Ast 1 sa846.07.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.846 OF 2007 Bhupal Bapu Kurundwade & ors. ... Appellants. Vs. Shri Abdulkadar Usman Malidwale & ors. ... Respondents. -------------- Mr.P.R.Arjunwadkar for Appellants. Mr.N.J.Patil for Respondent Nos. 1 and 2. -------------- CORAM : V.R.KINGAONKAR, J. DATE : 26 th MARCH, 2010. P.C. 1. Heard Counsel for the parties. 2. This second appeal is preferred by original Plaintiff Nos. 1 to 5. They filed Suit(RCS No.506/1998) seeking declaration that they have acquired ownership rights in respect of suit land on account of hostile possession for more than 12 years. The Trial Court decreed the suit. The First Appellate Court allowed the appeal(RCS No.231/2005). 3. The appellants(Plaintiffs) claimed their rights through one Bapu Kurundwade. He was cultivating entire suit land bearing Gat No.771 as a Ast 2 sa846.07.sxw tenant. He purchased ¼ share of Gat No.771. According to the Appellants, deceased Bapu Kurundwade and themselves were in possession and cultivating as owners of the suit land as described in claim clause since 1966 onwards. The said Bapu Kurundwade has filed the suit (RCS No.252/1985) against the defendants for injunction. That suit was decreed on the ground that Bapu Kurundwade had been in possession of suit land. 4. It appears that the Trial Court decreed the suit on the basis of admission gathered during the cross-examination of DW-1 Khutubuddin Usman Malidwale. It appears that he admitted that the plaintiffs were have adverse possession over the suit land since 1966. The first Appellate Court however, held that such admission was given without knowing import thereof. The first Appellate Court held that mere admission about the nature of possession will not disentitle the appellants. The first Appellate Court came to the conclusion that in view of earlier litigation about the tenancy rights of Bapu Kurundwade, the commencement of the possession is referable to tenancy contract and that the Appellants failed to establish as to since when the hostile possession was commenced. 5. Having heard learned Counsel for the parties and on going through Ast 3 sa846.07.sxw the Judgments of both the Courts below, what emerges is that Bapu Kurundwade had filed application vide Tenancy Case No.26 of 1985 under section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 seeking declaration that he was tenant of the suit land. That application was dismissed by the Tenancy Tribunal. The dismissal order was confirmed by the Sub-divisional Officer and lastly, M.R.T also dismissed his Revision Application No.153 of 1994 on 19 th October, 1994. Obviously, it is manifested that till 1994 said Bapu Kurundwade was claiming himself to be a tenant of the suit land. The suit was filed in 1998 by the present Plaintiffs. The hostility, if any, would be referable to the period after 1994 only and not prior to that. Hence, the first Appellate Court was right in appreciating the evidence about the period of commencement of hostile possession. It is to be noted that prescriptive rights can be claimed as shield and such plea cannot be utilised as sword. Under these circumstances, there appears no substantial question of law involved in the second appeal. The second appeal is outside the ambit of Section 100 of the C.P.Code. Hence, it is dismissed. No order as to costs. [ V.R.KINGAONKAR, J ]