* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 26 OF 2010 IN S.C. SUIT NO. 5978 OF 2003 Veronica Maxi Pinto .... Appellant (Ori. plaintiff) Vs. Ratansey Karsanda & Ors. .... Respondents ---------- Mr. J.M. D’Silva, Advocate for appellant. None for respondents. Coram : SMT. R.P. SONDURBALDOTA, J. Dated : 22nd March, 2010. P.C. 1. This First Appeal arises out of the judgment and order dated 29th July 2009, by which the suit filed by the appellant has been dismissed by the Bombay City Civil and Sessions Court, with costs. 2. Considering the facts and circumstances of the case, the appeal is being disposed off finally at the stage of admission. Production of records and proceedings as well as the paper book is * 2 * dispensed with. 3. The appellant is the heir and legal representative of the original plaintiff, one John Louzendo, who had filed the suit for declaration of title to the suit properties being land admeasuring 1056.1 sq.mtrs. situate at survey no.146, CTS No.161(Pt) and the land admeasuring 880 sq. mtrs. situate at survey No.153, Hissa No. 1,CTS No.454. He also sought permanent injunction to restrain the respondents from disturbing his possession of the suit property. The respondents are the true owners of the property. The title thereto claimed by John was by adverse possession. 4. In the plaint, John claimed that he had been in continuous and uninterrupted possession of the suit property since the year 1970. It is alleged that some unknown persons visited John on 5th September 2003 and demanded that he hands over possession of the suit property to the respondents. The unknown persons allegedly threatened John of forcible eviction from the suit property. 5. Undisputedly as per record of rights, the suit property is an agricultural land. John, however claimed to have constructed a structure thereon, which structure, according to him, is assessed by Mumbai Municipal Corporation for property taxes. He produced Municipal Assessment Bill under Assessment No.3228(6A) ABBFA (Exhibit 15). This document ex-facie appears to be of doubtful nature. It describes the property assessed for taxes as “plot of * 3 * land” and not any structure constructed. There is no question of Mumbai Municipal Corporation assessing a piece of land. Therefore, the trial Court rejected this piece of evidence. In my opinion, no fault can be found with the inference drawn by the trial Court as regards this document. 6. John had made an application to the Tahsildar, Kurla for assessment of the land for non-agricultural purposes. The Tahsildar, Kurla under the order dated 31st July 2003 bearing No.ADC/LNC/91/82(1) the land under the structure was assessed for non-agricultural purposes. During the course of evidence, he produced two non-agricultural assessment orders by Tahsildar (Exhibit 16 and 17). The appellant is not concerned with non- agricultural assessment order at Exhibit 16 as the same has been passed on the application of one Ayub Khan Khuda Khan. He is concerned only with the order at Exhibit-17 which has been passed on his application. This document merely accepts the claim of John as occupant of the suit land since 1970. The learned Judge has observed that the document would only suggest that John had been in occupation of the suit property since 1970, but it does not answer the question as to nature of the possession and whether the factum of possession was known to the owner. He has also noted that the plaint is silent as regards the hostile nature of possession of the original plaintiff. With this, the trial Court has held that the * 4 * appellant has failed to establish title of the suit property by adverse possession. 7. The learned counsel for the appellants submits that despite service of summons, the respondents failed to remain present in the Court to contest the suit. Consequently the suit was heard ex- parte. Therefore, the Court ought to have accepted the case of the appellant made out in the plaint and decreed the suit. Absence of the defendant does not automatically entitle the plaintiff to a decree in the suit. The court can always call upon the plaintiff to establish his case in the plaint. In the instant case, even if the entire case of the appellant pleaded in the plaint is to be accepted, no decree can be passed in the suit, because the case pleaded does not satisfy the conditions to be satisfied for acquiring title to property by adverse possession. There is no averment made in the plaint that the possession of original plaintiff was hostile to that of the true owner. In the circumstances, the appeal does not give rise to any question for consideration of the court whether legal or factual. Hence, the same is dismissed in limine. (SMT. R.P. SONDURBALDOTA, J)