: 1 : Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.592 OF 2007 SECOND APPEAL NO.592 OF 2007 SECOND APPEAL NO.592 OF 2007 WITH WITH WITH CIVIL APPLICATION NO.1085 OF 2007 CIVIL APPLICATION NO.1085 OF 2007 CIVIL APPLICATION NO.1085 OF 2007 Narayan Nivrutti Ghorpade, Deceased, . Thru’ Usha Narayan Ghorpade & Ors. ...Appellants V/s. Vishnu Hari Ghorpade & Ors. ...Respondents Mr.L.S. Gaikwad, Advocate, for the Appellants. . Mr.Dilip Bodake, Advocate, for Respondent Nos.1 to 3. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 30TH JANUARY, 2008. DATE : 30TH JANUARY, 2008. DATE : 30TH JANUARY, 2008. P.C.: P.C.: P.C.: 1. Heard the Advocate appearing for the appellants. Appellants are the original defendant Nos.1 to 5. A suit for possession was filed by respondent Nos.1 to 3 on title. 2. According to the case of the respondents, deceased Tatya was cultivating the suit lands and after the death of Tatya, his wife Sonabai was in possession of the suit lands. According to the case of the respondents-original plaintiffs, after the death of the Sonabai, present appellant forcibly entered the suit land. Therefore, the suit for possession is filed by the respondents in their capacity as the legal representatives of Tatya and : 2 : Sonabai who died without leaving any issue. 2. According to the case of the appellants, Tatya and Sonabai were not having any issue. One Bhagiratibai, who is the sister of Sonabai, was residing with Tatya and Sonabai and the said Bhagiratibai was being treated as their daughter by Tatya and Sonabai. The 5th appellant (5th defendant) is the husband of Bhagiratibai. According to the case of the appellants, Tatya surrendered his rights in respect of the suit lands in favour of the 5th appellant prior to 1975. It is their case that on 15th December, 1975, a mutation entry was effected on the basis of a vardy application given by Tatya and the name of the 1st appellant was entered in the revenue record. It is the contention of the appellants that the 5th appellant is the exclusive owner in possession. In the alternative, the case of the appellants is that they have perfected their title by adverse possession. 3. The Trial Court decreed the suit by upholding the status of the original plaintiffs as the legal representatives of Tatya and Sonabai. The Appeal preferred by the appellants before the District Court has been dismissed. : 3 : 4. The submission of the learned Counsel for the appellants is that the mutation entry shows possession of the appellants at-least since 1975 to the knowledge of the respondents and therefore, the suit filed in the year 1995 was barred by limitation. He submitted that there was a transfer effected by deceased Tatya in favour of the 5th appellant. 5. I have considered the submissions. The basic plea of the appellants is that there was transfer made by Tatya during his life time in favour of the 5th appellant. A legal transfer made by Tatya could not be established as it is not made by any registered instrument. The value of the suit property at the relevant time was certainly more than Rs.100/-. Even according to the case of the appellants, their entry in the suit lands is with the consent of Tatya who was the real owner. Therefore, going by their own case, the possession of the appellants was referable to a lawful title. As the entry of the appellants even according to them was with the permission of the original owner, it was for the appellants to aver as to from which date their possession became adverse to the original owners and their legal representatives. The Courts below have found that there is no material : 4 : on record to show the assertion of the hostile title by the appellants. Hence plea of bar of limitation has been negatived by the Courts. 6. Once a plea of adverse possession is negatived, in view of Article 65 of the Limitation Act, 1963, the suit will have to be treated as within limitation. There is no dispute regarding the status of the respondents as heirs of Tatya and his wife. Hence, no fault can be found with the decree for possession. No substantial question of law arises. Second Appeal is dismissed. 7. In view of dismissal of the Second Appeal, Civil Application No.1085 of 2007 does not survive and the same is disposed of accordingly. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]