Rakesh Kumar Garg, J.

1. This is defendants Regular Second Appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondents for separate possession of 3/5th share of Gair Mumkin Abadi land measuring 0 kanal 11 marlas comprising in Khasra No.197//132/1 (0-11) situated at village Bagha, Tehsil Talwandi Sabo, District Bathinda, by way of partition of the land in dispute, has been decreed by passing a preliminary decree.

2. Briefly stated, the facts of the case are that the plaintiff-respondents filed the present suit for partition of the suit land on the ground that they were co-sharers and were in joint possession. It was further submitted that they had 3/5th share in the suit land and the property being joint, they were unable to make full use of their land. The defendant-appellants refused to partition the suit land, hence this suit.

3. Upon notice, defendant-appellants appeared and contested the suit raising various preliminary objections including that the defendant-appellants have become owners of the suit land measuring 11 marlas by way of adverse possession. On merits, it was further stated that the plaintiff-respondents were neither the owners nor in possession of any portion of the suit land, and the revenue record was liable to be corrected as the defendants had become owners by way of adverse possession. Dismissal of the suit was prayed for.

4. On the pleadings of the parties, the following issues were framed by the trial Court:-

1. Whether the plaintiffs are owners of the property in dispute, if so to what extent ?opp

2. Whether the plaintiffs are entitled for separate possession of their share in the disputed property OPP

3. Whether the defendant has become the owner of the disputed land by way of adverse possession OPD

4. Whether suit is not maintainable OPD

5. Relief.

5. After conclusion of the evidence of the parties and hearing arguments, the trial Court decreed the suit of the plaintiff-respondents with costs by the impugned judgment and decree dated 10.3.2007. Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the appellant-defendants preferred an appeal which was dismissed by the additional District Judge (Fast Track Court), Bathinda vide judgment and decree dated 24.4.2008. While dismissing the appeal, the lower Appellate court observed as under:-

" After hearing rival contentions of both the parties and perusing the file carefully, it is clear that the bahi writing on the basis of which the counsel for appellant has now placed reliance, has not been proved on record. It is admitted case of the appellant that the counsel for the appellant has not pursued the case in the learned lower court properly. It is also conceded that in the pleadings i. e. , at the time of filing of the written statement, no mention has been made regarding the bahi entry which is now sought to be produced by way of additional evidence and the said application for additional evidence has been dismissed as there is no base qua the same in the pleadings. So from this arguments of the learned counsel for appellant, it is implied that the learned lower court has not otherwise erred while decreeing the suit of the plaintiff for joint possession because it has been argued that had the bahi entry been there on the record, the decision of the suit would have been different. Perusal of the judgment of the learned lower court nowhere reveals that the judgment has not been passed as per the given facts and circumstances of the case. While returning the finding it has clearly been discussed by the learned lower court that it is not at all disputed that appellant Bota Singh has purchased 2/5 share of 0 kanal 11 marlas i. e.4 marlas from Sham Kaur, Chhoto Kaur widows of Sher Singh etc. But the factum as to appellant having become owner of the suit property by way of adverse possession is not at all sustainable. Perusal of the revenue record reveals that the suit land isjoi