The claim of adverse possession requires proving actual, continuous, and exclusive possession, particularly regarding land with structures.

JUDGMENT :

ROHIT W. JOSHI, J.

1. The appellants in the present second appeal are legal representatives of original plaintiff. The plaintiff had filed suit, being Regular Civil Suit No.134 of 1979 for declaration that he had become owner of suit property, being land bearing survey no.208 admeasuring 1.19 HR situated at village Ratnali, Tq. Biloli, Dist. Nanded by way of adverse possession and for injunction restraining the defendants from disturbing his possession over the suit property.

2. It is case of the plaintiff that somewhere around the year 1958 and 1959, he had advanced a loan of Rs.10,000/- to defendant no.3. The plaintiff claimed that defendant nos.2 and 3 were partners and loan was obtained by defendant no.3 for both the partners. The plaintiff claimed that the loan was to be repaid within period of six months and because the loan was not so repaid, he entered the property forcibly on 01.04.1960 and started cultivating the same. The plaintiff thus claimed to be holding possession of the suit property adverse to the interest of the real owner from 01.05.1960 and contended that he had become owner by adverse possession w.e.f. 02.05.1972. According to the plaintiff, defendant no.2 was the owner of the suit property. It will be pertinent to state that defendant no.2 could not be served in the civil suit and suit came to be dismissed against defendant no.2 on that count.

3. The learned Trial Court framed issues in the matter and on recording evidence was pleased to dismiss the suit on 05.01.1985. The learned Trial Court has held that the plaintiff had failed to prove his case of adverse possession, however, the learned Trial Court has recorded findings with respect to possession over some portion of the suit property in favour of the plaintiff. In this regard, it will be pertinent to mention that there are constructed buildings, houses and huts standing on the suit property. The suit property has a barbed wire fencing with a gate. The learned Trial Court has held that the plaintiff had failed to prove possession over the constructed portion of the suit property, but was in possession of the open land in the suit property. It will be pertinent to mention that the Trial Court had appointed Commissioner for inspection of the suit property. The Commissioner report is at Exhibit-49. Perusal of the Commissioner report indicates that huts and houses were existing on the suit property. Some huts were constructed alone side Ratnali- Dharmabad road and some huts were construed alone eastern side portion. The main buildings appear to be centrally located.

4. Aggrieved by the said judgment and decree dismissing the suit, the legal representatives of deceased plaintiff preferred an appeal, being Regular Civil Appeal No.105/1985, which came to be renumbered as Regular Civil Appeal No.5/1993. The appeal came to be dismissed vide judgment and decree dated 21.07.1995 passed by the learned Additional District Judge, Biloli. The learned First Appellate Court has held that the suit was rightly dismissed with respect to the declaration of ownership by adverse possession since according to the plaintiff, defendant no.2 was owner of the suit property and suit was dismissed against defendant no.2 on account of failure to effect service on him and as such, the relief of declaration could not be granted in the absence of defendant no.2. As regards physical possession also, the learned First Appellate Court has held that the plaintiff had failed to prove physical possession over part of the suit property i.e. portion of open land in the suit property.

5. Aggrieved by the said concurrent decrees, the present Se