Dismissed

Daulat Trimbak Dighe (Since Deceased Thr. L/H.) 1A Mr. Laxman Daulat Dighe v. Balwant Bhikaji Dighe (Since Deceased Thr. L/H.) 1A Smt. Sonubai Balwant Dighe

Bombay HC29 Jan 2013SA/426/2012

Case brief

AI extract

What is this about?

In a second appeal, the Single Judge dismissed the appeal without admitting it to hearing. The Court held no substantial question of law arose regarding the rejection of an adverse possession claim where initial possession was permissive, and the appellant failed to show acts hostile to the true owner necessitating confirmation of title. The district judge correctly declined the declaration.

What did the court decide?

Second appeal prevented at the stage of admission; no order on costs.

Daulat Trimbak Dighe (Since Deceased Thr. L/H.) 1A Mr… — Property and Title | Bombay HC (2013)

¶1

GAG

¶2

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION.

¶4

SECOND APPEAL NO.426 OF 2012.

¶5

Daulat Trimbak Dighe (Since dead, through LR's.) :: Appellants.

¶6

Versus

¶7

Balwant Bhikaji Dighe (Since dead, through LR's.) :: Respondents.

¶8

Mr. M.M. Sathaye, Advocate for the Appellants.

¶9

CORAM => R.Y. GANOO, J. DATE => 29^th JANUARY, 2013.

¶10

P.C. :-

¶11

Heard Mr. Sathaye learned advocate appearing for the appellants.

¶12

[2] One Daulat Dighe instituted Regular Civil Suit No.44 Of 1993 in the Court of the Civil Judge,(Jr.Divn.), Dindori, Dist.Nashik

¶13

to seek a declaration that he became owner of the suit properties by

¶14

adverse possession and that the defendant Balwant Dighe should not

¶15

interfere with his possession over the suit properties, except by following due process of law.

¶16

¶17

[3] It is noticed that during the course of trial, the plaintiff – Daulat as well as defendant – Balwant expired. Their legal heirs were brought on the record. The learned Trial Judge by his Judgment and Decree dated 24^th December, 2004 partly decreed the suit and passed an order of injunction restraining present respondents from interfering with the possession of the appellants. The claim of the appellants as regards owner by adverse possession was declined.

¶18

[4] The appellants (LR's of original plaintiff Daulat) preferred R.C.A.No.33/2005; and the respondents (LR's of original Defendant – Balwant) preferred Reg.Civil Appeal No.194 Of 2005. It is noticed that the respondents herein had filed Regular Civil Suit No.90 Of 2001 for eviction of the appellants. Said suit was dismissed and hence, the respondents preferred Regular Civil Appeal No.193 Of 2005.

¶19

[5] These three Appeals were taken up for hearing together and all three appeals were dismissed by the Judgment & Decree dated 4^th November, 2011. On account of this order, order of injunction issued in favour of the appellants was confirmed. The claim of the appellants as regards adverse possession was rejected and claim of the respondents for recovery of the possession was also stood rejected.

¶20

¶21

[6] The appellants have filed this second appeal being aggrieved and dis-satisfied by the Judgment and Decree by which the learned District Judge -2 Nashik declined to accept the claim of the adverse possession.

¶22

[7] Mr.Sathaye learned advocate appearing on behalf of the appellants points out that the appellants had enjoyed the property for substantially long period and definitely prior to the year 1968 and that they had constructed house in the suit property, they had arranged for pipeline and even loan was obtained from the Co. Operative Society for development of suit land. It was also submitted that, Mutation entries were effected in favour of the appellants.

¶23

[8] Mr. Sathaye learned advocate further contended that voluminous material was placed before the Courts below to show that the appellants have enjoyed suit properties as if they are the owners and that, they have perfected title by way of adverse possession.

¶24

[9] I have perused the relevant portion of the Judgment. It is true that the appellants have done what may be referred as development of the land however, no specific act is said to have been committed by the appellants to contest the ownership of the

¶25

¶26

respondents and to do such act to indicate to the owners that the appellants are claiming ownership by way of adverse possession. In my view effecting some development of land would not be sufficient to hold that appellants have perfected their title by adverse possession.

¶27

[10] It is also required to be mentioned that before the learned District Court the appellants fairly made submission that, their initial possession was permissive possession. This admission goes to indicate that the appellants entered into the lands in question with permission of the respondents. If this is so, surely there could have been positive act on part of the appellants to indicate to the world at large that the appellants are occupying the particular property as if they are the full owners and that must be done to the knowledge of the respondents. It was sought to be contended that the permissive possession got converted into adverse possession with effect from 1^st July, 1968. For doing this namely for conversion of permissive possession into possession by adverse possession, there ought to have been some more acts on the part of the appellants qua the owner to indicate the owner that the appellants are claiming ownership by adverse possession. Those acts are missing.

¶28

[11] It is true that some witnesses have deposed that the

¶29

¶30

appellants are in possession. Possession of the appellants by itself is not sufficient. In the facts and circumstances of the case, the ingredients which required confirmation of title by adverse possession, are not present. The learned District Judge has appreciated evidence in proper perspective and rightly declined to grant declaration of ownership by adverse possession upon the appellants. [12] In view of the aforesaid discussion, points raised by learned counsel for the appellants cannot be accepted to admit the Second Appeal as no substantial question of law is involved. Hence, Second Appeal is dismissed at the stage of admission. There shall be no order as to costs.

¶31

(R.Y. GANOO, J.)

Daulat Trimbak Dighe (Since Deceased Thr. L/H.) 1A Mr. Laxman Daulat Dighe v. Balwant Bhikaji Dighe (Since Deceased Thr. L/H.) 1A Smt. Sonubai Balwant Dighe

Case brief

What is this about?

What did the court decide?

Daulat Trimbak Dighe (Since Deceased Thr. L/H.) 1A Mr. Laxman Daulat Dighe v. Balwant Bhikaji Dighe (Since Deceased Thr. L/H.) 1A Smt. Sonubai Balwant Dighe

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Krishnadeo Shripati Patil Vs Vitthal Shripati Patil

Kangji Keru Lahane Vs Balu Gopinath Layre

Gopal Ganapati Mali Vs Smt. Ramabai Mahadev Todkar

Smt. Banubi Abdul Kadir Mukadam Vs Smt. Noorjehan Abdul Rajjak

Kacharu Kalu Jagtap and Ors. Vs Gambhir Sayaji Salve (Decd) by Lrs. Shrimati Bhimabai W/O Gabhir Salve and Ors.

Virchand Popatlal Shaha Vs Sanjaykumar Manikchand Sadriya