Bombay High Court
Sachin Vitthal Adagale vs Anant Jaysingrao Khilare on 4 March, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:10866
Neeta Sawant 25-SA-155-2024.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 155 OF 2024
ALONGWITH
INTERIM APPLICATION NO. 13703 OF 2023
AND
INTERIM APPLICATION NO. 13704 OF 2023
Sachin Vitthal Adagale& Ors. ....APPELLANTS
V/S.
Anant Jaysingrao Khilare ....RESPONDENT
______________
Mr. Manoj A. Patil i/by. Mr. Ashish P. Pawar, for the Appellants.
Mr. D.M. Gupte, for the Respondent.
_______________
CORAM : SANDEEP V. MARNE, J.
Dated : 4 March 2024.
P.C. :
1) By this Appeal, the Appellants challenge the Judgment and
Decree dated 10 October 2022 passed by the Ad-hoc District Judge-4,
Pune in Regular Civil Appeal No. 374 of 2015. The first Appellate
Court has dismissed the Appeal and has confirmed the Decree dated 29
April 2015 passed by the 4th Additional Judge, Small Causes Court and
Joint Civil Judge Senior Division, Pune in Special Civil Suit No. 174 of
2012.
4 March 2024
Neeta Sawant 25-SA-155-2024.docx
2) I have heard Mr. Patil, the learned counsel appearing for
the Appellant and Mr. Gupte, the learned counsel appearing for the
Respondent.
3) Plaintiff instituted Special Civil Suit No. 174 of 2012 for
recovery of possession and for perpetual injunction. Appellants do not
claim ownership in respect of the suit property. It is the case of the
Appellants that they are in settled possession of the suit property since
the year 1957. It appears that in previous round of litigation,
Appellants claimed tenancy rights in respect of the suit property.
However, the said contention of the Appellants has been negatived in
the previous round of litigation. Thus, the capacity of the Appellants as
possessor of the suit property would either be a gratuitous licensee or a
trespasser. Plaintiff as owner of the suit property is entitled to recover
possession thereof by following due process of law. The Plaintiff
accordingly filed Suit seeking recovery of the suit property.
4) Mr. Patil would submit that the suit of the Plaintiff was
barred by limitation as the suit property is occupied by the Appellants
since the year 1956. However after considering the evidence on record,
both Trial as well as the first Appellate Court have held that the shed
in which the Appellants claim residence was demolished in the year 2005
by the Municipal Corporation and the same was reconstructed by the
Appellants. The said finding recorded by the Trial and the first
Appellate Court is well supported by evidence on record. Infact, Mr.
Gupte is quick enough to add that in addition to demolition that took
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Neeta Sawant 25-SA-155-2024.docx
placed in the year 2005, the structure was once again demolished in the
year 2009. Be that as it may, the Appellants/Defendants were unable to
prove before the Trial Court that their possession in the suit property
was continuous since the year 1957. Even otherwise, it is a settled law
that mere permissive user or trespasser cannot defend the suit filed by
the Plaintiff for recovery of possession. Appellants/Defendants did not
claim title in the suit property by raising a plea of adverse possession.
Therefore, in my view the Appellants do not have any right to remain in
possession of the suit property. No serious error can be traced in the
approach adopted by the Trial and the first Appellate Court. No
substantial question of law is involved in the Appeal. The Appeal is
rejected.
5) With rejection of the Appeal, the Interim Applications do not
survive. The same also stand disposed of.
SANDEEP V. MARNE, J.
4 March 2024
