REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6034 OF 2011

(Arising out of SLP (Civil) No. 18923 of 2010)

Umerkhan

…. Appellant

Versus

Bismillabi @ Babulal Shaikh & Ors.

….Respondents

JUDGMENT

R.M. Lodha, J.

Leave granted.

2.

This appeal, by special leave, has been preferred by the

original 1^st defendant against the judgment of the High Court of

Judicature of Bombay, Aurangabad Bench whereby the learned

Single Judge of that Court reversed the judgment and decree passed

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in the appeal by the Additional District Judge, Osmanabad and

restored the judgment and decree of the trial court.

3.

Sardar Khan was the owner of a property bearing land

Block No. 386 and House No. 206 situate at Mangrul, Taluqa Kallam,

District Osmanabad. He died in 1948 leaving behind a son —

Umerkhan and two daughters—Bismillabi and Aminabi. Both

daughters were minor at the time of the death of their father. They got

married later. Bismillabi (hereinafter referred to as, ‘plaintiff’) filed a

suit for partition and separate possession to the extent of 1/4^th share

in the above property against her brother Umerkhan (hereinafter

referred to as, ‘1^st defendant’) and her sister Aminabi (hereinafter

referred to as, ‘2^nd defendant’). The plaintiff’s case in the plaint was

that as per the Muhammadan Law, the 1^st defendant has 1/2 share

while the 2^nd defendant like her has 1/4^th share in the suit property.

4.

The 1^st defendant contested the suit on diverse grounds.

Inter alia, a plea was taken by him that plaintiff has been ousted of

her right, title and possession in 1967 and the suit having been

brought in 1990 was not only barred by limitation but also he has

acquired title by adverse possession as he has been holding hostile

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possession over the property to the knowledge of the plaintiff. The 2^nd

defendant did not file any written statement and the suit proceeded

against her ex-parte.

5.

The trial court framed as many as four issues; issue no. 4

being whether 1^st defendant has proved that he has become owner

of the suit property by adverse possession. The trial court recorded

the evidence and after hearing the advocates for the plaintiff and the

1^st defendant vide its judgment and decree dated October 18, 1993

declared that plaintiff and 2^nd defendant were entitled to 1/4^th share

each and the 1^st defendant was entitled to 1/2 share in the suit

property. The trial court ordered for effecting partition by metes and

bounds accordingly.

6.

Against the judgment and decree of the trial court, the 1^st

defendant preferred first appeal before the District Court, Osmanabad

which was transferred to the Court of Additional District Judge,

Osmanabad for its disposal. The first appellate court reversed the

finding of the trial court on issue no.4 and held that the 1^st defendant

became owner of the suit property by adverse possession and,

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accordingly, allowed the first appeal on August 1, 2001 and set aside

the judgment and decree of the trial court.

7.

The plaintiff challenged the judgment and decree of the

first appellate court in the second appeal before the High Court. In

the course of second appeal, 2^nd defendant died and her legal

representatives were brought on record. The High Court allowed the

second appeal and, as noticed above, set aside the judgment and

decree of the first appellate court.

8.

Pertinently, the judgment of the High Court that runs into

eight foolscap pages does not indicate that scope of second appeal

as provided in Section 100 and Section 101 of the Code of Civil

Procedure, 1908 (for short, ‘the Code’) was kept in mind while

hearing the second appeal. In para 7 of the judgment, the High

Court observed thus:

“I have minutely gone through both the judgments of the

Courts below only on the issue of adverse possession

which