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Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.83 OF 2008

Dagadabai(Dead) by L.Rs.             ….Appellant(s)

VERSUS

Abbas @ Gulab Rustum  Pinjari   …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) This appeal is filed by the legal representatives

of the plaintiff against the final judgment and order

dated  25.04.2007   passed  by  the  High  Court  of

Judicature  of  Bombay,  Bench  at  Aurangabad  in

Second Appeal No.333 of 1990 whereby the Single

Judge  of  the  High  Court  while  exercising

jurisdiction under Section 100 of the Code of Civil

Procedure,  1908  (hereinafter  referred  to  as  “the

Code”)  reversed  the  concurrent  findings  of  fact

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arrived at by the two Courts below and dismissed

the suit of the plaintiff-appellant herein.

2) We need not burden the order by setting out

the facts in detail except to the extent necessary to

appreciate  the  short  controversy  involved  in  the

appeal.

3) The appellants are the legal representatives of

the original plaintiff whereas the respondent is the

defendant.

4) The  dispute  in  this  appeal  relates  to  an

agricultural land bearing G.No. 505 (old Sy. No 71)

admeasuring  5  Hectare  28  R.  situated  at  village

Vardi,  Taluka  Chopda,  District  Jalgao  (MH)

(hereinafter referred to as, “the suit land".

5) One Rustum s/o Nathu Pinjari - a Muslim by

religion  was  the  owner  of  the  suit  land.  He  died

intestate  leaving  behind  his  only  daughter-

Dagadabai, w/o Shaikhlal Pinjari. She, as an heir,

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accordingly  inherited  the  suit  land  exclusively  on

the death of her father- Rustum.

6) Dagadabai then filed a Civil Suit, out of which

this appeal arises, against the respondent claiming

therein  a  decree  for  possession in  relation  to  the

suit land.  The plaintiff alleged that she is the owner

of  the  suit  land  whereas  the  defendant  is  in

unlawful  possession of  the  suit  land without  any

right, title and interest therein and, therefore, he is

to be dispossessed from the suit land. The plaintiff,

therefore, as mentioned above sought a decree for

possession on the strength of her title against the

respondent.

7) The respondent filed his written statement. He

denied  the  appellant’s  claim.  In  the  first  place,

claiming  himself  to  be  the  adopted  son  of  Late

Rustum, the respondent contended that he became

the  owner  of  the  suit  land  by  inheritance  as  an

adopted  son  of  Rustum.  In  the  second  place,  he

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denied the ownership of the plaintiff in the suit land

and set up a plea of adverse possession to claim his

ownership  over  the  suit  land.   The  respondent

contended that he has been in long and continuous

possession of the suit land for more than 12 years

prior to the date of filing of the suit on the basis of

mutation  entries  made  in  the  revenue  record  in

relation  to  the  suit  land.   It  was  alleged  that  he

acquired title over the suit land on the strength of

his continuous possession which, according to him,

was adverse.  It is essentially on these two defenses,

the  respondent  denied  the  plaintiff's  case  and

defended his possession over the suit land.  

8) The Trial Court framed issues and the parties

adduced  evidence.  The  Trial  Court,  by

judgment/decree dated 29.08.1983 in Civil Suit No.

108 of 1981 decreed the appellant's suit. It was held

that the appellant (plaintiff) is the owner of the suit

land; defendant failed to prove his adoption; there is

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no concept of adoption in Muslims and hence there

could  be  no  valid  adoption  of  the  respondent  by

Rustam  and  nor  such  adoption  is  recognized  in

Mohammadan  Law;  the  defendant  has  failed  to

prove his title over the suit land on the basis of his

alleged possession over the suit land; the defendant

is, therefore, in illegal and unauthorized possession

of  the  suit  land  for  want  of  any  right,  title  and

interest  and hence liable  to be dispossessed from

the suit land.

9) Felt aggrieved, the defendant filed first appeal

before the Additional District Judge, Amalner. Vide

order  dated  18.09.1990  in  Civil  Appeal  No.43  of

1989.   The  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

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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

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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 plaintiff's

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

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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

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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

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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

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ownership rights of the property in the person who

claims it.      

23) In this case, we find that the defendant did not

admit  the  plaintiff's  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

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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).        

26) It  is  for  the  aforementioned  reasons,  the

impugned  judgment  is  held  legally  unsustainable

and hence deserves to be set aside.  

27) The appeal thus succeeds and is accordingly

allowed. Impugned judgment is set aside and that of

the  Trial  Court  and  the  first  Appellate  Court  is

restored.   

               ………...................................J.  [R.K. AGRAWAL]

                                                               …...……..................................J.

        [ABHAY MANOHAR SAPRE] New Delhi; April 18, 2017  

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