Sopan Narayan Kakde v. Gangakisan Hiralal Somani, since deceased through L. Rs.
2016-12-16
R.K.DESHPANDE
body2016
DigiLaw.ai
JUDGMENT : 1. The trial Court dismissed the Regular Civil Suit No. 166 of 1995 filed by the plaintiff for possession of field Survey No. 36/2 from the defendant by its judgment and order dated 17.08.21998. The lower appellate Court has allowed the Regular Civil Appeal No. 94 of 1998 by its judgment and order dated 14.02.2001 and a decree for possession has been passed in favour of the plaintiff and against the defendant. The original defendant is before this Court in this second appeal. 2. The matter was admitted on 06.12.2001 on the following substantial question of law; "Whether the appellant can claim title over the suit land by adverse possession. The stay to the execution of decree for possession was also granted. 3. The title of the plaintiff over the suit property is not in dispute. The case of the plaintiff was that the land is situated at village Dhanora Bk., Tq. And Distt. Washim, and the plaintiff was residing at Nanded and Washim. The suit land was being cultivated with the help of the defendant. However, the defendant taking advantage of the relations between the parties and the faith of the plaintiff, entered his name falsely in the crop statements for some of the years and claimed exclusive possession by way of ownership on the suit field from the year 1995-96. Hence, suit for possession was filed on 17.07.1995. 4. The stand of the defendant was that one Balkisan was the tenant in respect of the suit field from whom he purchased it for an amount of Rs.4,000/- by way of oral sale deed dated 07.05.1972. Relying upon certain crop statements, he has urged that the defendant was in continuous possession of the suit property from 07.05.1972 till the date of filing of the suit and thereafter also. 5. The trial Court ought to have taken into consideration the fact that there is no evidence, oral as well as documentary, placed on record, to hold that the defendant has perfected the title over the suit property by way of adverse possession. The lower appellate Court has reversed that finding and it is held that the defendant has not only failed to establish his stand before the trial Court, but his physical possession over the suit property for a period of one year has also not been established.
The lower appellate Court has reversed that finding and it is held that the defendant has not only failed to establish his stand before the trial Court, but his physical possession over the suit property for a period of one year has also not been established. The lower appellate Court has, therefore, held that the defendant has failed to establish that he perfected the title by way of adverse possession. 6. With the assistance of the learned counsels appearing for the parties, I have gone through the pleadings and evidence on record. The title of the plaintiffs over the suit property is not in dispute and therefore, the defendant would succeed in the matter only if he establishes his adverse possession for a period of more than 12 yeas. The defendant claimed to have entered into the possession of the suit property from one Balkishan Sharma. The defendant has not examined Balkishan Sharma to prove the fact that he was put in possession of the suit property. The defendant raised a plea of ownership on the basis of oral sale deed dated 07.05.1972 and such a plea cannot be accepted for two reasons i.e. (i) the sale of suit property is not a written sale deed and (ii) such sale deed is required to be registered since the value of the property was more than Rs.100/-, but it has not been registered. Merely because for certain period, the plaintiff is shown to be in possession of the suit property in the 7/12 extract, that by itself would not be enough to establish the title by way of adverse possession. The lower appellate Court has taken into consideration the entire evidence available on record and a possible view in the matter has been taken. The substantial question of law framed by this Court does not at all arise for consideration. The second appeal is dismissed. No order as to costs.