Telangana High Court

Mustaq Ahmed vs Noor Jahan Begum on 4 November, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

           HONOURABLE Dr.JUSTICE G. RADHA RANI
                   SECOND APPEAL No.9 OF 2024
JUDGMENT:

This second appeal is filed by the appellants-defendants aggrieved

by the judgment and decree dated 08.08.2023 passed in A.S. No.51 of

2018 by the Special Sessions Judge for Fast Tracking the Cases Relating

to Atrocities against Women cum IV Additional District and Sessions

Judge at Mahabubnagar, confirming the judgment dated 10.04.2017

passed in O.S. No.72 of 2002 by the II Additional Senior Civil Judge

(FTC), Mahabubnagar.

2. The respondents No.1 to 5 are plaintiffs in the suit. The

parties are hereinafter referred to as arrayed before the trial court as

'plaintiffs and defendants'.

3. The plaintiff No.1 was the mother of plaintiffs No.2 to 5.

They were the legal heirs of late Mohd. Ghouse. The deceased

defendant No.1 was the younger brother of late Mohd. Ghouse. The

case of the plaintiffs in brief was that the plaintiffs, along with one Smt.

Mubeen Begum, another daughter of plaintiff No.1, (who was already

married and living with her husband), were the owners of suit schedule

property i.e. H.No.1-10-61/11/C situated at S.S. Gutta, Mahabubnagar in

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an area of 233.33 sq. yds., out of plot No.6 in Sy. No.85/B. The

husband of the plaintiff No.1 i.e. Mohd. Ghouse died on 15.11.2000

leaving behind the plaintiffs and Smt. Mubeen Begum as his legal heirs.

The defendant Nos.2 to 8 were the legal heirs of deceased defendant

No.1 and were in possession of the suit schedule property after the death

of defendant No.1. Late Mohd. Ghouse, husband of plaintiff No.1,

purchased the suit schedule property from its earlier owner P. Chenna

Reddy through registered sale deed document No.586/79 on 26.03.1979

by paying valid sale consideration. Late Mohd. Ghouse constructed the

house over the suit plot with his own funds and also by raising loan

from the Cooperative Housing Society Limited, Mahabubnagar, duly

obtaining permission from the Municipality. The suit schedule property

was in the name of Mohd. Ghouse in the municipal records. Late Mohd.

Ghouse during his lifetime permitted the deceased defendant No.1 to

stay in a portion of the suit house. The plaintiffs were also staying in

the suit house and were using part of the suit premises exclusively and

other area jointly along with the defendants.

3.1. Late Mohd. Ghouse had five other brothers including the

deceased defendant No.1. The possession of deceased defendant No.1

over the suit property was only permissive. Mohd. Ghouse permitted

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the deceased defendant No.1 to stay in the said house on the assertion

that he would vacate the suit premises as and when demanded by the

family of the plaintiffs. After the death of Mohd. Ghouse, the deceased

defendant No.1 developed malafide intention and was trying to grab the

suit house and dispossessed the plaintiffs. The deceased defendant No.1

had taken away various documents, loan payment receipts, electricity

bills and receipts, property tax receipts from the custody of the plaintiff

No.1 after the death of Mohd. Ghouse by representing that he would

verify the loan details and take steps to mutate the names of the

plaintiffs in the concerned records. The plaintiff No.1 believed the

deceased defendant No.1 and handed over all the said documents to him.

Basing on the said documents, the deceased defendant No.1 was setting

up a false plea and not returning the same. The plaintiffs requested the

deceased defendant No.1 to vacate the suit house on the ground that the

plaintiffs No.2 to 5 had grown up and they required the entire house for

their own use. The deceased defendant No.1 developed ill intention and

started harassing the plaintiffs by various means and disconnected the

power supply to the rooms in which the plaintiffs were residing and

threatening them to vacate the suit house.

