DAGADABAI (DEAD) BY L.RS.versusABBAS @ GULAB RUSTUM PINJARI

                              [2017] 4 S.C.R. 760


A                   DAGADABAI (DEAD) BY L.RS.
                                    v.
                  ABBAS @ GULAB RUSTUM PINJARI
                      (Civil Appeal No. 83 of2008)
                                APRIL 1s;2017
B
       [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
          Code of Civil Procecjure, 1908- s.100-Substantial question of
  law- When not- Suit by appellant-plaintiffclaiming decree/or possession
  in relation to suit land-Plaintiffclaimed ownership o.fsuit land through
c inheritance after death of her father alleging that the defendant was in
  unlawfiil possession of the suit land without any right, title nnd interest
  therein-Respondent also claimed inheritance ofsuit property as adopted
  son ofplaintiff's father and fi1rther claimed adverse possession over the
  property - Trial court decreed appellant's suit - First appellate Court
  affirmed the judgment and decree of trial court - Second appeal by
D defendant, allowed - On appeal, held: When the Trial Court and Fil:~t
  Appellate Court concurrently decreed plaint!ff 's suit by recording all the
  findings offacts against the defendant then such findings ojfacts were
   binding on High Court - The findings were neither perverse on facts/
  pleadings/evidence nor against any provisions a.flaw-Therefore, the second
  appeal did not involve any question oflaw much less substantial question
E
   of!aw within the meaning ofs.100-lmpugnedjudgment ofHigh Court
   set aside and that oftrial court andfirst Appellate Court restored.
           Mohammedan Law -Adoption - Suit for possession - Defendant
   claimed inheritance ofsuit property as adopted son ofp!aint~f's father-
   Held: It is a settledprinciple ofMohammedan Law that it does not recognize
F adoption - Thus, in the light of settled legal position defendant's plea of
   adoption for proving ownership, cannot be accepted.
           Adverse possession:
           Claim of-Against whom - Suit/or possession by plaintiffclaiming
   to be the owner - Defendant inter alia claimed possession on the basis of
G adverse possession - However, denied the ownership ofplaintiff- Held:
   The person, who claims title over the property on the strength ofadverse
   possession is required to prove his case only against the true owner ofthe
   property-Thus, such person must necessarily first admit the ownership of
    the tnie owner over the property-However, in the present case, the defendant
    did not admit the plaintiff's ownership over the suit land and, therefore,
H
                                     760
      DAGADABAI (DEAD) BY L.RS. v. ABBAS@ GULAB                               761
                   RUSTUM PINJARI

 the issue ofadverse possession, could not have been tried successfitlly at A
 the instance ofthe defendant as against the plaintiff.
        Plea of- Burden ofproof- Held: Plea o,(adverse possession being
 a plea based on/acts, is required to be proved by the party raising it.
        Allowing the appeal, the Court
        HELD: 1.1 The High Court erred in admitting the second appeal B
 in the first instance and then further erred in allowing it by answering
 the question framed in defendant's favour. This is for more than one
 reason. [Para 14] [764-H]
        1.2 First, when the Trial Court and the First Appellate Court
 concurrently decreed the plaintiff's suit by recording all the findings c
 of facts against the defendant, then such findings of facts were binding
 on the High Court. [Para 15) [765-A]
        1.3 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 D
 matter, 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. [Para 16]
  1765-B-C]                                                               E
         1.4 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. [Para 18] [765-G-H; 766-A]                F
          1.5 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        G
   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 posse~sion
   between the two rival claimants. [Para 21] 1765-G-H; 766-A]
                                                                              H
762            SUPREME COURT REPORTS                         [2017] 4 S.C.R.


