JUDGMENT Mr. G.S. Sandhawalia J.: - The present appeal arises out of the judgment and decree of the trial Court dated 17.10.1984 and upheld in an appeal dated 10.03.1986 by the Addl.District Judge, Jind whereby the suit for permanent injunction of the plaintiff-appellants was dismissed; wherein they had pleaded that the defendant-respondents be restrained from alienating any particular khasra number or any other share more than their share of the land without getting it partitioned as they were co-sharers in the land in dispute. 2. The said suit was filed on 29.01.1982. There are two sets of defendants and it was alleged that the 1st set of defendants were the contesting ones and the 2nd set had been given up as they had common interest as that of the plaintiff-appellants. The suit was contested by the 1st set of defendants who are arrayed as respondents herein on the ground that the plaintiff-appellants were not co-sharers of the land in dispute since the defendant-respondents had been in possession of the land for the last 60 years considering themselves as the owners, thus they had become the owners by way of adverse possession. It was also submitted that they had been mortgaging all the land to various persons since very long time and the possession of the mortgagers was ouster of the plaintiff-appellants. In the additional objections filed in the written statement, a plea was taken that initially partition proceedings in the year 1961 had been preferred by the plaintiff-appellants which were objected to by the defendant-respondents and the Assistant Collector, 1st Grade, Jind, vide order dated 08.05.1962, had directed the parties to get the question of title determined by the civil Court which admittedly had not been done and the suit was not maintainable in the present form. Replication was filed to the said written statement regarding the allegations of mortgagee and regarding the decision of the Assistant Collector 1st Grade, Jind and the same were denied by alleging that the suit was within limitation since the title of the suit was not decided. Accordingly, the following issues were framed: 1.Whether the plaintiff No.2 and defendants No.27 to 33 are legal heirs of Santu deceased plaintiff No.3 and defendants No.34 to 38 are legal heirs of Ami Lal deceased and defendant No.43 is legal heir of Lachmi and Parsani deceased ? Accordingly, the following issues were framed: 1.Whether the plaintiff No.2 and defendants No.27 to 33 are legal heirs of Santu deceased plaintiff No.3 and defendants No.34 to 38 are legal heirs of Ami Lal deceased and defendant No.43 is legal heir of Lachmi and Parsani deceased ? OPP 2.Whether the plaintiffs and defendants at No.2 are owners in possession of ½ share in the suit land as detailed in the heading of the plaint ? OPP 3.Whether the plaintiffs are entitled to the injunction prayed ? OPP 4.Whether the defendants set No.1 have become owners of the suit land by way of adverse possession ? OPD 5.Whether the court fee is deficient ? OPD 6. Relief. 3. In pursuance of the proceeding, PW1-Ranjeet was examined and by the plaintiff-appellants who thereafter examined PW2-Ravi Datt Sharma, PW3-Des Raj, Clerk of the court of SDM, Narwana, PW4-Ranjeet Singh, PW5-Ram Lal and PW6-Mange Ram in rebuttal evidence. The defendant-respondents had examined Tara Singh as DW1. The trial Court decided issue No.1 regarding the legal heirs of plaintiff No.2 and defendant Nos.27 to 33 and legal heirs of plaintiff No.3 and defendant Nos.34 to 38 and defendant No.43 as the legal heirs of Lachmi and Parsani (since deceased). The main dispute was on the issue of the ownership and whether the plaintiff-appellants were entitled to injunction since the defendant-respondents were pleading adverse possession. The trial Court after examining the Revenue record, came to the conclusion that the predecessor-ininterest of defendant No.1 had mortgaged the whole land in dispute in Khatoni No.89 and the said mortgage was shown in Jamabandi, Exhibit D7 and it was noticed that the plaintiff-appellants and the defendant-respondents set No.2 had never been in possession of the suit land from the year 1903-04. After examining the Revenue record, it was held that there was only one stray entry in Jamabandi Exhibit D1 which showed them as co-sharers. Accordingly, the trial Court came to the conclusion that in view of the fact that the predecessor-in-interest of the 1st set of defendants had mortgaged the land with the mortgagees, there was an ouster of the other co-sharers and the plaintiff appellants had got no right to get the land in dispute redeemed and that the plaintiff-appellants and the defendants set No.2 had never raised any objections and were barred to claim the title in the land in dispute. It is also noticed by the trial Court that since more than 60 years had passed of the mortgage, the plaintiff-appellants had no right in the land in dispute as they had been ousted and even though they had been conferred rights of occupancy-tenants in the year 1950-51 but that could not mean that their right as adverse possession had ever been repudiated or denied by the plaintiff-appellants, and therefore, the entry in Jamabandi Exhibit D13 in the column of ownership could not create any right in