The judgment emphasizes the requirement of peaceful and uninterrupted possession to establish adverse possession, as well as the application of the Limitation Act, 1963, Article 65.

JUDGMENT :

The present second appeal under section 100 of the Code of Civil Procedure has been filed by the appellants/plaintiffs against judgment and decree dated 30.11.2019 passed by the First Additional District Judge, Burhanpur whereby first appellate Court has upheld the judgment and decree passed by First Civil Judge Class-I, Burhanpur in Civil Suit No.12-A/2014 dismissing the suit of the appellants/plaintiffs seeking relief of declaration of title and permanent injunction by way of adverse possession.

2. Brief facts of the case are that appellants filed a civil suit for declaration and injunction in respect of agricultural land situated over Survey No.487/1, 487/3 & 487/4, area 0.37, 1.50 & 0.37 hectares situated in village Jainabad, District Burhanpur (hereafter referred to as the "suit land"). The suit lands were owned by Kutubuddin and Nazmuddin, who were real brothers. Nazmuddin had given land owned by him to his brother-Kutubuddin by way of Hiba i.e. oral gift. Subsequently, the same was reduced in writing on 21.3.1980. Kutubuddin was in possession of entire land i.e. land of Nazamuddin. Therefore, Kutubuddin became absolute owner of land owned and possessed by both the brothers. Kutubuddin had submitted an application for mutation of his name before the Naib Tahsildar on the basis of oral gift and his name has been mutated. The said order of Naib Tahsildar was challenged by legal representatives of Nazamuddin before the Sub Divisional Officer who set aside the order of Naib Tahsildar. The matter travelled upto Board of Revenue and mutation of Kutubuddin has been rejected. He further submitted that plaintiffs are in continuous and peaceful possession of the suit land, therefore, plaintiffs are owner of the suit land. The plaintiffs ultimately pleaded that respondents had knowledge that plaintiffs/appellants have been in continuous and peaceful possession of more than 12 years, therefore, owner of the suit land on the ground of adverse possession. Accordingly, the appellants/plaintiffs had filed an application for declaration of title over the suit land and permanent injunction against the respondents/defendants.

3. In the instant suit, notices were issued to the respondents, but they remained absent and ultimately the trial Court has declared them ex parte. Evidence of appellants/plaintiffs have been recorded by the trial Court, but the trial Court dismissed the suit on the ground that no adverse possession be sought against the co-owners by the owner and the oral gift has not been found valid. The appellants/plaintiffs preferred an appeal against the judgment and decree of the trial Court, which too has been dismissed by the lower appellate Court.

4. Being aggrieved by the judgment and decree of the lower appellate Court the appellants/plaintiffs preferred instant second appeal on the grounds that lower appellate Court grossly erred in dismissing the appeal and affirming the judgment of the trial Court. The judgment and decree passed by courts below are liable to be set aside. The courts below should have seen that appellants perfected their title over the suit land by virtue of adverse possession. The appellants submitted documents and adduced evidence, but courts below erred in holding that decree cannot be passed against co-owner on whose land another co-owner is in possession and it cannot be said to be adverse possession. The courts below failed to pay heed to oral gift deed dated 21.3.1989, when no body had opposed the deed then there was no reason to discard the documents. Hence, it has been prayed to set aside the judgment and decree of the courts below and suit of the appellant be decreed.

5. Heard learned counsel for the parties and perused the record of the trial Court as well as that of the lower appellate Court. The trial Court has found that suit land was not received by the appellants/plaintiffs by way of gift. The trial Court has found that both the parties to be in joint possession of the suit land. I