A           1.6 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
B     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.
      However, in the present case, the defendant did not admit the
      plaintiff's ownership over the suit land and, therefore, the issue of
 c    adverse possession, could not have been tried successfully at the
      instance of the defendant as against the plaintiff. [Paras 22, 23] (766-
      B-C]
             1.7 When both the Courts below rightly held that the defendant
      had failed to prove the plea of adverse possession in relation to the
      suit land then such concurrent findings of fact was unimpeachable
 D    and binding on the High Court. [Para 19] (765-E-F]
             Principles of Mohammedan Law, 20'h Edition page 430 -
             referred to.
             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 83 of2008.

 E
            From the Judgment and Order dated 25.04.2007 of the High Court
      ofJudicature at Bombay, Bench atAurangabad in Second Appeal No. 333
      of 1990.
            AnshumanAnimesh, Ms. Astha Deep, Ni pun Katya! (for Shivaji M.
      Jadhav) Advs.'for the Appellants.
            Nishant Ramakantrao Katneshwarkar, Arpit Rai, Advs. for the
 F    Respondents.
            The Judgment of the Court was delivered by
         ABHAY MANOHAR SAPRE, J.
         l. This appeal is filed by the legal r·epresentati ves of the plaintiff
 G against the final judgment and order dated 25.04.2007 passeq by the
   High Court of Judicature of Bombay, Bench at Aurangabad in Second
   Appeal No.333 of 1990 whereby the Single Judge cif the High Court
   while exercising jurisdiction under Section 100 of the Code of Civil
   Procedure, 1908 (hereinafter referred to as "th,e Code") reversed the
   concurrent findings of fact arrived at by the two Courts below and
 H dismissed the suit of the plaintiff-appellant herein.
     DAGADABAI (DEAD) BY L.RS. v. ABBAS @ GULAB                                  763
      RUSTUM PINJARI [ABHAY MANOHAR SAPRE, J.]

        2. We need not burden the order by setting out the facts in cletail      A
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    B
GNo. 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
ownerof.the suit land. He died intestate leaving behind his only daughter-       C
Dagadabai, w/o Shaikhlal Pinjari. She, as an heir, accordingly inherited
ttie 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           D
 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             E
 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 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
                                                                                 F
 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,         G
 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.
  108of1981 decreed the appellant's suit. It was held that the appellant         H
764           SUPREME COURT REPORTS                           [2017] 4 S.C.R.


A . (plaintiff) is the owner of the suit land; defendant failed to prove his
    adoption; tbere is 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
B 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. Vi de order dated 18.09 .1990 in Civil
    Appeal No.43 of 1989. The first appellate Court affirmed the judgment
C 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 oflaw:
             "Whether in the facts and circumstances of the present
D            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 ofRustum Pinjari and
             the intention of the defendant to get his name mutated was
E
             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/decre,e 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.
F
             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
G 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
H for more than one reason as detailed below.




                                                                                    ,,
     DAGADABAI (DEAD) BY L.RS. v. ABBAS @ GULAB                             765 .
     RUSTUM PINJARI [ABHAY MANOHAR SAPRE, J.]

        15. First, when the Trial Court and the First Appellate Court A
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 B
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 oflaw 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.                     c
        17. Second, the question which was formulated by the High Court
did not involve any question oflaw much less substantial question oflaw
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 D
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.
                                                                             E
        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        F
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 G
on the strength of adverse possession and thereby wants the Court to
divest the true owner ofhis 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 oarty to the suit to enable H
766            SUPREME COURT REPORTS                           [2017] 4 S.C.R.


A the Court to decide the plea of adverse possession between the two
  rival claimants.
         22. ff is only thereafter and subject to proving other material
  conditions with the aid of adequate evidence on the issue of actual,
  pe<!ceful, and uninterrupted continuous possession of the person over
B 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.
 c
          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
 D adopted son ofRustum 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 ofRustum was rightly held against him.
 E
            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 ofMohammadan
      Law that Mohammadan Law does not recognize adoption (see-Section
      347 of Mulla Principles of Mahomedan Law, 20th Edition page
 F    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.
 G Impugned judgment is set aside and that of the Trial Court and the first
   Appellate Court is restored.


      Divya Pandey                                                   Appeal allowed.