Shri Sudhakar Vitthal Tatpallwar vs Shri Baburao Rajanna Misalwar
2017 Latest Caselaw 6889 Bom

                                                              1                                              SA93.2004.odt


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                NAGPUR BENCH : NAGPUR.

                                        Second Appeal No. 93/2004


Appellant                     :                    Sudhakar S/o Vitthal Tatpalliwar
                                                   Aged about 55 years, Occ. Business,
                                                   Resident of Babupeth Ward No. 3, 
                                                   Chandrapur, Tahsil & District- Chandrapur 
                                                   (Maharashtra)

                                        ...Versus...

Respondent                    :                    Baburao S/o Rajannaji Misalwar through Legal 
                                                   Heirs

                                                   a) Kantabhai  Wd/o Baburao Misalwar, 
                                                       Age 75 years

                                                     b) Deepak S/o Baburao Misalwar, Age 50 years
                                                          Both a & b are R/o Near S.P. College, Behind  
                                                          Saroj Gas Agency, Near Trimurty Bhavan,  
                                                          Mohata Complex, Chandrapur

                                                     c) Vivek S/o Baburao Misalwar, Age-48 years, 
                                                         R/o Sr. Clerk, P.W.D. Office, Civil Lines,  
                                                         Gadchiroli

                                                   d) Jyoti W/o Ashokrao Penchalwar, Age 53 years, 
                                                        R/o Near house of Advocate Eknathrao Salwe, 
                                                        Vithal Mandir Ward, Chandrapur
----------------------------------------------------------------------------------------------------------
                                  Shri  M. Rajkondawar, Advocate for appellant
                                  Shri  M.P. Khajanchi, Advocate for respondent
---------------------------------------------------------------------------------------------------------
                                             CORAM  :  A.S. Chandurkar, J.

                                              DATE     :  07/09/2017


 Oral Judgment:-

1. The appellant is the original plaintiff who is aggrieved by the

judgment of the first appellate Court in Regular Civil Appeal No. 57/1998

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whereby the said appeal filed by the respondent/defendant has been

allowed and the suit filed for possession has been dismissed.

2. It is the case of the plaintiff that his father Vithal and uncle

Krishna had filed a Civil Suit No. 7-A of 1950 that was based on simple

mortgage. This suit was filed against the sons of Paikanna Misalwar. The

suit was decreed on 16/02/1951 and a house property admeasuring 1380 sq.

ft. was put for auction. The said property was purchased in the auction by

one Linganna, the mother of Vithal and Krishna and a sale certificate was

issued on 13/08/1962. According to the plaintiff, he succeeded to the said

property. The defendant without any right started interfering with the said

property and committed trespass on 23/10/1985. Hence, a suit was filed

immediately for a declaration that the plaintiff was not the owner of the suit

property alongwith prayer made for possession and perpetual injunction.

3. In the written statement at Exh. 22, it was pleaded that the

structure standing on the suit plot had fallen down in the year 1955 and

thereafter, the dilapidated portion was in possession of the defendant and

other co-sharer. The plaintiff was never put in possession. It was, therefore,

pleaded that as the defendants were in possession from the year 1955

onwards, they had become the owners by way of adverse possession.

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4. After the parties led evidence, the trial Court held that the

plaintiff had proved that he was the owner of the suit property and that the

defendant had tried to encroach upon the same. After holding that the title

of the plaintiff was not extinguished, the suit was decreed. The appellate

Court held that the suit had been filed beyond the period of limitation as the

plaintiff's right to the suit property have come to an end. It further held that

the defendants had become the owners by way of adverse possession. On

that basis, the suit came to be dismissed. Being aggrieved, the present

second appeal has been filed.

5. The learned counsel for the parties have been heard on the

following substantial questions of law:-

(i) Whether the lower appellate Court could dismiss the suit on the basis of adverse possession in the absence of any pleadings as to when possession became adverse ?

