JUDGEMENT

Heard on the question of admission.

2. This Second appeal under Section 100 of Civil Procedure Code (for brevity, CPC) has been filed by the appellants (hereinafter referred to as “plaintiffs”) against the respondents (hereinafter referred to as “defendants”) against the impugned judgment and decree dated 23/3/2010 passed by the Ist Additional District Judge, Satna in Civil Appeal No. 43- A/06 confirming the Judgment and decree dated 26/10/2005 passed by IInd Civil Judge, Class – II, Satna in Civil Suit No. 12-A/04. 3. The facts necessary for disposal of the present appeal in brief are that the plaintiffs have filed the civil suit against the respondents/defendants, for declaration of title and permanent injunction regarding land bearing khasra no 437 area 0.40 dismil, situated at Village Dhaurhara Tehsil Raghurajnagar Distt. Satna (for short “suit land”) before the court of Second Civil Judge Class II Satna (MP). The plaintiffs stated in their plaint that the house of the plaintiffs was constructed with permission over the part of the suit land since long back. The respondent no.3 illegally recorded his name over suit land in the revenue record and sold the same to the respondent no.1 in 1975 by registered sale deed but not landed over the possession because the plaintiffs are in possession of the land. Thereafter, the respondent no.1 again sold the suit land to the respondent no.2 on 8/9/1995 by registered sale deed. The plaintiff further submitted that they are continuous in possession over the suit land till date since long back, hence the plaintiffs also claiming the title over the suit land on the basis of adverse Possession. It is also averred by the plaintiffs that the suit land was erroneously entered in the name of Shyamlal and his ancestors. Plaintiffs got rights of Bhumiswami on suit land by virtue of provisions of “Basad Khalkar Adhiniyam”. In the meanwhile, efforts for dispossessing the plaintiffs/appellants from the suit land was made by the defendant no.2 giving rise to apprehension to the plaintiffs of their dispossession. The plaintiffs, hence, on 10/7/1995 filed the civil suit before the trial court against the respondents for declaration of their title and permanent injunction.

4. The defendant no.2/respondent no.2 filed written statement and contended the averments of the plaintiffs/appellants made in their plaint.

The defendant no.1/respondent no.2 submitted that he is in possession over the suit land since 1995. The defendant no.2 further stated that the house of the plaintiffs is constructed over the land bearing survey no.438 instead of suit land and he was purchased the suit land in 1995, since then he is in possession.

5. The defendant no.1, 3 and 4 did not file their written statements and therefore, the trial Court proceeded ex-party against them.

6. On the basis of pleadings of the parties, the learned trial Court framed issues. After recording evidence of the parties, the learned trial Court dismissed the plaintiff’s suit because the plaintiff failed to prove their claim.

7. Being aggrieved by the judgment and decree dated 26/10/2005 the plaintiffs have filed the first civil appeal which was registered as Civil Appeal no 43A/2006. The learned first appellate court after hearing the parties affirmed the judgment and decree of the trial Court by impugned judgement and decree dated 23/3/2010.

8. Learned counsel for the appellants submitted that the learned courts below have failed to appreciate the oral and documentary evidence in their proper perspective. The courts below have erred in holding that respondent no.2 is in possession of the suit land which is against the evidence on record. The learned trial Court found the possession of the plaintiffs over the suit land since 1963 to 1991, hence the registered sale deed executed during this period by one of the defendants to other is null and void, because without physical possession the sa