Popat Dhondiba Atole v. Suresh Shankar Tapkir

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.439 OF 2025 Popat Dhondiba Atole & Ors.

...Appellants

Versus

Suresh Shankar Tapkir

...Respondent

WITH INTERIM APPLICATION NO.10381 OF 2025 IN SECOND APPEAL NO.439 OF 2025 Popat Dhondiba Atole & Ors.

...Applicants

Versus

Suresh Shankar Tapkir

...Respondent

Mr. Akshay R. Kapadia, Advocate for Appellants/Applicants.

CORAM:

MADHAV J. JAMDAR, J.

DATED :

11th August 2025 JUDGMENT :

1.

Heard Mr. Kapadia, learned Counsel for the Appellants. 2.

The challenge in this Second Appeal is to the Judgment and Decree dated 19th January 2022 passed by the learned Joint Civil Judge, Junior Division, Baramati in Regular Civil Suit No.222 of 2016 as confirmed by the learned Adhoc District Judge , Baramati, District- Pune by Judgment and Decree dated 30th February 2025 in Regular Civil Appeal No.44 of 2022.

3.

Mr. Kapadia, learned Counsel for the Appellants submitted that the following substantial question of law arises in this Second Appeal:- (i) Whether the finding of the learned Trial Court as confirmed by the learned First Appellate Court that the Appellants i.e. Defendant Nos.1 to 4 have failed to prove that they have become owners of the suit property by adverse possession is contrary to the evidence on record?

4.

Before considering the substantial question of law raised by Mr. Kapadia, learned Counsel, it is necessary to set out certain factual aspects:- (i) By agreement for sale dated 29th November 1973, suit property admeasuring 21 Hectare, 55 R. land was agreed to be sold by the ancestors of the Respondents to the ancestors of the Appellants for consideration of Rs.8,000/-.

(ii) Regular Civil Suit No. 34 of 1985 was filed for specific performance by the ancestors of the present Appellant against the ancestors of the present Respondent.

(iii) Said Regular Civil Suit No. 34 of 1985 was decreed in favour of the ancestors of the present Appellant by the judgment and decree dated 16th April 1991.

(iv) The said Judgment and decree dated 16th April 1991 was challenged by the ancestors of the present Respondent by filing Civil Appeal No. 42 of 1993 and the said Appeal was allowed by Judgment and Decree dated 19th September 1997. (v) Thereafter the present Plaintiffs i.e. the Respondents filed tenancy application under Section 84 of The Bombay Tenancy and Agricultural Lands Act, 1948 ("Tenancy Act") and the same was allowed by the Sub Divisional Officer ("S.D.O") by Order dated 28th December 2015 and the same was set aside by the learned Maharashtra Revenue Tribunal, Pune.

(vi) Thereafter the original Plaintiff i.e. the Respondent on 5th July 2016 filed Regular Civil Suit No. 222 of 2016 seeking recovery of possession. In the said Suit, the present Appellant filed counterclaim stating that the Appellants have become owners by adverse possession.

(vii) The learned Trial Court by the impugned Judgment and Decree dated 19th January 2022 inter alia has held that although the Defendants are in possession of the suit property, they have failed to prove that they have become owners of the suit property by adverse possession and therefore the learned Trial Court decreed the suit for possession. Thus, the counter-claim filed by

the Appellants-Defendants has been dismissed directing the Defendants to handover the vacant possession of the suit property to the Plaintiff within two months from the date of the judgment. (viii) The original Defendants i.e. present Appellants challenged the said judgment and decree passed by the learned Trial Court by filing Regular Civil Appeal No.44 of 2022 before the District Judge, Baramati, District-Pune. The learned First Appellate Court dismissed said Regular Civil Appeal No.44 of 2022 by the impugned Judgment and Decree dated 30th February 2025. 5.

In view of above position on record, it is necessary to set out legal position concerning the parameters to be pleaded and proved for establishing title by adverse possession. The Supreme Court in the case of Ravinder Kaur Grewal Vs. Manjit Kaur1 has set out parameters required for proving the title by adverse possession. The relevant paras are as under:- "57.

In Article 65 in the opening part a suit "for possession of immovable property or any interest therein based on title" has been used. Expression "title" would include the title acquired by the plaintiff by way of adverse possession. The title is perfected by adverse possession, has been held in a catena of decisions. 58.

