1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 305 OF 1991 Shaikh Bashir s/o Shaikh Yasin Age: 50 Yrs., occu. Agril. And Business, r/o Adul Bk. Tq. Paithan, District Aurangabad. ... APPELLANT (Orig.Defendant) VERSUS 1) Jaitunbi w/o Miyakhan Age: 50 yrs., occu; Household R/o Adul Bk. Tq. Paithan, District Aurangabad. 2) Aminabi w/o Sk. Mira Age: 40 Yrs., occu. Household, R/o Waluj, Tq. Gangapur, District Aurangabad. 3) Mehemudabi w/o Sk. Miya Age: 35 Yrs., occu. Household, R/o Kannad, Tq. Kannad, District Aurangabad. 4) Rabiya w/o Shaikh Sandu, Age: Major, occu. Household R/o Shirasgaon, Tq. Kannad, Dist. Aurangabad. ... RESPONDENTS (Orig. Plaintiffs) 2 ***** Mr.M.D.Joshi, Advocate for Appellant; Mr.K.D.Bade Patil, Advocate for Respondent No.1. Respondent No.2 served. ----- CORAM : K.U.CHANDIWAL, J. DATE : 9 st June, 2009. ORAL JUDGMENT : 1) Heard learned Counsel for the parties. 2) In a suit seeking possession of the immovable property, the defendant lost in RCS No. 12/1983 by Judgment and decree dated 24.12.1985. The aggrieved defendant took the matter in RCA No. 24/1986. The V th Additional District Judge, Aurangabad by his Judgment dated 18.7.1990 confirmed the judgment and decree. The defendant is in Second Appeal. 3) While admitting the appeal on 22 nd August, 1991, following substantial question of law was formulated : “Whether the lower appellate Court failed to exercise its jurisdiction 3 under Section 96 in not considering the evidence about adverse possession?” 4) The status of the parties in the litigation is not in controversy. They are addressed as plaintiff and defendant in the present appeal. The defendant is cousin of the plaintiffs. The plaintiffs assert that, it was at the request of defendant, plaintiff no.1 allowed him to reside in the suit property for temporary purposes with assurance from the defendant to vacate the premises as and when it is so required by the plaintiff no.1 or when the defendant gets other premises for himself. 5) The parties adduced evidence based on the respective pleadings. Two witnesses were examined by plaintiff Jaintunbi while the defendant also put in himself and two witnesses. 6) The defendant came with a theory that the deceased Abdul Raheman had gifted the suit house to him by 4 virtue of an oral gift and the plaintiffs never acquired right of ownership over the suit property. In paragraph 5 of W.S., passingly the defendant asserts that his possession is hostile to the original owner, as he is residing therein since 1949 without any interruption. The suit is not well within a period of 12 years and it is barred by limitation. 7) The law on the plea of adverse possession is well settled in catena of judgments to name in the matter of Karnataka Board of WAKF Vs. Government of India and Ors. Reported in (2004) 10 SCC 779. The Hon’ble Lordships have observed in paragraph 11, giving reference to the earlier judgments of the Apex Court, “Therefore, a person who claims adverse possession should show : (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his 5 favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.” “Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property” “The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.” 8) In the light of this legal position, let us scan the evidence or the documents again. The ownership certificate in relation to the suit property is in the name of plaintiff. The tax receipts concerning the suit property are showing that the taxes thereof are paid by the plaintiff or by somebody from the branch of plaintiff. But at no point of time such taxes are paid by the defendant or anybody on his behalf. The Sanad issued by the State Government is not in dispute to be of the property in controversy. No reasons are assigned by the defendant as to 6 how way back on 18.12.1982 the taxes of the property were paid by the plaintiff. In the survey carried by the Gram Panchayat, name of the plaintiff as owner of the property is shown in the year 1962-63 (Exhibit-24). The defendant did not traverse with these documents by furnishing any other coherent and acceptable evidence to dislodge them. Mere assertion by the defendant of his hostility to the title by itself is not sufficient. He has to establish that he has enjoyed possession as owner openly and exclusively. There is nothing to illustrate that the defendant portrayed admitted any time by his conduct to strip off the plaintiffs right of ownership. The general impression that has been carved out, based on the document is, at all times in past the defendant created the scene that it was the property of the plaintiff and his possession was permissive possession. In the situation, it cannot be said that there was no evidence allowed to be adduced to establish plea of adverse possession. Nobody prevented the defendant to adduce 7 evidence in support of his contention. The substantial question of law is answered in the negative. Second Appeal dismissed. ( K.U.CHANDIWAL) JUDGE bdv/office/sa305.91