HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW SECOND APPEAL No. - 301 of 2017 RESERVED Court No. - 7 HON'BLE JASPREET SINGH, J. 1. This is the defendants' second appeal under Section 100 CPC assailing a judgment and decree of reversal passed by the First Appellate Court in Civil Appeal No.59 of 2015 dated 27.03.2017, whereby it allowed the plaintiffs' first appeal, as a consequence, Civil Suit No.749 of 1996, which was dismissed by the trial Court, has been decreed by the First Appellate Court. 2. For the sake of convenience, the Court shall be referring to the parties as they were originally impleaded in the suit. BACKGROUND FACTS:- 3. Shri Jai Narain and Shri Ram Chandra, both the sons of Jawala Prasad as plaintiffs had filed a suit seeking a decree of declaration and injunction against Ram Autar and Ramesh Chandra, both sons of Makkhan Lal. The suit came to be registered as R.S. No.749 of 1996. It was pleaded that the disputed property in question was a plot situate in Kasba Palia, Mohalla Bazar, Pargana Palia, District Kheri which was purchased by means of a registered sale-deed dated 07.01.1961 for a sum of total consideration of Rs.5,000/- and executed and registered in the names of the plaintiff No.1, namely, Jai Narain and the defendant No.2, namely, Ramesh Chandra. 4. It was further pleaded that an oral family settlement took place between the plaintiffs and the defendant No.2, as a consequence, the northern portion Versus Counsel for Appellant(s) : Anurag Narian Srivastava Counsel for Respondent(s) : Sushil Kumar Rastogi, Mahfooz Alam, Priyank Yadav, Rashmi Agarwal, Roopa Agarwal, Siddhant Pandey, Utsav Mishra, Vikram Singh Chauhan Ram Autar Garg .....Appellant(s) Shri Jai Narayan And 6 Others .....Respondent(s) of the property came in the hands of the plaintiff and in the said portion, the plaintiff had raised two rooms with a tin-shed roof, which has been in the possession of the plaintiffs. 5. It was also pleaded that the portion which fell in the share of the defendant No.2, over which he had raised his own construction. The plaintiff, who had his business in District Bareilly used to frequently stay in Bareilly and put the disputed portion under the supervision of his real younger brother i.e. the plaintiff No.2. However, the plaintiff No.1 continued to be the owner in possession. It was alleged that the plaintiff No.2 informed the plaintiff No.1 in October, 1996 that the defendant No.2 had an evil intention of encroaching upon the share of the plaintiffs and was attempting to remove the two rooms raised by the plaintiffs. 6. It is in the aforesaid backdrop that the suit came to be filed initially claiming a decree of declaration and injunction, however, during pendency of the suit, the plaintiffs amended the plaint by moving an application for amendment which was allowed by the trial Court on 24.09.2003 and a relief of possession was also introduced. 7. The aforesaid suit came to be contested by the defendant No.2, who filed his written statement and stated that the plaintiffs and the defendants were members of a Joint Hindu Family and the disputed property was purchased from the Joint Hindu Family funds but in the names of the plaintiff No.1 and the defendant No.2. 8. It was further pleaded that in an around the year 1965, the joint family status was severed and some of the properties were divided and in terms of the aforesaid division, the disputed property came in the share of the defendants and in lieu thereof the plaintiffs got the godown situate in Mohalla Bazaar. It was further stated that the defendant was the exclusive owner of the property in possession and moreover the defendants had raised construction in the year 1971 but it was opposed by the plaintiffs, who attempted to restrain the defendants from raising construction. However, the defendants continued to maintain his possession over the property in question since 1971 and it is further urged that if at all the property may not be proved to be of the Joint Hindu Family, yet the defendants having remained in the property with notice to the plaintiff for uninterrupted period SAPL No. 301 of 2017 2 of more than 12 years as its owner in possession, hence, they had perfected their rights by adverse possession and thus, for the said reasons as well, the suit having been filed in the year 1996 seeking declaration, injunction and possession cannot be decreed and deserves to be dismissed. 9. Upon the exchange of pleadings, the trial Court initially framed five issues. Thereafter, two additional issues were also framed. For the purposes of the instant appeal, the Issues No.1, 3 and 6 as framed by the trial Court are relevant which would encompass the entire controversy. 