Bombay High Court

Chatur Khandu Patil And Ors vs Somaji Chhagan Patil on 1 August, 2017

Bench: Sangitrao S. Patil

                                 1            46-SA-488-1998


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD
                            
                  SECOND APPEAL NO.488 OF 1998 

1. Chatur Khandu Patil,
   Age : 40 years, Occ. Agri., 
   r/o. Mohide Turf Shahade, 
   Tq. Shahada, Dist. Dhule

2. Yuvraj Khandu Patil,
   Age : 35 years, Occ. Agri.,              ..Abated as
   r/o. Mohide Turf Shahade,                As per order
   Tq. Shahada, Dist. Dhule                 dt.20.03.2013

3. Ratilal Khandu Patil,
   Age : 28 years, Occ. Agri., 
   r/o. Mohide Turf Shahade, 
   Tq. Shahada, Dist. Dhule   

4. Sumanbai w/o. Onkar Patil,
   Age : 30 years, Occ. Household, 
   residint at Shinde, 
   Tq. Nandurbar, Dist. Dhule

5. Ijabai w/o. Chunilal Patil,
   Age : 26 years, 
   Occ. Household work,
   r/o. At Bahuri Sawal,
   Tq. Sagbara,
   Dist. Bhadocha (Gujarat)                 ..Appellants

              Vs.

   Somaji Chhagan Patil,
   Age : 40 years, 
   Occ. Agri. 
   r/o. at Mohide Turf Shahade,
   Tq.Shahade, Dist. Dhule                  ..Respondent




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                                          2            46-SA-488-1998




Mr.N.L.Jadhav, Advocate for appellant (appointed) 

Mr.S.P.Shah,   Advocate   i/b.   Mr.P.M.Shah,   Senior 
Advocate for respondent
                          --

                                 CORAM : SANGITRAO S. PATIL, J.

DATE : AUGUST 01, 2017

ORAL JUDGMENT :

The appellants, who are the legal heirs

of the original plaintiff namely, Khandu Madan

Patil have preferred this Second Appeal against

the judgment and decree dated 22.01.1986 passed in

Civil Appeal No.5 of 1983, whereby the judgment

and decree dated 18.12.1982 passed in R.C.S. No.69

of 1980 by the learned Civil Judge, Junior

Division, Taloda, directing the respondent to

deliver possession of the suit property to the

deceased Khandu, came be set aside.

2. The deceased Khandu filed the above-

numbered suit claiming possession over the suit

property i.e. two galas out of House no.253 of

village Mohide, Tq. Shahada, Dist. Dhule, on the

3 46-SA-488-1998

ground that it was let out to the respondent on

monthly rent of Rs.16.50 Ps. with effect from

01.01.1973. The suit was resisted by the

respondent mainly on the ground that the suit

property was never let out to him by the deceased

Khandu and on the contrary, the suit property was

in possession of the respondent and his father

since more than 35 to 40 years prior to filing of

the suit. Therefore, the suit for recovery of

possession, being not within limitation, was

liable to be dismissed.

3. The trial Court decreed the suit holding

that the suit property was let out by the deceased

Khandu to the respondent. The trial Court further

held that the suit is within limitation in view of

Article 65 of the Limitation Act, 1963 ("the Act

of 1963", for short)

4. The respondent filed the above-numbered

Civil Appeal to challenge the judgment and decree

4 46-SA-488-1998

passed by the trial Court. The learned Judge of

the first appellate Court, after considering the

evidence on record and hearing the learned Counsel

for the parties, held that the suit property was

never let out by the deceased Khandu to the

respondent on rent. The learned Judge further held

that the present suit is governed by Article 142

of the Limitation Act, 1908 ("the Act of 1908",

for short). Therefore, the suit for possession of

the suit property was required to be filed within

a period of 12 years from the date of

dispossession or discontinuation of possession of

the deceased Khandu. The learned Judge found that

the suit property was in possession of the

respondent for more than 12 years prior to filing

the suit and therefore, the suit was barred by the

law of limitation. Ultimately, the learned Judge

of the first appellate Court reversed the judgment

and decree passed by the trial Court and dismissed

the suit.

5 46-SA-488-1998

5. This Second Appeal was admitted to

consider the substantial question of law of

limitation applicable to the present suit.

6. Since nobody was appearing on behalf of

the appellants, Mr.N.L.Jadhav, learned Counsel was

appointed as per the order dated 08.06.2017 to

assist the Court on behalf of the appellants.

7. The learned Counsel for the appellants

submits that the suit was filed in the year 1980

and therefore, it would be governed by Article 65

of the Act of 1963. Consequently, it was necessary

for the respondent to establish that his

possession over the suit property became adverse

to the deceased Khandu prior to 12 years of filing

of the suit. According to him, the respondent

failed to establish his adverse possession over

the suit property. Therefore, the trial Court

rightly held that the suit was within limitation

6 46-SA-488-1998

and rightly decreed the suit. He submits that the

first appellate Court wrongly applied the

provisions of Article 142 of the Act of 1908 and

wrongly held that the suit is not within

limitation.

8. As against this, the learned Counsel for

the respondent submits that there is sufficient

evidence on record to show that the respondent and

his father were in continuous possession of the

suit property since more than 12 years prior to

coming into force of the Act of 1963 i.e. on

01.01.1964. Therefore, as per the provisions of

Section 31 of the Act of 1963, the suit, which was

beyond the period of limitation, as prescribed

under the Act of 1908, prior to coming into force

of the Act of 1963, would not attract the

provisions of the Act of 1963. He submits that the

first appellate Court rightly considered this

legal aspect of the matter and rightly held that

the suit was not within the limitation.

7 46-SA-488-1998

9. In order to show the exclusive possession

of the respondent over the suit property since

before 12 years prior to coming into force of the

Act of 1963, the respondent relied on the receipt

Exh.45 dated 03.08.1976 executed by the deceased

Khandu and the present appellant no.3 - Ratilal in

favour of the respondent, wherein they have

specifically mentioned that the respondent was in

possession of the suit property since before 45

years. As such, the respondent was stated to be in

possession of the suit property since 1931 onwards

continuously. This receipt does not show that the

respondent was occupying the suit property as

tenant of the deceased Khandu. There is absolutely

no evidence on record to show that the suit

property was let out by the deceased Khandu to the

respondent on rent at any particular point of

time. Therefore, the case of the deceased Khandu

that the respondent was occupying the suit

property as a tenant cannot be accepted.

8 46-SA-488-1998

10. Since the suit property was in possession

of the respondent from the year 1931 onwards i.e.

for more than 12 years prior to coming into force

of the Act of 1963, in order to recover possession

thereof on the basis of the title, it was

necessary for the deceased Khandu to file the suit

within a period of 12 years from discontinuance

of his possession thereon, as mentioned under

Article 142 of the Act of 1908. Here, reference

may be made to Section 31 of the Act of 1963,

which reads as under :-

31. Provisions as to barred or pending sits, etc. - Nothing in this Act shall, -

(a) enable any suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian Limitation Act, 1908, expired before the commencement of this Act; or

9 46-SA-488-1998