1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 443 OF 1994 Vishwanath s/o Venkat Pandge, Aged 44 years, Occupation Agriculture, Resident of Selu, Taluka Ausa, District Latur Appellant V E R S U S Janardhan s/o Tukaram Hale, Aged 38 years, Occupation Agriculture, Resident of Laxmi Colney Kalika Devi Road Near Engineer Mekhle Nivas Latur, Taluka and District Latur Respondent Mr. S.V. Jadhav Patil, Advocate for the appellant Mr. M.L. Dharashive, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 30th July, 2010 ORAL JUDGMENT 1. When the appeal was admitted, substantial question of Law was framed on interpretation of documents with reference to oral evidence. This appeal is filed against the concurrent findings recorded by the Courts below. The appellant could not prove his case of adverse possession. The respondent filed the suit for restoration of possession of land survey No. 163/C, new survey No. 149, totally admeasuring 22 acres 9 gunthas, to the extent of 6 acres 14 gunthas of village Selu, Taluka Ausa, District Latur. The respondent’s case was as under : 2. Tukaram, the respondent’s father, had sold land survey No. 163/C, to the extent of 16 acres 5 gunthas to the appellant in the year 2 1958, vide a registered sale deed. The respondent contended that the remaining land of the said survey number, admeasuring 6 acres 14 gunthas remained with his father till his death, and he said, he came in possession of the said piece of land as owner after the death of his father. He said, in 1975-76, the appellant dispossessed him of this 6 acres 14 gunthas piece of land, and so, he filed suit for recovery of possession in 1982. 3. The appellant admitted that he purchased the area of 16 acre 5 gunthas in 1958 from the respondent’s father, but he added that since then he also possessed the remaining piece of land admeasuring 6 acres 14 gunthas. He said that since his possession was never obstructed or challenged by the respondent or his father, he acquired title by adverse possession to it. He also placed reliance on various entries in revenue record since 1958 to show he had been continuously in possession of the suit land. Despite of this, the Courts below held that he could not prove his hostile title and adverse possession. The lower appellate Court observed that though the appellant contended that he was in possession of the suit land since 1958, he did not plead that his possession of the land was adverse and with the knowledge of the true owner. The learned Judge of the first appellate Court also held that the appellant could not prove the adverse possession. 4. Surprisingly, though the burden of proving the fact that the appellant’s possession of the suit land was open and hostile to the respondent and his predecessor, the appellant led no evidence except his own deposition, which is also very cryptic. In his deposition, he simply said that since 1958 he also possessed the suit land along with the piece of land which his father had purchased in 1958. But, he neither pleaded nor proved or even deposed that at any point of time the respondent or his father had an occasion to challenge his adverse possession of the suit land and that he repelled such challenge 3 keeping them ousted of the suit land. Had this been pleaded and proved and had that incident been of a time 12 years prior to the date of the suit, the suit would have been held barred by limitation and the appellant could not prove his adverse possession. In absence of such proof, no amount of argument could help the appellant. The learned Advocate Shri. S.V. Jadhav Patil appearing for the appellant placed reliance on the Judgment of Supreme Court in the case of Smt. Chandrakantaben J. Modi and Narendra Jayantilal Modi v. Vadilal Bapalal Modi and others (AIR 1989 SC 1269). On going through the precedent, I realized that it has no application whatsoever to the facts of this case. The learned Advocate then placed reliance on the Judgment of Supreme Court in the case of Des Raj v. Bhagat Ram (2007 LawSuit (SC) 172). On going through this Judgment too, I realized that it has no application to the facts of this case, neither it supports the appellant’s case. In the said case, the plaintiff came to the Court with a case that he had been in adverse possession of the suit land which earlier belonged jointly to the plaintiff and defendants. He said that he exclusively was in possession since 1953. He also mentioned that on two occasions thereafter i. e. in 1968 and 1978, the defendant tried to seek partition of the suit land by filing suits, but failed. In view of this, it was held that the plaintiff’s possession was open, continuous and hostile to the defendants and the defendants knew about it. Such is not the pleading of the appellant in this case, and as said above, even in the evidence, the appellant did not depose accordingly. The appeal should therefore fail. Appeal stands dismissed. (A.V. NIRGUDE, J.) srm/sa/443/94 4