JUDGMENT : Though this matter is listed in admission, with consent of learned counsel on both sides, the matter is taken up for final hearing. 2. The captioned second appeal is filed by the unsuccessful defendant Nos.1 and 2 who have questioned the concurrent findings of the Courts below wherein the plaintiffs suit for partition is decreed negativing the contention of defendants that they have perfected their title by way of adverse possession. 3. For the sake of brevity, the parties are referred to as per their rank before the trial Court. 4. The family tree of the parties is as under: 5. The plaintiffs represent the branch of Imamsab who is the younger son of propositus Lalsab while defendants represent the branch of Davalsab who was the eldest son of propositus Lalsab. The present suit is filed by contending that they are entitled for half share in the suit land bearing Sy.No.473 measuring 36 acres 15 guntas. The plaintiffs claimed that in 1977, there was some dispute between the children of second son Gaibusab in respect of land bearing Sy.Nos.44, 45, 46 and 43. The second son Gaibusab filed partition suit in O.S.No.27/1977 seeking relief of partition and separate possession. The said suit was decreed. The plaintiffs claimed that therefore the second branch of second son Gaibusab have taken their legitimate share pursuant to decree passed in O.S.No.27/1977. Therefore, the plaintiffs contended that insofar as suit land is concerned, there is no partition between the branch of Davalsab and the plaintiffs branch who are tracing their right under Imamsab. Plaintiffs claim that they along with defendants are tenants in common and the suit land was originally owned by propositus Lalsab and therefore, plaintiffs claim that they have got half share in the suit schedule properties. 6. On receipt of summons, the present defendants contested the proceedings and stoutly denied the entire averments made in the plaint. The defendants contended that plaintiffs by not asserting right in earlier suit bearing O.S.No.27/1977 have given up their claim and the same amounts to waiver and acquiescence. The defendant No.1 further contended that he has perfected his title over the suit land by way of adverse possession. The defendant No.1 also contended that suit is barred by limitation. 7. The plaintiffs and defendants to substantiate their respective claim have let in oral and documentary evidence. 8. The defendant No.1 further contended that he has perfected his title over the suit land by way of adverse possession. The defendant No.1 also contended that suit is barred by limitation. 7. The plaintiffs and defendants to substantiate their respective claim have let in oral and documentary evidence. 8. The trial Court having examined the material on record found that there was litigation between the family way back in 1930. In the said suit, the grand son of Lalsab and son of Gaibusab initiated a suit in O.S.No.711/1930 and in the said suit, Sy.No.125 which in the present suit renumbered as Sy.No.473 was allotted to Modindab thereby creating limited right in his favour. In the said compromise, it was agreed between the parties that the present suit land would revert back to the defendants there in after the death of Modinsab. Therefore, the trial Court held that the suit land reverted back to the plaintiffs and defendants' family and hence, defendants cannot assert exclusive right over the suit land. The trial Court has also examined the stand taken by the defendants herein in earlier suit bearing O.S.No.27/1977. The defendants in the said suit also set up plea of adverse possession and also contended that suit is barred by limitation. The trial Court referring to Exs.D-6 and D-7 which are judgment and decree passed in O.S.No.27/1977 found that in the said suit, plea of adverse possession and limitation were answered in the negative. 9. The contention of defendants that the present plaintiffs who were arrayed as defendant Nos.6 and 7 in O.S.No.27/1977 failed to lay a claim over the suit land and therefore, they are debarred from asserting any right and share in the present suit land was also negatived by the trial Court in the present case. The trial Court also found that the defence set up by the defendants in O.S.No.27/1977 asserting adverse possession has no bearing on plaintiffs' right in the present suit. The trial Court found that the subject matter of O.S.No.27/1977 were three agricultural lands bearing block Nos.44, 45 and 46 while the present suit land bearing No.473 was not the subject matter of the earlier suit. Therefore, it is in this background, the trial Court held that it is not the case of the defendants that the present plaintiffs were also allotted a share in the earlier suit bearing O.S.No.27/1977. 