JUDGMENT : R.G. Ketkar, J. 1. Heard Mr. Mujtaba Gulam Mustafa, learned counsel for the appellants and Ms. M.A. Kulkarni, learned counsel for respondents at length. 2. By this Appeal u/s. 100 of the Code of Civil Procedure, 1908 (for short, 'C.P.C.'), original defendant No. 1 has challenged the Judgment and decree dated 21/08/1987 passed by learned Civil Judge Junior Division, Gangapur in R.C.S. No. 57/1983, as also the Judgment and decree dated 31/12/1990 passed by learned III Additional District Judge, Aurangabad in R.C.A. No. 294 of 1987. By these orders, the Courts below decreed the Suit instituted by respondent No. 1 (hereinafter referred to as ' plaintiff ') for declaration that he is owner of 7 Acres 30 gunthas land of eastern side from G.No. 49, in all admeasuring 15 Acres 21 gunthas, situate at village Mahuli, Taluka Gangapur, District Aurangabad (for short, 'suit land'), as also the Courts below issued injunction restraining original defendants from causing any obstruction to his possession either personally or through their agents. The parties shall hereinafter referred to as per their status in the trial Court. The facts and circumstances, giving rise to the present Appeal, briefly stated are as under. 3. Respondent No. 1 plaintiff instituted Suit inter alia contending that he is owner and possessor of suit land. The genealogy between the parties is as follows : 4. It is the case of the plaintiff that Ramji was father of Patilba and the plaintiff. Ramji had four brothers namely Khandu, Dashrath, Laxman and Kashinath. Kishan and Gopinath are sons of Patilba. Defendant No. 1 Jaiwanta is son of Kishan. Defendant No. 2 Muktabai is wife of Gopinath. Defendants No. 3 and 4, Babasaheb and Raosaheb are sons of Gopinath. Gopinath is absconding. Land bearing S.No. 49 is ancestral land. Name of Patilba was recorded as 'karta'. Patilba and plaintiff were cultivating the land jointly. During the life time of Patilba, there was oral partition. The suit land was allotted to the plaintiff. After the death of Patilba, names of his sons namely Kishan and Gopinath were entered in the revenue record. The suit land was recorded in the name of plaintiff. 7 Acres 30 gunthas land from G. No. 49 was recorded in the name of Kishan and Gopinath by mutation entry No. 307 in the year 1969-70. The plaintiff was cultivating the suit land. The suit land was recorded in the name of plaintiff. 7 Acres 30 gunthas land from G. No. 49 was recorded in the name of Kishan and Gopinath by mutation entry No. 307 in the year 1969-70. The plaintiff was cultivating the suit land. As Gopinath was absconding since many years, names of defendants No. 2 to 4 were recorded and they are in possession of 4 annas share i.e. 3 Acres 35 gunthas. Defendant No. 1 is in possession of 3 Acres 36 gunthas. Defendant No. 1 had applied for cancelling mutation entry No. 307 to the Dy. Collector, Vaijapur. The said application was allowed and mutation entry was cancelled. Against that order, the plaintiff preferred Appeal to the Collector. It is the case of the plaintiff that since last 20-22 years, he is in possession of the suit land and defendants have no concern with the same. On 12/04/1983, plaintiff's possession was obstructed by the defendants. In such circumstances, plaintiff instituted Suit for declaration of his title to the suit land and for perpetual injunction for protecting his possession. 5. Defendant No. 1 resisted the Suit by filing Written Statement at Exh. 27. He denied all the adverse allegations in the plaint. In particular, he contended that plaintiff was given in adoption to Kashinath, brother of Ramji and one of the sons of Krishnababa. In view of adoption, plaintiff can not claim any interest in the property of Ramji, his genitive father. Names of Kishan and Gopinath were recorded after the death of Patilba, as they were the only ancestors. It was further contended that after the plaintiff went in adoption, he never claimed any share in the property of Ramji and Patilba. Mutation entry No. 307 was cancelled by Dy. Collector, Vaijapur. In fact, the said entry was made illegally behind his back. Plaintiff is not in possession of the suit land or part of G.No. 49. Plaintiff is in possession of properties of Kashinath as his adoptive son. Kashinath had no male or female issue and hence the plaintiff was taken in adoption. The adoption took place about 50 years back. Plaintiff had instituted Suit with a view to harassing the defendants and grabbing the property. The allegation of obstruction is denied. 6. Defendant No. 2 has filed Written Statement at Exh. 28 and the same was adopted by defendants No. 3 and 4. The adoption took place about 50 years back. Plaintiff had instituted Suit with a view to harassing the defendants and grabbing the property. The allegation of obstruction is denied. 6. Defendant No. 2 has filed Written Statement at Exh. 28 and the same was adopted by defendants No. 3 and 4. They have raised identical contentions as raised by defendant No. 1 in the Written Statement. In view of the pleadings of the parties, the trial Court framed issues. The parties laid evidence. After considering the oral as well as documentary evidence, learned trial Judge decreed the Suit. The trial Court held that plaintiff is owner of the suit land and he is in possession thereof. Defendants had obstructed his possession. The trial Court also held that plaintiff is in possession of suit land and consequently the defendants are permanently restrained from causing any obstruction to his possession personally or through their agent. Aggrieved by that decision, defendant No. 1 preferred R.C.A. No. 294 of 1987. By Judgment and Decree dated 31/12/1990, learned III Additional District Judge, Aurangabad dismissed the appeal. It is against these decisions, defendant No. 1 has instituted the present Appeal. 