1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 267 OF 2007 Shri Kiran Pandurang Khatavkar .. Appellant. (Org.Plaintiff) V/s. 1. Smt. Sunanda Shivram Urunkar & Ors. .. Respondents. (Org.Defendants) --- Mr. R.S.Apte, Sr. Counsel i/by Girish Paryani for the Appellant. Mr. M.R. Suryawanshi for the Respondent Nos. 3 to 5 and 8. --- WITH SECOND APPEAL NO. 268 OF 2007 ALONGWITH CIVIL APPLICATION NO. 550 OF 2007 IN S.A. NO. 268 OF 2007 1. Pandurang Keshav Khatavkar (deceased) .. Appellants. (through L.Rs. Appellant Nos.1 A and 1B (Org.Defendants)\ V/s. 1. Shri Nitin Shivram Urunkar & Ors. .. Respondents. (Org.Plaintiffs) --- Mr. R.S.Apte, Sr. Counsel i/by Girish Paryani for the Appellant. Mr. M.R. Suryawanshi for the Respondent Nos. 1, 2A to 2D and 3/1 to 3/ 4. --- 2 CORAM : J. H. BHATIA, J. DATED : 18th September, 2009 P.C. : The present Appellant in Second Appeal No. 267 of 2007 had filed Regular Civil Suit No. 98 of 1994, seeking declaration of his title over the suit property and also for declaration that the sale deed of the suit property executed by his father in 1962 in favour of Shivram Urunkar was null and void and not binding on him. He also sought some other reliefs. 2. In brief the case of the Appellant is that his father Pandurang had sold the suit house under the registered sale deed to Shivram in 1962. On the basis of that in the city survey record mutation entry was effected in favour of Shivram. After death of Shivram, a notice was issued by the Municipal Corporation on an Application filed by the legal heirs of Shivram for mutations. After that the present Appellant filed R.C. Suit No. 98 of 1994. According to the present Appellant his father Pandurang had no right to sell the suit property and taking benefit of close relationship with his father, Shivram had got the sale deed executed from him. On the other hand, according to the Respondents, who are legal heirs of Shivram, because of the close relationship, Shirvam had allowed his 3 sister, who was wife of Pandurang, and her family members to reside in the suit house as a gratuitous licensee and they continued to be in possession as such. The sale deed was executed for legal necessity of the family of Shivram. On the basis of title, the Respondents also filed a Special C.Suit No. 951 of 2002 for possession of the suit property. By a common Judgment dated 14.08.2003, the trial court dismissed the suit filed by the present Appellant and decreed the suit filed by the Respondents. Against that judgment, the present Appellants preferred a Reg.Civil Appeal No. 128 of 2005. Both the Appeals came to be dismissed by the District Court. 3. The learned counsel appearing for the Appellant vehemently contends that as there was no legal necessity, the father of the present Appellant could not have sold the suit property. According to him, the Appellant came to know for the first time about the sale of the property in the year 1993 when the notice about the mutation entry was received by him. The learned counsel also contended that the plaintiff’s father had paid property tax in his own name. This circumstance has not been considered by the courts below. On perusal of the record and the facts noted above, it is evident that in 1962 a registered sale deed was executed by the father of the present appellant in favour of Shivram. On the basis of that document, the property was transfarred in favour of Shivram even in the city 4 survey record. It appears that at that time the present appellant was minor, aged about one and half or two years. Even if it is so, he must have attained majority in the year, 1977. He was admittedly living with his father. He was aware that in the city survey record the property was standing in the name of Shivram and not in the name of his father. If he was aggrieved by the execution of sale deed, he could have challenged the said sale deed within three years after attaining majority. However, he kept silent till 1994 i.e. for almost 17 years after attaining the majority. Therefore, both the courts below found that the suit is barred by limitation. 4. There is no reason not to accept the contention of the Respondents that the plaintiffs and his family members were living only as gratuitous licensee in the suit house in view of the close relationship between the parties. The learned senior counsel for the Appellants has contended that the Appellant has become owner by adverse possession because he continued to be in possession since his birth and even after execution of the sale deed. Licensee does become owner of the property by adverse possession unless it is shown that he had done some overt act, challenging the title of the owner of the property. In the present case, his first overt act, challenging the title of the Respondents was in the year 1994 when he filed the suit. There is nothing on record to show that prior to that, he or 5 any of his family member had challenged the title of the Respondents or their predecessor-in-title Shivram over the suit house. Mere possession does not give title of ownership to the Appellant. The Respondents filed the suit in the year 2002 for possession and that suit is clearly within limitation. 5. In view of the above circumstances, I find no substance in the present Appeals. No question of law is involved. Therefore, both the Appeals stand dismissed. 6. In view of the dismissal of the Appeals, the Civil Application No. 550 of 2007 filed in Appeal No. 268/2007 does not survive and the same is dismissed accordingly. 7. At this stage, learned senior counsel for the Appellants seeks stay of the execution of the decree for some time as the Appellants may challenge this Order before the Hon’ble Supreme Court. Learned counsel for the Respondents has an objection to the prayer on the ground that the Appellant has already purchased a house in a Co-operative Society, which is also in his possession and therefore, no hardship will be caused to Appellants. The learned counsel for the Appellant makes it clear that he has no intention to vacate the premises as per the decree. In 6 view of this position, I do not see any justification to stay the impugned decree. Therefore, the request made on behalf of the Appellants cannot be allowed and it stands rejected. (J.H. BHATIA,J.)