Abhay Manohar Sapre JUDGMENT
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 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, 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 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 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 t........