1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.1356 OF 2005 WITH CIVIL APPLICATION NO.2313 OF 2000 Saheblal Bandagisaheb Patil & Ors. ...Appellants. v. 1. Nanasaheb Sayyadnur Patil & Ors. ...Respondents. Mr.Vivek Salunkhe i/by Shri P.B.Shah, advs. For the Appellants. Mr.Ajay Patil i/by P.K.Dhakephalkar, advs. For the Respondent Nos.2 to 4 and 7. CORAM : J.H. BHATIA, J. DATED : 21st July , 2009 P.C. 1 The appellants, who are the original plaintiffs had filed regular civil suit no.151 of 1990 in the Court of Civil Judge Junior Division, Mohol for declaration that a will executed by one Bibi widow of Budan was invalid and not binding on the appellants, for recovery of possession of the suit properties and injunction. It appears that certain properties including suit property bearing survey no.136/2 and 136/5 originally belong to one Yakub who had three sons Mirza Saheh, Appa Saheb and Bundagi Saheb . The suit properties came to the share of Appa Saheb and after his death to his son Budan. After death of Budan, 2 property was inherited by his widow Bibi. She executed will and bequeathed the suit property to father of the defendant nos.1 and 2, defendant nos.3, 4 and father of the defendant no.4. She died in 1952. Defendants claimed to be in possession of that property since 1952. Plaintiffs, who are the grand sons of Bundagi Saheb and grand grand sons of Yakub claimed that they were in possession of the property since 1952 and that they were dispossessed from the property sometimes in 1983. They claimed that they had become owners by adverse possession. Initially the plaintiffs filed regular civil suit no.48 of 1984. That suit was withdrawn. According to the plaintiffs, said suit was withdrawn with leave to file fresh suit on the same cause of action. Second suit from which the present appeal has arisen was filed in the year 1990. Defendants have not filed any written statement. The Trial Court proceeded to hear the plaintiffs and came to conclusion that plaintiffs had failed to prove that first suit was withdrawn with permission to file fresh suit on the same cause of action; that they have proved their adverse possession and that the suit was within limitation. Plaintiffs preferred civil appeal no.102 of 1994 before the District Court. That appeal also came to be dismissed. 2 Record reveals that both the Courts below noted that 3 the plaintiffs had failed to produce any document to show that his suit was withdrawn with permission to file fresh suit on the same cause of action. If leave is granted to withdraw the suit with liberty to institute a fresh suit in respect of the same subject matter, he can file a fresh suit in view of the provisions of Order 23 Rule 3. Rule 4 of the Order 23 provides that when the plaintiff abandons any suit or withdraws the suit, he shall be precluded from instituting any fresh suit in respect of such subject matter. In view of the fact that plaintiffs have failed to prove that they had obtained permission of the Court to withdraw the earlier suit with liberty to file fresh suit on same cause of action, second suit would not be tenable. Secondly, will was executed in 1949 and in any case that had come into force in 1952 after the death of Bibi, when the defendants claimed to have take possession and their names were also entered in the record of rights. According to the plaintiffs, they came to know about that will in 1983. Even if their contention is accepted to be true, in view of the article 58 of the Limitation Act, period of limitation to obtain declaration that the will was invalid, period of limitation would be three years and, therefore, the suit could be filed till 1986. The present suit was filed in the year 1990. Therefore, the suit was barred by the limitation. The Courts below noted that when plaintiffs claimed that they had 4 become owners by adverse possession for more than 12 years, there was not a single entry in the possession column to show that plaintiffs were ever in possession of the property. 3 Taking into consideration the facts and circumstances noted above, I find no fault in the concurrent findings of the Courts below. No question of law is involved in the present appeal. 4 In the result, appeal stands dismissed. As the appeal itself is dismissed, civil application no.2313 /2000 does not survive and stands disposed off. (J.H. BHATIA,J.)