The main legal point established in the judgment is that the requisites mentioned in the case-laws for establishing adverse possession and oral partition must be pleaded and proved to obtain declaration of title of the suit land.

JUDGMENT

1. Heard on the question of admission.

2. The present Second Appeal has been filed by the appellants/plaintiffs u/S 100 of the Code of Civil Procedure, 1908 (in short "CPC") against the judgement and decree dtd. 26/2/2020, passed by the IInd Additional District Judge, Barwani (M.P.) in regular Civil Appeal No.15/2017, affirming the judgement and decree dtd. 31/1/2017 passed by the Civil Judge Class-I, Rajpur, District Barwani in Civil Suit No.02A/2014 filed by the appellants for declaration of title and permanent injunction, which was dismissed.

3. It is an admitted fact that agricultural land bearing Survey No.35/1, area 6 acres, situated at village Salkheda, Tehsil Rajpur, District Barwani (M.P.) (hereinafter referred as the "suit land") is recorded in the name of plaintiffs and the fathers of the respondents as owner. Plaintiffs and defendants are members of same family. The suit land is joint property of both the parties.

4. Facts of the case in brief are that there was a mutual partition for more than 50 years ago between father of appellants/plaintiffs and fathers of respondents/defendants. Thereafter, both the parties are in possession in their respective shares. The suit land was received by father of the plaintiffs in mutual partition. Thereafter, the plaintiffs are in peaceful and continuous possession of the suit land. Therefore, the plaintiffs are owner of the suit land. The appellants alternatively pleaded that the respondents had knowledge that appellants have been in continuous and peaceful possession of the suit land for more than 12 years. Therefore, the plaintiffs became the owner of the suit land on the ground of adverse possession. Accordingly, the appellants/plaintiffs had filed the suit for declaration of title of suit land and permanent injunction against the respondents/defendants.

5. The respondents/defendants had denied the averments of the plaint except the admitted facts and had pleaded that the suit land was never partitioned between the parties or their ancestors. Both the parties are in joint possession of the suit land and both the parties are co-owner and copossession holder of the suit land, therefore, the suit is liable to be dismissed.

6. Learned Trial Court after recording evidence of both the parties, has dismissed the suit. Being aggrieved by the said judgement and decree, the appellants/plaintiffs preferred an appeal before the First Appellate Court and the First Appellate Court by the impugned judgement and decree confirmed the judgement and decree passed by the learned Trial Court against the impugned judgement and decree, the present appeal has been filed.

7. Learned counsel for the appellants submits that the judgement and decree passed by both the Courts below are illegal and are not based on proper appreciation of evidence. Learned Courts below have committed error to disbelieve the evidence of plaintiffs. It is further argued that both the Courts below have erred in dismissing the suit and ignored the pleadings made by the appellants. Therefore, the findings of both the Courts below is perverse and against the evidence available on record. Thus, in the light of the aforesaid, he submits that appeal deserves to be admitted on the substantial question of law proposed by the appellants. Learned counsel for the appellants placed reliance in the case of Des Raj and Ors. V Bhagat Ram (dead) by LRS. and Ors. [(2007) 9 SCC 641] and Vidya Devi alias Vidya Vati (dead) by LRS. V Prem Prakash and Ors. [(1995) 4 SCC 496].

8. I have heard learned counsel for the appellants and perused the records.

9. Learned Trial Court as well as the First Appellate Court have considered the oral and documentary evidence, produced by the parties. Learned Trial Court has not found proved that the suit land was received by the appellants/plaintiffs in the mutual partition. Learned Trial Court has found proved that both the parties are in joint possession of the suit land but it was not found proved that