SURYABHAN DHUNDAJI BAWANE Vs. BHULABAI CHANDRABHAN BAWANE

JUDGEMENT

(1.) The original defendant has challenged the concurrent judgments and decrees passed by the Courts below in this Second Appeal. This court while admitting the Second Appeal on 2-12-1993 has treated the additional grounds raised in the memo of appeal by way of amendment as substantial questions of law between the parties. No question of law as such has been formulated. After hearing both the counsel, the substantial question of law which arise for consideration is whether the suit as filed was time barred in view of provisions of Article 64 of Indian Limitation Act and whether the appellant/defendant has perfected his title by adverse possession

(2.) The original plaintiff was brother of present appellant/defendant. The present respondents are his legal heirs. The suit filed vide Regular Civil Suit NO. 3 of 1986 was for claiming the relief of possession of field Survey No. 89/1 admeasuring 10 acres 33 Gunthas of Mouza - Dhamak. The plaintiffs contended that out of this field 3 acres 24 gunthas of land belongs to him. The trial Court has decreed the suit and ordered partition of 3 Acres and 24 gunthas of land from the suit field and further ordered enquiry into future mesne profit under Order 20, rule 12 of Civil Procedure Code. The Appellate Court has maintained it.

(3.) As the question is of limitation and adverse possession, in view of arguments advanced, it will be necessary to briefly state the facts. On 19-4-1948, field Survey No. 89/1 of Dhamak admeasuring total 14 Acres 14 gunthas was jointly purchased by plaintiff - Chandrabhan, defendant Suryabhan, Shankar bawane and one Ukandya Bhoi. Chandrabhan was having l/4th share in the field as per his contention. Later on, defendant Suryabhan purchased l/4th share of ukandya Bhoi and he became owner of 50% of suit field. Shankar sold his l/4th share to one Parvati Mahar in 1960. Thus, as a result of these transactions, plaintiffs remained owner of l/4th share i. e. 3 acres 24 gunthas while defendant became owner of 1/2 share i. e. 7 Acres 9 gunthas and remaining l/4th share of 3 acres 24 gunthas is with Parvati Mahar. We are not concerned with the share of parvati in the present matter. The case of plaintiff was that as defendant forcibly tried to disturb his possession, he filed Regular Civil Suit having No. 133 of 1084 and initially a temporary injunction was granted in his favour on 30-10-1984. The defendant Suryabhan thereafter dispossessed plaintiff. Hence, that suit was withdrawn and Regular Civil Suit No. 3 of 1986 came to be filed for restoration of possession on the ground that defendant has no right, title or interest in the land. Alternatively, the plaintiffs also prayed that if it is held that the land is still joint, a decree for partition and separate possession to the extent of their share of 3 Acres and 24 gunthas should be passed. The suit was resisted by the present appellant/defendant on the ground that the plaintiff was not owner of 3 Acres 24 gunthas and plaintiff was not in possession thereof. He also denied plaintiff's claim for possession and stated that even if it is held that plaintiff - Chandrabhan was owner of 3 Acres 24 gunthas because of his long, continuous and exclusive possession since 1948, that too by posing himself as owner of entire field, he has perfected his title by way of adverse possession. He stated that field was being cultivated by him at his own expenses and he also submitted that he did not give possession to Chandrabhan though he was demanding possession and on each occasion when demand of possession was made by Chandrabhan, he asserted his own exclusive title and he also stated that he has also taken loan against this land from various banks and he also dug a well in it on the strength of said loan. He further stated that on 14-12-1975, Chandrabhan had given a notice through Shri naigaonkar, Advocate, demanding partition and separate possession of the suit land and as defendant has not given possession, the suit was time barred. The trial Court framed various issues and it found that the plaintiffs and defendant are joint owners, however, it found that plaintiffs could not prove that they were owners of southern portion of suit field. It further found that plaintiffs could not prove their possession on 30-10-1984 when temporary injunction was vacated in earlier Regular Civil Suit No. 133 of 1984. It held that suit was maintainable and further held that defendant did not prove that he has become owner by adverse possession. It, however, accepted the alternate prayer made by the plaintiffs for having l/4th share in the suit field and granted that decree for partition and possession. The present appellant thereafter filed a Regular Civil Appeal No. 223 of 1988 under section 96 of Civil Procedure Code before the District Judge, amravati and District Judge, Amravati has on 5-3-1993 dismissed that appeal.