1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. SUIT NO.3547 OF 1998 Omer Hasan Wadhia ..Plaintiff. Vs. Gerald Michael Misquitta and another ..Defendants. .... Mr. B.G. Saraf for the Plaintiff. None for the Defendants. .... CORAM : DR. D.Y. CHANDRACHUD, J. 2nd September, 2009. P.C. : 1. The suit has been instituted on 20th August, 1996 for a declaration that the Defendants have no right, title and interest over certain lands admeasuring CTS 838, 839, 840, 833 and 837 of Dahisar (West) and for an injunction restraining the Defendants from interfering with or disturbing the possession of the Plaintiff. The Plaint has been amended and the Plaintiff now seeks a declaration that he is the owner of the lands admeasuring 650 sq. mtrs. in the aforesaid CTS Nos. by adverse possession. The original Defendant died and his legal representatives 2 were brought on the record. The suit has been listed as an undefended suit for an exparte decree. The Plaintiff has filed initially an affidavit in lieu of the examination in chief dated 29th August, 2007. An additional affidavit has been filed on 29th January, 2008 to buttress the claim of adverse possession. 2. The claim of adverse possession is by its very nature contradictory to the title that the Plaintiff sought to assert in himself by his initial affidavit of examination dated 29th August, 2007. In the initial affidavit dated 29th August, 2007 the Plaintiff claimed that he had purchased the lands from three persons (i) Palibai Maganbhai Talekar; (ii) Ravubhai Shaniwar Patel and (iii) Premabai Kishan Talekar. The vendors in turn were alleged to have become owners by virtue of three gift deeds dated 20th February, 1966. Now admittedly all the gift deeds were unregistered. According to the Plaintiff the predecessor in title of the Original Defendant had executed the three gift deeds in favour of the aforesaid three persons from whom the plaintiff claimed to have obtained a conveyance. Realizing that the Plaintiff would be unable to establish his 3 claim on the basis of a title originating in the three original gift deeds, the Plaintiff has filed, as noted earlier an additional affidavit of examination dated 29th January, 2008 claiming that the donees to whom the property had been gifted had become owners by adverse possession. 3. During the course of the hearing counsel appearing on behalf of the Plaintiff was put on notice of the fact that the claim of being in adverse possession is by its very nature contradictory to the title which the Plaintiff asserted in himself on the basis of the gift deeds and the conveyances following therefrom. Learned counsel stated that the Plaintiff therefore now seeks to assert his case purely on the basis of a claim of adverse possession as set up in the affidavit dated 29th January, 2008. It is in these circumstances that the Court would have to scrutinize as to whether all the requisites for establishing a case of adverse possession have been made out on the basis of the affidavit in lieu of the examination in chief dated 29th January, 2008 as it stands. Even though the Defendants have not contested these proceedings, the Court is duty bound to scrutinize whether all the ingredients of a case of 4 adverse possession have been proved in accordance with law. In paragraph 4 of the affidavit dated 29th January, 2008 the following statement has been made : “I say that Donees have become the Owners of the suit lands by virtue of adverse possession as their structures were already in existence on the suit lands prior to 1966. The Donees were in continuous possession of the suit lands adverse to the interest of said Mr. John Anthony Misquitta the Owner of the suit lands and thereafter the original and now the present Defendants. The Donees have thus become the Owners of the suit lands by adverse possession.” 4. The Plaintiff, it must be noted, asserts that the donees in whose favour the gift deed has been executed have become owners by adverse possession. On this basis he claims that he is “entitled to have a declaration of ownership by virtue of adverse possession”, in paragraph 5 of the affidavit of evidence. Ex facie, the averments contained in paragraph 4 do not establish a case of adverse possession. There is not even an averment that the possession of the donees was hostile to the doner and in an open and continuous manner had existed over a length of time sufficient to establish the plea of adverse possession. In fact, the very theory of adverse possession stands negated in view of the Plaintiff’s 5 own case that the donees have purportedly acquired the property under gift deeds executed by the predecessor in title of the Original Defendant. Thus in either view of the matter, the Plaintiff has failed to make out a case for the grant of any relief as sought in the suit. The suit shall accordingly stand dismissed. *****