SA 412.2010.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO. 412 OF 2010 APPELLANT : Shri Deorao s/o Warluji Sontakke, Aged about 55 yrears, Occupation- Cultivator, r/o Reshimbag, Nagpur (Original Plaintiff and Respondent in Regular Civil Appeal No.176/2003) Deleted as per order dt. 20.11.25 1a. Manjulabai w/o Deoraoji Sontakke, Aged about 70 years, occ.: Household. 1b. Raju s/o Deoraoji Sontakke, Aged about 48 years, occ.: 1c. Sunil s/o Deoraoji Sontakke, Aged about 45 years, occ.: 1d. Vijay s/o Deoraoji Sontakke, Aged about 38 years, Occ.: Amended as per Courts order dt.24.07.2019 1e. Suraj s/o Krushnaraoji Sontakke (Grandson of the appellant), Aged about 23 years. Occ.: All R/o. Plot No.26, Navin Nagar, Near Bhujade Cycle Stores, Pardi, Nagpur. ..VERSUS.. RESPONDENTS : 1 Shri Antaram s/o Maniram Sontakke, Aged about 51 Years, Occupation- Cultivator, r/o Mangli (Jagtap), Tehsil- Bhivapur, District – Nagpur (Dead), his legal representatives:- Respondent No.1-A is deleted as per Court’s order dt.15.10.2013 1A. Banabai wd/o Antaram Sontakke (dead) 2026:BHC-NAG:6681 SA 412.2010.odt 2 1B. Shri Kisan s/o Antaram Sontakke, Aged about 30 years, Occupation – Cultivator, r/o Mangli Jagtap), Tehsil – Bhivapor, District – Nagpur 1C. Shri Shankar s/o Antaram Sontakke, Aged about 30 years, Occupation- Cultivator, r/o Mangli (Jagtap), Tehsil – Bhivapor, District – Nagpur. 1D. Shri Anjanabai wd/o Deorao Dahake, Aged about 25 years, Occupation – Lohar, r/o Mangli (Jagtap), Tehsil – Bhivapur, District - Nagpur 2. Shri Natthu s/o Ratiram Sontakke, (Dead), his legal representatives:- 2A. Shri Balaji s/o Natthuji Sontakke, Aged about 65 years, Occupation – Lohar, r/ o Mangli, (Jagtap), Tehsil – Bhivapur, District – Nagpur. (Dead) Amended as per Courts order dt.05.09.2013 2-a.I Sumanbai Balaji Sontakke, Aged major, Occ.: Household, R/o. Mouza – Margh, Tah. Bhiwapur, Distt. Nagpur. 2-a.II. Parikshit Balaji Sontakke, Aged major, Occ.: Cultivator, R/o. Mouza-Margh, Tah. Bhiwapur, Distt. Nagpur. 2B. Shri Ratiram s/o Natthuji Sontakke, Aged about 40 years, Occupation – Lohar, r/o Mangli, (Jagtap), Tehsil – Bhivapur, District – Nagpur, 2C. Smt. Parvatibai wd/o Natthuji Sontakke, Aged about 45 Years, Occupation – Household Affairs, r/o SA 412.2010.odt 3 Mangli (Jagtap), Tehsil – Bhivapur, District – Nagpur, 2D. Shjri Vibhishan s/o Natthuji Sontakke, Aged about 38 Years, Occupation – Lohar, r/o Mangli (Jagtap), tehsil – Bhivapur, district – Nagpur, 2E. Smt. Jijabai w/o Madhukar Shende, Aged about 30 years, Occupation – Household Affairs, r/o Usegaon, Tehsil, Chimur, District – Chandrapur. ------------------------------------------------------------------------------------------------------------------------------------ Mr. K. V. Deshmukh, Advocate for Appellants. Mrs. R. D. Raskar, Advocate for the Respondent Nos.1B to 1D and 2B to 2E. ------------------------------------------------------------------------------------------------------------ CORAM : ROHIT W. JOSHI, J. DATE : 23.04.2026 J U D G M E N T : 1) Heard finally with consent of learned advocates for the respective parties. 2) The present Second Appeal is preferred challenging judgment and decree dated 09.01.2007 passed by the learned Ad-hoc District Judge-10, Nagpur in Regular Civil Appeal No.176 of 2003. By the said judgment, the learned First Appellate Court has reversed the decree for possession passed by the learned Civil Judge, Junior Division, Umrer vide judgment and decree 31.01.2003 in Regular Civil Suit No. SA 412.2010.odt 4 189 of 1988. 3) The appellants in the present second appeal are original plaintiffs and the respondents are original defendants. The parties will be referred as “plaintiffs” and “defendants” hereinafter. 4) The plaintiffs had filed a suit for possession with respect to the suit property which comprises of an agricultural land admeasuring 1.30 H.R. bearing Gat No.71, situated at village Mangali, Tahsil Umrer, District Nagpur. 5) It is the case of the plaintiffs that the suit property was owned by their father late Warlu. Plaintiff No.1 and defendant No.3 are real brothers and plaintiff No.2 is widow of deceased brother of plaintiff No.1 and defendant No.3 (Chintaman). The defendants are cousins of plaintiff No.1 and Defendant No.3. 