JUDGMENT : The defendant being aggrieved by the judgment and decree dated 10.10.2017 passed in R.A.No.55/2015 on the file of I Addl. District Judge, Kalaburagi who reversed the judgment and decree dated 13.08.2015 passed in O.S.No.123/2004 on the file of II Addl. Civil Judge (Sr.Dn.) Court, Kalaburagi has filed this appeal. 2. The parties are referred to with their rank before the trial court. 3. The plaintiff filed the suit before the trial Court seeking a decree for the relief of declaration, possession, mandatory injunction and mense profits and injunction in respect of the suit schedule property. It is the case of the plaintiff that the suit schedule property was purchased by his father under the registered sale deed dated 18.10.1965 in his name as he was minor. The original sale deed is lost and therefore certified copy of sale deed is produced. He further contended that the defendant claiming as a society as nothing to do with the possession of the suit property. The plaintiff is residing in Bengaluru for his business purpose, taking undue advantage of the same, the defendant has encroached within the suit property, dug the pits for construction of building and in some places he has constructed building upto basement level without permission from the City Corporation. The plaintiff being the owner of the suit property, defendant has no right title and interest over the said property. Therefore, plaintiff asked the defendant to remove the illegal construction over the suit property as the same has deprived his legal rights. However, defendant failed to remove the same. Therefore, the plaintiff was constrained to file the said suit. 4. In response to the suit summons, the defendant appeared through his counsel and filed written statement. He disputed the correctness of the description of the suit property. However, he admitted that 2 acres of land has been purchased in Sy.No.81 and 82 on 18.10.1965 by the father of the plaintiff out of his own income. The sale deed is nominally taken in the name of the plaintiff. Thus, the plaintiff is only benami. The plaintiff never came in possession of the suit property. It is denied that the plaintiff’s name is entered in the ROR and the entry in the ROR is not a document of title. The sale deed is nominally taken in the name of the plaintiff. Thus, the plaintiff is only benami. The plaintiff never came in possession of the suit property. It is denied that the plaintiff’s name is entered in the ROR and the entry in the ROR is not a document of title. The defendant denied that he has no right title or interest in the suit property and that he has put up construction illegally. The defendant has further contended that the father of the plaintiff was President of defendant Sangha so on 22.04.1966, plaintiff’s father has gifted suit property to the defendant Sangha in the presence of Kamaraj Nadar and Sri. S. Nijalingappa and the defendant Sangha has installed the foundation stone of function hall building on 24.06.1966, the gift deed is not traced out. The defendant has further stated that the adjoining land was purchased by one Mallappa Shindhe and he also gifted the portion of his properties to the defendant Sangha. Therefore, the defendant Sangha is owner and in possession of entire survey No.81 and 82 of Badepur village. The CMC, Gulbarga had issued notification under Section 4 and 6 of the L.A.Act for acquisition of the land from the defendant. But the defendant through the father of the plaintiff got dropped the acquisition proceedings. The defendant has applied permission for construction of hostel building and accordingly hostel building was constructed and compound wall was also constructed. All these facts are within the knowledge of the plaintiff for long time. The plaintiff’s father died living behind his sons and daughters other than the plaintiff. But none of them have claimed any right over the suit property. Therefore, under the gift deed executed by the father of the plaintiff, the defendant Sangha has become owner and in possession of the suit property and as such the plaintiff is not owner and not in possession and there is no cause of action for the suit. It is further contended that even otherwise, the defendant has perfected its title over the suit property by adverse possession. 5. On the basis of the pleadings, the trial Court framed the following issues. (1) Whether the plaintiff proves that he is the owner of the suit property? (2) Whether the plaintiff proves that the defendant has encroached upon the suit property? 5. On the basis of the pleadings, the trial Court framed the following issues. (1) Whether the plaintiff proves that he is the owner of the suit property? (2) Whether the plaintiff proves that the defendant has encroached upon the suit property? (3) Whether the defendant proves that it has become owner of suit property by virtue of gift deed executed by the father of plaintiff and one Sri. Mallappa Sindhe? (4) Whether the defendant proves that it has perfected its title to the schedule property by way of adverse possession? (5) Whether the valuation of suit and Court fee paid thereon is sufficient? (6) Whether the suit is in time? (7) Whether the suit is bad for non-joinder of necessary parties i.e., their L.Rs of deceased Balayya? (8) Whether the plaintiff is entitled for the reliefs claimed? (9) What order or decree? 