10. The Issue No.1 related to the fact as to whether the plaintiff can be declared as the owner in possession of the property in question. Issue No.3 as framed by the trial Court related to the fact as to whether the defendants had perfected their rights of adverse possession as claimed in Para-22 of their written statement and the Issue No.6 whether the defendants had entered into the possession during pendency of the suit as alleged by the plaintiffs, after amending the plaint in suit. 11. The parties led their respective oral as well as documentary evidence and thereafter the trial Court returned a finding that since the plaintiff No.1 himself stated that he was primarily staying in Bareilly, hence, his possession over the disputed property was found doubtful. The trial Court also noticed that since the defendants were able to establish their possession over the property, hence, they had perfected their rights by adverse possession and with the aforesaid two findings, it dismissed the suit by means of judgment and decree dated 13.07.2015. 12. The plaintiffs preferred regular civil appeal under Section 96 CPC bearing 59 of 2015 and after due contest the First Appellate Court reversed the findings and held that admittedly the property was purchased in the names of the plaintiff No.1 and the defendant No.2. Since, the plea of Joint Hindu Family was raised by the defendant No.2, but, he was unable to establish the existence of Joint Hindu Family, its severance or the division in terms whereof the defendants got the exclusive right in the disputed property. Hence, apparently, the sale-deed being in favour of the plaintiff No.1 and the defendant No.2, the title vested with them and since the division was not disputed nor the defendant No.2 could establish his continuous possession in hostility to the notice of the plaintiff, hence, the SAPL No. 301 of 2017 3 plea of adverse possession was not made out and since the suit had been preferred seeking a decree of possession which was based on primarily on title, hence, the suit was decreed by means of the judgment and decree dated 27.03.2017 which is now under challenge before this Court in the instant second appeal. SUBSTANTIAL QUESTIONS OF LAW:- 13. The record indicates that a Coordinate Bench of this Court by means of the order dated 03.07.2017 had admitted the second appeal on the substantial questions of law as framed by the appellant at S.No.1, 2, 3 and 4 in the memo of second appeal and further as an interim measure directed the parties to maintain status-quo. 14. For the sake of convenience, the substantial questions of law as framed in the memo of appeal are being reproduced hereinafter:- "1. Whether under Section 6(2) of Specific Relief Act no suit for recovery of possession can be brought after expiry of six month from the date of dispossession while the first appellate court ignoring the provisions of Section 6(2) of Specific Relief Act, allowed the suit of the plaintiffs which was barred by time being not filed within six month from the date of dispossession as pleaded and proved in Para 20 of written statement by the defendant/present appellant? 2. Whether it is incumbent the plaintiffs to plead & prove his title to dismantle the case of the defendant but first appellate court erred in not adhering to this principal of law? 3. Whether Photostat copy of sale deed dated 07.01.1961 is admissible in evidence in view of Section 64, 65 & 77 of Indian Evidence Act? 4. Whether it is incumbent the on the first appellate court to adhere the provisions of Order 41 Rule 31 C.P.C. & must deal & reverse the finding of trial Court setting aside the judgment of trial court, the first appellate court erred in not dealing the finding of trial court & even points of determination were not made while SAPL No. 301 of 2017 4 passing the impugned judgment?" SUBMISSIONS OF THE APPELLANT:- 15. Shri Anurag Narain Srivastava, learned counsel appearing for the appellant has vehemently urged that the disputed property in question was purchased by means of the sale-deed dated 07.01.1961 for a total sale consideration of Rs.5,000/-. At the relevant time, the plaintiff No.1 and the defendant No.2 did not have their independent source of income rather the family of the plaintiff No.1 and the defendant No.2 were joint and they had a joint business and from the Joint Hindu Fund, the said property was purchased though in the names of the plaintiff No.1 and the defendant No.2. This being the situation, the property was that of Joint Hindu Family and since the year 1965, the Joint Hindu Family status was severed. The said property vested with the defendant No.2 exclusively and in lieu thereof the plaintiff No.1 got a godown at Mohalla Bazaar, hence, neither the plaintiff could claim title to the said property nor he could claim its possession. 