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3.2. The electricity service connection No.1753 11965 was in the

name of late Mohd.Ghouse. The deceased defendant No.1 and

thereafter the defendant Nos.2 to 8 were illegally using a part of the suit

house as work shop for preparing Almirahs. The deceased defendant

No.1 was threatening the plaintiffs that he would assert that he had paid

the loan amount to the Co-operative Society Limited, Mahabubnagar, by

taking advantage of having receipts with him. In fact, the loan amount

was paid by late Mohd. Ghouse. He might have sent some of the

amounts through the deceased defendant No.1 for paying the same. As

the plaintiffs had demanded the deceased defendant No.1 to vacate the

suit house, the deceased defendant No.1, his wife and children had

illegally thrown away the articles of the plaintiffs on the road from the

suit house on 02.06.2002 and locked the gate and not permitted the

plaintiffs to enter into the suit house. Then, the plaintiff No.1

approached the II-Town Police. The police came to the spot and

permitted the plaintiffs to keep their articles in their room. The deceased

defendant No.1 and his family members again troubled the plaintiffs on

23.06.2002 by locking the plaintiffs from inside and prevented the

plaintiffs to come out of the house. The plaintiff No.1 again managed to

come out and lodged a complaint to the Superintendent of Police,

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Mahabubnagar on 04.06.2002. The police failed to take action against

the defendant No.1 inspite of lodging the said complaint and asked the

plaintiffs to resolve the dispute in civil court. As such, the plaintiffs got

issued legal notice to the defendant No.1 on 03.06.2002 calling upon the

defendants to vacate the suit house. The defendant No.1 inspite of

receipt of the said notice, failed to vacate the suit house and on the

contrary increased his harassment, forced the plaintiffs to vacate the suit

house and to agree for his demand to partition the suit house into two

shares.

3.3. The suit schedule property was the exclusive property of late

Mohd. Ghouse, husband of plaintiff No.1. As such, the plaintiffs filed

the suit seeking the relief of declaring them as owners of the suit

schedule property and to evict the defendants No.2 to 8 from the suit

schedule property and to direct the defendants No.2 to 8, being the legal

representatives of deceased defendant No.1, to pay future mesne profits

@ Rs.5,000/- per month from the date of the suit till the date of vacating

the property.

4. The defendants filed written statement admitting the

relationship between them and the plaintiffs, and contended that as per

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the tradition in the family and with great respect and affection towards

his elder brother late Mohd. Ghouse, the defendant No.1 i.e. Musthaq

Ahmed purchased the suit schedule property in the name of his elder

brother nominally, as he was an ailing person. The property was

purchased with his own funds of Rs.2,400/- from the vendor P. Chenna

Reddy. Late Mohd. Ghouse never paid the sale consideration. The

defendant No.1 and his wife i.e. defendant No.2 arranged the

consideration and paid it to the vendor and the defendant No.1 signed

the registered sale deed of the suit plot as an attesting witness. The

defendant No.1 raised loan from the Co-operative Housing Society for

Rs.43,000/- in the name of his elder brother and repaid the loan amount

continuously. Even after the death of late Mohd. Ghouse and deceased

defendant No.1, defendants No.2 to 8 had repaid certain installments of

the balance of the loan amount with their own money.

4.1. The defendants further contended that they were exclusive

owners and possessors of the suit house and plot since its purchase.

Neither late Mohd. Ghouse nor the plaintiffs had any occasion to reside

in the suit house or any part of the same. The defendant No.1

constructed the house by raising loan of Rs.80,000/- from his brothers

and brothers-in-law. Since the date of construction, the defendants No.1

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to 8 had been residing in the suit house till date and denied that the

