JUDGMENT :

SANJAY K. AGRAWAL, J.

1. The substantial question of law involved, formulated and to be answered in this second appeal preferred by the appellant/plaintiff is as under:

“Whether both the Courts below are justified in granting counter claim and thereby decreeing the counter claim in favour of the defendants even after holding that the plaintiff is not the title holder of the suit land by recording a finding perverse to the record?”

For the sake of convenience, the parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court.

2. Sole plaintiff-Kameshwar Pathak filed a suit for permanent injunction and for possession of the suit land in respect of Khasra No. 271 area 0.18 Are. and Khasra No. 508 area 0.19 Are. total area 0.37 Are. situated at village Sarhari, Post Kewra Tahsil Pratappur, District Surguja (Now District-Surajpur) on the basis that he has purchased the suit land by two sale-deeds dated 25.8.86 and 10.12.79 from one Kusmi and claimed decree as mentioned above.

3. Resisting the suit, defendants No. 1 to 5 filed their written statement and denied the averments made in the plaint and in addition to filing of written statement they also laid counterclaim claiming that the suit property was originally held by Ramprasad and Dukhi Yadav and they never objected to defendants No. 1 to 5 to remain in possession and they are in settled possession over the suit land for last 60 to 70 years and as such, they have perfected their title by way of adverse possession, therefore, decree declaring two sale deeds dated 25.8.86 and 10.12.79 as null and void be granted in their favour and decree for adverse possession on the basis of long possession also be granted in their favour.

4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment and decree dated 29.11.2008, held that the suit property was originally held by Ramprasad and Dukhi Yadav and the plaintiff has not proved that he has title over the suit land or his vendor Sukmi had title over the suit land from which he has purchased and held that the plaintiff is not titleholder of the suit land and further held that defendants No. 1 to 5 have perfected their title by way of adverse possession and sale deeds dated 25.8.86 and 10.12.79 are null and void. Feeling aggrieved and dissatisfied with the judgment and decree of the trial Court, the plaintiff has preferred first appeal before the first appellate Court, but remained unsuccessful as the first appellate Court affirmed the judgment and decree of the trial Court, against which, the plaintiff has preferred this second appeal under Section 100 of the CPC, in which one substantial question of law has been formulated, which has been setout in the opening paragraph of this judgment for sake of completeness.

5. Mr. Manoj Paranjape, learned counsel for the appellant/plaintiff, would submit that both the Courts below have concurrently erred in holding that the plaintiff is not titleholder of the suit land. Defendants No. 1 to 5 have never admitted the plaintiff to be titleholder, rather questioned the sale deeds executed by Sukmi in his favour by way of counterclaim as held by two Courts below and since defendants No. 1 to 5 have never admitted the title of the plaintiff, therefore, three requirements of adverse possession are absolutely lacking and therefore, two Courts below have committed an error in holding that defendants No. 1 to 5 have perfected their title by way of adverse possession, as such, the judgment and decree both the Courts below to that extent deserve to be set-aside.

6. On the other hand, Mr. D.N. Prajapati, learned counsel for legal representatives of respondents No. 1 and 2 and respondents No. 3 to 5/defendants, would submit that both the Courts below are absolutely justified in dismissing the suit of the plaintiff and granting counterclaim of defendants No. 1 to 5 as the defendants are in possession for last 60 t