sa57.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO. 57 OF 2011 KAKASAHEB TUKARAM TUPE AND ANR. ... APPELLANTS. VERSUS BHIKABAI KESU DHAGE DECEASED LRS KADUBA KESU DHAGE AND ORS. ... RESPONDENTS. ... Advocate for Appellants : Mr.P.G. Patil h/f Mr.Dhorde Vikram R. Advocate for Respondents : Mr.S V Natu for R/1a & 1b. ... CORAM : S.S. SHINDE, J. Dated: December 16, 2011 PER COURT: 1. Heard learned Counsel for the appellant and the respondents. 2. The learned Counsel for the appellants submits that one Ambadas was succeeded by Sarju. In 1976 name of Sarju was in the revenue record of the suit property. It is further argued that Sarju inherited the said property from sa57.11 2 the year, 1952 till his death. In the last days of Sarju, he stayed with the mother of the appellant, Samindrabai and he took every care of Sarju in his ailment and therefore, out of love and affection, oral will deed was executed by Sarju in favour of Samindrabai. Samindrabai was in possession of the suit property from 1976 onwards till her death in 1996. The name of the appellant no.1 is also mutated. The learned Counsel, therefore, submits that if Samindrabai was in possession of the suit property from 1976 to the knowledge of the plaintiffs, the suit should have been filed within the period of 12 years. However, the suit came to be filed in the year 1999. According to the learned Counsel for the appellants, it is not in dispute that Samindrabai was in possession of the suit land from 1976 till her death and the appellant No.1 is also in possession of the suit property after death of Samnindrabai. The learned Counsel further submits that since the appellants and Samindrabai were in peaceful continuous possession of the property for more than 22 years, their plea for adverse possession should have been accepted by the Courts below. The oral will deed was sa57.11 3 executed in presence of the plaintiffs and also in presence of Bhausaheb Shinde who supported the case of the appellants before the Court below. However, the Courts below have erroneously held that the appellants failed to prove the execution of will deed by Sarju in favour of Samindrabai. The learned Counsel further submitted that the revenue record including 7/12 extract and Mutation Entry No. 371 would clearly demonstrate that Samindrabai and appellant No.1 were in possession of the property from 1976. The learned Counsel further submitted that both the Courts below have failed to frame specific issue on the point regarding limitation for filing the suit. Therefore, according to the learned Counsel for the appellants, this second appeal deserves consideration. He also invited my attention to the grounds taken in the second appeal, annexures thereto and also the reported judgment of the Supreme Court in cases of (1) Parsinni (Dead) by LRs. and others v/s Sukhi and others [(1993) 4 SCC 375], (2) Darshan Singh and others v/s Gujjar Singh (dead) by L.Rs. and others [2002 AIR SCW 201], and (3) Md. Mohammad Ali (Dead) sa57.11 4 by LRs. v/s Jagdish Kalita and others 2003(8) JT 25 : 2004(8) AIR SCW 271. Relying upon the same, the Counsel for the appellants would submit that when Samindrabai and appellant No.1, openly and to the knowledge of the respondents, are in possession and enjoyment of the property and there are entries in the revenue record, which establishes their possession and enjoyment was as owners and therefore, the plea of the appellants for adverse possession should have been accepted by the Courts below. 3. On the other hand, the learned Counsel for the L.Rs. of respondent No.1 submits that both the courts below, after appreciating the evidence brought on record, have taken the view that, the appellants have failed to prove the oral will deed by Sarju in favour of Samindribai and also their adverse possession. According to the learned Counsel for the respondents, once the appellants failed to prove oral will deed, resultantly, their another plea for adverse possession should fail. He submitted that when the application was filed by Samindrabai with Talathi, it sa57.11 5 was stated that she is the only LR of Sarju and there is no any other LR. To accept the plea of the appellants for adverse possession, the requirement is that notice should be given to the co-sharers. However, in the present case, no such notice was given to the co-sharers. Therefore, the status of the appellants and their possession in the suit property will continue as co-sharers. Therefore, both the Courts below have rightly rejected the pea of adverse possession raised by the appellants. The learned Counsel further submits that there is no question of limitation because the respondents continued to be co-sharers in the property and there was no notice by the appellants for their exclusion from the property. Therefore, there is no substance in the contention of the appellants that the point of limitation was not specifically framed by the Courts below. 4. The learned Counsel for respondents invited my attention to the reported judgments of the Supreme Court in case of Darshan Singh and others v/s Gujjar Singh (dead) by L.Rs. and others [2002 AIR SCW sa57.11 6 201], and Md. Mohammad Ali (Dead) by LRs. v/s Jagdish Kalita and others 2003(8) JT 25 : 2004(8) AIR SCW 271, and submitted that it has been held by the Supreme Court in case of Mohammad Ali (supra), in para 25, that possession of a property belonging to several co-sharers by one co-sharer, it is trite, shall be deemed that he possesses the property on behalf of the other co- sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that the title of the other co-sharers was denied and disputed. Therefore, according to the learned Counsel for respondents, the second appeal is devoid of any merits and the same deserves to be dismissed. 5. I have given due consideration to the rival submissions of the learned Counsel for the parties, perused the grounds taken in the second appeal and annexures thereto. The insistence of the learned Counsel for the appellants is on the ground Nos.(VI) to (VIII). So sa57.11 7 far as first contention of the learned Counsel for the appellants that point of Limitation should have been framed by the Courts below has no substance since there was no any specific ouster of the respondents from the suit property. They continued to be co-sharers in the suit property and, therefore, there was no question of framing any point of limitation. The important aspect in this matter is that Samindrabai, mother of appellant no.1, did represent herself as the only legal representative of the deceased Sarju before the Talathi. The fact that other two sisters are there, who are also entitled for share, was concealed by Samindrabai. It is not in dispute that no specific notice was given by the appellants to the respondents claiming adverse possession. Their status remains as co-sharers. 6. Reliance placed by the Counsel for the appellants on the reported judgments of the Supreme Court in Parsinni's case (supra), is wholly misplaced in the facts of this case. The plea of the appellants for adverse possession has been rightly rejected by the courts below sa57.11 8 on the ground that no notice was given to the respondents and that was without knowledge of the respondents. The Supreme Court, in Parsinni's case (supra) has considered the situation whether adverse possession was claimed to the knowledge of the other co-sharers and after fulfilling the requirements as contemplated under the relevant provisions, the plea of adverse possession was raised. The case in hand stands on different footings for the simple reason that when Samindrabai filed application before the Talathi claiming that she was the only LR of Sarju, concealing the fact that other two sisters are entitled for share in the suit property, would defeat the claim of the appellants for adverse possession. At the cost of repetition, it has to be observed that no specific notice or exclusion of the respondents was brought on record by the appellants and in absence of this, both the courts have rightly concluded that the appellants failed to prove their plea for adverse possession. Since the oral will deed is not permissible in law, as concluded by the courts below, the said findings arrived at by the Courts below need no interference. sa57.11 9 7. Therefore, taking overall view of the matter, in the facts and circumstances of this case, no case is made out to entertain the second appeal. None of the grounds taken in the second appeal, appeals to the court to entertain the second appeal. 8. The second appeal is devoid of merits and the same stands dismissed. Consequently, civil applications stand disposed of. Though the second appeal is dismissed, this Court appreciates the sincere efforts taken by the learned Counsel Mr. Patil in arguing the appeal. [ S.S. SHINDE ] JUDGE. ... PLK/*