Heard on the question of admission.

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 dated 26.02.2020, passed by the II^nd Additional

District Judge, Barwani (M.P.) in regular Civil Appeal No.15/2017,

affirming the judgement and decree dated 31.01.2017 passed by the Civil

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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.

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.

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

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joint possession of the suit land and both the parties are co-owner and co-

possession 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

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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 t