16. It was further urged that the defendant No.2 has been in its exclusive possession throughout and even though if the property is not treated to be of Joint Hindu Family and the division of the properties after severance of the Joint Hindu status may not be proved, yet the fact remains that the defendant No.2 continued to be in its hostile possession throughout in the knowledge of the plaintiff, hence, the defendant No.2 had perfected his right by adverse possession. 17. Shri Srivastava has further urged that admittedly in the year 1996 when the suit was filed, the plaintiffs did not seek the relief of possession. It is only in the year 2002 that the plaintiffs amended the plaint and sought a relief of possession whereas the defendants had always stated that they were in exclusive possession throughout. Thus, the uninterrupted possession of the plaintiff was tacitly admitted. 18. It was also urged that the defendants being in complete control and possession of the said property as its owner with notice to the plaintiff and for the world and the defendant also raised construction in 1971-72, which was known to the plaintiff yet he did not initiate any proceedings. The suit came to be filed in the year 1996 by which time the defendant had already SAPL No. 301 of 2017 5 perfected his rights by adverse possession, hence, either way the suit could not have been decreed by the First Appellate Court and the decree of the trial Court did not require any interference. 19. Taking his submissions forward, Shri Srivastava further submits that though the suit was instituted in the year 1996 and the defendants had taken the defence that the plaintiff was not in possession in his written statement then the plaint was amended only by moving an application for amendment in the year 2002 thereby admitting that the plaintiff was in possession and in case if he felt so then the plaintiff ought to have sought remedy in terms of Section 6 of the Specific Relief Act, 1963 (for short, 'the Act of 1963'), but admittedly no suit in terms of the aforesaid section was filed within six months from the alleged date of dispossession, hence, the plaintiff could not have sought relief of possession and on this count alone, the suit was liable to be dismissed. 20. It was also submitted that the basic premise of the suit of the plaintiff was based on the alleged sale-deed in the year 1961, however, it was incumbent upon the plaintiff to have proved his title and the plaintiff had merely filed photocopies of the sale-deed which was not admissible in evidence and in absence thereof, the suit could not be decreed by the First Appellate Court. 21. Lastly, it was urged that without prejudice to the grounds and submissions advanced above, the judgment of the First Appellate Court also fell foul of the provisions of Order XLI Rule 31 CPC as the First Appellate Court did not deal with the findings of the trial Court nor reverse the same while allowing the appeal. Learned counsel for the appellant has relied upon the following decisions (i) Desh Raj v. Bhagatram, AIR 2007 (Suppl.) SC 512; (ii) Abhey Ram v. Jhanda, AIR 1929 All 910 to submit that even the co-sharer can claim adverse possession. He has also relied upon the following decisions of this Court, to submit that unless and until there is strict proof of loss of original documents secondary evidence cannot be admitted and moreover the photocopies are not admissible in evidence, (i) Rakesh Mohindra v. Anita Beri, 2016 LCD 882 (SC); (ii) Jaspat Rai v. Devi Dayal, 1916 AIR All 244; (iii) Smt. Manoramma v. Smt. Saroj, AIR 1989 All 17 and (iv) Srikant v. State of U.P., 1997 ALJ 575. SAPL No. 301 of 2017 6 SUBMISSIONS OF THE RESPONDENTS:- 22. Shri Utsav Mishra, learned counsel appearing for the respondents has submitted that the plea of adverse possession as raised by the appellant is mutually descriptive and cannot be countenanced in law. It is further urged that to substantiate a plea of adverse possession, it must commence from introducing specific foundation in the pleadings with particularity relating to the date on which a person claiming a plea of adverse possession entered into the possession, he must also indicate that who is the true owner and from which date, there was an animus or hostility which was known to the original true owner and from that date, the possession of the person, raising such a plea, has been hostile and uninterrupted for 12 years and only thereafter a plea of adverse possession can be said to be proved. 