Bombay High Court
Namdeo Janba Chahande vs Bhanudas Baliramji Waghmare ... on 21 March, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.184 OF 2004
Namdeo s/o Janba Chahande
Aged about 53 yrs.,
Occupation: Service,
R/o Wardha, Baide Layout,
Ward No.6,
Tahsil and District Wardha. ....... APPELLANT
...V E R S U S...
Bhanudas s/o Baliramji Waghmare
Aged about 68 yrs.,
Occupation: Cultivation,
R/o Sukali (Bai), Tahsil Selu,
District Wardha. (Dead)
Respondent through his legal heirs
Amended as 1) Smt. Sumita w/o Bhanudas Waghmare
per court
order dated
Aged about 55 years.
30/10/07
2) Bandu s/o Bhanudas Waghmare
Aged about 32 years.
3) Moreshwar s/o Bhanudas Waghmare
Aged about 27 years.
4) Dnayaneshwar @ Kishor s/o Bhanudas
Waghare, Aged about 32 years.
All R/o Sukali (Bai), Post Sukali (Bai)
Tahsil Selu, District Wardha. ....... RESPONDENTS
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Shri P.D. Meghe, Advocate for Appellant.
None for Respondents.
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CORAM: R.K. DESHPANDE, J.
st MARCH, 2017.
DATE: 21
ORAL JUDGMENT
1] The Trial Court passed a decree for possession of the
suit property on the basis of title in Regular Civil Suit No.268 of
1995 on 09.08.2000. The lower Appellate Court has allowed
Regular Civil Appeal No.200 of 2000 by its judgment and order
dated 11.11.2003. The decree passed by the Trial Court has been
set aside and the suit has been dismissed. Hence, the original
plaintiff is before this Court in this second appeal.
2] On 21.11.2007 this Court admitted the second appeal
and framed the substantial question of law as under:
"Whether the defendant-respondent could have
raised a plea of adverse possession when particularly he
had claimed ownership over the suit property on the
basis of the sale-deed?"
3] The title of the plaintiff over the suit property is not
in dispute. It was the defence raised by the defendant that he was
put in possession of the suit property on the basis of unregistered
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sale-deed dated 04.02.1983 and since then he was in continuous
peaceful possession of the suit property.
4] The Trial Court records a finding that the property
was of the value more than Rs.100/- and hence, the sale-deed was
compulsorily required to be registered. Since the sale-deed dated
04.02.1983 is an unregistered document, it does not confer any
title upon the defendant. It further holds that the defendant has
failed to establish possession over the suit property on the basis of
the document dated 04.02.1983 at Exh.53. In the month of
August, 1994 the defendant tried to put fencing over the suit
property, which is an open land, and therefore, immediately suit
was filed, which is found to be within a period of limitation.
5] The lower Appellate Court holds that the suit was
barred by the law of limitation as specified under Article 65 of the
Limitation Act. It holds that the defendant was in possession of the
suit property from 04.02.1983 and the suit in question was filed in
the year 1995 i.e. on 08.09.1995, which was beyond the period of
12 years, and hence it was barred by the law of limitation.
6] Both the Courts are concurrent in holding that the
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ownership of the plaintiff over the suit property is not in dispute.
Obviously, unregistered document to sell the immovable property
of the value more than Rs.100/- is not enforceable and does not
confer a valid title upon the defendant. Exh.53 is therefore,
inadmissible in evidence though produced by the plaintiff.
Perusal of the document at Exh.53 does not indicate the clause of
possession. There is no recital in the said document to show that
the possession of the suit property was handed over to the
defendant. Obviously, when the defendant claimed possession on
the basis of this document, the question of attracting bar of
limitation under Article 65 of the Limitation Act does not at all
arise. The substantial question of law framed by this Court is
therefore, answered accordingly, and the finding by the lower
Appellate Court that this is barred by the law of limitation is set
aside.
7] On the basis of undisputed factual position, the
plaintiff would be entitled to decree for possession and hence
decree passed by the Trial Court needs to be restored by setting
aside the judgment and order passed by the lower Appellate
Court.
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8] In the result, the second appeal is allowed.
The judgment and order dated 11.11.2003 passed by the lower
Appellate Court in Regular Civil Appeal No.200 of 2000 is hereby
quashed and set aside and the decree passed by the Trial Court on
09.08.2000 in Regular Civil Suit No.268 of 1995 is hereby
restored. No order as to costs.
9] The appellant/plaintiff shall be entitled to costs
thereof.
JUDGE
NSN
