: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.175 OF 2008 SECOND APPEAL NO.175 OF 2008 SECOND APPEAL NO.175 OF 2008 WITH WITH WITH CIVIL APPLICATION NO.1292 OF 2006 CIVIL APPLICATION NO.1292 OF 2006 CIVIL APPLICATION NO.1292 OF 2006 Shri Ganapati alias Krishnarao Nanasaheb Musale (Deceased) by his LRs:- 1A. Smt. Bhagiratibai Krishnarao Musale (deceased) by LR:- 2. Shamrao Krishnarao Musale ...Appellant. v. 1. Appasaheb Babanrao Gade & Anr. ...Respondents. Mr.S.G.Deshmukh , adv. for the Appellant. Mr.Ajit Kenjale , adv. for the Respondent Nos.1 and 2. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 23rd July, 2008. DATE: 23rd July, 2008. DATE: 23rd July, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for the Parties. 2. The appellant before this Court is the original plaintiff no.2 and the respondents are the original defendants. The suit property is the City Survey No.1377 admeasuring 97.5 sq.mtrs. situated within the limits of Gram Panchayat, Lonand. Plaintiffs filed the regular civil suit no.111 of 1994 for declaration of ownership over the suit land by adverse possession and perpetual injunction in the year 1994. According to them, the father of the defendants, namely, Baban R. Gade had left the village in 1923 and he never came back. Since January, 1923, father of the plaintiff no.1 :2: was in possession of this property and after his death, plaintiff no.1 and his family members were in possession. According to them, they were in continuous and peaceful possession with the knowledge of the original owner and thus, they have become owner of the property by adverse possession. They claim that they have also paid Gram Panchayat tax of suit property. They have also made repairs in the suit property from time to time. According to them, the suit property was in dilapidated condition and, therefore, they approached the Gram Panchayat for permission of re-construction. That permission was refused on the ground that the plaintiffs are not owners of the property. In view of this, the plaintiff no.2 made a request to the defendants on 14/8/1994 to accord permission for making construction on the suit property. However, the defendants refused the permission and also threatened the plaintiffs with dire consequences. In view of these circumstances, plaintiffs have filed the suit for declaration of title by adverse possession and for injunction. The suit was contested by the defendants and they denied that the plaintiffs have become the owners by adverse possession. They also denied that they had threatened the plaintiffs while refusing the permission. After hearing the parties, the learned trial Court came to conclusion that the plaintiffs had become owners by adverse possession but there was no threat to their possession therefore, the decree for :3: declaration of title by adverse possession was passed, but no decree was passed for perpetual injunction. This judgment was challenged by the defendants in Regular Civil Appeal No.312 of 2003. The learned Appellate Court allowed the appeal and after analysing the evidence, came to conclusion that the plaintiffs had failed to prove that they had perfected their title over the suit property by adverse possession for more than 12 years. In the result, the suit came to be dismissed. This is how the original plaintiffs have come in the second appeal. 3. After perusal of the record and the judgments of both the Courts below, it becomes clear that even though the plaintiffs and their father were in possession of the suit property since 1923 or so, they had never claimed title hostile to the title of the defendants, who are the lawful owners. It appears that in 1958, the city survey scheme was applied to the village and the name of the defendants’ father was recorded as a owner of the property. No objection was taken to this by the plaintiffs. Defendants’ father got the property measured. At that time also, there was no objection and according to the plea of the plaintiffs themselves, on 14-8-1994, they had approached the defendants seeking permission for making construction over the suit land but that permission was refused. It indicates that as late as on 14-8-1994, the plaintiffs admitted that the :4: defendants were owners of the property and they sought permission for construction. It indicates that they had never claimed title over the suit property adverse to the title of the defendants. It is settled position of law that test to determine adverse possession is that the possession was open, continuous and hostile to the title of the owners for a period of 12 years or more. This legal position was settled in P.T.Munichikkanna P.T.Munichikkanna P.T.Munichikkanna Reddy and Others v Revamma and Others (2007) 6 Supreme Reddy and Others v Revamma and Others (2007) 6 Supreme Reddy and Others v Revamma and Others (2007) 6 Supreme Court Cases 59 Court Cases 59 Court Cases 59 and Vasantiben Prahladji Nayak and Vasantiben Prahladji Nayak and Vasantiben Prahladji Nayak and others, AIR 2004 Supreme Court 1893 others, AIR 2004 Supreme Court 1893 others, AIR 2004 Supreme Court 1893. The learned Appellate Court also relied upon several authorities in this respect to come to the conclusion that the plaintiff could not claim ownership by adverse possession as a few days before filing the suit, they had admitted the title of the defendants and sought permission of construction on the land. In these circumstances, I find no fault in the approach of the First Appellate Court. No substantial question of law is involved in the appeal. 4. In the result, the appeal stands dismissed. 5. As the appeal itself is dismissed, the civil application does not survive and stands disposed off accordingly. :5: (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)