Dharmadhikari B.P., J.
1. By this appeal the original plaintiff (through his legal heirs now) has challenged the concurrent judgments delivered by the courts below dismissing his suit for partition and separate possession. Deceased plaintiff - Laxman filed Civil Suit No. 1136/1994 contending that Khasara No. 3 and Khasara No. 19 of Mouza Dongargaon (Khairi), Tahsil and District Nagpur, initially belonged to one Barkya Vithu Teli and in course of inheritance devolved upon grandfather Pandurang and thereafter his father Jagobaji and his father's brother Barba. After Barba and Jagoba died property vested in three sons of Barba who were joined as defendants and deceased plaintiff Laxman. Though, initially the suit was also filed for partitioning Khasara No. 3, later claim in relation to Khasara No. 19 was given up and suit was pressed only in relation to Khasara No. 3. Laxman claimed half share in Khasara No. 19. The suit was opposed by the defendants, who denied the genealogical tree as incorrect and also contended that the property never vested in Barkya. They contended that, their father Barba got the property because of one Gift Deed dated 8.8.1938, executed by Warlaya s/o Vithu Teli in favour of Barba. They also contended that the suit as filed was barred by limitation. They also denied that Barkya was great grand father of plaintiff Laxman. In this background the trial Court framed various issues and found that the defendants established that their father Barba became absolute owner of the suit land by virtue of registered gift deed dated 8.8.1938 [Exh. 83], and they also established that they were in exclusive possession of the suit property. It further found that the suit was bad for non joinder of necessary party and also suit was not within limitation. In the course of discussion it also found that, the plaintiff Laxman failed to prove that Barkya Vithu Teli was his great grand father. This judgment and decree dated 27.8.1998 delivered in Regular Civil Suit No. 1136/1994 by 3rd Joint Civil Judge, Junior Division, Nagpur was then questioned by the plaintiff Laxman in Regular Civil Appeal No. 625/1998. The said appeal was decided by the 3rd Additional District Judge, Nagpur on 10.9.2001 who while dismissing the appeal, found that the Khasara No. 19 was self-acquired property of deceased Barba and suit was not within limitation. The present second appeal challenging these concurrent judgments and decrees has been admitted by this Court on 7.3.2005 and following three questions have been framed as substantial questions of law at that time.
(i) Whether presumption under Section 90 of the Indian Evidence Act could have been drawn without production of original gift deed dated 8.8.1938?
(ii) Whether secondary evidence was admissible without proving the loss of original gift deed? (iii) Whether the suit for partition was barred by limitation by drawing presumption of exclusion either from the year 1941-42 or from the year 1976?
2. In this background, I have heard Shri. R.L. Khapre with Shri S.P. Bhandarkar, Advocates for appellant/plaintiff, Advocate Shri Vaidya, for respondent No. 1, Advocate Shri S.D. Sirpurkar, for respondent No. 3 and Advocate Shri A.M. Kulkarni, for subsequent purchaser i.e. respondent No. 4. It is to be noted that after second appeal was filed, plaintiff Laxman expired and his legal heirs have been brought on record on 3.3.2008 and 21.8.2008. Two legal heirs of Laxman are shown as respondent Nos. 5 and 6. Respondent No. 1 and respondent No. 3 are the original defendants in civil suit. Respondent No. 2 was also one of the defendant, and he expired during the pendency of the appeal and his name has been deleted on 7.4.2006.
3. Family Tree on which Laxman had placed reliance is as under:
Barkya Vithu Teli|Son Pandurang Barkya Teli|Sons-----------------------------------| | |Narayan Barba JagobajiPandurang Pandurang Pandurang (Died) (Died) (Died)| | |Son | LaxmanChindu | (Plff)(Died) |-----------------------------------| | |Bhagvvan Maroti Rama(deft) (deft) (deft)
As per this family tree the original holder of Khasara No. 19 Barkya had a son by name Pandurang. Pandurang had three sons namely Narayan, Barba and Jagobaji. Narayan and his son Shined expired, and property therefore devolved only upon the remaining two sons of Pandurang, namely Barba and Jagobaji. Barba left behind three sons who are defendants in Civil Suit, while Jagobaji left plaintiff Laxman as his son. Thus, if family tree is accepted, Laxman as also three defendants are great grand sons of Barkya.
