1 sa748.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.748 OF 2010 WITH CIVIL APPLICATION NO.16660 OF 2010 Shaikh Babu @ Begulmiyan appellant/ s/o Shaikh Nanhu defendant. vs babusisngh @ Rajendrasingh respondent/ s/o Ratansingh Chauhan plaintiff. ------------------------------------------------------- Smt. S.G. Chincholkar, Advocate, for the appellant. ------------------------------------------------------- Quorum: Shrihari P. Davare,J. Date : 8th February 2011. P.C. 1. Heard Smt. Chincholkar, learned Advocate for the appellant- original defendant. 2. Unsuccessful defendant has filed present second appeal, challenging the judgment and order dated 5.10.2010, passed by the learned District Judge-1, Bhokar, in Regular Civil Appeal No.8 of 2010 (Old No.181 of 2003) dismissing the said appeal filed by defendant, assailing the judgment and decree dated 23.9.2003 passed in R.C.S. No. 12 of 2001 by the learned Civil Judge, Junior Division, Himayatnagar. Accordingly, there are concurrent findings against the appellant- original defendant. Parties are hereinafter referred to as per their original status i.e. plaintiff-and defendant. 2 sa748.10 3. The plaintiff filed R.C.S. No.12 of 2001 against the defendant, for recovery of possession of the suit plot. Plaintiff claims to be owner and possessor of the suit property bearing house No.23-A admeasuring 70x70 feet, situated Ward No. 10, Himayatnagar, District, Nanded, till 26.2.2001. It is, however, case of the plaintiff that on 26.2.2001, he was out of station and taking benefit of his absence, the defendant encroached upon the suit plot and erected a temporary shed thereon and made wooden fencing surrounding the suit plot. On 1.3.2001, when the plaintiff returned back to Himayatnagar, he got knowledge regarding the said encroachment and, therefore, he filed application to Himayatnagar Police Station, for removal of encroachment, but the police did not take any action. Lastly, on 25.8.2001, plaintiff requested the defendant to hand over possession to him, but the defendant refused and hence, the plaintiff filed suit. 4. The defendant filed written statement and resisted the suit claim. The defendant admitted the ownership of the plaintiff over the suit plot, but came with a plea of adverse possession, contending that he is in possession of the suit plot since 1986-87 adversely to the plaintiff's title and the said fact was within the knowledge of the plaintiff, and has been residing thereon with his family members and consequently, perfected title by adverse possession. Consequently, defendant submitted that the plaintiff is not entitled to recover possession of the suit land from the defendant, and urged for dismissal of the suit. 3 sa748.10 5. After considering rival submissions and also considering the evidence adduced and produced by the parties, the trial court decreed the suit by judgment dated 23/09/2003, and directed the defendant to hand over possession of the suit land to the plaintiff and enquiry regarding mesne profits, was also directed. 6. Being aggrieved and dissatisfied by the said judgment and decree of the trial court, the defendant preferred Regular Civil Appeal No.8 of 2010 (Old No.181 of 2003) before the District Court, Nanded. However, the said appeal also came to be dismissed by the District Judge-1, Bhokar, by judgment and order dated 5.10.2010. Thus, the defendant lost before both the lower courts and, therefore, preferred present second appeal, assailing the judgments of both the lower courts. 7. At the outset, it is apparent that defendant admitted the ownership of the plaintiff over the suit plot. It also appears from the judgment of the trial court that the defendant failed to produce cogent and reliable evidence to establish his possession over the suit plot for the period of twelve years. Moreover, defendant's witness DW-2 Shaikh Ahmed was also not believed by the trial court, in that respect. 8. Considering the evidence of the defendant, it is observed by the trial court that he was having possession over the suit plot since 1993 onwards, and not from 1986 as alleged and the suit has been filed within ten years from the date the plaintiff lost possession of the suit 4 sa748.10 land. It is further observed by the trial court that there is absolutely no evidence to show that the defendant has perfected his titled to the suit plot, by principle of adverse possession. It is also reflected in the judgment of the trial court that there is no single document produced by the defendant to show that his possession over the suit plot was for more than statutory period and adverse to plaintiff's title, and as such, the defendant failed to prove that he perfected his title to the suit plot, by principle of adverse possession. Consequently, the trial court answered issue No.1, in respect of perfecting title of defendant regarding suit property by adverse possession for more than 12 years, in the negative. 9. The first appellate court also framed the issue, "Whether the defendant has proved that he is in the possession of the suit plot since 1986 and has perfected his title by way of adverse possession?" and answered the same in the negative, by observing that possession of the defendant over suit plot appears to be on the basis of agreement of sale dated 26.12.1993 and, therefore, the defendant cannot be said to have perfected his title over suit plot by adverse possession. 10. Having comprehensive view of the matter, there does not appear to be any flaw in the reasoning adopted by the trial court, as well as the first appellate court and no interference therein is called for, in the present second appeal. 5 sa748.10 11. In the circumstances, no substantial question of law could be formulated and consequently, present second appeal lacks merits and, therefore, same stands dismissed. 12. Civil Application No. 16660 of 2010 for stay stands dismissed, accordingly, since nothing survives therein. (SHRIHARI P. DAVARE, J.) pnd/sa748.10