JUDGMENT : This is an second appeal filed under section 100 of the C.P.C. by the defendants against the judgment & decree dated 19.2.1996 passed by Civil Judge, Class-II, Khategaon in Civil Suit No.68-A/1980 and judgment & decree dated 18.7.2001 passed by Addl. District Judge, Kannod, District Dewas in Civil Regular Appeal No.92-A/1996. 2. Facts of the case, in short, are as under : (i) Sher Mohmmad/Respondent No.1( herein after referred as ‘Plaintiff’) filed the suit for declaration of title and permanent injunction against his own father – Abdul Khan, (now dead). According to the plaintiff, till 1952-53, he lived with his father and three brothers in Village Janjalkhedi, Tehsil Kannod. Thereafter, dispute arose between his wife and mother; therefore, he was separated from the family by his father hence he shifted to Harangaon along with his family. In the year 1953, he purchased the land bearing Survey No.245, 246, 247, 248, 251, 252, 253 and 254 total area 7.523 Hect. (Hereinafter referred to as “the suit property”) from Nandu Maharaj in Rs.1,500/-. He got the sale-deed registered in the name of his father – defendant No.1 and also got mutated his father's name in the revenue record, but he remained into the possession since then openly and without any irruption by the defendants, therefore, he has acquired the title by way of adverse possession. He further pleaded that he has constructed a house in the said land. He gave the details and boundaries of the suit property in Para 6 of the plaint. He has alleged that on 3.12.1975, defendant No.1 informed him that his other three sons are demanding partition of the suit property; therefore, he will have to partition the suit property also. The brothers of the plaintiff have created a dispute which was reported to the Police Station Khategaon u/s. 107 and 151 of the I.P.C. Because of the aforesaid cause of action accrued, in favour of the plaintiff to file the suit on 18.2.1976 against defendant No.1. (ii) On 19.4.1976, defendants No.2 to 4 being the sons of defendant no.1 filed an application under Order 1 Rule 10 of C.P.C. seeking their impleadment in the pending suit as defendants. Vide order dated 30.7.1976, learned trial Court allowed the application and accordingly, they were impleaded in as defendant nos. 2 to 4. Defendant No.1 filed the written statement totally in support of the plaintiff. Vide order dated 30.7.1976, learned trial Court allowed the application and accordingly, they were impleaded in as defendant nos. 2 to 4. Defendant No.1 filed the written statement totally in support of the plaintiff. Defendants No.2 to 4 filed their written statement by submitting that the suit property was purchased from the income of joint family, therefore, the plaintiff alone cannot claim the title over the suit property. Defendant No.1 was head of the family and accordingly, the sale-deed was registered in his name. (iii) After impleadment of defendants No.2 to 4 in the plaint, the plaintiff amended his plaint to claim the relief of permanent injunction against all the defendants that they be restrained to interfere into his peaceful possession and use of the suit property. He has amended the word 'defendant' by the word 'defendants' in the entire plaint, but did not amend the relief clause in respect of declaration of title by way of adverse possession against defendant No.1 alone. (iv) On the basis of pleadings, learned trial Court framed 7 issues for adjudication. The issue in respect of purchase of suit property in the name of defendant No.1 was framed as an alternate issue of issue No.1. In support of his pleadings, the plaintiff examined defendant No.1 as P.W.1 and examined himself as P.W.2; Sonarayan as P.W.3; Ahmed Khan as P.W.4; and Gendalal as P.W.5 and got exhibited two documents viz. 'Khasra Panchsala' of the year 1974-75 as Ex. P/1 and the Will of Abdul dated 11.2.1985. The defendants No.2 to 4 in their defence examined themselves as D.W.1; D.W.2 & D.W.3; and Babu Khan as D.W.4 and got exhibited the statement of Sher Mohd. as Ex. D/1 and statement of defendant no.1 reordered in some other proceedings as Ex. D/2. During pendency of the suit, defendant No.1 expired on 13.1.1986 and in his place, his two daughters were brought on record as defendant Nos. 5 & 6 but they also supported the case of the plaintiff. (v) After appraising the evidence came on record, learned trial Court has answered the issue No.1 against the plaintiff by holding that the suit property was purchased by defendant No.1 and not by the plaintiff in the name of defendant No.1. Issue No.3 has been answered in favour of the plaintiff that he has perfected his title by way of adverse possession. Issue No.3 has been answered in favour of the plaintiff that he has perfected his title by way of adverse possession. Issue No.4 has been answered against defendants No.2 to 4 by holding that they are not in joint possession