1 S.A.No.81/09 with S.A.No.86/09. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.81 OF 2009 WITH SECOND APPEAL NO.86 OF 2009. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.S.T.Shelke, advocate for the appellants. Mr.A.S.Bajaj, advocate for the Respondent No.1. CORAM : S.V.GANGAPURWALA,J. Date : 09.12.2010. 1. The appellants in both these appeals had filed suit for injunction and in alternative for possession in respect of the suit properties, whereas the present Respondent in both the appeals had filed a suit for declaration of ownership and injunction in respect of the same suit property. The trial Court decreed the suit of the present Respondents and dismissed the suit filed by the present appellant. The present 2 S.A.No.81/09 with S.A.No.86/09. appellants preferred two appeals before the District Court. One, against the dismissal of their suit and the second against the decree being passed in the suit filed by the present Respondents. The District Court dismissed both the appeals filed by the present appellants. Thereafter, the present appellants have assailed the said judgment and decree in the present Second Appeal. 2. Mr.S.T.Shelke, learned counsel for the appellants contended that both the Courts have failed to consider the provisions of Bombay Hereditary Offices Act, 1874, in its correct perspective. They have not properly interpreted the provisions of the said Act and as such have arrived at erroneous conclusion. It ought to have been considered that the suit property was mortgaged in favour of the predecessor of the present appellants in the year 1895. Thereafter no steps were taken by the Respondents for redemption of the same and by efflux of time, the right of the predecessor-in-title of the present appellants was perfected. So also, the rights of 3 S.A.No.81/09 with S.A.No.86/09. the Respondents in the said property stood extinguished and thereafter the present appellant had purchased the suit property vide registered instrument and as such the present appellants are the owners of the property. Mr.Shelke, learned counsel further contended that all along the revenue entries show the possession of the present appellants. The revenue entries have got presumptive value. The same have been erroneously discarded by the Courts below. Even otherwise, the appellants have prayed alternatively for possession. The appellants were entitled for possession on the basis of title. The same has not been considered by the Courts below. 3. Per contra, Mr.Bajaj, learned counsel for the Respondents contends that in view of provisions of the Bombay Hereditary Offices Act, 1874, more particularly, Section 5 no mortgage can be created beyond the life time of the person and after the death of the said person, the said mortgage itself becomes void. Moreover, the property was of Devasthan. No 4 S.A.No.81/09 with S.A.No.86/09. such mortgage also could have been created. The said mortgage could not have given any right to the appellants' predecessor. Moreover, though the mortgage was created, the possession was not parted with. Even the plaintiff in his deposition has admitted that there are temple and Samadhis in the suit properties which negatives the contention of the plaintiffs. Mr.Bajaj, learned counsel relied on the judgment of the Division Bench of this Court in the case of "Annaji Narayan Deshpande Vs. Venkatrao Sidrao Deshpande" 1932 BLR 1415. 4. With the assistance of the learned counsels, I have gone through the judgments delivered by both the Courts. The nature of the property may not be a subject matter of much debate, even the mortgage was created. In view of operation of the provisions of the Bombay Hereditary Offices Act,1874, it is clear that no mortgage of such a property could be valid beyond the life time of the mortgagor. The Division Bench of this Court in a case of "Annaji Narayan Deshpande Vs. Venkatrao 5 S.A.No.81/09 with S.A.No.86/09. Sidrao Deshpande" referred supra have succinctly held while interpreting Section 5 that no such mortgage could be valid and be created beyond the life time of the mortgagor. 5. Both the Courts below on appreciation of evidence have concurrelty came to the conclusion that the present appellants had failed to prove that they were in possession of the suit property. The Courts below have evaluated the evidence led by both the parties and have come to the plausible conclusion. The Courts below have also taken into consideration the existence of the Samadhis and the temple which is also admitted by the plaintiff in his cross-examination. The view taken by the Courts below is a plausible view. The Second Appeal can not be entertained only on the ground that some other conclusion may be possible. When the appellants were never in possession of the property then the question of limitation as far as suit of respondent is concerned would not arise. 6. In the result, the Second Appeals being sans substantial questions of law, are dismissed. 6 S.A.No.81/09 with S.A.No.86/09. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.09.12.2010. asp/office/sa81.09