favour of the plaintiff-appellants. The submission of the plaintiff-respondents that in the year 1962, sons of Gandhi, viz., Puran and Chhaju had filed a civil suit which was decided on 30.04.1964 which admitted the plaintiff-appellants and the defendants set No.2 to be co-sharers, and therefore, the said admission was sought to be used against the defendants-respondents. However, it was held that since the defendant-respondents were only using that admission against one Fateh son of Tula Ram who was vendee/auction-purchaser, therefore, the action was not binding upon the defendant-respondents and secondly, the said admission had not been put to the defendant-respondents and the said admission could not be read as conclusive proof of the admission of the title of the plaintiff-appellants. The plaintiff-appellants, in cross-examination, have also relied upon the said admission; wherein it was admitted that the land in dispute has been mortgaged with Chajju by the defendants set No.1 and PW1 was not aware as to for what amount this land was mortgaged and on account of this, the trial Court held that there was ouster and denial of the title of the plaintiff-appellants from the day the land in dispute was mortgaged and rather he had admitted that he had never raised any objection regarding the mortgage. 4. The trial Court also took into account the fact that vide order dated 08.05.1962, when an application for partition was filed by the plaintiff-appellants, the question of title had been raised and at that stage, the defendants set No.1 had claimed title on the basis of adverse possession and even thereafter, a period of more than 12 years had passed since the denial of title of the plaintiff-appellants, and therefore, it was conclusively proved that the defendants set No.1 had acquired title of the land in dispute. Thus, it was held that on both accounts, the defendant-appellants had proved their title and the suit for permanent injunction was not maintainable as they had no right and interest in the land in dispute. Accordingly, issue No.4 was decided in favour of defendants set No.1 and against the plaintiff-appellants and defendants set No.2. On the issue of limitation, it was held that the suit for permanent injunction was not maintainable and even a suit for declaration could not have been filed as a period of more than 12 years had expired after the denial of the title of the land in dispute and accordingly, the suit was dismissed as being not maintainable. 5. The appeal filed by the plaintiff-appellants also met with no success before the lower appellate Court; which noticed that PW1, Ranjeet Singh had admitted that he had never cultivated the land in question and did not know that the land had been mortgaged about 50 years back and who was in possession after the mortgage and since when the defendant-respondents were in possession of the property in dispute. The Addl.District Judge, Jind also noticed that the 1st set of defendants were in possession of the land as ‘Marusi’ in 1903-04 and thus, on the basis of the Jamabandi Exhibit D6 and D12 and that the entry Exhibit D3 indicating the half share of ownership seemed to be unauthorized, illegal and contrary to the other Revenue record. The Addl.District Judge, Jind noticed that the mortgage was a usufructuary mortgage and the 1st set of defendants continued to be in possession of the property by getting the entry firstly as ‘Marusi’ and secondly having mortgaged the property and continuing in the possession of the property for more than 30-40 years and had even ousted the plaintiff-appellants for all times to come. The fact that the plaintiff-appellants would have been otherwise entitled to their share in the property was acknowledged but in view of the fact that there was an ouster, it was held that the continuation of the defendant-respondents would prevail. The litigation between the 1st set of defendants and Fateh wherein an admission has been made regarding the ownership of the plaintiff-appellants was also discussed and it was noticed that this admission was never put to any person from the 1st set of defendants. The litigation between the 1st set of defendants and Fateh wherein an admission has been made regarding the ownership of the plaintiff-appellants was also discussed and it was noticed that this admission was never put to any person from the 1st set of defendants. Accordingly, it was held that when the 1st set of defendants proved their continuance in possession from 1903-04, then mere entry in favour of the plaintiff-appellants therein, though as co-sharers, was of no avail and findings of issue Nos.2 to 5 were not disturbed and consequently, the appeal was dismissed. 6. Mr. P.N. Aggarwal, Advocate for the plaintiff-appellants has very vehemently argued and tried to stress that all the land had not been mortgaged and only half the share of the land had been mortgaged, and therefore, the defendants set No.1 could not plead ouster regarding the whole of the land and once the plea of adverse possession was taken, the ownership was admitted of the plaintiff-appellants who were co-sharers of the land in dispute. Reference in this context has been made to Exhibit D7, D8 & D10 to show that the mortgage was not of the whole of the land. It was also submitted that the plea of adverse possession of an owner was irrational and had not been approved by Hon’ble Supreme Court in Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan & others, [2008(5) LAW HERALD (SC) 3585] : 2008 (4) Recent Civil Reports 401. 