( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 128 OF 1988 Gangadhar Pandurang Puranik .. Appellant Age. 52 years, Occ. Agriculture, R/o. Kauthali, Tal. Ambajogai, Dist. Beed. Versus 1. Dnyanoba Nivrutti Mundhe, .. Respondents Age. 35 years, Occ. Agriculture, R/o. Dabi, Tal. Ambajogai, Dist. Beed. 2. Tukaram Maruti Mundhe died – L.Rs. (a) Dattu s/o. Tukaram (b) Manik s/o. Tukaram (c) Dhondiram s/o. Tukaram, Age. 17, under guardianship of mother, respondent No. 2(e). (d) Madhu s/o. Tukaram (e) Rakhamabai w/o. Tukaram. 3. Sopan Maruti Mundhe died – L.Rs. (a) Sarsabai w/o. Sopan Mundhe, Age. Major, Occ. Household, R/o. Dhabi, Tq. Ambajogai, Dist. Beed. ( 2 ) (b) Sakharam Sopan Mundhe, Age. Major, Occ. Agri., R/o. As above. (c) Antikabai Pandurang Neharkar, Age. 40 years, Occ. Household, R/o. Dhavadi, Tq. Kaij, Dist. Beed. (d) Indirabai Pandurang Phad, Age. 37 years, Occ. Household, R/o. Kumbhari, Tq. Renapur, Dist. Latur. (e) Rambhabai Vishwanath Shep, Age. Major, Occ. Household, R/o. Lad-Wadgaon, Tal. Kaij, Dist. Beed. (f) Dagdubai Dattu Shep, Age. 32 years, Occ. Household, R/o. Lade-Wadgaon, Tq. Kaij, Dist. Beed. 4. Balwant Pandurang Puranik, ِAge 40 years, Occ. Service, R/o. Parli now at Gangakhed, Tal. Gangakhed, Dist. Parbhani. 5. Prabhakar Pandurang Puranik, Age. 35 years, Occ. Service, R/o. Parli, Tal. Ambajogai, Dist. Beed. 6. Saraswatibai Pandurang Puranik Age. 70 years, Occ. Household, R/o. Parli, Tal. Ambajogai, Dist. Beed. 7. Kamalabai w/o.Srirang Mundhe, Age. 28 years, Occ. Household, R/o. Nathnagar, Parli Vaijinath, Tq. Ambejogai, Dist. Beed. ( 3 ) 8. Smt. Baijabai w/o. Shankarrao Rathod, Age. 26 years, Occ. Agri. & Household, R/o. Shivaji Nagar, Tharmal Road, Parli Vaijinath, Tq. Ambejogai, Dist. Beed. 9. Venkat s/o. Laxman Chavan, Age. 22 years, Occ. Agri., R/o. Kauthali, Tq. Parli. 10.Bhagwan s/o. Rama Chauhan, Age. 25 years, Occ. Agri., R/o. Kauthali, Tq. Parli. Shri Vivek Bhavthankar, Advocate for the appellant. Shri S.S. Choudhari, Advocate for the respondents. CORAM : P.R. BORKAR,J. RESERVED ON : 11.06.2009 DELIVERED ON : 18.06.2009 JUDGMENT :- 1. This Second Appeal is filed by original plaintiff No.1, being aggrieved by dismissal of Regular Civil Suit No.69 of 1974 filed by the present appellant and respondent Nos. 4 to 6 for possession, by the Civil Judge, Junior Division, Ambajogai, on 15th April, 1991; which judgment and decree was further confirmed by the learned Additional District Judge, Beed, in Regular ( 4 ) Civil Appeal No. 103 of 1981, decided on 27.01.1988. 2. Survey No. 101 admeasuring 20 Acres 25 Gunthas, situated at village Kauthali, Tal. Ambajogai, is the suit land. It was originally belonging to Pandurang, the predecessor in title of the appellant and respondent Nos. 4 to 6. It was Inam land. The Inam was abolished under the provisions of the Hyderabad Abolition of Inams and Cash Grants Act, 1954. The said Act came into force on 1st July, 1960. It is case of the plaintiffs that after abolition, since Pandurang was in possession of the property, re-grant of the land was made in his name and as such the plaintiffs have become owners of the property in view of the re-grant and they are entitled to possession. 3. Respondent Nos. 1 to 3 came with a case that on the day of Gudipadwa of 1953, Pandurang, the predecessor in title of the plaintiffs had given entire suit land for cultivation to father of defendant No.1 by name Nivrutti and to defendant Nos. 2 and 3 on Batai basis. On 2nd March, 1955, Pandurang entered into agreement of ( 5 ) sale with them. On 14.09.1958, sale-deed was executed by Pandurang in favour of defendant Nos. 2 and 3 and father of defendant No.1. It is further said that on the basis of agreement of Batai (tenancy on crop share basis) and thereafter on the basis of agreement of sale and then on the basis of the sale-deed, respondent Nos. 1 to 3 continued to be in possession of the property. They have valid title to the property. Even assuming for a moment that due to re-grant in the name of Pandurang and sale without permission, the sale in their favour was invalid, still respondent Nos. 1 to 3 have perfected their title by adverse possession. The suit is barred by limitation. It is alleged that since from 1953 or atleast from 1955 onwards, they were in actual possession of the property and since Pandurang was not in possession of the property on 1st July, 1960, occupancy rights could not have been conferred on Pandurang and the order to that effect is illegal. 