( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 164 OF 2009 Makbool Rajmohammad Maniyar APPELLANT VERSUS Mahadu Lahanu Sabale and others RESPONDENTS ..... Mr. P.S. Pawar, advocate for the appellant. Mr. Pawankumar Pawar, advocate holding for Mr. S.P. Brahme, advocate for respondents No. 1, 2, 3A to 3F, 4B to 4F and 5. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 10th November, 2009] PER COURT : 1. Heard learned counsel for the parties. 2. The second appeal is preferred by original plaintiff. He had filed suit (R.C.S. No. 215/1984) for declaration of ownership on basis of adverse possession and perpetual injunction. The suit property comprises of an agricultural land bearing block No. 1039 admeasuring 16 Hectares 50 Ares plus 5 hectares 61 Ares ( 2 ) potkharab area. Briefly stated, his case before the trial Court was that the suit land is his ancestral property. In or about 1920, the suit land was allotted to his share. Other co-sharers of his branch had left village prior to about 40/50 years and, therefore, he alone was calculating the suit land. The defendants have no concern with the suit land, but obtained a sale- deed from his co-sharers in the year 1957. The father of the defendants No. 1 and 2 and the defendant No. 3 had filed a suit (R.C.S. No. 85/1963) for partition and separate possession which was withdrawn with liberty to file afresh suit. That was, however, not subsequently filed. He claims that he has acquired prescriptive title in respect of the suit land due to hostile possession for more than twenty years. The defendants denied his lawful claim and obstructed the possession, therefore, the suit was filed. The trial Court held that the appellant (plaintiff) was unable to prove that the suit land was allotted to his share and he was in continuous possession since 1920. The trial Court held that his possession could not be regarded as hostile. The trial Court dismissed the suit. The first Appellate ( 3 ) Court also rendered concurrent findings and dismissed the appeal preferred by the appellant (plaintiff). 3. It is contended that both the Courts below failed to appreciate the long standing possession which has been transformed into title and that the plaintiff ought to have been granted protection. The learned Counsel would submit that findings of the trial Court and the appellate Court are perverse because when the earlier suit for partition was withdrawn, it could be inferred that the defendants and their father were not in possession of the suit land notwithstanding execution of the sale-deed in their favour by some of the co- sharers. 4. It is pertinent to note that the appellant himself came out with a case that the other co-sharers had left the village. Unless there is reliable evidence to infer clear ouster of co-sharer, the rights of the co-sharer cannot be abrogated merely because they had left the village. The appellant could not prove that his possession was hostile to the knowledge of the other ( 4 ) co-sharers. It cannot be inferred that merely because suit (R.C.S. No. 85/1963) was filed for partition and separate possession on basis of the sale-deed executed by the other co-sharers, there was admission to the possession of the appellant. In fact, the earlier suit indicated assertion of the right to claim share. The plaintiff’s possession could not be regarded as adverse to the interest of the purchasers unless they were having notice of his hostile title. The learned trial Court considered effect of mutation entry recorded on basis of the sale-deed (Exh-71). The revenue entries (Exh-65 to Exh-70) indicated possession of the defendants. There was nothing beyond oral assertion of exclusive possession of the suit land by the appellant so as to consider his claim for declaration of ownership on basis of hostile title. Considering these aspects, the concurrent findings of both the Courts below need not be interfered with. In view of “Arumugham (dead by L.Rs.) and others v. Sundrambal and another” (AIR 1999 S.C. 2216) and “Kashmir Sing v. Harnam Sing and another” (AIR 2008 S.C. 1749), it is amply clear that the second ( 5 ) appeal is outside the scope of Section 100 of the Civil Procedure Code. The Apex Court has observed that even if some finding of fact is erroneous, then also, it cannot be a ground to entertain the second appeal. In this view of the matter, the second appeal is dismissed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/sa164-09