1 SA 398.2006 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 398 OF 20 06 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.S.K.Barlota, Advocate for the appellant. Mr. B.N.Patil, Advocate for Respondent. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 25/04/2011 PER COURT : 1. This is the Appeal by the original plaintiffs, who had filed Suit for partition and separate possession. The trial Court decreed the Suit. The defendant preferred Appeal. The appellate Court allowed the Appeal. The plaintiffs aggrieved thereby have filed the present Second Appeal. 2. Mr. S.K.Barlota, the learned counsel for the appellants strenuously contends that the Courts below have not properly applied the provisions of the Limitation Act [ For short, ‘ said Act ’ ]. The Suit could not have been dismissed under the provisions of Article 65 of the said Act in as much as Article 65 of the said Act is meant for the Suit 2 SA 398.2006 based on title. The learned counsel contends that there is no limitation prescribed for a Suit based on title and it is only in case the defendant proves adverse possession. The same can be considered only as a defence to non suit the plaintiffs, but the Courts on wrong premise hold the Suit to be barred by limitation. 3. According to the learned counsel, the trial Court had rightly considered the aspect of limitation and had concluded that when the property belong to the joint family, the possession of one is referable to the possession of other also. 4. With the assistance of the learned counsel, I have gone through the Judgments. 5. Both the Courts have applied the provisions of Article 65 of the said Act, which on the face of it, may be improper. The suit land S.No. 46-A was recorded in the name of deceased Rama long back i.e. more than 40 years prior to the filing of the Suit. Even Rama died 18 years prior to filing of the Suit and thereafter the present suit was filed. The record shows that partition had taken place in the year 1948 prior to police action. The same was not challenged during the life time of Rama and so also for 18 years after the death of Rama. 3 SA 398.2006 The provisions of Article 110 of the said Act would squarely apply. 6. In such circumstances, though the provision has not been correctly applied, but the principle that the Suit would be barred can not be faulted with. More over, even the Court on evaluation of evidence has also observed that the land S.No. 46- A to the extent of 2 Acres had not been given to Sonabai for maintenance nor it was kept common in between their father Rama and the defendant in partition. 7. In view of above, the Second Appeal being sans substantial question of law is dismissed, however with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/SA 398.2006