and title over the suit property. Issue No.2 has been answered in favour of the plaintiff holding that he has not filed the suit in collusion with defendant No.1. Thus, vide judgment and decree dated 19.2.1996, learned trial Court has held that the plaintiff is an exclusive owner of the suit property by way of adverse possession. (vi) Being aggrieved by the aforesaid judgment and decree passed by the trial Court, only defendants No.2 to 4 preferred the first appeal. Learned first appellate Court after re appreciating has held that in Muslim family, there is no presumption of joint family, when defendant No.1 purchased the suit property, defendants No.2 to 4 were minor and had no source of income and under the Muslim law, during life time of defendant No.1, defendants No.2 to 4 cannot claim any right and title over the suit property. In view of the admission made by defendant No.1 in his evidence, the plaintiff has acquired the title by way of adverse possession. Hence, vide judgment and decree dated 18.7.2001, learned first appellate Court has dismissed the appeal, hence the present second appeal before this Court. 3. This Court has admitted the appeal on the following substantial questions of law : “(1) Whether the Lower Appellate Court was justified in decreeing the suit holding that the plaintiff has become owner of the suit property by virtue of adverse possession? (2) Whether the finding in regard to adverse possession is legal and sustainable when the relationship between the parties is of son and the father? (3) Whether in view of the peculiar relationship between the parties, element of animus could be said to be present to uphold the title in favour of the plaintiff on the basis of adverse possession?” 4. Shri Ashok S. Garg, learned senior counsel appearing for the appellants/defendants no. 2 to 4, argued that this case is having peculiar facts as the son filed the suit against his own father claiming title by way of adverse possession. Shri Ashok S. Garg, learned senior counsel appearing for the appellants/defendants no. 2 to 4, argued that this case is having peculiar facts as the son filed the suit against his own father claiming title by way of adverse possession. He has also claimed that he purchased the suit property in the name of his father and claimed the relief of title which is barred under the provisions of Benami Transactions (Prohibition) Act 1988. He submitted that the sole question of law involved in this appeal is, whether in view of the peculiar relationship between the parties, the element of animus could be said to be present to uphold the title of the plaintiff on the basis of adverse possession? The plea of adverse possession is not available to the son against his father because of their relationship. Shri Garg further submitted that at the most, the possession of the plaintiff over the suit property is only permissive which cannot be converted into adverse possession. The three basic elements of adverse possession are not available in the present case, therefore, both the impugned judgment and decree are not liable to be sustained. He further submitted that the plaintiff has failed to plead and prove that he had actually ousted his father from the suit property in order to claim adverse possession. The adverse possession must be in continuity, in publicity and in extent to show that the possession is adverse to the competitor. In support of his contention, he has placed reliance over the judgment of Apex Court in the case of Hemaji Waghaji Jat V/s. Bhikhabhai : (2009) 16 SCC 517 , in which, it has been held that ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. In support of his contention, he has placed reliance over the judgment of Apex Court in the case of Hemaji Waghaji Jat V/s. Bhikhabhai : (2009) 16 SCC 517 , in which, it has been held that ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. He has also placed reliance over the judgment of apex Court in the case of Bhura Mogiya V/s. Statish Pagariya : (2001) 9 SCC 385 , in which it has been held that permissive possession cannot be converted into adverse possession unless it is proved that the person in possession had asserted and acquired the adverse title to the property within the knowledge of the true owner for a period of twelve years or above, in support of this contention he has placed reliance over the judgment of apex Court in the case of Krishnamurthy V/s. O.V. Narasimha Setty : (2007) 3 SCC 569 , in which, it has been held that the plaintiff has also to show hostile title and communicate it to the real owner. 5. Shri Garg learned Senior Counsel further submitted that the second appeal not to be dismissed merely on the ground that there are concurrent findings of two courts below. This rule of law is subject to certain well-known exceptions. In the second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. In support of his contention, he has placed reliance over the judgment of apex Court in the case of State of Rajasthan V/s. Shiv Dayal : 2019 (10) SCALE 768 . 