1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Second Appeal No.135 of 1990 Umaraobegum w/o Mohd. Waliuddin aged 88 years, occup. Household, r/of Mominpura, Aurangabad. (since deceased) through legal heir:Syed Karminmuddin s/o Syed Hussain, age 66 years, occupation agriculture, r/of Mominpura, Aurangabad. .. Appellant/ or.pltff. Versus 1. Chotiram s/o Punja, age 40 years, occupation : agril. 2. Hiraman s/o Punja, age 35 years, occupation : agril. 3. Waman s/o Punja, age 35 year, occupation : Agril. 4. Hiralal s/o Punja, age 30 years, occupation : Agril. All r/o Harsool (Jaman Joti) .. Respondents Taluka & District Aurangabad. Ori. Defts. 2 Shri Avinash Borulkar, Advocate, for appellant. Shri A.M. Dabir, Advocate, for the Respsondents CORAM: P.R. Borkar, jJ DATE: 18th June 2009. ORAL JUDGMENT 1. This is an appeal by original plaintiff, who had filed suit for possession and mesne profit. It is the case of the appellant-plaintiff that she is the owner of survey No.56 admeasuring 17 acres 27 gunthas situated at village Ohar, Taluka and District Aurangabad. She had earlier filed suit No.48 of 1964 against father of present defendants for possession of the land and that suit was decreed. In Regular Darkhast No. 107 of 1966, she was put in possession on 13.3.1967. It is her case that in June 1969, she was dispossessed forcibly by present respondent-defendants. And hence, she had filed present suit No.585 of 1979. 2. Respondents appeared and denied that the plaintiff was put in possession of property in 1967 in execution proceedings. They further contended that they and their father were in possession as tenant for fifty years. The trial court and the first appellate court rightly did not entertain the question of tenancy as it ought 3 to have been raised in earlier suit No.48 of 1964. That was a plea or defence, which could have been taken, but was not taken in earlier suit and, therefore, there was bar of Section 67, explanation (IV) of the Code of Civil Procedure as it was a defence which might and ought to have been made as ground of defence in the former suit. The trial court and the first appellate court have currently held, relying upon admission of G.P.A. Of the present appellant, Syed Karimoddin, that the plaintiff was dispossessed within 4-6 months after taking possession in the execution proceedings and it was held that this dispossession was in or about September 1967 and that the suit filed in 1979 is barred by limitation. It is clear that the trial court and the first appellate court treated the suit to be suit for possession based on dispossession and did not consider the suit as the one filed on title and, therefore, held that the suit was barred by limitation. Both courts had dismissed the suit and the appeal respectively. 3. This appeal is admitted on following question of law by order dated 21.11.1990. " Whether, Article 64 or Article 65 of Limitation Act applies to the facts of the case ?" 4 4. Whether the suit is filed for possession on title or its a suit for possession based on dispossession from previous possession will be the moot question to be considered. In plaint paragraph 1 it is specifically stated that plaintiff is owner of survey No.56 admeasuring 17 acres 27 gunthas, named "Hadola" situated at village Ohar Taluka Aurangabad. So the plaintiff had asserted her ownership. There is nothing in the plaint to show that it was a suit for possession of immovable property, based on previous possession and not on title and, therefore, Article 64, and not Article 65, of the Limitation Act applies. There was absolutely no reason for plaintiff not to base her suit on title, more particularly when she asserted her title in the very first paragraph of the plaint and proceeded to narrate the events, which culminated in cause of action for filing suit. 5. In my considered opinion, view of the trial court and the first appellate court is pervese. Both have held that the suit was governed by Article 64 of the Limitation Act and it is a suit on title. In this case, Respondents have not taken plea of adverse possession as observed by the appellate court in paragraph 12 of its judgment. 5 6. In this view of the matter, appeal deserves to be and is accordingly allowed. The Judgments and decrees passed by the trial court and the first appellate court are set aside. The suit is decreed and the Respondents are directed to deliver possession of the suit land to the plaintiff. The plaintiff is also entitled to mesne profit from the date of of possession till actual delivery of possession. Enquiry regarding the same be held under Order XX Rule 12 of the Code of Civil Procedure. Respondents to pay the costs to the appellant-plaintiff throughout. (P.R.BORKAR, J.) pnd/oo sa135.90