1 IN THE COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.787 OF 2003 ALONGWITH SECOND APPEAL NO.788 OF 2003 Pandu Bandu Sonawane .. Appellant V/s. Sadashiv Ganpat Sonawane (Since deceased through his LR's) Bhausaheb Sadashiv Sonawane & Ors. ..Respondents Mr.R.S.Kate for the Appellant/Applicant. Mr.Gauri Godse for the Respondents. CORAM : R.M.SAVANT, J. DATED : AUGUST 6TH, 2008. P.C. Both the above Appeals arises out of the common Judgment and decree dated 27th March, 1993 passed by the 2nd Additional District Judge, Baramati. The decree passed in Regular Civil Suit No.238 of 1997 came to be set aside. 2 2. The Appellant in both the above Appeals is the original Plaintiff who has filed the Regular Civil Suit No.238 of 1997 for perpetual injunction and declaration of his title in respect of land bearing Gat No.165 situated at Moji Nimbodi. The declaration of title was sought on the basis of the adverse possession of the Plaintiff from the year 1975. 3. It was also the case of the Plaintiff that the suit property which was belonging to the Defendant was agreed to be sold in favour of the plaintiff, and Rs.2,500/- was paid as earnest money to the Defendant and balance of Rs.500/- was to be paid at the time of execution of sale deed. It is the case of the Plaintiff that he was put in possession of the suit property on the same day by a separate document namely a possession receipt. It is further the case of the Plaintiff that from 3 the year 1975, he was in possession and the Defendant started obstructing his possession from 1st September, 1997. It is further the case of the Plaintiff that he has perfected his title by adverse possession. 4. On the other hand, it is the case of the Defendant that no such Agreement of Sale is executed between them nor the Plaintiff is put in possession of the suit property. It is the case of the Defendant that he purchased the suit property from its erstwhile owner Vithal Narayan Kale by registered sale deed dated 2nd December, 1968 since then they are in possession of the suit property. It is further the case that through the Plaintiff, he obtained a loan of Rs.2,500/-from one Krishna Dhamal who was a friend of the Plaintiff and as a token of security a Mortgage Deed was executed on 9th July, 1974. 4 5. It is further the case that upto the year 1976 the Revenue entry was in his name and the Plaintiff in collusion with the Talathi concerned got his name recorded in place of the Defendant. The Defendant therefore had approached the higher Revenue Authorities who have passed an order for removing the name of the Plaintiff and recording the name of the Defendant. 6. The parties went to trial, on the basis of the evidence that was adduced, the Trial Court partly decreed the said suit in as much as the Trial Court granted injunction in favour of the Plaintiff in respect of the suit land. The said injunction was granted principally relying upon the possession receipt which was issued in the name of the Plaintiff. 7. In so far as the plea of adverse possession is concerned, the Trial Court was of the 5 view that the Plaintiff had not substantiated his case for adverse possession in terms of the test laid down as regards the said plea. 8. Aggrieved by the part decreeing of the said suit, both the Plaintiff and the Defendants filed Cross Appeals. The Plaintiffs Appeal was numbered as 24 of 2001, whereas the Defendant's Appeal was numbered as 13 of 2001. The Lower Appellate Court allowed the Appeal filed by the Defendant i.e. Regular Civil Appeal No.13 of 2001 and rejected the Appeal filed by the Plaintiff i.e. Regular Civil Appeal No.24 of 2001. The Lower Appellate Court confirmed the findings of the Trial Court in so far as adverse possession is concerned and held that the plea of adverse possession canvassed by the Plaintiff could not be accepted. 9. In so far as the injunction is concerned, the Lower Appellate Court on a re-appreciation of the evidence that was before it came to a 6 conclusion that since, the Agreement for Sale was in the name of the said Dhumal and the possession receipt being in the name of the Plaintiff, the said possession receipt could not be free of suspicion. The Lower Appellate Court also in the context of the recitals in the Agreement for Sale observed that when the said recitals stipulated that the possession was to be handed over on the execution of the sale deed, how the plaintiff could be said to be in possession of the property on the basis of the said possession receipt which has been executed on the same day. 10. The Lower Appellate Court also observed that the plaintiff has earlier filed Regular Civil Suit No.367 of 1992 wherein claim based on adverse possession was taken for seeking a declaration and which suit came to be dismissed for non-prosecution and in view of the non-disclosure of the said fact in the plaint in the instant suit, observed that 7 the plaintiff had not approached the Court with clean hands and that there was a suppression of a material fact from the Court. The Lower Appellate Court also took into consideration the fact that the Revenue entries which were made in favour of the plaintiff in the 7 X 12 extracts were ultimately set aside by the superior Revenue Authorities on the Application/Appeal filed by the Defendant above named in the said suit. 11. In my view, the exercise of jurisdiction by the Appellate Court and the finding recorded by it, in the facts and circumstances as mentioned above cannot be faulted with. 12. In my view, the challenge raised in the Second Appeals does not raise any substantial question of law in the light of the said findings. 13. Both the Second Appeals are, accordingly, 8 dismissed. [R.M.SAVANT, J.]