plaintiffs were also staying in the suit house and using a portion of it

exclusively. The defendants submitted that they were in custody of the

loan repayment receipts, no due certificate issued by the Co-operative

Housing Society, electricity bills, property tax receipts and the

documents regarding payment of family loans. The production of house

documents by the defendants was suffice to believe that the defendants

purchased the plot, raised loans of Rs.1,50,000/- in total, constructed the

house and enjoying the same as owners. The defendants were in sound

position of business to raise the loan and repay it. Late Mohd. Ghouse

and the plaintiffs never had resources and they were not in a financial

position to construct the suit house by incurring Rs.1,50,000/- to

Rs.2,00,000/-. The plaintiffs suppressed the material facts and the title

of the defendants over the suit house. On one hand the plaintiffs

pleaded that they were evicted and on the other hand, falsely pleaded

that they continued the possession with the help of police. If the

plaintiffs were in possession, they would have sought for ad-interim

injunction order and take steps for restitution, if they were really thrown

out of the suit house immediately on 2nd or 3rd June, 2002, but waited till

12.09.2002.

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4.2. The defendants further contended that the plinth area of the

house was covered by just 100 sq. yds., and the prevailing rental value

was Rs.800/- in the said locality. The defendants No.1 to 8 were in

continuous and unchallenged peaceful possession over the suit plot for

the past 25 years and perfected their title legally. Any rights of the

plaintiffs or the husband of the plaintiff No.1 had extinguished and the

right to sue was waived long back. The suit was barred by limitation.

The plaintiffs executed a document on 27.12.2002 relinquishing their

rights over the suit house on the next day of the death of defendant No.1

Musthaq Ahmed before the elders of the family and locality. The same

was drafted by one M.A. Hafeez, Superintendent of the District Court,

Mahaboobnagar. They also contended that the Deed of Gift cum

Withdrawal was executed by late Mohd. Ghouse in favour of defendant

No.1 on 09.01.1995 noticing the malafide attitude and intention of

plaintiff No.1, and prayed to dismiss the suit with exemplary costs.

5. Basing on the above pleadings, the trial court framed the

issues as follows:

1) Whether the plaintiffs are entitled for declaration of title as prayed for?

2) Whether the plaintiffs are entitled for recovery of possession of suit schedule house as prayed for?

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3) Whether the deceased defendant No.1 purchased the schedule plot in the name of his elder brother Md.Ghouse with the personal money of deceased defendant No.1?

4) Whether the deceased defendant No.1 is in permissible possession of the disputed house?

5) To what relief?

An additional issue was also framed subsequently, as follows:

Whether the plaintiffs are entitled for future mesne profits and if so, to what amount?

6. On behalf of the plaintiffs, the plaintiff No.1 was examined as

PW.1 and Exs.A1 to A9 were marked on their behalf. On behalf of the

defendants, the defendant No.2 was examined as DW.1 and Exs.B1 to

B69 were marked.

7. On considering the oral and documentary evidence on record,

the trial court decreed the suit with costs declaring the plaintiffs as

owners of the suit schedule house, directing the defendants to hand over

the vacant possession of the suit house to the plaintiffs within three

months from the date of the judgment on 10.04.2017.

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8. Aggrieved by the said judgment and decree, the defendants

preferred A.S. No.51 of 2018. The appeal was heard by the learned

Special Sessions Judge for Fast Tracking the Cases Relating to

Atrocities against Women cum IV Additional District and Sessions

Judge at Mahabubnagar and vide judgment and decree dated 08.08.2023

dismissed the appeal confirming the judgment and decree in O.S .No.72

of 2002.

9. Aggrieved by the concurrent findings of the courts below, the

defendants preferred this second appeal raising the following substantial

questions of law:

(i) Whether the court below appreciated the pleadings and evidence on record?

(ii) Whether the documents Gift deed (Ex.B64) and settlement deed (Ex.B63) were disproved by the respondent herein by adducing evidence?

(iii) Whether the judgment and decree of the appellate court is perverse and contrary to pleadings of plaint or not?

(iv) Whether the possession of the appellants over the suit property is permissive or as owner of suit property?

(v) Whether the provisions of Benami Transactions (Prohibition) Act, 1988 are applicable to this case or not?