23. In the aforesaid context, in absence of any proof or in light of discrepancies between the pleadings and the proof, a plea of adverse possession cannot be held to be substantiated as in the instant case. 24. The trial Court by adverting to the pleadings had discredited the evidence and came to the conclusion that the defendant had perfected his rights by adverse possession which was patently erroneous and against the decisions of the Apex Court as well as this Court. Hence, the same was found unsustainable by the First Appellate Court and to that extent, the judgment reversing the findings on adverse possession by the First Appellate Court cannot be faulted. 25. It is further submitted by the learned counsel for the respondents that the defendant had raised a plea of Joint Hindu Family and that the property was purchased from the Joint Hindu Family fund. In law, any person, who raises a defence or plea is required to substantiate the same with cogent evidence and on that count there was no evidence at all, hence, the defendant had failed to substantiate his plea of Joint Hindu Family theory. In absence of any evidence, the admitted fact remained that the suit preferred by the plaintiff was on the basis of his title emanately from a deed of the year 1961 and in such circumstances, the plaintiff was entitled to claim possession, hence in this context, there was no requirement to invoke proceedings under Section 6 of the Act of 1963 as suggested by the learned counsel for the appellant. SAPL No. 301 of 2017 7 26. It was further urged that the plaintiff had filed the certified copy of the sale-deed dated 07.01.1961 which was not disputed by the defendant either in context of source of title of the plaintiff nor objections were raised on account of its admissibility before the trial Court. Moreover, a fact which was admitted and the document was not denied it could not be discarded and moreover the alleged objections raised by the appellant before this Court regarding the sale-deed being a photocopy or it being treated as the secondary evidence without even loss of original pales into insignificance. Hence, the said plea raised by the appellant without foundation during trial and raised before this Court in second appeal has no merit. 27. It was further urged that the judgement of the First Appellate Court complies with the mandate of Order XLI Rule 31 CPC and the findings have been returned by the First Appellate Court indicating that the findings recorded by the trial Court were not based on proper appreciation of evidence, hence, have been reversed and the suit dismissed by the trial Court, has been allowed by the First Appellate Court and the said judgment and decree does not suffer from any error which may require any interference by this Court under Section 100 CPC. Thus, for the aforesaid reasons, the alleged substantial questions of law do not arise in the instant second appeal and the second appeal deserves to be dismissed. 28. In support of his submissions, learned counsel for the respondents has relied upon the following decisions (i) P.T. Munichikkanna Reddy and others v. Revamma and others, (2007) 6 SCC 59; (ii) D.P. Misra v. S.D. Singh, 2019 SCC OnLine All 1838 and (iii) Smt. Shyam Dulari and others v. Ganga Prasad, MANU/UP/2729/2023. DISCUSSIONS AND ANALYSIS:- 29. The Court has heard learned counsel for the parties and also perused the material on record. 30. At the outset, it may be noticed that the plaintiff while filing his suit had filed the certified copy of the sale-deed dated 07.01.1961 along with document list bearing Paper No.G-30 and the certified copy of the said sale- deed bearing Paper No.G-31/1 to G-31/2. In the written statement filed by the defendant bearing Paper No.Ka-21 in Para-17, the sale-deed dated SAPL No. 301 of 2017 8 07.01.1961 was not disputed. Thus, the existence and the authenticity of the said sale-deed was never in questions. Merely because the plaintiff filed a certified copy of the sale-deed, it cannot be said that the secondary evidence would not be admissible unless loss of the original is proved. This situation could have arisen if the defendant would have disputed the sale-deed dated 07.01.1961 or he would have disputed the contents of the documents or had taken any plea which discredits the said document. Apparently, this is not the case here rather the defendant himself admits that the property in question was purchased by the very same sale-deed dated 07.01.1961 and his case was that it was purchased from the Joint Hindu Family funds, but admitted the fact that the said sale-deed related to the property in question and was executed in the names of the plaintiff No.1 and the defendant No.2. 