4. The learned Civil Judge dismissed the suit. He held that the respondents have perfected their title by adverse possession. The suit is not within limitation ( 6 ) and the plaintiff is not entitled to possession. It is also held that the plaintiff was not in possession of the property since 1955 onwards and he was also not declared owner by conferring occupancy rights. It is held that defendant Nos. 2 and 3 and father of defendant No.1 were in possession of the property from Gudipadwa of 1953 on Batai basis and later on on the basis of agreement of sale and then on the basis of the sale- deed. Ultimately, the suit was dismissed. The First Appellate Court held that the defendants proved that they have perfected title by adverse possession and the suit was barred by limitation and therefore the plaintiff was not entitled to possession. 5. This appeal is admitted on 01.09.1988 on ground Nos. 1 and 2 of the appeal memo. However, in view of judgments of the two Courts below, mainly questions which arise are whether the original defendants have perfected their title to the suit property by adverse possession; and whether the suit is barred by limitation and accordingly I substituted the substantial questions of law as under and the parties are heard on the same. ( 7 ) (1) Whether the Trial Court and the First Appellate Court were right in holding that the original defendants had become owner of the suit property by adverse possession? (2) Whether the suit is barred by limitation? 6. Heard Adv. Shri Vivek Bhavthankar for the appellant and Adv. Shri S.S. Choudhari for the respondents on the above said substantial questions of law. 7. The learned advocate Shri Vivek Bhavthankar relied upon case of Amritlal V/s. Keshriprasad Bilaiya and Anr., AIR 1978 M.P.76 and argued that mere assertion of possession is not enough. It must have effect of dispossessing the other side. In the facts of that case it was observed that when the nature of the property is such that it cannot be put to any immediate use by true owner, the doctrine “possession follows title”, holds ( 8 ) the field. In the facts of the case it is held that the defendant and his predecessor could have hardly done any act for making the use of the tank in the exercise of their right of ownership and possession, as such they must be deemed to have been continued in possession. In this case, both the Court have concurrently held that since 1953 respondent No. 1 to 3 have been in actual possession of the property. Defendant Nos. 2 and 3 and father of defendant No.1 were put in possession at the time of Gudipadwa of 1953 and thereafter they continued to be in possession on the basis of tenancy agreement of sale and then the sale-deed. It is observed by the Trial Court in para 23 of the judgment that though the record shows possession of Pandurang till 1955-56, still the date of the possession must be from Gudipadwa of 1953. The learned Judge observed that it is common knowledge that entries in revenue recored are not made immediately. So, there is concurrent finding of fact regarding continuous possession of defendants from Gudipadwa of 1953 onwards, firstly on the basis of tenancy and then from 1956 on the basis of agreement of sale and then from 1958 onwards on the basis of the ( 9 ) sale-deed. 8. The learned advocate Shri Vivek Bhavthankar relied upon two authorities of Single Bench of this Court. In the case of Yesu Sadhu Nimgare and Ors. V/s. Kundalika Babaji Nimgare and Anr., 1977 Mh.L.J.130 the Court observed that it is not correct to say that if a person rightly or wrongly feels that property of which he is in possession is his own then his possession must automatically be hostile and adverse to the true owner, because it is implicit when the question of adverse possession arises that the possession must be hostile. It is also laid down that adverse possession must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the true owner. There must be clear assertion of hostile title. Mere possession is not enough. There must be knowledge of adoption of an attitude. It may be noted that in the present case the defendants have been possession on the basis of sale-deed obtained by them on 14.09.1958. It is argued by Adv. Shri Vivek Bhavthankar that after the sale-deed the defendants never recognized ownership of ( 10 ) the plaintiff and asserted adverse possession. According to him a person must first accept title of other side and then set up possession adversely. In my opinion, an assertion of hostile title necessarily means denying title of the true owner and asserting one’s own title openly without attempt at concealment. In the present case after the sale-deed, the respondent Nos. 1 to 3 all along claimed that they are owners and never accepted or acknowledged the ownership of plaintiffs. 