JUDGMENT : (Naresh Kumar Chandravanshi, J.) 1. This second appeal has been preferred by the appellant/plaintiff under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 06.10.2012 passed in Civil Appeal No.100A/2012 by Upper District Judge, Kabeerdham (Kawardha) (CG), whereby the learned first appellate Court has set aside the judgment and decree dated 26.02.2010 passed in Civil Suit No.31A/2009 by Civil Judge Class-II, Kabeerdham whereby, learned trial Court granted decree in favour of the plaintiff by holding that the plaintiff is entitled for 1/6th share of the property mentioned in Schedule A and 1/3rd share of property mentioned in Schedule B and entitled for the partition accordingly. 2. Facts of the case in nutshell are that the parties are relatives and their family tree has been shown as under:- Kevra had two sons namely Lathel and Fandu. Latel has two daughters namely Manabai and Mankunwar(plaintiff) and one son namely Mansingh. Kevra was the owner of the land bearing Khasra No.70 area 0.23 acre, Khasra No.185 area 2.68 acre total 2.91 acre situated at village Surajpura (Schedule A in the plaint) and after his death, the property was transferred in the names of his sons Lathel and Fandu. There has been partition between two brothers in respect of aforesaid property about thirty years ago, in which, Latel and Fandu each had got half share, but since there was no division of accounts in land record (khata batwara), the names have been recorded jointly in revenue records. By earning income from his share of agricultural land and from his own income, Latel had acquired 09.86 acres of land mentioned in Schedule "B", in which the names of the plaintiff and defendants 01 and 02 were recorded after Latel's death. In the year 2008, Mankunwar (Plaintiff) approached defendants 1 to 3 for rightful share of suit land of Schedule ‘A’ & ‘B’, but the defendants refused to give her share and also threatened that they will sell the whole property. Thereafter, the plaintiff filed suit for declaration of her title and partition of suit property as shown in Schedule A and B annexed with the plaint. 3. The Defendants 1 to 3 filed their written statement denying the substantive contentions of the plaintiff and pleaded that suit land of Schedule A & B are the ancestral property. Thereafter, the plaintiff filed suit for declaration of her title and partition of suit property as shown in Schedule A and B annexed with the plaint. 3. The Defendants 1 to 3 filed their written statement denying the substantive contentions of the plaintiff and pleaded that suit land of Schedule A & B are the ancestral property. After death of Latel, the plaintiff had obtained the ornaments of her mother against her share and waived off her right over suit land, hence, she is not entitled for any share in the property. 4. The learned trial Court after framing issues, examined the witnesses adduced by both the parties and after considering the evidence brought on record, decreed the suit of the plaintiff holding that the plaintiff is entitled for 1/6th share of the property of Schedule A (as no khata batwara has been got done between Latel and Fandu) and 1/3rd share of Schedule B. 5. The respondents/defendants 1 & 2 challenged the judgment and decree passed by the trial Court by filing First Appeal bearing No.100-A/2012 before the first appellate court, wherein, the judgment and decree passed by the trial Court was reversed vide impugned judgment dated 06.10.2012 holding therein that, the plaintiff has not visited her parental home for the last 15 years and she has failed to prove that partition was effected between Latel and Fandu, and therefore, she would not be entitled for any share in the property of her father by way of partition in the suit property. Being aggrieved by the same, the appellant/plaintiff has preferred the second appeal. 6. This second appeal has been admitted for hearing on the following substantial question of law:- “Whether the lower appellate Court was justified in reversing the finding of the trial Court only on the ground that the plaintiff has not visited her parental home for the last 15 years and therefore she would not be entitled for any share in the property of her father by way of partition in the suit property?” 7. Learned counsel for the appellant/plaintiff would submit that it is not in dispute that the property mentioned in the Schedule A of the plaint is ancestral property of both the parties, therefore, 1/6th share granted by the learned trial Court over the suit land mentioned in Schedule ‘A’ was just and proper. Learned counsel for the appellant/plaintiff would submit that it is not in dispute that the property mentioned in the Schedule A of the plaint is ancestral property of both the parties, therefore, 1/6th share granted by the learned trial Court over the suit land mentioned in Schedule ‘A’ was just and proper. It is further submitted that the suit land mentioned in Schedule B of the plaint was self acquired property of Latel (father of the plaintiff and defendants 1 & 2), therefore, the learned trial Court had rightly held that on aforesaid property, plaintiff Mankunwar Bai is entitled to get 1/3rd share of self acquired property of her father late Latel. It is further submitted that the learned first appellate Court has reversed the finding of the trial Court holding therein that since the plaintiff has not visited her parental home for last 15 years, therefore, she is not entitled to get any share over the suit land. He would further submit that since the relation between the plaintiff and her brother Mansingh was not cordial, therefore, she was not going to her maternal home and only on this count, the plaintiff cannot be deprived from the right to get the share from her ancestral property/suit land. It is further submitted that since the suit has been filed by the plaintiff for declaration of her title and partition, therefore, the suit cannot be dismissed on the ground of limitation also as co-sharers’ right is not barred by limitation from his or her ancestral/parental property only because he/she has not visited the place for long period. In this regard, he placed reliance in the matter of Ittyavira Mathai v. Varkey Varkey and another ( AIR 1964 SC 907 ) & Vineeta Sharma vs. Rakesh Sharma and Others, 2020 Supreme (SC)479. 