1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.452 OF 2009 WITH CIVIL APPLICATION NO.1509 OF 2009. Ganesh Rajaram Kulkarni, Since deceased, through L.Rs.- 1) Chandrakant Ganesh Kulkarni & Ors. .. Appellants V/s Rajaram Tatyaba Gharge & Anr. .. Respondents Mr. D.S.Joshi for the Appellants. Mr.Ajit Kenjale for Respondent No.1. CORAM: R.G.KETKAR, J. DATE: 3rd August, 2010. P.C. 1. This appeal is preferred by the original plaintiffs challenging the judgment and decree dated 24th June, 2009 passed by the learned Ad-hoc District Judge, Satara in Regular Civil appeal No.298 of 2003. By that judgment, the learned District Judge allowed the appeal preferred by the Respondents (hereinafter referred as Defendants) and set aside the judgment and decree dated 23rd January, 2002 passed by the learned Civil Judge, Junior Division, Dahivadi in Regular Civil Suit No.249 of 1995. The parties will hereinafter be referred to as per their original status in the trial Court. 2. Plaintiffs instituted suit for declaration of their ownership in respect of the property admeasuring 63 ft East-West length and South-North width 21 ft. to the East and 12 ft.to the west out of C.S.No.230 and 229 from northern side i.e adjacent to the south side of C.S.No.231 ( for short suit property), as also for injunction restraining the Defendants from obstructing their possession. 3. By judgment and decree dated 23rd January, 2002 learned Trial Judge decreed the suit. The learned Trial Judge declared that the suit property is exclusively owned by the plaintiffs. The Defendants were restrained from 2 disturbing the possession of the plaintiff in respect of the suit property. 4. Being aggrieved by this decision, the Defendant went in appeal. The learned Ad-hoc District Judge allowed the appeal by impugned judgment and decree dated 24th June, 2009. It is against this judgment and decree the original plaintiffs have preferred this appeal. 5. Heared Mr.Joshi, learned counsel for the Appellants-original plaintiffs and Mr.Kenjale, learned counsel for Respondent No.1-original Defendant. Mr.Joshi submitted that the learned trial Judge held that the suit instituted by the plaintiffs was within limitation. However, learned District Judge came to the conclusion that the suit was barred by limitation. He submitted that initially the plaintiff made application to the City Survey Officer which was rejected on 30th November, 1985. Against that decision, appeal was preferred before the Superintendent of Land Records, Satara. Appeal was dismissed on 16th August, 1995 not only on the ground of limitation but also on merits. He therefore submitted that the cause of action for filing the present suit accrued to the plaintiffs only after the decision of Superintendent of Land Records, Satara, delivered on 16th August, 1995. He therefore submitted that the learned District Judge committed error in holding that the suit instituted by the plaintiffs was barred by limitation. On merits he submitted that the Sale Deed dated 25th February, 1975 Exh.41 clearly described the extent of the suit property. If the area is specifically mentioned, and if there is inconsistency between the boundaries and the area, the area will prevail over the boundaries. He therefore submitted that the impugned judgment and the decree requires interference. 6. On the other hand, Mr.Kejale, learned counsel for the Defendant supported the impugned judgment and decree. He submitted that the cause of action accrued to the plaintiffs after their application was rejected on 30th November, 1985 and not after the decision of the Superintendent of Land Records. The suit was filed only for the relief of declaration and injunction and not for possession. He therefore submitted that the suit was clearly barred by limitation when the cause of action accrued in the year 1985. On 3 merits he submitted that whenever there is conflict between the area and the boundaries, boundaries will prevail. Considering the boundaries described in the Sale Deed dated 25th February, 1975, the learned District Judge has rightly allowed the Appeal. 7. I have considered the rival submissions made by the parties. The learned Trial Judge held that the suit instituted by the plaintiffs was within limitation. However, the Appellate Court held that it was not within limitation. It is not in dispute that against the decision dated 30th November, 1985 plaintiffs went in appeal which was decided on 16th August, 1995. If that be so, it cannot be said that the cause of action accrued in favour of the plaintiffs in the year 1985. To that extent, in my opinion, learned District Judgte was not right. 8. On merits, the learned District Judge held that whenever there is inconsistency between the area of the property and the boundaries, the boundaries will prevail. In support of this conclusion, he relied upon the judgment of the Calcutta High Court in the case of M/s.Roy & Co. V/s.Smt.Nani Bala Dey, AIR 1979 Cal.50. This aspect is considered by the learned District Judge in paragraph No.12 of the impugned judgment. In my opinion, whenever there is conflict between the area and the boundaries, the boundaries will prevail. In this view of the matter, I do not find that the learned District Judge committed any error while allowing the appeal. 9. Considering this aspect, in my opinion, this appeal does not involve any substantial question of law. Hence the appeal is dismissed, however with no order as to costs. 10. In view of dismissal of the appeal, no orders are necessary in the Civil Application No.1509 of 2009 and the same also stands disposed of. (R.G.KETKAR, J.)