitation Act, the prima donna
requirement is that the plaintiff should be
dispossessed, or should discontinue possession.
The expression "dispossession" applies when a
person comes in and drives out another from
S.A.No. 1435 of 2005
possession. It imports ouster, i.e. driving out
of possession against the will of a person in
actual possession. This driving out cannot take
place when the transfer of possession was
voluntary i.e. to say not against the will of
person in possession, but in accordance with his
wishes and active consent. Dispossession implies
some amount of force or fraud. As such, unless it
is shown that the plaintiff was dispossessed by
force or by fraud. Article 64 of the Limitation
Act would not be applicable. If the plaintiff on
his own volition and voluntarily handed over his
property, that would not come within the ambit
and purview of the expression "dispossession"
interalia Article 64 would not be applicable in
such a case.
11. In the present case, undisputedly,
plaintiff who is the owner of the property had
entrusted the suit property to the defendant No.
2 to supervise, as he had to reside at a long
distance, because of his service. This fact,
which was pleaded by the plaintiff is not
disputed by defendant No. 1 or defendant NO. 2.
S.A.No. 1435 of 2005
As such, the entry of the defendant No. 2 on the
suit property is not by force or by fraud, but
permissive i.e. by the consent of and on account
of the volition and voluntary act of the
plaintiffs.In such circumstances, the requirement
of of Article 64 i.e. "dispossession" is absent.
In such circumstances, Article 64 would have no
application. The Judgment of the Apex Court
relied by Shri Ahayankar, in a case of " Ramaiah
V/s. N. Narayana Reddy (Dead) by L.Rs., and an
unreported Judgment of learned Single Judge of
this Court, in a case of "Anant Govind Redekar &
others V/s. Shri Dev Hanuman Devasthan, Khed, in
appeal No. 740 of 1971, and the Judgment of the
Apex Court in a case of "Shamsundar Prasad and
others V/s. Rajpal referred supra, would not be
relevant. In the said judgments the plaintiff was
dispossessed prior to 12 years of the filing of
the suit. In that context, the Apex Court in a
case of " Anant Govind Redekar & others V/s. Shri
Dev Hanuman Devasthan, Khed, in appeal No. 740 of
1971." referred supra and the learned Single
Judge of this Court in a case of " Anant Govind
Redekar & others V/s. Shri Dev Hanuman Devasthan,
S.A.No. 1435 of 2005
Khed, in appeal No. 740 of 1971" the Courts have
held that Article 64 would be applicable. It is
trite law that the Judgments of the Apex Court or
this Court cannot be read as Euclid theorem, but
will have read in the context in which they have
been delivered. Even the Apex Court in a case of
" Ramaiah V/s. N Narayana Reddy (dead) by L.R "
referred supra has held thus :-
"
We do not find any merit in the
aforestated arguments. Article 64 of
the Limitation Act, 1963 (Article 142
of the Limitation Act, 1908) is
restricted to suits for possession on
dispossession or discontinuance of
possession. In order to bring a suit
within the purview of that article, it
must be shown that the suit is in
terms as well as in substance based on
the allegation of the plaintiff having
been in possession and having
subsequently lost the possession
either by dispossession or by
discontinuance. Article 65 of the
Limitation Act, 1963(Article 144 of
the Limitation Act, 1908) on the other
hand is residuary article applying to
suits for possession not otherwise
provided for. Suits based on
S.A.No. 1435 of 2005
plaintiffs' title in which there is no
allegation of prior possession and
subsequent dispossession alone can
fall within article 65. The question
whether the article of limitation
applicable to a particular is article
64 or article 65 has to be decided by
reference to pleadings. The plaintiff
can not invoke article 65 by
suppressing material facts. In the
present
ig case, in suit No. 357/60
instituted by N. Narayana Reddy in the
Court of Principal Munsiff, Bangalore,
evidence of the appellant herein was
recorded. In that suit, as stated
above, appellant was the defendant. In
his evidence appellant had admitted
that he was in possession of the suit
property up to 1971. This admission of
the appellant in that suit indicates
ouster from possession of the
appellant herein. In the present suit
instituted by the appellant, he has
glossed over this fact. In the
circumstances, both the Courts below
were right in coming to the conclusion
that the present suit was barred by
limitation. The appellant was ousted
in 1971. The appellant had instituted
the present suit only on 8-5-1984.
Consequently, the suit has been
rightly dismissed by both the Courts
S.A.No. 1435 of 2005
below as barred by limitation."