6. In order to prove his claim, the plaintiff got examined himself as PW1 and one witness as PW2 and got marked Ex.P1 to Ex.P12. Thereafter, DW1 to DW3 were examined and got marked Ex.D1 to Ex.D77 documents. The learned trial judge after hearing both the parties, answered issue No.1 to 3 and 8 in the negative and issue No.4, 6 and 7 in the affirmative, consequently dismissed the suit of the plaintiff holding that the plaintiff has failed to prove his title over the suit property and that the defendant has also failed to prove his title through the gift deed. It is further held that the suit is barred by limitation and the defendant has perfected title by way of adverse possession. 7. The plaintiff being aggrieved by the said judgment and decree filed R.A.No.55/2015 on the file of I Addl. District Judge, Kalaburagi. The said Court after hearing both the parties, allowed the appeal on 10.10.2017 and set aside the judgment and decree of the trial Court. It was declared that the plaintiff is the owner of the suit property and consequently the defendant was directed to remove the building or structure or compound wall constructed by him within a period of two months and hand over possession to the plaintiff. Further it is held that the plaintiff is entitled for mense profits against the defendant as provided under order 20 Rule 12 of CPC. 8. Further it is held that the plaintiff is entitled for mense profits against the defendant as provided under order 20 Rule 12 of CPC. 8. The defendant being aggrieved by the judgment and decree passed by the first appellate Court has filed this second appeal. 9. Heard the learned counsel for the appellant and the respondent on admission. 10. The appellant, defendant has to make out grounds in this appeal that there is a substantial question of law which needs to be heard in the present appeal. The learned counsel for the appellant, defendant submitted that the suit property was purchased by the father of the plaintiff. Therefore, the plaintiff is only an ostensible owner and the real owner of the suit property was father of the plaintiff. There is no pleading regarding partition in the family. Therefore, all the members of the family ought to have been impleaded in the suit. The learned counsel further submitted that in 1982, the defendant has put up construction of compound wall and the plaintiff did not raise any objections. The learned counsel further submitted that now the plaintiff has raised the plea of burial dead bodies of his father and mother in the suit land and that tomb or Samadhi are formed in the suit land and that there is no pleading for the same. Therefore, the evidence produced by the plaintiff in this regard cannot be considered. The learned counsel further submitted that the judgment of the first appellate Court is perverse and liable to be set aside and therefore, there is a substantial question of law to be heard and decided in the present appeal. 11. Per contra, the learned counsel for the respondent relying on Ex.P2, Ex.P4, Ex.D57 submitted that the plaintiff has proved that he is the absolute owner of the suit property by virtue of sale deed and that the suit schedule property was allotted to the share of the plaintiff in the family partition under Ex.P2. The learned counsel further submitted that the dead body of plaintiff’s father Balayya and mother Mogallama were buried in the suit land without any objection by the defendant. The learned counsel further submitted that the dead body of plaintiff’s father Balayya and mother Mogallama were buried in the suit land without any objection by the defendant. The defendant claims to have acquired the suit property under the gift deed by the father of the plaintiff and on other hand the defendant also claims to have perfected his title by adverse possession and both the pleas are mutually destructive and as such the contention of the defendant cannot be accepted. The trial Court has held that there is no gift deed nor the defendant has perfected his title by adverse possession. The question of considering the adverse possession does not arise unless the defendant admits the ownership of the plaintiff. All these question of facts have been decided by the first appellate Court and there is no substantial question of law to admit the appeal. 12. I have heard the learned counsel appearing for the parties. Both the learned counsel having addressed the arguments on the admission of the appeal, it is necessary for this Court to consider the material on record and come to the conclusion as to whether any substantial question of law arise in the appeal which has to be heard and decided. 13. There is no dispute that the father of the plaintiff purchased the suit schedule property under registered sale deed dated 18.10.1965 in the name of the plaintiff who was then a minor and the certified copy of sale deed was produced and marked at Ex.P2 without any objections. It is also made out that the father of the plaintiff Balayya had two wives and both the wives and their sons had filed O.S.No.38/1970 before the Munsif at Sedam for partition of joint family properties including suit schedule property and said suit came to be decreed as per Ex.P4 and that ‘D’ schedule property was allotted to the share of the present plaintiff which is the subject matter in the present suit. In fact, Ex.P4 the decree passed in O.S.No.38/1970 was produced as additional document before the first appellate Court in R.A.No.55/2015 and was marked on tendering evidence. It is also not