1 SA 1023.....2005 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1023 OF 2005 WITH SECOND APPEAL NO. 1366 OF 2005 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.Chandole, Advocate holding for Mr.V.G.Sakolkar,Advocate for the appellant. Mr.N.P.Patil (Jamalpurkar),Advocate for Res.No.1 .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 20/04/2011 PER COURT : 1. The Appellant in Second Appeal No. 1366 of 2005 is the original plaintiff, who had instituted a Suit for declaration that he is the owner of the property, more particularly, has acquired ownership by adverse possession and for injunction restraining the defendants from obstructing his possession over the suit lands. The trial Court partly decreed the Suit to the extent of injunction holding that the plaintiff is in possession of the property, but negated the relief of 2 SA 1023.....2005 declaration on the ground that the plaintiff could not prove the acquisition of title by adverse possession. Aggrieved thereby, the plaintiff as well as the defendant preferred two separate Appeals before the District Court. The District Court dismissed both the Appeals confirming the Judgment and decree passed by the trial Court. The plaintiff and defendant both have assailed the said Judgments in the present Second Appeals. 2. Mr. Chandole, the learned counsel holding for Mr. V.G.Sakolkar, the learned counsel for the appellant in Second Appeal No. 1023 of 2005 contends that the Courts have come to the conclusion that the plaintiff is in possession merely on the basis of some entries. In fact, the earlier Suit of the present appellant was decreed against the father of the present respondent i..e. the plaintiff and the present defendants were put in possession of the suit property in the year 1961. There is nothing on record to show that thereafter they were dispossessed. The presumption would be in favour of the continuity of possession. According to the learned counsel, the Courts have not properly appreciated the oral evidence on record. The revenue entries would not be sufficient to show the possession of the plaintiffs. 3 SA 1023.....2005 3. Per contra, Mr. N.P. Patil (Jamalpurkar), the learned counsel for the original plaintiffs submits that the plaintiffs have proved that for more than 40 years, they are in continuous and uninterrupted peaceful possession of the suit property and as such the Court has rightly clamped injunction against the defendants. According to the learned counsel, both the Courts have not properly construed the concept of adverse possession. The plaintiffs have proved their possession as continuous, uninterrupted, peaceful to the knowledge of the defendants at least since 1974-75. The revenue entries to that effect also substantiates this position. But, the Courts have not properly considered the same simply because in the revenue record, the possession of the plaintiff is sometimes shown as ‘ Rit – 2 ’, that would not be sufficient to negate the case of the plaintiff of having acquired the title by adverse possession. Nothing more was required to be proved of having acquired title by adverse possession. 4. With the assistance of the learned counsel for the respective parties, I have gone through the Judgments. 5. The fact that the plaintiff is in possession of 4 SA 1023.....2005 the suit property is held by both the Courts. The oral evidence has also been properly appreciated, so also, the documentary evidence in the shape of revenue record establishes this fact. There is nothing on record to show that the entries in the cultivation column in the name of plaintiff was not taken adhering to the due process. The same have presumptive value. As such, the finding as far as the possession is concerned is proper and as the plaintiff has been found in possession of the property, injunction has been rightly clamped against the respondents. 6. So far as the contentions of the plaintiff regarding acquisition of title by adverse possession is concerned, it is a settled law that length or the duration of possession is not relevant. The possession should be coupled with an ‘ animus possidendi ’ to show that it was in the capacity of the owner negating the right of ownership of the defendant. In the present case, the Court has observed that the revenue record also showed the entry in the name of plaintiff to be on the basis of ‘ Rit – 2 ’ which is not pursuant to the ownership. The same was also not totally consistent. In light of that, the Court could not have come to the conclusion about the acquisition of the title by the plaintiff by adverse possession. The Court 5 SA 1023.....2005 observed that the pleading did not point out that the entry of the plaintiff was adverse to the true owner and material facts were not pleaded nor the overt acts were pleaded, which is observed by the trial court in para no. 15 of its Judgment. The Apex Court in the case of P.T. Munichikkanna Reddy and others V/s Revamma and others reported in (2007) 6 Supreme Court Cases – 59 have observed as under : “ intention is a mental element which is proved and disproved through positive acts. Intention to possess can not be substituted for intention to dispossess which is essential to prove adverse possession ”. It is also observed that animus plays a vital role in coming to the conclusion about the adverse possession. 7. In light of the above, no error can be found in the Judgment of the Courts below. The Suit is filed by the plaintiff in the year 1993. The injunction is clamped in favour of the plaintiff against the defendants that the defendants shall not cause obstruction to the possession of the plaintiff over the suit land without due process of law. If hereinafter the defendants resort to due process of law, all the defences available to the plaintiff will be open to defend the said case as the fresh period would be required to be computed in the fresh Suit. 6 SA 1023.....2005 8. The Second Appeals are accordingly dismissed however with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/SA 1023.....2005