ORDER Kamal Kishore, J.
1. This is the second civil appeal against the judgment and decree dated 24.11.1982 passed by the then learned IInd Additional District Judge, Sultanpur allowing the appeal and setting aside the judgment and decree passed by the then learned Ist Additional Munsif, Sultanpur in Regular Suit No. 255 of 1976, which was a suit for permanent injunction,
2. The following question of law has been formulated :
"Whether the judgment of the First Appellate Court is perverse and illegal?"
3. I have heard arguments and have gone through the record.
4. Admittedly, defendants-appellants are the heirs of Ram Bux. The defendants-appellants claim title through the sale deed executed by Smt. Sundara the widow of Bindra, who was the real brother of the aforesaid Ram Bux. The plaintiffs-respondents claim themselves to be the exclusive owner of the property in suit by adverse possession.
5. It has been held by Hon'ble Supreme Court in 2001 (19) LCD 1082 ; that the person claiming title by adverse possession has to prove that his possession is adequate in continuity, in publicity and in extent and to show when possession becomes adverse. Purcha Yaddast was also found forged in the judgment of trial court and ultimately, it was also withdrawn by the appellant in the First Appeal. There was no separation between the parties and construction, which was done by the plaintiff, was from the income of agricultural land. In case 1967 ALJ (SC) 277, it has been clearly held that in case there is dispute regarding the construction on the disputed land and there is no evidence then land and construction on it will be divided equally in both parties. Roop Singh v. Ram Singh, 2001 (19) LCD 232. it has been clearly held by the Hon'ble Supreme Court that mere possession for a long time does not result in converting permissive possession into adverse possession. Moreover, there can be no adverse possession by co-sharer against another co-sharer.
6. The First Appellate Court has erred in not considering the material or relevant evidence in setting aside the findings given by the learned trial court. It has been held by the learned Supreme Court in the ruling in Dilbagrai Punjabi v. Sharad Chandra, 1988 (Supp.) SCC 710 :
"The Court (the first appellate court) is under a duty to examine evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case."
7. The finding recorded by the learned lower appellate court is thus perverse and is not sustainable under these circumstances as has been held by this Court in the ruling in Rasheed Ahmad and Ors. v. Smt. Kariman Khatoon and Ors., 2002 (1) AWC 346 (LB) : 2001 (19) LCD 1097.
8. The same view has been taken by the Hon'ble Supreme Court in subsequent rulings also in Devram Bilve v. Indumati, (2000) 10 SCC 540 ; wherein it has been held that the Appellate Court must examine the evidence on record and in absence of such examination, a doubt as to the correctness of its conclusions would remain. The questions of law formulated above answered accordingly in favour of the appellants.
9. The second appeal is hereby allowed. The judgment and decree passed by the first appellate court is set aside and the judgment and decree passed by the learned trial court is hereby maintained. No order as to costs.