1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 17 OF 2009 (Sheikh Mohasin Sk. Chand vs. Abdul Hak Abdul Samad) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. MARCH 16, 2009. Heard Shri Khandalkar, learned counsel for the appellant and Shri Dubey, learned counsel for the respondent. The suit of present respondent – plaintiff for declaration and for restoration of possession was partly decreed by the trial Court. The declaration that he is owner of property was given but relief of ownership was declined as valuation was not properly done and proper Court fees was not paid. The present appellant filed Regular Civil Appeal and this has been upheld by the Principal District Judge, Buldhana, on 6.10.2008 in Regular Civil Appeal No. 167 of 2003. Shri Khandalkar, learned counsel has argued that the lower appellate Court has found that the possession of present appellant as in the year 1980 has been held to be established and the lower 2 appellate Court has also found that there is no probable evidence to support the dispossession of plaintiff in the year 1999. he points out that document in dispute i.e. Exh. 18 Sale deed executed in 1933 and since then, therefore, appellant is in possession. He, therefore, states that when sale deed was not questioned as nominal document for almost 47 years till 1980 and thereafter till filing of suit in 1999, the lower appellate Court ought to have recorded a finding of adverse possession and perfection of title by the appellant and declaration of title given to respondent is misconceived. Shri Dubey, learned counsel on the other states that the declaration of title cannot be interfered with because it is based upon the appreciation of evidence. He further states that merely for want of technical objection about valuation of court fee, the relief of possession has been declined and he further states that the respondent – plaintiff can at any point of time apply for getting the possession. The scope of present Second Appeal is very limited and the contentions of Shri Khandalkar, learned counsel about perfection of adverse possession need to be looked into it. The lower appellate Court has found that there is evidence of 3 possession of defendant from 1980 and it has further noticed that plaintiff could not substantiate possession in his favour in 1999 to support filing of Regular Civil Suit No. 100 of 1999. But then in para 27, it has expressly found that the defendant never claimed adverse possession. It has also considered the sale deed executed in 1968 by defendant – appellant and the enquiry register at Exh. 55 but then found that the present respondent – plaintiff had no notice of said sale deed or of enquiry. It is to be noticed that adverse possession is a question of fact and the appellant – defendant has not brought on record any evidence to show that he was conducting himself as owner openly and hostile to present respondent – plaintiff. There is no evidence of any notice of such assertion or claim by the appellant – defendant. The findings in relation to adverse possession as recorded by lower appellate Court is based upon appreciation of evidence. Hence, no substantial question of law arises in this Second Appeal. It is dismissed. No order as to costs. JUDGE *GS.