1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No.480/2010 (Haribhau Namdeo Idhole VERSUS Vitthal Bhiwaji Shelke & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mrs. Alkari h/f Shri S.V. Sohoni, counsel for the appellant. CORAM : SMT. VASANTI A. NAIK, J. DATE : DECEMBER 20 , 2010 . Heard. The appellant is the original defendant. A suit was instituted by the plaintiffs for possession, permanent injunction and for damages. It was the case of the plaintiffs that the suit property was initially owned by one Bhiwaji. The plaintiffs are the legal heirs of deceased Bhiwaji and according to the plaintiffs, the suit property was recorded in the name of the plaintiffs in the revenue record. Since the suit property, a small piece of the field property was far away from the residence of the plaintiffs, they were unable to cultivate the same and taking advantage of this fact, the defendant had illegally encroached upon the suit property. Since the defendant did not vacate the suit property in spite of the request of the plaintiffs, the suit was instituted. The defendant filed the written statement and denied the claim of the plaintiff. It was the case of the defendant that the property initially belonged to Namdeo, Bhiwaji, Govinda, Kisan and Motiram. It was pleaded by the defendant that Namdeo expired in the year 1990 and 2 thereafter defendant started cultivating the field property which was cultivated by Namdeo. It was pleaded by the defendant that the plaintiffs were not the sole owners of the suit property but, the other heirs of Govinda, Motiram and Kisan were also the owners of the land. It was pleaded by the defendant that the defendant had become the owner of the suit property by adverse possession. Both the Courts, on a proper appreciation of the evidence on record, held that the plaintiffs had succeeded in proving their title to the suit property and had further succeeded in proving that the defendant had encroached upon the same. The Courts held that the defendant had been unsuccessful in proving that he had acquired a title over the suit property by adverse possession. The Courts held that the plaintiffs were entitled to the relief of possession. The findings recorded by both the Courts are pure findings of facts, based on a proper appreciation of the evidence on record. The only submission made on behalf of the appellant that the appellant had become the owner of the suit property by adverse possession is liable to be rejected as both the Courts have decided this issue after considering the evidence on record and it is considered by both the Courts that the defendant-appellant had neither pleaded in his written statement nor had stated in his evidence, the date on which he made his hostile possession known to the plaintiffs. The Courts rightly held that the ingredients of proving the title by adverse possession were not made out in this case and, therefore, the defendant was unsuccessful in proving that he became the owner of the suit property by adverse possession. 3 Since the findings recorded by both the Courts do not give rise to a substantial question of law, the second appeal is dismissed with no order as to costs. JUDGE APTE