31. In this view of the matter, the entire contention made by the learned counsel for the appellants pales into insignificance. The decision cited by the learned counsel for the appellant on the point that the secondary evidence cannot be led unless the loss of the original is proved, as the proposition cannot be disputed but in the given facts and circumstances, it has no applicability. There is no denial of the fact that by virtue of the very same sale-deed dated 07.01.1961, the plaintiff No.1 and the defendant No.2 got their rights in the property. 32. At this stage, without noting the impact of the sale-deed and whether it belonged to the Joint Hindu Family funds or not, which will be discussed latter, however, as far as the proposition as canvassed by the learned counsel for the appellant to discredit the judgment and decree passed by the First Appellate Court on the ground that the plaintiff did not prove his title or the certified copy of the sale-deed could not be relied as the original was not filed and secondary evidence relating to certified copy could not be entertained without proving loss of original is misconceived. 33. In view of above, the substantial questions of law as framed at S.No.2 and 3, in the memo of appeal are answered accordingly. Thus, this Court is of the clear view that the said submissions have no credibility and is accordingly turned down. 34. Now taking into consideration the plea of Section 6 of the Act of 1963 and its applicability to the present case, it would reveal that the plea of SAPL No. 301 of 2017 9 Section 6 of the Act of 1963 was never raised by the defendant in the written statement nor before the First Appellate Court. Needless to say that the provisions of Section 6 of the Act of 1963 is based on the premise that in case if a person, who has been in possession is illegal dispossessed, he has the liberty of instituting proceedings under Section 6 of the Act of 1963 to claim possession, only by showing his possession six months prior to the date of alleged dispossession and he was illegally dispossessed. Such a suit is to be filed within six months from the date of the alleged dispossession. The suit preferred under Section 6 of the Act of 1963 is of a summary nature where the Court is not required to enter into the title of the parties rather it is based on the premise that any person, who is in settled possession cannot be dispossessed without due process of law and in case if any illegal dispossession has taken place, the said person gets back his possession provided the suit is filed within six months. In the said proceedings, the Court is only required to return a finding that a person invoking the plea, was in settled possession and that he has been illegally dispossessed. Any findings returned in such proceedings are not appealable rather it can only be assailed in a revision. 35. In the instant case, even though the plaintiff had filed a suit seeking a declaration and injunction at the first instance and later introduced a decree of possession, but the fact remains that even while instituting the suit, he had specifically based his case on title. In such circumstances, merely because the plaintiff did not seek a remedy from the date of alleged dispossession in terms of Section 6 of the Act of 1963 cannot debar the plaintiff from contesting his suit which was based on title and such a suit is governed by Section 5 of the Act of 1963 and once the said suit is pending, he had remedy of seeking an amendment which was allowed by the trial Court on 24.09.2003 and admittedly this order allowing the amendment was never assailed by the defendant at any point of time nor raised any such plea before the First Appellate Court. For the aforesaid reasons, the plea of Section 6 of the Act of 1963 as raised by the learned counsel for the appellant to defeat the suit of the plaintiff on the aforesaid premise, is also misconceived and is accordingly turned down. 36. Now examining the plea of adverse possession as raised by the counsel for the appellant. It will be relevant to notice the observations of this Court SAPL No. 301 of 2017 10 in D.P. Misra (supra) and Smt. Shyam Dulari (supra), wherein this Court taking aid of the decisions of the Apex Court considered the plea of adverse possession and the relevant paras read as under:- "In order to arrive at a finding regarding adverse possession, it was absolutely essential for a person raising such a plea to plead and prove the following ingredients:- "(a) on what date, he came into possession; (b) what was the nature of his possession; (c) whether the factum of possession was not known to the other party; (d) how long his possession has continued; and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since, he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession." All the aforesaid conditions must be pleaded and proved simultaneously (See: 2013 (13) LCD 1448 - Smt. Firoz Jahan and others vs. Nazim Husain and others)." 