disputed that the plaintiff’s father Balayya died in 1978 and he his body was buried in the suit schedule property. In fact, Ex.P4 the decree passed in O.S.No.38/1970 was produced as additional document before the first appellate Court in R.A.No.55/2015 and was marked on tendering evidence. It is also not disputed that the plaintiff’s father Balayya died in 1978 and he his body was buried in the suit schedule property. In 1979 Smt. Mogalamma W/o Balayya had filed a suit in O.S.No.115/1979 before Civil Judge, Yadgiri for declaration and injunction in respect of the property which had fallen to her share by virtue of a will said to have been executed by Balayya on 19.11.1977. The said suit also ended in compromise. It is also not disputed that the revenue records RTCs in respect of the suit property are standing in the name of the plaintiff since 1968 till date as per Ex.P3 to Ex.P10. It is again not disputed that in 1996, Smt. Mogallama w/o Balayya died and her body was buried in the suit schedule property. Therefore, all these admitted facts goes to show that the defendant has not been able to prove that he is in possession of the suit property as absolute owner by perfecting the title by adverse possession nor he has been able to prove that he has acquired the suit schedule property by virtue of alleged gift deed executed by plaintiff’s father. Admittedly, no gift deed was produced by the defendant before the Court. It is also seen that the plaintiff had filed application U/o 41 Rule 71 of CPC to produce additional evidence in R.A.No.55/2015 which was allowed and same was challenged by the defendant in RSA No.200237/2013. The said second appeal came to be allowed on the ground that the lower appellate Court has not followed the procedure contemplated u/o 41 rule 28 and 29 of CPC and therefore, matter was remanded to the first appellate Court, again PW1 was examined and additional documents are marked. 14. The defendant at the 1st instance claims to have acquired the title to the suit schedule property under gift deed which does not exist. Unless a gift deed is duly registered under Section 17 of the Registration Act. the donee will not get any right over the property. The defendant having failed to establish his right title and interest by virtue of gift deed has also pleaded that he has perfected title over the suit schedule property by virtue of adverse possession. Unless a gift deed is duly registered under Section 17 of the Registration Act. the donee will not get any right over the property. The defendant having failed to establish his right title and interest by virtue of gift deed has also pleaded that he has perfected title over the suit schedule property by virtue of adverse possession. Therefore, whether the defendant could be permitted to raise mutually destructive pleas has to be considered. 15. The learned counsel for the respondent, plaintiff has relied on the decision in the case of T. Ravi & another Vs. B. Chinna Narasimha and others etc. reported in 2017 SCC OnLine SC 263, in which the Hon’ble Supreme Court is held as follows : “Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was 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 pleaded and establish all facts necessary to establish his adverse possession.” 16. Further in the case of P. Periasami (Dead) By Lrs vs. P. Periathambi And Others, it is held that “whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property. Further it is held that the pleas on title and adverse possession are mutually inconsistent and the later does not begin to operate until the former is renounced.” In the present suit, the defendant has not at all declared or stated as to when he has given up plea of title by virtue of gift deed. Therefore, the question of beginning of adverse possession does not arise. The other contention raised by the appellant that all the members of the family have not been impleaded in the suit is liable to be rejected for the reason that there was partition in the family and compromise decree was passed, as already stated and that the suit property was allotted to the share of the plaintiff as per Ex.P2. Therefore, questioning of impleading other members of the family also does not arise. Therefore, questioning of impleading other members of the family also does not arise. The other plea raised by the appellants is that the suit is barred by limitation. When the plaintiff files a suit for possession on the basis of title, there is no limitation and therefore the question of limitation does not arise. Under these circumstances, I hold that absolutely there is no substantial question of law which arises for consideration in the present appeal. The proposed substantial question of law that the appreciation of evidence by the first appellate Court is perverse and not in a manner permitted by law is not made out. The finding recorded by the first appellate Court regarding the defendants pleas of adverse possession and reversing judgment of the trial Court by recording reasons does not call for interference so as to hold that there is perversity in the judgment of the first appellate Court. Under these circumstances, I hold that there is no substantial question of law which arise in the present appeal. Therefore, the appeal being devoid of merits is liable to be dismissed. Accordingly, I proceed to pass the following… ORDER The Regular Second Appeal filed under Section 100 of CPC is hereby 8.