8. Per contra, learned counsel for the respondents supported the judgment and decree passed by the first appellate Court. He would submit that the first appellate Court has reversed the finding of the trial Court after due appreciation of the evidence available on record, hence, it does not call for any interference. 9. Learned counsel for the State submits that the State is a formal party in the instant appeal/civil suit. 10. I have heard learned counsel for the parties and perused the material available on record along with the record of the trial Court. 11. 9. Learned counsel for the State submits that the State is a formal party in the instant appeal/civil suit. 10. I have heard learned counsel for the parties and perused the material available on record along with the record of the trial Court. 11. As per Order XII Rule 6 of the Code of Civil Procedure, 1908 (for short ‘the CPC’), if admission of the facts have been made in the pleading or otherwise, then it can be relied upon and issue can be decided on the basis of that admission. Order XII Rule 6 of CPC reads as under:- “6. Judgment on admissions.- (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.” 12. Section 58 of the Indian Evidence Act, 1872 reads as under:- “58. Facts admitted need not be proved.- No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hear, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings. Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.” 13. In the case of Nagindas Ramdas vs. Dalpatram Ichharam alias Brijram and Ors., (1974) 1 SCC 242 , in respect of the admission made by the parties, the Hon’ble Apex Court has observed in para 27 which reads as under:- “27. ……………. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. ……………. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The formal class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. ……………..” 14. In the instant case, it is admitted fact between both the parties that the suit land mentioned in Schedule ‘A’ was the ancestral property of both the parties and suit land mentioned in Schedule ‘B’ was self-acquired property of late Latel Gadaria (father of the plaintiff and defendants 1 & 2). It is also an admitted fact that mutual partition between late Latel Gadaria and his brother defendant No.3 Fandu (now dead) was effected after death of their father Kevra about 30-35 years prior to filing of the instant civil suit. The aforesaid fact has also been admitted by the plaintiff (PW-1), defendant No.1 Mana Bai (DW-1) and defendant No.2 Mansingh (DW-2) in their deposition. Thus, since the aforesaid facts are not in dispute, therefore, learned trial Court has rightly held proved those facts in view of the provisions, as has been stated above. But, the learned appellate Court only on the basis of its conjecture and surmises has held that partition has not been proved and the suit land of Schedule B has not been proved that it is self acquired property of late Latel, therefore, it is held that, aforesaid finding is found to be perverse and illegal. 15. The learned first appellate Court has further observed that since the plaintiff herself has admitted that she had not gone to maternal place since 15 years prior to filing of the civil suit, therefore, seeking partition in the year 2008 i.e. arising cause of action in the year 2008, cannot be held proved. But the learned trial Court has not held speakingly that the suit is time barred or there is no cause of action in favour of the plaintiff. Despite that the aforesaid cause of action has been taken for reversal of judgment and decree passed by the learned trial Court. 16. But the learned trial Court has not held speakingly that the suit is time barred or there is no cause of action in favour of the plaintiff. Despite that the aforesaid cause of action has been taken for reversal of judgment and decree passed by the learned trial Court. 16. In the case of Vidya Devi alias Vidya Vati (Dead by Lrs.) vs. Prem Prakash and others., AIR 1995 SC 1789 , the learned Apex Court has considered the period of limitation for filing suit for partition by joint holding by co-owner and observed as under:- “17. Limitation for such suit against other co-bhumidhar/s, thus, when no period of limitation is fixed for filing a suit for partition by co-bhumidhar against his other co-bhumidhars in respect of a joint holding, the question of the other co-bhumidhar acquiring his title to such holding by adverse possession for over 12 years can never arise. If that be so, such plea of perfection of title by adverse possession of a holding by co-bhumidhar against his other co-bhumidhar as defence in the latter's suit for partition can be of no legal consequence. In the said view of the matter, we agree with the learned single Judge of the High Court who held that the explanation to sub- section (1) of section 186 of the DL Act came in the way of defendant-1 (respondent-1 herein) in raising the issue of his title to the holding said to have been acquired by adverse possession and getting it referred by the Revenue Court to Civil Court to decision and disagree with the Division Bench of the High Court which has held that section 67(d) of the DL Act which provides for extinction of bhumidhar's interest in a holding enabled defendant-1 (respondent-1 herein) to take the plea of title by adverse possession in respect of the holding in a suit for partition of such holding filed by the co-bhumidhar.” 