10. Therefore, it is in this background, the trial Court held that it is not the case of the defendants that the present plaintiffs were also allotted a share in the earlier suit bearing O.S.No.27/1977. 10. The trial Court referring to Ex.P-1 was of the view that plaintiffs have succeeded in proving that they are the co-owners and the plaintiffs' names are duly mutated in the revenue records. The trial Court also held that defendants have not produced any documents to indicate that they have questioned the mutation in favour of plaintiffs. The trial Court also held that defendants have failed to establish that plaintiffs rights were decided in O.S.No.27/1977. Therefore, the trial Court proceeded to hold that there is absolutely no evidence let in by defendants indicating that the plaintiffs were ousted from the suit land. It is in this context, trial Court held that even if present plaintiffs who were arrayed as defendant Nos.6 and 7 in O.S.No.27/1977 were placed exparte, that in itself would not amount to waiver. Therefore, trial Court held that defendants have failed to prove waiver and acquiescence as alleged in the written statement. 11. Insofar as plea of adverse possession is concerned, the trial Court held that a party asserting adverse possession has to establish hostile animus. Therefore, in absence of rebuttal evidence, trial Court answered the issue relating to adverse possession in the negative. Consequently, suit was decreed. 12. Feeling aggrieved by the judgment and decree of the trial Court, the defendants preferred appeal before the Appellate Court. 13. The Appellate Court having independently assessed oral and documentary evidence was also not inclined to accept the defence set up by the defendants. Appellate Court referring to the decree passed in O.S.No.27/1977 which was confirmed by this Court in RSA.No.9/1986 also held that defendants have failed to prove that they have perfected their title by way of adverse possession. Appellate Court was also of the view that there is absolutely no evidence to establish that plaintiffs were ousted from the suit land. Having independently assessed oral and documentary evidence, Appellate Court has concurred with the conclusions and findings recorded by the trial Court and consequently, appeal is dismissed. 14. These concurrent findings are under challenge by the defendants. 15. Appellate Court was also of the view that there is absolutely no evidence to establish that plaintiffs were ousted from the suit land. Having independently assessed oral and documentary evidence, Appellate Court has concurred with the conclusions and findings recorded by the trial Court and consequently, appeal is dismissed. 14. These concurrent findings are under challenge by the defendants. 15. Shri S.P.Shankar, learned Senior Counsel appearing for the defendants reiterating the grounds urged in the appeal memo would contend that the present defendants have asserted that they have perfected their title way back in 1977. Plea of adverse possession was in fact set up in the written statement filed in earlier suit bearing O.S.No.27/1977 which was filed on 28.09.1977. Therefore, the present suit is not only barred by limitation, the defence set up in the earlier suit clearly establishes that defendants have perfected their title by way of adverse possession. Therefore, he would contend that both the Courts erred in not considering the principle of waiver and acquiescence and also ouster and adverse possession which are squarely applicable to the present case on hand. 16. Learned Senior Counsel would further contend that both the Courts have not properly appreciated and examined decree passed in O.S.No.27/1977. If plaintiffs have not laid a claim in the earlier suit bearing O.S.No.27/1977, both the Courts erred in entertaining the present suit without examining the principles of acquiescence and waiver. He would further contend that both the Courts have relied on the revenue entries which do not carry any evidentiary value and the entire basis to decree the partition suit are the revenue records. He would further strenuously argue and contend that Appellate Court being final fact finding authority has not properly appreciated the entire evidence on record and has not discharged its duty as Appellate Authority. He would also question the reasons assigned by the Appellate Court while rejecting the additional documents produced before the Appellate Court. 