1 SA119.10 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 119 OF 2010 Dhanaji Mahadu Bharmal & anr. ... Appellants v/s Narayan Dhondiba Bharmal & anr. ... Respondents Mr.P.B.Shah for the appellants. Ms.Gauri Godse for the respondents. CORAM: SMT.NISHITA MHATRE, J. DATED: 25TH NOVEMBER, 2011 P.C.: 1. The appeal is directed against the decree passed by the learned District Judge, Pune, in Civil Appeal No.52 of 2007. The suit was filed for a mandatory injunction by the plaintiffs before the Civil Judge, Jr. Divn., Ghodegaon being R.C.S. No. 13 of 2004. The suit was decreed and the defendants i.e. the appellants were directed to demolish the suit house from Gat No.334/2A. The Trial Court held that the defendants were in permissive possession of the suit premises and that the plaintiffs were entitled to claim possession of their property. 2 SA119.10 2. In the appeal filed by the defendants before the first appellate Court they contended that the suit was barred by limitation and, therefore, ought to have been dismissed. It was further contended that an irrevocable license was granted to the defendants to construct a house on the suit property and, therefore, the plaintiffs could not have sought possession of the suit property. The Appellate Court has held that since the defendants were in permissive possession of the suit property, the suit filed for a mandatory injunction was not barred by limitation. 3. The learned advocate for the appellants contends that the suit was filed for a mandatory injunction and since the Limitation Act does not describe a particular period within which such a suit can be filed, the limitation for such a suit would be three years from the date on which the right to sue accrued as stipulated in Article 113 of the Limitation Act. He then submits that the appellants had constructed a house on the property owned by the respondent fourteen years prior to the suit being filed. The learned advocate further submits that a license had been created in favour of the appellants which was irrevocable as the appellants have constructed a house on a plot of land owned by the respondents and had incurred expenses for the same. It is then contended that 3 SA119.10 under Section 60(b) of the Easements Act, 1882, the license created was irrevocable. The last submission advanced by the learned advocate is that the suit filed by the respondents had abated since respondent No.1 had expired during the pendency of the suit. 4. The learned counsel for the respondents submits that the appellants were in permissive possession of the suit property and the limitation for filing the suit is three years from the date when the appellants refused to vacate the property. She further submits by relying on the judgment of the Supreme Court in the case of A.S.Vidyasagar v/s S.Karunanandam, reported in 1995 Supp. (4) SCC 570, that the rightful owner can terminate the grant of permissive possession to another at any point of time. As regards the submission that the suit had abated in respect of plaintiff No. 1, she submits that the appellants themselves have brought on record the legal heirs of respondent No.1 in the present appeal and, therefore, it could not be said that the suit had abated. She fortifies her submission by placing reliance on the judgment in the case of Mithailal Dalsangar Singh & ors. v/s Annabai Devram Kini & ors., reported in (2003) 10 SCC 691. 4 SA119.10 5. The submission of the learned advocate for the appellants that the suit was barred by limitation in view of the fact that it had not been filed within three years, is without merit. The contention that Article 113 of the Limitation Act is attracted, also cannot be accepted. Both the Courts below have held on evidence that the appellants were in permissive possession of the suit property. This is a finding of fact which cannot be disturbed in a second appeal. The Courts have concluded that in these circumstances the appellants were entitled to seek the recovery of possession of the suit property at any point of time. In the case A.S.Vidyasagar (supra), the Supreme Court has observed that permissive possession of the appellant could rightfully be terminated at any moment by the rightful owners. There is no dispute that the suit property is owned by the respondents and, therefore, the limitation would run only from the date when the defendants refused to vacate the suit property. Both the Courts below have found that the suit is not barred by limitation. I see no reason to interfere with this finding. 6. The contention of the learned advocate for the appellants that an irrevocable license has been created in favour of the appellants in view of the house being 5 SA119.10 constructed on the land by the appellants, also is unacceptable. The house was constructed on the suit property with the consent of the plaintiffs i.e. the respondents herein. The evidence on record establishes that the appellants were permitted to construct a house for a temporary period in view of their land being acquired for the construction of a dam. It was only by way of an alternate arrangement for a temporary period that the respondents herein had permitted the appellants to construct the suit house on their property. 7. The third contention that the suit had abated with respect to plaintiff No.1 as he had expired and that therefore there cannot be two decrees in a suit is also unsustainable. Undisputedly, plaintiff No.1 expired. However, his heirs have been brought on record by the appellants in the present appeal after the Court permitted them to amend the appeal. The Supreme Court in the case of Mithailal (supra) has observed thus - “11. There is yet another aspect of the matter. As we have already noticed, the appeal against the order of ad-interim injunction passed by the learned trial Judge was pending before the Division Bench. Therein the defendants had themselves moved an application for bringing on record the legal representatives of the deceased plaintiff, that is, the respondent in their appeal. The legal representatives being brought on record at any stage of the proceedings enures for the 6 SA119.10 benefit of the entire proceedings. The prayer made by the defendants in their appeal for bringing on record the legal representatives of the deceased plaintiff- respondent in appeal was not opposed by the legal representatives or by any of the co-plaintiffs. Rather the prayer was virtually conceded to by the legal representatives themselves moving an application for being brought on record in the suit in place of the deceased plaintiff. In our opinion, the application made by the defendant-appellants in the appeal once allowed would have the effect of bringing the legal representatives on record, not only in the appeal but also in the suit. All that would remain to be done is the ministerial act of correcting the index of the parties by the applicants in appeal and then in the suit. In view of the defendants themselves having sought for impleadment of the legal representatives in the appeal the delay in moving the application in the suit by the legal representatives, being subsequent in point of time, became meaningless.” 8. Thus, as the heirs of respondent No.1 have been brought on record, the question of the suit abating does not arise as the appeal is in continuation of the suit. The amendment has enured to the benefit of the suit itself. 9. The appellants have failed to raise any substantial question of law requiring the consideration of this Court under Section 100 of the Code of Civil Procedure and, therefore, the appeal is dismissed. 10. In view of dismissal of the second appeal, Civil Application No. 166 of 2010 does not survive and stands dismissed. 7 SA119.10 11. On the oral application made by the learned advocate for the appellants, parties shall maintain status-quo as of today for six weeks. (SMT.NISHITA MHATRE, J.) 8 SA119.10