1 49sa-533-2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.533 OF 2010 Shri Mohammed I. M. H. Madoo .. Appellant. V/s. Shri Abdul M. M. H. Madoo .. Respondent. Mr. P. S. Dani, for the Appellant. Mr. S.M. Gorwadkar i/b. Mr. G. G. Togani, for the Respondent. CORAM : G.S.GODBOLE, J. DATE : 13th SEPTEMBER, 2011. P.C.: 1 Heard Mr. Dani for the Appellant. Respondent had filed Regular Civil Suit No.249 of 2000 in the Court of learned Civil Judge, Junior Division, Bhiwandi, for perpetual injunction. The Appellant raised two fold defence namely that the property had been allegedly gifted to him by his father – Mohammed Husain who has alleged received it from his brother Mohammed Akbar. A defence of adverse possession was also raised. 2 It is not in dispute that Regular Civil Suit No.47 of 1941 was filed by Mohammed Hasan, father of Defendant/ Appellant for administration of 2 49sa-533-2010.sxw the estate of late Imamuddin Madoo in which a consent decree was passed on 21st September, 1943 and in the said decree, the suit property has been allotted to mother of Respondent/ Plaintiff. The learned Civil Judge, Junior Division, Bhiwandi decreed the suit on 7th December, 2007. Civil Appeal No.32 of 2008 filed by the Appellant has been dismissed by the learned District Judge-3, Thane on 9th June, 2010. Hence, Second Appeal is filed. 3 The learned Advocate Mr. Dani submits that the Appellate Court being the last fact finding Court, was required to independently apply its mind to the entire controversy involved in the suit and must independently record its finding on all disputed issues. According to the learned Advocate Mr. Dani, this has not been done and the Appellate Court has, therefore, failed in its obligation taken Order 41 Rule 31 of the Code of Civil Procedure, 1908. Regarding the Plea regarding adverse possession, it is submitted that the Trial Court has relied upon the mutation entries which were recorded for a brief period which intervened and hence, the finding recorded by the Trial Court on adverse possession is perverse, since that ground was not proper for holding that possession is not adverse. 4 I have considered the submissions. In so far as contents of decree passed in Regular Civil Suit No.47 of 1941 and the allotment of the various properties made under the decree are concerned; there is no serious 3 49sa-533-2010.sxw dispute and the observations of the Trial Court and the findings based on the contents of the said decree are not shown to be incorrect. Consequently, the so called gift deed stated to have been executed in favour of the Appellant by his father will be of no consequence. The second submission regarding the plea of adverse possession has also been dealt with by the Trial Court and elaborate reasons are recorded. Since the Appellant had taken up plea of the adverse possession, it was for him to prove not only his possession but it was also necessary to prove the animus to possess the property adversely. In the present case, there is nothing to indicate that such animus was either pleaded or proved. In fact, the Appellant ought to have elected prior to the commencement of the trial, whether he wants to press the plea of being an absolute owner on the basis of the alleged gift or press the plea of being owner by adverse possession. However, that does not appear to have been done. The learned Judge of the District Court has recorded independent reasons in paragraph 9 of the impugned Judgment in respect of the plea of adverse possession. There is no perversity in the said finding and as stated above, there is a complete absence of animus to possess the property adverse to the true owner. 5 The first submission regarding failure of the Appellate Court to exercise its function as a last fact finding Court, may not raise any question of law for the reason that the Appellate Court has recorded general 4 49sa-533-2010.sxw agreement with the findings recorded by the Trial Court and had also considered the consent decree dated 21st September, 1943, the various mutation entries and their legal effect. 6 No question of law arises. Second Appeal is dismissed. (G.S.GODBOLE, J.)