42. SA 359 of 2023.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR SECOND APPEAL NO.359/2023 Sharad Motiram Kankale ...Versus… Prashant Atmaramji Kankale and others - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --- - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders or directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ----- ------------ - Mr. V.A. Kothale, Advocate for appellant Mr. Y.P. Kaslikar, Advocate for respondent No.1 CORAM : ROHIT W. JOSHI, J. DATE : 18/03/2026 1. Second Appeal challenges the judgment and decree dated 21/03/2023, passed by the Ad hoc District Judge-2, Achalpur in Regular Civil Appeal No.8/2014, whereby the learned first Appellate Court has allowed the appeal and modified the judgment and decree dated 18/11/2013, passed by the learned Civil Judge, Senior Division, Daryapur in Regular Civil Suit No.46/2010. 2. The present appeal is preferred by the original defendant in Regular Civil Suit No.46/2010. The suit is filed by son and other legal heirs of late Atmaram Kankale, who expired in the year 2002. The suit is filed for declaration and possession. 3. It is the case of the plaintiffs that Atmaram was owner of suit property and they have inherited the same from him after his demise. As against this, the case of defendant is that in the year 1975, Atmaram has transferred this property to him by way of oral gift. 2026:BHC-NAG:4635 42. SA 359 of 2023.odt 2 4. The learned Trial Court has discarded the case of oral gift set up by the defendant and has passed a decree for possession. However, the claim of plaintiffs for enquiry into mesne profits, was rejected. Therefore, the plaintiffs and defendant both preferred separate appeals, challenging the same judgment and decree, passed by the learned Trial Court. The appeal preferred by the present appellant being Regular Civil Appeal No.117/2013 came to be dismissed and Regular Civil Appeal No.8/2014, preferred by the plaintiffs came to be allowed. The learned first Appellate Court has confirmed the decree for possession passed in favour of the plaintiffs and has also allowed the appeal preferred by the original plaintiffs, directing enquiry into mesne profits from the date of institution of suit till deliver of possession. The present Second Appeal is preferred challenging the aforesaid decree. 5. The case of the defendant with respect to oral gift, even if, accepted to be correct as a matter of fact, it goes without saying that oral gift is not legally permissible and therefore, does not result in transfer of property from deceased Atmaram to the defendant. Admittedly, the plaintiffs are descendants of deceased Atmaram and are entitled to his property after his demise. As regards contention that gift should be interpreted to mean a family settlement, the same also cannot be accepted since there are no pleadings or evidence with respect to nature of alleged family settlement. It is not the case of the defendant that some other properties were given to other family members in the alleged settlement. 6. The decree for possession, passed by the learned Courts concurrently, therefore, cannot be faulted with. 42. SA 359 of 2023.odt 3 7. As regards mesne profit, the contention of learned Advocate for the appellant is that since the defendant is found to be in permissive position, the possession cannot be said to be illegal and consequently, decree for enquiry into mesne profits is liable to be quashed. This contention can be accepted only with respect to mesne profits prior to the date of institution of suit. Since the defendant was in permissive occupation of the suit property, his possession cannot be termed to be unlawful. However, even in such case, mesne profits cannot be denied for period subsequent to filing of suit. The learned first Appellate Court has not directed enquiry into past mesne profits, but has restricted the same from the date of institution of suit till the delivery of possession. 8. No substantial question of law arises for consideration in the Second Appeal. Second Appeal is, therefore, dismissed with no order as to costs. (ROHIT W. JOSHI, J.) Wadkar