:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE SECOND APPEAL NO.505 OF 1991 SECOND APPEAL NO.505 OF 1991 SECOND APPEAL NO.505 OF 1991 Shri Pandu Bhau Shinde, 71 years Since deceased by his heirs 1.A Shri Rangrao Pandu Shinde 1.B Smt. Anubai Pandurang Shinde 1.C Shri Yeshwant Pandurang Shinde Since deceased by his heirs:- 1-C (A) Smt. Nakhubai Yeshwant Shinde Aged 26 years (B) Miss Sunita Yeshwant Shinde Aged 16 years (C) Miss. Anjana Yeshwant Shinde Aged 14 years (D) Miss Bharati Yeshwant Shinde Aged 12 years (Petitioner Nos.B to D being minors, through their guardian mother no.1-A Smt.Nakhubai Yeshwant Shinde.) Resident of Boriwade, Taluka: Panhala, Dist.Kolhapur. 1.D Shri Tukaram Pandurang Shinde 1.E Shri Maruti Pandurang Shinde Nos.1.A to 1.E all Adults, R/o Boriwade Taluka: Panhala, District: Kolhapur 1.F Sou Housabai Bhagwan Talap R/o. Gogave Talapwadi, Tal:Shahuwadi, District: Kolhapur. 2. Shri Hindu Dadu Shinde, 46 years Since deceased by his heirs 2(a) Shalabai Raghunath Jadhav Age:45 years, Occ:Housewife, 2(b) Krishna Hindurao Shinde Age:40 years, Occ: Farmer, R/o. Boriwade, Tal:Panhala, Dist. Kolhapur 2(c) Hirabai Arjun Mohite Occ: Housewife, At Post:Korolup, Tal: Walwa, Dist. Sangli. 2(d) Tarabai Dilip Patil At P.S.Mangad, Tal:Shahuwadi, Dist.Kolhapur. 3. Shri Tatoba Dadu Shinde, 38 years :2: 4. Shri Namu Dadu Shinde, 36 years 5. Smt. Nanubai w/o Dadu Shinde, 66 years 6. Sou. Rangubai Bapu Patil, 46 years of Sonawade, Tal: Panhala. 7. Sou. Kalabai Ananda Sadule, 41 years of Kasaba Bavada, Tal: Karveer. 8. Sou. Manjabai Pandu Talap, 51 years 9. Shri Bapu Rawaji Shinde, 66 years Boriwade, Tal: Panhala Nos.1,2,3,4,5,8 and 9 of Boriwade ...Appellants. (Org.Defts.) v. 1. Shri Jaysingh Sadu Methe, 41 years 2. Shri Shiwaji Sadu Methe, 38 years 3. Shri Bhiva Sadu Methe, 36 years 4. Shri Arjuna a/s. Vasant Sadu Methe, 33 5. Sou. Sundara Sadu Methe, 66 years All R/o Boriwade, Tal: Panhala, Dist. Kolhapur ...Respondents. (Org.Plaintiffs) Mr.A.Y.Sakhare Sr.Counsel a/w Y.A.Sakhare i/by M/s.YKS Legal , advs. for the Appellants. Mr.N.V.Bandiwadekar, , adv. for the Respondent Nos.1 to 5. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 31st July, 2008. DATE: 31st July, 2008. DATE: 31st July, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. This is a second appeal filed by the original defendants against dismissal of regular civil appeal no.282 of 1985 wherein they had challenged the judgment and decree passed in regular civil suit no.15 of 1979 in favour of the plaintiffs/respondents for possession of the suit property. 2. To state in brief, the suit property involved in this litigation is old survey no.177 of 2005 (Gat :3: No.764) to the extent of 1 acre and land survey no.74/2 (Gat No.252) to the extent of 1 acre and the house property bearing Gram Panchayat No.97 situated within the limit of Boriwade, Taluka: Panhala, District: Kolhapur. Admittedly, the suit property alongwith some other property were held jointly by one Bhau Vithu Shinde and his sons. The said Bhau had three sons, namely, defendant no.1 Pandu, Dadu and Sadu and a daughter, who is defendant no.8. Dadu died sometimes in 1975 and defendant nos. 2 to 7 are his legal heirs. Sadu was adopted by one Mahadu. Plaintiff nos.1 to 4 are sons and plaintiff no.5 is a wife of the said Sadu. Sadu had also one more son, namely, Bali, who had died when he was minor. It is the contention of the plaintiff that Bhau Vithu Shinde sold the suit property in favour of the plaintiffs under the registered sale deed dated 22-5-1954 and they were also put in possession of the property under that sale deed. According to the plaintiffs, they were in continuous possession from 1954 till they were dispossessed in 1972-73 by the defendants. Regular Civil Suit No.15 of 1979 was filed by the plaintiffs on 2nd February, 1979 for possession of the suit property with mesne profits. 3. The defendants contested the suit by filing written statement, Exhibit 15. According to them, the suit property was joint family property and Bhau had no right to dispose off this property alone without :4: obtaining consent of other shareholders of the property. According to them, he had not taken consent of sons, namely, Pandu and Dadu before the sale deed was executed. It was contended that he was not keeping good physical and mental health at the time of executing sale deed and, therefore, he did not understand as to what he was doing and taking benefit of his physical and mental health, the plaintiffs had got the sale deed executed. As the sale deed was executed without any legal necessity of the joint family it is not binding on the defendants. They also denied that on the basis of sale deed, plaintiffs were put in possession of the property. According to them, even prior to the date of execution of the sale deed, mutation entry no.3036 was taken and the suit property was recorded in the