Bombay High Court
Sudhir Arun Hardas And Ors vs Ananda Dnyandeo Lipare And Ors on 20 October, 2022
Bench: Nitin W. Sambre
(912)-SA-338-22.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.338 OF 2022
WITH
INTERIM APPLICATION NO.2456 OF 2022
Sudhir Arun Hardas & Ors. ..Appellants
Versus
Ananda Dnyandeo Lipare & Ors. ..Respondents
Mr. Kalpesh U. Patil, for the Appellants.
Mr. P. B. Gujar, for the Respondents.
CORAM : NITIN W. SAMBRE, J.
DATE : 20th OCTOBER, 2022
P.C.
1. Based on title Exhs.104 and 106, respondent/plaintiff
initiated suit for declaration of ownership and possession vide RCS
No.34 of 1992 which was decreed on 2 nd May, 2017. The said
decree was confirmed in RCA No.73 of 2017. As such, this Second
Appeal.
2. Counsel for the appellants/defendants, Mr. Kalpesh Patil
would urge that the respondent/plaintiff has come out with a plea
in earlier suits for simplicitor injunction which were preferred way
back in 1989 and 1991 i.e. RCS No.470 of 1989 and RCS No.317 of
1991. He would urge that in the said suit the plea of settled
possession based on the aforesaid title was raised, however, while
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(912)-SA-338-22.doc.
answering the issue No.2, the Court has recorded that the
respondent/plaintiff has given admission about possession of the
appellants/defendants since 1963. As such, according to him, not
only the appellants/defendants have perfected their title by way of
adverse possession, but also the plea for declaration and possession
is barred by limitation, as the suit was brought into action after
beyond the period of limitation.
3. He would urge that the findings as such recorded that
the Article 65 of the Limitation Act is attracted is contrary to the
legal provisions.
4. Mr. P. B. Gujar would support the judgments impugned.
5. The fact remains that the appellants/defendants before
the Trial Court have never raised an issue of perfecting their title by
way of adverse possession and it is only for the first time sought to
be raised before the Appellate Court that too in absence of any
pleadings and evidence to that effect.
6. The fact remains that the respondent/plaintiff has
purchased the property in 1982 and 1987 vide sale-deeds Exhs.104
and 106. Even if the claim put forth by Mr. Kalpesh Patil that the
respondent/plaintiff has admitted possession of the
appellants/defendants since 1963, the fact remains that the cause of
action narrated in the suit is based on the denial of title by the
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(912)-SA-338-22.doc.
appellants of respondent/plaintiff which was raised for the first time
in 1991.
7. In that view of the matter, rightly so the provisions of
Article 65 of the Limitation Act were attracted, as the limitation
commences from the date of denial of title.
8. The fact remains that the respondent has established his
title to the suit property.
9. In this background, having regard to the concurrent
findings of fact recorded by both the Courts below and for the
reasons recorded hereinabove, I hardly see involvement of any
substantial question of law in the present appeal.
10. The appeal as such stands rejected.
11. In view of rejection of appeal, pending interim
application also stands disposed of.
[NITIN W. SAMBRE, J.]
BGP. 3 of 3