6. Per contra, Shri Gulab Sharma, learned counsel appearing for respondent No.1/plaintiff, rebutted that all the three substantial questions of law are based on the principle of adverse possession. It is not in dispute that the sale-deed of the suit property was executed in the name of defendant No.1 who is father of the plaintiff. Defendant No.1 has admitted in his deposition that he was 'Beinamdar' and the plaintiff is the real owner of the suit property. It is not in dispute that the sale-deed of the suit property was executed in the name of defendant No.1 who is father of the plaintiff. Defendant No.1 has admitted in his deposition that he was 'Beinamdar' and the plaintiff is the real owner of the suit property. Such an admission is admissible in the evidence and the suit ought to have been decreed in favour of the plaintiff on that ground also. Learned trial Court has wrongly placed the reliance over the judgment passed by the Apex Court in the case of Mithilesh Kumar V/s. Prem Bihari : AIR 1989 SC 1248 which had already been overruled in the case of R. Rajagopal Reddy V/s. Padmini Chandrasekhran : AIR 1996 SC 238 . The appellate Court is having power under Order 41 Rule 33 of the C.P.C. to reverse the said finding in exceptional cases. Since the suit property was purchased in the year 1953 in the name of father and at that point of time, there was no prohibition of purchasing the property in the name of others, therefore, the courts below ought to have passed the decree in favour of the plaintiff. In support of his contention, he has placed reliance over the judgment of apex Court in the case of K. Muthuswami V/s. N. Palaniappa : AIR 1998 SC 3118 , in which, it has been held that Order 41 Rule 33 of C.P.C. enables the appellate Court to pass any decree or order which ought to have been passed, meaning thereby, which ought in law to have been passed. The power though discretionary should not be declined to be exercised merely on the ground that the party has not filed any appeal. 7. Shri Sharma further emphasised that the plaintiff has successfully established all the three ingredients to get the decree of adverse possession. The decree cannot be denied to the plaintiff merely on the ground that he has filed the suit against his own father. Even otherwise, other sons of the defendant No.1 i.e. brothers of the plaintiff have joined in the suit and contested the suit on the plea of adverse possession, therefore, the suit was not only against the father, but also against the brothers of the plaintiff. Defendant No.1 appeared in the witness box as a plaintiff's witness and fully supported the case of the plaintiff. Defendant No.1 appeared in the witness box as a plaintiff's witness and fully supported the case of the plaintiff. He has specifically admitted the possession of the plaintiff and which was in his knowledge. Therefore, both the courts below have not erred in granting the decree in favour of the plaintiff on the ground of adverse possession. Shri Sharma learned counsel further submitted that the admission of adversary is best piece of evidence which the party can rely on. Defendant No.1 was thoroughly cross-examined by the counsel of defendants No.2 to 4 and nothing came out adverse to the plaintiff. He further submitted that the factum of possession consist two elements viz. Corpus and animus. Corpus was admittedly with the plaintiff as he was cultivating the suit property since last 22-23 years and his father had already admitted the possession in his evidence, therefore, he had also an (the intention of possessing). 8. Shri Sharma also submitted that the concurrent finding of facts recorded by both the courts below on the ground of adverse possession of the plaintiff are based on material evidence and the same are not liable to be interfered with by the High Court in exercise of powers u/s. 100 of the C.P.C. In support of his contention, he has placed reliance over the judgment of apex Court in the case of Laxmi V/s. Ramganath, (2015) 4 SCC 264 ; Lisamma V/s. Karthiayani : (2015) 11 SCC 782 ; and Azrath V/s. Chinnthambi : (2013) 14 SCC 608. 9. After having heard the learned counsel for the parties, I have perused the record of Courts below. 