JUDGMENT 1. The appellants/plaintiffs have filed this appeal being aggrieved by the judgment and decree dated 28.3.1995 passed by the District Judge, Chhindwara in Civil Appeal No.14-A/93 affirming and confirming the judgment and decree dated 6.7.1993 passed by the Second Civil Judge Class-I, Chhindwara, in Civil Suit No.97-A/1991 whereby the suit for partition, declaration of separate possession and permanent injunction has been dismissed. 2. The brief facts, leading to the filing of the present appeal, are that the appellant/plaintiff along with Shyamji, Ramji and Jaganrao, defendant No.1/respondent No.1, are all sons of Kusanya who was the owner of Khasra No. 477 Area 2.20 Acres and Khasra No. 478 Area 1.55 Acres, total 3.75 acres of land situated in village Loniya Karbala, Patwari Halka No.95, Tahsil and District Chhindwara. The appellant/plaintiff filed a suit on 23.12.1986 for declaring that 5/8th share of the aforesaid property belonged to him with a further direction for partitioning the same for possession and permanent injunction as well as for declaring the oral agreement entered into between the respondents No.1 and 2 as null and void. The suit was filed on the basis of the contention that the appellant/plaintiff had purchased the share of his eldest brother Shyamji on 21.3.1954 by a registered document and, therefore, he was entitled to half the property of Kusanya, i.e. his share and the share of Shyamji. It was further contended that Ramji, his other brother, was missing since the last 40 years and, therefore, the share of Ramji be divided between the appellant/plaintiff and the defendant No.1 Jaganrao and, accordingly, the appellant/plaintiff be declared to be entitled to 5/8th share of the total property of Kusanya. It was further contended that Ramji, his other brother, was missing since the last 40 years and, therefore, the share of Ramji be divided between the appellant/plaintiff and the defendant No.1 Jaganrao and, accordingly, the appellant/plaintiff be declared to be entitled to 5/8th share of the total property of Kusanya. It was also pleaded that on 10.5.1954, for the purposes of discharging family liabilities, a mortgage in the form of a sale deed was executed by the appellant/plaintiff in respect of his share in favour of one Marotirao, however subsequently as the loan was repaid and the liability was discharged, Marotirao, by a subsequent sale deed dated 22.6.1972, reconveyed the property to the appellant/plaintiff and thereafter in 1972-73 the appellant/plaintiff filed an application under section 178 of the M.P. Land Revenue Code (hereinafter referred to as ‘the Code’), for partition of the property, which was dismissed by the Naib Tahsildar on 29.8.1972 against which the appellant/plaintiff had filed an appeal before the Sub Divisional Officer, Chhindwara which was also dismissed on 29.11.1976 on the ground that the appellant/plaintiff should approach the competent civil Court by filing a suit for declaration of title as there was a dispute regarding title between the parties. It is submitted that thereafter several applications were filed before the revenue authorities but to no effect. The appellant/plaintiff, on receiving a notice on 22.12.1986 from the revenue authorities, on an application filed by the respondent No.1/defendant No.1 for mutation of the property, immediately filed the present suit on 23.12.1986. The trial Court dismissed the suit filed by the appellant/plaintiff by recording a finding to the effect that partition of the property had already been effected between the parties long back immediately after the death of Kusanya, the father of the parties and, therefore, the suit as filed by the appellant/plaintiff was barred by limitation. On an appeal being filed by the appellant/plaintiff, the first appellate Court has not just affirmed the finding of the trial Court in respect of the aforesaid issues but has also dismissed the appeal by recording a finding that the respondent No.1/defendant No.1 had perfected his title to the property in question on account of adverse possession, hence this appeal before this Court. 3. This appeal, filed by the appellant, was admitted by this Court on the following substantial questions of law:- “1.Whether the plaintiff’s suit was barred by limitation ? 3. This appeal, filed by the appellant, was admitted by this Court on the following substantial questions of law:- “1.Whether the plaintiff’s suit was barred by limitation ? 2.Whether any adverse possession would be available to the defendants against the plaintiff ?” 4. It is submitted by the learned counsel for the appellants, that the finding regarding limitation has been recorded by both the Courts below on the basis of the finding recorded by them to the effect that partition between the parties had already taken place but this finding regarding partition is based on no evidence and, therefore, the Courts below have erred in law in dismissing the appeal and the suit filed by the appellant/plaintiff on the ground that it was barred by limitation by applying the wrong provisions of law. 5. The learned counsel for the respondents, per contra, submitted that the Courts below have recorded a concurrent finding of fact against the appellant/plaintiff to the effect that the property in question had already been partitioned; that pursuant to the partition the appellant/plaintiff and the respondent/defendants were in separate possession of the properties and that on that count the appellant/plaintiff had executed a sale deed in favour of Marotirao of his separate share and, therefore, there is no perversity or material irregularity in the finding recorded by the Courts below warranting interference in this second appeal. 