1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 231 of 2002 WITH CIVIL APPLICATION NO. 326 OF 2002 Shri Vinayak @ Virendra Harischandra Sodawala .. Appellant V/s. Smt.Tarabai Harischandra Sodawala & 7 Ors. ..Respondents Mr.P.M.Arjunwadkar with Mr.G.S.Godbole for the Appellant/Applicant. Mr.S.G.Karandikar for Respondent Nos.1A,2B and 3. CORAM : R.M.SAVANT, J. DATED : AUGUST 30TH, 2008. P.C. This Second Appeal takes exception to the Judgment and decree dated 6th December, 2001 passed by the learned Additional District Judge, Palghar 2 in Regular Civil Appeal No.319 of 1996 confirming the Judgment and Decree dated 27th July, 1993 passed by the Trial Court. 2. The Appellant is the original Defendant No.1 in the suit filed by the husband of Respondent No.1 for declaration and possession of the suit property admeasuring 35' X 10' towards east and a shed towards west admeasuring 16' X 10' in the chawl situated in survey no.128 and for mense profit from the date of the suit. It was the case of the plaintiff that he is the owner of Chawl of four Galas alongwith the land alongwith the Chawl, a well, laterin etc., and in possession of the same. The said property was self-acquired property of the father of the Plaintiff Harischandra. The father Ramubhai by his last Will and Testimony dated 17th February, 1940 bequeathed the Gala amongst his sons and in case the son was not alive to his wife. Gala No.1 was accordingly bequeathed 3 to the mother of the Defendant No.1 i.e. the Appellant herein Lilavati Haribhau i.e. the sister- in-law of the Plaintfif and it is since than that the Plaintiff and the three daughter-in-laws are enjoying the respective shares and the land is accordingly mutated in the name of daughter-in-law and the Plaintiff. 3. It is further the case of the Plaintiff that the said Gala No.3 was auctioned in the execution proceedings filed for execution of the decree passed in Regular Civil Suit NO.203 of 1953 filed against the said Lilavati Haribhau in which he purchased the same. The sale was confirmed on 30th December, 1957 and accordingly sale certificate was issued in the name of the Plaintiff and as per the record of Miscellaneous Application No.88 of 2001, he was given the possession of the said Gala. It is further the case of the Plaintiff that inspite securing possession, he allowed the 4 Defendants and his mother, father, brother and sisters, nieces and nephews and sister-in-law to reside and occupy the suit premises as licensee's of the suit premises out of love and affection. It was the case of the Plaintiff that on account of the auction sale the Defendants have no right or interest what so ever in the suit premises. It was the case of the Plaintiff that it was only Defendant Nos.1 to 3 who were residing in the suit premises as the other Defendants were married and staying at their respective matrimonial houses. It was further the case of the Plaintiff that inspite of notice dated 16th September, 1985 terminating the license, the Defendants failed to deliver the possession of the premises and continued to occupy the suit premises which were in their occupation. 4. The Defendant No.1 appeared in the said suit and filed his written statement and contended that the suit property is a joint family property 5 and that he being a co-parcener was a co-owner alongwith the Plaintiff. The Defendant No.1 further contended that he is in possession of the suit premises openly, peacefully and without interruption for 24 to 25 years since auction and thereby he became owner by adverse possession. The Defendant No.1 further contended that he was not aware of the Will which was executed by Rambuhai, that the same was void as it was executed by the testator under a misrepresentation for the benefit of the Plaintiff and at his behest. 4. The other Defendants did not file their written statements. 5. The parties went to trial, the Trial Court on the basis that the Will was more than 50 years old and also on the basis that the validity of the will was otherwise not an issue before the Court held that the parties would be bound by the said 6 Will and as per the said Will the Gala No.3 was bequeathed to Lilavati Haribhau and accordingly Lilavati Haribhau had became the owner of the said Gala under the said Will. In so far as the title and possession of the Plaintiff is concerned, the Trial court held that the Plaintiff had purchased the said Gala in the auction held in the year 1967 out of his own funds and therefore he became owner of the said Gala. The case of the Defendant No.1 i.e. the suit property was the joint family property was rejected by the Trial Court. 