1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 959 OF 2005 Office notes, office memoranda of Corum, appearances, Court’s orders or directions and Registrar’s orders. Court’s Judge’s orders. 1. Heard Shri. K.M. Nagarkar, counsel appearing for appellant, Shri. A.G. Telhar, counsel for Respondent no. 3 and Shri. S.B. Yawalkar, counsel for respondent nos. 4 and 5. 2. This Second Appeal is filed by the original plaintiff, whose Suit for possession on title bearing R.C.S. No. 368 of 1990 was dismissed by the Jt. Civil Judge (Sr.Division), Jalgaon on 19/4/1997, which Judgment and Decree was confirmed by the First Adhoc Additional District Judge, Jalgaon in R.C.A. No. 2 116 of 1997 decided on 11/11/2003. The appellant has come with the case that his father Shrawan Choudhari purchased suit property bearing S.No. 109 (Block No. 20) admeasuring 4 Acres 17 Gunthas situated at village Chinchpure (Bk.), Tq. Erandol from one Nilkanth Patil by sale deed dated 31/12/1948 for Rs. 1500/-. It is further case of the appellant that Tenancy Malkhari, Erandol have taken a wrong mutation entry No. 605 on 15/3/1949 showing one Dhudku Ishram as tenant of the land. Subsequently, another mutation entry No. 680 dated 4/2/1956 was made, in which name of Tiba Patil, the husband of Respondent no. 4 Sonabai and father of respondent no. 5 Subhadra was shown as tenant. The appellant’s father Shrawan died on 5/1/1960. It is further stated that original owner Nilkanth Patil without obtaining prior permission from competent authority, sold suit land to Tiba Patil and consequently Mutation entry No. 836 dated 13/2/1959 was effected. In fact, Nilkanth 3 Patil had no title, interest or right over the suit land when he executed sale deed in favour of Tiba Patil. However, the revenue authorities regularized sale transaction in favour of Tiba Patil by imposing penalty under Section 84 – A of the Bombay Tenancy and Agricultural Lands Act, 1948. By this Suit, the present appellant challenges the fact that Tiba Patil was tenant or subsequent sale to him was legally regularized. It has further come on record that Tiba Patil subsequently sold the said land to father of respondent no. 3 on 4/2/1977 for consideration of Rs. 8,000/- (Rupees Eight Thousand only) without any permission of competent authority. 3. The trial court and first appellate court framed various Issues and points respectively. Both have come to the conclusion that the suit claim is beyond limitation and plaintiff failed to prove his title over the suit property. 4. It is argued by Shri. Nagarkar that 4 plaintiff was minor when the property was purchased by his father in the year 1948. However, the plaint shows that on 3/9/1990 when the Civil Suit was filed, the plaintiff was 53 years of age. In para no. 11, the appellate Court held that plaintiff attained majority in about 1959 or so. It is also stated before me that the various mutation entries were challenged and the matter was fought up to the level of Commissioner. In other words, the plaintiff was aware of the mutation entries. Admittedly, he was not in possession of the property, but he was challenging the mutation entries. So, at least from 1959 onwards, when appellant attained majority, he is expected to take steps, particularly when he was knowing that earlier Tiba Patil and subsequently the father of respondent no. 3 were in possession of the property as owners. It is not the case of the plaintiff, even as an alternative case, that Tiba Patil or father of defendant no. 3 after sale deed dated 4/2/1977, have admitted or acknowledged 5 his ownership. So, viewed from above angle, it is clear that both the trial court and first appellate court have rightly held that the suit was not filed within limitation. Unfortunately, plaintiff was fighting litigation before revenue authorities instead of coming to the Court. When Tiba Patil and after 1977 the father of respondent were openly enjoying the property as owners and their names were entered in the revenue record. It is also stated before me that the sale in favour of Tiba Patil was originally without permission of competent authorities and, therefore, on payment of penalty, the said sale was regularized on 10/10/1960. So, at least that was the date from which limitation could be counted as the appellant was quite aware of the same. It is not his say that he was not aware about the mutation entries or possession of Tiba Patil or father of respondent no. 3 after 1977. So, viewed from any angle, this Second Appeal can not be admitted as the findings of trial court and first appellate court 6 regarding limitation is proper and reasonable. Hence, Second Appeal stands dismissed. In view of dismissal of Second Appeal, Civil Application No. 5770 of 2005 does not survive and hence stands dismissed. DATE : 01/07/2009 [ P.R. BORKAR ] JUDGE knp/SA959.05 7 8 9 10 11 12 13 14 15