JUDGMENT 1. This is defendants' second appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short 'the CPC') against the judgment and decree dated 5.9.1998 passed by the 2nd Additional District Judge, Baloda Bazaar, affirming the judgment and decree dated 6.10.1986/10.10.196 passed by Civil Judge, Class-2, Baloda Bazar in Civil Suit No. 41-A/1982. 2. Facts in brief necessary for disposal of this appeal are as under: i. The appellants are legal representatives of deceased-defendant-Amar Singh, who died during the pendency of the suit. The suit lands described in Schedule-A & Schedule-B of the plaint was ancestral property of Dularsingh. Dularsingh died in the year 1959. Hiralal and Amar Singh were his sons. Hiralal predeceased his father. Wife of Hiralal, i.e., Kodu Bai, soon after her husband's death 'Churried' by Amar Singh. Bhoj Ram, the plaintiff, is son of Hiralal. ii. Plaintiff filed a suit for declaration, partition and possession of the agricultural lands claiming half share in the suit lands, inter alia, on the ground that the after death of Dularsingh, he along with Amarsingh became its joint owner. The plaintiff was a teacher and defendant Amarsingh was Patwari. Taking benefit of working as Patwari, the defendant, behind the back of the plaintiff, got his name mutated in the revenue records over the suit lands on the premise that the plaintiff is adopted son of Bhaiyalal, i.e., brother of Dularsingh also relinquished his share in defendant's favour by executing Ikrarnama (Ex.D.1) on 4.11.1957. iii. The plaintiff was not aware about the above mutation and this fact came to his knowledge only 4 years prior to filing of the suit. Therefore, he applied for correction of revenue entries, but the same has been wrongly rejected by the Tahsildar vide order dated 8.2.1982. According to the plaintiff, he is neither adopted son of Bhaiyalal nor had relinquished his share in the suit lands in Amarsingh's favour and the mutation entries are illegal. iv. By filing written statement, the defendant, by traversing the averments made in the plaint had pleaded, Bhaiyalal was issueless. On 3.11.1957, Bhaiyalal adopted plaintiff Bhojram as his son and also gifted his property in favour of Bhojram vide gift deed dated 4.11.1957. iv. By filing written statement, the defendant, by traversing the averments made in the plaint had pleaded, Bhaiyalal was issueless. On 3.11.1957, Bhaiyalal adopted plaintiff Bhojram as his son and also gifted his property in favour of Bhojram vide gift deed dated 4.11.1957. v. As per the family settlement between Bhaiyalal, Dularsingh, Bhojram and Amarsingh, it was decided that Bhaiyalal should adopt Bhojram and Bhojram should relinquish his right in the property of Dularsingh in favour of Amarsingh, i.e., defendant. Bhojram admitted the above facts and executed Ikraranama dated 4.11.1957 (Ex.D.1) after getting Rs.1300/- from Amarsingh. It was further agreed between the parties that if Bhojram will try in future to get his share, then Amarsingh or his legal representatives will also be entitled for their share in the property gifted by Bhaiyalal in plaintiffs favour. It was further case of the defendant that pursuant to the relinquishment deed, he became sole owner of the suit lands and thereafter is cultivating the suit lands in his own right. vi. An alternative plea has also been raised by the defendant that if it is found that plaintiff is not adopted son of Bhaiyalal and has also not executed relinquishment deed in defendant's favour, then he, being in continuous uninterrupted possession over the suit property for a period of 12 years prior to filing of the suit, has prescribed his title by way of adverse possession and the plaintiff's suit is time barred by limitation. vii. The trial Court decreed the plaintiff's suit, finding inter alia, the order of Tahsildar dated 8.2.1982 has already been set aside by the Board of Revenue in the year 1983; the defendant failed to establish that he prescribed his title over the suit property by way of adverse possession; the plaintiff is neither adopted son of Bhaiyalal nor has executed any relinquishment deed in defendant's favour. viii. The appeal preferred there-against was also dismissed. Hence, this second appeal. 3. This Court, vide order dated 09.08.99 admitted this appeal on the following substantial questions of law: "1. Whether the courts below have erred in holding that the defendants have not prescribed title by adverse possession?" 2. Whether the courts below have erred in rejecting the defendants application seeking an expert opinion in regard to the execution of Exhibit D-1 by the plaintiff ?" 4. Whether the courts below have erred in holding that the defendants have not prescribed title by adverse possession?" 2. Whether the courts below have erred in rejecting the defendants application seeking an expert opinion in regard to the execution of Exhibit D-1 by the plaintiff ?" 4. Shri Rajeev Shrivastava with Shri Malay Shrivastava, learned counsel for the appellants, by placing reliance upon the judgments of the Supreme Court in the case of Balkrishan Vs. Satyaprdkash and others, (2001) 2 SCC 498 and P. T. Munichikkanna Reddy and others Vs. Revamma and other, (2007) 6 SCC 59 and by referring the evidence of P.W. 1 Bhojram paras-4, 7 and 8 and para-2 of P.W.3 Parasram, would submit: the defendant Amarsingh was in exclusive possession of the suit property and this fact was also in the knowledge of the plaintiff, and therefore, the Courts below have committed a legal error in holding that the defendants have not prescribed title by adverse possession. 5. On the other hand, Shri O.P. Sahu, learned counsel appearing for the respondent supported the judgment and decree impugned. 6. I have heard learned counsel for the parties and perused the record of Courts below. 7. As per Article 65 of the Limitation Act, the suit for possession of immoveable property or any interest therein based on title can be filed within a period of 12 years when the possession of the defendants becomes adverse to the plaintiff. 