4. Inviting attention to this position, Advocate Shri Khapre has contended that vesting of Khasara No. 19 in Barkya has been established by proving old revenue record i.e. Exh. 55. He points out that the said record is of the year 1911-1912 and in it name of Barkya has been mentioned as person in actual cultivation of field Khasara No. 3. He states that the title document relied upon by the defendants is gift deed at Exh. 83, executed by one Warlaya Vithu Teli on 8.8.1938, but then there is no document filed on record by the defendants to explain how the land Khasara No. 3 came to Warlaya. He invites attention to the provisions of Section 3, dealing with classes of tenants, Section 66 dealing with rights of occupancy tenants, Section 67 and Section 69 dealing with ejectment of such tenant and grounds available for their ejection under C.P. Tenancy Act, 1898, while driving home the importance of Exh. 55. He states that the said document clearly shows that one Adku Rangari was Malgujar and Barkya was his tenant in relation to the land Khasara No. 3. After the provisions of Madhya Pradesh Abolition of Proprietory Rights Act, came into force Barkya became the tenant and owner under the relevant Tenancy Act. Therefore, according to him field Khasara No. 3 vested absolutely in Barkya and after Barkya, because of inheritance the said property devolved upon Pandurang and after Pandurang upon his two sons Barba and Jagobaji equally. He states that as title of Warlu has not been established, reliance upon the gift deed Exh. 83 by both the courts in present facts is misconceived. He further states that in view of this position, 'sanad' if any, issued in favour of Barba by the State Government cannot be viewed as a document of title and he places reliance upon the judgment reported in the case of (Narbheramji Gyaniramji Ramsnehi v. Vivekaramji Bhagantramji Ramsnehi) : A.I.R. 1939 Bombay 425, in support of his contention. He further argues that the courts below have overlooked this position and thereby has ignored the fact that Laxman was one of the co-owners and a co-sharer with the defendants and unless and until his ouster as such was established by satisfactory evidence, the suit for partition as filed by Laxman could not have been dismissed as time barred. He states that document at Exh. 77 relied upon for that purpose is an order under Section 145 Cri.P.C. And Laxman was not party to those proceedings. He further states that Khasara No. 3 was not the property forming subject-matter of Exh. 77. He argues that the provisions of Article 65 of the Limitation Act [old Article 110], have not been properly construed by the courts below. He places reliance upon the judgment in the case of (M. Durai v. Muthu and Ors.) 2007 All. S.C.R. 2816 to point out how the aspect or burden of proof in the matter is required to be dealt with. Attention is also invited to the judgment in the case of (Govindammal v. R. Perumal Chettiar) : A.I.R. 2007 S.C. 204 to point out how Article 65 is to be applied when matter pertains to co-sharer. 1977 B.C.I. (soft) 15 : 1977 Mh.L.J. 130 (Yesu Sadhu Nimagre and Ors. v. Kundalika Bnabaji Nimgare and Anr.), is also relied upon to contend that, when the title of plaintiff Laxman was itself not recognized by defendants, there was no question of defendants claiming any adverse possession against the appellant Laxman.
2007 DGLS (soft) 191 : 2007 All. S.C.R 2009 (Krishnamurthy S. Seltur v. O.V. Narasimha Shetty), is also pressed into service to show that adverse possession or ouster is an inference to be drawn from the facts proved and it is a mixed question of law and fact. Lastly it is contended that the provisions of Section 90 of the Evidence Act have not been correctly used in present circumstances and presumption flowing therefrom is not applicable to Exh. 83, which is only a certified copy. It is stated that the Gift deed allegedly executed by Warlaya in favour of Barba has not come on record and no evidence was led as required by Section 65 of the Evidence Act for proving certified copy of the said gift deed. In absence of foundation therefor, the courts below could not have looked into Exh. 83, which is only a secondary evidence. He further states that the truth of contents of Exh. 83 has not been established independently and the moment Section 90 of the Evidence Act is held to be not applicable, the suit as filed deserves to be decreed.
