Whether it is permissible to take in inconsistent plea of partition of property and adverse possession?

This court in case of Dilipkumar Bherumal Kucheriya (supra) held that the
party cannot claim possession pursuant to a partition in the joint family and at the
same time claim adverse possession which is not permissible in law. In my view
the plea of the defendant no.1 that there was a oral partition in the suit property in
the year 1982 and at the same time he pleaded adverse possession against the other
co-owners which is inconsistent and contrary. Be that as it may, the defendant
no.1 could not prove any of these two pleas raised before the learned trial judge.
The judgment of this court in case of Dilipkumar Bherumal Kucheriya (supra)

applies to the facts of this case. I am respectfully bound by the said judgment.
38. Insofar as substantial question of law no.1 formulated by this court is
concerned, in my view the plea of the title under an alleged oral partition and
claim of title under alleged adverse possession are inconsistent and thus learned
District Judge rightly rejected the plea of adverse possession. The said substantial
question is accordingly answered.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 111 OF 2016
ALONGWITH
CIVIL APPLICATION NO. 165 OF 2016
Punja Rama Bodke 
V
 Shivaji Vitoba Bodke 
 CORAM : R.D. DHANUKA, J.

 Dated: 16th DECEMBER, 2016
Citation: 2017(2) MHLJ 111Bom

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Whether court can appoint fresh commission for partition of suit property after completion of final decree proceeding?

 In the teeth of the aforesaid background wherein the final decree has been confirmed right upto the Apex Court and where the orders passed on the earlier applications invoking section 47 of the Code of Civil Procedure by the respondent No. 1 and said Mrs. Anita Khetan had become final, the question which begs an answer is whether the subsequent applications filed invoking section 47 of the Code of Civil Procedure by the respondent Nos. 1 and 2 were maintainable. The answer has to be an emphatic 'no'. The trial Court in entertaining the said applications has totally glossed over the earlier round of litigation between the parties, which insofar as final decree proceedings are concerned, ended with the special leave petition filed by the respondent No. 1 being dismissed and insofar as application invoking section 47 of the Code of Civil Procedure had finally culminated in view of no further challenges to the orders passed in the earlier applications filed by the respondent No. 1 and said Mrs. Anita Khetani. What the trial Court has done by the impugned order is to reopen the final decree proceedings by ordering a fresh Commission for partitioning of the property in question. The same, in my view, cannot be countenanced in the background of the facts as narrated above.

IN THE HIGH COURT OF BOMBAY

W. P. No. 987 of 2011

Decided On: 13.07.2011

 Premlata s/o. Ramlal Shahu and another
Vs.
Chandrakant s/o. Gayaprasad Shahu and another

Coram:
R.M. Savant, J.

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