1 41-sa-41-2011.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srj SECOND APPEAL NO.41 OF 2011 WITH CIVIL APPLICATION NO.245 OF 2011 Shri Dattu G. Patil & Others .. Appellants. V/s. Shri Narayan M. Bhagat & Others .. Respondents. Ms. Gauri Godse, for Appellants. None for Respondents. CORAM : G.S.GODBOLE, J. DATE : 30th AUGUST, 2011. P.C.: 1 Heard the learned Advocate for the Appellants. 2 Regular Civil Suit No.13 of 1994 was partly decreed by the learned Jt. Civil Judge, Junior Division, Panvel by Judgment and Order dated 31st July, 2003 and on recording of the finding that the Plaintiffs are in joint possession with the Defendants and after rejecting the contentions of the Defendants that they have become owners by adverse possession, a decree is passed against Defendant Nos.1 to 5, thereby restraining them 2 41-sa-41-2011.sxw from causing any unlawful obstruction to the joint possession of Plaintiff Nos.1 & 2. 3 Regular Civil Appeal No.139 of 2003 filed by the Appellants has been dismissed by the learned District Judge-I, Raigad, Alibag by impugned Judgment and Order dated 15th July, 2010. 4 The learned Advocate for the Appellant submits that there was sufficient pleading and evidence in support of the plea of adverse possession. She further submits that since the claim of the plaintiffs regarding ownership has not been accepted by the Trial Court as well as by the Appellate Court, the decree for injunction could not have been granted. It is lastly submitted that the Appellate Court has not considered the legal effect of the Certificate of Architect at Exhibit 98. 5 I have carefully considered the submissions. Perusal of paragraph 9 of the Written Statement clearly shows that the Defendants had claimed their original possession to be permissive possession. The plea of acquisition of title by adverse possession is not properly pleaded and the “animus possessendi” is clearly absent. The plea of entry being permissive, it is not pleaded as to when possession became adverse. Apart from this, the Courts below; on a proper consideration of the evidence on record, have 3 41-sa-41-2011.sxw concurrently held that the Defendants have not been able to prove the acquisition of ownership by adverse possession. 6 In view of finding that the Plaintiffs could not prove their ownership, the Trial Court has passed a decree, restraining Defendant Nos.1 to 5 from causing unlawful obstruction to the joint possession of the Plaintiffs. It is needles to state that this decree does not prevent the Appellants from adopting such remedy as may be available under the law, against Plaintiffs. 7 The Certificate of Architect at Exhibit 98 for whatever it was worth, has been considered by the Appellate Court in paragraph 20 of the Judgment and there is no perversity in that finding which is a pure finding of fact. 8 No substantial question of law arises. Second Appeal is dismissed. 9 On account of dismissal of Second Appeal, Civil Application No.245 of 2011 does not survive and the same is also dismissed. (G.S.GODBOLE, J.)