7. Mr. Aggarwal argued that the following substantial questions of law arise in the present appeal: 1.Whether the impugned judgments and decrees of the courts below are vitiated as the evidence on the record has been misread, misinterpreted as well as ignored and unwarranted interferences have been drawn ? 2.Whether the courts below have gravely erred in holding the adverse possession of the defendants-respondents on wrong premises and ignoring the fundamental and basic principles of law ? 8. In the opinion of this Court, there is no valid reason to interfere with the well reasoned judgments of the Courts below, dismissing the the suit for permanent injunction and deciding the issue of title between the parties. 8. In the opinion of this Court, there is no valid reason to interfere with the well reasoned judgments of the Courts below, dismissing the the suit for permanent injunction and deciding the issue of title between the parties. As mentioned above, the stress of the counsel for the plaintiff-appellants was that the whole of the land had not been mortgaged by Gandhi and he had only mortgaged half the share of the land and since the defendant-respondents had taken a plea of adverse possession, the burden of proof was upon them to prove that they had become owners by way of adverse possession and once they had taken such a plea, then the question of ownership of the plaintiff-appellants was admitted as the plea of adverse possession can only be taken against the real owners. This submission of the plaintiff-appellants that evidence on the record has been misinterpreted as well as ignored and unwarranted inferences had been drawn and the judgment and decrees were not sustainable is based on lack of pleadings. The plea of mortgaging the complete land was taken in the written statement and the fact that only some share of the land had been mortgaged was never clarified in the replication. This submission, now, sought to be raised in regular second appeal in the absence of any pleadings cannot be noticed. The Hon’ble Supreme Court in Bachhaj Nahar Vs Nilima Mandal & others, [2009(1) LAW HERALD (SC) 652] : AIR 2009 SC 1103 has held that no kind of evidence can be looked into in a plea which had never been made in pleadings and which was not the subject matter of issue. A Court cannot make out a case which was never pleaded and should confine itself only to the questions which are raised in the pleadings and more so, for the first time, in a second appeal. The relevant portion of the observations of the Hon’ble Supreme Court are reproduced below: “9. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. The relevant portion of the observations of the Hon’ble Supreme Court are reproduced below: “9. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take. 10. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.” 9. Paragraph 17 of the judgment is also relevant which reads as under: “17. In the absence of a claim by plaintiffs based on an easementary right, the first defendant did not have an opportunity to demonstrate that the plaintiffs had no easementary right. In the absence of pleadings and an opportunity to the first defendant to deny such claim, the High Court could not have converted a suit for title into a suit for enforcement of an easementary right. The first appellate court had recorded a finding of fact that plaintiffs had not made out title. The High Court in second appeal did not disturb the said finding. As no queston of law arose for consideration, the High Court ought to have dismissed the second appeal. Even if the High Court felt that a case for easement was made out, at best liberty could have been reserved to the plaintiffs to file a separate suit for easement. But the High Court could not, in a second appeal, while rejecting the plea of the plaintiffs that they were owners of the suit property, grant the relief of injunction in regard to an easementary right by assuming that they had an easementary right to use the schedule property as a passage.” 10. Following the dictum of the abovesaid judgment, this Court in DHBVN Vs. M/s Ajit Singh Shetty, 2010 (2) Civil Court Cases 429 also noticed that a question of law which was not raised before the Courts below cannot be raised in a regular second appeal. In the present case, as notice above, there is no factual base or foundation laid down in the pleadings and neither this issue has ever been raised that all the land had not been mortgaged, and therefore, the plaintiff-appellants could not be ousted by their co-sharers. In the present case, as notice above, there is no factual base or foundation laid down in the pleadings and neither this issue has ever been raised that all the land had not been mortgaged, and therefore, the plaintiff-appellants could not be ousted by their co-sharers. Reference was also made to Hemaji Waghaji Jat (supra) to contend that the law of adverse possession was a harsh law and the Hon’ble Supreme Court of