5. In reply argument, Advocate Shri Vaidya for respondent No. 1 has contended that none of the three questions above can be labelled as substantial questions of law. He points out that findings of trial Court that Barkya is not proved to be great grand father of Laxman has not been assailed and has become final, and therefore, the suit as filed needs to be dismissed. Inviting attention to various observations by the trial Court as also by the lower Appellate Court, he contends that the continuous and longstanding possession of defendants on Khasara No. 3 has been established. It has also been brought on record, that after death of Barba, the property was mutated in the name of three defendants as owners and though this mutation was within the knowledge of plaintiff and his father Jagobaji, no challenge thereto was raised. He further states that after death of Barba in 1976, Khasara No. 3 was partitioned between three defendants and said partition was also not challenged by the deceased Laxman. He states that in view of this material which is available on record, suit has been rightly held to be banrred by limitation.
6. He further points out that during the pendency of second appeal one of the defend ant i.e. Maroti [respondent No. 2 in second appeal] was deleted and therefore, second appeal prosecuted only against the remaining two defendants is not maintainable.
7. It is further argued that the Gift Deed dated 8.8.1938 has been proved in accordance with law and no objection was raised by the appellant at any point of time before the trial Court as to the mode and manner of its proving or then about its exhibition. Me relies upon the unreported judgment dated 18.1.2008 delivered by the learned Single Judge of this Court in Writ Petition No. 6330/2006 (Narayan Laxmanrao Uddhalwar v. Smt. Nirmala Devidas Patil), to contend that certified copy of gift deed is admissible to prove its contents. Evidence of D.W. 2. Priyanka and judgment of Hon'ble Apex Court in the matter of (Smt. Dayamathi Bai v. K.M. Shafffi) 2004 DGLS (soft) 454 : 2005(2) Civil L.J. 214, is pointed out to show that when no objection is raised at proper stage, the contention regarding sufficiency of the evidence in relation to such document or then about the mode and manner in which it has been exhibited cannot be allowed to be raised in second appeal. He further states that the judgment of Hon'ble Apex Court in the case of (Sahabdar Khan and Anr. v. Sadaloo Khan and Ors.) : (2001) 10 S.C.C. 464, clearly shows that the courts below were right in recording a presumption in favour of defendants, because of long standing revenue entries in their names. He states that the certified copy of the gift deed has been rightly accepted on record by the courts below and has also been rightly acted upon. He invites attention to even cross-examination of original plaintiff Laxman to substantiate his contention. The other respective Advocates appearing for respective respondents have adopted the arguments of Advocate Shri Vaidya.
8. Advocate Shri Khapre, in reply arguments has attempted to distinguish the judgment of Hon'ble Apex Court and also the judgment of learned Single Judge of this Court relied upon by Advocate Shri Vaidya. He points out that the plaintiff Laxman has denied gift deed at Exh. 83 and also invites attention to the evidence of D.W. 1. Rama (defendant No. 3) to show that he did not prove Exh. 83. Attention is invited to cross-examination of P.W. 2- Priyanka to urge that said witness has not seen the original gift deed, and original has not been brought on record. The judgment of Hon'ble Calcutta High Court in the case of (Harihar Pal and Ors. v. Sudhir Kumar Pal and Ors.) : A.I.R. 1988 Cal. 68 is pressed into service to show that proof of loss of original in such circumstances was essential.