17. To buttress his arguments, he has placed reliance on the following judgments : 1. Collector of Bombay vs. Municipal Corporation of the City of Bombay and Others – AIR 1951 SC 469 2. Ravinder Kaur Grewal & Ors. Vs. Manjit Kaur & Ors. – AIR 2019 SC 3826 3. Kapur Chand Godha vs. Mir Nawab Himayatalikhan Azamjah - AIR 1963 SC 250 4. Yeshwantrao Laxmanrao Ghatge & Anr. Vs. Baburao Bala Yadav and Ors. Collector of Bombay vs. Municipal Corporation of the City of Bombay and Others – AIR 1951 SC 469 2. Ravinder Kaur Grewal & Ors. Vs. Manjit Kaur & Ors. – AIR 2019 SC 3826 3. Kapur Chand Godha vs. Mir Nawab Himayatalikhan Azamjah - AIR 1963 SC 250 4. Yeshwantrao Laxmanrao Ghatge & Anr. Vs. Baburao Bala Yadav and Ors. - AIR 1978 SC 941 5. Alla Baksh vs. Mohd. Hussain -ILR 1996 KAR 1340 6. Kshitish Chandra Bose vs. Commissioner of Ranchi - AIR 1981 SC 707 7. M.R. Patil and Another vs. Member, Industrial Court and Another - (1997) 4 SCC 545 8. Sri Aralappa S/o Sri Chowrappa vs. Sri Jagannath -ILR 2007 KAR 339 9. Union of India vs. K.V. Lakshman & Ors. - AIR 2016 SC 3139 10. SK. Sattar SK. Mohd. Choudhari vs. Gundappa Amabadas Bukate -1996 Vol. 6 SCC 373 18. Per contra, Shri Shivakumar Kalloor, learned counsel appearing for the plaintiffs would contend that the decree passed in O.S.No.27/1977 would not affect the plaintiffs' right. He would take strong objections to the contentions raised by the learned Senior Counsel. He would bring to the notice of this Court that earlier suit in O.S.No.27/1977, agricultural lands bearing Block Nos.44, 45 and 46 were the subject matter. The present suit land was not the subject matter of earlier suit. Therefore, he would contend that defendants again cannot resist the present suit by contending that plaintiffs have not worked out their claim in the earlier suit. He would also vehemently argue and contend that the plea of adverse possession set up by defendants in the earlier suit and also plea of limitation was rightly negatived by the Court in the earlier round of litigation. The plea of ouster has to be pleaded by producing cogent evidence. He would also bring to the notice of the Court that defendants have admitted during trial that the suit land is jointly standing in the name of plaintiffs and defendants. Therefore, he would contend that the concurrent findings recorded by the Courts below is based on legal evidence let in by the plaintiffs and in absence of rebuttal evidence let in by the defendants. 19. Heard learned Senior Counsel appearing for the defendants and learned counsel appearing for the plaintiffs. I have given my anxious consideration to the concurrent findings of the Courts below. 19. Heard learned Senior Counsel appearing for the defendants and learned counsel appearing for the plaintiffs. I have given my anxious consideration to the concurrent findings of the Courts below. I have also gone through the judgments cited by the learned Senior Counsel and also the synopsis/written submissions produced before this Court. 20. This Court has absolutely no cavil to the judgments cited by the learned Senior Counsel. However, the judgments cited by the learned Senior Counsel are not relevant and the same would not come to the rescue of the defendants. The principles cited in the above judgments have no application to the present case on hand. 21. The concept of adverse possession in India is more than a century old concept of law which is primarily based on three fundamental principles. Firstly, competing rights of ownership between the actual owner and the person taking care of the land. Right of a person taking care of the land and making highest and best use of the land would prevail over the actual title holder of the land who does not take care of the land. Secondly, the title of the land should not be kept in abeyance for a long period of time i.e. a situation should not arise in which the title holder of the land is not known. Thirdly, it is presumed that the actual title holder has abandoned his possessory rights if despite knowing that some other person is claiming hostile possession over his land but he chooses to keep quite and not taking any action against the said person as provided under the law. 22. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is ‘nec vi, nec clam, nec precario’ that is, peaceful, open and continuous. The possession must be adequate in continuity in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. The possession must be adequate in continuity in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. 