1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR Second Appeal No. 420/1999 and Second Appeal No. 423/1999 Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : Smt. V. A. Naik, J. DATED : April 17, 2007. Since common facts are involved in these two second appeals, same are being disposed of by this common order. Appellant Balabhau is the plaintiff in Regular Civil Suit No. 74/1989 and the respondents herein are the plaintiffs in Regular Civil Suit No. 65/1986. The property involved in the suits was a part of an ancestral property belonging to the family of the defendants in Regular Civil Suit No. 74/1989. An agreement of sale was executed in favour of Balabhau by defendant no.2- Dr. Pundlik on 6/6/1973. A sale deed was also executed by defendant no.2- Pundlik in favour of appellant Balabhau on 8/5/1974. It is the case of appellant Balabhau that the other defendants did not object to the execution of the sale deed transferring the entire house property in his favour on 8/5/1974. 2 The respondent no.1, the plaintiff in Regular Civil Suit No. 65/1986, prayed for a decree of partition and separate possession of 1/5th share in the suit property on the ground that the entire house property was the ancestral property and he had 1/5th share therein. Appellant Balabhau filed his written statement in Regular Civil Suit No. 65/1986 and denied the claim of Gangadhar. It was pleaded by appellant Balabhau in Regular Civil Suit No. 65/1986 that he had purchased the entire house property by virtue of the sale deed dated 8/5/1974. According to Balabhau, defendant no.2- Dr. Pundlik being the karta of the joint family, had a right to sell the suit property to Balabhau for legal necessity and as such the property was sold to Balabhau. In the alternative, it was pleaded in the written statement by Balabhau that he became the owner of 1/5th share of Gangadhar by adverse possession as he was put in possession of the suit property on 6/6/1973 in pursuance of the agreement of sale. Though it was pleaded by Balabhau in the written statement in Regular Civil Suit No. 65/1986 that he was the owner of the entire house property, in Regular Civil Suit No. 74/1989, it was pleaded by Balabhau that he was the absolute owner of the entire house property by virtue of the sale deed and also by the doctrine of adverse possession. 3 On an appreciation of the evidence tendered by the parties on record, the trial Court came to a conclusion that Gangadhar had 1/5th share in the suit property and was entitled to separate possession of the same. The trial Court further held that Balabhau had failed to prove that he became the owner of 1/5th share of Gangadhar by adverse possession. The Court further recorded a finding that the suit filed by Gangadhar was not barred by limitation. The findings recorded by the trial Court were confirmed by the appellate Court in Regular Civil Appeal No. 5/1993. The judgments passed by the trial and the appellate Courts are challenged in the instant second appeals. The submissions made on behalf of the appellant that the evidence on record clearly showed that Balabhau had become the owner of the suit property by adverse possession, cannot be accepted. Both the Courts have concurrently held that Balabhau had failed to prove that he became the owner of the suit property by adverse possession. Though Balabhau claimed to be in possession of the suit property from the date of agreement of sale i.e. 6/6/1973, Balabhau claimed to be the owner of the suit property and, therefore, having claimed the ownership to the suit property, Balabhau could not have claimed ownership by virtue of adverse possession. The ingredients of 4 adverse possession could not be satisfied in this case as Balabhau had himself asserted his title over the suit property on the basis of the sale deed dated 8/5/1974. The pleadings of Balabhau in the written statement filed in Regular Civil Suit No. 65/1986 and in the plaint in Regular Civil Suit No. 74/1989 filed by him, clearly showed that he asserted his ownership over the suit property in view of the sale deed dated 8/5/1974. The facts relating to adverse possession are also not pleaded either in the written statement in Regular Civil Suit No. 65/1986 or in the plaint in Regular Civil Suit No. 74/1989. No fault could be found with the judgments passed by the trial and the appellate Courts. Since no substantial question of law arises for consideration in these second appeals, same are dismissed with no order as to costs. Civil Application Nos. 4747/01 & 4748/01 Since the second appeals are dismissed, these civil applications also stand dismissed. JUDGE RMP