High Court
Legal Reasoning
1 904 sa 232.14IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 232 OF 2014Vimalbai Mohan Patil and others.. AppellantsVersusOnkar Keshav Mahajan Since deceased through LRs Lilabai Onkar Mahajan and others.. RespondentsShri Vijay B. Patil, Advocate for the Appellants.Shri G. V. Wani, Advocate for the Respondent Nos. 1A to 1F.WITHSECOND APPEAL NO. 299 OF 2025Gambhir Vitthal PatilSince deceased through his L.Rs.Sunil Gambhir Patil.. AppellantVersusOnkar Keshav Mahajan Since deceased through LRs Gangabai Wd/o Onkar Mahajan and others.. RespondentsShri Ujwal S. Patil, Advocate for the Appellant.Shri G. V. Wani, Advocate for the Respondent Nos. 1A to 1F.Shri Vijay B. Patil, Advocate for the Respondent Nos. 2 to 4.CORAM :SHAILESH P. BRAHME, J. DATE :30TH SEPTEMBER, 2025.FINAL ORDER :.Heard both sides.2.Both second appeals are emanating from R.C.S. No. 01 of1999 filed by the respondent No. 1 - Onkar Keshav Mahajan for 2 904 sa 232.14possession based on title. His suit was decreed, which gave riseto R.C.A. No. 177 of 2003, which is subject matter of SecondAppeal No. 299 of 2025 and R.C.A No. 190 of 2003, which issubject matter of Second Appeal No. 232 of 2014. Both theCourts below concurrently decided against the appellants. Forthe sake of convenience the parties are referred as per theiroriginal status in the suit.3.The controversy pertains to land gut No. 45, which waspurchased by the plaintiff - Onkar vide sale deed dated13.01.1951, which is at Exhibit 61. The suit land was given tohis sister Deubai in lieu of her maintenance. The appellantsbefore this Court are lineal descendants of Deubai and herhusband Vitthal. A mutation entry No. 380 dated 13.07.1956vide Exhibit 39 was recorded in the name of Vitthal. Vitthal diedin the year 1973 and Deubai died in the year 1983. Though suitland was given for maintenance, during lifetime of Deubaiherself, the defendants failed to hand over the possession.4.The suit is contested by the defendants on the ground thatVitthal had contributed while purchasing the suit land andnominal sale deed was executed in the name of plaintiff - Onkar.Due to the share of Vitthal the suit land was transferred to hisname and mutation entry No. 380 was effected. Vitthal furthertransferred suit land to the defendant No. 1 - Gambhir andMohan. A plea of adverse possession was also taken. It iscontended that on the basis of long standing possession the 3 904 sa 232.14defendants perfected title and the suit is liable to be dismissed.Suit is also contested on the plea of limitation.5.Plaintiffs adduced oral evidence of power of attorney -Lilabai, daughter of plaintiff. Defendants adduced oral evidenceand relied upon the revenue record. Both the Courts below heldthat suit was within limitation, there was no transfer of title anddefendants were unable to prove plea of adverse possession. 6.Learned counsel Mr. Ujwal Patil appearing for theappellants in Second Appeal No. 299 of 2025 and Mr. Vijay Patil,learned counsel appearing in Second Appeal No. 232 of 2014would submit that suit was hopelessly barred by limitationbecause possession was handed over since 1951. Thereaftermutation entry No. 380 was effected on 13.07.1956. Thelimitation would commence from 1956. It is further submittedthat in the year 1973 Vitthal died and thereafter Deubai died inthe year 1983, whereas suit is filed in the year 1999. It is furthersubmitted that no evidence has been adduced by the plaintiffbecause evidence of Lilabai, power of attorney, is not admissiblein evidence. Plaintiff did not step into witness box. It isvehemently contended that the defendant No. 2 - Vimalbai hadfiled R.C.S. No. 72 of 1978 for partition and present suit land wasalso subject matter. Her suit was decreed and appeal preferredagainst that was dismissed, but still there was inaction on partof the plaintiff. It is contended that there is long standingpossession. The mutation entry No. 380 has not been challenged 4 904 sa 232.14at any point of time. This would constitute adverse possessionand both the Courts below have committed grave error ofjurisdiction. It is submitted that there are substantial questionsof law involved in the second appeals, which required admission.7.Learned counsel Mr. G. V. Wani for the respondent Nos. 1Ato 1F repels the submissions of the appellants. It is submittedthat there is no title document executed in favour of thedefendants. Mutation entry No. 380 cannot constitute transfer.It is submitted that the limitation of twelve years wouldcommence when the possession becomes adverse. The cause ofaction aroused in the year 1999 itself. It is further submittedthat long standing possession is not adverse possession. It issubmitted that both the Courts below have concurrently recordedfindings on appreciation of facts, which cannot be interferedwith. It is further submitted that plaintiff was not party to thesuit for partition filed by the defendant No. 2 - Vimalbai and hehad no knowledge about the suit or its decision. Therefore, filingof the suit would not constitute the reckoning of period oflimitation. 8.I have considered rival submissions of the parties.Undisputedly, plaintiff purchased suit land on 13.01.1951 by saledeed at Exhibit 61. The sale deed does not spell out that Vitthalor Deubai were joint owners or they had contributed anything forthe purchase of the suit land. The exclusive ownership of theplaintiff cannot be disputed. The Trial Court has rightly dealt 5 904 sa 232.14with the provisions of the Prohibition of Benami Transaction Act.Defendants though cursorily raised plea that there was nominalsale deed executed in favour of the plaintiff, but Vitthal was theco-owner, has not been corroborated by any evidence on record.9.Both the Courts below have dealt with plea of limitation.Trial Court had formulated issue to that effect. By reasonedorder it is recorded that suit was filed within limitation. Themutation entry No. 380 (Exhibit 39) would not constitutetransfer. By the mutation entry name of Vitthal wasincorporated in the revenue record. It is the case of the plaintiffthat land was given to Deubai for maintenance. Permissivepossession is evident. The defendants are under obligation tomake out a case that possession was adverse for twelve years ormore. Merely long standing possession as well as entry of thenames by mutation entry No. 380 are not sufficient to show thecommencement of period of limitation. Both the Courts belowhave rightly dealt with that aspect of the matter. The cause ofaction arouse in the year 1999 and thereafter the suit was filed.10.The defendant No. 2 – Vimalbai had filed R.C.S. No. 72 of1978 for partition. It was decreed by the Trial Court and appealagainst that was dismissed. Plaintiff was not party, but the suitland was shown to be subject matter of that proceedings. Thereis nothing on record to disclose that plaintiff was aware of thelitigation and despite knowledge he was in slumber. I findsubstance in the submissions made by the learned counsel Mr. G.
