1. The appeal has been admitted on the substantial question of law formulated as below :

“(i) Whether the lower Appellate Court erred in law in not considering the fact that the plaintiffs have conceded that there was sufficient evidence on record showing that deceased Krishna had executed sale deed of suit properties in favour of Mahadeo on September 22, 1943 and thus accepted the title of the defendants since 1953 till 1985 when for the first time the plea of adverse possession was raised ?

(ii) Whether it ought to have been held that the plaintiffs have failed to prove continuous physical possession for more than 12 years and that such possession is hostile to title holder ? ”

2. Heard Mr. Chetan Patil, the learned counsel for the appellant and Mr. P.G. Karmale, the learned counsel for the respondents.

3. A brief reference to the factual aspect is necessary for deciding this appeal.

Respondent Nos.1 and 2 have filed Special Civil Suit No.244/1985 in the Court of Civil Judge S.D., Kolhapur against the appellants herein for declaration of title and for perpetual injunction. The suit property is land admeasuring 141 – 95 sq. mtrs. situated at City Survey No.894/1, 894/2 at Kolhapur and City Survey No.896 admeasuring 23.4 sq. mtrs. The suit property was of ownership of common ancestor Daulata Shinde, who had four sons Tukaram, Krishna, Namdeo and Vishwas Krishna, died on March 8, 1953 leaving behind two sons Pandurang and Dattatray. Pandurang died on October 9, 1975 leaving behind the plaintiff, his widow and brother Dattatray. The plaintiff's ancestor Krishna was owner and they have inherited the suit property and it was in their possession. The defendants claim that their predecessor had purchased the suit property from the plaintiffs' father-in-law Krishna on September 22, 1943 by registered sale deed. According to the appellants, the said transaction was sham, hallow and bogus, there was no transfer of title nor there was delivery of possession. Alternatively, the plaintiffs claimed that the plaintiffs were in adverse possession of the suit property for more than 12 years and thereby they have become owners of the suit property. Hence they claimed declaration regarding the nature of sale, annulment of the sale deed and for perpetual injunction. The defendants filed their written statement Exhibit18 and claimed that the said transaction was a genuine transaction and the same was not challenged within limitation. The claim for declaration is not maintainable. The defendants denied the claim of the plaintiffs of adverse possession.

4. The learned Civil Judge, S.D. Kolhapur after recording the evidence held that the plaintiffs were in possession, however, it was held that the plaintiffs failed to prove that the sale transaction dated September 22, 1943 was false, sham and bogus and also failed to prove adverse possession. He held that the possession was not lawful and held that the plaintiffs were not entitled for perpetual injunction. Hence, the suit came to be dismissed vide judgment and decree dated January 22, 1990.

5. Aggrieved, the plaintiffs preferred Regular Civil Appeal No.95/1990 before the District Court, Kolhapur. In the said appeal, the learned advocate for the plaintiffs did not press the challenge for declaration regarding the sale deed dated September 22, 1943 as null and void. The learned Additional District Judge, Kolhapur on the basis of material on record held that the plaintiffs have succeeded in proving adverse possession and, therefore, he granted a decree of declaration of ownership and perpetual injunction by judgment March 12, 1997.

6. Both the substantial questions of law relates to the issue of ownership by adverse possession. In the case of Gurdwara Sahib V/s. Gram Panchayat Village Sirthala and another, (2014) 1 Supreme Court Cases 669 the Apex Court has held that the claim of adverse possession can be made use of by way of shield and not as a sword, as a defence when arrayed as a defendant in a