Jagannath Sawaleram Raut vs Vilas Dagdu Dinkar & Others
2016 Latest Caselaw 959 Bom

                                          1                    SA 36 of 1992

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                       
                     BENCH AT AURANGABAD




                                               
                             Second Appeal No. 36 of 1992


         *       Jagannath Savleram Raoot,
                 Dead, through legal




                                              
                 representatives:

         1-A) Bhikubai Jagannath Raut,
              Age 70 years,




                                      
              Occupation : Agriculture
                             
         1-B) Sitaram Jagannath Raut,
              Age 50 years,
              Occupation : Agriculture.
                            
         1-C) Popat Jagannath Raut,
              Age 45 years,
              Occupation : Agriculture.
      


         1-D) Balu Jagannath Raut,
              Age 40 years,
   



              Occupation : Agriculture.

                 All R/o Ghulewadi,
                 Taluka Sangamner,





                 District Ahmednagar.

         1-E) Sunita Bharat More,
              Age 30 years,
              Occupation : Agriculture,





              R/o Ganore, Taluka Akole,
              District Ahmednagar.

         1-F) Anita Sunil Khatal,
              Age 28 years,
              Occupation : Agriculture,
              R/o Dhandarphal,
              Taluka Akole,
              District Ahmednagar.                   ..    Appellants.




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                                            2                         SA 36 of 1992

                          Versus




                                                                             
         1)      Vilas Dagadu Dinkar,




                                                     
                 Age 42 years,
                 Occupation : Service,
                 R/o Sangamner,
                 Taluka Sangamner.




                                                    
         2)      Ashok Dagadu Dinkar,
                 Age 40 years,
                 Occupation : Service
                 R/o As above.




                                      
         3)      Saraswatibai w/o Dagadu Dinkar,
                 Age 67 years,
                             
                 Occupation : Household,
                 R/o As above.
                            
         4)      Hemlata w/o Arun Petkar,
                 Age 36 years,
                 Occupation : Household,
                 R/o Rasta Peth, Taluka Peth,
      


                 District Nasik.                           .. Respondents.
   



                                         --------

         Shri. S.K. Shinde, Advocate, for appellant.





         Shri. S.T. Shelke, Advocate, for respondent No.2.

                                         --------

                                   CORAM:           T.V. NALAWADE, J.





                                    DATE       :    29 MARCH 2016

         JUDGMENT:

1) The appeal is filed against the judgment and

decree of Regular Civil Appeal No.296/1985 which was

pending in the Court of the 2nd Additional District Judge,

3 SA 36 of 1992

Ahmednagar. The appeal filed by the original plaintiffs

against the judgment and decree of Regular Civil Suit

No.396/1979 is allowed and the relief of possession is

given to the respondents, plaintiffs. Both the sides are

heard.

2) The suit was filed in respect of agricultural land

bearing Survey No.480/5-B having area of 24 R and

situated at Sangamner, Tahsil Sangamner, District

Ahmednagar. It is the case of the plaintiffs that the suit

property was owned by one Dagadu Dinkar, who was the

husband of plaintiff No.3 and father of plaintiff Nos.1,2

and 4. This property was purchased in Government

auction by Dagadu. It is the case of the plaintiffs that

Dagadu was cultivating the land during his lifetime and

after his death, as the successors of Dagadu, they had

cultivated the land and they were in possession till the

year 1976. It is contended that plaintiffs were out of

station for some time and during that period the

defendant took possession illegally and forcibly. It is

contended that the defendant refused to return back the

possession and so cause of action took place for the suit.

4 SA 36 of 1992

The suit was filed in the year 1979. Relief was claimed for

possession by contending that possession needs to be

given to the plaintiffs as they are the owners.

3) Defendant filed written statement and

contested the matter. The defendant contended that the

suit property was in possession of the family of the

defendant from prior to 1-4-1957. It is contended that

Amruta Raut was elder brother of defendant and the

property was in his possession and in one tenancy

proceeding the family of the defendant was declared as

the protected tenant and then they became owner of the

suit property. The defendant contended that the plaintiffs

and their predecessor Dagadu were living at other station

and so there was no question of cultivation of the land by

them. Alternate contention was made that from 1957 the

land was with the family of the defendant and so the

defendant had become owner due to the adverse

possession.

4) On the basis of the aforesaid pleadings issues

were framed. Both the sides gave evidence. The trial

5 SA 36 of 1992

Court held that Dagadu had purchased the land in auction

in the year 1933. However, the Court held that the suit

was not filed within prescribed period of limitation and

the suit was covered by Article 64 of the Limitation Act.

