Dismissed

Shri Rajaram Maruti Chavan v. Shri Mahadeo Maruti Chavan

Bombay HC17 Jul 2007SA/216/2007

Case brief

AI extract

What is this about?

This Second Appeal raises questions regarding bar of limitation, plea of ouster, and nature of property. The Court upheld the Appellate Court's view that ouster requires positive animus, not mere inaction, and found no substantial question of law regarding the property's nature. Thus, the appeal was dismissed without interference.

What did the court decide?

The Second Appeal is dismissed as no interference is warranted.

Shri Rajaram Maruti Chavan Vs Shri Mahadeo Maruti Chavan — Property and Title | Bombay HC (2007)

¶1

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

 CIVIL APPELLATE JURISDICTION

¶3

 SECOND APPEAL NO.216 OF 2007

¶4

 Shri.Rajaram Maruti Chavan ...Appellant

¶5

 Versus

¶6

 Shri.Mahadeo Maruti Chavan & Anr. ...Respondents

¶7

 Mr.M.N.Dhamal for Appellant.

¶8

 None for Respondents.

¶9

CORAM: A.M.KHANWILKAR, J.

¶10

 JULY 17, 2007.

¶11

P.C.

¶12

 1. Three contentions have been raised before

¶13

 this Court.

¶14

 2. The first is related to issue of suit

¶15

 being barred by Law of Limitation. The second is

¶16

 in relation to the view expressed on the plea of
 ouster. The third point is regarding the house
 property being the self acquired property of the

¶17

 : 2 :

¶18

 Appellant.

¶19

 3. I shall immediately address the issue
 regarding ouster. If this issue is answered
 against the Appellant, in that case, the issue of
 limitation will recede in the background because
 the Suit will then have to be assumed as having
 been brought within limitation. Insofar as plea of
 ouster is concerned, Counsel for the Appellant had
 pressed into service Judgment of the Division bench
 of the Kerala High Court in the case of

¶20

Velliyottummel Sooppi & Ors. v. Nadukandy Moossa
& Ors. reported in AIR 1969 Kerala 222 (V 56 C 53)
 to contend that if circumstances exist to show that
 the Appellant was continuously in possession of the
 suit property without sharing it with other
 co-owners, it is a strong circumstance, indicative
 of or on which an inference can be drawn that there
 was ouster of the co-owners not in possession. The
 observations made in the said decision is in
 relation to the fact situation of that case. In my
 opinion, the Appellant Court has invoked correct
 principle of law to consider the plea of ouster and
 adverse possession. After going through the

¶21

 : 3 :

¶22

 discussion in the Judgment of the Appellate Court

¶23

 with reference to Point No.2, in particular,
 Paragraphs 17 and 18, I have no difficulty in
 upholding the conclusion reached by the Appellate
 Court. The Appellate Court has applied the correct
 principle that issue of ouster is a matter
 involving action and not mere inaction of the
 co-sharer in possession. There has to be positive
 animus and not negative animus. Applying that
 principle, the evidence on record has been

¶24

 considered threadbare by the Appellate Court before
 reaching at the conclusion that there was no open
 assertion of hostile title, coupled with exclusive
 possession and enjoyment by the Appellant, to the
 knowledge of the Plaintiff to constitute exclusion

¶25

 of the Plaintiff by the Appellant in relation to
 the joint family property. I see no propriety in
 reappreciating the evidence on record to take a
 different view, assuming that it is possible to do
 so. That is not the scope of exercising powers to
 entertain Second Appeal.

¶26

 4. Insofar as the issue regarding house
 property is concerned, once again, whether the same

¶27

 : 4 :

¶28

 was self acquired property or a joint family
 property, will be a question of fact. The Court
 below has analysed the evidence on record to answer
 the same. In my opinion, the view taken by the
 Appellate Court being a possible view, no
 interference is warranted, as the Appeal does not
 raise a question of law, much less, substantial
 question of law.

¶29

 5. Accordingly, no interference is warranted
 in Second Appeal. Dismissed.

¶30

 A.M.KHANWILKAR, J.

Shri Rajaram Maruti Chavan v. Shri Mahadeo Maruti Chavan

Case brief

What is this about?

What did the court decide?

Shri Rajaram Maruti Chavan v. Shri Mahadeo Maruti Chavan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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