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(vi) Whether the purchase of suit property in the name of Mohd.Ghouse by the Mustaq Ahmed under registered sale deed is correct or not?

(vii) Whether the suit is barred by limitation or not?

(viii) Whether the gift deed (Ex. B64) and settlement deed Ex.B63 confirms title and possession of appellants over suit property or not?

10. Heard the learned counsel for the appellants-defendants and

the learned counsel for the respondents-plaintiffs.

11. The learned counsel for the appellants-defendants contended

that the lower appellate court failed to appreciate the evidence and

material on record and dismissed the appeal mechanically in a routine

manner. The lower appellate court erred in opining that the appellants-

defendants had not explained and failed to give specific reasons for

registering the land in the name of the husband of the plaintiff No.1 i.e.

Mohd. Ghouse. The defendants specifically pleaded in their written

statement that Mohd. Ghouse, husband of the plaintiff No.1, was the

elder brother of the family and out of due respect, the suit property was

registered in his name. The courts below failed to consider the

pleadings and evidence on record and erred in opining that the

defendants failed explain the reasons for registering the plot in the name

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of Mohd. Ghouse. The lower appellate court erred in opining that the

defendants had failed to examine any of the family members to prove

that there was a custom in the family to register the land in the name of

the elder male member of the family. The lower appellate court failed

to consider the pleadings of the defendants in the said regard though the

defendants pleaded that out of respect and affection, the plot was

registered in the name of the elder brother of the family, but not by way

of custom. The courts below failed to appreciate the evidence of the

defendants with regard to payment of the loan amount and production of

payment receipts under Exs.B1 to B24 and B29 to B41, B65 and B66

and payment of electricity bills etc., of the house property. Though the

suit property stood in the name of Mohd. Ghouse, the defendants paid

the entire loan amount to the Co-operative Housing Society Limited and

cleared the loan and obtained no due certificate. As the property

nominally stood in the name of Mohd. Ghouse, the payment receipts

were issued in his name, but the original payment receipts were with the

defendants. The possession of the original receipts and obtaining no due

certificate Ex.B67 from the Co-operative Housing Society would show

that the defendants were the owners of the suit property.

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11.1. The courts below failed to consider the payment of property

tax to the Municipality by the appellants-defendants and since beginning

the appellants-defendants were in possession and enjoyment of the suit

schedule property and all the said facts would prove the title and

possession of the defendants-appellants over the suit property.

10.2. Though Mohd. Ghouse died in the year 2000, till filing of

the suit in the year 2002, the plaintiffs did not dispute the possession of

the defendants over the suit premises. Long standing possession without

any dispute and without any demand for eviction of premises would

clearly show the interest and title of the defendants in the suit property.

The courts below failed to consider the contents of the Gift Deed

marked under Ex.B64. As per the Gift Deed, Mohd. Ghouse orally

gifted the suit property in favour of his brother Musthaq Ahmed i.e.

deceased defendant No.1 on 31.12.1994 and conferred the title and

possession in his favour and executed the said gift deed confirming the

oral gift and expressed that he could not execute registered gift deed in

view of pendency of loan and mortgage of property with the

Co-operative bank. The courts below failed to consider the document

named as settlement deed Ex.B63 dated 27.12.2002 executed in between

the plaintiffs and defendants, wherein the plaintiffs admitted that they

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had no right and title over the suit property and the suit property should

be transferred in the name of Musthaq Ahmed. The oral gift of property

was permissible under Mohammadian Law. The plaintiffs failed to

prove that Exs.B63 and B64 were created and forged documents. The

Benami Transactions (Prohibition) Act, 1988 was not applicable to this

case as there was fiduciary relationship between real brothers. The

documents Exs.B63 and B64 were material in conveying the title over

the suit property to the appellants-defendants. But, the courts below

erred in decreeing the suit in favour of the respondents-plaintiffs.

