1 S.A.No.1701/05 with S.A.No.1702/05 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.1701 OF 2005 WITH SECOND APPEAL NO.1702 OF 2005. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 14.12.2010. 1. The present appellant had filed a suit for injunction. So also the present Respondent had filed a suit for possession in respect of the suit property admeasuring 45x44 ft. The trial Court dismissed the suit filed by the present appellant and decreed the suit filed by the Respondent No. 1. The present appellant preferred two appeals before the District Court. One, against dismissal of his suit and another against the decree for possession passed in favour of Respondent No.1. The lower appellate Court dismissed both the appeals. The appellant has assailed the said 2 S.A.No.1701/05 with S.A.No.1702/05 judgments in the present Second Appeals. 2. Mr.Milind Patil, learned counsel for the appellant contended that the Respondent No.1 should have been non-suited on the ground of acquiescence. In equity also he would not be entitled for the relief claimed by him. It is a fact that the present appellant purchased the property in the year 1985 from the brother of Respondent No.1 who admittedly was residing in the suit property. The learned counsel further contended that after the appellant purchased the property, he applied for construction permission and started construction. The Respondent No.1 did not take any objection till the major construction work was over and filed the suit only at the time when the construction work was almost over. In such circumstances, the Respondent No.1 is estopped from claiming any relief. According to Mr.Patil, the rule of estoppel is a rule of equity and is rule creating or negativing the rights. For the said purpose, the learned counsel relied on the judgment of the Apex Court in a case of "B.L.Sreedhar and others Vs. 3 S.A.No.1701/05 with S.A.No.1702/05 K.M.Munireddy (Dead) and others" AIR 2003 Supreme Court 578. 3. With the assistance of the learned counsel, I have gone through the judgments delivered by both the Courts. The facts which are not disputed are, that the present Respondent No.1 is the absolute owner of the suit property. The brother of Respondent No.1 had executed registered sale deed in favour of the appellant and inducted appellant in possession of the suit property. It is also not disputed fact that appellant started construction of the house on the suit property and thereafter in the year 1988, the Respondent No.1 filed suit for possession on the basis of title. The law of limitation for claiming possession is 12 years from the date of dispossession on the basis of previous possession and as per Article 65, the limitation is not provided except the defendant proves his adverse possession. When the law of limitation applies to the present proceedings, the question of acquiescence in such a case would not be material. The same may not affect the statutory rights of the limitation prescribed by the 4 S.A.No.1701/05 with S.A.No.1702/05 statute. There are no overtacts on the part of the Respondent No.1, wherein the Respondent No.1 has made some representations in favour of his brother regarding divesting of his rights. The right to property is not only a statutory right but is also a constitutional right and now the Apex Court has held that the said right also comes within the contour of human right as has been held in the case of "P.T.Munichikkanna Reddy and others Vs. Revamma and others" (2007) 6 SCC 59. The said right to property can not be taken away except as would be contemplated by law. In the case of "B.L.Sreedhar and others Vs. K.M.Munireddy (Dead) and others" referred supra relied by Mr.Patil, in the said case the father by his overtacts had represented and consented for regrant of the entire land in favour of his son and his son lateron applied for permission to sell the land which was granted and thereafter the son sold the land. It is in these circumstances, the Apex Court held that the rule of estoppel would apply as against the father who subsequently claimed his absolute ownership. In 5 S.A.No.1701/05 with S.A.No.1702/05 the present case, no such overtacts are there on the part of the Respondent No.1 to import the rule of estoppel. 4. In light of the above, the Second Appeals being sans substantial questions of law, are dismissed. However, there shall be no order as to costs. 5. It is undisputed that the appellant is in possession of the suit property since 1985. In light of the same, the appellant shall deliver the possession of the suit property to the Respondents by end of May 2011. The appellant shall file necessary undertaking that the appellant shall not create any third party interest and shall deliver the possession to the Respondent No.1 by the end of May 2011. (S.V.GANGAPURWALA,J.) Dt.14.12.2010. asp/office/sa1701.05 6 S.A.No.1701/05 with S.A.No.1702/05