1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.730 OF 1995 WITH CIVIL APPLICATION NO.8076 OF 1997 Shri Digambar Sahadeo Kumthekar : Appellant. Versus Shri Kalidas Govind Yeragi & ors. : Respondents. Shri.Rege with Mrs.S.A.Mudbidri for the Appellant. Smt.V.V.Thorat for Respondent No.1. CORAM : R.M.SAVANT, J DATED : AUGUST 25, 2008 P.C. 1. The above Second Appeal takes exception to the Judgment and Decree dated 24/11/1994 passed by the 2nd Additional District Judge, Sawantwadi by which the Judgment and Decree dated 23/7/1985 passed by the trial Court i.e. Civil Judge, Junior Division, Malvan came to be confirmed. 2 2. The Appellant is the original Plaintiff, who had filed a suit being Regular Civil Suit No.15 of 1983 for a declaration that he has become the owner by adverse possession and also for permanent injunction against the Defendants who are the Respondents herein. The case of the Plaintiff is that he is the owner of SurveyNo.753 H No.1 and to the North of the said property there was a live hedge on it's boundary and they are trees 30 years old of various categories. It is further the case of the Plaintiff that there are other trees planted by him which are of Coconut, Chiku etc. Since the land under trees is in his possession since long, he has become owner by adverse possession. It is further the case of the Plaintiff that the Defendants complained to the Revenue Authority on 9/11/1978, pursuant to which an order came to be passed on 23.3.1981 and in consequence of the said order, the land in which the trees were situated was handed over to the Defendants. The Plaintiff, therefore, prays that the Defendants should be directed to hand over the peaceful possession of the suit property along with damages of Rs.300/- to him. 3. The Defendants filed their written statement and denied the 3 claim of the Plaintiff. The Defendants denied that there was any hedge on the northern or western side of the suit property. The defendants also denied that there are trees more than 30 years old and the Plaintiff has become owner by adverse possession. 4. The parties went to trial. The trial Court on the basis of material that was on record as also the principles applicable in respect of the case of adverse possession recorded a finding that since the Plaintiff was not even aware whether the land in his possession was that of the Defendants till its measurement, it cannot be said that the Plaintiff has satisfied the principle applicable in respect of adverse possession in view of the fact that the Plaintiff was not even aware that the land occupied by him was that of the Defendants. The trial Court held that that sine qua non for a case of adverse possession is the occupation of the property by an attitude which is hostile to the title of the owner. The trial Court on the basis of material that was on record observed that such was not the case in the instant suit and the Plaintiff had, therefore, failed to substantiate his case of adverse possession. The trial Court was also of the view 4 that merely because the Plaintiff was in possession till 23/12/1981, on which date he was ousted from the suit property, would not be sufficient to make out a case for adverse possession. The trial Court, therefore, by its Judgment and Order dated 23/7/1985 dismissed the said suit. 5. The matter was carried in Appeal by the Plaintiff by filing R.C.A.No.193 of 1985. The Lower Appellate Court on considering the decree of the trial Court as also on considering the material that was on record confirmed the decree passed by the trial Court. The Lower Appellate Court relying upon a Division Bench's Judgment of this Court reported in 1977 Mah.L.J. 130 held that the Plaintiff had not satisfied the ingredients of the test laid down for substantiating a case of adverse possession. Both the Courts below, therefore, have concurrently held against the Plaintiff as regards his plea of adverse possession. 5 6. In my view, the challenge raised in the above Second Appeal does not involve any substantial question of law. The above Second Appeal is accordingly dismissed. 7. In view of dismissal of the above Second Appeal, Civil Application No.8076 of 1997 does not survive and is disposed of as such. [R.M.SAVANT, J]