1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.253 OF 1984 Latabai w/o Jeevanrao Bodhankar, since deceased through legal representative Sachin Jeevanrao Bodhankar, Age-38 years, Occu:Business, R/o-Vidyanagar, House No.114, Nanded, Dist-Nanded. .... APPELLANTS. VERSUS 1) Trimbakrao Shriramrao Deshpande, 1A) Durgashankar s/o Trimbakrao Deshpande, Age-51 Years, Occu:Service, R/o-Gurudwara Road, Nanded, Dist-Nanded, 1B) Rajnandini w/o Nandkumar Kulkarni, Age-major, Occu:Nil, R/o-Bhandara, Dist-Bhandara, 2) Kamlakantrao Shriramrao Deshpande, Died Legal Representatives: (i) Lalitabai w/o Kamlakantrao Deshpande, (ii) Mangesh s/o Kamalkantrao, (iii) Hemant s/o Kamalkantrao, (iv) Rajendra s/o Kamalkantrao, (v) Sow. Rekha Shridharrao Tungar. .... RESPONDENTS. 2 ... Mr.P.M. Shah, Senior Counsel h/f. Mr. P.R. Deshmukh Advocate for Appellants. Mr.M.V. Deshpande Advocate for Respondent Nos. 2(i) to 2(iv). Rest of the Respondents served, absent. ... CORAM: K.K. TATED, J. JUDGMENT RESERVED ON : 10TH JULY, 2009 JUDGMENT PRONOUNCED ON : 16TH JULY, 2009. JUDGMENT: 1. The present Second Appeal is preferred by the original defendants against the Judgment and decree dated 13th September, 1984 passed by District Judge, Nanded in Regular Civil Appeal No.105 of 1981 arising out of the Judgment and decree dated 16th February, 1981 passed by Civil Judge, Senior Division, Nanded in Regular Civil Suit No.27 of 1976. 2. Heard learned counsel appearing on behalf of the parties at length. 3. To avoid the confusion in the nomenclature, 3 The parties will be referred as they appear in the Suit proceedings. Few facts of the present case are as under: . The plaintiff filed Regular civil Suit No.27 of 1976 in the Court of Civil Judge, Senior Division, Nanded on 2nd February, 1976 for a declaration of ownership of the land of an area of 15 Gunthas of northern portion out of land Survey No.70 measuring 2 Acres 15 Gunthas, assessed to land revenue Rs.4.70 Paise situated at Nanded, along with perpetual injunction order restraining the defendants from committing any act that may cause any interference with and interruption in the possession of the plaintiffs on the suit land and mandatory injunction order to remove the wire fencing on the eastern and western sides of the suit land. In the said Suit, the plaintiff prayed as under: "It is therefore prayed that the plaintiff's suit for declaration of ownership of the plaintiffs in respect of the land of an area of 15 gunthas of northern portion out of land S. No.70 measuring 2 acres 15 gunthas of land 4 revenue Rs.4.70 p. situated at Nanded, having its boundaries: to the east public road, to the west public passage, to the north land now occupied by the Maharashtra State Electricity Board, to the south land belonging t the defendant out of S. No.70, along with perpetual injunction order restraining the defendant from committing any act that may cause any interruption and interference with the possession of the plaintiffs in respect of the said area of land, and mandatory injunction order for removing the wire- fence on the eastern and western sides of the said area of land, may kindly be decreed with costs against the defendant or the plaintiffs may be awarded any proper relief for which they may be found entitled to." 4. Thereafter the plaintiff filed an application for amendment of Plaint dated 21st January, 1981 and the said application was allowed by the trial Court on 29th January, 1981. The plaintiff amended the Plaint and added following sentence in the Plaint: 5 "The possession of the suit land may kindly be delivered to the plaintiff by dispossessing the defendants." 5. The plaintiff also added para 14-A) in the Plaint as per the amendment order dated 29th January, 1981: " 14-A) That the plaintiff are entitled to evict the defendants from the suit land and Hon'ble Court may pass a decree in favour of plaintiff for the delivery of possession of suit land by dispossessing the defendant from suit strip of land." 6. The plaintiff also added following two lines in prayer clause as per amendment order dated 29th January, 1981: "And the possession of suit land may kindly delivered to the plaintiff by dispossessing defendant." 