Only on the point of limitation the suit was dismissed by

the trial Court. The first appellate Court has held that in

view of the nature of the pleadings and the reliefs

claimed, Article 65 of the Limitation Act needs to be

applied. The first appellate Court has held that the

defendant failed to prove that he is owner of the suit

property and decree is given.

5) This Court admitted the appeal on 11-3-1992

but substantial questions of law were not formulated. In

view of the contentions made in the appeal memo, the

decisions given and the submissions made today, the

parties were allowed to argue on following substantial

questions of law :-

(i) whether the first appellate Court has committed error in holding that Article 65 of the Indian Limitation Act 1963 is applicable to the present matter ?

6 SA 36 of 1992

(ii) whether there was necessary pleadings in respect of

adverse possession and whether there was evidence to prove the ownership of defendant by adverse possession ?

6) This Court has already quoted the reliefs

claimed in the plaint. It is specifically mentioned that the

plaintiffs want to get possession as owners. Though it is

contended that they lost possession somewhere in the

year 1976, that does not mean that suit was filed on

possessory title, on the contention that they were in

possession during last 12 years. Both the sides relied on

some reported cases which this Court is quoting at

appropriate place. Here only it needs to be observed that

in view of the reliefs claimed and as the suit was filed by

the plaintiffs as owner, Article 65 of the Limitation Act is

applicable.

7) This Court has carefully gone through the

evidence given by both sides. The document of title, the

certificate given in auction sale of the year 1933 in favour

of Dagadu, predecessor-in-title of the plaintiffs is

produced at Exhibit 41. Revenue record is also produced

7 SA 36 of 1992

to show that on the basis of this document, name of

Dagadu Dinkar was entered as owner. Revenue record

starting from the year 1966-67 is produced and in that

record also there is mention that after the death of

Dagadu, names of his successors, plaintiffs, were entered.

In the substantive evidence, the defendant has given clear

admission that Dagadu was the owner of this land. He has

given one more admission that his father was giving crop

share of 50% to Dagadu during his lifetime. This

substantive evidence shows that the defendant is not

disputing that at least at the starting point, possession

was permissive. In view of this circumstance, it was

necessary for the defendant to show and prove as to when

the possession became adverse.

8) The record shows that in the past also the case

was put up that defendant had become owner under

tenancy Act but he could not succeed to prove the

ownership. Now there is admission of aforesaid nature in

the present matter. When the title of the plaintiffs is

admitted, the only thing which was remaining with the

defendant was to plead and prove the case of adverse

8 SA 36 of 1992

possession. Alternate defence of adverse possession was

taken but in view of the aforesaid substantive evidence

that the defendant was giving crop share, it cannot be

believed that right from beginning, for more than 12 years

the possession of the defendant was adverse to the

plaintiffs.

9)

The learned counsel for the appellant placed

reliance on following reported cases :-

(i) AIR 2004 SC 4261 (Ramaiah v. N. Narayana Reddy)

(ii) AIR 1965 SC 1553 (Gurbinder Singh v. Lal Singh)

(iii) AIR 1968 SC 1165 (Nair Service Society Ltd. v. K.C.

Alexander).

(iv) AIR 1998 SC 1132 (Tirumala Tirupati Devasthanams v. K. M. Krishnaiah).

(v) AIR 1973 SC 2537 (Rajender Singh v. Santa Singh).

10) On the other hand, learned counsel for the

respondent placed reliance on a case reported as AIR

1986 SC 1509 (Dudh Nath v. Suresh Chandra) . The case

cited by the learned counsel for the respondent is on the

point that the finding on limitation is finding of fact and

9 SA 36 of 1992

in second appeal interference in such finding is not

possible. In the cases cited by the learned counsel for the

appellant the law with regard to Articles 64 and 65 of the

Limitation Act is discussed and the Apex Court has also

discussed the nature and extent of burden of proof on

both the sides. The facts and circumstances of each and

every case are always different. In the present matter the

burden to prove that the possession was adverse and the

ownership is acquired due to adverse possession was on

defendant.

11) In view of the aforesaid position of law and the

facts and circumstances of the present case, this Court

holds that the first appellate Court has not committed any

error in allowing the appeal and in giving relief of

possession to the owner. So both the points are answered

in negative, against the appellant.

12) In the result, the appeal stands dismissed.

Sd/-

(T.V. NALAWADE, J. )

rsl