-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.217 OF 2004 APPEAL NO.217 OF 2004 APPEAL NO.217 OF 2004 Nana Bhama Mang (since deceased through his L.Rs.) 1.Bapu Kondiba Mang & Ors. ...Appellants vs. Gulab Nabi Darveshi (since deceased through his L.Rs) 1.Shiva Anna Mang (Ghatage) & Anr. ...Respondents Mr.G.M.Savagave for the Appellants Mr.A.B.Vagyani for Respondent Nos.1 to 5 CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : JANUARY 18,2008 : JANUARY 18,2008 : JANUARY 18,2008 P.C.: P.C.: P.C.: 1. Heard Advocate for the Appellants who are the original plaintiffs. A suit was filed by the plaintiffs who are claiming to be the legal representatives of one Nana. The said Nana was the uncle of the Appellants. The case made out by the plaintiffs-Appellants was that there was no partition effected between the said Nana and his brothers. It was contended that in the year 1960 a document was got executed from the said Nana by the father of the Respondents-defendants purporting to be a lease of the suit property for a period of 10 years. A sale deed was got executed from the said Nana in the year 1961 in favour of the father of the Respondents. The said Nana expired on 1st April 1975. The case of the Appellants-plaintiffs is that the sale deed of the year 1961 allegedly executed by deceased Nana in favour of the father of -2- the Respondents is bogus and the same does not bear the thumb impression of the said Nana. The suit was filed for declaration that the sale deed of the year 1961 was bogus and the same be set aside. A prayer for possession was also made in the suit. The trial court decreed the suit. The Appellate Court has reversed the decree by holding that the plaintiffs have failed to prove that the sale deed dated 6th April 1961 was a bogus document. The Appellate Court held that the suit was barred by limitation. 2. The submission of the learned Advocate for the Appellants is that the father of the Respondents was placed in possession under the document of the year 1960 and as reflected from the revenue record, the possession of the father of the defendants was on the basis of the agreement of the year 1960. He submitted that even in the consolidation proceedings, the Respondents did not rely upon the sale deed dated 6th April 1961. He submitted that this fact itself shows that the sale deed was bogus and the same does not bear the thumb impression of the deceased Nana. He submitted that in any case the deceased Nana had no authority to execute the sale deed in respect of the entire property as there was no partition effected between Nana and his brothers. Lastly, he submitted that the finding regarding bar of limitation is based only on the sale deed dated 6th April 1961 and the said finding is -3- perverse as the sale deed was not executed by deceased Nana. 3. I have carefully considered the submissions. Firstly, it must be noted that the present Appellants are claiming the possession as the legal representatives of the deceased Nana. The suit is not filed by them in their capacity as representatives of the branch of Nana’s brother. It must be noted here that there is no grievance made by the brothers of deceased Nana regarding the execution of the alleged sale deed by deceased Nana. 4. The Appellate Court has observed that though it was a specific case of the Appellants that the sale deed did not bear the thumb marks of Nana, the Appellants did not refer the document to a finger prints expert. In fact, an application was made at Exh.46 by the Appellants for referring the admitted thumb impressions of deceased Nana on the document of 1960 and disputed the thumb impression on the Sale Deed for seeking an opinion of a finger prints expert. The said application was not pressed by the Appellants. This factual aspect is relevant in the context of the fact that the sale deed was a 30 years old registered document to which the presumption under section 90 of the Evidence Act,1872 was applicable. The Appellate Court has recorded a finding of fact that the Appellants have failed to prove that the same does not bear the thumb impression of the deceased Nana. The -4- Appellate Court referred to the evidence of Sadanand Gurupad Swami examined by the defendants-Respondents who identified the thumb impressions of deceased Nana. There is no error in the said finding of fact recorded by the Appellate Court as the burden was on the Appellants to prove that the thumb impression was not that of Nana. 5. Once it is held that the sale deed which is executed on 6th April 1961 is legal, it is obvious that the father of the Respondents claimed to be in possession as the owner on the basis of the said sale deed. The present suit for possession was filed on 4th April 1989. The Appellate Court rightly observed that the said suit was governed by Article 65 of the Limitation Act,1963. The possession of the father of the Respondents become adverse at least from 6th April 1961 and therefore, the suit was not filed within the stipulated period of limitation of 12 years. There is no error in the said finding. 7. In the circumstances, no substantial questions of law arises. Second Appeal is dismissed with no order as to costs. JUDGE JUDGE JUDGE