JUDGMENT : R.N. Sahay, J. This litigation involves a dispute between two purchasers of the same property from two co-sharers. The dispute is in respect of half area of plot no. 1785 khata no.29 village Gopalpur P.S. Naubatpur in the district of Patna. The dispute arises in this way. One Mewa Singh was common ancestor of defendants 2nd and 3rd set. Mewa Singh had three sons, namely, Chetwan Singh. Harbans Singh and Kirit Singh. After the death of Mewa Singh, Chetwan Singh became karta of the family. Defendants no. 17, 18 and 19 are sons and grand sons respectively of Chetwan Singh. Defendant no.21 Rameshwar is the son of Kirit Singh. Surendra Singh is minor son of Rameshwar Singh. Harbans died issueless. 2. There is no dispute that Chetwan Singh as karta of the family purchased plot no. 1785 in the year 1912 in the name of his son Ram Kishun (D.W.17). The claim of Ram Kishun that it was self acquired property has been negatived by both the Courts below. According to the case of the plaintiffs-appellants, there was partition in the family in the year 1943 and all the joint family properties were partitioned. So far plot no. 1785 is concerned, it was divided half and half between defendants-2nd party and defendants-3rd party. The southern half of plot no. 1785 was allotted to defendants-2nd party and northern half was allotted to defendant-3rd set and they came into possession accordingly. Defendent-3rd party mortgaged his share to Ganpat Singh by a registered mortgage deed dated 29.4.1957 and the mortgagee came into possession. Thereafter defendant-3rd party being in need of money sold the mortgaged property consisting the disputed land in favour of the plaintiffs for Rs. 1284/-. The plaintiffs redeemed the mortgage in 1959 and the plaintiffs came into possession. The plaintiffs, who are appellants before this Courts applied for mutation of their names. Then, they came to know that a collusive sale deed dated 24.5.1959 in the name of Bindeshwari Sharma defendant no.9 had been executed by defendant-2nd party in respect of the entire 67 decimals of plot no.1785. The plaintiffs, who are appellants before this Courts applied for mutation of their names. Then, they came to know that a collusive sale deed dated 24.5.1959 in the name of Bindeshwari Sharma defendant no.9 had been executed by defendant-2nd party in respect of the entire 67 decimals of plot no.1785. In the mutation proceeding defendant no.17 Ram Kishun made out a case that the entire plot no.1785 was acquired from his own exclusive fund and during partition the said plot was treated as exclusive property of Ram Kishun and that plot had been excluded from partition which according to the defendants-2nd party took place in 1947 by means of panchayati and 1943 as asserted by appellants. 3. If defendants-2nd party was able to prove that partition took place in 1947 and the entire plot was allotted to them, then the suit would fail. According to defendant-3rd Party, however, partition had taken place in 1943 itself and the plot was divided half and half. Defendant-3rd party filed documents of partition allegedly bearing the signature of Kirit Singh. Defendants-2nd party also pleaded that the suit is not maintainable in view of total waiver and acquiescence. As stated earlier, both the courts below have held that this plot was purchased by joint family fund and therefore Ram Kishun could come (sic) claim his exclusive possession over it. 4. Learned Munsif decreed the suit by deciding all the issues in favour of the plaintiffs. Learned Munsif in his well discussed JUDGMENT : first dealt with the question whether partition took place in 1943 as stated by the plaintiffs and defendant no. 20 or whether partition took place in 1947 as claimed by the defendant no. 17 and defendants-1st party. Learned Munsif has not given any specific finding on this point but held that the partition effected in the year 1947 on the basis of Panchnama (Ext.-L-1) which was the basis of partition in 1947 was not valid, legal and binding on the parties. Learned Munsif held that the plaintiffs have been able to prove that Kirit Singh had possession over the suit land prior to the execution of sale deed in favour of the plaintiffs. During mortgage Ganpat had possession and after mortgage Kailash came in possession. The plea of adverse possession advanced on behalf of the contesting defendants was rejected. Learned Munsif held that the plaintiffs have been able to prove that Kirit Singh had possession over the suit land prior to the execution of sale deed in favour of the plaintiffs. During mortgage Ganpat had possession and after mortgage Kailash came in possession. The plea of adverse possession advanced on behalf of the contesting defendants was rejected. Learned Munsif further found that the plaintiffs had been dispossessed when the trial was in progress. Learned Munsif granted the declaration asked for that the plaintiffs had title and possession over 331/2 decimals of plot no. 1785, which along with other documentary evidence of possession in his favour clearly support the case of the defendants-1st and 2nd party. Learned Subordinate Judge has criticised the JUDGMENT : of the Munsif, who had found the evidence of three defendants witnesses to be unreliable because they were inimical to defendant-3rd party. Learned Subordinate Judge held that their evidence could not be rejected. The evidence of this witness was that the entire plot no. 1785 was possessed by defendants-1st party and second party. Learned Subordinate Judge found that all the witnesses examined on behalf of the contesting defendants on the point of possession of defendants-1st and 2nd party is reliable witnesses and accepted their evidence. 