1 Second Appeal No.262/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 262 OF 2011 SHAIKH NAZAM SHAIKH AZAM Appellant. VERSUS SHAIKH MOUJAM SHAIKH AZAM Respondent. ... Advocate for Petitioners : Mr. Bhavthankar Vivek Vasantrao Mrs Ansari A.N.Adv For R sole. CORAM : S.S. SHINDE, J. Dated: December 19, 2011 PER COURT :- 1. Heard counsel appearing for the appellant. Learned counsel appearing for the appellant submits that the lower appellate court did not frame point on ownership and also on limitation. Trial court inspite of having specific pleadings in the written statement of the appellant herein, did not frame point on adverse possession. The learned counsel further submits that possession of the appellant in the suit property is for more than 25 years. Said possession is an uninterrupted and to the knowledge of the respondent and therefore, the provisions of section 65 of the Limitation Act would attract in the present case. Evidence was led before the courts below to assert the possession of the appellant which is for more than 25 years. 2 Second Appeal No.262/2011 The electricity bill is being regularly paid by the appellant and also electricity connection is in the name of the appellant. The other charges are also paid by the appellant. The respondent original plaintiff first time in the year 2003 claimed the ownership and therefore, the point of limitation assumes importance in the present matter. However, lower appellate court has not specifically framed the same point. The learned counsel also invited my attention to the grounds taken in the second appeal. He submitted that though, the sale deed on which the respondent/plaintiff has placed reliance is executed in the year 1976, first time in the year 2003, the respondent/plaintiff applied for mutation entry/ in his name. Legal notice was given only in the year 2006. The plaintiff did not object for revenue entries in the name of the plaintiff and also electric connection in his name from 1976 till legal notice was given in the year 2006. At the cost of repetition, counsel for the appellant would submit that plea of adverse possession is not properly gone into by the trial court and no specific issue to that effect was framed. Therefore, according to the learned counsel, since he is in continuous un-interrupted possession of the suit property to the knowledge of the respondent, is entitled for benefit of Article 65 of the Limitation Act. Learned counsel also invited my attention to the deposition of the appellant dated 21.7.2009, where ownership by adverse possession was claimed by the appellant and therefore, according to the learned counsel appearing for the appellant, Second Appeal deserves consideration. 3 Second Appeal No.262/2011 2. On the other hand, counsel appearing for the respondent submits that the point in respect of adverse possession is mixed question of law and facts and is not pure question of law. Both the courts below have held against the appellant and therefore, this court may not interfere in the concurrent findings recorded by the both the courts. Learned counsel further submits that, ownership of the respondent i.e. original plaintiff is accepted by the appellant in his deposition. Learned counsel invited my attention to paragraph no.14 and 15 of the judgment of trial court and submitted that the documents which are relied upon by the appellant to claim his continuous possession are after filing of the suit. It is further submitted that appellant was in permissive possession of the suit premises. Original plaintiff-respondent herein used to visit suit premises. Appellant never objected for the same and therefore, inference drawn by the lower appellate court in paragraph no.10 of its judgment that appellant is in possession of the suit premises for last 25 years with the permission of the plaintiff-respondent, and said possession is permissive possession and therefore, the appellant is not entitle for relief of ownership by adverse possession need no interference. It is submitted that the plaintiff submitted number of documents and also led evidence to show his ownership over the suit property. Learned counsel invited my attention to paragraph no.10 of the trial court judgment and submitted that, Trial court after satisfying itself 4 Second Appeal No.262/2011 that there is a sufficient evidence available about the claim of the plaintiff of ownership of the suit property has concluded said issue in favour of the plaintiff. Therefore, according to the learned counsel for the respondent, in view of the con-current findings recorded by the courts below, any interference in the concurrent findings recorded by the both the courts is not warranted in the present second appeal. 3. I have given due consideration to the rival submissions advanced by learned counsel for the parties and also perused appeal memo and annexures thereof. It is true that trial court has not framed specific point on adverse possession. However, in paragraph No.12 of the judgment said point is properly discussed. It may be that, the point is raised by the appellant in the written statement. However, unless there is a specific insistence for framing such point, to accept the contention of the appellant that no specific issue in respect of adverse possession was framed by the trial court cannot be accepted. When said point is discussed in paragraph no.12 of the judgment and court has considered the rival pleadings and then adjudicated said point, merely no such point is specifically framed is no ground to interfere in the concurrent findings recorded by both the courts. The lower appellate court has specifically framed point on claim of appellant for ownership by adverse possession, and said point has been extensively dealt with. The parties were allowed to lead evidence and 5 Second Appeal No.262/2011 thereafter findings are rendered by learned Appellate Court. 4. The contention of the counsel appearing for the appellant that, he is owner by adverse possession, his claim as a owner of suit property by adverse possession should have been accepted is devoid of any merits. To claim ownership by adverse possession, there should have been overt act on behalf of the appellant denying the title or ownership of the respondent i.e. original plaintiff. After such ouster or denial of the ownership of the respondent, the period of 12 years as contemplated u/A 65 of the Limitation Act would start. In the present case, there is no any overt act by the appellant, at least prior to filing of written statement in the year 2006 to deny the ownership/title of the respondent. Therefore, finding recorded by trial court and which is confirmed by the lower appellate court that appellant was in permissive possession of the suit property needs no interference. To plead the ownership by way of adverse possession, there should be some overt act and period of 12 years as envisaged in article 65 of the Limitation Act would start from that day. In this case, admittedly, appellant is step brother of the respondent, there are number of documents on record to substantiate that respondent has purchased this property by way of executing sale deed in the year 1976. The satisfactory evidence was placed on record by the plaintiff to prove his ownership which is accepted by both the courts below. I find some substance in the contention of the counsel appearing for 6 Second Appeal No.262/2011 the original plaintiff that even the ownership of the plaintiff has been accepted by the appellant. 5. From careful perusal of the material brought on record, it appears that first time appellant herein on 23.6.2006 by way of reply to the notice of the plaintiff has denied the title and ownership of the original plaintiff i.e. respondent herein. Therefore, his claim will be at the most from 23.6.2006. Therefore, it is not possible to accept the contention of the counsel appearing for the appellant, that the appellant is in possession of suit property for more than 25 years and therefore, his claim for ownership by way of adverse possession should have been accepted. At the cost of repetition, it is required to be observed that, merely because somebody is in possession of the property for long period, itself would not entitle the said person to claim adverse possession unless there is specific ouster of the original owner by way of specific overt act by the person, claiming the adverse possession. Therefore, finding recorded by both the courts that, appellant was in permissive possession of the suit property and respondent i.e. original plaintiff used to visit said premises and therefore, such possession was permissive possession needs no interference. Having been held that possession of the appellant was permissive possession, his claim for ownership on the basis of adverse possession would stand automatically negated in the absence of any overt act prior to 23.6.2006 to ouster the 7 Second Appeal No.262/2011 plaintiff. 6. Therefore, for the aforesaid reasons and from the careful reading of the grounds taken in the appeal memo, none of the grounds can be considered as substantial question of law in the present Second Appeal. Though specific point is not framed by lower appellate court on limitation, the limitation to file suit will start only from the date on which there was overt act by the appellant to deny the title and ownership of the respondent/plaintiff. Therefore, the suit was well within the limitation. Therefore, for the aforesaid reasons, I do not find substance in the Second Appeal. Same is rejected. 6. In view of dismissal of second appeal, civil application, if any stands rejected. ( S.S. SHINDE, J. ) aaa/- ***