( 1 ) sa132.07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 132 OF 2007 WITH CIVIL APPLICATION NO. 1242 OF 2007 1. Santu s/o. Zeduji Wagh .. Appellants died L.Rs. 1A. Arjun s/o. Santuji Wagh Age. 55 years, Occ. Agri., 1B. Bhagwan s/o. Santuji Wagh Age. 49 years, Occ. Agri., 1C. Sow. Radhabai w/o. Santuji Wagh Age. 70 years, Occ. Household, All R/o. Village Manepuri, Taluka Ghansavangi, Dist. Jalna. 2. Bhujang s/o. Zanduji Wagh Died L.Rs. 2A. Tanhabai w/o. Bhujangrao Wagh Age. 80 years, Occ. Agri., 2B. Bhimrao s/o. Bhujangrao Wagh Age. 65 years, Occ. Agri., 2C. Babasaheb Bhujangrao Wagh Died – L.Rs. 2C1. Sindhubai Babasaheb Wagh, Age. 58 years, Occ. Household, R/o. Manepuri, Tq. Ghansawangi, Dist. Jalna. ( 2 ) sa132.07 2C2. Jayshree Suresh, Age. 36 years, Occ. Household, R/o. Nathnagar, Tq. Pathardi, Dist. Ahmednagar. 2C3. Uday Babasaheb Wagh, Age. 34 years, Occ. Agri., 2C4. Sandip Babasaheb Wagh, Age. 30 years, Occ. Agri., Both R/o. Manepuri, Tq. Ghansawangi, Dist. Jalna. 2D. Rambhau s/o. Bhujangrao Wagh, Age. 60 years, Occ. Agri., 2E. Radhakrishan s/o. Bhujangrao Wagh, Age. 50 years, Occ. Agri. 2F. Vishnu s/o. Bhujangrao Wagh, Age. 48 years, Occ. Agri. 2G. Sadashiv s/o. Bhujangrao Wagh, Age. 43 years, Occ. Agri., 2H. Sow. Watsalabai w/o. Bhujangrao Nagare, Age. 55 years, Occ. Agri., 2I. Sow. Indumati w/o. Tukaram Ilam, Age. 46 years, Occ. Agri., All r/o. Manewadi, Taluka Ghansavangi, Dist. Jalna. 3. Trimbak s/o. Zaduji Wagh (Died), Age. 65 years, Occ. Agri., R/o. Manepuri, Tal. Ghansavangi, Dist. Jalna. ( 3 ) sa132.07 VERSUS 1. Salubai w/o. Sala Mundhe, .. Respondents Died L.Rs. 1A. Rajendra s/o. Madhavrao Ketan, Age. 25 years, Occ. Nil, R/o. Dhulia. 1B. Deoanand s/o. Madhavrao Ketan, Age. 19 years, Occ. Nil, R/o. Dhulia. 2. Kasabai w/o. Uttamrao Wagh, Age. 50 years, Occ. Agri., R/o. Manepuri, Taluka Ghansavangi, (Post Rani Unchegaon), Dist. Jalna. 3. Radhabai w/o. Madhavrao Kekan, Aged. 48 years, Occ. Agri., R/o. Umrad now r/o. Central Jail Dhulia. 4. Namdeo s/o. Bala Wagh, Age. 35 years, Occ. Agri., R/o. Manepuri, Tal. Ghansavangi, Dist. Jalna. 5. Babasaheb s/o. Kacharu Wagh, Age. 13 years, minor u/g. Of Namdeo Bala Wagh. 6. Babamiya s/o. Osman, Age. 44 years, Occ. Agriculture. 7. Uttam s/o. Bhaguji Wagh, Died L.Rs. ( 4 ) sa132.07 7A. Rakhmaji s/o. Uttam Wagh, Age. 50 years, Occ. Agri., 7B. Nandu s/o. Uttam Wagh, Age. 28 years, Occ. Agri., 7C. Parasram s/o. Uttam Wagh, Age. 34 years, Occ. Agri., 7D. Babasaheb s/o. Uttam Wagh, Age. 31 years, Occ. Agri., 8. Raosaheb s/o. Saundaji Wagh, Age. 28 years, Occ. Agri., R/o. Manepuri, Tal. Ghansavangi, Dist. Jalna. 9. Vijay s/o. Saundaji Wagh, Died L.Rs. 9A. Smt. Alkabai w/o. Vijay Wagh, Age. 29 years, Occ. Agri., R/o. Manepuri, Tal. Ghansavangi 9B. Dhanshri d/o. Vijay Wagh, Age. 12 years, 9C. Priyanka d/o. Vijay Wagh, Age. 9 years. 9D. Anand s/o. Vijay Wagh, Age. 7 years. B,C&D minors u/g. Of their mother Alkabai w/o. Vijay Wagh, R/o. Manepuri, Tal. Ghansavangi, Dist. Jalna. ( 5 ) sa132.07 10. Sardabi w/o. Imam, Age. 38 years, Occ. Agri., R/o. Manepuri, Tal. Ghansavangi, Dist. Jalna. (Dismissed as per order dated 15.02.2010). 11. Ramrao s/o. Uttamrao Wagh, Age. 38 years, Occ. Agri., All r/o. Manepuri, Tal. Ghansavangi, Dist. Jalna. Mr.Vijay Dixit, Sr. Counsel i/b. Mr. A.N. Nagargoje, Advocate for the appellants. Mr.R.S.Deshmukh, Advocate for respondent Nos.1A to 3. Mr.A.P.Yenegure, Advocate for respondent Nos.8&9A to 9D. CORAM : A.V. NIRGUDE, J. DATED : 06.09.2011 ORAL JUDGMENT :- 1. When this Second Appeal was admitted on 9th July, 2007, my learned predecessor recorded two substantial questions of law, which are as under :- (i) Whether in the facts and circumstances of the