Bombay High Court
Bhimrao Bhau Dhaigude vs Vaman Shankar Mahanavar And Ors on 1 March, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:11091
Sonali Mane 38-SA-292-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 292 OF 2023
WITH
INTERIM APPLICATION NO. 4012 OF 2023
IN
SECOND APPEAL NO. 292 OF 2023
Bhimrao Bhau Dhaigude and Anr. ... Appellants
Versus
Vaman Shankar Mahanavar and Ors. ... Respondents
...
Mr. Manoj Patil i/b Mr. B. A. Lawate for the Appellants.
...
CORAM : SANDEEP V. MARNE J.
DATED : 1 MARCH 2024.
ORDER-
1) This Appeal is filed by Appellants challenging Judgment and
Decree dated 20 July 2022 passed by District Court Judge-5 Baramati, in
Regular Civil Appeal No. 77 of 2012. The First Appellate Court has allowed
the Appeal and has set aside the decree dated 3 April 2012 passed by Civil
Judge Junior Division, Baramati in Regular Civil Suit No. 116 of 2005. The
suit is decreed by the First Appellate Court directing Appellant/Defendants to
hand over vacant possession of the suit property to the Plaintiffs and has
further injuncted the Defendants from making any encroachment in the suit
property i.e. Gat No. 313. An enquiry into mesne profit is also directed in
respect of the suit property under Order 20 Rule 12 of the Code of Civil
Procedure.
Sonali Mane 38-SA-292-2023.doc
2) Land admeasuring 52 Ares in Gat No. 313 Village Sonkaswadi,
Tal. Baramati, District Pune is the subject matter of the suit instituted by
Respondent Nos. 1 to 5 / Plaintiffs seeking a decree for recovery of
possession as well as injunction against the Appellants/ Original Defendants.
The Trial Court dismissed the suit by Decree dated 3 April 2012 holding that
Plaintiffs could not prove any encroachment by the Defendants in respect of
the suit property. The First Appellate Court has reversed the decree of the
Trial Court and has decreed Plaintiffs' suit directing Appellants/Defendants
to hand over vacant possession of the suit property to the Plaintiff and has
further injuncted Defendants from making any encroachment over suit
property.
3) I have heard Mr. Manoj Patil the learned counsel appearing for
the Appellants. He would submit that the Appellants/Defendants are in
separate possession of the suit property for several years. That the
Appellants/Defendants set up a claim of adverse possession in their written
statement. That the claim of adverse possession was virtually admitted by
Plaintiffs' witness in the cross examination. That the witness deposed during
the course of cross examination that Defendants are cultivating the suit
property for several years, thereby showing knowledge on the part of the
Plaintiffs about possession of the suit property by the Defendants. That all
the ingredients required for proving the claim of adverse possession are met
with. Inviting my attention to Article 65 of the Limitation Act, Mr. Patil
would submit that the suit filed by Plaintiffs for recovery of possession based
on title was barred by limitation in view of admission given by Plaintiffs'
witness that the suit property is in possession of Defendants for over 30
years. That the Trial Court had rightly dismissed the suit filed by the
Plaintiffs and that First Appellate Court has committed an error in reversing
well-reasoned Order of the Trial Court.
Sonali Mane 38-SA-292-2023.doc
4) I have considered the submissions canvassed by Mr. Patil.
Perusal of the plaint shows that the Plaintiff averred in paragraph 2 thereof
that Defendants started obstructing Plaintiffs' possession of suit property
admeasuring 52 Ares, 5/6 years before institution of the suit. They pleaded
that Defendants started destroying and shifting the boundary / bund
between Gat Nos. 313 and 314. That after noticing such attempts on the part
of Defendants, Plaintiffs applied for and got Gat No. 313 measured on
29 October 2004. That the boundaries were fixed after such measurement on
18 December 2004 in presence of Defendants. Plaintiffs thereafter filed a suit
for recovery of possession of the suit property. In response, Defendants filed
written statement and raised plea of adverse possession in paragraph '9'.
They claimed that in addition to cultivating Gat No.314 admeasuring
2.31 Ares, Defendants have been cultivating 52 Ares area out of Gat No. 313
since 1983/1986. That despite knowledge of such cultivation, Plaintiffs never
objected such possession and cultivation of suit property by Defendants. On
these broad pleadings, the case of adverse possession was set up.
5) The Trial Court framed an issue as to whether Defendants
proved ownership by adverse possession. The issue was however answered
against Defendants and it was held that Defendants did not adduce any
evidence to prove their possession without obstruction by Plaintiffs. On the
contrary, the Trial Court held that the Plaintiffs were unable to prove that
Defendants possessed the suit property. Though the Defendants' plea of
ownership by adverse possession was rejected by the Trial Court, they did
not challenge that finding by filing cross appeal/cross objection before the
First Appellate Court. The finding therefore attained finality.