(ii) Whether the lower appellate Court could ignore the sale certificate issued by the Civil Court and hold that the suit property was a joint family property of the present respondent's ancestor and that one of the joint family members had 1/3rd share in the suit property and there was no partition between the family members of the present respondent.

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(iii) Whether the suit as filed by the original plaintiff is within limitation ?

6. Shri M. Rajkondawar, the learned counsel for the appellant

submitted that the appellate Court committed an error by holding that the

plaintiff's title had been extinguished. It is submitted that pursuant to the

sale certificate issued on 13/08/1962, the plaintiff's predecessor had come

in possession and the suit was required to be filed only on account of

trespass committed by the defendant. It was submitted that as the plaintiff

was in possession, he had removed the dilapidated structure. It was

submitted that the trial Court, on a proper appreciation of the evidence

rightly held that the suit came to be filed within limitation. In absence of

any date being disclosed as to when the defendant came in possession, it

was not permissible for a plea of adverse possession to be raised. He also

submitted that the sale certificate could not be interpreted in a manner to

hold that other family members of the defendant had a share in the

auctioned property. It was, thus, submitted that the suit was liable to be

decreed.

7. Shri M.P. Khajanchi, learned counsel for the respondent

supported the impugned judgment. According to him, it was rightly held

that the suit was barred by limitation. The plaintiff in the plaint did not

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mention the date on which possession of the auctioned property was taken.

As there was no evidence on record to indicate that the plaintiff had come in

possession after issuance of the sale certificate, the suit was rightly held to be

barred by limitation. It was, then submitted that the plea regarding the

adverse possession was rightly accepted by the trial Court. The possession

of the defendant was uninterrupted, open and hostile and therefore, the

plaintiff had lost his title. He also submitted that the trial Court rightly

found that the members of the joint family of the defendant had a share in

the suit property.

8. I have heard the learned counsel for the parties at length and I

have also gone through the records of the case. Since the substantial

question of law no. (iii) deals with the aspect of limitation, the same is taken

up first for consideration. In the plaint, it has been pleaded that by virtue of

sale certificate dated 13/08/1962, the plaintiff's grand-mother had become

the owner of the suit property. In the plaint, however, there is no specific

averment as to the date when the plaintiff's predecessor came in possession.

In the written statement in para 8-A, it was pleaded that the defendant and

other co-sharer were always in possession and the plaintiff never came in

possession. In the amended plaint, these contents were denied. Neither in

the pleadings nor in the deposition of the plaintiff or his witness is there a

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specific mention as to the date on which the plaintiff's grand-mother came in

possession. It is not the case that the decree as passed in the earlier suit

was executed after which the plaintiff was put in possession in execution

proceedings.

9. After considering the entire evidence on record, it has been

found by the first appellate Court that the plaintiff had failed to prove the

date or manner in which he obtained the possession. The aspect of the

removal of the dilapidated structure by itself does not carry the case of the

plaintiff any further. While according to the plaintiff this was done in the

year 1964, according to the defendant this was done in the year 1954.

10. Considering the fact that the sale had become absolute in the

year 1962 and in absence of any evidence to indicate that the plaintiff or his

predecessor had come into possession thereafter, the suit filed in the year

1985 was rightly held to be barred by limitation. The appellate Court

considered the provisions of Article 180 of the Limitation Act, 1908. The

limitation prescribed, therein, was three years. As the sale certificate was

issued in the year 1962, the provisions of the Act then operating were taken

into consideration. On considering the pleadings of the parties and the

evidence led by them, I do not find that there is any other conclusion that

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can be arrived at from the conclusion arrived at by the appellate Court. The

finding that the suit was barred by limitation is passed on the material

available on record. Hence, this question of law is answered by holding that

the suit was not filed within limitation.

11. Considering the answer given to the aforesaid question, it is not

necessary to further adjudicate the substantial question of law nos. (i) and

(ii) in the light of the fact that the suit was liable to be dismissed as being

barred by limitation.

12. As a consequence of the aforesaid, the judgment of the First

Appellate Court stands confirmed. The second appeal is dismissed with no

order as to cost.

JUDGE Ansari