6) The case of the plaintiffs is that the suit property was given for cultivation to the defendants on the on Batai (crop sharing) basis. The plaintiffs contend that in the year 1988- 89, they decided to cultivate the land by engaging labour on hire. The defendants opposed the said move and refused to SA 412.2010.odt 5 vacate the suit property and handover possession thereof to them. In such circumstances, the aforesaid civil suit being Regular Civil Suit No.189 of 1988 came to be filed. 7) The defendants filed their written statement opposing the suit. The principal contention of the defendants is that land bearing Gat No.71 was admeasuring 0.70 H.R. and not 1.30 H.R. and that the said land admeasuring 0.70 H.R. was purchased by them by virtue of an oral sale. They contended that although sale deed was not executed, they were in possession of the suit property as owners on the basis of oral sale. As regards the remaining 0.60 H.R. land, it is their case that they had purchased the from one Mr Naik. The defendants also came up with a case of adverse possession with respect to 0.70 HR land claiming that they were in long possession of the suit property claiming ownership right to the knowledge of the plaintiffs and as such they had perfected their title by adverse possession. 8) The suit was initially decreed by the learned Trial Court. However, the appeal was allowed and the suit was SA 412.2010.odt 6 remanded for adjudication afresh. 9) The learned Trial Court decreed the suit, granting a decree for possession in favour of the plaintiffs to the extent of 1.30 H.R. land. The learned Trial Court has rejected the contention of the defendants that they had perfected title over the suit property by way of adverse possession. The learned Trial Court recorded that, as per the case of the defendants, they had purchased the suit property somewhere in the year 1976-77. The learned Trial Court noted that the suit for possession was filed on 17.08.1988 and that the documentary evidence with respect to revenue records did not indicate that entry of possession of the defendants with respect to suit property was recorded prior to 17.08.1976. In view of the aforesaid, the learned Trial court held that the defendants failed to prove open and hostile possession for a period of 12 years preceding the date of filing of suit and, as such the defendants had failed to establish the case of adverse possession. As regards the claim of ownership, the learned Trial Court has held that oral sale cannot have the effect of transferring title. SA 412.2010.odt 7 10) Being aggrieved by the aforesaid decree, the defendants preferred appeal under section 96 of the Code of Civil Procedure, which came to be registered as Regular Civil Appeal No.176 of 2003. The appeal came to be partly allowed by the learned Ad-hoc District Judge-10, Nagpur vide judgment and decree dated 09.01.2007. 11) The learned First Appellate Court has recorded that the defendants had failed to prove ownership over the suit property by way of oral sale. However, their contention with respect to adverse possession is accepted and it is held that the defendants became owners of the suit property to the extent of 0.70 H.R. by way of adverse possession. As regards the remaining area of land admeasuring 0.60 H.R., the learned First Appellate Court has recorded that the said portion of land was taken on lease by the defendants from Mr Naik vide sale deed dated 13.12.1950 (Exhibit-49). 12) The present Second Appeal is preferred by the original plaintiffs challenging the said reversing decree by the learned First Appellate Court. The appeal came to be SA 412.2010.odt 8 admitted vide order dated 22.11.2010 on the following substantial question of law:- “Whether the counter claim filed by the respondent was barred by limitation and whether the same could have been decreed by the first appellate court.” 