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

Citation: [2017] 4 S.C.R. 760 · Decided: 18-04-2017 · Supreme Court of India · Bench: R.K. AGRAWAL · Disposal: Appeal(s) allowed

Judgment (excerpt)

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[2017] 4 S.C.R. 760 
DAGADABAI (DEAD) BY L.RS. 
v. 
ABBAS @ GULAB RUSTUM PINJARI 
(Civil Appeal No. 83 of2008) 
APRIL 1s;2017 
[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.] 
Code of Civil Procecjure, 1908- s.100-Substantial question of 
law- When not-Suit by appellant-plaintiff claiming decree/or possession 
in relation to suit land-Plaintiff claimed ownership o.f suit land through 
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 of suit property as adopted 
son of plaintiff'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 
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 of law much less substantial question 
of !aw within the meaning of s.100-lmpugnedjudgment of High Court 
set aside and that of trial court and first Appellate Court restored. 
Mohammedan Law -Adoption - Suit for possession - Defendant 
claimed inheritance of suit property as adopted son of p!aint~f 's father-
Held: It is a settled principle of Mohammedan Law that it does not recognize 
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 plaintiff claiming 
to be the owner - Defendant inter alia claimed possession on the basis of 
G adverse possession - However, denied the ownership ofplaintiff- Held: 
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The person, who claims title over the property on the strength of adverse 
possession is required to prove his case only against the true owner of the 
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, 
760 
DAGADABAI (DEAD) BY L.RS. v. ABBAS@ GULAB 
761 
RUSTUM PINJARI 
the issue of adverse possession, could not have been tried successfitlly at A 
the instance of the defendant as against the plaintiff. 
Plea of- Burden of proof-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 
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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] 
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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] 
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 

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