17. In the case of Karbali Begum v. Mohd. Sayeed, AIR 1981 SC 77 , it was held that a co-sharer in possession of the property would be a constructive trustee on behalf of other co-sharer who is not in possession and right of such co-sharer would be deemed to be protected by the trustee co-sharer. 18. In the case of Karbali Begum v. Mohd. Sayeed, AIR 1981 SC 77 , it was held that a co-sharer in possession of the property would be a constructive trustee on behalf of other co-sharer who is not in possession and right of such co-sharer would be deemed to be protected by the trustee co-sharer. 18. In the case of Vineeta Sharma (supra), the Hon’ble Supreme Court has held that Section 6 of the Hindu Succession Act, 1956, [As amended by Hindu Succession (Amendment) Act, 2005] confer status of coparcener on daughter born before or after amendment in the same manner as son with same rights and liabilities. 19. The Hon’ble Supreme Court in the matter of Bachhaj Nahar v. Nilima Mandal & Others, AIR 2009 SC 1103 has held as under:- “12. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also general cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional case where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Sarup Gupta (supra) referred to above and several other decisions of this Court following the same cannot be construed as diluting the well settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo motu.” 20. Reverting to the facts of the instant case as has been stated in the preceding paragraph that the suit land was the ancestral/parental property of the plaintiff and defendants 1 & 2 who are brother and sisters, therefore, even though the plaintiff had not gone to her maternal place since 15 years prior to the filing of the civil suit, her right over the property is not extinguished, as it is her birth right. Therefore, only because of her not going to her maternal place, does not bar her right over the ancestral property. Further neither the issue of limitation was raised before the trial Court by the defendants nor it was raised before the appellate Court, despite that the learned first appellate Court in the appeal, without any legal ground, has observed the issue of limitation in filing the civil suit, even it has not been ordered speakingly that suit is barred by limitation. Therefore, observation made by learned first appellate court in the last line of para 12 of the impugned judgment, i.e. the plaintiff had not gone to her maternal place for long time, therefore, seeking partition by her and arising cause of action in the year 2008 is not proved, is also found to be perverse and illegal. 21. As per the defendants, after the death of their father, the plaintiff had waived off her right over the suit land after taking some gold and silver ornaments, grain, animals like cow and goat, but relinquishment right of the immovable property cannot be made orally rather as per the provisions of Section 17(1)(b) of the Registration Act, 1908, it can only be relinquished through registered sale deed and defendants have neither pleaded nor proved such document, therefore, aforesaid ground raised by the defendants that the plaintiff has no right or title over the suit land is completely perverse and bad in law. 22. Thus, since the suit land is ancestral/parental property of original plaintiff and original defendants 1 & 2, therefore, they have equal right on it and learned trial Court has rightly allowed the suit in favour of the plaintiff. Accordingly, the question of law framed is answered in favour of the plaintiff. 23. 22. Thus, since the suit land is ancestral/parental property of original plaintiff and original defendants 1 & 2, therefore, they have equal right on it and learned trial Court has rightly allowed the suit in favour of the plaintiff. Accordingly, the question of law framed is answered in favour of the plaintiff. 23. In view of the above discussion, it is found that the learned first appellate Court without due appreciation of the evidence and law, has reversed the finding of the learned trial Court. Therefore, impugned judgment and decree dated 06.10.2012 passed in Civil Appeal No.100A/2012 by Upper District Judge, Kabeerdham (Kawardha) (CG) is set aside and judgment and decree dated 26.02.2010 passed in Civil Suit No.31A/2009 by Civil Judge Class-II, Kabeerdham is restored and the decree is granted in favour of the plaintiff in the following manner:- (a) The land mentioned in Schedule A of the plaint, which is said to be divided equally between the father of the plaintiff and her uncle (chacha) Fandu, out of which, the plaintiff and defendants 1& 2 shall obtain 1/3rd share from their father’s share on the aforesaid property and the plaintiff shall also obtain 1/3rd share of suit land mentioned in the Schedule B. (b) Other terms of the judgment and decree of the trial Court shall remain intact. 24. This appeal is allowed to the extent indicated herein above. 25. A decree be drawn accordingly.