JUDGMENT K.K. Lahoti, J. 1. Defendants aggrieved by judgment and decree passed by Lower Appellate Court by which reversing the judgment and decree of the Trial Court, suit of respondents/plaintiffs was decreed, have filed this second appeal. 2. Short facts are that, both the parties are closely related. Genealogical tree showing their relationship is as under :-- Puhkar | ------------------------------------------------------------------------------ | | | | | | Bhagwat Rabuda Galau Khuman Mutkai Tidka (D-1925) (D-1946) (D-1932) (D-1947) (D-1948) (D-issueless) | | | | | | | | | | --------------------- | | | | | | | =Budia =|Chhutuwadi |@ Mohan Samanua @Mahraiwali |Mahroiwali | (D-1967) | | | = Sudhia | ------------------------------- | | | | | Natthoolal | Bhassu @ | | Dharamdas (D-6) | | | ----------------------------------- | | | | | Manik Sundar Sukhlal | (D-1) (D-2) | ----------------------------------- | | | | Jamuna Girdhari Daduli Jhulli (D-4) (D-5) (Pre-D. Puhar) (D-3) ------------------------------------------------------------------------------------------------------------------------- | | | | | | | | Mirra Sudama Chhanga Manga Budhua Sudhua Madhua Fadali | | | | Bhura | (D-7) | -------------------------- | | Rajaram Laxminath (Plf-1) (Plf-2) 3. Suit was filed by Rajaram and Laxminath on the ground that plaintiffs are co-owner and joint-holder of agricultural lands, particulars of which are given in Para 1 of the plaint. Defendants are related to each other and are residents of Village Kothia Mohagama. Before ten to fifteen days of filing of the suit defendants entered in the fields of plaintiffs and wanted to encroach the land and threatened the plaintiffs for dire consequences. On 25th of June, 1976 the defendants again tried to disturb the possession of the plaintiffs. Defendants have no right, title or interest over the suit lands. In Para 5 (a) of the plaint, it is pleaded that disputed land belong to the ownership of deceased Tidka and Budia, who were the exclusive owners and in possession of the land. They have got the land in the partition. They were looked after by Mirra, the father of plaintiffs. On 2-6-63 the disputed lands were gifted to Mirra by deceased Tidka and Budia, out of love and affection and the services rendered by their father Mirra. Since then plaintiffs are in continuous possession of the disputed land as owners. Defendants were knowing their possession which was open, publicly and uninterrupted. On 2-6-63 the disputed lands were gifted to Mirra by deceased Tidka and Budia, out of love and affection and the services rendered by their father Mirra. Since then plaintiffs are in continuous possession of the disputed land as owners. Defendants were knowing their possession which was open, publicly and uninterrupted. By this way plaintiffs have acquired title over the suit land. On this ground the suit was filed for seeking mandatory and perpetual injunction restraining the defendants from disturbing and dispossessing the plaintiffs from the suit land. 4. Appellants contested the suit on the ground that both the parties are closely related to each other. The genealogical tree, as stated hereinabove, stated in the written statement. They have specifically denied that any gift deed was executed in favour of plaintiffs. The possession of plaintiffs was also denied over the suit land. It was also stated by appellants that Budia alias Mah-roniawali and Tidka were the owners of the suit land and after their death, all heirs of Late Puhkar succeeded the land, as both died issueless. But, Mirra, father of plaintiffs had got mutated his name alongwith Tidka and Mst. Budia mischievously without any right or title. Over the land both the parties are cultivating and are co-sharers of the land. With the aforesaid pleading their suit was contested by the appellants. 5. Trial Court framed the issues and after recording the evidence, recorded the findings :-- (a) that disputed land belongs to Tidka and Budia; (b) the plaintiffs are not the owners of the land; (c) the land is not in possession of the plaintiffs; (d) there is defect of non-joinder of necessary party; (e) that Tidka and Budia have not gifted the land in favour of plaintiffs on 2-6-63; (f) that plaintiffs have not been in adverse possession of land and have not acquired any right. On these findings, the suit filed by the respondents was dismissed. 6. Aggrieved by judgment and decree of the Trial Court respondents filed appeal before the Lower Appellate Court and the Lower Appellate Court by the impugned judgment and decree, decreed the suit of plaintiffs/ respondents on the ground that plaintiffs are in physical possession of suit land and are entitled to permanent injunction against the defendants. 6. Aggrieved by judgment and decree of the Trial Court respondents filed appeal before the Lower Appellate Court and the Lower Appellate Court by the impugned judgment and decree, decreed the suit of plaintiffs/ respondents on the ground that plaintiffs are in physical possession of suit land and are entitled to permanent injunction against the defendants. Aggrieved by the aforesaid judgment and decree of the Lower Appellate Court, appellants have filed present appeal which was admitted on 8-11-1989 on following substantial question of law :-- "Whether the Lower Appellate Court was right in holding that the respondents had perfected their title by adverse possession ?" 7. Learned Counsel for appellants Shri A.K. Nema and learned Counsel for respondent Shri M.L. Jaiswal, Sr. Advocate and Shri Mohd. Asif, are heard. 8. It is not in dispute that plaintiffs are closely related with respondent/plaintiff. The Lower Appellate Court has decreed the suit on following grounds :-- (a) There is partition between the sons of Puhkar and suit land felt into the share of Tidka and Budia. (b) Budia was Wd/o Galua. Tidka was also another son of Puhkar. Both were issueless. (c) Tidka and Budia have gifted the land to Mirra, since then he is in possession. (d) After the death of Mirra plaintiffs are in possession of land and is cultivating over it. (e) The plaintiffs are in possession of land since 2-6-1963. (f) The land is recorded in the name of plaintiffs. On these grounds the Appellate Court decreed the suit of plaintiffs/respondents. 