1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.342 OF 1991 Sukhadeo s/o Tukaram Tikare Age: Major, occu: Agril. R/o Saulatbara, Tq. Soyagaon District Aurangabad. .. APPELLANT (orig.Plaintiff) VERSUS 1) Dagadu s/o Tukaram Tikare Age: 60 Yrs., occu.Agril. R/o Sawladbara, Tq.Soyagaon Dist. Aurangabad. 2) Haribhau s/o Tukaram Tikare (Died through L.Rs.) 2/1 Janabai Wd/o Haribhau Tikare (Appeal against Resp. 2/1 abated) 2/2 Dwarkabai w/o Rangnath; 2/3 Dashrath s/o Haribhau Tikare. All R/o Saulatbara, Tq.Soyagaon, District Aurangabad. .. RESPONDENTS (Orig.Defendants) ***** Mrs.M.A.Kulkarni, Advocate for Appellant; Mr.S.R.Deshpande, Adv. h/for Mr.R.D.Deshpande, Advocate for Respondent Nos.1 and 2/3. Respondent No.2/2 served. ----- 2 CORAM : K.U.CHANDIWAL, J. DATE : 12th June, 2009. JUDGMENT : Heard Counsel. 1) This Second Appeal is outcome of dismissal of RCS No. 167/1982 and RCA No. 139/1987 by learned Joint District Judge, Aurangabad on 19.3.1991. 2) The appeal is admitted on 30th June, 1991, without formulating substantial question of law, which generate a severe blow to the appellant, in terms of Section 100 of Civil Procedure Code. 3) The learned Counsel for appellant stressed that Courts are wrong when it endorse, suit is barred by limitation. Article 110 of Limitation Act should have been applied, instead of wrong application of Article 64 thereof. 4) Plaintiff sought declaration and possession of western half share in agricultural land S.No.37 to the extent of 8 Acres and 18 Gunthas, contending that there was a partition between him and his brother defendant on 25.3.1942. However, despite such partition the defendant no.2 Dagadu and plaintiff remained in joint enjoyment of suit land S.No. 37. Haribhau, being eldest brother, in Government record his 3 name alone remained as owner and possessor. 5) Haribhau, in 1968 with intention to deceive plaintiff, applied to revenue authorities for mutation in the name of Dagdu, the other brother, land S.No.37 was accordingly mutated in the name of Dagdu inspite of protest by plaintiff. Plaintiff filed suit on 31st December, 1982. 6) Defendants denied plaintiff’s right on suit land, as the land was allotted in partition effected in 1952-53 to Dagdu. Plaintiff was allotted entire land S.No. 129 and consequently, S.No.37 and S.No. 12 were allotted to other two brothers. Defendants pleaded bar of limitation to suit. 7) There cannot be a adverse possession of co-owner to other co-owner, in spite of the former remaining in possesion for a long duration, so long as he does not indicate hostility and assertion of individual right. Separation of food and residence by itself is not sufficient it is necessary to prove an intention express or implied. Under Article 65 the burden is on the defendants to prove affirmatively (A.I.R. 1995 SC 895 – Annasaheb Vs. Balwant). 8) Plaintiff says of oral partition in 1942. The theory of reunion propounded by plaintiff and his witness Sadashiv is in contrast to unexplained revenue record. Plaintiff did not establish that any time he has cultivated the 4 land S.No.37 jointly or otherwise or revised/received financial assistance or enjoyed the crop. 9) The defendants assertion of partition in 1952 sounds more logical and genuine. The land S.No.37 was in the name of Haribhau all throughout while joint possession is claimed with Dagdu. 10) The findings of learned District Judge in paragraph 12 relating to applicability of law does not need interference. 11) The plaintiff failed to prove, he was cultivating the land S.No.37 with Defendant no.1 or that he was dispossessed in 1978. The plaintiff in fact gave divergent theories of possession or mutation in revenue record. 12) The land S.No.129, which defendant asserts to be given to the share of plaintiff in 1952, though it was purchased on 29.12.1952 will not dilute situation of defendant, as plaintiff failed to accelerate his theory of old partition in 1942 or reunion with brothers. 13) The plaintiff was aware that mutation has taken place on 11.1.1968 denying his rights to the property inspite of his protest, naturally he was expected to resort to legal remedies within 12 years, thereof. Article 64 of Limitation Act, projects in this case and not Article 110. The slumber in asserting the rights cannot be sidelined. 5 14) The concurrent findings by both the Courts do not warrant any interference. Second Appeal dismissed with costs. In view of disissal of the appeal, CA No.2317/1991 does not survive, it is dismissed. ( K.U.CHANDIWAL ) JUDGE bdv/office/sa342-91