JUDGMENT : KARAMAT HUSAIN, J. 1. Umrao and Bhaggu were brothers. The genealogical table showing the relation of the parties is given in the judgment of the learned Munsif on page 24 of the Paper book. Certain descendants of Bhaggu brought an action for a declaration of their ownership of 36 bighas, 17 biswas, 113/4 biswansis by adverse possession for more than 12 years before the institution of the suit. They based their claim on extinctive prescription. They claimed 3 bighas, 19 biswas, 81/4 biswansis, by right of inheritance. The defence was that the plaintiffs had not been in adverse possession of the portion of the property which they claimed by extinctive prescription for more than 12 years before the institution of the suit, and that the defendants were in possession of it. With reference to the plots claimed by inheritance the defence was that the claim was barred by limitation. The court of first instance dismissed the claim. The lower appellate court reversed the decree of the learned Munsif and came to the conclusion that Imami and after him the plaintiffs had been in adverse possession as owners, since the 2nd of April, 1894, at the latest, of the 33 bighas, 17 biswas, gifted by Musammat Zahuran in 1891 to Nanhe, Wazir and Gulab, and that Imami and his successors had been in possession of 7 bighas given to Karim also for more than 12 years before the suit. I may note that the two areas which form the subject-matter of two distinct findings do not correspond with the areas claimed under two different titles, i.e., extinctive prescription and inheritance. In order to test the value of the findings of the learned District Judge, I quote the following passages from his judgment:— “The evidence which plaintiffs have produced to prove their possession is, as the learned Munsif has pointed out, anything but satisfactory. “It (agreement) shows that they (plaintiffs) were in adverse possession of 33 bighas, 91/2 biswas out of the land now in suit on nth August, 1905. The area, 33 bighas, 91/2 biswas, should evidently be 33 bighas, 17 biswas, as the deed plainly refers to all the property in suit except that gifted to Karim. “It (agreement) shows that they (plaintiffs) were in adverse possession of 33 bighas, 91/2 biswas out of the land now in suit on nth August, 1905. The area, 33 bighas, 91/2 biswas, should evidently be 33 bighas, 17 biswas, as the deed plainly refers to all the property in suit except that gifted to Karim. I am entitled to hold under section 114 of the Evidence Act that this adverse possession of 1905, dated from early in 1894 and continued up to the date of the institution of this suit, for no definite occurrence has been sworn to which would have marked the commencement or termination of such adverse possession……………. It is sworn by the Patwari that Imami cultivated the khudkasht portion of the land in suit (i.e., the land claimed by inheritance) from 3 years after Umrao's death, i.e., from at the latest, early in 1904-5. The presumption must be with reference to sections 110 and 114 of the Evidence Act, that this possession of Imami was continued by his representatives, and that the possession of the latter is that of owners,” 2. The above passages from the judgment of the learned District Judge clearly show that the findings as to adverse possession at which he has arrived are not based on the evidence adduced by the plaintiffs, which evidence has been held by the court of first instance as well as by the lower appellate court to be unsatisfactory. The plaintiffs have, as a matter of fact, been found to be in adverse possession of the portion claimed by extinctive prescription on the 11th of August, 1905, and that adverse possession, by the help of section 114 of the Evidence Act, has been extended on both sides. It has been held to date retrospectively from early in 1894 and to continue prospectively to the date of the institution of the suit. With reference to the property claimed by right of inheritance Imami has been found to be in adverse possession of it in 1894, and this adverse possession by the aid of sections 110 and 114 of the Evidence Act has been held to be adverse possession for more than 12 years. The defendants have preferred a second appeal to this Court. The defendants have preferred a second appeal to this Court. Their learned Vakil contends that if a plaintiff institutes a suit for a declaration that by adverse possession for more than 12 years before the institution of the suit he has become the owner of that land in suit, he ought to prove his actual and continuous possession for a period of more than 12 years before the institution of the suit, and that he may not call in aid sections 110 and 114 of the Indian Evidence Act. This contention is directed to the claim based on extinctive prescription. In support of