939.WP.13010.21.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.13010 OF 2021

RAJABHAU MANIK DESHMUKH

VERSUS

AVINASH ARUNRAO DESHMUKH AND ANOTHER

...

Advocate for Petitioner : Mr. Sabnis h/f. Mr. V.D. Gunale

...

CORAM

: MANGESH S. PATIL, J.

DATE

: 30.11.2021

PER COURT :

After the suit was reserved for hearing final argument that an

application was moved by the petitioner seeking addition of issues

pertaining to his claim for adverse possession and limitation. By the order

under challenge, the trial court has rejected that application.

2.

The learned advocate for the petitioner referring to the order

XIV Rule 5 of the Civil Procedure Code would strenuously submit that it is

obligatory on the part of the trial court to frame issues if those arise from

pleadings and are necessary for just decision of the Suit, at any stage of

proceeding. Without assigning any reason, just because the matter has been

remanded by the High Court and is awaiting hearing final argument that the

application has been rejected. The order is perverse and arbitrary and be

quashed and set aside.

3.

The Suit was filed way back in the year 2008 seeking possession

of the suit property. The petitioner filed his written statement in the year

2009. He did raise a plea in paragraph No.12 about having become owner

of the suit property by way of adverse possession. However, it appears that

since thereafter the suit proceeded without framing any issue touching this

plea of adverse possession.

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939.WP.13010.21.odt

4.

Admittedly, in the first round, the matter had reached up to this

Court in Second Appeal and it is thereafter that the Suit was remanded and

now has reached the stage of hearing final arguments. It is at that stage that

the petitioner sought to add the issues touching the aspect of adverse

possession and limitation.

5.

Since it is a suit for possession based on title, by virtue of Article

65 of the Limitation Act, 1963 the limitation would begin to run from the

date possession of the defendant becomes adverse. If really the petitioner

was interested in raising such a plea and getting it decided he could have

made a similar request for framing the issues of adverse possession and

limitation way back. He allowed that plea to be waived by his conduct. It is

conspicuous that even after the remand the request for framing this issue

was not promptly made. Even while the Suit was remanded by this Court he

did not seek any such liberty as well.

6.

In view of the above state of affairs, irrespective of the fact that

the order under challenge does not clearly mention various grounds for

rejection of the application, the aforementioned facts and circumstances, in

my considered view are eloquent enough not to interfere in the order under

challenge.

7.

The Writ Petition is dismissed in limine.

(MANGESH S. PATIL, J.)

habeeb

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