8. The Supreme Court, in the case of Indira Vs. Arumugam and Another, (1998) 1 SCC 614 , has held : when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence, unless the defendants proves adverse possession for the prescriptive period, plaintiff cannot be non-suited. The Supreme Court has further held in para 4 and 5 of its judgment as under: "4. The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff who based his case on title had to prove not only title but also possession within 12 years of the date of the suit. The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff who based his case on title had to prove not only title but also possession within 12 years of the date of the suit. The said provision of law has undergone a metamorphic sea change as we find under the Limitation Act, 1963 Article 65 which reads as under: Description of suit Period of limitation Time from which period begins to run 65 For possession of immovable property or any interest therein based on title. Twelve years When the possession of the defendant becomes adverse to the plaintiff. 5. It is, therefore, obvious that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. Unfortunately, this aspect of the matter was missed by the learned Judge and, therefore, the entire reasoning for disposing of the second appeal has got vitiated. Only on that short ground and without expressing any opinion on the merits of the question of law framed by the learned Judge for disposing of the second appeal, this appeal is allowed. The impugned decision rendered is set aside and the second appeal is restored to the tile of the High Court with a request to proceed further with the hearing of the appeal with respect to the substantial question aforementioned in accordance with law. No costs." 9. Therefore, once the plaintiff proves his title, the burden shifts on the defendants to establish that they had perfected their title by adverse possession. 10. The Supreme Court in a recent decision rendered in the case of L.N. Aswathama and another Vs. P. Prakash, (2009) 13 SCC 229 , has held: "long and continuous possession by itself would not amount to adverse possession if it was either permissive or without animus possidendi. To establish a claim of title by prescription, possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years and observed in para 17 as under: "17. The legal position is no doubt well settled. To establish a claim of title by prescription, possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years and observed in para 17 as under: "17. The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence. (Vide P. Periasami v. P. Periathambi, (1995) 6 SCC 523 , Md. Mohammad All v. Jagadish Kalita, (2004) 1 SCC 271 and P. T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59 ). 11. Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property. The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. The Supreme Court in the case of Mohan Lal (Deceased) through his LRs. Kachru and others Vs. Mirza Abdul Gaffar and another (1996) 1 SCC 639 , in para-4 of its judgment, has held as under: "4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 year, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant." 12. Reverting to the facts of the case, in the evidence, the original appellant - Amarsingh himself has deposed that ^^igank dh tehu dks viuk tehu le>dj dkLrdkjh djrk FkkA** He has further deposed that ^^esjs vkSj Hkkstjke ds chp tehu dk cjkcj cVokjk ugha gqvkA ;g lgh gS fd 4 lky igys Hkkstjke us eq>ls cVokjk ekaxk rks eSa mlls dgk Fkk fd og cVokjs dk gdnkj ugha gSA eSaus mlls dgk Fkk fd rqEgs HkS;kyky dh tehu cVokjs esa ns fn;s gS bl tehu ij rqEgkjk dksbZ gd ugha gSA** 13. The above statement itself shows, the appellant never claimed possession over the suit lands by way of adverse possession but was claiming right as its owner. Therefore, once the title has been proved by the plaintiff, the suit requires to be decreed in plaintiff's favour. 14. In the case of Balkrishan Vs. Satyaprakash and others, (2001) 2 SCC 498 and P. T. Munichikkanna Reddy and others Vs. Revamma and other (2007) 6 SCC 59 (supra), relied upon by Shri Rajeev Shrivastava, the Supreme Court has not taken any different view than the view taken in Indira Vs. Arumugam and another (1998) 1 SCC 614 , L.N. Aswathama Vs. P. Prakash, (2009) 13 SCC 229 and Mohan Lal Vs. Mirza Abdul Gaffar and another (1996) 1 SCC 639 8 (supra), and therefore, are of no help to him. 15. Considering every aspect of the matter, in my considered opinion, both the Courts below have not erred in holding that the defendant - Amarsingh has not prescribed title by way of adverse possession and the substantial question of law No.1 framed is answered accordingly against the appellants. 16. The Ikrarnama (Ex. D.1) is an unregistered deed of partition/relinquishment, also not properly stamped, therefore, is not admissible in evidence under Section 17 read with Section 49 of the Indian Registration Act and also cannot be used for any purpose. 16. The Ikrarnama (Ex. D.1) is an unregistered deed of partition/relinquishment, also not properly stamped, therefore, is not admissible in evidence under Section 17 read with Section 49 of the Indian Registration Act and also cannot be used for any purpose. Once it is held that the document Exhibit D-1 is not admissible in evidence, then seeking expert opinion to prove the signature of the executant would be a futile exercise, inasmuch as, it will not make the document admissible, which is otherwise inadmissible and would also not change the result of the suit. The second substantial question of law, therefore, is answered accordingly against the appellants. 17. In view of above, the appeal, being devoid of merit, is liable to and is hereby dismissed. 18. No order as to costs. 19. A decree be drawn accordingly. Appeal Dismissed.