this contention he relies on Jagjivan Das v. Bai Amba, [1900] I.L.R., 25 Bom., 362; Vithal Das v. Secretary of State for India, [1901] I.L.R., 26 Bom., 410; Tarubai v. Vekatatao, [1902] I.L.R., 27 Bom., 43(66); Secretary of State for India v. Krishnamoni Gupta, [1902] I.L.R., 29 Cal., 518, 534 and Wali Ahmed Chowdhry v. Tota Meah Chowdhry, [1903] I.L.R., 31 Cal., 397. In Jagjivan Das v. Bai Amba, Ranade, J., at page 366, remarks “possession to be adverse must be shown to be continuous, public and adequate, to the circumstances of the case.” 3. In Tarubai, the remarks on page 66 are “where there is no allegation of original possession in the plaintiff lost by dispossession or discontinuance of possession, then the party relying on adverse possession to displace a proved or admitted title, must show such adverse possession to have commenced and continued from twelve years prior to suit.” In Secretary of State for India v. Krishnamoni Gupta, their Lordships of the Privy Council say :—“For the purpose of trying the question whether limitation applies, the Government must be regarded as a trespasser and dispossessor of the rightful owner, and in the opinion of their Lordships it would be contrary to principle and authority to imply such constructive possession in favour of a wrong-doer so as to enable him to obtain a title by limitation. In order to sustain a claim to land by limitation under the Indian Limitation Act there must in their opinion be actual possession of a person claiming as of right by himself or by persons deriving title from him. In order to sustain a claim to land by limitation under the Indian Limitation Act there must in their opinion be actual possession of a person claiming as of right by himself or by persons deriving title from him. The possession of the Government was in fact determined by the submergence of the land which then became derelict, and so long as it remained in that state, no title could be acquired against the true owner. Sir R. Garth, however, seems to have thought that in such a case the possession of the trespasser would continue, until the true owner resumed possession. Their Lordships cannot agree in this view. On the contrary, they think that on the dispossession of the Government by the vis major of the floods, the constructive possession of the land was (if anywhere) in the true owners. In the case of the Trustees, Executors and Agency Company v. Short, [1888] L.R., 13 A.C., 793 it was laid down by this Board that “if a person enters upon the land of another and holds possession for a time, and then without having acquired a title under the statute abandons possession, the rightful owner on the abandonment is in the same position in all respects as he was before the intrusion took place.” And the opinion of PARKE, B., is there quoted that there must be both absence of possession by the person who has the right and actual possession by another to bring the case within the statute. Their Lordships think that for this purpose dispossession by vis major has the same effect as voluntary abandonment, and they are of opinion that the case of Kally Churn Sahoo v. The Secretary of State, [1881] I.L.R., 6 Cal., 725 was wrongly decided and ought to be over-ruled. In the result, therefore, their Lordships agree with the court below on this part of the case and the appeal of the Secretary of State fails.” I.L.R., 29 Cal., (1902) P- 534. 4. In the result, therefore, their Lordships agree with the court below on this part of the case and the appeal of the Secretary of State fails.” I.L.R., 29 Cal., (1902) P- 534. 4. In Vithal Das it is remarked on p. 416 “that to constitute a title by adverse possession, the possession required to be proved must be, as pointed out by the Privy Council in Radhamoni Debi v. Collector of Khulna, [1900] 27 I.A., 136, 27 Cal., 943 adequate in continuity, in publicity and in extent, and it is displaced by evidence of partial possession by the party against whom the title by adverse possession is claimed. “In order to constitute possession it must be a complete possession exclusive of the possession of any other person” (per CATRNS, L.C., in Laws v. Telford, [1876] I.A.C., 4 at p. 423. “If there are two persons in a field, each asserting that the field is his and each doing some act in the assertion of the right of possession, and if the question is which of those two is in actual possession, I answer, the person who has the title is in actual possession and the other person is a trespasser (per Lord SELBORNE in the same case).” I.L.R., Bom., XXVI, p. 416. 