1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO: 571/2005 ( Laxmibai 2d/o Sambha Barsinge and 2 others vs. Rukhmabai wd/o Ramji Barsinge and others) ------------------------------------------------------------------------------------------------ Office Notes, Office Memorandum of Coram Court's or Judges Order appearances, Court's orders of directions & Registrar's orders. ................................................................................................................................... Mrs. Pallavi Mahashabde Adv. for appellants Mr. Khanzode Adv.for R-1,2A to D ,3 & 4 CORAM: Smt. VASANTI A. NAIK,J. DATED: 16th July, 2008. *** Heard counsel for respective parties. 2. Appellants are the original plaintiffs. The suit was filed by the plaintiffs against the defendants for removal of encroachment and for possession of the suit property. According to the plaintiffs, the original owner -Dhondu had executed a gift deed in favour of plaintiffs. The plaintiff No.1 -Laxmibai became the owner thereof in pursuance of the same. It is then pleaded by the plaintiffs that in or about the year 1984, the defendants illegally encroached upon the suit property and did not vacate the same inspite of the request of the plaintiffs. Hence, according to the plaintiffs, the suit was instituted. 3. The defendants denied the claim of the plaintiffs. It was the case of the defendants that Dhondu, father of some of the defendants, never gifted the property to the plaintiffs and the 2 defendants inherited the property from Dhondu and were living in the property for nearly 50-years. The defendants also claimed title to the suit property by adverse possession. 4. On the aforesaid pleadings of the parties, the trial Court framed necessary issues and on consideration of the material evidence on record, held that the plaintiffs had succeeded in proving that the defendants had encroached upon the entire suit site. The trial Court, therefore, granted decree of possession in favour of plaintiffs. 5. In an appeal filed by the defendants against the judgment passed by the trial Court, the first Appellate Court reversed some of the findings recorded by the trial Court. The first Appellate Court confirmed the findings that the plaintiffs had proved their ownership over the suit property. The Appellate Court, however, held that the plaintiffs did not succeed in proving that suit site was in their possession till the year 1984. The first Appellate Court on proper appreciation of material evidence on record, came to the conclusion that the defendants were in possession of the suit property at least from the year 1969 and the suit filed by the plaintiffs for possession of the suit property was barred by the provisions of the Limitation Act. 6. While recording the finding that the suit was barred by limitation, the first Appellate Court 3 considered the voluminous oral as well as documentary evidence on record which showed that the plaintiffs had lost the possession of the suit property in the year 1969. Exh.156 showed that the plaintiff no.1 had made a categorical statement before the Judicial Magistrate First Class Gadchiroli on 14.7.1972 that the defendants had encroached on her property since the year 1969. Copies of complaints lodged by the plaintiffs against the defendants in the year 1973 and 1974 were also produced on record to falsify the case of the plaintiffs that the defendants had for the first time encroached upon the suit land in the year 1984 and the suit land was in possession of the plaintiffs till then. Thus, the Appellate Court, on appreciation of material evidence on record, recorded a categorical finding that the defendants had encroached on the property of plaintiffs since the year 1961. As the civil suit was filed in the year 1984, the first Appellate Court rightly held that the suit was barred under the provisions of Art. 64 of the Limitation Act, 1963. 7. Since the findings recorded by the first Appellate Court are pure findings of fact, based on proper appreciation of material evidence on record, they do not give rise to any substantial question of law. Second Appeal is, therefore, dismissed, with no order as to costs. JUDGE sahare