1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Second Appeal No. 127 of 2009 [Ashok V. Umathe & ors. Vs. R.A. Poddar & ors.] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. P.A. Deshmukh, Adv., for the appellants. Mr. S.S. Sharma, Adv., for Respondent Nos. 1 to 4. ----- CORAM : A.H. JOSHI, J. DATE : 6th May, 2009. 1. Learned Adv., for the appellants had prayed for leave to tender Substantial Questions of Law, which, according to learned Adv., do involve, but were not framed. Leave is granted. 2. This is an appeal by unsuccessful plaintiffs, who claim to be in adverse possession. 3. Both the Courts have declined to accept plaintiffs story. 4. In the grounds of appeal tendered today, learned Adv., has framed following Substantial Questions of Law:- 2 1. Could the Curs below justifiably ignore the allegations made in the said notice of N.I.T. dated 6.6.1985 when they did not give a finding that the said notice is false and bogus? 2. Is not the Application filed by Vitthalrao in Misc. Application No.280/1985, a private document? And whether its certified copy is admissible in evidence without its formal proof by calling original record of the case? 3. When the District Judge, Nagpur in Misc. Application No. 280/95 or anybody else did not act upon the recitals-cum- representation made in it by deceased Vitthalrao Umathe, could the courts below hold, in law, that those recitals amount of estoppel against the appellants? 4. Could the courts below give contradictory finding to the effect that the house in respect of which notice was issued by N.I.T. must be different house than the suit house situated in Naik Talav Poddarwadi? 5. When, it is held by lower Courts that the notice issued by N.I.T. was not in respect of suit house then would it not follow that the pleadings made by deceased Vitthalrao Umathe in Misc. Application No. 280/85, were not in respect of suit house? 6. Was it not incumbent upon the 3 Courts below to presume that the sanction granted by the N.M.C. was proper under the provisions of Section 35 r/w Sec. 114 of Evidence Act, and find that such a piece of land is in the possession of Appellant No.1? 7. When the appellants are seeking help of the court after court for the protection of the suit house which is their residential house, the concurrent finding of the courts below that no such house existed at all, is itself a substantial question of law. 8. In any case, the concurrent findings given by the Court below are contrary to the facts and material on record and so those are perverse which empower this Hon ble High Court to interfere and quash the decree passed by the courts below and to decree the suit of appellants. 5. Heard learned Adv. Mr. P.A. Deshmukh for the appellants and Mr. S.S. Sharma, Adv., for respondent nos. 1 to 4. Perused the judgments impugned and record tendered by appellants as well as by the respondents. 6. As observed by the Appellate Court, the question is not whether the appellants are estopped due to averments made by them in earlier proceedings, rather the question, that arises, is as to whether the appellants are 4 bound by their own admission given and reiterated by them, saying that the structure which they claim in present suit to have been constructed, was denied by them to have so constructed, and on the contrary, urged that it was a part and parcel of the house occupied by them with their brother, who has lateron, admittedly, surrendered the tenancy and even rights and possession of the house which appellants had occupied in their capacity as tenants with brother. 7. Plain and limited issue before the courts below was as to whether at which point of time, the appellants became adverse and hostile to the original land owner, and, if so, on which date. 8. The appellants are not in a position to specify any date from which they claim adverse to true owner. 9. In past, the appellants have been conceding to the position that they are permissive occupiers. 10. In absence of the nature of possession being hostile to the true owner being pleaded and proved, the claim of title based on adverse possession was bound to fall, and which has fell accordingly. 5 11. The adverse possession, which is a most convenient shield, yet obligation to prove the date when it became adverse, still continues with the contender. 12. In the present case, this obligation is not discharged by the plaintiffs in totality. 13. In the result, the appellants have failed in Trial Court as well as in First Appellate Court, and have too failed before this Court as well. 14. In these premises, any of the questions agitated in the appeal does not arise in present appeal. 15. Substantial Questions of Law so styled and framed are not involved. 16. Second Appeal has no merit and is dismissed. Judge |Hedau| 6