37. Now applying the aforesaid principles to the facts of the instant case, it would reveal that the defendant had taken a mutually destructive plea that is to say on one hand he urged that the property belonged to the Joint Hindu Family purchased from the Joint Hindu Family funds and after severance of the Joint Hindu Family status, the said property come in the hands of the defendant No.2 and in lieu thereof, the plaintiff got the property situate in Mohalla Bazaar. Thus, by the said plea, the defendant claimed rights into the property as its full owner in terms of a settlement/partition/division which is said to have been taken place at the time when the Joint Hindu Family status was severed in the year 1965. On the other hand, the defendant has taken a plea that he has perfected his rights by adverse possession. Either a person SAPL No. 301 of 2017 11 can claim to be the owner on the basis of title vested in him or he can simplicitor say that though he may not have any title, but the fact remains that his possession has been uninterrupted and hostile to the notice of the original owner of the property and his possession remained undisturbed and he has perfected his rights of adverse possession. Both these pleas cannot be taken simultaneously. 38. As far as the decision cited by the learned counsel for the appellant in Desh Raj (supra) is concerned, it would reveal that the Apex Court in Para- 23, 24 and 25 has considered the issue of adverse possession and the Court also took note of other decisions of the Apex Court as noticed in Para-28, 29 and 30 of the said report and it was held by the Apex Court in Para-32 that in the peculiar facts of the said case the Court upheld the contentions of the plaintiff that he had acquired title by ousting the defendants, who were co- sharers. The said decision does not as a matter of principle lay down the law that in all cases a co-sharer can claim adverse possession. 39. In contradistinction to the said case, the Apex Court in P.T. Munichikkanna Reddy (supra) has clearly taken note of the manner in which a plea of adverse possession is to be proved. It is not disputed that the plea that property was of a Joint Hindu Family was taken by the defendant and in law if such a plea was raised then the burden of proving the same was on the defendant. In this context, in the pleadings delivered by the defendant, there was no particularity regarding the status of the Joint Hindu Family. There is no detail that who were the members of the Joint Hindu Family, what was the nature of business from where Joint Hindu Family funds were generated. It also does not give a detail that what all properties were created by the Joint Hindu Family and how and when the Joint Hindu Family status was severed including of the business, from which the Joint Hindu Family funds were generated. 38. It is also to be noticed that in the cross-examination of the defendant No.2, marked as Paper No.A67/5, it was stated by the defendant No.2 that the father of the defendants had died sometimes in 1964-65. It was also stated that the father of the plaintiff died in the year 1985, therefore, it was incumbent upon the defendants to establish what were the Joint Hindu properties, businesses and upon the severance of the Joint Hindu Family, SAPL No. 301 of 2017 12 what all was made the subject of the division and between whom the division took place. There is not a whisper to the aforesaid effect in the pleadings nor the defendant could establish the aforesaid in his evidence. The defendant in his cross-examination also took a fanciful plea that in the partition/division only one property was divided. It is inconceivable in law that a partition can take place only in respect of one property as the law does not envisage a partial partition. 39. Specific questions were put to the defendant as to how many properties were the subject matter of the Joint Family. When it was done. What was the nature of the common business, but to all the such questions, the defendant showed his ignorance, during his cross examination. 40. In the aforesaid backdrop where the defendant himself could not establish the plea of Joint Hindu Family, the only inference which can be drawn from the material available before the Court was the fact that a property in question was purchased by means of the sale-deed dated 07.01.1961 in the names of the plaintiff No.1 and the defendant No.2. Thus, the plaintiff having filed a suit on the basis of the said title-deed, it is undisputed that the plaintiff would not have 50% share. If the share of the plaintiff No.1 could not be disputed and the defendant stated that the partition took place wherein the entire property came in the hands of the defendant No.2, it was a plea which had to be established by the defendant which he miserably failed to establish. 