Case: Dagadabai (Dead) by L.Rs Vs. Abbas @ Gulab Rustum Pinjari

first appellate Court affirmed the judgment and decree of the Trial Court and dismissed the appeal.10) Felt aggrieved, the defendant carried the matter in Second Appeal before the High Court. The High Court admitted the appeal on the following substantial question of law:“Whether in the facts and circumstances of the present case, the defendant (appellant herein) perfected his title to the suit land on account of adverse possession and the alternative plea ought to have been allowed by the Courts below, particularly, when there were disputes regarding the mutation proceedings after the death of Rustum Pinjari and the intention of the defendant to get his name mutated was writ large to show his hostile attitude.”11) By impugned order, the learned Single Judge of the High Court allowed the appeal and while setting aside the judgment/decree of the two courts below dismissed the suit giving rise to filing of this appeal by special leave by the plaintiff before this Court. The leave was granted.12) Heard Mr. Anshuman Animesh, learned counsel for the appellants and Mr. Nishant Ramakantrao Katneshwarkar, learned counsel for the respondent.13) Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside of the impugned order restore that of the Trial Court and the first Appellate Court.14) In our considered opinion, the High Court erred in admitting the second appeal in the first instance and then further erred in allowing it by answering the question framed in defendant’s favour. This we say for more than one reason as detailed below.15) First, when the Trial Court and the First Appellate Court concurrently decreed the plaintiffs suit by recording all the findings of facts against the defendant enumerated above, then, in our opinion, such findings of facts were binding on the High Court.16) It is also for additional reasons that the findings were neither against the pleadings nor evidence and nor against any provisions of law. They were also not perverse on facts to the extent that no average judicial person could ever record. In this view of the matter, we are of the opinion that the second appeal did not involve any question of law much less substantial question of law within the meaning of Section 100 of the Code to enable the High Court to admit the appeal on any such question much less answer it in favour of the defendant.17) Second, the question which was formulated by the High Court did not involve any question of law much less substantial question of law within the meaning of Section 100 of the Code requiring interference in the first Appellate Court’s judgment.18) Third, the plea of adverse possession being essentially a plea based on facts, it was required to be proved by the party raising it on the basis of proper pleadings and evidence. The burden to prove such plea was, therefore, on the defendant who had raised it. It was, therefore, necessary for him to have discharged the burden that laid on him in accordance with law.19) When both the Courts below held and, in our view, rightly that the defendant has failed to prove the plea of adverse possession in relation to the suit land then such concurrent findings of fact was unimpeachable and binding on the High Court.20) Fourth, the High Court erred fundamentally in observing in Para 7 that, "it was not necessary for him (defendant) to first admit the ownership of the plaintiff before raising such a plea".21) In our considered opinion, these observations of the High Court are against the law of adverse possession. It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.22) It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it.23) In this case, we find that the defendant did not admit the plaintiffs ownership over the suit land and, therefore, the issue of adverse possession, in our opinion, could not have been tried successfully at the instance of the defendant as against the plaintiff. That apart, the defendant having claimed the ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim the title by adverse possession against the plaintiff.24) In the light of this settled legal position, the plea taken by the defendant about the adoption for proving his ownership over the suit land as an heir of Rustum was rightly held against him.25) Fifth, the defendant having failed to prove that he was the adopted son of Rustum, had no option but to suffer the decree of dispossession from the suit land. It is a settled principle of Mohammadan Law that Mohammadan Law does not recognize adoption (see-Section 347 of Mulla Principles of Mahomedan Law, 20th Edition page 430).

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13) Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside of the impugned order restore that of the Trial Court and the first Appellate Court.14) In our considered opinion, the High Court erred in admitting the second appeal in the first instance and then further erred in allowing it by answering the question framed infavour. This we say for more than one reason as detailed below.15) First, when the Trial Court and the First Appellate Court concurrently decreed the plaintiffs suit by recording all the findings of facts against the defendant enumerated above, then, in our opinion, such findings of facts were binding on the High Court.16) It is also for additional reasons that the findings were neither against the pleadings nor evidence and nor against any provisions of law. They were also not perverse on facts to the extent that no average judicial person could ever record. In this view of the matter, we are of the opinion that the second appeal did not involve any question of law much less substantial question of law within the meaning of Section 100 of the Code to enable the High Court to admit the appeal on any such question much less answer it in favour of the defendant.17) Second, the question which was formulated by the High Court did not involve any question of law much less substantial question of law within the meaning of Section 100 of the Code requiring interference in the first Appellatejudgment.18) Third, the plea of adverse possession being essentially a plea based on facts, it was required to be proved by the party raising it on the basis of proper pleadings and evidence. The burden to prove such plea was, therefore, on the defendant who had raised it. It was, therefore, necessary for him to have discharged the burden that laid on him in accordance with law.19) When both the Courts below held and, in our view, rightly that the defendant has failed to prove the plea of adverse possession in relation to the suit land then such concurrent findings of fact was unimpeachable and binding on the High Court.20) Fourth, the High Court erred fundamentally in observing in Para 7 that, "it was not necessary for him (defendant) to first admit the ownership of the plaintiff before raising such a plea".21) In our considered opinion, these observations of the High Court are against the law of adverse possession. It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.22) It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it.23) In this case, we find that the defendant did not admit the plaintiffs ownership over the suit land and, therefore, the issue of adverse possession, in our opinion, could not have been tried successfully at the instance of the defendant as against the plaintiff. That apart, the defendant having claimed the ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim the title by adverse possession against the plaintiff.24) In the light of this settled legal position, the plea taken by the defendant about the adoption for proving his ownership over the suit land as an heir of Rustum was rightly held against him.25) Fifth, the defendant having failed to prove that he was the adopted son of Rustum, had no option but to suffer the decree of dispossession from the suit land.