The main legal point established in the judgment is that convincing evidence is required to establish settled possession through adverse possession, and mere inferential circumstances are not sufficient to prove adverse possession.

JUDGMENT :

SANDEEP K. SHINDE, J.

1. Heard.

Aggrieved by order dated 4th December, 2020 passed below Exhibit – 5 in Special Civil Suit No. 954 / 2020 by the Court of Joint Civil Judge, Senior Division, Pune, Defendants have preferred this appeal under order 43 Rule 1 of the Code of Civil Procedure, 1978.

2. Plaintiffs are seeking, declaration that they have perfected their title over the suit property described in paragraph no. 1.3 i.e. land bearing survey no. 579 / 2, ad-measuring 799.60 sq. mtrs., more particularly described in paragraph no. 1.3 of the plaint, by way of adverse possession. Another relief sought, is to perpetually injuct defendants from entering over the property described in paragraph nos. 1.2 and 1.3 of the plaint or any part thereof and or interfering with plaintiffs’ possession over it by themselves or their agents or any persons claiming through the defendants.

3. Pending suit, plaintiffs filed an application for temporary injunction. Trial Court vide order dated 4th December, 2020 restrained the defendants from entering over the suit property described in paragraph nos. 1.2 and 1.3 of the plaint or interfering with plaintiffs’ possession over it, till disposal of the suit.

4. Plaintiffs’ assertions:

Plaintiffs have described suit property in paragraph nos. 1.1, 1.2 and 1.3 of the plaint. The property described in paragraph no.1.1, is a land bearing survey no. 579, Hissa no. 1. It was owned by Ms. Gool Nariman Damri and others. Plaintiffs’ grand-father, Girdharilal Sharma was interested in developing of this property. Accordingly on 1st September, 1988, development agreement was executed by Ms. Gool Nariman Damri and others in favour of M/s Sharma Builders, a partnership firm, in which Girdharilal Sharma was a partner. The possession of this property (described in paragraph no. 1.1) was handed over to partners of M/s Sharma Builders. It is plaintiffs’ case that at the same time, partners of M/s Sharma Builders also took possession of the adjoining property ad-measuring 799.60 sq. mtrs., a part of survey no. 579, Hissa no. 2, described in paragraph no. 1.3 of the plaint.

5. Plaintiffs would assert that in the year 1990, partners of M/s Sharma Builders, Girdharilal Sharma, out of his funds constructed a massive compound wall and encompassed, covered, not only the property handed in terms of development agreement dated 1st September, 1988 (i.e. described in para 1.1), but also land ad-measuring 799.60 sq. mtrs. from survey no. 579, hissa 2. Plaintiffs, would therefore, claim property described in paragraph no. 1.3 (survey no. 799.60 sq. mtrs.) was in the exclusive possession of M/s Sharma Builders, openly and publicly, adverse to its original owners without any obstruction, since 1988.

6. Plaintiffs would further assert, Ms. Gool Nariman Damri executed a lease deed on 27th December, 1996 in favour of Motilal Girdharilal Sharma and others with the consent of partners of M/s Sharma Builders and granted perpetual lease of the entire property described in paragraph no. 1.1 i.e. land survey no. 579, hissa 1-B, Plaintiffs would claim Motilal Sharma, not only took possession of land described in lease deed but also land described in paragraph no. 1.3 (799.60 sq. mtrs, survey no. 579, Hissa 2).

7. That on 22nd August, 1997, lessees under the deed of lease dated 27th December, 1996 executed a development agreement in favour of plaintiffs in respect of land described in paragraph no. 1.1 and handed over possession to the property to them. In paragraph no. 9 of the plaint, plaintiffs would assert that at the time of execution of development agreement dated 22nd August, 1997, plaintiffs also took possession of property described in paragraph no. 1.3.

8. It is plaintiffs’ case that on 24th April, 2006, Ms. Gool Nariman Damri and lessees under the lease deed dated 27th December, 1996 executed an Irrevocable Power of Attorney in favour of the plaintiffs in respect of suit property described in paragraph 1.1.

9. In January, 2009, porti