7. It is the case of the plaintiff that Shriramrao s/o Hanmantrao Deshpande, the father of the plaintiffs was the owner-in-possession of the land 6 Survey No. 70 measuring 2 Acres and 15 Gunthas. He sold 2 Acres of land out of Survey No.70 to the defendant by registered sale deed dated 2nd Isfindar 1354 Fasli (January 1945) retaining area of 15 Gunthas of land of northern side with him. The major portion of the land i.e. 2 Acres out of Survey No.70 was sold to the defendants and 15 Gunthas of land remained in ownership and possession of the father of the plaintiff and plaintiff reserved it for non agricultural use. The plaintiffs further submitted that in the village record the name of the defendant was entered inadvertently as an occupant of the entire area of 2 Acres and 15 Gunthas. In-fact the ownership and possession of 15 Gunthas of land was never transferred to the defendants and same remained with plaintiffs' father Shriramrao Deshpande. It is the case of the plaintiffs that most of their family members were out of Nanded for their profession and therefore the area of 15 Gunthas of land remained vacant as they kept it for non agricultural use. It is the case of the plaintiffs that the said strip of land was used by public to pass from the public road of eastern side for the locality in the area of Railway 7 Station, Nanded and Hamalpura. For the purpose of establishment of Maharashtra State Electricity Board, the land Survey No.71 which is to the north of said strip of land of 15 Gunthas, has been acquired by the Government. It is the case of the plaintiffs that defendants got possession of land Survey No.70 only to the extent of southern 2 Acres of land. The defendants have no right to claim ownership and possession of land of an area of 15 Gunthas in suit which is to the North of their land. The plaintiff No.2 in the month of March, 1974 started residing at Nanded. He expressed his desire to use the said area of 15 Gunthas for building purpose. Therefore, they visited the suit land in the month of June, 1974 and noticed that the defendants unauthorizedly erected wire fencing to the land Survey No.70 such as to cause obstruction to the plaintiffs to enter upon their portion of land of 15 Gunthas. The said wire fencing was to the entire Survey No.70 i.e. including disputed land of 15 Gunthas also. Therefore, the plaintiffs asked the defendants not to create any dispute and disturb their possession in respect of the suit land which they wanted to use for non agricultural purpose. 8 The plaintiffs requested the defendants to remove the wire fencing from the eastern and western side of the portion of land of 15 Gunthas. But the defendants on 16th March, 1975 flatly denied to do so and claimed to be the owner of that portion of land. Therefore the plaintiffs filed initially suit for injunction restraining the defendants from interfering with their peaceful possession of the suit land. Later on the plaintiffs applied to the trial Court for carrying out the amendment and the said application came to be allowed by the trial Court on 29th January, 1981 and the plaintiffs carried out amendment claiming possession of the suit land. 8. On the other hand the defendants filed their written statement on 30th July, 1976 and denied the plaintiffs' claim in respect of the suit land i.e. 15 Gunthas of northern side land in Survey No.70. It is the case of the defendants that since the date of sale deed they are in possession of the suit land with the knowledge of the plaintiffs. For last several years the suit land stands in their names in revenue record. They are paying land revenue in respect of the suit 9 land for the last several years. The defendants further submitted that the State of Maharashtra issued notification under Section 4 of the Land Acquisition Act for acquiring Survey No.70 including the suit land. It is the case of the defendants that Land Acquisition Officer issued notice under the provisions of Land Acquisition Act dated 9th January, 1956 calling upon them to vacate and handover peaceful possession of the land admeasuring 2 Acres and 15 Gunthas from Survey No.70. The said notice dated 9th January, 1956 is at Exhibit 23/3. The defendants further contended that they alone took appropriate steps with the revenue authorities as well as Government authorities for withdrawal of said acquisition proceedings under the Land Acquisition Act. In those proceedings the plaintiffs never participated and/or filed any application showing that they are in possession of the suit land. The defendants further contended that the Land Acquisition Officer by his letter dated 27th January, 1976 (Exhibit 23/8) informed the defendants that Government decided to withdraw the proceedings under the Land Acquisition Act for acquiring Survey No.70 for 10 industrial estate. The defendants' contention is that in the entire proceedings of the Land Acquisition Act, the plaintiffs never appeared and/or took any part in the said proceedings. The defendants submitted that they were in possession of the suit land from the date of sale deed with the knowledge of the plaintiffs and adversely to them. Plaintiffs never obstructed their possession and/or objected for using the said land as owner thereof for more than 30 years i.e. till the filing of the Suit in the trial Court. Therefore the defendants contended that they were in possession of the suit land for more than 12 years with the knowledge of the plaintiffs and the plaintiffs discontinued their possession of the suit land from the date of sale deed i.e. 2nd Isfindar 1354 Fasli. 