names of the defendant no.1 Pandu and his brother Dadu. That mutation entry was also sanctioned. This mutation entry was taken on the basis of information given by Bhau himself. Therefore, after this entry, Bhau was no more owner of the property and he could not sell the property to the plaintiffs. It is contended that even though Bhau executed the sale deed in favour of the plaintiffs, they never got possession of the property and the possession continued with the defendants. Thus, the sale-deed was not acted upon. The defendant no.1 Pandu and his brother Dadu had objected to the mutation entry no.3103 taken in favour of the plaintiffs and that objection was upheld and the said mutation entry was :5: cancelled. No appeal was preferred against the cancellation of that entry by the plaintiffs and thus, the said cancellation has become final. Thus, according to them, the plaintiffs are not entitled for decree of possession. The defendants, being in continuous possession of the suit property peacefully, openly and denying the title of the plaintiffs for a period of more than 12 years before filing of the suit, have acquired title by adverse possession. According to them, the suit is also not within limitation and, therefore, it is liable to be dismissed. 4. On the basis of rival pleadings of the parties, the trial Court framed issues at Exhibit 16. After hearing the oral and documentary evidence led by the parties, the learned trial Court upheld the contention of the plaintiffs that they had purchased the suit property under a sale deed from Bhau and thus, they have proved the title to the suit property. The trial Court rejected the contention of the defendants that they had perfected their title by adverse possession. The trial Court also held that the suit is within limitation. In the result, suit was decreed and the trial Court directed defendants to hand over the possession of the suit property to the plaintiffs. The trial Court also directed an enquiry under Order 20 Rule 12 of the C.P.C. for determining the mesne profits. :6: 5. The appellate Court also held that the plaintiffs had proved their title to the property and that they were dispossessed in the year 1972-73. The appellate Court rejected the contention that the defendants had perfected their title by adverse possession. Both the Courts below gave concurrent finding that the suit property belonged to Bhau Vithu Shinde and the contention of the defendants that he was not in physical or mental condition to take such a decision was rejected. It was also rejected that he was not competent to sell the property as it was joint family property and it was noted that the joint family was holding more than 5 acres land and some house properties and out of that Bhau had sold only two acres of land and one house to the plaintiffs and thus, he had practically sold his 1/3rd share in the joint family property. With these findings, the appeal also came to be dismissed. 6. Second Appeal filed by the defendants was admitted on ground nos.2 and 10 which raised substantial questions of law. However, it appears that the Appellate Court did not specifically raise the question of limitation and in ground no.11, the defendants/appellants had tried to raise question of law in respect of limitation. It is well settled that when so many grounds are raised and the appeal is admitted on some of the grounds and if at the time of final hearing :7: it is found that some other ground also raised substantial question of law, that ground can also be considered by the Appellate Court. In my opinion, ground no.11 also raises substantial question of law. The ground nos.2, 10 and 11 read as follows: "2. That the substantial question of law involved in this Second Appeal is whether the Courts below have properly considered the provisions regarding adverse possession claimed by the Appellants, original Defendants over the suit properties. 10. Another question of law involved is whether the Plaintiffs would be said to be in actual possession of the suit properties from 1957 onwards till 1972-73, when no documentary evidence is produced to that effect. The entries in 7x12 extract prior to 1957 shows Defendants in actual possession of suit property. 11. Another question of law involved is whether the Plaintiffs have filed suit within limitation. No issue has been framed by lower Appellate court even though the point was raised specifically in the Written Statement nor the Court has answered the same. 7. Heard the learned counsel for the Parties. Perused the oral and documentary evidence placed on record by both the parties as well as the judgments rendered by the Courts below. 