12. The learned counsel for the respondents-plaintiffs, on the

other hand, contended that no substantial questions of law were pointed

out by the appellants-defendants. All the grounds raised by the

appellants-defendants were questions on facts which had already been

answered by the trial court and the lower appellate court. The

respondents-plaintiffs filed E.P. No.18 of 2013 on 07.11.2023 much

prior to filing of the present Second Appeal on 19.12.2023. The

respondents-plaintiffs had taken further steps in E.P.No.18 of 2023 and

the same was allowed on 09.07.2024 issuing warrant of possession. The

notices in E.P. were refused by the appellants-defendants and the

Process Server filed an affidavit in the E.P. Both the trial court and the

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lower appellate court concurrently declared that the respondents-

plaintiffs were owners of the suit schedule house and ordered for

recovery of possession. The appellants-defendants by their actions were

frustrating the decree in favour of the respondents-plaintiffs and relied

upon the judgments of the Hon'ble Apex Court in Neelam Gupta &

Ors., v. Rajendra Kumar Gupra & another1 and of the erstwhile

High Court of Andhra Pradesh in Gade Hanmandlu v. Sri

Rajarajeswara Swamy Temple (Dharmasala) Karimnagar District

and others 2 and in G. Venkat Ratnam v. Kolli Para Jhansi Lakshmi

and others 3.

12. It is a settled principle of law that in a Second Appeal filed

under Section 100 CPC, the High Court cannot interfere with the

findings of facts by the first appellate court and it is confined only to

questions of law. The second appeal can be filed if there exists a

substantial question of law. Only in exceptional circumstances, the

High Court can interfere with the findings of facts on the ground of

perversity in the findings of the courts below. The Hon'ble Apex Court

in Suresh Lataruji Ramteke v. Sau. Sumanbai Pandurang Petkar4

Civil Appeal Nos.3159-3160 of 2019 dated 14.10.2024

2005 (5) ALD 316

2011 (2) ALD 468

Civil Appeal No.6070 of 2023 dated 21.09.2023

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held that:

"After all, a second appeal is not a "third trial on facts", and so, for reappreciation of evidence to be justified, and for the same to be required as well as being demonstrably, at a different threshold from merely, a "possible different view", perversity or the other conditions of "no evidence" or "inadmissible evidence" ought to be urged, and subsequently, with the Court being satisfied on the arguments advanced, of such a possibility, the Court would then, proceed to call for the record. That is to say that accepting the argument of perversity merely on the submissions made and not having appreciated the record, would be unfair to the Court of first appeal."

13. The parameters for interference by the High Court in the

second appeal under Section 100 of CPC are well established and the

High Court cannot travel beyond the same and advert to re-appreciate

the evidence on factual aspects. The Hon'ble Apex Court in several

cases re-asserted the position that in a Second Appeal under Section 100

CPC, there is very limited scope for re-appreciating the evidence or to

interfere with the findings of facts rendered by the trial court or the first

appellate court.

14. On a perusal of the judgments of the courts below, both the

courts below have answered the questions raised by the appellants in

this second appeal. Both the courts below observed that the provisions

of Benami Transactions (Prohibition) Act, 1988 are not applicable to

this case as Ex.A1 sale transaction was dated 26.03.1979 whereas the

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Benami Transactions (Prohibition) Act, 1988 came into force with effect

from 1988 and that it has no retrospective effect and only prospective in

nature. Learned counsel for the appellants-defendants also fairly

conceded that the said question would not arise.

15. Both the courts below considered that in a suit for declaration

of title, the burden would lie upon the plaintiffs to establish their title

irrespective of the weaknesses in the stand of the defendants and

considering that Ex.A1 registered document was standing in the name of

Mohd. Ghouse, husband of the plaintiff No.1, and as the defendants

were disputing the title of the plaintiffs passed under Ex.A1, held that

the onus shifted on the defendants to prove that the original of Ex.A1

was a nominal document and considering the evidence on record,

observed that the defendants failed to establish the plea that Ex.A1 was

a nominal document in the name of Mohd. Ghouse. The courts below

held that the defendants failed to examine any other witness other than

defendant No.2 to prove that the defendant No.1 purchased the suit plot

in the name of Mohd. Ghouse or that they failed to examine any of the

brothers and brothers-in-law of defendant No.1, who advanced the loan

for construction of the house.