2005(9) S.C.C. 359 (Gangamma and Ors. v. Shivlingaiah), is relied upon to urge that Section 90 of the Evidence Act does not dispense with the requirement of proving the truth of contents. It is argued that as truth of contents of Exh. 83 is not established, gift has not been proved and hence plaintiff as also defendants are entitled to succeed to the property of Barkya i.e. Khasara No. 3 and suit for partition therefore ought to have been decreed. Lastly it is urged that as plaintiff Laxman was being accepted and treated as owner and he was being paid his share from the yield of Khasara No. 3, plaintiff had no occasion to challenge the mutation entries in favour of defendants. It is further argued that when defendants sold part of the property in the year 1991, the 1976 partition between the defendants came to the notice of the plaintiff and thereafter suit was filed and hence suit is within limitation. It is also contended that the plaintiff has specifically deposed that he was being given his share by the defendants till he fell ill and this has not been traversed either in cross-examination or than by leading evidence to the contrary by the defendants. The findings reached by the lower Appellate Court in paragraph No. 9 of its judgment that, the relationship was not seriously in dispute is pressed into service to show that the relationship of plaintiff with Barkya has been established on record. He also invites attention to the findings recorded by the said Court that, Barkya and Warlu appear to be names of same person. He states that the finding is not correct and defendants never approached the trial Court with such case. He points out that the suggestion about Warlya and Barkya being same person was given, but it was denied by Laxman. The reliance by the appellant/plaintiff on provisions of C.P. Tenancy Act, 1898 is only for the purpose of showing that the land Khasara No. 3 came to Barkya Vithu Teli from Malgujar in view of Exh. 55 and after abolition of proprietary rights, the property vested in Barkya. The defendants have relied upon the registered document Exh. 83 to show that the owner of field Khasara No. 3 executed a gift deed on 8.8.1938 in favour of Barba and thus Barba became owner of field Khasara No. 3. After death of Barba the three defendants being his sons became owners.
9. Perusal of gift deed dated 8.8.1938 which has been marked as Exh. 83 shows that Warlaya s/o Vithu Teli has executed it in favour of Barba s/o Pandurang Teli. The document mentions that Barba was son of cousin of Warlaya and therefore, the gift was being executed in his favour. The gift deed mentions that at the relevant time Warlaya was about 60 years of age and was unable to look after himself. He was being provided for and taken care of by Barba and in view of this, and out of love and affection the gift was executed. The gift deed also mentions that, if any differences arose between the parties and Warlaya got excluded, he had right to recover maintenance from Barba and a charge to that extent was created on gifted property. The certified copy mentions names of one petition writer as Scribe and there are two witnesses to it. It also has got the thumb impression of Warlaya. Sub-Registrar of documents at Nagpur has mentioned on this document that it was presented at 12.50 p.m. On 8.8.1938 in his office by Barba s/o Pandurang Teli of Bori. The endorsement further shows that execution of gift deed was admitted by Warlaya s/o Vithu Teli of Bori. Thereafter names of two witnesses along with their occupation are mentioned. The first two substantial questions framed by this Court are in relation to this document.
10. The document is produced by defendants and in chief defendant No. 3 has stated about it and it has been marked as Article 'A'. In cross-examination it has been brought on record that he had not seen Warlu Teli and he had also not seen any Government document mentioning Warlu Teli as owner of this land prior to 1938. He has stated that he was not aware whether this land was recorded as belonging to Barku Vithu Teli. He also could not say whether Vithu had any son by name Warlu. He has denied that his father was not cultivating the suit field since 1938 or then Laxman was cultivating it. He denied that 1976 partition between three defendants was incorrect. D.W. 2. Sou. Priyanka Panth is the other witness examined to prove this document. The witness was shown Article 'A' and she has stated that said certified copy was delivered by the office of the Sub-Registrar in which she was working. She further stated that gift deed was entered in register in their office and she produced that register. She also mentions that, it has been registered at Book No. 1 Volume No. 7 Page Nos. 180 to 200 on 8.8.1938. She has further stated that if, any body demands certified copy or index copy, their office supplies copy and she also identified the certified copy with seal and signature of the Registrar. She further stated that the original gift deed was not available in their office and the noting from the Gift Deed as made in record was available. She further stated in cross-examination that she was working since last four years in the office of the Sub-Registrar, Nagpur. She further stated that she had no personal knowledge about the document from which entry in register was taken. This Gift Deed Article 'A' was shown to Laxman and he stated that the person executing it was not his grand-father. This is the only evidence which has been brought on record in relation to the Gift Deed Exh. 83.
11. In Smt. Dayamathi Bai v. K.M. Shaffi (supra), the Hon'ble Apex Court has held that when no objection was raised about inadmissibility of certified copy of the sale-deed by defendants and certified copy was marked as exhibit and proved and admitted in evidence, no objection in relation to it can be taken by the defendants at the stage of appeal. It was also found that the gift deed was also filed by the plaintiff and no objection was raised about its execution by the defendant. It was accordingly exhibited and proved at the stage of appeal, objection recording its execution or proof was not allowed to be taken. From this judgment, it is apparent that the Hon'ble Apex Court has held that when the objection to be taken is not that the document is not itself inadmissible but that the mode of proof was irregular, such objection should be taken at the trial before the document is marked as exhibit and admitted to the record. When a party gives in evidence a certified copy without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection cannot be allowed at later stage. Consideration in paragraph No. 15 shows that the Hon'ble Apex Court found that had such objection been taken at trial stage, the plaintiff could have met it, by calling for original sale-deed which was on record in collateral proceedings.