6. Learned Subordinate Judge has summed up his finding as follows :– "Thus, I find that there are overwhelming documentary and oral evidences as well as circumstances which conclusively establish the case of the defendants, first and second party that they have been in possession of the disputed plot since before 1947 at least and the defendants third party or the plaintiffs had never their possession since 1947 over the disputed plot. They have also discharged their onus, if any, on them under article 144 of the Limitation Act. Therefore, it is held that the plaintiffs suit was barred by adverse possession as well as limitation. The findings of the learned Munsif on these points are therefore reversed. This point is accordingly decided in favour of the appellants." 7. Learned Subordinate Judge held that the plaintiffs were not entitled to any decree. Learned Subordinate Judge, however, granted alternative relief claimed by the plaintiffs against defendant-3rd party. 8. The findings of the learned Munsif on these points are therefore reversed. This point is accordingly decided in favour of the appellants." 7. Learned Subordinate Judge held that the plaintiffs were not entitled to any decree. Learned Subordinate Judge, however, granted alternative relief claimed by the plaintiffs against defendant-3rd party. 8. This appeal was admitted on the question whether in view of the finding that the disputed property was joint family property, question of adverse possession could be raised and the appellants could be defeated on that ground. This is the only substantial question that arose for consideration in this appeal. 9. Mr. Parmeshwar Prasad, learned counsel for the appellants submitted that the JUDGMENT : of the appellate court is vitiated in view of the fact that the court has given no finding on the issue whether the partition had taken place in 1943 or in 1947 and that whether defendants-2nd and 3rd party came in possession over half and half over plot no. 1785 especially when it was specific case of the appellants. Learned counsel submitted that the appellate court went wrong in relying on panchnama without touching the reasons recorded by the Munsif in disbelieving the panchnama. Learned appellate court has not discussed the evidence of Government Expert whose evidence, according to the learned counsel for the appellants, was disputed by the contesting defendants. 10. It was next urged that the appellate court erred in placing the onus on the plaintiffs to prove their title or their vandors' possession within 12 years prior to institution of the suit having regard to relevant provisions in the Limitation Act 1908. Learned counsel contended that the appellate court did not properly appreciate some of important documents like Ext.-C/II, C/II-1, C/II-2, C/II-3, C/II-4 and C/II-5. 11. Mr. Prasad is right in his contention that the court of appeal below omitted to give a finding on the most important issue of the case whether partition had taken place in 1943 itself and the disputed plot was divided half and half then the plaintiffs' suit is bound to succeed. On the other hand, if it was found that the partition had taken place in 1947, the plaintiffs' suit would fail. On the other hand, if it was found that the partition had taken place in 1947, the plaintiffs' suit would fail. If partition had taken place in 1943 and the plot was divided half and half between two co-sharers, then naturally both the parties must have come in possession of their respective shares allotted to them. According to the case of the defendant 1st and 2nd party, there was partition in 1947 and this plot was allotted exclusively to Ram Kishun defendant no.17. Mr. Prasad has submitted that there was no question of adverse possession between the co-sharers. What the contesting defendants pleaded was ouster to the knowledge of defendant no.20 Kirit Singh. The evidence supports the case of the defendants 1st and 2nd party that the disputed plot no.1785 was exclusively allotted to Ram Kishun Defendant no.17 in 1947 and no objection was raised by Kirit Singh, then the principle of estoppel and waiver will apply. He cannot claim any share in the said disputed plot. 12. In my opinion, there is no question of adverse possession. The case turns on the decision whether the partition had taken place in 1943 or in 1947. This issue has not been answered by any of the courts below. In this view of the matter, this matter is to be remanded to the appellate court for decision on this issue. The JUDGMENT : of the appellate court is not in accordance with law. However, substantial question formulated by the learned Judge while admitting this appeal does not arise for consideration. 13. This appeal is accordingly allowed and the JUDGMENT : of the appellate court is set aside and the case is remitted to the appellate court to give a fresh decision in the light of the observations made above. Cost will abide the final result of the appeal.