13) Perusal of the judgment by the learned First Appellate Court will indicate that initially there was an entry in the relevant revenue record with respect to possession of the defendants over the suit property in the year 1958-59. This document is at Exhibit 102. The learned First Appellate Court has also recorded that the entry was subsequently cancelled. The learned First Appellate Court has also recorded that entry in the name of defendant No.2 was as a tenant with respect to 0.70 H.R. of land. The learned First Appellate Court has further recorded that the Khate Pustika at Exhibit-94 reflected possession of defendant No.2, Nathu, since the year 1976-77. It has also recorded that the names of defendants were shown as owners of the suit property in the Khate Pustika since 1976-77. On the basis of this evidence, SA 412.2010.odt 9 the learned First Appellate Court has recorded that the defendants had perfected their title over the suit property by way of adverse possession. 14) The initial entry recorded in the year 1958 shows possession of defendant No.2, Nathu, as tenant. On the basis of said revenue entry, it cannot be said that defendant No.2, Nathu, was holding possession hostile or adverse to the interest of the plaintiffs. The said entry will only indicate permissive possession. The entry of the year 1958, therefore, cannot be viewed as starting point from which the possession becomes adverse. As regards the entries recorded subsequently in the year 1976–77, the learned Trial Court, on perusal of the Khate Pustika (Exhibit-94) has recorded that the said document does not mention the date on which entry of defendants becoming owners of the suit property by way of oral sale, is recorded. The learned Trial Court thereafter, finds that the suit is filed on 17.08.1988 and the entry does not indicate that it was recorded prior to 17.08.1976. The learned First Appellate Court has not noticed this vital aspect of the matter, which was rightly considered by the learned SA 412.2010.odt 10 Trial Court. 15) In the light of aforesaid, it must be said that the learned First Appellate Court has erred in placing reliance on the revenue records at Exhibits-102 and 94 in holding that defendants proved ownership over the suit property by way of adverse possession. As recorded above, Exhibit-102 shows permissive possession as tenants. This entry was also cancelled subsequently. The entry was again recorded in the year 1976-77 and this time on the basis of oral sale. It is found that the exact date of this particular entry recorded in the year 1976-77 is not reflected in the record and therefore it cannot be said that the defendants were holding possession of the suit property adverse to the interest of the plaintiffs for a continuous period of 12 years prior to the date of institution of suit. The defendants have failed to make out case of adverse possession, as is rightly held by the learned Trial Court. The findings by the learned First Appellate Court in this regard are unsustainable in law and warrant interference. 16) It will also be appropriate to refer to pleadings of SA 412.2010.odt 11 the defendants in their written statement regarding adverse possession. The defendants have pleaded that they were in possession of the suit property for the last 40 years and that the plaintiffs were never in possession of the same. They contended that the suit was barred by limitation and further pleaded that without prejudice to the contentions with respect to their ownership, they had also become owners of the suit property by adverse possession. The pleadings are absolutely vague and lacking in all material particulars. The defendants have not stated since when and how their possession became adverse. There is no pleading to infer knowledge of the claim of adverse possession of defendants to the plaintiffs. The pleadings of adverse possession taken on their face value do not make out essential ingredients of adverse possession. Apart from the reasons recorded by the learned Trial Court, this also is a ground for rejection of claim of adverse possession raised by the defendants. 17) The substantial question of law framed in the appeal is accordingly answered in favour of the appellants (original plaintiffs) and against the respondent (original SA 412.2010.odt 12 defendants). Since the defendants are not entitled to declaration of ownership by way of adverse possession to the extent of 0.70 H.R. land, decree for possession with respect to said portion of land will have to be maintained. 