( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 241 OF 2009 Shri Ramakant s/o Ramdas Sonar APPELLANT VERSUS Late Ganpatlal s/o Bandulal Agrawal Since deceased, by L.Rs. Shriram s/o Kanhayalal Agrawal and others. RESPONDENTS ..... Mr. R.R. Mantri, advocate holding for Mr. S.B. Yawalkar, advocate for the appellant. Mr. U.S. Malte, advocate for the respondents. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 3rd November, 2009] PER COURT : 1. Heard counsel. 2. This second appeal is preferred against concurrent judgements rendered by the trial Court and first Appellate Court in favour of original plaintiffs. The appellant is original defendant No. 1 and his father was the original defendant No. 2. The deceased ( 2 ) plaintiff was, admittedly, the owner of the suit properties. He filed suit (R.C.S. No. 150/1978) for declaration and injunction. According to original plaintiff, deceased Ganpatlal, he was residing far away from native place on account of his service and had executed a Power of Attorney of original defendant No. 2 i.e. Ramdas, who is father of the present appellant. It was alleged that said Ramdas was appointed as Power of Attorney in order to look after some other litigation but when deceased Plaintiff – Ganpatlal went to the suit properties, then he was obstructed by the appellant. The appellant claimed to have derived possession under “kararnama” dated 29-10-1975. So, Ganpatlal sought declaration that the so called “kararnama” was illegal, inoperative and not binding on him. Incidentally, he also sought relief of perpetual injunction against said Ramdas and the appellant i.e. father and the son. After filing of the suit, in the year 1978, by virtue of amendment dated 13-02-1995, deceased plaintiff – Ganpatlal introduced relief for possession of the suit properties on basis of his title. The appellant resisted the suit on various grounds and also had filed amended ( 3 ) written statement. He mainly claimed the right to continue in possession on the ground that the suit was barred by limitation. He also submitted that his long standing possession was transformed into that of ownership due to prescriptive title acquired by him. 3. The Courts below found that deceased plaintiff – Ganpatlal had not executed any agreement i.e. kararnama dated 29-1-1975 in favour of the appellant. The Courts below also noticed that he had executed a Power of Attorney in favour of father of the appellant i.e. deceased Ramdas. The Courts below came to conclusion that the plea of adverse possession was untenable because the very inception of the possession of the appellant was permissive and there was no element of hostility as such. Both the Courts below held that the suit was not barred by limitation in as much as it was covered by Article 65 and not by Article 64 of the Limitation Act. 4. Mr. Mantri would submit that the second appeal involves two (2) substantial questions of law, namely, ( 4 ) one in respect of the limitation and another in respect of the question pertaining to effect of the amendment which was introduced after about 16 years and odd. He would submit that the suit is governed by Article 64 and, therefore, after 12 years, it could not have been decreed. He contended that the amendment of the plaint for relief of possession could not relate back to the date of the suit and as such, the very basis of the decree is shaken. 5. Mr. Mantri seeks to rely on certain observations in “Ramaiah v. N. Narayana Reddy (Dead) by L.Rs.” (AIR 2004 S.C. 4261) and “Avtar Singh and others v. Th. Atma Singh and others” (AIR 1982 Jammu and Kashmir 141). He also invited my attention to observations in “Vishwambhar and others v. Laxminarayana (Dead) through L.Rs. and another” (AIR 2001 S.C. 2607). 6. In “Ramaiah v. N. Narayana Reddy (Dead) by L.Rs.” (supra), the Apex Court held that whether a suit is governed by Article 64 or Article 65 has to be ( 5 ) decided by reference to pleadings of the parties. The proposition of law cannot be disputed. In the present case, there is absolutely no dispute about the fact that deceased plaintiff – Ganpatlal was the owner of the suit properties. All along, it was pleaded by the appellant that he was inducted by deceased Ganpatlal vide the kararnama dated 29-10-1975 and, therefore, he was entitled to remain in possession for ten (10) years as a licensee as per terms of the said agreement styled as “kararnama”. The suit could not be regarded as one filed by a person having better possessory title or by a person on strength of previous possession. The suit filed by an owner for recovery of possession is governed by Article 65 and not by Article 64. The appellant also pleaded acquisition of ownership rights by prescription. It is to be noted that he failed to prove the plea of adverse possession. The simple reason for rejecting such a plea is that his possession could not be regarded as adverse unless he had set up claim for counter title during pendency of the suit and was in possession on strength of such hostile title to the knowledge of the ( 6 ) original plaintiff – Ganpatlal. Another plank of defence was that he continued to remain in possession on basis of terms of said kararnama dated 29-10-1975. He claimed to be licensee. Even assuming, by stretching the case of the appellant to much extent, that he was licensee, then also his such permissive possession could not be useful for the purpose of claiming hostile title. Secondly, the period of ten (10) years had already elapsed during pendency of the suit itself and, therefore, the Courts below rightly concluded that he continued to remain in possession without any legal right as such. 7. In “Vishwambhar and others v. Laxminarayana (Dead) through L.Rs. and another” (supra), it is held that the amendment would not relate back to the date of the suit if as on the date of the amendment, the suit could be treated as barred by limitation. In other words, retrospectivity of the amendment depends on the question whether the right claimed as on the date of the suit is continued or that such claim itself is barred by ( 7 ) limitation. The appellant had no right to continue in possession when his so called right arising from the kararnama had elapsed or that his permissive possession was directed to be discontinued. Considering these aspects, I am of the opinion that no substantial question of law is involved in this second appeal. The findings of fact recorded by both the Courts below would make it amply clear that the appellant attempted to seek further continuation of the possession which was illegal since inception and, therefore, on equitable principles also I do not find any case in his favour. 8. Mr. Mantri submits that there are standing crops in the suit property and, therefore, the interim relief may be continued for four (4) months. He also seeks such time in order to approach the Apex Court. The ad-interim relief is continued for four (4) months and it is made clear that the plaintiffs would be entitled to claim the damages/compensation as may be permissible under the law if ultimately the decree is confirmed. ( 8 ) 9. In the result, the second appeal is dismissed. No costs. In view of dismissal of the second appeal, civil application No. 3481/2009 does not survive and hence, stands dismissed accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/sa241-09