5. In Wali Ahmed Chowdhry v. Tota Meah Chowdhry, it is remarked :—“He (the pleader for the appellant) further contends on the authority of the case of Mohini Mohan Roy v. Promoda Nath Roy, [1896] I.L.R., 24 Cal., 256 that the occupation by a wrong-doer of a portion of the land only cannot he held to constitute constructive possession of the whole that promiscuous acts at different times by a fluctuating body of persons, as in this case by the Talukdars and neighbouring villagers in grazing their cattle on the waste lands, are not sufficient to amount to adverse possession Lutchmeeput Singh v. Sadaulla Nushyo, [1882] I.L.R., 9 Cal., 698 that constructive possession in favour of a wrong-doer cannot be implied so as to enable him to obtain thereby a title by limitation. Secretary of State for India v. Krishnamoni Gupta, [1902] I.L.R., 29 Cal., 518 : L.R., 29 I.A., 104 and lastly, that possession must be adequate in continuity, publicity and extent, to show that it is possession adverse to the competitor. Secretary of State for India v. Krishnamoni Gupta, [1902] I.L.R., 29 Cal., 518 : L.R., 29 I.A., 104 and lastly, that possession must be adequate in continuity, publicity and extent, to show that it is possession adverse to the competitor. Radha Moni Debi v. Collector of Khulna, [1900] I.L.R., 27 Cal, 943; L.R., 27 I.A., 136; 4 C.W.N., 597” 6. The above cases are authority for the following propositions:— (a) The adverse possession which under the Indian Limitation Act ripens into ownership must be actual, exclusive and continuous for more than 12 years. (b) A trespasser is not entitled to have constructive possession presumed in his favour. (c) A trespasser by virtue of an adverse possession of a part cannot be deemed to be in adverse possession of the whole. 7. Besides, it has been laid down in Udit Narain v. Golab Chand, [1899] 26 I.A., 236, at p. 239. S.C. I.L.R., 27 Cal., 221 that if plaintiff claims title by adverse possession for 12 years, the burden of proving such possession rests on him. Their Lordships say, “The lands in question were formerly made over to the Maliks of Ganghara, and the plaintiffs do not claim them as part of their old lands but the propositions on which they rely are these—first, that for a period of 12 years they were in possession of the land and thereby acquired title and, secondly, that they brought this action within 12 years of their dispossession by the defendants. The burden of proving both these propositions rests on the plaintiffs.” 8. The learned author of the Law of Limitation and Prescription in British India on the authority of their Lordships’ ruling in Udit Narain and of the judgment of Fry, J., in Rains v. Buxton, [1880] 14 Ch, Div., 537-540, says:— “When the plaintiff relies 0:1 extinctive prescription (under section 34, c 27, 3 and 4 William IV or section 29, Act IX of 1871, or section 28, Act XV of 1877), he must prove that he has been in possession for the prescribed period, but if the defendant contends that his right is saved by reason of the plaintiff's fraud, or by some other exceptional circumstances, it is for the defendant to prove the fraud or the other circumstances. If the position of the parties be reversed, and the party out of possession be the plaintiff, he shall have, of course, to prove that his suit is not barred by limitation by reason of the exceptional circumstances on which he relies.” P 124, 4th Ed. 9. The authorities cited above fully establish that a plaintiff who bases his title on adverse possession for more than twelve years must prove an actual, continuous, exclusive and adverse possession for more than twelve years. 10. The plaintiffs in the case before me, as has already been stated, claimed the ownership of a portion of the property by adverse possession and of the rest by succession. The facts which they have to establish relating to each of the two portions cannot therefore be the same and have to be dealt with in this judgment separately. First, as to the portion the ownership of which is claimed by adverse possession. The plaintiffs in respect of this portion, as the very nature of their claim shows, are wrong-doers. They seek the help of the court in consequence of their continuing wrong, to deprive the rightful owners of their property. By the provision of the Indian Evidence Act the burden of proving their actual, continuous, exclusive and adverse possession lies upon the plaintiffs. They, as wrong-doers in my opinion, are not entitled to the presumption of the continuity of their adverse possession for any appreciable period of time. The law relating to presumptions is not intended to enable a wrong-doer to turn it to his own account. They, therefore, cannot be allowed to call in aid the provisions of section 114 of the Indian Evidence Act to establish their title to the land. They in order to succeed must strictly prove by clear and cogent evidence their actual, exclusive, continuous and adverse possession for more than 12 years before the institution of their suit. So much as to the presumption of their adverse possession by the lower appellate court between 1895 and the 24th January, 1907. 