-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.918 OF 2006 APPEAL NO.918 OF 2006 APPEAL NO.918 OF 2006 Tukaram Budhaji Sarvankar (since deceased through L.R.) Ramchandra Tukaram Sarvankar ...Appellant vs. Arunabai Balkrishna Tanavade & Ors. ...Respondents Mr.A.S.Khandeparkar for the Appellant Mr.D.S.Sawant for Respondent No.3. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : JULY 6, 2007. : JULY 6, 2007. : JULY 6, 2007. P.C.: P.C.: P.C.: 1. The Appellant is the original Plaintiff. The trial court decreed the suit filed by the Appellant by passing a decree of declaration that the Appellant has perfected his title over the suit property by adverse possession. The trial court also passed a decree of perpetual injunction against the Respondents-defendants. In an Appeal preferred by the original Defendants, the District Court has interfered and has set aside the decree. The District Court held that the Appellant has failed to establish his plea of adverse possession. 2. Shri Khandeparkar for the Appellant invited my attention to the issues framed by the Trial Court. He submitted that the plea of adverse possession was taken only in the alternative. He pointed out that the first issue which is -2- based on the contention of the Appellant that the first Defendant along with deceased Mahadeo, deceased Dattaram and deceased Tayabai agreed to sale the suit property in favour of the father of the Appellant. 3. He submitted that the Trial court recorded a finding that agreement for sale was not proved, but the Appellant’s father was put in possession of the suit property on 26th August 1967. He submitted that only on the basis of the aforesaid findings, the decree passed by the trial court by accepting the plea of adverse possession ought to have been upheld in as much as the trial court has recorded a categorical finding that the possession of the Appellant’s father from 26th August 1967 was not under the agreement for sale. He, therefore, submitted that the possession of the Appellant’s father became adverse with effect from 26th August 1967. He submitted that even going by the findings recorded by the courts below, the third Respondent has no right to obstruct the possession of the Appellant. 4. I have considered the submissions. The case of the Appellant-Plaintiff is that his father entered in possession of the suit property in the year 1967 on the basis of an agreement for sale. The burden was on the Appellant-Plaintiff to show as to on what date the possession of his father became adverse to the real owners. Accepting the case made out by -3- the Appellant as it is, the entry of the Appellant’s father on the suit property was not unlawful or illegal. The Appellant failed to show that from a particular day, his possession became hostile to the true owners and that the suit was filed after a period of 12 years from the date on which his possession became hostile. 5. Considering these aspects, the Appellate court was right in holding that the plea of adverse possession was not established by the Appellant-Plaintiff. The Appellant-Plaintiff went to the court with a case that he has perfected his title by adverse possession. Once the Appellant failed to establish the case which is necessary for grant of relief of declaration and injunction, no fault can be found with the Appellate Court dismissing the suit filed by the Appellant. 6. No substantial question of law arises. Second Appeal is dismissed with no order as to costs. JUDGE JUDGE JUDGE