1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 397/2010 (Sheikh Ashif Hussain Altaf Hussain & ors VERSUS Ajamkhan Mehaboobkhan Pathan & ors) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri A.S. Chandurkar, counsel for the appellants. Shri H.M. Bobde, counsel for the R-1 to 5. CORAM : SMT. VASANTI A. NAIK, J. DATE : SEPTEMBER 28 , 2010 . Heard. The appellants are the original defendants. A suit was filed by the plaintiffs for the possession of the suit property. It was the case of the plaintiffs that the property initially belongs to one Mehamudkhan. Gaffarkhan, Mehboobkhan and Khalilkhan were the three sons of Mehamudkhan. Gaffarkhan died issueless and, hence, Mehaboobkhan and Khalilkhan became the owners of the property belonging to Mehamudkhan. The plaintiffs are the legal heirs of Mehaboobkhan. It is the case of the plaintiffs that the legal heirs of Khalilkhan, the other son of Mehamudkhan, had executed a relinquishment-deed in favour of the plaintiffs in the year 1978. As a result of the relinquishment-deed, according to the plaintiffs, they had 2 become the owner of the suit property left behind by Mehamudkhan. It was the case of the plaintiffs that Mehaboobkhan had given the premises on rent to the defendants' father in the year 1960. Since the defendants were not vacating the suit premises in spite of requests from the plaintiffs, the suit for possession was instituted. The defendants denied the claim of the plaintiff and pleaded that Mehaboobkhan had executed a Sammatipatra in favour of Altaf Hussain, the father of the defendants, and the suit property was transferred by Mehaboobkhan to Altaf Hussain in the year 1968. The defendants claimed to be the owners of the property in view of the execution of the Sammatipatra in favour of their father, Altaf Hussain. According to them, the suit property was entered in the name of their father and also the defendants after his death and the suit filed by the plaintiffs for possession of the property was barred by limitation. The trial Court, on an appreciation of the evidence on record, held that the plaintiffs had succeeded in proving that they were dispossessed by the defendants in the year 2001. The Courts held that the defendants were entitled to retain the suit property. The trial Court held that the suit filed by the plaintiffs was barred by limitation. According to 3 the trial Court, the plaintiffs ought to have filed the suit for declaration that the Sammatipatra was a forged and fabricated document, within a period of three years from the year 1997, when they got the knowledge that the defendants were asserting their title over the suit property. The first appellate Court, on a re-appreciation of the evidence on record, came to a conclusion that the defendants had utterly failed to prove that the predecessor-in- title of the defendants i.e., their father Sheikh Altaf Hussain had purchased the suit property from Mehaboobkhan in the year 1968. The Court held that the defendants further failed to prove that in stead of a sale-deed, a document titled as Sammatipatra was executed to show that the defendants were possessing the property. The first appellate Court held that the suit filed by the plaintiffs was within limitation as they got the knowledge about the assertion of the title by the defendants in the year 1997 and the suit for possession was instituted in the year 2005. The first appellate Court decreed the suit of the plaintiff for possession of the suit property. The findings recorded by the first appellate Court are pure findings of facts based on a proper appreciation of the material evidence on record. It is necessary to note that the suit was not filed for a declaration but, was filed for 4 possession and the period of limitation to file a suit for possession being twelve years from the date of knowledge of the assertion of title by the defendants in the year 1997, the suit filed in the year 2005 could not have been said to have been barred by limitation. It is necessary to note that though the defendants had defended the suit only on the basis of the Sammatipatra dated 18.01.1968 by which their father Sheikh Altaf Hussain became the owner of the suit property, the defendants had failed to produce this document before the Court. In the absence of production of a document of title or a sale-deed on record, the defendants could not have claimed the ownership over the suit property. The findings recorded by the first appellate Court on the ownership of the property and on the issue of limitation are based on a proper appreciation of the material on record. The findings recorded by the first appellate Court do not give rise to any substantial question of law. The second appeal fails and is dismissed with no order as to costs. Shri Chandurkar, the learned counsel for the appellants, states that the first appellate Court had granted three months time to the appellants to vacate the suit property and, hence, this Court may also grant three months time to the appellants to vacate the same. 5 Shri Bobde, the learned counsel for the respondents-plaintiffs strongly opposes the prayer made by the learned counsel for the appellants. on the ground that the execution proceedings are now filed and the matter is listed before the executing Court on 29.09.2010. However, since the property is a residential property and the appellants are residing in the same for quite some time, the appellants are granted two months time to vacate the suit premises. The appellants should positively vacate the suit premises on or before the 27th of November, 2010. JUDGE APTE