18) Although a substantial question of law in this regard was not framed, during the course of hearing of the appeal, the learned advocate for the respondents argued that the plaintiffs had established ownership only to the extent of 0.70 H.R. land and the learned Trial Court had erred in granting a decree for possession with respect to 1.30 H.R. of land. The learned advocates for the parties agreed that a question of law in this regard could be framed and decided simultaneously. The following substantial question of law is framed with respect to the area of land. Whether the findings recorded by the learned Trial Court that the plaintiffs were owners of entire Gat number 71 to the extent of 1.30 H.R. is perverse? 19) On the basis of document of lease dated 13.12.1950 (Exhibit 102) the defendants claimed ownership over land to SA 412.2010.odt 13 the extent of 0.60 H.R. The learned First Appellate Court has rightly found that this document is a document of perpetual lease and not a sale deed. 20) The record indicates that land bearing Kh. No.95/2 admeasuring 1.28 acres was taken on perpetual lease by defendant Nos.1 and 2 from Mr Naik. The record also indicates that land bearing Kh. No. 96/2 was admeasuring 1.72 acres, was standing in the name of late Warlu, father of the plaintiff No.1, and defendant No.3 and late husband of plaintiff No.2. The learned First Appellate Court has rightly referred to the lease deed at Exhibit-49 whereby Kh. No.95/2 was taken on perpetual lease by defendant Nos.1 and 2 vide lease deed dated 13.12.1950. It is apparent that during the course of consolidation proceedings, Kh. Nos.95/1 and 96/1 were renumbered as Gat Nos.136 and 137 respectively and thereafter they were given a common number i.e. Gat No.71 having an area of 1.30 H.R. It is clear that the plaintiffs are owners only to the extent of 0.70 HR land. The learned First Appellate Court has dealt with the evidence in this regard in a proper manner. The fact that initially the area of land in the SA 412.2010.odt 14 name of Warlu was only 0.70 HR, has completely escaped the attention of the learned Trial Court. The substantial question of law with respect to the area of land is, therefore, answered in favour of the respondents (original defendants) and against the appellants (original plaintiffs). 21) The learned First Appellate Court, having found that the defendants had acquired leasehold rights in perpetuity over 0.60 H.R., of land bearing Gat No.136 (Kh. No.95/2) has erred in rejecting the counter claim filed by the defendants. The defendants had filed the said counter-claim seeking declaration of ownership with respect to 0.60 H.R. land bearing old Kh. No.95/2 i.e. Gat No.136. Although a declaration of ownership could not be granted, the learned First Appellate Court ought to have modified the relief by granting declaration that the defendants had title of perpetual lessees over the said property. 22) In the result, the Second Appeal deserves to be partly allowed and is allowed in the following terms:- I. Judgment and decree dated 09.01.2007 passed by the learned Ad-hoc District Judge-10, SA 412.2010.odt 15 Nagpur in Regular Civil Appeal No.176 of 2003 and judgment and decree dated 31.01.2003 passed by the learned Civil Judge, Junior Division, Umrer in Regular Civil Suit No.189 of 1988 are hereby quashed and set aside. II. Defendants are directed to deliver possession of 0.70 H.R. land bearing old Kh. No.96/2 (Gat No.137) situated at village Mangali, District Nagpur to the plaintiffs III. Counter claim of the defendants is decreed by declaring that the defendants have title of perpetual lessees over land admeasuring 0.60 H.R. bearing Kh. No.95/2 (Gat No.136) of village Mangali, District Nagpur. IV. Decree for enquiry into mesne profits granted by the learned Civil Judge, Junior Division, Umrer vide judgment and decree dated 31.01.2003 in Regular Civil Suit No.189 of 1988 is maintained only with respect to 0.70 H.R. land bearing Gat No.137 (old Kh. No.96/2). SA 412.2010.odt 16 V. Parties to bear their own costs. (ROHIT W. JOSHI, J.) T αɳɱαყ...