9. The defendants further submitted that Shriramrao Deshpande was practicing Advocate at Nanded in the year 1354 Fasli. In those days the law of preemption as recognized by the High Court of Hyderabad was prevailing in that area of the State. There was possibility on behalf of owner of Survey No.71 to file a suit for preemption regarding Survey No.70, which 11 was adjoining towards south of Survey No.71. Therefore Shriramrao Deshpande represented to the defendants that to avoid the preemption litigation it was better not to include a strip of land adjacent to Survey No. 71 in the sale deed, so that the owner of Survey No.71 would not be able to enforce his right of preemption. So he executed a registered sale deed on 2nd Isfindar 1354 Fasli in favour of the defendants relating to 2 Acres. In fact whole of land Survey No.70 was sold by him to the defendants and the defendants were put in possession by him over the whole area of Survey No.70. It is the case of the defendants that Survey No.70 was previously purchased by Shriramrao Deshpande from one Dhyansing s/o Jaimalsingh under a registered sale deed dated 20th Khurdad 1335 F. This original sale deed was handed over to the defendants by Shriramrao Deshpande at the time of sale in favour of the defendants in the year 1354 Fasli. Had it been a fact that Shriramrao Deshpande had not sold and kept for himself northern portion of the land, he would not have handed over his title deed to the defendants. That title deed along with sale deed of 1354 Fasli were produced by the defendants in the land acquisition proceedings of 12 Survey No.70 in the office of the Deputy Collector, Nanded. 10. It is the case of the defendants that in the year 1954 the Government had started a land acquisition proceeding relating to the whole area of Survey No.70. The proclamation was issued in the Government Gazette. The said proceeding was pending for more than 20 years, but neither the father of the plaintiffs nor the plaintiffs at any time appeared in the land acquisition proceedings and declared their rights relating to the suit land. The father of the plaintiffs an Advocate, was also member of the Nanded Municipal Council and the plaintiff No.1 was also a Councilor. Survey No.70 was to be acquired for Nanded Municipality and the father of the plaintiffs and the plaintiff No.1 had full knowledge of acquisition proceedings, which ended on 27th January, 1976. the silence of the father of the plaintiffs and the plaintiffs for such a long period falsifies their claim that they were in possession of the suit land even after executing the sale deed in favour of the defendants. 13 11. The defendants further submitted that since the date of purchase i.e. 2-4-1354 Fasli, the defendants were in possession and enjoyment of the whole area of Survey No.70 as owner, including the suit land and since then the defendants were paying land revenue of the whole land and the name of the defendant was recorded in the village record as owner and actual possessor of the whole Survey No.70. The plaintiffs have admitted in their Plaint that during the period of 32 years neither they have paid any land revenue of the suit land nor their names or their father's name was recorded in the revenue record in respect of the suit land. The defendants further submitted that the plaintiffs or their father were not in possession of the suit land at any time after 2-4-1354 Fasli. As the plaintiffs were not in possession within 12 years next before 1st January, 1964 (the date of introduction of new Limitation Act), the claim of the plaintiff for possession of the suit land was barred by limitation as per Article 142 of the Indian Limitation Act, 1908. 