12. Unreported judgment of learned Single Judge (supra), has been relied upon to show that certified copy of gift deed which is registered under the Registration Act, is public document and as such is covered under Clause (e) of Section 65 and therefore, secondary evidence can be given of its existence or contents. There the learned Single Judge of this Court has in paragraph No. 14 found that the certified copy of the sale-deed is public document. Though effort has been made by Advocate Shri Khapre, to show that certified copy of the sale-deed is not a public document, I do not find it necessary to go into that controversy in the present matter.
13. In : A.I.R. 1988 Cal. 68 Harihar Pal v. Sudhir Kumar Pal, the Hon'ble Division Bench of the Calcutta High Court has held that the statutory presumption under Section 90 is not applicable to certified copies of documents which is 30 years old and certified copy can be read as secondary evidence of the original document under Section 65[e], when it transpires from it in evidence that original is lost and not traceable. Here there is absolutely no evidence adduced by the defendant to point out where the original gift deed has gone. But then in view of Smt. Dayamathi Bai v. K.M. Shaffi (supra), reliance upon said authority is misconceived. Certified copy [Exh. 83] has been produced on record and it has been marked as exhibit in the circumstances already stated above. The lower Appellate Court has in paragraph No. 15 of its judgment, held that the value of Exh. 83 cannot be brushed aside simply on the ground that its contents were not proved by the defendant.
14. The Division Bench of Hon'ble Madhya Pradesh High Court has in the case of (Smt. Rekha Rana and Ors. v. Smt. Ratnashree Jain) : A.I.R. 2006 M.P. 107, considered two questions which were referred to it. The first question was, whether certified copy of registered sale-deed obtained from the office of the Sub-Registrar is public document; and the second question was, whether the aforesaid document may be received in evidence, as public document without any proof of document by primary evidence as required under Section 64 of the Evidence Act. In paragraph No. 15, the Hon'ble Division Bench has concluded that a certified copy of the registered instrument issued by the Registering Officer by copying from Book-I is a certified copy of public document. It can therefore be produced in the proof of contents of public document or part of public document of which it purports to be copy. It can be produced as secondary evidence as public document i.e. entries in Book -I under Section 65[e] read with Section 77 of the Evidence Act, and nothing more. The Hon'ble Division Bench held that no foundation need to be laid for production of certified copy of secondary evidence under Section 65[e] or 65[f]. It has been clarified that such certified copy will only prove the contents of the original document and not be the proof of execution of original document. It has been held to be so, because registration of a document is proof that some one purporting to be the executant, admitted execution but is not proof of identity of that executor. In paragraph No. 17 the said Division Bench further found that certified copy of the sale-deed issued by the Registering Officer under the Registration Act, can be produced and acted as secondary evidence of a public document [entries in book-I], maintained under Section 51 of the Registration Act. In view of the certificates copied thereon and certificate put while issuing it, the certified copy proves that the document has been presented before the Registration Officer for Registration, that execution has been admitted by the person who claimed to be its executant and that the document was thereafter registered in the Register and entered in Book-I. It has been clarified that production of such certified copy of a public document under Section 65[e] or production of certified copy under Section 65[f], is completely different from production of a certified copy as secondary evidence of a private document. Thus the Hon'ble Madhya Pradesh High Court has held that the original sale-deed by itself is not a public document, however, as already mentioned above, it is not necessary for this Court to go into the said controversy here. The evidence of D.W. 2-Priyanka, discussed above clearly shows that the certified copy Exh. 83 issued by the office of the Sub-Registrar was on the basis of the entries in Book-I, as mentioned above by the Madhya Pradesh High Court. The said certified copy therefore, can be accepted as certified copy of a public document.