10. The plaintiff approached the civil court with the plea that he was ousted from the family by his father – defendant No.1 and thereafter he has started living separately in Village Harangaon where he purchased the suit property in the name of his father and constructed a house therein. He is in possession over the suit property since last 22-23 years peacefully and without any interruption, therefore, he has acquired the title by way of adverse possession. Defendant No.1 filed the short reply admitting the entire plea of the plaintiff. He is in possession over the suit property since last 22-23 years peacefully and without any interruption, therefore, he has acquired the title by way of adverse possession. Defendant No.1 filed the short reply admitting the entire plea of the plaintiff. Defendants No.2 to 4 being the sons of defendant No.1 and brothers of plaintiff, suo motu appeared in the plaint by filing an application under Order 1 Rule 10 of C.P.C. and learned trial Court permitted them to contest the suit. Thereafter, the plaintiff amended the plaint and sought the relief of permanent injunction against all the defendants. According to the plaintiff, the cause of action accrued in his favour to file the present suit because defendant No.1 informed him that his other three sons are demanding partition of the suit property and he will have to partition the same. These facts found proved when defendants No.2 to 4 appeared in the plaint and contested the same against the plaintiff. They came up with the plea that the suit property was purchased from the joint income of the family. The burden was on them to prove this fact because when the suit property was purchased, only defendant No.1 and the plaintiff were major and defendants No.2 to 4 were minor. Defendants No.2 to 4 were living in Village Janjalkhedi and plaintiff purchased the suit property in Village Harangaon and in the Muslim law, there is no concept of joint family property, hence, there cannot be any presumption of joint family income. Even otherwise, the defendants No.2 to 4 were minor and had no source of income. The income of joint family has also not been proved by the defendants. They have also not proved that they were earning and had contributed for the purchase of the suit property, therefore, both the courts below have rightly held that defendants No.2 to 4 had no share in the suit property being sons of defendant No.1 during his life time. 11. Learned courts below have denied the decree of title on the basis of judgment of Apex Court in the case of Mithilesh Kumari (supra). 11. Learned courts below have denied the decree of title on the basis of judgment of Apex Court in the case of Mithilesh Kumari (supra). Undisputedly, that judgment had already been overruled in the case of R. Rajagopal Reddy V/s. Padmini Chandrasekhran : AIR 1996 SC 238 in which it has been held that the amendment in the Benami Transactions (Prohibition) Act 1988 is prospective in nature and prohibits the transaction took place from the date on which it came into force i.e. w.e.f. 5.9.1988. It takes care of future benami transactions, but the plaintiff did not file any first appeal against the aforesaid findings before the first appellate Court and for the first time, he is assailing such adverse finding in this second appeal. The second appeal is liable to be decided on the questions of law so framed and for which, the plaintiff was required to file a cross-appeal by suggesting/proposing question/s of law. Even otherwise the plaintiff did not seek any relief of declaration of title on the plea of benami transaction, he is seeking relief of declaration of title on the plea of adverse possession. Therefore, this Court is denuding the power to decide such issue in absence the cross-second appeal and any substantial question of law framed on the plea of the plaintiff. Hence, the contention of Shri Gulab Sharma, learned counsel for respondent No.1/plaintiff is rejected that the issue decided by the trial Court in respect of benami transaction is liable to be reversed. 12. The only issue which requires consideration by this Court is, whether both the courts below have rightly granted the decree of adverse possession in favour of son against defendant No.1. All the three question of law are interlinked hence all are being decided jointly. The continuous and uninterrupted possession of the plaintiff over the suit property since 22-23 years is not in dispute. The plaintiff used to live in Village Janjalkhedi with defendant No.1 and that point of time, defendants No.2 to 4 were minor, but he was ousted from the family. He shifted with his family in Village Harangaon where the suit property was purchased. The plaintiff used to live in Village Janjalkhedi with defendant No.1 and that point of time, defendants No.2 to 4 were minor, but he was ousted from the family. He shifted with his family in Village Harangaon where the suit property was purchased. In the cross-examination, he has admitted that he had good relationship with his father, despite there being dispute between his wife and mother, therefore, there is no dispute that his wife and mother had strange relationship and despite that, he purchased the suit property in the name of his father which can be accepted. 