12. The pleadings of the parties would play
a pivotal role in determining which Article of
the Limitation Act would govern the suit. In the
present case, even the defendant NO. 2 who had
inducted defendant No. 1 in possession, has no
where shown his animus to hold the property as an
to be a
owner. In his written statement also he claimed
tenant. The defendant No. 2 posing
himself to be a representative and agent of the
plaintiff, entered into an unregistered mortgage
with the defendant No. 1, and on the basis of
claimed permissive possession. The defendants
were never in possession of the property in the
assumed character of owner and were not
exercising ordinary rights of ownership having
title to the property and had always pleaded
permissive possession, they cannot be said to be
in adverse possession. Permissive possession and
hostile animus operate in conceptually different
fields.
S.A.No. 1435 of 2005
13. In the light of aforesaid facts
Article 64 of the Limitation Act, 1963 would not
be applicable interalia the plaintiffs suit was
not barred by limitation, on said count.
14. Shri Abhayankar, learned Counsel has
harped on the observations of the Judgment of the
learned Single Judge delivered in Writ Petition
No. 65 of 1985 arising out tenancy reference made
to determine whether "Sakhubai and thereafter,
the petitioner is a deemed tenant of the suit
land" to canvass that at least since 1958 the
acts of defendant No. 2 were hostile and since
said date period of limitation would start
running and suit would be barred by limitation.
In the said Reference this Court had only
observed as under :-
" The Judgment gives back ground and
negative the submission that defendant
No. 2, was acting as an agent of
plaintiff in the year 1964-65. In fact
no one regarding the deed of April, 14,
1965, can miss noticing the antagonism
of defendant No. 2, in relation to the
S.A.No. 1435 of 2005
plaintiff. Defendant NO. 2 was a
trespasser and taking advantage of
plaintiff's absence from Nandurbar.
Kept on doing acts destructive of
plaintiff's right, title and interest
over the land. There being definite
evidence in support of this conclusion
it is not necessary to go into the
further submission, that even if the
deeds be construed as acts within the
competence of defendant NO. 2's powers
as an agent, defendant No. 1 could not
claim the status of a tenant. However,
to give completeness to the judgment I
will now turn to the consideration of
the question. In Daya Lala's case the
Supreme Court did give expression to
the Tenancy Act embracing within S. 4,
a deemed tenant. Party from contractual
tenants."
The said part of Judgment relied by the
appellant cannot be read in isolation. It was
observed that the defendant No. 2 was doing acts
destructive of plaintiffs right, title and
interest over the land. The same was with regard
to issue as to whether the defendant No. 1 could
claim deemed tenancy as pleaded by her in the
Written Statement. The fact that the defendant
S.A.No. 1435 of 2005
No. 1, or defendant No. 2 could not prove their
status of being legal tenant, same would not
ipso-facto prove adverse possession. The said
observations were in regard to the adjudication
of the Reference whether defendant No. 1 would
assume the character of a deemed tenant.
15. The right to property is not merely a
statutory
ig right but it is also Constitutional
right. It is now also being considered as a human
right. The dimensions of human rights have widen
so much that now the property disputed issues are
also being raised within the contours of human
rights. Owner cannot be arbitrarily deprived of
his property. The right to property is inviolable
and sacred.
16. The defendant No. 2 who was entrusted
with the property had never claimed adverse
possession, nor had shown animus to hold the
property as an owner. Even agreement which he
entered into with the defendant No. 1 depicts
that he was representing as an agent of
plaintiff. When the defendant No. 2 himself never
S.A.No. 1435 of 2005
claimed his possession as an owner the defendant
NO. 1 cannot have the benefit of the principle of
tacking for including the period of possession
of defendant No. 2 to claim adverse possession or
bar by limitation. Moreover, the defendants in
their written statement no where pleaded that
they have perfected the title by adverse
possession.
17. Taking into account the above
conspectus the defendants could not prove that
they have perfected their title by adverse
possession as required under Article 65 of the
Limitation Act, nor the case comes within the
realm of Article 64 of the Limitation Act.
In the light of the above, the Second
appeal is dismissed. However, with no order as to
costs.
[S.V. GANGAPURWALA]
JUDGE
SDM*1435.05 SA/R/131110/101010
S.A.No. 1435 of 2005
Second Appeal No. 1435 of 2005
Date of Judgment :- 27th October, 2010
For Approval and Signature :
The Hon'ble Shri Justice S.V. GANGAPURWALA
1) Whether Reporters of Local Papers }
may be allowed
ig } Yes.
2) To be referred to the Reporter or not? } Yes/
3) Whether Their Lordship wish to see } No
fair copy of the Order:
4) Whether this case involves a substantial }
question of law as to the interpretation } No.
of the Constitution of India, 1950 or }
any Order made thereunder? }
5) Whether it is to be circulated to the }
Civil Judges? } No.
6) Whether the case involves an important }
question of law and whether a copy of } No
the judgment should be sent to Mumbai, }
Nagpur and Panaji Offices? }
(S.D. Mulavekar)
Personal Assistant
to the Hon'ble Judge.