15. In : 2008(6) Bom.C.R. (F.B.)519(O.S.) : 2008(6) Mh.L.J. 886 (Hemendra Rasiklal Ghia v. Subodh Mody), the Full Bench of this Court has in paragraph No. 71, considered the nature of objections about documentary evidence vis-a-vis adjudication thereof. The objections to admissibility of a document in evidence have been divided into three classes i.e. [1] The objection to the document is on the ground that it is insufficiently stamped i.e. objection relates to deficiency of stamp duty; [2] Where the objection does not dispute admissibility of document in evidence, but is directed towards the mode of proof alleging the same to be irregular or insufficient; and [3] the objection that document which is sought to be proved is ab initio inadmissible in evidence. The arguments raised before this Court by Advocate Shri Khapre, show that the objection falling in first or third type, are not in issue here. Therefore, the question to be considered is whether the objection was regarding the mode of proof alleging the same to be irregular or insufficient. It is an admitted position, that absolutely no objection has been raised when the document was marked as Exhibit during evidence of D.W. 2 and no such objection was raised during arguments before the trial Court. In paragraph No. 74, the Hon'ble Full Bench has found law in relation to such situation, as under:
(74) In the second category of the case, the objection should be taken when the evidence is tendered. Once the document has been admitted in evidence and marked as an exhibit, the objection that it should not be admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. This proposition is rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would enable the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object become fatal because of his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons; firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility there and then; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence.
16. Thus, the Full Bench has followed the law as laid down by the Hon'ble Apex Court in case of Smt. Dayamathi Bai v. KM. Shaffi (supra). Failure to raise timely objection amounts to waiver of necessity of formal proof of document. The document itself becomes admissible in evidence. It is not the contention of the present appellant/plaintiff that certified copy [Exh. 83], is not admissible in evidence. Thus from perusal of the judgments mentioned above, it is clear that a certified copy of a public document i.e. Book-I maintained by the office of the Sub-Registrar was produced and accepted in evidence and contents of Book-I have also been established. The said certified copy therefore clearly shows that the document styled as gift deed was tendered for registration by Barba and Warlu, and Warlu accepted its execution. The endorsement by the office of the Sub-Registrar in due course of its business on the said document, as is apparent from the various certificates recorded thereupon, also show that the two witnesses present at the time of execution of the said document attested it.
17. The judgment in the case of Gangamma and Ors. v. Shivalingaiah (supra), mentions that Section 90 raises a presumption that signature and every other part of such document which purports to be in handwriting of a particular person, is in that persons handwriting and in case of a document executed or attested, the same was executed and attested by the person by whom it purports to be executed and attested. The Hon'ble Apex Court has further held that the said section no where provides that the authenticity of the recitals contained in any document is thereby established. The High Court there had framed a question about authenticity of those recitals as substantial question of law and the Hon'ble Apex Court held that the said question was framed erroneously. As already mentioned above, the lower Appellate Court has found that the truth of the contents of Exh. 83 has not been established in the present case. Thus, here it cannot be said that the certified copy of the gift deed [Exh. 83] was erroneously accepted into evidence by the trial Court. Question No. 2 therefore needs to be answered accordingly. The conclusion arrived at by the lower Appellate Court shows that, it has not drawn any presumption under Section 90 of the Evidence Act, in so far as the contents of said Exh. 83 are concerned. But the other evidence sufficiently establishes that the gift deed was accepted and implemented. No objection to corresponding mutations was raised by the father of plaintiff who was alive till 1965 or then by plaintiff also.
