1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 327 OF 1990 Bapu S/o Gundiba Sonwane } Age : 48 Years, Occ. Agriculture, } R/o : Therla, Tq. : Patoda, } ..... APPELLANT/ Dist.: Beed. } (ORI. DEFT. NO. 1) V E R S U S 1. Govind S/o Nivratti Bhusnar } Age : 50 Years, Occ.Agriculture } R/o : Bhusnarwadi, } u/v : Dombari, Tq. : Patoda, } Dist. : Beed. } 2. Appa S/o Nivratti Bhusnar } Age : 30 Years, Occ.Argiculture } R/o : Bhusnarwadi, u/v : } Dombari, Tq. : Patoda, } Dist. Beed. } 3. Wanchabai W/o Hariba Sadgar } Age : 45 Years, Occ. Household } R/o : Hatkarwadi, u/v : } Raimoha, Tq. : Patoda, } Dist. Beed. } 4. Kasabai W/o Bapurao Bhandar } .... RESPONDENTS 2 Age : 35 Years, Occ. Household } R/o : Paranda, Tq.: Paranda, } Dist. : Osmanabad. } .... RESPONDENTS Shri. S.G.Chapalgaonkar, Advocate for Petitioner. Shri. Aashish Jadhavar, Advocate holding for Shri. N.P. Patil, Advocate appearing through Shri. S.S. Shete, Advocate for Respondent No. 1. [ CORAM : V.R.KINGAONKAR, J. ] DATE : 26/06/2009 ------------------------------------------------- ORAL JUDGMENT : 1. This Second Appeal arises out of Judgment rendered by learned Additional District Judge, Beed in R.C.A. No. 272 of 1986, whereby and whereunder Judgment of the learned Civil Judge (Jr.Division), Patoda in Suit bearing R.C.S. No. 3 of 1981, came to be reversed. The first Appellate Court allowed Appeal preferred by original plaintiff against the defendant, which was dismissed by the trial Court. 2. The Respondent no. 1 filed Suit for recovery of possession in respect of agricultural land bearing S.No. 56/C i.e. G.No. 143 situated at 3 village Bhusnarwadi under Patoda Tahsil. The case of the Respondent no. 1, stated briefly, was that the suit land comprise of 5 Acres 23 Gunthas is the ancestral property of himself and the defendant nos. 2 to 4, who are the respondent nos. 2 to 4 in the present Appeal. Their father, namely, Nivaratti Bhusnar was the original holder of the suit land. The defendant no. 1 ( Appellant ) had filed a Suit bearing R.C.S. No. 81 of 1966 against said Nivaratti for specific performance of agreement of sale. It was contention of defendant no. 1 Bapu Sonawane, in the earlier Suit filed by him, that said Nivratti had agreed to alienate the suit land in his favour. He asserted that he was in actual possession of the suit land in pursuance to the agreement of sale. His Suit (R.C.S. No. 81 of 1966 was dismissed. He carried an Appeal bearing R.C.A. No. 295 of 1967, which also was dismissed on 8/11/1968. It was case of the Respondent no. 1 ( Plaintiff ) that after demise of said Nivratti on 19/5/1980, he claimed possession, but defendant no. 1 Bapu declined to hand over the possession. It was asserted further that possession of defendant no. 1 Bapu ( Appellant herein ) was unauthorized and, therefore, he was liable to be evicted from the suit land. 3. The defendant Bapu failed to file his Written Statement on record and the Suit proceeded without his pleadings. The Suit came to 4 be dismissed by order dated 10/9/1986 in as much as the trial Court came to the conclusion that it was hopelessly barred by limitation. The trial Court held that it ought to have been filed within period of 12 years since Article 64 of the Limitation Act was applicable to the facts situation of the said case. The first Appellate Court held that the appropriate Article applicable was not Article 64, but it was Article 65 and, therefore, the Suit was within limitation. The first Appellate Court held further that possession of the defendant no. 1 ( Appellant ) was proved to be unauthorized and, therefore, decree for possession was warranted. Consequently, the Appeal came to be allowed. 4. Heard learned counsel for the parties. 5. While admitting the Second Appeal, the ground Nos. 2 and 4 were treated as the grounds which involve substantial questions of law. 6. I deem it proper to redraft and combine these questions of law in order to put the record straight. The only substantial question of law involved in this Second Appeal is as follows : “ Whether in the facts and circumstances of the present case, the first Appellate Court committed 5 patent error while coming to the conclusion that the Suit was within limitation and that the long standing possession of the Appellant ( defendant no. 1 ) could not be treated as descriptive possession ? ” 7. Before I proceed to consider rival submissions of the learned counsel, it may be gathered from the record that the Appellant based his claim as a prescriptive purchaser when he filed a Suit for specific performance of agreement of sale. It is well settled that once right is claimed under agreement of sale, then the only protection available would be under Section 53-A of Transfer of Property Act or by decree of specific performance. The plea of part performance was not available in as much as the appellant had filed Suit for specific performance and such a plea can not be used as sword but it is only a shield. The Appellant did not raise any plea before the trial Court to demonstrate as to how title of the plaintiff and his brothers came to be extinguished in view of Section 27 of the Limitation Act. It is pertinent to note that the Suit filed by the Appellant was dismissed by the trial Court and that decree was confirmed by the appellate Court on 8/11/1968. So far as the conduct of the Suit is concerned, the negligence of the appellant is writ large from the record. 6 He did not make serious efforts to ensure that his Written Statement is taken on record. He did not file any proceedings for setting aside the ‘ No W.S. ’ order nor preferred any Revision application after the rejection of application to take his Written Statement on record. Thus, there was no Written Statement in existence and the Appellant continued to conduct the Suit without his Written Statement. It is but natural that he was not permitted to raise any specific defence but his cross examination was limited to the objective of demolishing the plaintiff’s case. 8. Mr. Chapalgaonkar would point out that possession of the Appellant was since about 1955 onwards and, therefore, he could have claimed adverse interest notwithstanding absence of his Written Statement. It is well settled that mere long standing possession does not give benefit to parties, unless such possession can be characterized as adverse possession, which could be transformed in to prescriptive title. The possession must be shown to be adverse to the interest of the owner. The principle “ (i) Nec vi ; (ii) Nec clam and (iii) Nec Precario ” is required to be fulfilled. In other words, it was the boundened duty of the Appellant to prove that his possession was not by violence, not by permission of the owner and not clandestine in nature. The first Appellate Court was right in holding that Article 65 of the Limitation Act 7 is applicable in such a case. The trial Court committed error while applying Article 64 in the facts situation of the present case, though, it could not be so applied. The first Appellate Court noticed that the Suit was filed within period of 12 years after the dismissal of the Appeal on 8/11/1968 in the context of the earlier litigation started by the Appellant for relief of specific performance of the agreement. 9. Considering the peculiar facts and circumstances of the present case, there appears hardly any error committed by the first Appellate Court while dealing with the issue of limitation. In this view of the matter, there is no much substance in the Appeal. Consequently, the Appeal is dismissed. No costs. [ V. R.KINGAONKAR ] JUDGE knp/SA327.90