We are not inclined to accept the submission that there is no conferral of right by adverse possession. 1 (2019) 8 SCC 729

Section 27 of the Limitation Act, 1963 provides for extinguishment of right on the lapse of limitation fixed to institute a suit for possession of any property, the right to such property shall stand extinguished. The concept of adverse possession as evolved goes beyond it on completion of period and extinguishment of right confers the same right on the possessor, which has been extinguished and not more than that. For a person to sue for possession would indicate that right has accrued to him in praesenti to obtain it, not in futuro. Any property in Section 27 would include corporeal or incorporeal property. Article 65 deals with immovable property.

59.

Possession is the root of title and is right like the property. As ownership is also of different kinds of viz. sole ownership, contingent ownership, corporeal ownership, and legal equitable ownership. Limited ownership or limited right to property may be enjoyed by a holder. What can be prescribable against is limited to the rights of the holder. Possession confers enforceable right under Section 6 of the Specific Relief Act. It has to be looked into what kind of possession is enjoyed viz. de facto i.e. actual, "de jure possession", constructive possession, concurrent possession over a small portion of the property. In case the owner is in symbolic possession, there is no dispossession, there can be formal, exclusive or joint possession. The joint possessor/co-owner possession is not presumed to be adverse. Personal law also plays a role to construe nature of possession.

60.

The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be

decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.

(Emphasis added) Thus, for establishing title by adverse possession, a person has to plead and prove following :

(i) He is in continuous possession of the suit property for more than 12 years;

(ii) He is in possession to the knowledge of everyone; (iii) He is in possession adverse to and in denial of title of the owner and to the knowledge of the owner.

6.

In view of above, parameters required to be proved for establishing title by the adverse possession, it is necessary to set out the findings recorded by the learned First Appellate Court as below:- "32] It is well settled that person claiming his title over any immovable property on the basis of his longstanding possession must have pleaded when his possession became hostile to the owner of the property. The date of hostile title over property must have been specifically pleaded in plaint /written statement as the case may be. Not only that but the person claiming his adverse possession must prove this fact by leading

sufficient evidence. Further it is duty of such person to plead specifically about knowledge of his hostile title over suit property to the owner of property and the said possession must continue peacefully and without obstruction from original owner".

"34] In this case, there is no specific pleading in respect of declaration at the hands of defendants about their hostile title over suit property. On the contrary as pointed out above, defendant No.1 in his crossexamination has admitted that they never send notice to plaintiff or his predecessor to claim their title over suit property and by denying the title of plaintiff. Thus, the basic requirement of pleading in respect of adverse possession and its proof by leading sufficient reliable evidence if not complied by the defendants in this suit" 7.

In the above background of the matter and in view of the submission of Mr. Kapadia, learned Counsel that the concurrent findings recorded that the Appellants failed to prove adverse possession is contrary to the evidence on record, the findings recorded by the learned Appellate Court are very relevant. The learned First Appellate Court has held that the Defendants have not pleaded in the counter-claim when their possession has become adverse to the Plaintiff's title and the same is not pleaded in the counter-claim. It has been pleaded by the Defendants that the Defendants' adverse possession started from the date of decision in Appeal No. 42 of 1993 i.e. 19th September 1997. The learned first Appellate Court has held that the said Regular Civil

Suit No.34 of 1985 was filed for specific performance and the said suit has been dismissed by the learned first Appellate Court and therefore the decision of said Appeal No. 42 of 1993 automatically cannot convert possession of the Appellants as adverse to that of the Respondents.

8.

The learned first Appellate Court has held that the basic requirement of the pleading in respect of adverse possession and its proof by leading sufficient reliable evidence is not complied with by the Defendants in the suit. The learned first Appellate Court has held that after the decision in Appeal No. 42 of 1993, the proceedings were filed before the S.D.O. where the Defendants have not come up with the case that they have become the owners by adverse possession. The said proceedings initiated before the S.D.O. were decided in 2015 and thereafter the present suit has been filed by the Plaintiff seeking possession on 5th July 2016. 9.

Both the Courts have concurrently held that the Defendants have failed to prove their adverse possession over the suit property. It is clear that the suit for possession filed by the Plaintiffs, is not barred by the Law of Limitation as contemplated under Article 65 of the Limitation Act.

10.

Thus, there is no substance in the substantial question of law raised by the learned Counsel for the Appellants. Accordingly, the Second Appeal is dismissed, however, with no order as to costs. 11.

In view of dismissal of the Second Appeal, nothing survives in the Interim Application and the same is also disposed of. (MADHAV J. JAMDAR, J.) BHALCHANDRA GOPAL DUSANE BHALCHANDRA GOPAL DUSANE Date: 2025.08.18 19:57:18 +0530