1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.1161 of 2004 Bhikubai w/o Narayan Bhavsar, Age. 65 years, Occu.Agri., r/o CTS No.702, Shahada, Dist. Nandurbar. ...APPELLANT (Orig.defendant) VERSUS Shri Shivdas Magan Bhavsar, Age. 75 years, Occu.Service, r/o. Dondaicha, Tq.Shindkheda, Dist.Dhule. ...RESPONDENTS (Original plaintiff) ... Mr.C.R.Deshpande, Adv., for the appellant. Mr.D.B.Thoke Patil, Adv., for respondent/sole. ... CORAM: K.U. CHANDIWAL, J. DATE :19-3-2010 *** PER COURT : 1. Decree for possession in respect of house property No.942 CTS No.702, situate at Shahada, dt.23rd Nov.,1993, was assailed by the defendant before the learned District Judge at Shahada. Learned District Judge, by judgment 2 dt.31.1.2004, has confirmed the decree and hence, the aggrieved defendant is in Second Appeal. 2. Mr.Deshpande, Counsel for the appellant submits, that both the Courts have ignored the legal position as to whether the possession of the defendant could simply be branded as a permissive inspite of claim of adverse possession set up by the defendant to be in hostile possession to the knowledge of the plaintiff. According to him, in the absence of any issue in this context having not framed by the learned Court of first instance, the decree is not legally sustainable. He urged, issue of limitation was also a pre-requisite for the learned Judge to have framed. The learned Judge of the first appellate Court, according to him, should have formulated the issues and remitted the matter in terms of Order 41 Rule 25 of Code of Civil Procedure. 3. The factual details about the suit property belonging to father of the plaintiff and plaintiff getting orphaned in 1938, is not in dispute. Poonamchand, maternal uncle of the plaintiff, who was residing opposite the suit house, came forward to look after the plaintiff and, in the process, he started staying in the suit premises with his daughter. The daughter/defendant, after her marriage, by efflux of her difficulties of divorce, continued to stay 3 in the suit premises. Poonamchand expired in the year 1979. 4. The correspondence in the form of letters by the plaintiffs to Poonamchand, during his lifetime and, even subsequently, more than in clear terms, illustrated that the stay or occupation of Poonamchand or, for that purpose, his daughter/defendant, was with the permission of the plaintiff. The plaintiff even was maintaining the family of Poonamchand by sending money orders at the address of suit premises from time to time. It will not, in any way, amount to hostile possession by the defendant. We need to scan the tax receipts at Exhs. 70 to 75, the property record at Exh.54, as they elaborately illustrate, the property never changed hands; from the plaintiffs to anybody else or the defendant. 5. Setting up of the defense of adverse possession warrants hostility and animus on the part of such person. Barring a reference in the written statement, and reply to notice, there is nothing on the part of the defendant that, she any time acted contrary to the wishes of the plaintiff or she set up a claim that the property exclusively belongs to her. The stay of the defendant was certainly a permissive possession from plaintiff, he being owner of the property. 4 It could, seldom, be a possession adverse to the real owner, even if minor repairs to the property are caused by defendant. Simply, stay by the defendant, for a period of 15 or 16 years or, for that purpose, 20 to 30 years, by itself, would not tantamount to hold that her possession was in exclusion to the rights of plaintiff. Record amply established, the superficial control over the property was that of plaintiff. 6. The contention that no issues are framed may be correct as is evident from the judgment. The learned Judge, though did not frame issue, but has allowed the parties to lead the evidence, in the light of defence and has elaborately discussed the same. 7. Article 65 of the Limitation Act, 1963 will have its applicability as it has come into force on 1.1.1964. The contention that Article 142 of the old Limitation Act would be applicable, in the fact situation, considering days of so called possession, as set up by the defendant, cannot be coined. There was no just reason for appellate Court to remit the matter, in terms of Order 41 Rule 25 of Code of Civil Procedure, as the learned first appellate Court dealt with the documents elaborately and recorded a reasoned finding. The substantial question of law, tried 5 to be set up, referred here-in-above, will not be available to be taken up. There is no perversity in the orders under challenge. 8. Second Appeal sans merits. It is dismissed. No costs. Civil Application also disposed of. Heard. The order is stayed for a period of six months. [K.U. CHANDIWAL, J.] agp/1161-04sa