1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 555 OF 2006 WITH CIVIL APPLICATION NO. 6141 OF 2006 WITH CIVIL APPLICATION NO. 5224 OF 2009 WITH CIVIL APPLICATION NO.5225 OF 2009 Smt. Mathurabai Bhimrao Gaikwad ..Appellant Versus Janakibai Raghu Khamkar & others ..Respondents ... Advocates appearing for : Appellant: Shri B.V.Thombre, Respondents 2,3 & 7 : Shri V.M.Humbe and Shri Ishwar Ranjwan, Respondents 4, 6, 9 & 10 : Served, Respondents : 1 & 8 : Dead. ... CORAM : R.M.BORDE, J. Dated : 1.9.2009 PER COURT :- 1. This is an appeal filed by the original plaintiff raising an exception to the judgment and decree passed by the learned I Ad-hoc Additional District Judge, Osmanabad in Regular Civil Appeal No.125 of 2000, dated 3.2.2006. 2. The plaintiff has presented Regular Civil Suit No.353 of 1987 claiming a declaration of ownership as well as decree for perpetual injunction, thereby restraining the defendants from interfering into the peaceful possession of the plaintiff over the suit lands. According to the 2 plaintiff, the property was owned by one Raghu Khamkar. After his demise, his wife Janakabai inherited the property and on her demise, defendant No. 1 succeeded to the property. Defendant No.1 could not cultivate the property for quite a long time. The plaintiff No.1 is daughter of defendant No.1's sister. She took possession of the property and started cultivating it without consent of Janakabai. The plaintiff contends that she remained in possession of the suit property for about 30 years and by virtue of her continuous possession, openly and to the knowledge of the original owner, she has perfected her title to the suit property. It is further contended that the defendants have no concern with the suit property and they are trying to disturb the plaintiff's possession and as such, the plaintiff has approached the Court seeking a decree for declaration as well as for injunction against the defendants. 3. The defendants resisted the suit by filing Written Statement. They have controverted all the contentions raised in the plaint. According to them, Raghu's son Bhika was cultivating the suit property till his demise. Thereafter, defendant No.1 executed a will deed in favour of the plaintiff. However, subsequently, when defendant No.1 came to know about ill intentions of the plaintiff, she cancelled the will deed. According to defendants, the plaintiff is not in possession of the property and she resides at Indore. The plaintiff cannot claim that she has perfected her title by virtue of her continuous possession over the property. 4. The trial Court, after considering the evidence led by the parties, turned down the case put up by the plaintiff. The appeal preferred by the plaintiff also came to be dismissed by the first appellate Court. 3 Aggrieved thereby, the plaintiff has preferred the present appeal. 5. It appears from the record that the plaintiff has not pleaded as to when her possession became adverse to the interest of the original owner and further as to whether her continuous possession was hostile to the interest of original owner. Thus, in short, the plaintiff has not pleaded the starting point of limitation for establishing her claim of adverse possession. 6. Apart from this aspect, the witness examined by the plaintiff i.e. PW 2 Devrao Gaikwad has stated that he is cultivating the suit property on behalf of the plaintiff for last thirty years. However, during his cross examination he has admitted that he never cultivated the suit property and he resides at Lanjeshwar for last fifteen years. This witness has also expressed his ignorance as to who is cultivating the property. This witness is brother of plaintiff's husband and naturally interested in deposing in favour of the plaintiff. Thus, the pleading of the plaintiff as regards her possession over the suit property has not been substantiated by her. 7. In view of this fact, it cannot be said that the view taken by the trial court and confirmed by the first appellate court is unreasonable. Further no substantial question of law arises for consideration in the present appeal. 8. In the result, the appeal stands dismissed. No order as to costs. 4 9. Civil Application No.5224 of 2009 seeks to condone the delay of 3404 days occurred in filing the civil application for bringing legal representative of deceased respondent No.1 on record so also for bringing legal representative of deceased respondent No.1 on record and further to set aside the abatement order. For the reasons stated in the Civil Application, the application is allowed in terms of prayer clauses (A-1), (B) and (B-1). Necessary amendment to be carried out immediately. No order as to costs. 10. In view of the dismissal of the Second Appeal itself, Civil Application No.6141 of 2006 for stay and Civil Application No.5225 of 2009 for re-issuance of notices to respondents 5 and 11, do not survive and accordingly stand disposed of with no order as to costs. (R.M.BORDE, J.) ... akl