( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 176 OF 1996 The State of Maharashtra .. Appellant Through the Collector of Dhule, [Ori. defendant] at Dhule. Versus 1) Babu Bhiwa Nagarale, age. 55 years, .. Respondents [Ori. plaintiffs] 2) Pundalik Bhagwan Patil, Age. 60 years, 3) Sujan Fakira Mali – since deceased through his heirs - 3A) Jeevan Sujan Mali, R/o. Village Khandalay, Tal. & Dist. Dhule. 4) Ramji Maharu Mali – since deceased through his heirs - 4A) Pusaram Ramji Mali 4B) Himmat Ramji Mali 4C) Tulsabai Baraku Mali 4D) Durgabai Rojdhar Mali 4E) Nirmalabai Baliram Mali 4F) Nausabai Ramji Mali All R/o. Village Khandalay, Tal. & Dist. Dhule. 5) Jagan Motiram Mali, Age. 45 years, 6) Chindha Deochand Mali, Age. 60 years, (Abated as per order dated 18.11.1998) ( 2 ) 7) Bhatu Deoram Mali, Age. 42 years, 8) Budha Ziparu Mali, Age. 63 years, (Abated as per order dated 18.11.1998) All Agriculturst, resident of village Khandalay Bk. Tal. & Dist. Dhule. Shri K.M. Suryawanshi, A.G.P. for the appellant/State. Shri N.L. Jadhav, Advocate for the respondents. CORAM : P.R. BORKAR,J. DATED : 19.06.2009 ORAL JUDGMENT :- 1. Heard Shri K.M. Suryawanshi, A.G.P. for the appellant/State and Shri N.L. Jadhav, Advocate for respondent No.5. This appeal is filed by original defendant State of Maharashtra being aggrieved by the decree of perpetual injunction restraining defendant/appellant from dispossessing respondents from block No.3 of village Khandalay, Tq. & Dist. Dhule. Respondent Nos. 1 to 8 who are original plaintiffs filed suit with a case that out of block No.3, which is in all 1 H 42 R Government fallow land, 42 R land is in possession of the plaintiffs/respondents. Each is in possession of 50 ft x 120 ft having threshing floor with ( 3 ) hedge. Some have also constructed huts and have been user for 125 years. The abuttals of property are mentioned in para 2 of the plaint. It is further stated that on 16.10.1982 the Circle Officer, Talathi along with Police came to take possession and gave threat of forcible dispossession and hence suit was filed for perpetual injunction from dispossessing them. Thus, it is admitted fact that the property belongs to and owned by the Government. Nowhere specifically it is stated that the plaintiffs/respondents are in adverse possession of the property. It is not stated since when the possession became adverse. It is mainly suit for protection as the respondents are in settled possession over certain portion of the property. 2. Both the Trial Court and the First Appellate Court held that the respondents are entitled to injunction and accordingly decreed the suit. This Second Appeal is admitted on 20.09.1990 on the following question of law:- Whether the plaintiffs could be considered to be having any legal right arising in their favour merely because for number of years they were using ( 4 ) Government land in question for threshing grain from ear corns? 3. Heard A.G.P. Shri Suryawanshi and Adv. Shri N.L. Jadhav for respondent No.5. In this case, the Trial Court has framed issue No.1 as :- (1) Do the plaintiffs prove that they been in continuous and lawful occupation of suit plots for about 12 years through their forefathers? . Thus the Trial Court even did not consider that so far as Government is concerned, statutory period for perfecting title by adverse possession is 30 years. The District Court framed point No.1 as follows:- (1) Whether it is proved by the plaintiffs that they are in continuous and lawful possession of the suit plots for about 125 years through their forefathers? 4. Thus, the Courts have not said that possession was adverse. There is no pleading to that effect. The evidence consists of Exh.20 which is 7/12 extract. In Kabjedar column, name of appellant State is mentioned and in cultivation column it is stated that there is an entry of primary school. ( 5 ) In the year 1978-79, 48 R portion was shown as fallow land used for threshing floor. It is common knowledge that in every village there are threshing areas owned by the Government which are used by the villagers for threshing of corn which is a seasonal activity and such activity does not create any right of ownership or any permanent right in the property. Exh. 20 is notice issued by the Tahsildar, Dhule to respondent No.6-Chindha asking him to remove the encroachment made on the Government property. Thus, there remains only statement of respondent No.7 Bhatu Mali at Exh. 22 as oral evidence. In his statement Bhatu Mali stated that they have been using threshing floor for 100 and 125 years. His age is of 45 years. During this period none of the officer ever obstructed their user or issued any notice and only at the time of filing the suit, the Government officials obstructed them from carrying out threshing activity. Accepting examination-in-chief as true, it cannot be said that respondents/plaintiffs have asserted adverse possession and perfected their title over the suit property by adverse possession for 30 years or more. It is not case that there was any indication that the officers of State Government were threatening to or attempting to dispossess respondents ( 6 ) otherwise than in due course of law. So, by following due procedure, the encroachment made by the respondents can be removed. Blanket injunction granted needs to be set aside. So, in the facts and circumstances, the appeal must be allowed. Hence, the appeal is allowed. The decree passed by the Trial Court and the District Court is hereby set aside. The parties are directed to bear their own costs. 5. The learned advocate Shri N.L. Jadhav wants stay to the above said decree. In view of nature of evidence discussed above, his prayer for staying the effect of this order is rejected. [P.R. BORKAR,J.] snk/2009/JUN09/sa176.96