11. Regarding the retrospective continuity of their adverse possession between 1894 and 1905, which the lower appellate court has also presumed in their favour, it is enough to say that such a retrospective presumption is unknown to the Law of British India and to the English Law which is the basis of our law in this respect. 11. Regarding the retrospective continuity of their adverse possession between 1894 and 1905, which the lower appellate court has also presumed in their favour, it is enough to say that such a retrospective presumption is unknown to the Law of British India and to the English Law which is the basis of our law in this respect. It is to be noticed further that if retrospective and prospective presumption of adverse possession were engrafted on the law relating to presumptions in British India, one year's continuous and adverse possession or even an adverse possession for a shorter period with the help of retrospective and prospective presumptions as to adverse possession would be quite enough to confer ownership upon the person in possession and would not only frustrate the provisions of section 28 of the Indian Limitation Act (Act XV of 1877) which renders twelve years’ adverse possession a condition precedent to the extinction of the owner's right in the property but would go against the general policy of law which discourages wrongs. Coming to the plots of land the ownership of which is claimed by succession, I find that the learned Munsif framed the following issue :— Are the plaintiffs entitled to any portion of the property by right of inheritance? He found that the claim by right of inheritance over 3 bighas, 19 biswas, 81/2 biswansis, wasalso barred by limitation. In this view of the case it was unnecessary for him to come to a finding as to the right of succession. The lower appellate court, however, came to a different conclusion. It found that Imami and his successors had been in adverse possession as owners of the 7 bighas gifted to Karim also for more than 12 years. In order to pronounce such a finding the court should have found that the plaintiffs had no right to claim by succession. Without a finding they could not be found to be in adverse possession of the plots because an heir cannot be in adverse possession of the property which he claims by succession against a defendant who has no title to it. 12. For the above reasons I hold that the findings of the lower appellate court relating to the portion claimed by adverse possession are not sufficient. 12. For the above reasons I hold that the findings of the lower appellate court relating to the portion claimed by adverse possession are not sufficient. That court on the evidence on the record ought to find the duration of the actual, continuous, exclusive and adverse possession of the plaintiffs. Regarding the portion claimed by succession there should be a finding that the plaintiffs are or are not the heirs of the owner of that portion which they claim by right of inheritance. 13. If the court finds that they are not the heirs of the owner of the property, the finding already recorded will be sufficient for the disposal of the appeal, but if the court finds that they are the heirs of the owner of that portion, it will have further to find whether their claim is or is not barred by time. 14. The result is that I, under Order 41, Rule 25, send down the following issues for trial. The court will be at liberty to take such additional evidence as the parties may adduce. Ten days will be allowed for objections on return of the findings. The issues are:— (1) What is the duration of the actual, continuous, Exclusive and adverse possession of the plaintiffs over the property claimed by adverse possession? (2) Are the plaintiffs the heirs of the owner of the property claimed by right of inheritance? If the Court finds on the second issue in the affirmative, it should record a finding on the following issue:— (3) Have the plaintiffs been in proprietary possession of the portion claimed by succession within 12 years of the institution of the suit? 15. Upon return of the findings the following judgment was delivered by KARAMAT HUSAIN, J. By my order, dated the 15th of May, 1909, I sent down three issues to the lower appellate court for trial. The findings on these issues are against the defendants-appsllants. It is, however, contended by the learned vakil for the appellants that the findings on issues Nos. (1) and (2) are findings which are vitiated by the learned Judge's erroneous application of law. I am unable to accept the contention of the learned vakil. In my opinion the findings arrived at by the lower appellate court are findings of fact and are fatal to this appeal. I therefore dismiss the appeal with costs.