1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 53 OF 2002 WITH CIVIL APPLICATION NO. 998 OF 2002 1. Smt. Parvati Bapurao Deshmukh (Died LRs) 1A. Jayant Bapur Deshmukh and others .. .. Appellants Versus Soma Trimbak Supe (Died L.R.'s) Bhaurao Soma Supe and others .. .. Respondents Shri A. S. Bajaj, Advocate for the Appellants. Shri Girish Wani, Advocate for the Respondents CORAM : P. R. BORKAR, J. DATE : 24TH JUNE, 2009. ORAL ORDER : 1. Heard Shri A. S. Bajaj advocate for the appellants and Shri Girish Wani advocate for the respondents. Respondents have filed suit for possession of encroached portion to the extent of 13R. The suit was decreed. The first appeal filed was dismissed by Additional District 2 Judge Ahmednagar and now this second appeal. 2. It is argued by Shri Bajaj that it was the case of present appellant that he was enjoying encroached portion as owner for 100 years and as such the suit is time barred. The Trial Court and First Appellate Court did not accept the theory that he was possessing the property as owner. Learned counsel taken me to the judgment and depositions of witnesses, particularly evidence of defendants. Bapurao Deshmukh who spoke on behalf of defendants deposed and stated his age as 60 years. He denied that in 1980 he encroached upon the said portion. He says encroached property was in his possession. In his deposition he stated that there are babul trees which are 30 to 40 years old on the common bandh and it was not possible to encroach due to the said trees. The bandh is in existence from his birth. This itself is not sufficient to show that the defendant has perfected his title and that he was in adverse possession for more than statutory period prior to filing of the suit. 3. It is argued before this Court, the Court has not considered the provisions of Limitation Act prior to 1963 and since the possession is stated to be 100 years in written statement Exh. 15 the suit is time barred. This is some thing which is not duly pleaded or argued before trial Court or First Appellate Court. It is not stated that even before Limitation Act 1963 came in to force, the title over the encroached portion was perfected by present appellants. After going through the 3 evidence on record including evidence of cadestral surveyor Mohmad Khan at Exh. 34 and the findings of the lower Court below, in my opinion, the appeal has no merit. No substantial question arises. Therefore Second appeal is dismissed at admission stage. 4. In view of dismissal of second appeal the civil application does not survive, hence same is disposed of. [ P. R. BORKAR, ] JUDGE bsb/June09/SA 53.02