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16. The courts below also observed that though the defendant

No.1 had taken the plea of oral gift and that it was reduced into writing

under Ex.B64, failed to prove the same in the required manner. No

witnesses were examined to prove Ex.B64. The trial court also recorded

that DW.1 in her evidence admitted that the husband of plaintiff No.1

never delivered the possession of the suit house to them and that the suit

house was never gifted to her or to her husband (defendant No.1) by late

Mohd. Ghouse and observed that the same would falsify the contents of

Ex.B64. The trial court also observed that when the defendants were

contending that Ex.A1 was a nominal document, the question of Mohd.

Ghouse orally gifting the property to defendant No.1 and delivering

possession could not be accepted.

17. The trial court further observed that one Riyaz Ahmed was

the signatory to Ex.B64 and his non-examination was fatal to the case of

the defendants. The courts below also considered the validity of Ex.B63

which was introduced as the deed of Mutual Settlement and observed

that Ex.B63 was not proved by examining any of the persons connected

with the said document, the plaintiffs contended that Ex.B63 was a

created document and obtained by putting them under coercion and

threat that they would be made responsible for the death of defendant

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No.1 and accepted the said contention as probable as it was executed

immediately on the next day of the death of defendant No.1 and

observed that the said settlement was not acted upon by the parties as

the plaintiffs were contesting the suit.

18. The courts below also considered the documents marked

under Exs.B2 to B24 receipts, B29 to B43 receipts and B45, B47, B49,

B51 to 54 receipts, demand notices, electricity bills and the documents

marked under Exs.B65 to B69, No Dues Certificates issued by the Co-

operative Housing Society, the receipts of Mahaboobnagar Municipality

and observed that they pertain to the year subsequent to filing of the suit

and that the said documents would prove that the defendants were in

possession of the property, but when the suit itself was filed for delivery

of possession, it becomes an admitted fact that the defendants were in

possession of the property, and so the demand of the tax, electricity bills

etc., would not confer any manner of title to the defendants over the suit

house.

19. The contention of the learned counsel for the appellants-

defendants that the suit was barred by limitation and whether the

defendants were entitled for adverse possession, was also considered by

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the courts below. The courts below rightly observed that the defendants

did not set up the plea of adverse possession as against the plaintiffs and

as such, the question of limitation would not arise and when the

plaintiffs were able to establish their title by producing Ex.A1, they

were entitled to seek the relief of recovery of possession.

20. The learned counsel for the respondents-plaintiffs also relied

upon the judgment of the erstwhile High Court of Andhra Pradesh in

Gade Hanumandlu v. Sri Rajarajeswara Swamy Temple's case (2

supra), wherein it was held that:

"20. To establish the plea of adverse possession, much more than mere assertion is needed. It is necessary to examine the persons, who have seen or witnessed such party exercising the rights of ownership, adverse to the interests of the other. Further, the possession should be in respect of a property, which, such party knows, that it does not belong to it. If he is in possession of any property under the impression that he is the absolute owner, it is rather difficult to import the theory of adverse possession to such cases. To certain extent, the lower appellate Court dealt with the plea. However, once it has emerged that the appellant did not lead any evidence, in support of his plea as to adverse possession, nor insisted on, framing of any issue, his claim in this regard, cannot be accepted."