14 12. On the basis of pleadings of both the parties, the Civil Judge, Senior Division, Nanded by Judgment and decree dated 16th February, 1981, decreed the suit filed by the plaintiff and declared as under: "Be it hereby declared that title to suit strip of land admeasuring 15 gunthas out of Survey No.70 situated at Nanded vests in Plaintiffs and other legal heirs of late Shriramrao Deshpande. The legal representatives of the deceased Defendant to deliver possession of the suit strip of land to the plaintiffs. The suit so far it relates to the reliefs of perpetual and mandatory injunctions stands dismissed." 13. Being aggrieved by the said Judgment and decree dated 16th February, 1991, defendants preferred Regular Civil Appeal No.105 of 1981. The said Appeal came to be dismissed. The present Second Appeal admitted on 18th December, 1984 on following substantial questions of law: "(i) Since they did not file the suit within 12 years after the said date 15 their suit for possession was already barred by limitation under the old Act. (ii) Section 31 of the new Indian Limitation Act provides that if the limitation prescribed under the Repealed Act is expired, the new Act does not enable the party to institute the suit under the new Act. (iii) The lower Court decided Point No.2 in the negative under the erroneous concept about the adverse possession." 14. The learned counsel for the Appellant contended that the learned Judge of the first appellate Court on considering the oral and documentary evidence on record having found that the late defendant right from the year 1934 Fasli till the date of filing of the suit was in possession of whole of the land Survey No.70 including 15 Gunthas of land in suit and the plaintiffs failed to plead and prove that as to when he was dispossessed of the suit land , the learned Judge of the first appellate Court should have held that the claim of the plaintiff for possession of the suit land inserted in the Plaint by 16 amendment of the Plaint in the year 1981, was long barred by time in view of the provisions of Article 142 and Section 28 of the Limitation Act, 1908 and in view of the provisions of Section 31 of the Limitation Act, 1963 he should have dismissed the suit as barred by limitation. He submitted that though this legal question was raised by the defendant in the Memo of Appeal, the learned first appellate Court did not consider and decide it while deciding the Appeal. He submitted that this substantial question of law needs to be decided by this Court in the Second Appeal. 15. In order to appreciate the submissions made by learned counsel for the Appellants, it is necessary to advert to the provisions of Article 142 and Section 28 of the Limitation Act, 1908 and Section 31 of the Limitation Act, 1963 which repeals the Limitation Act, 1908. Article 142 of the Limitation Act, 1908. They read thus: 142.- For possession of immovable property when the plaintiff, while in Twelve years The date of the dispossession or discontinuation 17 possession of the property, has been dispossessed or has discontinued the possession. . Section 28 of the Limitation Act, 1908 reads thus: "28. Extinguishment of right to property - At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished." . Section 31 of the Limitation Act, 1963 reads thus: "31. Provisions as to barred or pending suits, etc. - Notwithstanding in this Act shall, - (a) enable any suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian 18 Limitation Act, 1908, expired before the commencement of this Act; or (b) affect any suit, appeal or application instituted, preferred or made before , and pending at, such commencement. Description of suit Period of limitation Time from which period begins to run 64. For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed Twelve years The date of dispossession 65. For possession of immovable property or any interest therein based on title Twelve years When the possession of the defendant becomes adverse to the plaintiff 19 16. In view of the above provisions of Limitation Act of 1908 and 1963, it is necessary to consider whether the plaintiffs suit for possession is within limitation. If it is found that he was not in possession of the suit land within 12 years before the commencement of the new Limitation Act, 1963 and such position continued up-to the date of suit which was filed after commencement of new Limitation Act, 1963, then in view of Section 31 (a) of the Act of 1963, the plaintiffs suit filed in the year 1976 and the claim for possession inserted in the year 1981 as per order dated 29th January, 1981, will be clearly barred by limitation. The learned lower appellate Judge on the point of possession of the suit land after the plaintiffs' father executed the sale deed dated 1354 Fasli , at Para 12 of his Judgment stated thus: "On the point of possession, there is no satisfactory