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<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN" "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd"> <html xmlns="http://www.w3.org/1999/xhtml"> <head> </head> <body> <div style="font-family:Verdana, Geneva, sans-serif; font-size:12px; text-align:justify"> <table width="800" border="0" style="border:1px solid #ccc;padding:5px;" align="center" cellpadding="6" cellspacing="0"> <tr> <td align="left" valign="top"> Supreme Court Person, who claims title over property on strength of adverse possession is required to prove his case only against true owner of property MANU/SC/0438/2017 - (18 Apr 2017) </td> </tr> <tr> <td align="left" valign="top">Dagadabai (dead) by L.Rs. v. Abbas</td> </tr> <tr> <td align="left" valign="top" style="background-color:#FDEDCE">Dispute in instant Appeal relates to an agricultural land. Trial Court, by judgment/decree decreed Appellant's suit. It was held that, Appellant (Plaintiff) is owner of suit land; Defendant failed to prove his adoption; there is no concept of adoption in Muslims and hence, there could be no valid adoption of Respondent by Rustam and nor such adoption is recognized in Mohammadan Law; Defendant has failed to prove his title over suit land on basis of his alleged possession over suit land; the Defendant is, therefore, in illegal and unauthorized possession of suit land for want of any right, title and interest and hence, liable to be dispossessed from the suit land. Felt aggrieved, Defendant filed first appeal before Additional District Judge. First Appellate Court affirmed judgment and decree of trial Court and dismissed the appeal. Felt aggrieved, the Defendant carried the matter in Second Appeal before the High Court. High Court allowed the appeal and while setting aside judgment/decree of two Courts below, dismissed the suit giving rise to filing of this appeal by special leave by Plaintiff.

High Court erred in admitting second appeal in first instance and then further erred in allowing it by answering question framed in Defendant's favour. When trial Court and First Appellate Court concurrently decreed Plaintiff's suit by recording all findings of facts against Defendant, then, such findings of facts were binding on High Court. Findings were neither against the pleadings nor evidence and nor against any provisions of law. They were also not perverse on facts to extent that, no average judicial person could ever record. In this view of matter, Supreme Court opined that, second appeal did not involve any question of law much less substantial question of law within meaning of Section 100 of Code of Civil Procedure, 1908(CPC) to enable High Court to admit appeal on any such question much less answer it in favour of Defendant. Question which was formulated by High Court did not involve any question of law much less substantial question of law within meaning of Section 100 of CPC requiring interference in First Appellate Court's judgment.

Plea of adverse possession being essentially a plea based on facts, it was required to be proved by party raising it, on basis of proper pleadings and evidence. Burden to prove such plea was, therefore, on Defendant who had raised it. When both Courts below held that, Defendant has failed to prove plea of adverse possession in relation to suit land then such, concurrent findings of fact was un-impeachable and binding on High Court.

It is a settled principle of law of adverse possession that person, who claims title over property on strength of adverse possession and thereby wants Court to divest true owner of his ownership rights over such property, is required to prove his case only against true owner of property. It is equally well-settled that, such person must necessarily first admit ownership of true owner over property to knowledge of true owner and secondly, true owner has to be made a party to suit to enable Court to decide plea of adverse possession between two rival Claimants.

It is only thereafter and subject to proving other material conditions with aid of adequate evidence on issue of actual, peaceful, and un-interrupted continuous possession of person over suit property for more than 12 years to exclusion of true owner with element of hostility in asserting rights of ownership to knowledge of 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 property and vests ownership rights of property in person who claims it. In this case, Defendant did not admit Plaintiff's ownership over suit land and, therefore, issue of adverse possession, could not have been tried successfully at instance of Defendant as against Plaintiff. That apart, Defendant having claimed 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 title by adverse possession against Plaintiff.

In light of settled legal position, plea taken by Defendant about adoption for proving his ownership over suit land as an heir of Rustum was rightly held against him. As Defendant failed to prove that, he was adopted son of Rustum, he would suffer decree of dispossession from suit land. It is a settled principle of Mohammadan Law that, Mohammadan Law does not recognize adoption. Supreme Court set aside impugned judgment and allowed the appeal.</td> </tr> <tr> <td align="left" valign="top" ></td> </tr> <tr> <td align="left" valign="top" >Tags : Land, Ownership, Proof</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr>  <td align="left" valign="top">Source : newsroom.manupatra.com</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr> <td align="left" valign="top">Regards</td> </tr> <tr> <td align="left" valign="top">Team Manupatra</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> </table> </div> </body> </html>