Legal Reasoning
6 904 sa 232.14V. Wani that in absence of any knowledge, the adversity of thepossession cannot be attributed to the plaintiff. It can be saidthat there was no reason for the plaintiff to know the interesepartition amongst defendants. Therefore filing of suit byVimalbai cannot be said to be declaration of any adverse orhostile title against the true owner. Both the Courts below haverightly dealt with plea of adverse possession.11.I have already observed that filing of the suit by Vimalbaior the mutation entry No. 380 cannot be said to be starting pointof limitation and would constitute adverse possession. Even thedeath of Vitthal or Deubai cannot be said to be indication to thetrue owner, that defendants had set up any claim adverse of title,openly and in derogation with the title of the original owner. Iam of the considered view that parameters for adverse possessionhave not been met by the defendants.12.Mr. Ujwal Patil, learned counsel relies on the order passedby the Coordinate Bench of this Court in the matter of ShankarShridharrao Deshmukh Vs. Vyankatesh Shankarrao Deshmukh reported in2007 (Supp.) Bom.C.R. 681. The Coordinate Bench only admittedsecond appeal. It does not lay out any binding precedent. Thisorder cannot be relied. Further reliance is placed on thejudgment of Coordinate Bench of this Court in the matter ofMaruti Dagadu Charwad (D) through L.Rs. Vs. Bhau Nama Gujar (D) throughL.Rs. reported in 2017(5) Mh.L.J. 627. In that case plea of adversepossession was taken by the defendant No. 1. He was in 7 904 sa 232.14possession since 1952 till filing of suit in the year 1978 openlyand in derogation with the title of plaintiff therein. It was not acase of permissive possession. In that context plea of adversepossession was upheld. The facts are distinguishable. Thisjudgment will not help the appellants.13.Learned counsel for the respondents has placed reliance onthe judgment of the Supreme Court in the matter of Neelam Guptaand others Vs. Rajendra Kumar Gupta and another reported in 2024 All SCR2152. In that case various judgments are considered by the ApexCourt from para Nos. 36 to 44 for considering the submission ofadverse possession. Considering those parameters, I have heldthat appellants have failed to prove plea of adverse possession.14.Plaintiff did not step into witness box, but examined hisdaughter Lilabai. It is trite law as laid down by the SupremeCourt in the matter of Janki Vasudeo Bhojwani and others Vs. IndusindBank Ltd. and others reported in 2005(1) Mh.L.J. 1170 that evidence ofpower of attorney is not admissible and the exception is that ifthe attorney has special or personal knowledge of thetransaction. This aspect is dealt with by the lower AppellateCourt. She is the member of family. She can be treated aswitness, albeit not for transaction between parties. She as wellas other defendants were minor at the relevant time. Even if theoral evidence of Lilabai is excluded, still no case is made out bythe defendants. I find that defence is founded on a very fragileplea that suit land was transferred by way of mutation entry. I 8 904 sa 232.14find that there is no convincing evidence on record to show thatthere is transfer of title or plea of adverse possession. I do notfind any substantial question of law involved in both the appeals.Both second appeals are dismissed.15.After pronouncement of the judgment, learned counsel forthe appellants prays for grant of stay to the operation andexecution of decree passed by the Trial Court, which is confirmedby today’s minutes of order.16.Learned counsel for the respondents opposes the prayer onthe ground that there was no stay to the execution of the decreepassed, during pendency of appeal.17.Second appeals were filed way back in the year 2014. Evenone of the appeals was filed belatedly and delay was lateroncondoned. During pendency of appeals no stay was operational tothe execution of the decree passed by the trial Court. Theplaintiff is striving for possession since 1999. I am not inclinedto accept the prayer made by the appellants. It stands rejected.[ SHAILESH P. BRAHME J. ] bsb/Sept. 25