1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH : NAGPUR Second Appeal No. 428 of 2009 Appellants : 1) Shahadeo Mahadeo Waghode, aged about 53 years, occ: Agriculture 2) Samadhan Mahadeo Waghode, aged about 50 years, occ: Agriculture 3) Kashiram Mahadeo Waghode, aged about 48 years, occ: Agriculture 4) Suresh Mahadeo Waghode, aged about 46 years, occ: Agriculture 5) Smt Parvatibai d/o Mahadeo Waghode, aged about 43 years, occ: Household 6) Smt Manjubai wd/o Mahadeo, aged about 73 years, occ: Household All residents of Khandala, Tahsil Telhara, District Akola. Versus. Respondent : Purushottam Pandurang Waghode, aged about 48 years, occ: Agriculture, resident of Khandala, Tah. Telhara, 2 District Akola. Mr A.R. Deshpande, Advocate for appellants. Mr A.J. Thakkar, Advocate for respondent. Coram : A. P. Bhangale, J Dated : 30th June 2010 P.C. 1. Respondent/plaintiff filed suit for recovery of possession of suit house. It was pleaded that in the year 1992 appellants/defendants requested him to let them occupy suit house for some period since they were reconstructing their house. Even though plaintiff declined, defendants occupied suit house per force and since plaintiff’s efforts to get back suit property failed, he was constrained to file suit. In defence, defendants pleaded that the property, viz. a residential house of 24 pillars was jointly owned by their father Mahadeo and plaintiff’s father Pandurang (who were brothers) though it was purchased in the name of plaintiff’s father. In the year 1955 there was partition between the two brothers in which western half portion of 12 pillars fell to the share of Mahadeo. It was since 1955 that the property 3 was in possession of Mahadeo and his family members and after his after his death in 1989 suit property continues to be in possession of defendants as owners thereof. In the alternative, it is pleaded that since the suit property is in possession of defendants continuously, openly and without interruption from anybody muchless the plainiff, they have become owner thereof by virtue of principle of adverse possession. It was contended that suit was barred by limitation. It was also contended that taking advantage of sale deed in the name of his father, plaintiff was trying to grab the suit property. 2. Learned trial Court on the basis of documents filed on record including sale deed, partition deed and revenue entries found that partition between the two brothers had taken place in 1946 while the suit property was purchased by plaintiff’s father Pandurang in the year 1951 to hold that the suit property was not purchased out of joint family funds. However, the trial Court held that defendants were in possession of suit property for more than 12 years preceding the filing of suit without any interruption, openly and to the knowledge of real owners and, therefore, they have become owners of suit property by virtue of principles of adverse 4 possession. The trial Court thus dismissed the suit of plaintiff. 3. Plaintiff preferred appeal. The lower Appellate Court by its judgment and order dated 26.6.2009 has allowed the appeal and thereby decreed the suit of plaintiff. No appeal at the behest of original defendants was filed challenging the finding of the trial Court that the suit property stems from joint family funds and in fact, finding of the trial Court that property was exclusively owned by plaintiff’s father Pandurang had attained finality. The lower Appellate Court, in my opinion, unnecessarily indulged into lengthy discussion on that aspect of the matter. Learned lower Appellate Court’s finding that the plea of co- ownership and adverse possession cannot go hand-in-hand and they are mutually exclusive may be correct, but on perusal of pleadings it can well be gathered that the plea as to the adverse possession was taken up by the defendants in the alternative and it was not simultaneous. Be that as it may, the lower Appellate Court on scanning the evidence reached to the conclusion that plaintiff was dispossessed some where in 2002 and at any rate, it cannot be held that it was adverse to the true real owners, open and without any interruption 5 for more than 12 years prior to the filing of suit. The lower Appellate Court has discussed oral and documentary evidence in that regard in thorough detail. 4. It is settled position of law that a person who sets up a claim of acquiring possession by adverse possession, is required to plead and prove that (1) he is in peaceful, open, continuous and exclusive possession of the property for a period of more than 12 years or more period as prescribed by the law of limitation; (2) he must not only prove the exclusive possession but also prove animus possidendi i.e. to hold and possess the property to the exclusion of the actual owner of the property and (3) mere continuous possession for the whole of the period prescribed by statute of limitation is not enough but the possession must be adverse to the true owner, it must be to the knowledge of the true owner and must show an intention on the part of the possessor to hold and possess the property contrary to or hostile to the ownership rights of the true owner. None of the ingredients is established by defendants in the present case. 5. There is no ground raised in the present appeal that the findings rendered by the lower Appellate Court are 6 perverse and the evidence which is non-existent has been considered by the lower Appellate Court. Learned counsel for appellants has read some part of the evidence between the lines to argue that adverse possession is duly proved. It is well-settled that the High Court cannot substitute its own opinion for that of the 1st appellate court unless it finds that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law or contrary to the law as pronounced by the Supreme Court or based upon inadmissible evidence or no evidence. I do not find in this case that the finding on the aspect in question is erroneously recorded by the lower Appellate Court on any count. 6. No substantial question of law is made out in the present appeal and the same is dismissed in limine with no order as to costs. A.P. BHANGALE, J hsj