- (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 06.07.1993 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 alongwith 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, Tehsil 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 respondent nos.1 & 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 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 Tehsildar 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.
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 ?"

(3.)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.