7. The Appeal was admitted on 24/10/1991 as grounds No. 5, 6 and 11 involve substantial questions of law. Grounds No. 5, 6 and 11 read thus, : "5. Both the learned lower Courts should have realised that an admission is the best evidence against the opposing party which is neither withdrawn successfully nor proved to be erroneous, so, therefore, both the courts should have held that it is conclusive as against respondent No. 1 when he admitted in the statement on oath in enquiry before the Naib Tahsildar of Taluka Gangapur to the effect that he is the adopted son of Kashinath and so because of that reason he has no relations with the property of his natural father Ramji and that on account of adoption he has inherited the property of Kashinath. There admission could not have been brushed aside. It is simply non-reading of evidence leading to injustice. Simply because the revenue files have been sent back by the trial court that would not be ground to brushed aside those admission. It is an illegality. 6. Principles of Hindu Law in respect of how to prove old adoption of more than 50 years have been overlooked by both the learned lower courts. Simply because the revenue files have been sent back by the trial court that would not be ground to brushed aside those admission. It is an illegality. 6. Principles of Hindu Law in respect of how to prove old adoption of more than 50 years have been overlooked by both the learned lower courts. It is an illegality. 11. Both the learned lower courts committed illegality in ignoring the previous Judgment given by the civil courts in redemption of mortgage suit and so also by a revenue court holding the respondent No. 1 as the adopted son of Kashinath. These Judgments of both the lower courts be brushed aside on the ground that they are not relevant and that present respondent Nos. 2 to 4 were not parties to revenue proceedings and present appellant and present respondent Nos. 2 to 4 were not parties to the redemption of mortgage suit and because of that reason those judgment do not operate by way of res judicata and so also those judgments are not judgments in rem of Sec. 41 of Indian Evidence Act are not attracted. It is against the express provision of Sec. 11of C.P.C." 8. In support of this Appeal, Mr. Mustafa reiterated the submissions that were advanced before the courts below. He submitted that plaintiff has failed to establish his possession over the suit land. Plaintiff ought to have instituted Suit in the Court for possession in addition to prayer for declaration and injunction. The Suit for mere declaration in the absence of prayer for possession is not maintainable. He further submitted that defendant No. 1 established that plaintiff was taken in adoption by Kashinath and the said fact is established from documents on record. He has taken me through the pleadings of the parties, as also the evidence on record. In support of his submissions, he relied upon following decisions, (i) U.R. Virupakshaiah Vs. Sarvamma, 2009 AIR (SC) 0 1481 to contend that the Courts below took into account inadmissible evidence and that itself gives rise to substantial question of law and (ii) Ramchandra Sakharam mahajan Vs. Damodar Trimbak Tanksale (d) AIR (SC) 2007 0 2577. He further submitted that in the facts and circumstances of the case, following substantial question of law arises namely whether the suit instituted by the plaintiff itself is maintainable? Damodar Trimbak Tanksale (d) AIR (SC) 2007 0 2577. He further submitted that in the facts and circumstances of the case, following substantial question of law arises namely whether the suit instituted by the plaintiff itself is maintainable? He submitted that the suit land is not properly identified and there is non compliance of Order VII Rule 3 of C.P.C. and mutation entry does not confer title as per Section 35 of the Indian Evidence Act, 1872 (for short, 'Act'). He further submitted that though at the time of admitting Second Appeal, the question of maintainability was not framed, nonetheless in view of proviso to Section 100(5) of C.P.C., the Court can frame this question even at this stage. In support of this submission, he relied upon the decision of this Court in the case of Vithu Hira Mahar (More) and Ors. V/s State of Maharashtra & Ors., 2000 (1) Mah. L.R. 190. 9. On the other hand, learned counsel for respondent No. 1 supported the impugned orders. 10. I have considered the rival submissions of the parties. I have also perused the material on record. With the assistance of the learned counsel for the parties, I have also gone through the pleadings and evidence on record. 