8. There is concurrent finding of the Courts below that Bhau had executed sale deed in respect of the suit property in favour of the plaintiffs. Plaintiff no.5 Sundara Sadu Methe was acting as a guardian for the :8: minors. The learned Appellate Court noted that as per the contents of the sale deed, plaintiffs were actually put in possession of the property and on the basis of same, the mutation entry no.3103 was also taken in favour of the plaintiffs. Not only this, in the revenue record, names of the plaintiffs were recorded as owners and in the crop statement, the plaintiff no.5 Sundara was shown to be the occupant of the Class No.I, which means that she was occupying the property as a holder or owner of the property. In view of this, it is clear that the sale deed was acted upon and she was infact put in possession for and on behalf of all the plaintiffs. The contention of the defendants that possession was never given to the plaintiffs and since prior to the date of execution of the sale deed, they are in possession continuously and openly as owners was rejected. The Appellate Court noted that merely on the basis of mutation entry no.3036 in favour of the defendant no.1 and Dadu and on the basis of cancellation of mutation entry no.3103 in favour of the plaintiffs, the defendants could not claim title over the suit property. The Appellate Court noted that for setting up the plea of the adverse possession, it is necessary for the defendants to admit title of the plaintiffs over the suit property and then they have to put up the plea of their adverse possession and that the necessary requirements for proving the adverse possession would be that the possession must be adequate in-continuity, in :9: publicity and adverse to the title of the true owners and further, there must be clear assertion of the hostile title. The learned Appellate Court held that when the defendants had taken a plea that on the basis of sale deed executed by Bhau in favour of the plaintiffs, the title had never passed to them and that they have title over the suit property on the basis of mutation entry no.3036, they can not take a plea of adverse possession, which is contrary to their stand that even before the sale deed was executed in favour of the plaintiffs, title was with the defendants. With these reasons, the Appellate Court rejected the plea of adverse possession. I find no fault with the same. 9. However, there is vital question as to whether the suit was within limitation. From the facts noted above, it is clear that according to the plaintiffs they had taken possession of the property on the basis of sale deed and they were dispossessed in 1972-73. This contention was denied. So the plaintiffs’ suit will be covered under Article 64 of the Limitation Act, which provides that for suit for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed, the period of limitation would be twelve years and it would begin to run from the date of dispossession. According to the plaintiffs, they were dispossessed in 1972-73 and the suit was filed in 1979. :10: It means they were dispossessed just six years before filing of the suit. However, according to the defendants, they are continuously in possession since 1954-55 and the contention of the plaintiffs that they were dispossessed in 1972-73 is not correct. According to the defendants, if the plea of the plaintiffs is accepted that they were dispossessed while in possession, the suit is barred by the limitation as they had lost the possession sometimes in 1954-55 itself. The evidence led by the parties needs to be scrutinised from this angle. At the outset, it may be stated that in her evidence, P.W.3 Sundarabai deposed that she had lost the possession about 10 years before. Her evidence was recorded in 1983. If we go by her deposition in examination-in-chief, she had lost the possession in 1973, her son P.W.1 Vasant @ Arjuna also tried to depose that they were in possession and they were dispossessed sometimes in 1972-73. The Appellate Court noted that in the cultivation column of 7/12 extract , name of the plaintiff no.5 Sundarabai was recorded for the year 1954-55. However, for the year 1955-56 name of Dadu was shown in the occupation column. For the year 1956-57, name of none of these parties was specifically shown and only the word "Khudda" , i.e., "Self" was mentioned. It means holder of the land was in occupation. No record was produced from 1957-58 to 1973-74. In the record of rights from 1974-75, the names of the defendants are recorded and even the plaintiffs admit that after :11: 1972-73, the defendants were in possession. It is admitted fact that after the names of the plaintiffs were recorded in the record of rights on the basis of mutation entry no.3103, the defendants had taken objection to the same and that objection was upheld, rightly or wrongly, and the mutation entry no.3103 in favour of the plaintiffs was cancelled. That proceeding was going on before the Tehsildar in the year 1955. Admittedly, the plaintiffs never challenged the findings of Tehsildar and the cancellation of mutation entry. Exhibit 