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Owner must act within 12 years or squatter will get rights

Person, who claims title over property on strength of adverse possession is required to prove his case only against true owner of property

In Dagadabai (dead) by L.Rs. v. Abbas, the First and Second Appellant Court concurring with the trial court had allowed the appeal but the High Court wed the appeal and while setting aside judgment/decree of two Courts below and the matter came to the Supreme Court.

The Hon'ble Supreme Court held that the 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. 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.

Further the Supreme Court held that, 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. 

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. 

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