6. I have heard the learned counsel for the parties at length and have perused the record. From a perusal of the judgment of the first appellate Court, specifically paragraphs 12 to 15, it is clear that the Court below has recorded a finding of partition on the basis of the statements of Vishram Sahu PW 1, Mahadev PW 2 neighbour of the parties and Timaji PW 3 an old acquaintance as well as the admitted and undisputed statement of the appellant /plaintiff to the effect that he had sold his share of the property to Marotirao on 10.5.1954. The learned counsel for the parties have taken this Court through the statement of Vishram Sahu PW 1, Mahadev PW 2 and Timaji PW 3. The learned counsel for the parties have taken this Court through the statement of Vishram Sahu PW 1, Mahadev PW 2 and Timaji PW 3. From a perusal of the statement of these three witnesses it is clear that the aforesaid three witnesses have categorically and specifically stated that there was no partition between the parties; that the name of the appellant/plaintiff Anandrao, respondent No.1/defendant No.1 Jaganrao and their brother Ramji were jointly recorded in the revenue records and that the appellant/plaintiff and the respondent No.1/defendant No.1 were in possession of separate portions of the property. 7. From a perusal of the judgment of the Courts below it is clear that both the Courts have construed the statement of these witnesses to the effect that the parties were in possession of separate portion to mean that they have stated that there was a partition between the parties, totally ignoring the specific statement to the contrary made by these witnesses. 8. It is pertinent to note that PW 1 Vishram Sahu was the Patwari before whom it was alleged by the respondent No.1/defendant No.1 that the partition had taken place and Timaji, PW 3, has been stated by the respondent No.1 /defendant No.1 himself in his statement in para-9, to be one of the witnesses to the partition, but both these witnesses PW 1 Vishram Sahu and PW 3 Timaji have categorically denied that there was a partition between the parties or that any such partition proceedings ever took place in their presence. 9. From a perusal of the judgment of the trial Court as well as of the first appellate Court it is also clear that both the Courts below have totally ignored the specific contention and submission of the appellant/plaintiff and the evidence led by him in respect of the submission that the sale made by the appellant /plaintiff in favour of Marotirao on 10.5.1954 was a fictitious document which was in fact executed only as security for the loan extended by Marotirao and that on repayment of the loan, Marotirao reconveyed the property to the appellant/plaintiff vide sale deed dated 22.6.1972 which has been brought on record as Exhibit P-3. This aspect has totally been ignored by both the Courts below though the appellant/plaintiff has made specific pleadings to this effect in the plaint and has also led evidence in this regard. 10. This aspect has totally been ignored by both the Courts below though the appellant/plaintiff has made specific pleadings to this effect in the plaint and has also led evidence in this regard. 10. From a perusal of the record it is further clear that the Courts below have also ignored the specific statement recorded by the Sub Divisional Officer in his order dated 29.11.1976, Exhibit D-1, whereby the revenue appeal filed by the appellant/plaintiff was dismissed. Admittedly, the said proceedings were taken by the appellant/plaintiff before the revenue authorities under section 178 of the Code, for partition but were dismissed by the revenue authorities on the ground that there was a title dispute which needed to be decided by the competent civil Court. However, while doing so the Sub Divisional Officer has categorically recorded the contention of the parties in para-2 of Exhibit D-1 to the effect that though the appellant/plaintiff had sought partition of the property, the said application was opposed by the respondents on the ground that the property should be divided in 5 shares and not 4 shares as their mother, the wife of Kusanya, was alive. It is pertinent to note that before the revenue authorities the respondent No.1/defendant No.1 did not take a stand to the effect that the property had already been partitioned and that the parties were in possession of their separate demarcated share. 11. From the perusal of the written statement as well as the statement of respondent No.1/defendant No.1, who has examined himself as DW 1, it is further clear that though he had alleged partition, he has not specified the portion of the property which fell in the separate share of each of his brothers. In fact no document or statement has been brought on record to indicate that the property was divided between the brothers by metes and bounds and that specific portion of the property fell in their respective shares. On the contrary, in the statement of respondent No.1/defendant No.1 he has clearly stated in paras 8, 9 and 10 that the property remained jointly recorded in the name of the brothers; that he and the appellant/plaintiff made several efforts to get the name separately recorded but all of them failed and that even on the date of recording of the statement, the property stood jointly in the name of the three brother. This fact is also clear from a perusal of Exhibit P-4 which is the revenue entry relating to the disputed property which indicates that it is jointly recorded in the names of Ramji, Anandrao the appellant/plaintiff and Jaganrao the respondent No.1/defendant No.1, sons of Kusanya. 12. From an analysis of the aforesaid oral and documentary evidence on record, it is clear that it is an admitted and undisputed fact that the property in dispute was that of Kusanya and is thereafter the joint property of his sons and that the appellant/plaintiff has filed a suit for partition of the same. In such circumstances, the respondent No.1/defendant No.1 was required to prove and establish partition of the property in case he opposed the suit for partition, in view of the law laid down by the Supreme Court in the cases of Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade and others, (2007) 1 SCC 521 and Marabasappa (dead) by LRs. and Others v. Ningappa (dead) by LRs. and Others, (2011) 9 SCC 451 , but the respondent No.1/defendant No.1 has not adduced any oral and documentary evidence to establish that the property was divided by metes and bounds between the four brothers and that each one was given a definite, specific and separate share on which they are separately in possession and that their names were separately recorded specifying the portion of their property in the revenue records. On the contrary, the evidence indicates that though the two contesting parties are in possession of separate portion of the property, there is no formal partition between them by metes and bounds. 