13. Both the courts below have held that defendant No.1 is the registered owner of the suit property but the plaintiff is in possession and using the suit property and same was in the knowledge of defendant No.1. Learned senior counsel appearing for the appellants/defendants No.2 to 4 argued that the possession of the plaintiff was at the most permissive possession which and cannot be said to be adverse possession. The apex Court in the case of Ram Nagina Rai V/s. Deo Kumar Rai (Civil Appeal No.7266/2013 decided on 21.8.2018) in Para 8 of the judgment has held that until the defendants' possession becomes adverse to that of the real owner, the defendants continue in permissive possession of the property. Only if the defendants' possession becomes adverse to the interest of the real owner and the real owner fails to file the suit for possession within 12 years, as prescribed under Article 65 of the Limitation Act, from the point of time the possession by the defendants becomes adverse to the plaintiffs, the real owner loses his title over the property. The person claiming adverse possession of the property continuously and uninterruptedly and there is hostile animus and possession adverse to the knowledge of the real owner. The intention of the adverse user must be communicated at least impliedly to the actual owner of the property. His hostile attitude should be open to the knowledge of the real owner. This issue again came up for consideration before the Larger Bench of Apex Court in the case of Ravinder Kaur V/s. Manjit Kaur (Civil Appeal No.7764/2014 decided on 7.8.2019) and it has been held that the joint possessor/co-owner possession is not presumed to be adverse. The adverse possession requires all three classic requirements to co-exist at the same time viz. This issue again came up for consideration before the Larger Bench of Apex Court in the case of Ravinder Kaur V/s. Manjit Kaur (Civil Appeal No.7764/2014 decided on 7.8.2019) and it has been held that the joint possessor/co-owner possession is not presumed to be adverse. The adverse possession requires all three classic requirements to co-exist at the same time viz. Adequate in continuity, publicity and adverse to a competitor in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take cares to know notorious facts. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonym with adverse possession. In this case, Hon'ble Apex Court has reversed the judgment passed in the case of Gurudwara Saheb V/s. Gram Panchayat Village Sirthala : (2014) 1 SCC 669 and held that the plaintiff can file a suit claiming adverse possession. It has also been held that a person, who has perfected the title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case of infringement of any other Article, the suit can be filed by a person who has perfected his title by adverse possession to question alienation and attempt of dispossession. The Apex Court has finally held that there is absolutely no bar under Article 65 or any of the provisions of Limitation Act as against a plaintiff who has perfected his title by virtue of adverse possession to sue, to evict a person or to protect his possession. It has been held that, thus, the decision of Gurudwara Sahib (supra) cannot be said to be laying down the correct law. 14. In the present case, from the very beginning, the case of the plaintiff is that he purchased the property in the name of defendant No.1 and this fact was in the knowledge of defendant No.1. Therefore, from day one, he is denying the title of defendant No.1 and claiming himself to be the real owner of the suit property. The possession of the plaintiff since 1953 over the suit property was in the knowledge of defendant No.1 and he has admitted in his deposition before the Court. He has never objected such possession; therefore, it has become adverse possession. The possession of the plaintiff since 1953 over the suit property was in the knowledge of defendant No.1 and he has admitted in his deposition before the Court. He has never objected such possession; therefore, it has become adverse possession. According to the plaintiff, in the year 1975, defendant No.1 informed him that his other sons are demanding partition of the suit property and he will have to partition it, but thereafter, he filed the written statement supporting the case of the plaintiff and appeared as his witness (P.W.1). According to defendants No.2 to 4 the possession of the plaintiff became adverse to their interests. At that point of time, they had no title over the suit property as the defendant No.1 was alive. The Hon'ble Apex Court in its decision in case of Mithilesh Kumari and Anr. v. Prem Behari Khare, has held that the Act was retro active if the matter was subjudice at the time of coming into force of the Act on 5.9.1988 at any stage and hence the suit, if filed even before, was not maintainable in view of retroactive operation of the Act. But the said decision was over-ruled by a Larger Bench of the Hon'ble Apex Court in case of R. Rajagopal Reddy (supra), in which it was finally held by the