1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 44 OF 2009 (Sau. Manda Manohar Mohod & Anr. vs. Smt. Geetabai Radhyeshyam Dube & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. FEBRUARY 03, 2009. Heard Shri Kilor, learned counsel for the appellants. The challenge is to the concurrent judgments delivered by the Courts below decreeing the suit of plaintiff for declaration. The plaintiff became absolute owner of her share because of partition in July 1965 but then she was never in possession and the property was in adverse possession initially of one Bhuribai and thereafter one Ganesh. He contends that after the death of Bhuribai in 1997, some part of land of the plaintiff was acquired and compensation thereof has been received by sons of Ganesh as Ganesh expired in 1998. He further states that sons of Ganesh later on sold the property to present appellants who are in fact bonafide purchasers for valuation consideration. His argument is, therefore, that after 1965 when the plaintiff (present Respondent No.1) did not exercise any rights of ownership, suit ought to have been dismissed. It is further contended that 2 the plaintiff did not seek any declaration of her ownership in the suit and none of the courts have given any declaration. Lastly, it is contended that the plaintiff did not enter the witness box and her power of attorney who did not have any knowledge of 1965 transaction/ partition has been examined. Thus by placing reliance upon such evidence, a suit could not have been dismissed. It is to be noticed that Bhuribai was the mother of plaintiff and Ganesh was her brother. The partition in 1965 is not in dispute and the fact that plaintiff was allotted share in the partition is also not in dispute. In these circumstances, a married daughter leaving her property with her mother or brother cannot be construed as an act sufficient to hold that her mother or her brother were in adverse possession. I have attempted to find out whether there is any evidence on record to show any act of hostile nature so as to warn the plaintiff that her mother and her brother were claiming hostile title and adverse possession. There is no such material and courts below have also found that there is no such material on record. The perusal of this aspect by lower appellate Court in paragraphs 24, 27 and 29 clearly show that the name of present plaintiff 3 was mutated in revenue records and remained as such and after the death of Bhuribai, name of Dr. Ganesh was shown in the claim of Cultivator in the year 1997-98 for the first time. It is, therefore, obvious that there was nothing before the Courts below to conclude that the plaintiff lost her title because of adverse possession. In these circumstances, the evidence adduced by power of attorney cannot be held to be defective or insufficient to decree the suit. His age in the year 1965 or his knowledge of 1965 partition has no bearing on determination of controversy. If the defendants wanted to show that they had perfected their title by adverse possession, it was necessary for them to show that cause of action as demonstrated was incorrect. In the circumstances, when the defendants were not the owners and name of plaintiff appeared in revenue extract, the plea of present appellants that they are bonafide purchasers for valuable consideration cannot be entertained. I, therefore, find that no substantial question of law arises in this Second Appeal. It is dismissed. No order as to costs. JUDGE *GS.