1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.943 OF 2006 WITH CIVIL APPLICATION NO.322 OF 2007 Late Shri Abdul Satar Gulam Dastgir [deceased through his legal heirs ] 1A Abulbakar Abdul Satar & Anr. : Appellants versus Shri Rasul Balabhai Sheikh & ors. : Respondents. Shri. Rajeshirke I/by Sandeep S. Salunkhe for the Appellants. Shri M.R.Katikar for Respondent No.1. None for Respondent Nos.1 to 4 though served. Respondent Nos.5 & 6 are deleted vide Court's order dated 21.7.2008 CORAM : R.M.SAVANT, J. DATED : August 12, 2008 P.C. 1. The above Second Appeal takes exception to the Judgment and decree dated 23.6.2006 passed by the learned Additional District Judge, Malshiras by which the suit filed by Respondent No.1 herein came to be decreed and possession of 4 Khans (blocks) was directed to be handed over to the Respondent No.1. 2. The Appellants are the original Defendants in the suit filed 2 by Respondent No.1 being R.C.S. No.123 of 1986 claiming possession and permanent injunction in respect of the properties mentioned in para 1 of the plaint of the said suit. The case of the Plaintiffs was based on sale deed dated 21.1.1981 executed by Gopal Krushna Jadhav and that since then they have become owners of the said 4 Khans (blocks). It is further the case of the Plaintiffs that the Defendants have purchased 6 Khans from one Shripati Yesu Sontakke and the Defendants are only concerned with the said 6 Khans and no other part of the property of the Wada of the Sontakke's. It is further the case of the Plaintiffs that the Defendants have obtained possession of the said 4 Khans from their predecessor Gopal Krushna Jadhav at the time when one of the female members of the family was to deliver a baby. 3. In spite of the notice dated 15.3.1986 issued by the Plaintiffs seeking possession of the said 4 Khans, the Defendants failed to hand over the possession thereby resulting in the said suit being filed by the Plaintiffs. 4. The Defendant No.1 filed his written statement. According to him, he has been in possession of the said 4 Khans which is on the 3 northern side of 6 Khans occupied by him in the year 1952 on rental basis. According to the Defendant No.1, he has been in possession of the said 4 Khans since last more than 12 years and has become the owner by adverse possession. It is further averred by Defendant No.1 that he has been in possession of all 10 Khans and western side vacant place and having flour mill, cattle shade etc. Defendant No.1 also filed additional written statement wherein he has stated that he has purchased 6 Khans from Shripati Yesu Sontakke on 3.12.51 and since then he is in possession of the same. The Defendant No.1 was taken an alternate plea that in the event the Court comes to a conclusion that the Plaintiffs own the said 4 Khans then it be held that he is in possession of 4 Khans since 5.3.49 by denying the ownership of the Plaintiffs and, has therefore, become the owner by adverse possession. 5. The parties went to trial. The trial Court, on the basis of the material that was before it, accepted the plea of adverse possession taken by the Defendant No.1 and dismissed the said suit. 6. Aggrieved by the judgment and order dated 3.3.2000 passed by the trial Court, the Plaintiffs filed Regular Civil Appeal 4 No.192 of 2004. The lower Appellate Court taking into consideration the material on record came to a conclusion that the plea of adverse possession as regards the said 4 Khans cannot be accepted, for which the lower Appellate Court has taken into consideration the Reply of the Defendants to the notice issued by Laxmibai – the wife of Shripati Sontakke who is the vendor of the said 4 Khans. In the reply to the said notice the Defendant No.1 has categorically stated that he is only in possession of portion of that Wada which was purchased by him from Shripati Sontakke and except that portion no other portion was in his possession. The lower Appellate Court, therefore, held that as on 22.1.1957, which is the date of of the said reply, the Defendant No.1 was claiming to be in possession of the Wada to the extent of 6 Khans purchased by him. The lower Appellate Court has also taken into consideration the fact that some time in the year 1975 the disputed portion of that Wada came to be recorded in the name of the Defendants in the Grampanchayat record and that too without notice to the Plaintiffs. The lower Appellate Court took into consideration the admission of D.W.2 to the said effect in his cross examination. The lower Appellate Court, considering the fact that the Defendant has 5 failed to give reply to the notice dated 15.3.1986 issued by the Plaintiffs, observed that in the said circumstances whether it could be said that the Defendants are in possession of portion of the said Wada to the extent of 4 Khans uninterruptedly and peacefully for more than 12 years prior to filing of their written statement. The lower Appellate Court was of the view that the test laid down for substantiating a plea of adverse possession viz. that the possession is for more than 12 years openly, peacefully, continuously, uninterruptedly and adversely to the true owner is not satisfied by the Defendant in the instant case. The lower Appellate Court, therefore, held that the Defendant could not be said to have perfected his title by adverse possession. 7. Having considered the finding recorded by the trial Court and the reasons recorded by the lower Appellate Court for upsetting the said finding as regards the plea of adverse possession, in my view, exercise of the appellate jurisdiction by the lower Appellate Court was justified in the facts and circumstances of the instant case. The lower Appellate Court has thereby recorded a finding of fact which is based on re-appreciation of evidence as regards the plea of 6 adverse possession. Considering the said finding, in my view, the challenge raised in the above Second Appeal does not involve any substantial question of law. The Second Appeal is accordingly dismissed. 8. In view of dismissal of the Second Appeal, the Civil Application No.322 of 2007 does not survive and the same is disposed of as such. [R.M.SAVANT, J]