21. In G. Venkata Ratnam v. Kolli Para Jhansi Lakshmi and

others (3 supra), it was held that:

"9. Even at the cost of repetition, it need to be noted that the respondents did not dispute the title of the ancestors of the appellant, vis-à-vis the property. The

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principle of law that 'possession follows title' gets attracted, particularly when the property is a vacant site. Such a presumption, however, can be rebutted, only by taking the plea of acquisition of valuable rights by way of transfer, succession, or adverse possession of the same property, by the defendant in a suit. The respondents have taken the plea of transfer in their favour. The transfer, however, is said to be oral. Such a plea deserves to be taken note of, only to be rejected in limine. When a sale through an unregistered document cannot be recognized in law, a plea as to oral sale of a property cannot even be taken note of. Further, the respondents have not examined anyone, who is said to have orally conveyed the property."

22. In the present case also the appellants-defendants had relied

upon Exs.B63 and 64 to contend that the suit scheduled property was

transferred in their favour by the said documents. The said documents

were un-registered documents. Both these documents require

compulsory registration in tune with the mandate of Section 17 of the

Registration Act. The proviso to Section 49 of the Registration Act

mandates that unregistered documents cannot be received as evidence

except for collateral purpose. No witness was examined in proof of the

contents of the said documents also. As such, the oral gift or the mutual

settlement between the parties is rightly not believed by the courts

below.

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22. The Hon'ble Apex Court in Neelam Gupta v. Rajendra

Kumar Gupta and others (1 supra), by extracting its earlier judgments

held that:

"18. In the decision in Ram Sarup Gupta (dead) by LRs v. Bishun Narain Inter College and Others [(1987) 2 SCC 555 566], this Court held: -

"....It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it."

19. In Kashi Nath (Dead) through LRs. v. Jaganath [(2003) 8 SCC 740], this Court held that where the evidence is not in line with the pleadings and is at variance with it, the said evidence could not be looked into or relied on. In Damodhar Narayan Sawale (D) through LRs. v. Tejrao Bajirao Mhaske [2023 SCC OnLine SC], this Court held:-

"......the well neigh settled position of law is that one could be permitted to let in evidence only in tune with his pleadings. We shall not also be oblivious of the basic rule of law of pleadings, founded on the principle of secundum allegata et probate, that a party is not allowed to succeed where he has not set up the case which he wants to substantiate."

23. In the present case also, there is no pleading or evidence with

regard to the plea of adverse possession as contended by the learned

counsel for the appellants-defendants in the second appeal.

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24. The Hon'ble Apex Court has also extracted its earlier

judgment in Saroop Singh v. Banto 5, wherein it was held that:

"28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, the plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant-appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred.

29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak [(2004) 3 SCC 376].

30. "Animus possidendi" is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita [(2004) 1 SCC 271]"

25. The Hon'ble Apex Court also extracted its decision in

Ravinder Kaur Grewal and Ors. v. Manjit Kaur and Ors. 6, wherein

it was held that:

(2005) 8 SCC 330

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"60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge.

Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required......"

26. The Hon'ble Apex Court further held that:

"44. In M. Siddiq (D) through LRs (Ram Janmabhumi Temple case) v. Mahant Suresh Das and Ors. [(2020) 1 SCC 1] paragraphs 1142 and 1143 assume relevance and they, in so far as relevant to this case, run as under: -

"1142. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit ought to be cognizant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. It becomes then necessary to assess as to whether the claim of adverse possession has been established.

(2019) 8 SCC 729

Dr.GRR,J

1143. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous possession which meets the requirement of being nec vi nec claim and nec precario. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case."

27. Considering the guidelines stated by the Hon'ble Apex Court

which need to be considered when the plea of adverse possession is

taken by the parties, but in the present case, there is no plea with regard

to adverse possession taken by the defendants and no issue was framed

in the said regard and no evidence was adduced by the parties with

regard to the said plea, the said plea of adverse possession is not

available to the appellants-defendants. This Court does not find any

perversity in the findings recorded by the courts below to set aside the

same or any substantial question of law as contended by the learned

counsel for the appellants-defendants arising in this matter. As such, the

second appeal is liable to be dismissed at the stage of admission itself as

Dr.GRR,J