MARUTI DAGADU CHARWAD (D) THR. L.R.S. Vs. SHRI BHAU NAMA GUJAR (D) THR. L.R.S.
LAWS(BOM)-2017-3-121
HIGH COURT OF BOMBAY (AT: NAGPUR)
Decided on March 07,2017

Maruti Dagadu Charwad (D) Thr. L.R.S. Appellant
VERSUS
Shri Bhau Nama Gujar (D) Thr. L.R.S. Respondents

JUDGEMENT

S.C.GUPTE,J. - (1.) This Second Appeal challenges a judgment and order passed by the District Court at Pune in Civil Appeal No.111 of 1989. By the impugned judgment and order, the learned District Judge allowed the Respondents' appeal and set aside the judgment and decree passed by the Trial Court in favour of the Original Appellant (now represented through his legal heirs), by which the Trial Court had dismissed the Respondents' suit for declaration and injunction. The Second Appeal raises substantial questions of law on the application of the law of adverse possession by the lower appellate court to the facts concurrently found by the courts below, particularly concerning the possession which the adverse possessor must show both in terms of its nature and its openness so as to found a plea of adverse possession.
(2.) Respondent Nos. 1 to 7 (Original Plaintiffs) had filed the present suit, being Regular Civil Suit No.1989 of 1978, in the Court of Civil Judge, Junior Division at Pune, initially, for a declaration and injunction restraining the Defendants (the predecessor in title of the Appellants herein) from disturbing their possession. After rejection of their application for temporary injunction and confirmation of such rejection by the District Court in appeal, the Plaintiffs amended their plaint by seeking an alternative prayer for a decree of possession. The say filed by Defendant No.1 in reply to the application for temporary injunction (Exhibit 19) was treated as a written statement of Defendant No.1. The Trial Court accepted the Plaintiffs' case that they were owners of the suit land. It, however, came to the conclusion that the Plaintiffs had not proved that they were in possession of the suit land and, on the other hand, it was Defendant No.1, who had proved that he was in possession of the suit land since the year 1952. The Trial Court held that Defendant No.1 had proved that he had become the owner of the suit land by adverse possession and that, in the premises, the Plaintiffs were not entitled to any relief in the suit. The Trial Court, accordingly, dismissed the Plaintiffs' suit.
(3.) In the appeal filed by the Plaintiffs before the District Court, the learned District Judge accepted the findings of the Trial Court that the Plaintiffs were owners of the suit land but had failed to prove their possession of the same on the date of filing of the suit. The learned Judge held that Defendant No.1 was in continuous possession of the same since the year 195253. The learned Judge, however, held that the possession of Defendant No.1, though continuous in nature and existing throughout the statutory period of 12 years without any interruption, did not amount to adverse possession in law. The learned Judge held that in his pleadings, Defendant No.1 had not asserted the date on which he entered into possession; that there was no evidence in what capacity he entered into possession of the suit land whether the possession was permissive or otherwise; and from which date he asserted a hostile title. The learned Judge held that there was no evidence that since the year 195253, or at any time, the predecessor-in-title of Defendant No.1 or after the predecessor, he himself was in possession of the suit land by adverse possession or became owner of the suit land by adverse possession. These findings have been impugned in the present Second Appeal.;


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