IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.21 OF 2008. APPEAL NO.21 OF 2008. APPEAL NO.21 OF 2008. Jainul Abedin Abdul Gafur Murtaza ...Appellant Versus Majjagadguru Shankaracharya & Ors. ...Respondents Shri G.S.Godbole i/by Ashoka Law Firm for the Appellant. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 22nd January, 2008. : 22nd January, 2008. : 22nd January, 2008. P.C.: P.C.: P.C.: 1. The submissions of the learned counsel appearing for the appellant were heard on the last date. 2. The appellant is the original plaintiff. According to the case of the appellant, the suit property was owned by one Pralhad Sardesai who made a Will by which a bequest was made by him in favour of the first respondent (first defendant). The Will provided that the widow and daughter of said Pralhad will enjoy the income from the suit property during their lifetime and thereafter the suit property will vest in the first respondent. The daughter of Pralhad, Sagunabai died in the year 1936. The said Sagunabai during her life time in the year 1932 made a gift of the suit property in favour of one Waman Kashelkar who in turn sold it to one Abdul Razaq Murtuza by a registered Sale Deed dated 05th ... 2 ... February, 1947. The present appellant-plaintiff is the grandson of the said Abdul Razaq. 3. It is the case of the appellant that since 1947 his predecessors have been in possession of the suit property. It is stated that house No.1012 which is one of the two houses forming part of the suit property was in possession of the father of the second respondent as a tenant. After demise of the said Sagunabai, the first respondent filed a suit for recovery of possession on title against the said Waman Kashelkar, said Abdul Razaque and the father of the second defendant/second respondent. On 25th January, 1949 a decree for possession was passed in the suit. The appeal preferred by the said Abdul against the said decree was dismissed on 28th June,1950. According to the case of the appellant, the said Abdul Razaq or any of his legal representatives were never dispossessed by the first respondent by executing the decree for possession which became final on 28th June, 2005. It is stated that as decree for possession passed on title was not executed for a period of 12 years and more from the date on which decree became final, the possession of the said Abdul and his successors became adverse to the first respondent and hence, a suit for declaration was filed by the appellant in the year 2001 claiming declaration ... 3 ... of ownership by adverse possession. In the suit the appellant pointed out that the second respondent surrendered possession of the house No.1012 and even after surrendering the possession he was trying to interfere with the possession of the appellant and even filed a proceeding under section 145 of the Code of Criminal Procedure, 1973. The trial Court held that the appellant has failed to prove his plea of adverse possession. Therefore, the trial Court dismissed the suit. The decree has been confirmed by the Appellate Court. 4. Shri Godbole, learned counsel appearing for the appellant invited my attention to the averments in the suit as well as the decree passed in Suit No.42 of 1947. He submitted that even according to the first respondent, the said decree of possession on the basis of title passed in favour of the first respondent was never executed since 1949. He submitted that only on the basis of entries made in the city survey record the courts below and especially the Appellate Court have found that the first respondent was a holder-occupant and therefore the appellant is not entitled to make a claim of adverse possession. He submitted that only on the basis of entries made in the city survey record, the courts below could not have come to the conclusion that ... 4 ... the second respondent was in possession of the suit property as a tenant of the first respondent. He submitted that the date of commencement of hostile possession of the grandfather of the appellant is 28th April, 1950 i.e the day on which the appeal preferred by the said Abdul Razaq against the decree passed in favour of the first respondent was dismissed by the District Court. 5. I have given careful consideration to the submissions made by Shri Godbole. The trial Court has referred to "sanads" issued by the City Survey Authority. In the city survey enquiry the name of the second respondent was entered as a tenant and the name of the first respondent was entered as the owner. The trial Court has referred to the evidence of the second respondent. After considering his evidence the Trial Court recorded a finding that there was no evidence on record to show that the second respondent surrendered possession of the property in favour of the father of the appellant. The trial Court recorded a finding that the appellant has failed to establish any contractual relationship with the second defendant. The Appellate Court have also dealt with specific contention raised by the defendants that the appellant or his predecessor were never in possession of the suit property. The ... 5 ... appellate Court has referred to evidence of the second respondent. The appellate Court referred to the City Survey record which shows that the second defendant/second respondent was holding the property as a tenant of the first defendant. The appellant had made a grievance about the order passed in city survey inquiry by preferring an appeal. However, the appellant did not succeed in the appeal. The city survey inquiry was held in the year 1965 and in enquiry it was held that the first respondent was the holder occupant with the second respondent as his tenant. Considering these aspects, the trial Court and especially the Appellate Court has negatived case made out by the appellant as regards continuous possession of his grandfather from 1949 till the date of institution of the suit. The plea of adverse possession is on the basis of alleged continuous possession from 1949. The said plea is falsified on the basis of the record of the city survey enquiry and order passed by the city survey authority which has attained finality. 6. In view of the aforesaid concurrent findings of fact, no substantial question of law arises. The plea of the appellant was of adverse possession which has been negatived by the Courts below. There is no merit in the appeal. The appeal is accordingly dismissed with ... 6 ... no orders as to costs. JUDGE JUDGE JUDGE