1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 752 OF 2008 WITH CIVIL APPLICATION NO. 1907 OF 2008 Sou. Sharadabai Jaiwant Memane ........Appellant versus Smt.Shantabai Krishna Sonawale & ors........ Respondents. Mr. Y.S. Jahirdar Sr.counsel i/b Milind Deshmukh adv. for the Appellant Mr. S.M.Oak i/b SagarJoshi adv. for the respondents CORAM: A. P. DESHPANDE, J. DATED : 31st MARCH, 2009. P.C.: 1. Heard. The present appellant is the original defendant against whom a decree for possession of the suit property came to be passed by the trial court in a suit instituted by the respondent/plaintiff. First appeal filed by the respondent/defendant having been dismissed, this second appeal has been filed. 2. According to the appellant/defendant, she is justified in defending the possession of the suit property viz. agricultural lands by raising three separate pleas and the same are to the effect : i) That the deceased Krishna, husband of 2 plaintiff no.1 and father of plaintiff nos. 2 and 3 had entered into an agreement of sale of suit property with her brother for a sum of Rs.40,000/- out of which Rs. 5000/- was paid as earnest money. It is then contended by the defendant that the brother of the defendant was put in possession of the suit land in part performance of the contract. The possession was thus referred to section 53-A of theTransfer of Properties Act. This plea has been rejected by the courts below by holding that the requirement of section 53-A is that the agreement ought to be in writing. In the present case, according to the defendant, the agreement pursuant to which the defendant's brother was put in possession of the suit property was oral and in that view of the matter section 53-A of the Transfer of Properties Act is not attracted is the finding recorded by the courts below and I am in agreement with the same. ii) The next plea was that the defendant has perfected the title by adverse possession, on the face of it is a conflicting plea, which cannot be permitted to be pressed in service simulteneously with the first submission. The courts below have held that the plea of adverse possession cannot be permitted tobe raised by a person claiming tobe in possession in part performance of contract. Secondly it is held against the appellant that the possession of the defendant was not peaceful but the same was obstructed by initiating proceedings before the Tahasildar and thereafter by filing the present suit. It is also held 3 that the defendants have failed to establish adverse possession for a period of more than 12 years. Iii) Lastly it is contended that the defendant was a tenant of the suit land. The said plea was also rejected by the Tenancy Authority so also by the Courts below. 3. The Courts below have pointed out in the judgment the vital discripencies in the case put forth by the defendant in as much as in the written statement, it is pleaded that the amount of consideration was agreed to be Rs.39000/-However, in the affidavit of examination in chief filed by the defendant, the amount of consideration has been referred to Rs.40,000/-. The brother of the defendant with whom the alleged agreement was entered into has not been examined as a witness and admittedly the defendant was neither a party to the agreement nor present when the agreement is allegedly entered into between the parties. Taking over all view of the matter and relying on the evidence on record both the courts have concurred in holding that there is no justification for the respondent to remain in possession of the suit premises and thus decreed the suit. 4. The learned counsel for the respondent has placed reliance on a judgment of the Supreme Court reported in 1996(1) SCC page 689 wherein it is categorically held that the plea of adverse possession is inconsistant with the plea in regard to retention of possession under section 53-A of the Transfer of 4 Properties Act. Hence the plea of adverse possession is not available to a person claiming possession under section 53-A of the Act. The reliance placed on the judgment is proper. 5. Perused the judgment impugned. The same does not suffer from any illegality warranting any interference. No substantial question of law emerges for consideration. Hence appeal stands dismissed. 6. The order of dismissal was pronounced on 9-2-2009 however, the reasons were not recorded. On 9-2-2009 the learned counsel for the respondent had made a statement that the decree for possession will not be executed for a period of eight weeks. Today the learned counsel makes a further statement that the respondent will not execute the decree for possession for a period of eight weeks from today. The statement is accepted. 7. In view of the dismissal of the appeal,the civil application does not survive and the same is also dismissed. (A. P. DESHPANDE, J.)