1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 79 OF 2007 Bhaurao s/o Asruba Pawar & another .. APPELLANTS VERSUS Subhadrabai w/o Sujanrao Pawar .. RESPONDENT Shri Swapnil Joshi and Swapnil Patonkar, Advocates instructed by J.P. Legal Associates, for appellants. Shri J.C. Badve, Advocate for respondent. ===== CORAM : R. M. BORDE, J. DATE : 14 th September, 2009 PER COURT : 1 This is an appeal by original defendants raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff instituted suit claiming possession of land survey no. 155 situate at village Rajatakali, Tq. Chansawangi, Dist. Jalna admeasuring 6 acres and 15 gunthas. According to her, land was belonging to her husband Sujanrao and after his demise she came in possession of the land. Land was allotted to Sujanrao in “Bhudan movement”. However, after his demise, defendants managed to get their names entered in revenue record. Defendants are the 2 brothers of deceased Sujanrao. Plaintiff being his wife is entitled to succeed to the property left behind by her husband. As such, she claims possession over the property. 3 Defendants appeared and resisted the claim by filing written statement. According to them, the land was infact not granted to deceased Sujanrao in “Bhudan movement”. Defendants admitted relation of plaintiff and their deceased brother Sujanrao. Defendants are claiming that they are in possession of the property since last 12 years. According to them, they have perfected their title by virtue of adverse possession. As such defendants pray for dismissal of the suit. 4 Trial court after considering the rival contentions of the parties recorded finding that plaintiff has established her case and granted decree in her favour. Judgment and decree passed by the trial court was subjected to challenge in Regular Civil Appeal no. 86/1997 at the instance of defendants. Appeal was heard and disposed of by the 2 nd Adhoc Additional District Judge, Jalna who was pleased to dismiss the same by judgment dt. 11-12-2001. 3 5 I have perused the judgments recorded by both the courts below. There is documentary evidence in the form of mutation entries which show that the property has been allotted to deceased Sujanrao during “Bhudan movement”. Owner of the property was one Girdharilal and he had donated the property for the purpose of distribution under “Bhudan movement”. From the revenue entries recorded in that regard it clearly reveals that the property was allotted to Sujanrao and another person under the “Bhudan movement”. Plaintiff being the wife of deceased Sujanrao is entitled to possess the property. Defendants although have controverted the contentions in respect of allotment of the property to deceased Sujanrao, however, the fact to the contrary has been established by plaintiff. Merely because the defendants continued to remain in possession for number of years will not be sufficient to claim adverse possession as against the real owner. Defendants have to first of all establish ouster of plaintiff from possession of the suit land. Defendants have in fact not pleaded in respect of ouster of plaintiff. As such, they are not entitled to claim adverse possession. The courts below have adopted a reasonable view in the matter. Findings of fact recorded by the courts below need not be interfered with while exercising powers under section 100 of the Code of Civil Procedure. No substantial question of law arises for consideration in the 4 appeal. Appeal therefore stands dismissed summarily. 6 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa79.07.odt