41. In the given facts, where in 1961, both the plaintiff No.1 and the defendant No.2 were the co-owners of the property in question and it is not disputed that the defendant raised constructions over the southern portion and in absence of any evidence brought on record by the defendants to establish that he had control over the entire property inasmuch as it was the case of the defendant No.2 that after the severance of the Joint Hindu Family status, the entire property came in his hands, if so, how and when the said family division was acted upon, as not a single document was brought on record by the defendant to indicate either his mutation or his concrete possession over the years since the severance. Moreover, if the evidence of the DW-2 is seen, it would indicate that the said witness could not answer any question put to him relating to the background of the joint family, when SAPL No. 301 of 2017 13 the Joint Hindu Family came to an end and how the defendant got control of the entire property. At this stage, it will also be relevant to notice that the defendant also could not establish that how and when he came into possession of the entire property and what was the nature of his possession. He could not indicate how long his possession continued and that it was undisturbed and hostile to the rights and knowledge of the original owner also whom did the defendant No.2 recognize as the true owners. 42. The findings returned by the trial Court to the effect that the defendant has been in possession is based primarily on the statement of the plaintiff witness, who stated that he had business in Bareilly and that he usually resided there in connection with his business and, therefore, it assumed that the defendant was in possession. 43. This reasoning of the trial Court was patently erroneous inasmuch as it cannot be said that if a person is a resident of one place, he cannot purchase or he cannot own the property in other place and if he does and it is shown that he is a resident of a different place then he would not have possession of the said property. 44. It is in this backdrop when the material available on record is seen, it would indicate that there is no dispute that the property was purchased in the year 1961 in the names of the plaintiff No.1 and the defendant No.2. That being the genesis and origin of the property, apparently, in absence of any other evidence, the law will recognize that the title vested with the plaintiff No.1 and the defendant No.2. Thus, both the plaintiff No.1 and the defendant No.2 would be the co-owners. The plaintiff took a plea that an oral settlement arrived at between the plaintiff No.1 and the defendant No.2 and in pursuance whereof, the plaintiff No.1 got the northern portion, while the defendant No.2 got the southern portion. 45. This fact appears to have been admitted/an inference can be taken note of as far as that the defendant is concerned, he also stated that there was a severance of ties and in consequence whereof, the defendant No.1 received the entire property. Now in the aforesaid circumstances, if the defendant claimed full rights, the burden was upon him which he failed to establish and the plea that the plaintiff claimed only the northern portion whereas defendant had raised construction over the southern portion would give SAPL No. 301 of 2017 14 credence to the division between the plaintiff No.1 and the defendant No.2. No evidence was led by the defendant as to when and how he had raised the construction nor any witness was produced to establish that fact nor any document regarding the assessment of the said building raised by the defendant having been recorded in his name in the municipal records or other such contemporaneous documents were brought on record. 46. Even when the suit was filed in the year 1966, the defendant could not indicate with sufficient particularity as to the date on which he came into the possession of the entire property rather he admitted the fact that in the year 1971, the defendant tried to raise construction which was resisted by the plaintiff and that the defendant maintained his possession. This particular statement clearly indicates that the plaintiff did have rights in the property and in light of his version contained in the plaint that he had possession through his real brother, who was given to supervise the property, whereas the plaintiff looked after the business in District Bareilly and the plea of possession was sufficiently established. 