2025:BHC-AUG:13651 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 320 OF 1995 Motiram Bajirao Patil, age 59 years, Occ. Agriulture, R/o Asankheda, Tq. Pachora, District Jalgaon.

Died through L.Rs.

Dattatraya Motiram Patil, age 37 years, Occ. Service, R/o Asankheda (Bk), Tq Pachora, District Jalgaon. Appellant.

Orig. plaintiff.

VERSUS

1. The State of Maharashtra, Through Government Pleader, High Court, Aurangabad.

2. Group Grampanchayat Asankheda, Khurd and Budruk, Tq. Pachora, District Jalgaon. Respondents.

Orig. defendants.

...

Advocate for Appellant : Mr. S B. Deshpande Senior Counsel a/w Mr. P. A. Deshpande I/b Mr. S.P. Tiwari AGP for Respondent no.1 : Mr. V S Badakh Advocate for Respondent no.2 : Mr. S. V. Dixit CORAM : S. G. CHAPALGAONKAR, J.

Reserved on : April 25, 2025 Pronounced on : May 05, 2025.

JUDGMENT :-

1. The appellant/original plaintiff impugns the judgment and decree dated 31.7.1995 passed by the learned District Judge, Jalgaon, in Regular Civil Appeal no.289 of 1989 thereby upholding the judgment and decree dated 30.9.1989 passed by the learned Civil Judge S.D., Jalgaon, in R.C.S.No.619 of 1985 thereby dismissing suit of the plaintiff seeking the relief of declaration of ownership and perpetual injunction claimed against defendant no.1/State of Maharashtra. (Parties hereinafter are referred to as per their original status).

2. Appellant/plaintiff instituted suit claiming the relief of declaration of ownership and perpetual injunction in respect of the suit plot which is part and parcel of gat no.147 of village Asankhede, more particularly, described in the plaint. According to plaintiff, suit plot was possessed by his forefathers since 150 to 200 years. Plaintiff continued in possession and enjoyment of the suit property as owner. Plaintiff has installed a flour-mill and constructed cattle-shed as well as water pond. Defendant no.2 village Panchayat mutated name of plaintiff’s father in Panchatyat record under Resolution No.46 dated 22.12.1964. Since then, defendant no.2 is receiving tax. Plaintiff asserts that he has no documentary evidence to show his ownership, but his long standing and continuous possession would rest title upon him by prescription. Hence, in the alternate, he claims ownership by way of adverse possession. According to plaintiff, on false complaint made by a villager, S.D.O. Chalisgaon made an inquiry. Eventually, Tahsildar, Pachora ordered plaintiff to vacate the suit plot. Hence, plaintiff required to approach Court seeking relief, as claimed.

3. Defendant no.1 refuted plaintiff’s claim, either as to his own title or acquisition of same by adverse possession. It is pleaded that suit plot is meant for public use. Plaintiff encroached on area of suit plot causing nuisance to public. The Government requires land for implementation of various schemes. Resolution of the village Panchayat is inconsistent to Section 53 and 56 of the village Panchayat Act.

The Trial Court framed issues based on pleadings of the parties and finally dismissed the suit. In appeal filed by the plaintiff before the District Judge, Jalgaon, the decree as passed by the Trial Court is confirmed.

4. Aggrieved plaintiff filed present Second Appeal, which has been admitted by this Court vide order dated 4.3.1997 on ground nos.3,5,6,7,9,11 and 17, being substantial questions of law, which reads thus :-

i. The courts below have failed to exercise jurisdiction vested in them, in not considering the fact that long possession under section 110 of the Evidence Act is proof of title.

ii. Whether the findings of the Courts below that the appellant has not pleaded the adverse possession properly in the plaint is legally correct.

iii. The Courts below have failed to consider that the appellant himself claims ownership over the suit property for more than 200 years continuously and without interruption to the knowledge.

iv. The Courts below have wrongfully held that the appellant is not entitled to raise alternative p