23. The concept of adverse possession has been well settled by the judicial committee of the Privy Council in 1907 in Perry v Clissold, (1907) A.C. 73, wherein it was held that; "It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period of prescribed by the provisions of the statue of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title." 24. The decision of the Privy Council though not binding on the Supreme Court but still the said decision was upheld by three Judges of the Hon'ble Supreme Court in the case of NAIR SERVICE SOCIETY V K.C. ALEXANDER reported in AIR 1968 SC 1165 . The Hon'ble Apex Court in the case of P.T.MUNICHIKKANNA REDDY AND OTHERS V. REVAMMA AND OTHERS, (2007) 6 SCC 59 further laid down certain guidelines regarding the enquiry to be held by the Courts while deciding the plea of adverse possession. The Hon'ble Apex Court has held that; "Therefore, to assess a claim of adverse possession, two-pronged enquiry is required; 1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. 2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distances from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property." 25. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property." 25. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property therefore, the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. In DAGADABAI (DEAD) BY LRS V ABBAS @ GULAB RUSTUM PINJARI, (2017) 13 SCC 705 , the Hon'ble Apex Court held that a person, who acquires title by adverse possession, has to first admit the ownership of the true owner over the property before claiming ownership on the strength of adverse possession. 26. It is trite law that once a plea of adverse possession is set up by the defendants, then the entire burden would shift on the defendants. The plaintiffs can be non-suited provided defendants succeed in establishing that they have perfected their title by way of adverse possession. Though learned Senior Counsel strenuously argued before this Court, however, he was not able to point out relevant pleadings and evidence on record which would indicate that defendants have perfected their title by way of adverse possession. This Court would find that the even plea of ouster cannot be entertained for want of pleadings in the written statement and the evidence supporting the said pleadings relating to ouster during trial. 27. On examining the material on record, what emerges is that propositus Lalsab was the holder of all the agricultural lands. The defendants have nowhere disputed that this property was not held by propositus Lalsab. The only defence that is set up by defendants is that they have perfected their title by way of adverse possession. If both the Courts have concurrently held that defendants have failed to prove that they have perfected their title by way of adverse possession, this Court under Section 100 cannot revisit and reassess the entire evidence on record. The parties to the suit are governed under Mohammaden Law and they being tenants in common would inherit the suit land. If both the Courts have concurrently held that defendants have failed to prove that they have perfected their title by way of adverse possession, this Court under Section 100 cannot revisit and reassess the entire evidence on record. The parties to the suit are governed under Mohammaden Law and they being tenants in common would inherit the suit land. The fact that second branch having taken their legitimate share in the earlier suit bearing O.S.No.27/1977, the present plaintiffs are entitled to seek half share in the suit land. The material on record also indicate that the present suit land was not at all the subject matter in the earlier suit in O.S.No.27/1977. Therefore, it can be inferred that there is no severance between the first branch Davalsab under whom defendants are asserting right and the second branch of Imamsab under whom the present plaintiffs are asserting half share in the suit land. If there is no severance, the plaintiffs being tenants in common along with defendants are entitled for half share. 28. In a partition suit, it is a recurring cause of action and if plaintiffs were not allotted any share in earlier suit bearing O.S.No.27/1977 and defendants having failed to substantiate their claim by way of adverse possession, plaintiffs cannot be non-suited in the present case on hand. Even otherwise, defendants have not set up plea of ouster. All these significant details are dealt by both the Courts. Therefore, the concurrent findings recorded by the Courts below in awarding half share is based on legal evidence. I do not find any infirmities or illegalities in the judgment and decree passed by the Courts below. 29. No substantial question of law arises for consideration. Accordingly, appeal is dismissed.