India had asked the Government of India to give a fresh look to it and make suitable changes. However, a perusal of the abovesaid judgment would go on to show that the Hon’ble Supreme Court of India had noticed that no issue regarding adverse possession had been framed by the trial Court with regard to the ownership of the defendant-respondents by adverse possession, and accordingly, there was no basis to record a finding of adverse possession though the Apex Court had noticed that there is a need of fresh look regarding the law of adverse possession and the Government of India has been asked to take a fresh look and make suitable changes in the law of adverse possession. However, in the facts and circumstances of the present case, it has been categorically proved that the plaintiff-appellants have been ousted from the possession of the land for the last more than 60 years and once there is an ouster by a co-owner, then the plea of adverse possession can be taken. Reliance can be laid in the case of Des Raj & others Vs. Bhagat Ram (dead) by LRs & others, [2007(2) LAW HERALD (SC) 1446] : (2007) 9 SCC 641, wherein it was held that where there is repudiation of title which is open and hostile, the co-owner can successfully take the plea of adverse possession. Relevant paragraphs of the judgment are reproduced below: “23. Express denial of title was made by the plaintiff-respondent in the said suit in his written statements. The courts, therefore, in the suits filed by the defendant-appellants, were required to determine the issue as to whether the plaintiff-respondent had successfully ousted the defendant-appellants so as to claim title in himself by ouster of his co-owners. 24. In any event the plaintiff made his hostile declaration claiming title for the property at least in his written statement in the suit filed in the year 1968. 24. In any event the plaintiff made his hostile declaration claiming title for the property at least in his written statement in the suit filed in the year 1968. Thus, at least from 1968 onwards, the plaintiff continued to exclusively possess the suit land with knowledge of the defendant-appellants. 25. The parties went to trial fully knowing their respective cases. The fact that they had been co-owners was not an issue. The parties proceeded to adduce evidences in support of their respective cases. Defendant-appellants keeping in view of the fact that they had unsuccessfully been filing suit for partition, were also not prejudiced by reason of purported wrong framing of issue. They knew that their plea for joint possession had been denied. They were, therefore, not misled. They were not prevented from adducing evidence in support of their plea. 26. Articles 65 of the Limitation Act, 1963, therefore, would in a case of this nature have its role to play, if not from 1953, but at least from 1968. If that be so, the finding of the High Court that the respondent perfected his title by adverse possession and ouster cannot be said to be vitiated in law.” 11. The Hon’ble Supreme Court in Darshan Singh & others Vs. Gujjar Singh (dead) by LRs & others, (2002) 2 Supreme Court Cases 62, has also held to the same effect that where parties perfect their title by adverse possession by ouster, they are entitled to claim ownership. Paragraphs 9 & 10 of the judgment are reproduced below: “9. In our view, the correct legal position is that possession of a property belonging to several cosharers by one co-sharer shall be deemed that he possesses the property on behalf of the other cosharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied. 10. After the death of Hira Singh, one collateral – Smt.Har Kaur got her name mutated and took possession, which was questioned by Rulia Singh. Both the parties were litigating and ultimately the Court decided in favour of Rulia Singh, who got possession of theland and his name was mutated in the revenue records. 10. After the death of Hira Singh, one collateral – Smt.Har Kaur got her name mutated and took possession, which was questioned by Rulia Singh. Both the parties were litigating and ultimately the Court decided in favour of Rulia Singh, who got possession of theland and his name was mutated in the revenue records. After the deah of Rulia Singh, his grandsons – the present appellants, also got their names mutated which was challenged unsuccessfully by the plaintiff. Thus, it is proved that the present appellants got their names mutated after denying the title of collaterals of Jagjit Singh, including the present respondents. On these facts, we hold that as the names of the present appellants were mutated in the revenue records after rejecting the claims of the plaintiff and other collaterals, there was a clear ouster of other co-sharers of Jagjit Singh.” 