ash 1 sa-110.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION SECOND APPEAL NO.110 OF 2011 Deepak Dnyanu Powar & Anr. .. Appellants Vs Hari Ganpati Powar .. Respondent -- Shri Shriniwas S. Patwardhan for the Appellants. -- CORAM : A.S. OKA, J DATED : 11TH NOVEMBER, 2011 P.C. . Heard the learned counsel appearing for the Appellants. The Appellants are the original Plaintiffs and the Respondent is the original Defendant. The Appellants filed a suit for declaration and injunction on the basis of title. The Appellants claimed to be the owners of the suit property. In the plaint, in the alternative, a plea was raised that the Appellants have perfected their title by adverse possession. The Trial Court upheld the right of ownership of the Appellants. Though an issue was framed on the basis of adverse possession, the Trial Court held that the said issue did not survive as the Appellants have proved the title. 2. In the Appeal preferred by the Respondent, a cross objection was preferred by the Appellants contending that the claim of ash 2 sa-110.11 the Appellants even on the basis of the adverse possession ought to have been decreed. The Appellate Court has set aside the decree of the Trial Court by holding that the plea of adverse possession has not been established. 3. The learned counsel appearing for the Appellants pointed out that the Trial Court recorded a categorical finding regarding ownership of the Appellants. He submitted that the Appellate Court has not disturbed the said finding and only the plea of adverse possession has been negatived by the Appellate Court. He, therefore, submitted that even assuming that the plea of adverse possession has been rightly negatived, the Appeal must succeed on title. 4. I have given careful consideration to the submissions. Mutually exclusive and inconsistent pleas were raised by the Appellants in the plaint. The judgment of the Trial Court shows that out of the two alternative pleas, the Appellants elected the plea based on title and accordingly a finding in their favour was recorded by the Trial Court for passing the decree. 5. Surprisingly, in the Appeal preferred by the Respondent, a Cross Objection was filed by the Appellants contending that even the finding on the issue of plea of adverse possession ought to have been ash 3 sa-110.11 recorded in their favour. Perusal of the judgment of the Appellate Court shows that the submission was canvassed by the Appellants on the plea of adverse possession. Once the plea of adverse possession is raised by the Appellants before the Appellate Court, now the Appellants cannot contend that they are basing their claim on the title. For the reasons recorded, after considering the oral and the documentary evidence on record, the plea of adverse possession has been negatived by the Appellate Court and the Appellate Court has proceeded to set aside the decree of the Trial Court. Before the Trial Court, the Appellants gave up the plea of adverse possession and elected the plea based on title. Therefore, before the Appellate Court the plea of adverse possession could not have been raised. I find that no substantial questions of law arises in the Appeal, and therefore, the Second Appeal deserves to be dismissed. Accordingly, the Second Appeal is dismissed with no orders as to costs. 6. The Civil Application No.492 of 2011 does not survive and the same is disposed of. ( A.S. OKA, J )