1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 431 OF 2010 Vaijinath Jijaba Mane .... APPELLANT V E R S U S Kasturabai W/o Rajambar Mane & Oths. .... RESPONDENTS Mr. B.R.Kedar, Advocate for appellant. CORAM : S.V. GANGAPURWALA, J. DATE : 22/11/2010 ORAL ORDER : 1. This is defendant no. 4’s Second Appeal. 2. The present respondent/original plaintiff had filed Suit bearing Regular Civil Suit No. 298 of 1987 for possession on the basis of title against the present appellant. The Trial Court decreed the Suit and directed the present appellant to hand over possession of the suit property. The defendant preferred Appeal. The District Court dismissed the Appeal. Defendant no. 4 has assailed the said Judgment in the present Second Appeal. 3. Mr. Kedar, the learned counsel for the appellant with all his persussive skills at command submitted following propositions : (I) The appellant was entitled for protection under Section 53-A of the 2 Transfer of Property Act. (II) The Trial Court had accepted that the present appellant is in unauthorized possession since 35 years and as such on the basis of the principle of adverse possession, it should have been held that the present appellant has become owner by adverse possession, interalia the Suit of the plaintiff also was barred by limitation. (III) The plaintiff has not given any date of alleged dispossession. (IV) The present appellant had specifically averred that since March, 1973 the appellant is in possession on the basis of agreement of sale. In such circumstances, the said case ought to have been accepted. (V) The other defendants who have executed sale deed in favour of the appellant, have admitted the agreement of sale. In such circumstances, when some of the parties have admitted the agreement of sale, then their version should have been accepted. (VI) No partition has been proved amongst the co-sharers and in absence of the partition being proved, the plaintiff could not have claimed ownership over the specified defined area. On that count also, the plaintiff would not be entitled for possession. (VII) The Suit was barred on the basis of principle of non joinder of necessary party. The agreement was in favour of the present appellant and his father and his father was not joined as party. (VIII) The agreement of sale is a document more than 30 years old. As per Section 90 of the Indian Evidence Act, the said document has got presumptive value. (IX) The description of the property has not been properly given. On that 3 count also, no decree could have been passed. (X) The plaintiff had stated that defendant no. 6 was in possession earlier, but, even the defendant no. 6 has not stated so. 4. Defendant no. 4/present appellant claimed his possession on the basis of agreement of sale, which possession is always permissive possession. Plea of adverse possession and permissive possession on the basis of agreement of sale are mutually destructive plea. Once defendant no. 4 claimed his possession on the basis of an agreement of sale, then it is for defendant no. 4 to plead and prove the date as to when his possession became adverse i.e. the animus to hold the property as owner. There is no pleading of defendant no. 4 regarding having become owner by adverse possession. It is a fact that present defendant no. 4 in the year 1987 had filed Suit for specific performance of contract against the plaintiffs, which he subsequently withdrew. So, even in the year 1987, the plaintiff was claiming his possession on the basis of an agreement of sale. The Suit for possession has been filed by the plaintiff in the year 1987 itself. So, the question of limitation would not arise. It was for defendant no. 4 to prove protection under Section 53-A of the Transfer of Property Act [ For short, ‘ the Act ’ ]. It is only on that basis, the present appellant could have protected his possession. The Courts below have concurrently come to the conclusion that the appellant’s possession is not on the basis of the agreement of sale. More over, the ingredients of Section 53-A of the Act are required to be satisfied for claiming the said protection. When the present appellant himself filed Suit for specific performance of contract in the year 1987 and he withdrew the said Suit and subsequently did not take any steps for getting the sale deed executed nor in the present Suit had even filed counter claim, in such circumstances, the readyness and willingness itself stands disproved. 5. Regarding other objections that the plaintiffs could not prove partition interalia could not claim possession of defined area, the said submission can not be sustained for the simple reason that defendant no. 4 is already in 4 possession of the area sold by the co-sharers vide registered sale deed to the present appellant. The said area is detailed in the said sale deeds and so the remaining area is of the plaintiffs, which they have specified. As such, the contention that the plaint should have been rejected at the threshold for non description of the proper property, can not be available to the present appellant. 6. Regarding the fact that the Suit is bad for non joinder of necessary party as the father of the appellant, who was also one of the joint purchasers along with the appellant is concerned, the same would not arise in view of the fact that both the Courts have held that defendant no. 4 has failed to prove the agreement of sale. 7. The presumption as envisaged under Section 90 of the Indian Evidence Act regarding the document of more than 30 years old, is not available as regards the contents of the said document. Even if the document is more than 30 years old, the contents are required to be proved. The Courts have held that the appellant is not in a position to state the contents of the document. When the contents of the document itself are not proved, then the question of applicability of Section 91 of the Indian Evidence Act i.e. exclusion of the oral evidence to the documentary evidence would not arise. 8. In view of the aforesaid facts and circumstances of the case, the Second Appeal being sans substantial question of law, is dismissed, however with no order as to costs. [ S.V. GANGAPURWALA ] JUDGE knp/SA 431.2010