9. In Rajaram Soma Mali and Anr. V/s. Kautik Motiram Deshmukh and Ors., 1977 Mh.L.J.485, the Single Bench of this Court has laid down that adverse possession must be pleaded before it can be considered by the Court. Invalid sale or exchange by itself cannot be deemed to be adverse. After referring the Supreme Court’s case in S.M. Karim V/s. Bibi Sakina, AIR 1964 S.C. 1254, the following portion is reproduced:- “Adverse possession must be adequate, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation ( 11 ) against the party affected can be found. A mere suggestion in the relief clause that there was an uninterrupted possession for “several 12 years” was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.” . In our case respondent Nos. 1 to 3 asserted hostile title from the date of sale deed executed by deceased Pandurang in their favour. So, plea is not vague. In para 28 of the case cited, the learned Single Judge referred to the case of this Court in Dagadu V/s. Trakadu, AIR 1957 Bom.79, in which it is laid down that the owner who purports by an oral sale to transfer his property and delivers possession to another person, the possession of the transferee must be deemed to be adverse to the owner and a suit for recovery of possession must be filed within twelve years from the date on which the possession was delivered. 10. The learned advocate for the appellant also cited case of Dashrath Ganpat Dhote & Ors. V/s. Gajanan Mahadeorao Wankhede, 2005 (4) Mh.L.J.788. In that case ( 12 ) the plaintiff purchased suit site by virtue of sale deed in 1976 and since then he was in possession of the property. The defendant had raised plea of adverse possession, but he did not adduce evidence as to commencement of defendant's possession. It is held that simply because the defendants were in long standing possession that per se is not sufficient to draw inference that their possession had become adverse to the knowledge of the true owner. So, in the fact of the said case, it was held that the plaintiff was entitled to decree of possession. 11. Another case cited by Adv. Shri Bhavthankar is in Achal Reddi V/s. Reddiar and Ors., AIR 1990 SC 553. In that case there was agreement of sale and party was in possession of the property on the basis of said agreement of sale. It is held that his possession cannot be said to be adverse. In-fact, such agreement of sale was an acknowledgment of title of the vendor and excludes the theory of adverse possession. It is observed that it is well settled rule of law that if a person is in actual possession and has right to ( 13 ) possession under title involving a due recognition of owner’s title his possession will not be regarded as adverse in law. It may be noted that in this case the respondents have obtained a registered sale-deed and from the date of sale-deed they are in possession of the property as owners to the knowledge of vendor and his heirs. Under the circumstances the case cited is not applicable to the fact of the present case. 12. On the other hand the learned advocate Shri S.S. Choudhary referred to the case of Collector of Bombay V/s. Municipal Corporation of the City of Bombay and Ors., AIR (38) 1951 S.C.469. In that case in 1965, the Government of Bombay having decided to construct an Eastern Boulevard called upon the Corporation to remove its then existing fish and vegetable markets from the site required for the construction of Boulevard. The Municipal Commissioner applied for alternate site for constructing new markets and seven acres land was earmarked. However, no formal grant was executed as required by Statute 22 & 23 Vic. C.41. The Municipal Commissioner had the site filled up and levelled at the ( 14 ) expense of the Corporation. The plans were approved by the Government and market buildings were erected by the Corporation. It was held that by reason of the non- compliance with the statutory formalities the Government Resolution of 1965 was not an effectual grant passing title in the land to the Corporation and was not also an enforceable contract. However, considering the facts of the case though grant was invalid, the Corporation is held to have acquired title by adverse possession. So, it is argued by Adv. Shri Choudhari that even though grant or sale-deed is not valid and if a person is in possession on the basis of such grant or sale-deed as owner, he could perfect title by remaining in possession for statutory period. 