18. The lower Appellate Court as also the trial Court has considered the oral and documentary evidence which has come on record, and found that the plaintiff has failed to adduce any evidence about existence of joint Hindu family and also about the genesis of acquisition of the property. The Lower Appellate Court has concluded that right from the year 1941-42 i.e. after two years of the execution of the gift deed Khasara No. 3 stood in the name of Barba and after his demise in the name of defendants. The crop statement of the properties Exh. 74, record of right for the year 1954- Exh. 75, certified copy of extract of Khasara- Exh. 76 disclosed name of defendants as owner and also as cultivators. The plaintiff did not file any document except that of Bandobast Khasara Exh. 55, Exh. 56 death certificate of Barlu Teli, Exh. 57 Legal heir certificate issued by the Sarpanch, Exh. 58 indicating names of legal heirs of deceased Pandurang. Bandobast Khasara Exh. 55 is of the year 1911-12 and is already commented above. Bandobast Khasara is mentioning name of Barkya Vithu Teli. Exh. 56 is the death certificate which shows that Barlu Vithu Teli expired on 17.08.1940. This certificate is filed by the plaintiff to show that it was death certificate of his great grandfather Barkya. It is to be noted that Gift deed Exh. 83, is executed by a person who is name as Warlya s/o Vithu Teli. On 8.8.1938 itself one Bainabai, who is stated to be sister of Barkya has executed a gift deed of another land i.e. Khasara No. 19 in favour of Barba and plaintiff did not press his claim in relation to said Khasara No. 19, though suit as filed contained that prayer. The lower Appellate Court has considered Section 145 Cri.P.C. Proceedings and certified copy of the order of Sub-Divisional Magistrate in Criminal Case No. 15/1947. But then that document is in relation to Khasara No. 19 which devolved upon Barba through gift deed executed by Bainabai. While defending those proceedings, the person contesting it, took a stand that said property was bequeathed to him by Bainabai by Will. Name of the said person is Laxman s/o Ramchandra Mohtya and along with him there are three others whose names are not appearing on Exh. 77. It therefore, appears that present plaintiff was not party to said proceedings.
19. Evidence of plaintiff Laxman shows that after death of Pandurang, Laxman and defendant No. 1 Bhagwan were cultivating the suit field for 10-15 years and thereafter plaintiff fell ill. After that Bhagwan was cultivating the suit field. He mentioned that the yield was being distributed between the two. In cross-examination he accepted that his father expired in 1965. He denied that field Khasara No. 3 was in the name of Barba from 1938 and he could not say whether Barba expired before 1947. He further accepted that after death of Barba suit field was mutated in the name of his three sons in Government records and within one and half year of such mutation they got its knowledge. He accepted that his father also got knowledge of this mutation. He accepted that no steps were taken for entering the names of either the plaintiff or his father Jagoba on those records. In cross-examination little later he accepted that suit field was never in the name of his grand father Pandurang. He further stated that he fell ill 4-5 years after the death of his father and thereafter he did not receive any income from the suit field. Defendant No. 3 Rama has deposed that since 1938 his father was cultivating the suit field and his father Barba expired in 1945. Thereafter his elder brother Bhagwan started cultivating the suit field as Karta and Bhagwan cultivated it till 1976. In 1976 the land was partitioned between three brothers and he stated that suit land was never belonging to great grand father of plaintiff and it was never in the name of his great grand father or grand father Pandurang.
20. This evidence has been considered by the courts below to hold that the plaintiff could not establish that he was in cultivating possession of the suit field till he fell ill. It is to be noted that his father Jagoba admittedly expired in 1965 and Laxman therefore fell ill some time in the year 1970. After 1970, no share was given to Laxman, even if his contention is accepted to be correct. In 1976, three defendants divided the property between themselves. Heavy burden was therefore upon the plaintiff to show that inspite of these developments, after 1938 or then after the death of Barkya in 1940, as alleged by him (vide Exh. 56), he was been treated as owner of the suit field by the defendants. He has not brought on record adequate evidence in this respect and the evidence which has come on record is to the contrary.