11. As noted earlier, plaintiff has contended that Krushnababa had five sons. Plaintiff and Patilba are sons of Ramji. Patilba died leaving behind Kishan and Gopinath. Kishan died leaving behind Jaiwanta (Deft. No.1). Muktabai (Deft. No.2) is wife of Gopinath. Defendants No. 3 and 4 are sons of Gopinath and Muktabai. It is the case of plaintiff that partition was effected amongst the brothers of Ramji and G.No. 49 admeasuring 15 Acres 21 gunthas was allotted to Ramji. After the death of Ramji, Patilba was 'karta' and during his life time, Patilba effected oral partition. The suit land was allotted to plaintiff Namdeo and the remaining portion admeasuring 7 Acres 30 gunthas was allotted to Patilba. Accordingly, relevant entries were made in the revenue record. As far as plaintiff is concerned, his name was entered in 7/12 extract, as also mutation entry No. 307 was effected. As far as branch of patilba is concerned, after the death of Patilba, names of Kishan and Gopinath were entered in the revenue record in respect of 7 Acres 30 gunthas. As far as plaintiff is concerned, his name was entered in 7/12 extract, as also mutation entry No. 307 was effected. As far as branch of patilba is concerned, after the death of Patilba, names of Kishan and Gopinath were entered in the revenue record in respect of 7 Acres 30 gunthas. Plaintiff instituted Suit for declaration of ownership on the ground that, in pursuance to the partition effected between him and Patilba, he is in possession of the suit land and the defendants are obstructing in his peaceful possession. 12. Defendants resisted the Suit mainly on the ground that plaintiff Namdeo was taken in adoption by his uncle Kashinath as Kashinath and his wife Rukhamabai had no issue. Defendants contended that since the plaintiff went in adoption, he can not claim any right, title and interest in properties of his genitive father. In support of their case, defendants relied upon the compromise entered into in R.C.A. No. 35/4/1354 Fasli. Defendants produced document at Exh. 90. Defendants also relied upon Marathi translation of the compromise at Exh. 91. On behalf of defendants, it was contended that in view of Sections 41 and 42 of the Act, the Judgment in R.C.A. No. 35/4/1354 Fasli is relevant. The Judgment in that case is conclusive proof that plaintiff was taken in adoption by Kashinath. The Courts below after appreciating the evidence on record, have concurrently held that plaintiff has proved his lawful possession over the suit land. As far as the contention raised by the defendants that plaintiff was taken in adoption by Kashinath is concerned, after considering the material on record and in particular documents at Exhs. 90 and 91, it was held that Section 41 of the Act is not attracted. As far as Section 42 is concerned, it was held that the Judgments and decrees are not conclusive proof of what they stall. The courts below concurrently held that defendants did not establish that fact. I have carefully perused Exh. 90 and the translation at Exh. 91. Perusal of the compromise does not indicate that plaintiff Namdeo was shown to have gone in adoption to Kashinath. I, therefore, do not find any merit in the submission of Mr. Mustafa that plaintiff had gone in adoption to Kashinath and consequently he has no right, title and interest in the property left by Ramji, the genitive father. 13. 91. Perusal of the compromise does not indicate that plaintiff Namdeo was shown to have gone in adoption to Kashinath. I, therefore, do not find any merit in the submission of Mr. Mustafa that plaintiff had gone in adoption to Kashinath and consequently he has no right, title and interest in the property left by Ramji, the genitive father. 13. As far as question of possession is concerned, the Courts below have concurrently held that plaintiff is in possession. The said findings are purely findings of facts arrived at after appreciating the evidence on record. I, therefore, do not find any merit in the submission of Mr. Mustafa that plaintiff ought to have instituted Suit for declaration, as also recovery of possession as he was not in possession. As the Courts below have concurrently found that plaintiff is in possession, it was not necessary for the plaintiff to claim possession of the suit land. In this regard, I am fortified by the decision of the Apex Court in the case of Anathula Sudhakar Vs. P. Buchi Raddy, (2008) 4 SCC 594 . 14. Mr. Mustafa submitted that in any case defendants have denied the factum of partition between Patilba and plaintiff. Plaintiff, therefore, ought to have instituted Suit for partition. It is not possible to accept this submission. After considering the evidence on record, the Courts below have held that partition was effected between Patilba and plaintiff. The partition was acted upon in the sense the name of the plaintiff was recorded in respect of the suit land and names of Kishan and Gopinath were recorded on the remaining land as by that time Patilba had expired. 15. After considering the Judgments in the case of Ramchandra and U.R.Virupakshaiah (supra), I do not find that these Judgments advance the case of defendant No. 1. Mr. Mustafa submitted that even at the time of admitting the Appeal, the substantial question of law as regards maintainability of the Suit was not framed, this Court can formulate substantial question of law under Section 100(5) of C.P.C.. Section 100(5) of C.P.C. lays down that, "the Appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Section 100(5) of C.P.C. lays down that, "the Appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso thereto lays down that nothing in this subsection shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. " 16. As indicated earlier, I have already recorded my finding that the Courts below did not commit any error in holding that plaintiff has established his title and possession. In view thereof, I am satisfied that the Suit is maintainable. The reliance placed by Mr. Mustafa on the decision of this Court in the case of Vithu Hira Mahar (More) (supra) is misconstrued. 17. For the reasons recorded herein above, I do not find that the Courts below committed any error in decreeing the Suit. No substantial question of law arises in this Appeal. 18. In the result, Appeal fails and the same is dismissed with no order as to costs.