60 shows that originally name of Bhau Vithu Shinde was shown as owner/holder and in view of the mutation entry no.3036, names of the defendant no.1 Pandu and his brother Dadu were recorded in place of name of their father. In the cultivation column for the year 1954-55, plaintiff no.5 Sundarabai was shown to be in possession of the half of the land survey no.177/5 and the remaining half was shown to be in possessions of "Khudda" i.e., "Self". As the name of the defendant no.1 Pandu and his brother Dadu was shown in the column of owners, this endorsement "Khudda" indicate that they were in possession of the half of the property. However, for the year 1955-56, Pandu and Dadu were specifically shown in possession of the whole of the property. As noted earlier, for the year 1956-57, word "Khudda" was written in occupation column. Admittedly by that time, mutation entry no.3103 was already cancelled and names of plaintiffs from holder’s column :12: were deleted. As a result, names Pandu and Dadu were shown as holders of the land. Therefore, word "Khudda" indicates that Pandu and Dadu were in possession in 1956-57. Thereafter, 7/12 extracts of 1974-75 onwards show that Pandu and Dadu were in possession. It is not the claim of the plaintiffs that during the intervening period, i.e., from 1957-58 to 1973-74, their names were shown in the cultivation column to show that they are in possession. 10. The above documentary evidence needs to be looked into in the light of the material admissions given by the P.W.3 Sundarabai. In her examination-in-chief and in paragraph 2 of the cross-examination, she had deposed that she had taken possession of land on the basis of sale deed. In paragraph 2 of the cross-examination, she admitted that at the time of diary, which means the proceeding about mutation entry, Pandu and Dadu had assured her that they would deliver possession later on. She admitted that Pandu and Dadu were in possession. Admittedly, that proceeding was commenced in 1955 after the mutation entry was taken in favour of the plaintiffs on the basis of sale deed and that enquiry was commenced on the complaint or the application of Pandu and Dadu and admittedly that proceeding was pending before the Tehsildar in 1955. In paragraph 3, PW 3 Sundarabai admitted that she was unable to state the exact day, :13: date when the defendants had taken possession of the suit property. She further admitted that the defendants did not hand over the possession to her since proceeding before the Tehsildar. In view of these admissions, it becomes clear that even though the plaintiff no.5 Sundarabai had taken possession of the suit land on the basis of sale deed in 1954, she had lost the possession in the year 1955 when the enquiry proceeding was going on before the Tehsildar. She admits that at that time Pandu and Dadu were in possession. According to her, they had assured to give back possession to her later on but they never handed over possession to her since then. It means that Pandu and Dadu had dispossessed the plaintiffs in the year 1955 and had never given back possession to her. In view of this admission, it is clear that when the suit was filed in 1979, the plaintiffs were out of possession for a period of 23-24 years. If these admissions of Sundarabai are looked into in the light of the record of right, it becomes clear that in view of the enquiry made by Tehsildar on the objection taken by Pandu and Dadu, mutation entry in favour of the plaintiffs was cancelled; that their names were deleted and that the names of the defendants Pandu and Dadu were recorded in the cultivation column and their names were shown in the cultivation column from 1955-56, 56-57 and their names also appeared from 1974-75 onwards. There is nothing to show that during the intervening period, i.e., from 1957-58 to 1973-74, :14: names of the plaintiffs were recorded in the cultivation column and in view of the admission of the P.W.3 Sundarabai about dispossession, they could not have been shown in possession of the land during that period. If this material is taken into consideration, the plaintiffs had lost the possession in the year 1955 and not in 1972-73. When the suit was filed in 1979, it was clearly barred by the limitation. Both the Courts below utterly failed to consider and appreciate oral and documentary evidence in respect of possession and dispossession of the plaintiffs prior to filing of the suit and, therefore, both the Courts below came to wrong conclusion that the suit was within limitation. 11. For the aforesaid reasons, the appeal is allowed. Impugned judgment passed in the Regular Civil Suit No.15 of 1979 as well as in Regular Civil Appeal No.282 of 1985 are hereby set aside. The suit stands dismissed. However, taking into consideration the circumstances, parties shall bear their own costs. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)