Page 1 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

1

Page 2 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,

2

Page 3 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

3

Page 4 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

4

Page 5 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

5

Page 6 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

6

Page 7 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

7

Page 8 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

8

Page 9 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

9

Page 10 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

10

Page 11 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

11

Page 12 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, 20

th

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

12