DEVIDAS KRISHNA SALUNKE Vs. TANUBAI

JUDGEMENT

(1.) UPON hearing the learned Advocate for the parties and on perusal of records, it is seen that respondent No. 1 filed the suit for restoration of possession of the suit property based on the ground that the same belongs to the appellant and the respondent had been in permissive possession thereof. The claim of the respondent/plaintiff that the suit property is owned by him was neither disputed by the appellant/defendant nor any plea of adverse possession was raised by the defendant. The trial Court held that in view of Article 64 of the Limitation Act the plaintiff cannot succeed unless she makes out not only that she has title, but also she was in possession of it within 12 years next prior to the institution of the suit. The lower Appellate Court having found that the plaintiffs claim for possession was not based on the ground of dispossession but on the ground that she is the owner of the suit land and there was no plea of adverse possession by the defendant, held that the suit was governed by Article 65 of the Limitation Act and not by Article 64 of the Act. The lower Appellate Court also found on the analysis of the evidence on record that though the appellant/defendant had been in possession of the suit land for more than 12 years, it was a clear case of the respondent/plaintiff that the possession of the suit property with the defendant was permissive in nature and that there was no claim of adverse possession of the defendant and therefore, the impugned possession for whatsoever long period would not ripen into prescriptive title and that such title can be acquired only by way of adverse possession for at least 12 years. The lower Appellate Court further held that in the absence of any pleading and proof about the acquisition of ownership by adverse possession, it must be held that the plaintiffs title to the suit land is perfectly subsisting and she has every right to recover possession thereof.

(2.) FROM the material on record and more particularly the findings arrived at by the lower Appellate Court on the basis of the analysis of the evidence, it is abundantly clear that the suit is not based merely on the claim of dispossession, so as to govern it under Article 64 of the Limitation Act and as rightly observed by the lower Appellate Court, the claim for possession was based on title of the respondent to the suit property and there was no claim of any adverse possession of the suit property by the appellant/defendant. In facts and circumstances of the case, therefore, there is no question of applicability of Article 64 of the Limitation Act and the Article relevant for the matter is Article 65 of the Limitation Act as rightly observed by the lower Appellate Court. This being so, the question sought to be raised as substantial question for consideration of this Court to the effect as to whether the lower Appellate Court was justified in holding that the suit filed by the plaintiff/respondent is governed by Article 65 and therefore, the same cannot be said to be barred by the Limitation Act is to be answered in affirmative.

(3.) IN this view of the matter, the appeal is liable to be dismissed and it is accordingly hereby dismissed with no order as to costs.