present case, the first appellate Court rendered patently erroneous finding on the question of limitation and wrongly reached conclusion that the suit was within limitation? (ii) Whether the appellants were denied fair opportunity to establish their claim regarding tenancy rights and as such, the findings of the first appellate Court are perverse? ( 6 ) sa132.07 2. The learned Counsel appearing for the parties, however, agreed that the substantial question No.2 is not relevant for deciding the present appeal. These points were framed while considering admission of two appeals, namely, Second Appeal No. 131 of 2007 and Second Appeal No. 132 of 2007. By a separate order, I have kept Second Appeal No.131 of 2007 pending. However, present appeal can be disposed of by this judgment. The only question that arises in this appeal is - Whether the suit of the respondent was barred by limitation? Both the Courts below concurrently held that it was not. 3. The facts giving rise to this litigation in short can be stated as under :- 4. The original plaintiffs are admittedly legal representatives of one Bala, who admittedly was the owner of the suit land (Land Gat No. 16 of village Manepuri, Tal. Ambad, Dist. Jalna). The Courts below also held very clearly that though Bala was owner of this land, neither he nor the original plaintiffs were in possession of this land. The Courts below also held that the appellants were in possession of this land since more than 50 years from the date of the suit. In this background the appellants/defendant Nos.3 to 5 took up a ( 7 ) sa132.07 stand that they had perfected their title by adverse possession. When the defendant comes with a case that he has perfected his title by adverse possession, he has to prove as to since when his possession of the suit-land had become adverse to the plaintiff. The Courts below examined the evidence of the appellants/defendant Nos.3 to 5 and held that their evidence was not sufficient to hold that their possession was adverse at any time. Initially, their case was that Bala, the original owner of the land inducted them in the land as tenant. They said that they cultivated land as tenant for ten years and thereafter they said that Bala sold them the suit land by unregistered sale-deed. The Courts below held that the theory of sale of the land has not been proved but the appellants/defendant Nos.3 to 5 consistently asserted in their pleadings as well as in their deposition that they are in possession pursuant to the sale-deed and tenancy etc. prior to filing of the suit. It has also come on record that a few months prior to filing of the suit, the dispute between the parties arose because for the first time the respondent/plaintiff tried to raise objection to the revenue record showing the appellant’s possession and cultivation of the suit land. The Courts below rightly held that the appellants/defendant Nos. 3 to 5 did not lead evidence to prove that their possession was hostile to the ( 8 ) sa132.07 respondents/plaintiff or their predecessor Bala. In view of this, they held that the suit of the respondents/plaintiff was not barred by limitation. I do not see any reason to disturb this finding. The appeal should, therefore, fail. 5. Hence, the Second Appeal is dismissed. It is made clear that this finding is recorded on facts of this particular appeal and may not affect the outcome of Second Appeal No. 131 of 2007. The stay to the decree of possession as far as it relates to land Gat No. 16 described above stands vacated. 6. In view of dismissal of the Second Appeal, connected Civil Application does not survive and stands disposed of. [A.V. NIRGUDE, J.] snk/2011/SEP11/sa132.07ok