13. Another case cited by Adv. Shri Choudhari is of State of West Bengal V/s. The Dalhousie Institute Society, AIR 1970 S.C.1778. In that case grant in favour of institute was not in the manner required by law. The evidence showed that grantee (an institute) was in open, continuous and uninterrupted possession and enjoyment of site for over 60 years. The institute was ( 15 ) treated as owner not only by Municipal Corporation but also by the Government. The possession of the institution was held on the basis of grant though invalid, it is held that person in such possession for statutory period acquired title by adverse possession. 14. In the case of S.M. Karim (Supra) it is observed that adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. In the present case after the sale-deed is executed, the purchasers believed themselves to have purchased the property and got their names mutated to the revenue record and continued to act as owners of the property. In-fact, by executing the sale-deed even vendor Pandurang accepted transfer of ownership. The possession was adequate in publicity and was adverse in nature. It was as of owner. It was continuous. In this case, there is nothing on record to show that the purchasers ever acknowledged or accepted the vendor’s or his heirs’ title. On the contrary after ( 16 ) 1955 to plaintiff’s knowledge, they claimed themselves to be owners and enjoyed the property. It cannot be called permissive possession. 15. It is observed in para 19 of the case of Mungamuru Lakshmidevamma V/s. Land Acquisition Officer, 1985 A.P. 200, that it is well settled that in the case of an invalid or void sale the purchaser would be in possession adverse to the tile of the vendor and even though the sale itself does not confer any title immediately still the vendee acquires a valid title on the expiry of 12 years from the date of sale by virtue of the provisions of Section 27 of the Indian Limitation Act read with Article 64 thereof. Same view is taken by other High Courts. Sec.27 of the Limitation Act lays down that at the determination of period (hereby) limited to any person for instituting a suit for possession of any property his right to such property shall be extinguished. From the date on which deceased Pandurang executed the registered sale-deed, the possession of defendants became adverse and they perfected title at the end of statutory period of ( 17 ) limitation. This is irrespective of re-grant or conferring occupancy rights on Pandurang or plaintiffs or declaration of their ownership under the provisions of the Hyderabad Abolition of Inams and Cash Grants Act, 1954. 16. Relying on Mahomed Musa V/s. Aghore Kumar Ganguli, AIR 1914 P.C.27, it can be said that if possession is acquired by a person under an invalid title and he continues to remain in possession for more than statutory period, although the document relating to his title may be invalid on any ground, yet possession having lasted for more than twelve years the title becomes an unassailable one. 17. It is also argued before this Court that the limitation would start on the date (i.e. 06.10.1963) on which name of deceased Pandurang was entered in the revenue record vide M.E. No. 237 (Exh.63) by way of re- grant as a owner, but this is not correct. As per documents at Exh.52 and 63, the order by with name of ( 18 ) Pandurang was entered as occupier was passed on 29.09.1961. His name was entered in record on 30.09.1961 as owner though Mutation Entry was sanctioned lateron on 06.10.1963. The suit was filed on 26.02.1974. So, the suit ought to have been filed within 12 years from 30.09.1961. Paldurang was aware of proceedings of re- grant. He had paid occupancy price on 04.08.1961 as per entry on reverse of Exh. 52 which is register of disposal of lands under Hyderabad Abolition of Inams and Cash Grants Act, 1954. The limitation starts on the date on which the plaintiff first knows or has reason to believe that as owner he should seek possession from the defendant who has denied his rights in the property and/or has set up title hostile to his rights as owner of the property. That would be the date on which cause of action for filing a suit for possession on title arises. In this case, the cause of action arose on the date of sale-deed itself or atleast on 30.09.1961. In these circumstances, the Trial Court and the First Appellate Court did not commit any error in holding that the suit is barred by limitation. The respondent No. 1 to 3 have perfected title by adverse possession for more ( 19 ) than 12 years prior to filing of the suit. In these circumstances, this appeal is dismissed. Parties to bear their own costs. [P.R. BORKAR,J.] snk/2009/JUN09/sa128.88