1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 455 OF 2008 (Rambhau Dashrath Vairagade & Ors. vs. Pundlik Kawduji Vairagade) 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. FEBRUARY 25, 2009. Heard Shri Raghute, learned counsel for the appellants – original defendants and Shri Malode, learned counsel for the respondent – original plaintiff. The challenge is to the reversing appellate Court judgment. The suit filed by the respondent – plaintiff was for declaration of his ½ share in the suit property i.e. Corporation House No. 937/0+1 as described in para 3 of the judgment of the trial Court. He claimed that he was having ½ share and also sought declaration and permanent injunction. The trial Court found that the plaintiff could not establish how the property came to him and property was in the name of Dashrath since long and hence dismissed the suit. The lower appellate Court found that Gift deed dated 3.5.1937 was a 30 year old document and it was acted upon. It further 2 found that it could be read into evidence because of Section 90 of Evidence Act. It therefore, found that the plaintiff (present respondent) had title to suit property and hence granted him declaration and injunction. Shri Raghute, learned counsel before me has contended that the mutation entries were carried out in the year 1971-72 and the suit has been filed 20 years thereafter i.e. in the year 2001 and therefore it is barred by limitation. He has further contended that the plaintiff pointed out that his name was being continued in Corporation records till 1991-92 and it was sought to be deleted by father of the defendants (i.e. present appellants) by producing a forged relinquishment deed. He points out that no relief in relation to said document is sought in the Civil Suit and according to him, therefore, Civil Suit has been rightly dismissed. Shri Malode, learned counsel states that though revenue records were corrected as per defendants way back in the year 1971-72, name of present respondent continued as owner in Corporation records till 1991-92 and after getting knowledge of an attempt to have it deleted, the suit has been filed within limitation. He further states that the relinquishment deed was not pressed into 3 service by the present defendants as source of their title before the Civil Court and hence no declaration in relation thereto was necessary. After hearing parties, I find that application of mind by the trial Court in para 12 of its judgment is totally erroneous. The fact that the original owner Itankar executed Gift Deed on 3.5.1937 and because of it suit property was gifted to three brothers viz., Narayan, Pundlik-plaintiff and Dashrath (father of defendants) is not in dispute. Thus, the acquisition of title of Pundlik was not in dispute before the Civil Court. The defendants could not have questioned Gift Deed dated 3.5.1937 and did not question it because it was a document of title even for them. The ownership of plaintiff Pundlik, therefore, stood established on record. Thus, by virtue of said Gift Deed, Pundlik as also deceased Dashrath were joint owners. In these circumstances, merely correction in the revenue records in the year 1971-72 is not sufficient to conclude that any cause of action has accrued for Pundlik in the year 1971- 72. The defendants have not pleaded adverse possession or then any bar of limitation and trial Court has not recorded any finding in this respect. In the absence of evidence of ouster of plaintiff in 1971-72 or thereafter, such a plea could not have 4 been pressed into service. The attempt to delete name of plaintiff from Corporation records in the year 1991-92 was made by the deceased Dashrath. Thereafter on the basis of alleged Relinquishment deed dated 6.7.1998, similar effort was made by present appellants and after getting its knowledge in the year 2001, suit has been filed. The defendants did not rely upon said Relinquishment deed dated 6.7.1998 before Civil Court. It is, therefore, obvious that the defendants failed to establish the ouster and in view of the pleadings, the trial Court framed appropriate issues. There was no issue in relation to either adverse possession or then about any bar of limitation. The consideration in para 9 of its judgment by the trial Court does not show that Pundlik had parted with his ownership rights over the suit property. I, therefore, find that lower appellate Court has correctly approached the controversy. No substantial question of law arises in this Second Appeal. The same is dismissed. No order as to costs. JUDGE *GS.