evidence. However, I am inclined to hold in favour of the Defendant. There is no satisfactory oral evidence on record to show as to who was in possession. But the 20 documentary evidence and the circumstances do show that the Defendant may be in possession. As aforesaid, the entire land of S.NO. 70 was entered in the name of the Defendant. He was paying the land revenue of the entire land. He is found to be in possession on the date of the suit. The Plaintiffs are not in a position to say as to when they were dispossessed. It is the case of the Defendant that he erected a fencing ground the entire land long back. The Plaintiffs are not in a position to prove as to when this fencing was erected. All these circumstances, in my opinion, go to show that the deceased Defendant was in possession. The Plaintiffs could have led satisfactory evidence to show that the initial their father and after his death, they were in possession of the suit land. Such evidence is not led by them. In my opinion, the circumstances are certainly in favour of the Defendant." 17. Thus the first appellate Court which is the final authority on the question of facts to be decided on the appreciation of evidence both oral and documentary on record, has found in favour of the 21 defendant on the point of possession of the suit land right from the year 1945 when the sale deed of 1354 Fasli was executed by the father of the plaintiffs in favour of defendants till the date of filing of the suit. In view of such finding, it follows that neither the plaintiff nor his father was at any time in possession of the suit land from 1354 Fasli after execution of the sale deed in favour of the defendant till the date of filing of the Suit. Therefore, in view of of Article 142 and Section 28 of the Limitation Act, 1908, his claim for recovery of possession of the suit land was barred by limitation and the right of the plaintiff to possess the suit land had extinguished in view of Section 28 of the Limitation Act, 1908 and as per Section 31 of the Limitation Act, 1963, the plaintiffs' claim for recovery of possession was barred. Consequently it must be held that the suit was liable to be dismissed as barred by limitation. 18. The next legal question to be considered is whether the defendants and their predecessors in title - Jeevanrao Madhavrao Bodhankar acquired title to the 22 suit land even by adverse possession. While considering the bar of limitation, earlier it has been demonstrated that the defendants - Appellants proved that they were in possession of the suit land of 15 Gunthas right from the year 1354 Fasli till the date of filing of the suit. The lower appellate Court on considering the oral and documentary evidence on record, accepted the case of the defendants - Appellants that they were in possession of the suit land from the year 1354 Fasli till the date of filing of the Suit but the lower appellate Court did not accept that the possession of the defendant was adverse to the plaintiff, the title holder of the suit land. Learned counsel for the defendants submitted that the possession of the late defendant over the suit land from the year 1354 Fasli till the date of filing of Suit satisfied all the legal requirements for holding that the possession of the defendant was adverse to the plaintiff and his deceased father Shriramrao Deshpande, and the learned first appellate Court erred in holding that the possession of the defendant was not proved to be adverse to the plaintiff. 23 19. It is submitted by the learned counsel for the defendants that learned Judge of the first appellate Court, in Para 14 of the Judgment, while upholding the defendant's case that he was in possession of the suit land right from the year 1354 Fasli till the date of filing of Suit, observed as follows: "The evidence nowhere shows that the Defendant was at any time in adverse possession. Apart from this fact, there is absolutely no evidence about adverse possession of the Defendant on record. As aforesaid, the original Defendant died before trial started and after his death at the time of the trial, the evidence of his elder brother was led. That is the only oral evidence on record in support of the case of the ? Defendant. This elder brother of the Defendant by name Shamrao, nowhere states in his evidence that the deceased Defendant was in adverse possession of the suit land. In other words, he has not uttered a single word about the adverse possession of the deceased Defendant of the suit land. This means even though an alternative 24 plea of adverse possession was taken, such evidence