12. In the present case, there is a clear and categorical proof that the land had been mortgaged by the 1st set of defendants way back in 1922-23 Exhibit D7 and the plaintiff-appellants had not protested against the same. Thereafter, in the year 1961, they filed an application for partition of the land in dispute in which their title was denied and an order was passed by the Assistant Collector 1st Grade, Jind on 08.05.1962 which is annexed as Exhibit D1. In the said proceedings, the defendant-respondents had taken a plea that they were in exclusive possession of the land. The said fact was also got verified from the Patwari and in view of the issue of title being raised, the matter was referred to the civil Court. The said order is reproduced below: “Order This is an application for partition of land measuring 99 bighas 17 biswas kham comprising of Khewat No.63 Khata Nos. 133 to 139 situated in village Phulian Kalan Teh: Narwana. According to the applicants the respondents Nos.1 to 9 are owners in partnership and the other mortgagees and further that the applicants are owner of half the land and entitled to get the land partitioned. The respondents in their written statement denied the ownership of the applicants of the land in question and that they are in exclusive possession of the land. It has also been verified from the report of the patwari that whole of the land is in possession of the mortgagees. The respondents in their written statement denied the ownership of the applicants of the land in question and that they are in exclusive possession of the land. It has also been verified from the report of the patwari that whole of the land is in possession of the mortgagees. As such a question of title is involved in this case which is to be determined by a court of competent jurisdiction under section 117 of the Punjab Land Revenue Act. Accordingly, I direct the parties to get this question of title determined by civil court during the intervening period the proceedings in this case are stayed. Announced. File be consigned to the record room after compliance. 8.5.1962 Sd/- Asstt. Collector Ist Grade, Jind.” 13. Admittedly, thereafter, no action has been taken by the plaintiff-appellants who filed the present suit in 1982, and therefore, had taken no steps after the order was passed on 08.05.1962 for two decades which would further entitle the defendant set No.1 to set up the plea of adverse possession successfully. In the case of Gobindammal Vs. R. Perumal Chettiar & others, SCC (2006) 11 Page 100, the Hon’ble Supreme Court has noticed that the possession should be hostile and there should be denial on the rights of the co-sharers and this must be brought home to the co-owners and there can be no question of ouster if there is participation of possession to any degree. From the facts of the present case and from the admission of PW1 and as discussed by both the Courts below, it would be clear that there has been total ouster which has been admitted by the witness himself for the last 60 years. The plaintiff-appellants were not even aware as to whom the land had been mortgaged and they were never in possession of the land in dispute. The mere filing of a civil suit against a third party in which there is an admission of title of the plaintiff-appellants as co-owners would not give any right to him as the factum of ownership as co-owner of the plaintiff-appellants is never in denial by the defendant-respondents as they are taking the plea of adverse possession and this plea is only to be taken against the true owner. The said admission was to protect the property from an auction purchaser by two co-sharers and as noticed by the Courts below and not put to the defendant-respondents so that they could explain the same. The Hon’ble Supreme Court in Govindaraju Vs. Mariamman, AIR 2005 SC 1008 has noticed that there must be foundation in the questions laid in the pleadings which should emerge from the sustainable finding of fact. Then only there can be interference if any substantial question of law arises. Similarly, in the case of Sugani (Mst.) Vs. Rameshwar Dass & another, (2006) 11 SCC 587, it was held that the right of appeal under Section 100 Code of Civil Procedure is neither a natural nor inherent right and has to be regulated in accordance with the law in force at the relevant time and concurrent evidence of facts, howsoever erroneous, cannot be disturbed by the High Court in exercise of the powers under this Section and in the absence of any substantial question of law arising. 14. Thus from the above authorities, it would be clear that it is settled proposition that where an ouster has been proved of the co-owner, then the plea of adverse possession can be set up. Once the co-sharer openly asserts his title and denies that of the other and this hostile attitude is known to the knowledge of the other co-sharers which is the point of limitation from which the principle of adverse possession has to be taken into consideration. In the present case, apart from the mortgage way back in the year 1922-23 when title was denied to the plaintiff-appellants for the first time, the title was again denied on 08.05.1962 (Exhibit D1) but the plaintiff-appellants slept over their right, and thus, lost the right of co-ownership. 15. Keeping in view the above principles enunciated by the Hon’ble Apex Court, the two questions of law are decided against the plaintiff-appellants by holding that there has been no misreading of evidence or mis-interpretation in coming to the conclusion that adverse possession of the defendant-respondents was proved, and thus, there is no scope for interference in the present regular second appeal and the same is dismissed. --------------