Manohar S/O. Balaji Gade vs Rajendra S/O. Ratanchand Raka And ...
2016 Latest Caselaw 5587 Bom

     sast115.16.J.odt                                                                                                              1/4

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               NAGPUR BENCH, NAGPUR




                                                                                                                
                           SECOND APPEAL STAMP NO.115 OF 2016




                                                                                 
                         (REJECTED SECOND APPEAL NO.234 OF 2016)

               Manohar s/o Balaji Gade,
               Aged about 72 years,
               Occ: Retired,




                                                                                
               R/o Raka Colony, Vakilpeth,
               Umred Road, Nagpur.                                                ....... APPELLANT

                                                ...V E R S U S...




                                                            
     1]        Rajendra s/o Ratanchand Raka,
                                   
               Aged about 61 years,
               Occ: Business.
                                  
     2]        Akshay s/o Ratanchand Raka,
               Aged about 59 years,
               Occ: Business.
      

     3]        Satish s/o Ratanchand Raka,
               Aged about 58 years,
   



               Occ: Business,
               All R/o Raka Colony, Siraspeth,
               Nagpur.





     4]       Smt. Padmadevi wd/o Ratanchand Raka,
              Aged about 81 years, Occ: Nil,
              R/o Post Tandapur, Tah. Jamnet,
              Dist. Jabalpur.                                    ....... RESPONDENTS
     ----------------------------------------------------------------------------------------------------





              Shri G.N. Khanzode, Advocate for Appellant.
              Shri Nitin Jachak, Advocate for Respondent Nos.1 to 4.
     ----------------------------------------------------------------------------------------------------

                          CORAM:  R.K. DESHPANDE, J. 

th SEPTEMBER, 2016.

                          DATE:      26

     ORAL JUDGMENT



     1]                   Heard the learned counsels appearing for the parties.


      sast115.16.J.odt                                                                                                              2/4

     2]                   The  trial  court has dismissed Special  Civil  Suit No.504 of




                                                                                                                

2008 on 19.12.2011 for declaration of ownership on the basis of adverse

possession and grant of injunction restraining the defendants from

interfering the possession of the plaintiff over the suit property. The trial

court also rejected the counter claim filed by the respondents for

possession of the suit property on the basis of title. In Regular Civil

Appeal Nos.815 of 2012 and 413 of 2014 preferred by both the parties,

the lower Appellate Court by its common judgment and order dated

07.09.2015 maintained dismissal of the civil suit, but the counter claim

filed by the defendants has been allowed for possession of the suit

property. The original plaintiff has preferred this appeal challenging the

decision of both the courts below.

3] The trial court has taken into consideration the documents

at Exhibit 36, 37, 38, 39, 40 and 41 along with the documents at Exhibit

44, 45 and 49 which are the notices and replies exchanged between the

parties to hold that it was not a claim for adverse possession made by the

plaintiff. The trial court holds that the plaintiff claimed ownership on the

basis of permissive possession and the right under Section 14(1) of the

Hindu Succession Act. It has been held that the provisions of Section

14(1) of the Hindu Succession Act are not at all attracted in the present

case. The lower Appellate Court has maintained the findings recorded by

the trial court. The findings of fact are based upon the evidence available

sast115.16.J.odt 3/4

on record and dismissal of the suit therefore, does not give rise to any

substantial question of law. The title of the defendants has been

established on the basis of the Will, said to have been executed by one

Shri Poonamchand Raka, the undisputed owner of the suit property.

The defendants are the legal heirs of Poonamchand Raka and hence the

counter claim has been decreed by the lower Appellate Court which also

does not give rise to any substantial question of law. The second appeal

is dismissed.

4] Shri Khanzode, the learned counsel appearing for the

appellant relies upon Section 27 of the Limitation Act along with Article

65 of the Limitation Act to urge that the counter claim should have been

filed within a period of 12 years from the hostile possession said to have

been acquired by the plaintiff. The courts below have held that it was a

permissive possession and not hostile possession, and therefore, the

question of bar of limitation under Section 27 does not at all arise.

                                                                                       JUDGE
    NSN





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