1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR SECOND APPEAL NO. 218 OF 2002. Nalini Tilakchand Turaskar & Ors. Vs. Ashok Baburao Turaskar & Ors. ------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ------------------------------------------------------------------------------------- Shri V. D. Muley Adv for appellants. Shri N. S. Talmale Adv for respondents. CORAM: C. L. PANGARKAR J. DATED: 5 th OCTOBER, 2009. This is an appeal by the original plaintiff. Plaintiff had instituted a civil suit No. 197 of 1984 as well as civil suit No. 286 of 1986 against the present respondents. In civil suit No. 197 of 1984 the plaintiff contended that he had become the owner of the suit property by adverse possession and therefore defendant had no right to cause obstruction to his right over the property. 2 Defendant in both the suits contended that suit property was bequeathed to them under a will by one Ganpat who was the original owner of the suit property. Defendants lead a counter claim in the said suit. Learned Judge of the trial Court framed issues as to whether the plaintiff had perfected his title over the suit property by adverse possession and whether suit property was bequeathed by Ganpat in favour of defendant? Learned Judge of the trial Court found that plaintiff had failed to establish a plea of adverse possession and on the other hand the defendant had proved that property was bequeathed to the defendants by said Ganpat. Holding so learned Judge dismissed the suit and decreed the counter claim. Feeling aggrieved thereby plaintiff preferred an appeal. The said appeal was heard by the Additional Distrtict Judge who found that the plaintiff had infact failed to prove that he had perfected the 3 title by adverse possession. Learned counsel for the appellant challenged the judgments and decrees of the Courts below mainly on the two grounds; first that the finding of the Courts below that plaintiff had not perfected the title by adverse possession was not correct and was against the evidence on record. Second ground that is raised is that learned Judge of the first appellate Court did not consider the question of validity of the will even though such a ground was raised in the memo of appeal. As far as the first ground is concerned there are two concurrent finding of facts, therefore the appellant has to necessarily show that finding as recorded by the Courts below is in any way perverse. Shri Muley learned counsel for the appellant submits that the finding can be said to be perverse because the courts below have not rightly appreciated the fact of payment of taxes by the plaintiff since the year 1927. He submits that this fact is eloquent enough to hold that the possession of the 4 plaintiff appellant was adverse. Learned Judge of the first appellate Court has dealt with the question very elaborately. He has found that a person who has entered into possession of the property as a permissive owner cannot claim adverse possession. Further the payment of mere taxes would not in any way go to show that possession was adverse. The learned Judge of the First Appellate Court has further rightly observed that the possession has to be hostile and open, and the plaintiff is bound to show that it commenced in wrong and is maintained against right . He has also observed that plaintiff had failed to establish as to when possession of the plaintiff became adverse. Time always begins to run from the date the possession becomes adverse. Since there is no such pleading nor there is any evidence, finding as recorded by the first appellate Court does not appear to me in any way perverse. As far as the second ground is concerned it may be seen that appellant may have raised such a ground in the memo of appeal but judgment of the 5 first appellate Court clearly goes to show that only one ground was argued before the learned Judge. Since that was the only ground that was urged before, the learned Judge he was right in deciding the appeal, on that ground. There is therefore no question of raising it in the second appeal. No substantial question of law is involved. Appeal is dismissed in limine. JUDGE svk