6. The Trial Court also on the basis of the Court record which was got produced through the Nazir of the Court examined, recorded a finding that the possession of the said suit property was handed over to the Plaintiff as per the miscellaneous Application being No.88 of 1961. The Trial Court taking into consideration the admission of the Defendant himself wherein the 7 Defendant admitted that the taxes and land Revenue was being paid by the widow of the deceased Plaintiff, held that the Defendant No.1 was the licensee of the Plaintiff and therefore directed the eviction of the Defendant No.1 from the suit premises. 7. The Trial Court also rejected the theory that the family was joint, and assumed that if the Defendants case is to be accepted, the property in question has to stand in the name of the Plaintiff and his brother and not in the name of the sister-in-laws. In so far as the issue of limitation is concerned, the Trial Court held that the suit having been filed after the notice of termination being issued by the Plaintiff and within one year was within limitation. The Trial Court therefore decreed the said suit by its Judgment and order dated 27th July, 1993. 8 8. Being aggrieved by the decree passed by the Trial Court dated 27th July, 1993, the Defendant NO.1 had carried the matter in Appeal being Regular Civil Appeal No.319 of 1996. The Lower Appellate Court confirmed the finding of the Trial Court on all the aforesaid issues and thereby confirmed the decree passed by the Trial Court. 9. It is sought to be contended on behalf of the Appellant that the suit filed was not within limitation as it ought to have been filed within 12 years of the date when the Plaintiff allegedly obtained possession of the property in the year 1961. The suit filed therefore in the year 1986 was beyond the period of limitation in terms of Article 65 of the Limitation Act, 1963. It is further sought to be contended that without the Will being proved the court has accepted the same and held that Lilavati Haribhau had became the owner of Gala No. 3 on the basis of the said Will. 9 It is lastly contended that it was not open for the Plaintiff to file a separate suit as under section 47 of the Code of Civil Procedure, all issues relating to the execution of the decree have to be agitated in the execution proceedings and not by way of separate suit. In my view, the contentions raised are misconceived, and cannot be accepted in so far as suit premises are concerned, the Plaintiff has acquired title on account of having purchased it in the Court auction in the year 1957 and possession of which was obtained in the year 1961. In terms of Article 65 of the Limitation Act, the period of limitation starts when claim is made by the either of the party on the basis of his possession being adverse to the Plaintiff. In the instant case only, after the notice came to be issued to the Defendant No.1 in the year 1985 and he having refused to vacate the suit premises in his possession, the limitation would start to run and therefore the suit filed in the year 1986 could 10 not be said to be filed beyond the period of limitation. 10. In so far as the next submission is concerned, in respect of the Will, in my view whether the Will is proved or not is immaterial as the Plaintiff has based his suit on the basis of the title which he has acquired pursuant to the auction sale and therefore whether the Will is proved or not is immaterial. 11. In so far as the last contention is concerned, the Plaintiff as indicated above has based his suit on the title he has acquired to the suit premises on account of the purchase of the suit premises in the Court auction. The Plaintiff is not concerned with any execution proceedings so as to agitate the claim made in the suit in the said execution proceedings. The claim of the Plaintiff was purely based on title and the 11 possession which he had acquired pursuant to the Court Auction and therefore there was no warrant for the Plaintiff to resort to the procedure contemplated under section 47 of the Code of Civil Procedure 12. Both the Courts below having concurrently held as regards the title of the Plaintiff in the suit property as well as the possession and also having concurrently held as regards the status of the Defendants as a licensee of the Plaintiffs, in my view, the challenge raised in the Second Appeal does not involve any substantial question of law. The Second Appeal is, accordingly, dismissed. 13. In view of the dismissal of the Second appeal, the Civil Application No.326 of 2002 does not survive and is disposed of as such. 14. At this stage Shri G.S.Godbole, the 12 learned counsel appearing for the Appellant prays for time to vacate the suit premises in question. The learned counsel for the Respondents leaves the said issue to the Court and submits that time which this Court deems reasonable may be granted to the Appellant. The Appellant is therefore granted time upto 31st December, 2009 to vacate the suit premises on filing an usual undertaking in this Court within a period of four weeks from date. In the event the undertaking is not filed, the Respondents would be entitled to recover possession of the suit premises in accordance with law. [R.M.SAVANT, J.]