21. Reliance by Advocate Shri Khapre on the judgment of Division Bench of this Court in the case of (Narbheramji Gyaniramji Ramsnehi v. Vivekramji Bhagatramji Ramsnehi) : A.I.R. 1939 Bombay 425 to show that Sanad granted under Land Revenue Code, is only for fiscal purpose and cannot be viewed as document of title, is therefore, misconceived in present facts. Similarly, support taken from the judgment in the case of M. Durai v. Muthu (supra), to point out the change in position of law after Articles 142 and 144 of the old Limitation Act were substituted under Limitation Act, 1963, is not relevant. Reliance upon judgment in the case of Goirindammal v. R. Perumal (supra) to show that the plaintiff being co-sharer, his ouster has not been established as required by Article 65, is also misconceived, because the fact that plaintiff is/was co-sharer itself has not been established. Judgment in Yesu Sadhu Nimgare v. Kundalika Nimgare (supra), holds that in order to demonstrate possession to be adverse it has to be adequate in continuity, in publicity and in extent. There has to be clear assertion of hostile title and mere possession is not enough. It has been held that there must be knowledge and adoption of an attitude or expression of an intention. Here the evidence on record clearly shows that the plaintiff failed to establish that he was being treated as co-sharer and co-owner by the defendants. The Hon'ble Apex Court in the judgment in the case of Krishnamurthy S. Setlur v. O.V. Narasimha Shetty 2007 DGLS (soft) 191 : 2007 All. S.C.R. 2209, held that the question whether there is ouster or not, is mixed question of law and fact, but in present facts the said ruling has no application. Judgment in the case of Govindammal v. R. Perumal Chettiar (supra) is pointed out to show that ouster cannot be inferred only because of notice claiming partition of suit property given by co-sharer. There cannot be any debate about this position, but again the said ruling has no application in present facts.
Advocate Shri Vaidya has relied upon the judgment of Hon'ble Apex Court in the case of Sahabdar Khan and Anr. v. Sadaloo Khan and Ors. (supra), to urge that, when revenue entries were not challenged for long time, the presumption against appellant/plaintiff must be drawn. Again in view of the findings reached earlier, it is not necessary to consider the said ruling. But then findings by the courts below on the issue of limitation deserve to be maintained. Mutation in the name of three defendants as owners after death of Barba was never challenged by plaintiff or his father. Documents on records show name of Barba as owner in possession since 1941 and of defendants since 1954. Even as per his own story after 1970 plaintiff did not get his alleged due share and still he filed suit in 1994. Plaintiff has also failed to prove his title here. Change in onus about adverse possession due to Limitation Act, 1963 is of no relevance. Question No. (iii) formulated above therefore, needs to be answered against the appellant/plaintiff by holding that suit was barred by limitation.
22. As pointed out by Advocate Shri Vaidya at the beginning of his arguments, the entitlement of plaintiff to claim partition depends upon his proving relationship with the alleged original holder Barkya Vithu Teli. The trial Court has in its judgment at the end of paragraph No. 4 concluded that the plaintiff failed to prove that Barkya Vithu Teli was his great grand father and therefore failed to prove that suit land was his ancestral property. It has answered the Issue No. (iv)(a) framed by it accordingly. This Court has while admitting the second appeal on 7.3.2005 not framed any question about this finding of the trial Court. It is to be noted that this finding of trial Court is not disturbed by the lower Appellate Court. The finding is basically a finding of fact and as it has not been questioned in present proceedings, it has already attained finality. Thus the very basis on which the suit has been filed by the deceased plaintiff is lacking and has not been proved by him. It is to be noted that in the revenue records of 1911-12 the holder of Khasara No. 3 is mentioned as Barkya Vithu Teli. In death certificate produced by Laxman vide Exh. 56, name mentioned is Barlu Vithu Teli. Gift deed Exh. 83 is executed by Warlaya Vithu Teli. During cross-examination of plaintiff a suggestion was given to him by defendants that Barkya and Warlu are one and the same person and Laxman has expressed his inability to answer that question. The relationship between Barkya and Warlu, if any, or whether Barkya, Barlu and Warlu is one and the same person are the facts which ought to have been pleaded and proved by the plaintiff Laxman. He has claimed ignorance about these basic facts. Gift deed Exh. 83, mentions that Barba was son of cousin brother of Warlaya. If Warlaya and Barkya are treated to be one and same, as per family tree submitted by plaintiff Laxman, this statement cannot hold good. If Warlaya is presumed to be brother of Barkya, then also the statement does not hold good. The statement made in 1938 by Warlya is either incorrect or then family tree is incorrect. In view of this material on record, it is apparent that even if all the three questions formulated above were to be answered in favour of the appellant/plaintiff, still his suit could not have been decreed.
23. I therefore, find that the questions as formulated by this Court at the time of admission of the appeal do no constitute substantial questions of law. Second appeal is therefore, dismissed. However in the facts and circumstances of the case there shall be no order as to cost.