1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. SECOND APPEAL NO.11 OF 2001. Keshav Vithoba Mhaiskar .vs. Shri Shankar Bodal Choudhari and others. ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Ordersdirections and Registrar's orders. ---------------------------------------------------------------------------------------------------------------------------- Coram: C.L.PANGARKAR,J. Dated : 23rd JULY, 2009. 1. Heard Mr.R.S.Parsodkar, learned counsel for the appellant and Mr.Nitin Vyawahare, learned counsel for the respondent. 2. This second appeal is preferred against the judgment and decree passed by the district judge, whereby he confirmed the judgment and decree passed by the Civil Judge (Jr.Dn.), Umrer. The respondent/plaintiff had instituted a suit for possession of suit site and for removal of the hut thereon. It was contended by the respondent/ 2 plaintiff that he is the owner of the suit property and defendants made an encroachment on the same and constructed the hut. He further contended that despite so many requests defendant/appellant has not removed he said hut. The suit was resisted by the appellant/defendant mainly on the ground that the hut was constructed by the defendant/appellant prior to more than 20 years and in fact the land over which the said hut is constructed belongs to the Government. 3. The trial court found that respondent/ plaintiff was the owner of the suit land. It also found that the appellant/defendant had made an encroachment and defendant had failed to make out the case of adverse possession. The appellate court concurred with the said findings and dismissed the appeal. 4. The learned counsel for the appellant submits before me that courts below have in fact fallen in error in holding that the respondent was the owner of the suit property. He submits that 3 since no title deed was placed before the courts below, a finding could not have been recorded that the plaintiff/respondent was the owner of the suit property. The plaintiff/respondent has come out with the case that it is his ancestral property and in that respect the plaintiff has placed on record 7/12 extracts. The courts below have considered that 7/12 extracts along with the oral evidence and has found as a fact that the plaintiff is the owner of the suit property. 5. Mr.Parsodkar, learned counsel for the appellant submits that the 7/12 extracts in fact does not confer any title. Though 7/12 extracts does not confer any title but entries in the 7/12 extracts show that the plaintiff is the owner of the suit property and those entries corroborate the evidence of the plaintiff. The courts below have rightly considered the evidence in that regard. 6. The learned counsel for the appellant further contended that there is evidence with regard to the adverse possession. He submits that 4 hut was constructed prior to twenty years and that is in fact an admitted fact. He submits that with this it is clear that the plaintiffs were aware that the hut was constructed and yet they did not object and that itself suggests that there is an adverse possession. The argument cannot be accepted for the simple reason that the defendant did not accept the plaintiff as a owner of the suit property. The defendant/appellant is in fact supposed and is bound to admit the ownership of the plaintiff, it is only then he can claim adverse possession against the plaintiff. It was all the while case of the defendant that the suit property was a government land and he had constructed the hut on government property. It is in this regard the plaintiff has examined the surveyor to show that the hut which is constructed by the defendant is on the plaintiff’s land. It is proved that hut is on the land of plaintiff. These are all questions of facts. There is no substantial question of law involved in the matter. The only substantial question of law that was raised was of adverse possession. That does not carry any weight because it was rightly 5 decided by the courts below. There is no substance in the second appeal. It is dismissed in limine. JUDGE. chute