9. It is not in dispute that the plaintiffs were claiming their right over the land on the basis of gift of Tidka and Budia dated 2-6-1963. But, the aforesaid deed was not produced in the Court, nor there is any reason for non-production of aforesaid documents in the Court below. The plaintiffs in Para 5 (b) of plaint have claimed adverse possession against the defendants and on the basis of this they are seeking perpetual injunction against the appellants. 10. Tidka and Budia both have died issueless. If there is no deed of gift on record then all the legal heirs of Puhkar will succeed the property left by Budia and Tidka by natural succession. The Trial Court has considered this fact and has drawn adverse inference against the plaintiffs, who have failed to produce gift deed in the Court. Tidka and Budia both have died issueless. If there is no deed of gift on record then all the legal heirs of Puhkar will succeed the property left by Budia and Tidka by natural succession. The Trial Court has considered this fact and has drawn adverse inference against the plaintiffs, who have failed to produce gift deed in the Court. Merely, in revenue record, if the plaintiffs succeeded in getting the mutation of their name by itself will not be sufficient to record a finding that other co-sharers of the land have lost their right in the land, claiming adverse possession against the co-sharers pleadings must be definite. There is no pleading in the case, that the appellant or their father Mirra set up their title by any specific hostile act against other co-sharers in respect of suit land. Plaintiff Rajaram has appeared as P.W. 1. In his statement he has stated entirely different story. In Para 2 of his statement he has stated that Tidka and Budia have adopted his father Mirra and thereafter they have executed a will in his favour. The relationship between husband of Budia namely Galua and Tidka is of real brothers. Budia after the death of Galua has not entered into marriage with Tidka. Then how Tidka and Budia could have adopted jointly. There is no explanation in this regard by plaintiffs and it appears that to grab the land of Budia and Tidka the aforesaid story was set up by plaintiffs in the Court below for which there is no foundation in the pleadings. In the circumstances, the aforesaid story of plaintiff that Tidka and Budia adopted their father Mirra cannot be accepted. Apart from this, the plaintiffs have not explained in respect of gift deed allegedly executed by Budia and Tidka in favour of Mirra. In the circumstances, the Trial Court has rightly drawn adverse inference against the appellants. 11. Now the question remains whether the plaintiffs can get perpetual injunction against the appellants, who are the co-sharers of the property. To claim adverse possession against the co-sharers, there must be definite pleading in the plaint. In this regard law is well settled by Apex Court in S.M. Karim v. Mst. 11. Now the question remains whether the plaintiffs can get perpetual injunction against the appellants, who are the co-sharers of the property. To claim adverse possession against the co-sharers, there must be definite pleading in the plaint. In this regard law is well settled by Apex Court in S.M. Karim v. Mst. Bibi Sakina AIR 1964 SC 1254 wherein it has been held :-- "Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. A mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea." Similar question has been considered by the Apex Court in Parwatabai v. Sonabai and Ors. AIR 1997 SC 381 : "Article 65 of the Act postulates that for possession of immovable property or any interest therein based on title, when the possession of the defendant becomes adverse to the plaintiff, the suit has to be filed within 12 years. Therefore, when the plaintiffs asserted their title on the basis of succession to the estate of their father, it is for the appellant to prove as to on which date the appellant's possession has become adverse to the respondents' title. In this case, the Appellate Court and the High Court found that the appellant had not established as to what was the exact date from which the adverse possession started running." The Apex Court in State of U.P. v. Amar Singh and Ors. [ (1997) 1 SCC 734 ] has also considered the question whether by mutation the party will get right or not, and held :-- "It is settled law that mutation entries are only for the purpose of enabling the State to collect the land revenue from the person in possession but it does not confer any title to the land. The title would be derived from an instrument executed by the owner in favour of an alinee as per the Stamp Act and registered under the Registration Act." The Apex Court in Durga Das v. Collector and Ors. The title would be derived from an instrument executed by the owner in favour of an alinee as per the Stamp Act and registered under the Registration Act." The Apex Court in Durga Das v. Collector and Ors. [ (1996) 5 SCC 618 ] considered that the entries in the revenue record do not confer any title to the property, wherein it was held that :-- "Mutation entries do not confer any title to the property. It is only an entry for collection of the land revenue from the person in possession. The title to the property should be on the basis of the title they acquired to the land and not by mutation entries." 12. In view of aforesaid settled position of law by the Apex Court in absence of specific pleading and proof plaintiffs cannot claim adverse possession against the appellants, happens to be the co-sharer of the property. The possession of the co-sharer over the land will be deemed to be the possession of all the co-sharers, even if some of the co-sharers are not in actual possession of the land. The respondent has failed to plead and prove exclusion of possession of appellants over the land. Their possession will be deemed on behalf of all the co-sharers and no injunction can be issued against co-sharers restraining them to enter over their own land, until and unless the land is partitioned. The co-sharer has the right to enter in the land. In view of aforesaid no injunction cannot be issued against the appellants. 13. In the present case the plaintiffs have failed to prove that Mirra was adopted by Tidka and Budia or any deed of gift was executed by them in favour of Mirra and also the plaintiffs are in adverse possession of land. In view of aforesaid, the Appellate Court erred in decreeing the suit of plaintiffs/respondents. 14. In view of aforesaid, this appeal is allowed. The judgment and decree passed by Lower Appellate Court is set aside and suit of plaintiffs/ respondents is dismissed with costs. Counsel fee Rs. 1,000/- (Rupees one thousand), if certified.