47. As noticed above, the defendant could not establish his possession rather his possession appears to be based on the premise that since the plaintiff was residing and controlling the business in Bareilly, he could not have possession in Paliya. There can be no such assumption or inference unless there is cogent evidence to support it. 48. At this stage, it will also be relevant to notice that if the statement of the defendant No.2 is taken to be correct then it was to be explained by the defendant as to why the defendant No.1 Ram Autar, the real brother of the defendant No.2 was not examined as a witness because if the Joint Hindu Family status was severed then it would only imply unless proved otherwise based on pleadings that the Joint Hindu Family of Jawala Prasad and Makkhan Lal upon its disintegration would create a smaller Joint Hindu Family between the defendant and his brother. However, if he had taken the plea that all the members had severed their joint ties then it was the duty of the defendant to have established the same including by bringing on record witness and proof to the aforesaid effect which has not been done. No family member was produced by the defendant including his real brother and the other witnesses, who were examined on behalf of the defendant, were the SAPL No. 301 of 2017 15 neighbours and shifting through their testimony indicates that they had no knowledge of the aforesaid facts. 49. In the aforesaid circumstances, the plea of adverse possession as raised could not be established nor the title of the plaintiff No.1 could be disputed and in the given circumstances, the plea of adverse possession not having been proved in law, the necessary outcome would be that the plaintiff being the owner and having a valid subsisting title was entitled to get his possession over his portion of the property and which according to the plaintiff was encroached only during pendency of the suit and in absence of contrary evidence from the side of the defendant, this Court does not find that there is any erred committed by the First Appellate Court in coming to the conclusion that the defendant had failed to establish his right of adverse possession. 50. Lastly, as far as the plea raised by the appellant regarding the judgment of the First Appellate Court falling foul of the provisions of Order XLI Rule 31 CPC is concerned, this Court finds that the same is apparently misconceived for the reason that the judgment passed by the First Appellate Court clearly notices the respective pleadings, the issues framed, the evidence led and it also noticed the core issue before the First Appellate Court which was nothing but the point of determination which was before the First Appellate Court, to be decided. The evidence has been taken note of and findings have been returned which cannot be said to be erroneous nor the procedure or the manner in which the First Appellate Court has delivered its judgment can be said to be in violation of the provisions of Order XLI Rule 31 CPC. In this regard, the decisions of this Court in Dalla v. Nanhu, 2019 (1) ADJ 246 [LB] and Gutta Devi v. Jai Nath, MANU/UP/0585/2019 can be perused and further it is also to be noticed that merely because a specific language of determination of points is not used does not mean that the point of determination was not made by the Court. In a recent decision of the Apex Court in Mrugendra Indravadan Mehta and others v. Ahmedabad Municipal Corporation, 2024 SCC OnLine SC 849, it has been held that if from bare reading of the judgment it can be ascertained that the point of controversy raised has been noticed by the First Appellate Court and the same has been considered, mere non-framing of the point of determination will not vitiate the judgment. As already noticed SAPL No. 301 of 2017 16 above that this proposition of the Apex Court in Mrugendra Indravadan Mehta (supra) was the core basis and the reason of this Court while considering the provisions of Order XLI Rule 31 CPC in Dalla (supra). Thus, the said submissions of the learned counsel for the appellant also does not find favour with this Court. 51. For all the aforesaid reasons, the Court does not find that there is any merit in the instant second appeal which is accordingly dismissed. The judgment and decree passed by the First Appellate Court dated 27.03.2017 in Civil Appeal No.59 of 2015 is affirmed. 52. There shall be no order as to costs. 53. The office is directed to return the record of the trial Court concerned forthwith. September 22, 2025 Rakesh/- SAPL No. 301 of 2017 17 (Jaspreet Singh,J.) Digitally signed by :- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench