IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.45 of 2009 Mansoor Khan, S/o Late Mobin Khan, R/o Bhabhua Ward No.4, P.S.-Bhabhua, District- Kaimur,(Bhabhua). ---------------Defendant-Appellant-Appellant. Versus Mumtaz Ahmad, S/o Late Rustam Ali, R/o Bhabhua Ward No.4, P.S.-Bhabhua, District- Kaimur,(Bhabhua). ----------Plaintiff-Respondent-Respondent. ----------- 10. 08.09.2011 Heard learned counsel appearing on behalf of the appellant in support of this appeal. The defendant was the appellant in the court below who has lost in the appeal and thereafter has preferred this second appeal. The plaintiff has filed the suit for declaration of demolition of wall described in detail in Schedule K of the plaint by the defendant as an illegal act and has sought for restoration of the disputed wall by the defendant with further consequential relief for permanent injunction. The title of the plaintiff with regard to 3 ½ decimal of land over which the disputed wall stood has not been disputed by the defendant rather the defendant has resisted the grant of relief to the plaintiff mainly on the ground that the plaintiff had given 1 decimal out of his 3 ½ decimal of land, which lies adjacent to the already existing land of the defendant, to the defendant by 2 oral Hibba and on this basis the defendant has asserted his title and possession over that 1 decimal of land. Further the defendant has also claimed his title by way of adverse possession and also on the basis of “Mahda” but the plea of “Mahda” has been abandoned by the learned counsel appearing on behalf of the appellant. Both the courts below have concurrently come to the finding that the defendant has failed to establish his case regarding obtaining the 1 decimal of land out of 3 ½ decimal of the plaintiff by way of oral gift from him. The courts below after considering the report of local inspection by pleader commissioner have also come to the finding that the wall as claimed by the plaintiff had existed in the boundary of the land as claimed by the plaintiff. On the basis of these findings the suit has been decreed and the appeal has been dismissed. The learned counsel appearing on behalf of the appellant has submitted that both the courts below had failed to consider his plea regarding adverse possession although he has raised this plea and issue in this regard has also been framed. The perusal of the impugned judgments makes it clear that the defendant has come out with the plea of title on 3 the basis of oral gift and simultaneously he has also claimed to be in adverse possession of the suit plot. It is well settled by now that the plea of title and claim of adverse possession are mutually exclusive and the same cannot be simultaneously considered. It is not the case of the defendant that they have deserted their claim of title over the suit land on the basis of oral gift and as such the plea of being in adverse possession cannot be raised and rightly not considered by the courts below. No other submission has been made on behalf of the appellants. As such there is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh (V.Nath, J.)