Hon'ble Apex Court that Section 3 of the Act was prospective in nature as the prohibition for entering into benami transaction came into force on 5.9.1988, when new liability or new offence was provided, and that even Section 4 of the Act does not apply retrospectively. It was also held that even for a transaction prior to coming into force of the Act, no suit or written statement can be filed after the said date i.e. 5.9.1988, raising the plea of benami transaction. In the case of Ravinder Kaur (supra), in Para 59, the apex Court has held that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. Any person who has perfected his title by way of adverse possession can file a suit for possession in case of dispossession. Any person who has perfected his title by way of adverse possession can file a suit for possession in case of dispossession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit. The plaintiff who is in possession since more than 12 years and actual owner has not taken any step either to dispossess him or claim title by way of suit, then his right to sue goes and the possessory acquires the title by way of adverse possession. The plaintiff has filed the suit claiming title by virtue of long possession which was in the knowledge of actual owner i.e. defendant No.1 and decree of permanent injunction in order to protect his possession from other defendants No.2 to 4 who are claiming share in the suit property by way of partition, then the element of animusis also there. In the present case, defendant No.1 has specifically deposed in his cross-examination that he demanded partition of the suit property at the instance of defendants No.2 to 4. Defendant No.1 from his own has never disputed possession of the plaintiff over the suit property for more than 12 years. Defendants No. 2 to 4 have objected the possession of the plaintiff and demanded their share, therefore, the plaintiff was required to file the suit for declaration of title and permanent injunction. Defendant No.1 being the actual owner has appeared in support of the plaintiff and admitted that the plaintiff purchased the suit property in his name and he is in exclusive possession as an owner thereof. Defendants No.2 to 4 have contested the suit and cross-examined defendant No.1 on this point and denied the title of the plaintiff. The plaintiff purchased the property in the name of defendant No.1 who has paid the amount and was present at the time of sale only because of the prohibition under the Benami Transaction Act. 15. That in view of the above discussion the Lower courts were justified in decreeing the suit holding that the plaintiff has become owner of the suit property by virtue of adverse possession. Merely because of relationship of father and son between plaintiff and defendant no.1 the finding in regard to adverse possession cannot said to be illegal and unsustainable in law. Merely because of relationship of father and son between plaintiff and defendant no.1 the finding in regard to adverse possession cannot said to be illegal and unsustainable in law. When plea of benami transaction has been disbelieved or not examined than the plaintiff cannot be denied to take the plea of adverse possession to render him remedy less for protection of possession. 16. So far the question of law no 3 is concerned whether in view of the peculiar relationship between the parties, element of animus could be said to be present to uphold the title in favour of the plaintiff on the basis of adverse possession? The element of animus is not available against the defendant no.1 after his death or even he fully supported the case of the plaintiff. The defendants No. 2 to 4 suo-moto appeared in the suit by claiming share in the suit property being joint family property, the daughters became defendants after death of defendant no.1 did not contest the suit. Appellants/ Defendants no. 2 to 4 have contested the suit opposing the plea of adverse possession. After becoming major they did not claim any share in the suit property being sons of defendant No.1. They did not file the counter suit even after the death of defendant No.1 to claim partition and possession from plaintiff hence the element of animus is very much present against the appellants. 17. Defendants No. 2 to 4 came up with the plea that the suit property was purchased from the joint income of the family, but they have failed to prove the same, therefore, the decree of permanent injunction has rightly been granted against them. Since defendant No.1 has openly supported the case of the plaintiff admitting his title by way of sale as well as by way of adverse possession, therefore, no case for interference is made out in this second appeal. All the questions of law are hereby answered against the appellants. This appeal deserves to be dismissed. 18. Accordingly, this appeal fails and is hereby dismissed. No order as to costs.