13. In view of the aforesaid analysis, I am of the considered opinion that the finding recorded by the Courts below regarding partition is based on no evidence and suffers from perversity. 14. From a perusal of the judgment of the Courts below it is also clear that the Courts below have dismissed the suit filed by the appellant/plaintiff holding that it is barred by limitation as it has not been filed by the appellant/plaintiff within 12 years from the date of order dated 29.8.1972 passed by the Naib Tahsildar rejecting the application filed by the appellant/plaintiff for partition under section 178 of the Code. 15. 15. I am of the considered opinion that the aforesaid conclusion recorded by the Courts below suffers from material irregularity and illegality as it is clearly established that the property is joint property and that the appellant/plaintiff has not been ousted from the said property and, therefore, the period of 12 years prescribed under Article 110 of the Limitation Act (hereinafter referred to as ‘the Act’), for filing a suit would not commence to run against the appellant/plaintiff. Significantly, it is not even the case of the respondent No.1/defendant No.1 that the appellant/plaintiff has ever been ousted from the family property which is the point of time from which the limitation prescribed under Article 110 of the Act starts running. In the absence of any ouster, it cannot be said that the limitation prescribed under Article 110 of the Act had lapsed. 16. Quite apart from the above, it is also clear that the order dated 29.8.1972 passed by the Naib Tahsildar was assailed by the appellant/plaintiff before the Sub Divisional Officer by filing an appeal which was decided on 29.11.1976 vide Exhibit D-1 and that the suit has thereafter been filed by the appellant/plaintiff on 23.12.1986 which is within 12 years from the date of the order passed by the Naib Tahsildar and, therefore, even otherwise the suit as filed by the appellant/plaintiff was not barred by limitation as has been held by the Courts below. 17. In view of the aforesaid, the substantial question of law framed by this Court in this regard is answered in favour of the appellant/plaintiff. 18. From a perusal of the record, the written statement as well as the statement of DW 1 Jaganrao, it is also apparent and clear that the plea of adverse possession was taken up by the respondent No.1/defendant No.1 by amending the written statement in the year 1991. 18. From a perusal of the record, the written statement as well as the statement of DW 1 Jaganrao, it is also apparent and clear that the plea of adverse possession was taken up by the respondent No.1/defendant No.1 by amending the written statement in the year 1991. However, a perusal of para-22 of the written statement of the respondent No.1/defendant No.1 makes it clear that he has not stated with clarity or specifically pleaded that his possession was open and hostile to the interest of the appellant/plaintiff from the date he came into possession; that the nature of the possession was adverse; that the fact of his possession being adverse and hostile to that of the owner was in the knowledge of the true owner and that the open hostile and adverse possession was continuous and was continuing for a long period of time as has been held by the Supreme Court in the cases of S. M. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254 ; Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (Smt.) and Others, (1996) 8 SCC 128 ; Karnataka Board of Wakf v. Government of India and Others, (2004) 10 SCC 779 and State of Haryana v. Mukesh Kumar and Others, (2011) 10 SCC 404 and a Division Bench of this Court in the case of Ratan Singh and another v. Shaligram and another, 2001 (1) MPHT 97 , wherein it has also been held that in the absence of such clear and specific pleadings a claim based on adverse possession is untenable. 19. Quite apart from the above, as this Court has held that there was no partition between the parties by metes and bounds, therefore, the possession of the respondent No.1/defendant No.1 was even otherwise that of co-owner and could not be said to be adverse to that of the appellant/plaintiff who is also a co-owner and co-sharer. 20. In the circumstances, I am of the considered opinion that the findings regarding adverse possession recorded by the first appellate Court is based on misappreciation of the evidence on record and has been recorded without looking to the basic requirement of essential pleadings and proof in that regard. 21. 20. In the circumstances, I am of the considered opinion that the findings regarding adverse possession recorded by the first appellate Court is based on misappreciation of the evidence on record and has been recorded without looking to the basic requirement of essential pleadings and proof in that regard. 21. From a perusal of the judgment of the Courts below it is also clear that though admittedly Ramji, the brother of the contesting parties also had share in the property and that he is missing and is not traceable since the last 40 years, therefore, both the parties, i.e. the appellant/plaintiff and respondent No.1/defendant No.1 have equal share in his property and, therefore, the claim of the appellant/plaintiff to 5/8th share of the property of Kusanya is justified and clearly established. 22. In the circumstances, the appeal filed by the appellants, is allowed and the judgment and decree dated 28.3.1995 passed by the District Judge, Chhindwara in Civil Appeal No.14-A/93 and the judgment and decree dated 6.7.1993 passed by the Second Civil Judge Class-I, Chhindwara, in Civil Suit No.97-A/1991 are set aside and the suit filed by the appellant /plaintiff for partition, possession and permanent injunction in respect of 5/8th share of the property of Kusanya stand allowed. 23. In the facts and circumstances, there shall be no order as to the Costs.