Guman Mal Lodha, J.
1. This is a defendant's civil second appeal against the judgment of District Judge, Tonk, confirming the judgment and decree of Munsif Magistrate, Malpura, passed on 28-8-1980.
2. The respondent, here in after to be referred as plaintiff, filed a suit for possession in the court of Munsif cum Judicial Magistrate, Malpura against Hazi Akbar Ali (defendant No. 1 since deceased), Hasan Ali (defendant No. 2) and Abdul Hamid defendant No. 3 (since deceased and represented by appellants No. 2 to 6). The suit was based on the allegations that in ward No. 5, Mohalla Saidan, Malpura there was property exclusively belonging to defendant No. 1 Hazi Akbar Ali, details of which were given in para 1 of the plaint. It was further alleged that Hazi Akbar Ali sold the said property to the plaintiff for a consideration of Rs. 1000/- by a registered sale deed dated 12-2-1969 and the sale deed was handed over to the plaintiff. On that date the plaintiff was made owner of the property and it was mentioned in the sale deed that possession may be handed over to the plaintiff. It was further alleged in the plaint that when plaintiff demanded possession from defendant Akbar Ali then he refused to handover the possession and in collusion with defendants No. 2 and 3 namely, Hasan Ali and Abdul Hamid retained possession of the disputed property. It was also alleged that defendants No. 2 and 3 have no concern what so ever in the disputed house and they are trespassers on the property in dispute. Since the defendants had not handed over the possession, it had become necessary for the plaintiff to file the suit for possession. It was also alleged that the cause of action accrued to the plaintiff on 12-2-1969 and on every day thereafter. The plaint was got amended by the plaintiff later on.
3. Defendant No. 1 Akbar Ali filed a separate written statement and submitted that the disputed house is not one unit but in fact are two houses which are in possession of Hasan Ali and Abdul Hamid since 1948 as owners. Defendant No. 1 admitted the execution of the sale deed, but submitted that Hasan Ali and Abdul Hamid are not trespassers but they are in possession of the disputed property as owners for the last 21 years. The possession was not handed over to the plaintiff because he did not pay complete sale amount and as such the sale deed is null and void and ineffective. Defendants No. 2 and 3 namely, Hasan Ali and Abdul Hamid filed separate written statement and submitted that defendant No. 1, Akbar Ali Had no right or authority to sell both the houses. It was submitted that Akbar Ali bad no issue and as such he brought Hasan Aii, who happeriedto be his sister's son, at his house and he brought up Hasan Ali. Since Abdul Hamid's parents had died when Abdul Hamid was very young and as such Abdul Hamid was also brought by Akbar Ali to his house. It was further submitted that in the year 1948 when Akbar Ali's wife became seriously III then in June 1948 he made a gift of half portion of the disputed house situated on southern side to Abdul Hamid and half portion situated on the northern side to Hasan Ali in the presence of neighbours and community people. From that day the disputed house was divided into two houses and, as submitted above, Abdul Hamid came into possession of southern side and Hasan Ali of northern side and both raised constructions from their pocket and since that date Akbar Ali had no concern in the disputed house. The facts as to why Akbar Ali executed the sale deed in favour of plaintiff were also mentioned. Thereafter the written statement was got amended and it was submitted that in any case the disputed property belonged to the maternal grand father (Abdul Rajak) of defendants No. 2 and 3 and the same had come to defendant No. 1 as ancestral property in which the dependents No. 2 and 3 had 1/2 the share each. The defendant also took the plea that the suit filed by the plaintiff was hopelessly time barred.
4. After framing of the issue and recording of the evidence the trial court decreed the suit of the plaintiff which has been confirmed by the first appellate court. At the time of admission of this appeal, the following substantial questions of law were framed by the order of this court:
(1) Whether the courts below have committed serious error of law in not framing the issue regarding adverse possession inspite of specific plea taken in the written statement and non framing of that issue has prejudiced the case of the appellants ?
(v) Whether issue No. 2(B) to the effect whether the suit was barred by limitation was comprehensive enough to include the controversy regarding the adverse possession ?
(vi) Whether the suit was hopelessly barred by time on the admitted facts in as much as the defendants have been in possession of the disputed property since 1948 and the suit was filed by the plaintiff on 28-7-1969 and as such issue No. 2(B) should have been decided against the plaintiff ?
(vii) Whether the courts below have committed serious error of law in not giving any definite finding whether the suit was barred by time ?
(viii) Whether an unregistered gift deed on oral gift coupled with the actual physical possession is legal and valid in the eye of law ?
5. The main contention pressed by Mr. Lodha, is that the trial court committed serious error in not framing an issue regarding adverse possession. In any case, it was included in the issue of limitation. Lastly, it was argued that the amendment for taking plea of adverse possession should have been allowed. It was also argued that the oral gift is permissible and should have been accepted.
6. Mr. Sharma, learned Counsel for the respondent vehemently opposed the contentions of Mr. Lodha, learned Counsel for the appellant. According to him after hearing detailed arguments cm 2-8-1984 by both the sides, this court did not think it proper to consider the question of rejection of amendment application as a substantial question of law, and, therefore, it was not included in the questions mentioned in that order. Mr. Sharma also pointed out that plea of adverse possession is required to be taken specifically, andexpressly, in clear and unambiguous terms. In the instant case, even after rejection of the application for amendment, objection was not taken in the grounds of appeal in the first appeal. It was then pointed out that the suit waswithin time and the appreciation of evidence on the question of factum of gift cannot be agitated in second appeal.
