Bombay High Court
Chandrasingh Mansin Banjara And Ors vs Bhatu Gopal Wani Died Lrs. Prabhakar And ... on 1 December, 2023
2023:BHC-AUG:25164
1 sa606.22 judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 606 OF 2022
1) Chandrasingh Mansing Banjara
Age ; 43 years, Occ; Agriculture,
R/o; Maindane, Tq. Sakari, Dist. Dhule.
2) Mangaldas Mansing Banjara,
Age; 41 years, Occ; Agriculture,
R/o; Same as above.
3) Shevantabai Mansing Banjara,
Age; 68 years, Occ; Agriculture, ...APPELLANTS
R/o; Same as above. (Orig. Pltffs.)
VERSUS
Bhatu Gopal Wani,
Since died, through L.Rs....
1) Prabhakar Bhatu Wani,
Age; 57 Years, Occ; Agriculture,
2) Devidas Bhatu Wani,
Age; 55 Years, Occ. Agriculture,
3) Shantaram Bhatu Wani,
Age; 53 years, Occ; Agriculture,
4) Narayan Bhatu Wani,
Age; 51 years, Occ; Agriculture,
5) Ravindra Bhatu Wani,
Age; 49 years, Occ; Agriculture,
2 sa606.22 judgment
All R/o; Pimpalner, Tq. Sakri,
District; Dhule.
6) Manik Gobaji Desale,
Age; 50 years, Occ; Agriculture,
7) Vishwas Gobaji Patil,
Age; 52 years, Occ; Agriculture,
8) Shobhabai Manik Desale,
Age; 45 years, Occ; Agriculture,
9) Sushilabai Vishwas Patil,
Age; 50 years, Occ; Agriculture,
All R/o; Maindane, Tq Sakri, ...RESPONDENTS.
District; Dhule. (Orig. Defts.)
Advocate for the Appellants : Mr. A.S. Abhyankar
Advocate for the Respondent Nos. 1 to 9 : Mr. Mukul S. Kulkarni
CORAM : KISHORE C. SANT, J.
Date of Reservation : 29.09.2023
Date of Pronouncement : 01.12.2023
JUDGMENT :
1. This Second Appeal is by the Original Plaintiffs,
challenging concurrent judgment, by which, the suit came to be
dismissed against the present Respondents/Original Defendants.
3 sa606.22 judgment
2. The suit was filed by the plaintiffs seeking possession of
land Gut No. 84 (Survey No. 70) ad-measuring 18 Acres 36 Are
(hereinafter referred to as the "Suit Property"). It is their case that
the father of the plaintiff Nos. 1 and 2 and the husband of plaintiff
No. 3 were the owners of the suit property. He was in need of
Rs.4000/- to Rs.5,000/- to repay the loan amount. He, therefore,
approached one Bhatu Gopal Wani, the father of defendant Nos. 1
to 5 & took hand loan. The name of said Bhatu Wani was mutated
in the record of rights. Mansingh being illiterate, he could not
notice that the sale deed is shown to have been effected. The said
amount of loan was repaid subsequently, however, the entries were
not reversed. Mansingh died in 1992. Thereafter a suit was filed in
the year 2014 seeking possession, being owners of the suit
property, on the basis of title and for mesne profit.
3. The case of defendant Nos. 6 to 9 is that they became
owner by adverse possession. It is their defence that the suit is
barred by the limitation, in view of Article 64 of the Limitation Act
as the suit is based on the title. Admittedly the suit land is in
possession of defendant Nos. 1 to 5 since 1966-67, & since 1989 in
possession of defendant Nos. 6 to 9 the suit is filed in the year
4 sa606.22 judgment
2014.
4. The learned trial Court has dismissed the suit holding
that the suit was not within the limitation. It is also held that the
plaintiffs could not prove that the suit property was ancestral
property of Mansingh and that Mansingh had raised loan from
Bhatu Wani and shown the transaction as a sale transaction. The
trial Court held that the plaintiffs have proved that the transaction
between Mansingh and Bhatu was null and void in absence of
registered sale deed & since it executed without permission to sell
from the authorities. The Court also held that the plaintiffs have
proved that they are the owners of the suit property. The suit is
dismissed holding that the suit is not within the limitation and the
plaintiffs are not entitled to recover the possession.
5. The learned Advocate Mr. Abhyankar, for the appellants
argued that, the learned trial Court mainly considered the
pleadings, that there are no averments as regards the mortgage. It
is only in the course of deposition plaintiff No. 2 who deposed that
there was a transaction of mortgage. However, it is observed that
the plaintiffs could not give details as to when the amount of
mortgage was repaid but the said mortgage is not proved. The
5 sa606.22 judgment
Court did not accept the theory of adverse possession stating
therein that in the year 1967-68, it is deceased Mansingh, who
himself put the defendants in possession and it was Mansingh, who
applied for mutation of entry in their favour. It is further observed
that it is accepted that Mansingh was the owner of suit property
and thus, once accepting that they are put in possession by
Mansingh, he submits, they cannot raise a plea of adverse
possession. The learned CJJD, Sakri dismissed the suit bearing
RCS No. 29 of 2014.
6. The plaintiff, therefore preferred an appeal bearing RCA
No. 48 of 2019. The learned appellate Court also held that the suit
was not maintainable and the same was not within the limitation.
It is also held that defendants have raised plea of sale transaction
as legal. It is held that the plea of adverse possession does not
survive. About entitlement of the plaintiffs to seek possession the
Court answered point in negative and dismissed the appeal.
7. Before this Court it is tried to argue that the suit was
based on previous title. The defendants failed to prove plea of
adverse possession. The suit was within limitation as the cause of
6 sa606.22 judgment
action arose from time to time when the suit is based on previous
title and possession. In this case the defendants have not disputed
the previous possession and title of Mansingh. The plaintiffs are
the legal heirs of Mansingh and therefore, they have become the
owners of the suit property.
8. The learned Advocate Mr. Kulkarni for the respondents
vehemently opposed the appeal. He submits that in the entire
plaint there is no pleadings stating that the suit is on the basis of
previous possession. The prayer shows that the suit is based on
title. The defendant Nos. 1 to 5 have sold the land of defendant
Nos. 6 and 7 on 07.07.1989 by executing a sale deed. In the suit
there is no prayer to set aside the sale deed of the year 1989. Thus,
in absence of challenge to sale deed the suit was not maintainable.
The plaintiffs have not stated anything about the sale deeds. There
is no obstruction by anyone including the plaintiffs to the
possession of the defendants since 1967-68 and thereafter since
1989 even after the sale deed is executed in favour of defendant
Nos. 6 and 9. The father of the plaintiffs died in the year 1992. The
suit is not filed within a period of 12 years even thereafter. In any
case, there was nothing to show that the suit is not maintainable
7 sa606.22 judgment
which was filed in the year 2014. He submitted that the plaintiffs
cannot seek possession without pleadings. It is seen from the
averments in the plaint that the plaintiff is aware of the transfer of
land from defendant Nos. 1 to 5 in favour of defendant Nos. 6 to 9.
Though it is stated that the plaintiffs got knowledge for the first
time in the year 2013, the same cannot be believed and prayed for
rejection of the appeal.
9. In rebuttal, the learned Advocate for the appellants
submits that there is no privity of contract between the plaintiff and
defendant Nos. 6 to 9 and therefore, there is no need to get
declaration for the sale deed in their favour. Defendant Nos. 1 to 5
will not get title as there is no registered sale deed in their favour.
Article 64 of the Limitation Act is reads as under :
Description of Suit Period of Time from which
Limitation period begins to run
64) For possession of
immovable property based on Twelve The date of
previous possession and not on Years. dispossession.
title, when the plaintiff while in
possession of the property has
been dispossessed.
10. Article 64 provides that the limitation is of 12 years for
filing a suit based on previous possession and not on title. In case
8 sa606.22 judgment
of adverse possession, also the limitation is of 12 years as per
Article 65 of the Limitation Act. In this case, both the Courts have
not accepted the case of adverse possession. The case thus is
governed by Article 64 of the Limitation Act. As per record,
admittedly it has come in the evidence that Mansingh had given
possession to Bhatu in the year 1967-68 and there are revenue
entries showing possession of defendant Nos. 1 to 5. In 1989 the
land is transferred to defendant Nos. 6 to 9. Considering the dates
of filing of the suit, the suit is not within 12 years in any of the
events. It is not within 12 years even after the death of Mansingh.
11. The learned Advocate for the appellants relied upon the
judgment reported in 2020 Supp. SAR (Civ) 991 in the case of
Narasamma & Ors. Vs. A. Krishnappa (D) through LRS. The
Hon'ble Apex Court has held that the defendants cannot take a plea
of adverse possession, simultaneously with the plea of title. This
Court finds that there is no dispute about the same. In this case
both the Courts have not accepted the plea of adverse possession
and therefore, this judgment is not applicable to the facts of this
case. He further relied upon the judgment reported in 2011 (2) AIR
Bom. 196 Khandu Shankar Chaudhari & Ors. Vs. Yeshwant
9 sa606.22 judgment
Dhaku Khatri & Ors. This case law is about the applicability of
Article 64 of the Limitation Act. Article 64 is already considered in
this case by both the Courts below. The next judgment is of 2008
(2) Mh.L.J. 633 in the case of Attaur Raheman Fateh Mohmmad
Vs. Hari Peeraji Burud died through Lrs. Neelabai @ Chandrakala
Haribhau and Others. It is held that a person who does not hold
transferable interest in the property cannot transfer the property.
He further relied on (1995) 6 SCC 309 in the case of R.
Chandevarappa and Others Vs. State of Karnataka and Others, the
Hon'ble Court has considered Article 65 of the Limitation Act and
the adverse possession. This judgment is also not applicable to the
facts of this case. He further relied on 2010 (6) Mh.L.J. 407 in the
case of Vinay s/o Ambadas Kaikini and another Vs. Court Receiver,
of this Court at Bombay. In that case it is held that the suit is for
eviction of trespasser, it is held that the trespasser do not have any
right, title and interest in the suit premises. The trespass continued
so long as the unlawful entry lasts.
12. In the present case the suit itself is filed on the basis of
previous possession and therefore, in view of Article 64, both the
Courts have rightly held against the plaintiffs on the point of
10 sa606.22 judgment
limitation. The reliance is also placed on (1997) 7 SCC 567 in the
case of D.N.Venkatarayappa and another vs. State of Karnataka
and others. This case law is also not useful to the appellants in this
case. He also relied upon the judgment in AIR 1999 SC 1549 in the
case of Indra vs. Arumugam and another. It was suit for
possession based on title. In that case the second appeal was
dismissed by the High Court by holding that the plaintiff cannot be
non suited unless the evidence to prove adverse possession for
prescriptive period. In that case it was admittedly a suit filed
within a period of 12 years thus, this judgment is also not
applicable. He further relied on the judgment in AIR 1966 SC 735
in the case of Bhagwati Prasad v. Chandramaul. This Court finds
that the ratio of the said case law is also not applicable to the facts
of this case.
13. The learned Advocate for the respondents placed
reliance on the judgment in AIR 2019 SC 813 in the case of Poona
Ram Vs. Moti Ram (D) th. Lrs. and Ors. The Hon'ble Apex Court in
the said case held that the person who asserted possessory title
has to show that he is in settled and peaceful possession of the
property. It is held that the settled possession must the possession
11 sa606.22 judgment
over the property which existed for sufficiently long period of time.
In that case the suit was filed for declaration of title and for
possession. The plaintiff had no document of title to prove his
possession who claimed possessory title on the basis of prior
possession. It is held that the plaintiff has to prove his case to the
satisfaction of the Court. The plaintiff cannot succeed on the
weakness of the defendants. This Court finds that this ratio in this
case is applicable to the facts of the present case. Merely because
the Courts have not accepted the theory of adverse possession of
the defendants will not automatically give right to the plaintiffs to
get the possession. It was necessary for the plaintiffs to prove his
own case. He further relied upon the judgment reported in AIR
Online 2023 Bom. 1665 Shiocharan Shankarrao Sadafale Vs. Arun
Sadashiorao Sadafale. In the said case though recovery of
possession and damages were claimed by the plaintiffs, no relief of
declaration, the sale deed being null and void was made. On that
count it was held that the suit was not maintainable. This Court
finds sufficient force in the submission of respondents on the
strength of this judgment. In the case of 2003 DGLS (SC) 1059 -
Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. The
Hon'ble Apex Court has held that if trespasser is in settled
12 sa606.22 judgment
possession of property belonging to the rightful owner, the rightful
owner shall have to take recourse to law even against a trespasser.
The long settled possession is itself is the evidence of title. Thus,
the plaintiff has to prove his title over the suit property. This Court,
thus, finds that the said case law is applicable to the present facts
of the case.
14. Considering all above, this Court does not find any
perversity in the judgments passed by the Courts below. There is
no merit in the appeal. No substantial question of law is involved in
this Second Appeal and the same is therefore, dismissed.
( KISHORE C. SANT )
JUDGE
mahajansb/