6) The First Appellate Court, in Appeal filed by Original Plaintiffs
held that Defendants made encroachment in suit property admeasuring
Sonali Mane 38-SA-292-2023.doc
52 Ares in Gat No. 313 and that they failed to prove that they became
owners by adverse possession. The First Appellate Court accordingly reversed
the Trial Court's decree and has decreed Plaintiffs suit.
7) It is well established principle that a mere trespasser with long
possession does not become owner by adverse possession. Trespasser's long
possession is not synonymous with adverse possession and owner can take
back possession from a trespasser at any point of time and the length of time
for which trespasser continues in possession is irrelevant. The three tests
must be proved to claim ownership by adverse possession:
i) adequate in continuity.
ii) adequate in publicity and
iii) adverse to a competitor, in denial of title and his knowledge.
8) Thus there must be some event where the Defendants claiming
the adverse possession must question Plaintiff's title to prove his ownership
by adverse possession. In the present case Defendants did not claim that they
became owners of the suit property. There is nothing on record to indicate
that any claim was raised by the Defendants prior to filing of suit by the
Plaintiffs that title was acquired by them by prescription. It is only when
Plaintiffs filed a suit for recovery of possession that the Defendants thought
of raising a vague plea of proving of ownership by adverse possession. In my
view the requirements of proving claim of ownership by adverse possession
are not met in the present case. Both Trial Court and First Appellate Court
have rightly rejected Defendants claim for adverse possession.
9) Mr. Patil has strenuously relied upon cross examination of the
Plaintiff to prove the claim of adverse possession. In my view, Plaintiffs came
with specific case that disturbance of possession by Defendants was noticed
Sonali Mane 38-SA-292-2023.doc
5/6 years before filing of the suit. Therefore, some stray admission given in
the cross examination cannot and does not prove the claim of ownership by
adverse possession. The burden of proving acquisition of title by adverse
possession rested on the shoulders of Defendants. Apart from raising a vague
plea in the written statement, the Defendants did not lead any evidence to
satisfy the conditions necessary for proving acquisition of title by adverse
possession.
10) The First Appellate Court has rightly observed that both Gat
Nos. 313 and 314 were originally owned by same owner Shri. Kokare. That
Plaintiffs purchased Gat No. 313 from Kokare Family. Whereas Gat No. 314
was originally sold by Kokare Family to one Shri. Gaikwad, who later sold
Gat No. 314 to Defendants. The Defendants case is that they are possessing
the same land of which possession was given to them by Shri. Gaikwad after
purchase of Gat No. 314. Thus, the case of the Defendants appears to be that
they are possessing excess area (of Gat No. 313) on account of lack of
knowledge of the exact boundaries. The possession of Defendants in respect
of area admeasuring 52 Ares (suit property) is not deliberate, but the same
appears to be out of inadvertence as parties did not know the exact
boundaries of Gat Nos. 313 and 314. Possession of excess area out of
inadvertence or due to lack of knowledge about exact boundaries, cannot
amount to acquisition of ownership by adverse possession. In fact, the case of
the Defendants that they have been possessing area admeasuring 52 Ares in
Gat No. 313 on account of handing over the possession to them by
Shri. Gaikwad after purchase of Gat No. 314 contains an implied admission
that the Plaintiffs did not know that the land in their ownership was actually
being possessed by the Defendants. Thus, possession of area admeasuring
52 Ares by Defendants is not with knowledge of the Plaintiffs. At no point of
time Defendants denied the title of Plaintiffs in respect of land admeasuring
Sonali Mane 38-SA-292-2023.doc
52 Ares. Thus, the three mandatory tests of nec vi (without force), nec clam
(without secrecy) and nec precario (without permission) are not satisfied.
The plea of acquisition of title by adverse possession is rightly repelled by the
First Appellate Court.
11) So far as issue of limitation is concerned, it is seen that the
parties were apparently unaware about the exact boundaries of Gat Nos. 313
and 314 and possession of excess area of 52 Ares by Defendants is
apparently attributable to ignorance/confusion between parties about
boundaries. Therefore, it cannot be said that the possession of suit property
admeasuring 52 Ares in Gat No. 313 became adverse to the Plaintiffs 12
years prior to filing of the suit. Therefore the suit cannot be held to be barred
by Article 65 of the Limitation Act.
12) After considering the overall conspectus of the case I am of the
view that no serious error can be traced in the order of the First Appellate
Court in reversing the decree of the Trial Court. Plaintiffs own the suit
property admeasuring 52 Ares in Gat No. 313, which is possessed by
Defendants out of sheer confusion about boundaries. They must hand over
possession of the land to Plaintiff as the same is not in their ownership.
13) No substantial question of law is involved in the Appeal. The
Second Appeal is accordingly rejected.
14) In view of the rejection of the Second Appeal, Interim
Application No. 4012 of 2023 does not survive and the same is also
disposed of.
[SANDEEP V. MARNE J.]