7. In support of his contention, Mr. Lodha, learned Counsel for the appellant pointed out that in the written statement plea of limitation has been taken and in para 1 it has been mentioned that the defendants have become owners and that is enough. He also pointed out that under the proviso to sub-Section (5) of Section 100 C.P.C. this court can allow any other question to be argued even though it has not been included in the questions framed under Sub-section (4).
8. I have given my thoughtful consideration to the rival contentions of the learned Counsel for both the parties. Reply to para-
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9. It is true that the amendment application was moved and was rejected because the trial court was of the opinion that the plea would be inconsistent.
10. Mr. Sharma, learned Counsel for the respondent is justified in pointing out that in the grounds of appeal before the District Judge, no plea was taken that amendment has been wrongly refused and it cannot now be allowed nor the case be remanded after framing of additional issues.
11. Mr. Sharma is also correct in pointing out that in the questions framed by this court, though the appellant in the grounds of appeal before this court has mentioned as ground No. 3, that the amendment was wrongly rejected and the appellant could have challenged the order of rejection in appeal but after hearing both the sides at the admission stage this court refused to consider it as a substantial question of law arising in their case.
12. I am not inclined to invoke the proviso to Sub-section (5) of Section 100 CPC for permitting re-agitation of this objection without there being a foundation in the memorandum of grounds of appeal before the District Judge and this plea without having been included in the substantial questions of law framed by this court on 2-8-1984.
13. The next question is as to whether in such unamended pleadings the plea of adverse possession can be inferred ?
14. In Sheikh Mohd. Abdul Qadir and Ors. v. The Anjuman Mania Fakhira and Ors. 1971 WLN 396 this court in para 22 rightly observed as under on page 407:
We may also point out that the defendant Anjuman did not specifically plead adverse possession in its written statement and we are not inclined to permit the defendant Anjuman to raise the plea of adverse possession for the first time at this stage.
15. In S.M. Karim v. Mst. Bibi Sakina : 6SCR780 their Lordships of Supreme Court observed as under:
But the alternative claim must be clearly made and proved. Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. A mere suggestion in the relief clause that there was uninterrupted possession for 'several 12 years' or that the plaintiff had acquired 'an absolute title' was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.
16. In Basudeo Prasad Singh v. Genda Mahto and Anr. 1969 UJ (SC) 318 the Supreme Court expressely debars the court from goiong into question of adverse possession in the absence of pleadings. In that case para No. 6 reads as under:
The learned Judges of the High Court, with respect do not appear to have given proper consideration to the pleadings on the question of adverse possession. In the written statements the plea relating to limitation was contained in para 2 which has already been reproduced. The pleading can hardly be regarded as a proper pleading for the purpose of raising a defence of the right of permanent tenancy having been acquired by adverse possession. It was incumbent on the part of the defendants to have specifically and clearly stated all the relevant facts in the matter of setting up the claim that the rights of permanent tenancy were being prescribed for a stated or specific period and that that they had become tenants by having been in continuous and uninterrupted and hostile possession for the prescribed period.
17. It would be thus seen that the plea of adverse possession should include averments of hostile uninterrupted continuous and open possession adverse to the plaintiff for the prescribed period and unless the above can be read from the written statment, no plea of adverse possession can be inferred. Merely because the defendant claims possession as owners from 1948 it cannot be treated as a plea of adverse possession. Similarly, merely because a plea is raised that the suit is time barred it cannot be treated as a plea of adverse possession. I am, therefore, convinced that no error has been committed by the lower court in not framing issues regarding adverse possession when there was no specific plea and the issues about limitation could not include the controversy of adverse possession.
18. I am also of the view that the finding regarding issue of limitation has been correctly given by both the courts below and no infirmity has been shown vitiating it. Obviously, the suit was within time and it was for the defendant to show how it was barred by time.
19. Now so far as question of gift is concerned, it is purely a finding of fact based on appreciation of evidence and the same cannot be interferred with. There is controversy between the defendants and their witnesses about the gift being oral or in writing and both the courts below have correctly appreciated the defendants evidence for coming to a conclusion that they have failed to prove any gift. It has been repeatedly held by the Hon'ble Supreme Court that in an appeal no interference can be made in the matter of appreciation of evidence and now as per the amended Section 100 CPC not only question of law but substantial question of law is required for interference.
20. In Kabitish Chandra Bose v. Commissioner of Ranchi : 2SCR764 their Lordships of Hon'ble Supreme Court have observed that on a question of title & adverse possession, second appeal cannot be entertained even if the finding of the iower courts in that respect is erroneous. Reliance was placed on the decisions of Hon'ble Supreme Court in Kharbuja Kaur v. Jang Bahadur Rai : 1SCR456 Ramchandra Ayyar and Anr v. Ramalingam Chettiar and Ors. AIR 1973 SC 302, Deity Pattabhiramaswamy v. Hanymayya and Ors. AIR 1959 SC 57 and Reruha Singh v. Achat Singh and Ors. AIR 1961 SC 1097 and wherein their Lordships observed that however gross or erroneous or in-excusable error may seem to be, there is no jurisdiction under Section 100 CPC to correct that error.
21. It may be noticed that the above view in support of Section 100 before amendment of 1976 would show that after amendment the legislature has purposely, deliberately and consciously put more fetters and circumscribed the jurisdiction of this court under Section 100 CPC by qualifying the question of law as substantial one and adding superlative emphasis. It would be doing violence to the intention of lagislatute, if any pretexts are found to assume jurisdiction for interference against a concurrent finding of fact, where there is none.
22. In the result, I am satisfied that no question of law much less a substantial question of law is involved in this appeal and concurrent findings of both the lower courts require no interference. Consequently the appeal fails and is hereby dismissed with costs.