JUDGMENT Yorke J. 1. This is a second appeal by Raja Saiyid Mohammad Mehdi plaintiff whose suit for the recovery of possession of Certain plots by uprooting of newly planted trees and demolition of structures was decreed by the Munsif of Akbarpur but dismissed on appeal by the Civil Judge of Fyzabad. 2. The plaintiff is the taluqdar of the Pirpur estate and superior proprietor of village Kusum Khore. In the plaint he sued for demolition of "Gulor", that is to say a building in which cane is crushed and the juice boiled, on plot No. 75/3, demolition of a ditch surrounding plots Nos. 75/3, 75/4, 75/1, 87/1, 87/2, and 90/3 and removal of thatch structures on plots Nos. 75/3 and 75/4. Secondly he sought a decree for the uprooting of 59 newly planted trees on plots Nos. 75/3, 75/4, 87/1 and 87/2. Thirdly he claimed a declaration that old trees and trees of spontaneous growth on plots Nos. 75/3, 75/4, 87/1, 87/2 and 90/3 were owned by him and that the defendants had no concerns with them. In the body of the plaint he gave detail of the acts of the defendants by which they had made these constructions, planted these trees and so on and in the plaint he said that by these acts there was a danger of his title being jeopardized, and he further asked for any relief to which he might be held entitled. The suit related to plots with an area of 13 bighas described in the first regular settlement as "parti Kadim" and in the second settlement sub-divided into a number of plots described as jungle, and banjar or waste. In their written statement the defendants alleged that they had acquired title by adverse possession which had begun by petty encroachments 32 years ago, and had matured into proprietary rights 20 years prior to the date of suit. It was said that the plots in suit were near the defendant's house. In oral pleadings some points were slightly cleared up and it was stated on behalf of the plaintiff that the plaintiff is in possession over old trees, and if he is found out of possession, decree for possession be given. 3. How this suit was understood by the parties is made very clear by the issues which were framed in the suit. Those issues were as follows: 1. 3. How this suit was understood by the parties is made very clear by the issues which were framed in the suit. Those issues were as follows: 1. Is the plaintiff the owner of the property in suit as alleged? 3. (a) Have the defendants planted new trees and encroached upon the plaintiff's land as alleged? If so, is the plaintiff entitled to possession of the land in suit by removal thereof? If not, to what effect? (b) Have the defendants perfected their title to the property and the land in suit by adverse possession for more than 12 years as pleaded? Its effect? 8. Is the plaintiff's suit for removal of the encroachment in question and the trees and the bamboo clumps in suit barred by time as pleaded? 4. Is the plaintiff's claim to the property in suit barred by principles of estoppels by acquiescence as pleaded? Its effect? 6. Is the plaintiff in possession of the old trees and entitled to the declaration prayed for in relief C? If not, to what effect? 4. It is impossible in the face of these issues to suppose that the parties thought themselves to be litigating on anything other than a claim to recover possession of property encroached upon by the defendants. In the trial Court all the issues were decided in favour of the plaintiff and the plaintiffs claim was decreed in full. 5. In the grounds of appeal before the lower Court a large number of points were taken, there being no less than 15 grounds of appeal, relating to every point which had been in issue in the trial Court. Ground 3 of these grounds of appeal again makes it very clear how the suit was regarded in the trial Court. This ground runs as follows: Because the learned lower Court is wrong in holding that Article 142 of the Indian Limitation Act does not apply to the facts of the case. 6. That is to say the pleading was that this was not a suit in which the plaintiff could rely upon his title and put the defendants to proof of 12 years adverse possession, but a" suit in which the plaintiff was pleading dispossession and had to establish that dispossession had taken place within 12 years so as to give him a right to recover possession. 7. 7. The learned Civil Judge noted at the very beginning of his judgment that in spite of having put in this long list of grounds of appeal, the appellants had pressed the grounds of appeal relating to issues 3 and 5 only. It follows that the defendants had given up all their grounds of appeal which related to issues 1 and 2 and the only question which really arose was whether the plaintiff's suit was within limitation. The learned Civil Judge proceeded to hold that the suit was not a suit for recovery of possession, but a suit for which no particular article was to be found in the Limitation Act and which must therefore be governed by the residuary Article No. 120 which gives a period of limitation of six years from the date at which the right to sue accrues. He went on to strain every point in favour of the appellants so as to hold that the trees had been planted, the ditch dug and the buildings or structures put up more than 6 years prior to the date of suit, and thereupon to hold that the suit was barred by limitation. He did not really consider the question whether the mere date of planting of the trees " or erection of a thatched structure must necessarily be the date on which the right to sue accrued, but took that for granted, whereas in fact there is little doubt that as a proposition of law that proposition is incorrect and the right to sue in such cases accrues only when the encroachment comes within the knowledge of the plaintiff, a point on which he came to no finding of any sort; In support of the view which he took of the applicability of Article 120 of the Indian Limitation Act the learned Civil Judge relied on Badal v. Babu Nageshwar Baksh Singh (1919) 6 O.L.J. 389 : AIR 1929 Oudh 398 in which it was held, relying on Musharaf Alt v. Iftkhar Husain (1888) 10 All. 634 that: a suit of a landlord for removal of trees newly planted by a person who had no right to plant the same is governed by Article 120, Schedule I, of the Limitation Act. 8. 634 that: a suit of a landlord for removal of trees newly planted by a person who had no right to plant the same is governed by Article 120, Schedule I, of the Limitation Act. 8. In the Allahabad case it was similarly held by a single Judge of that Court that a suit by a zamindar for removal of trees planted in certain waste land of his village by persons who had no right to plant them is governed by Article 120, Sch. I, of the Limitation Act and not by Art. 32, and where a defendant having a right to use property for a specified purpose perverts it to other purposes, and a suit had to be instituted for any relief in respect of any injurious consequences arising from such perversion, such a suit will be governed by Art. 32. 9. The learned Civil Judge was evidently unaware of the fact that Musharraf Ali's case (1888) 10 All. 634 was later distinguished by a Bench of the Allahabad High Court in Muhammad Shafi Vs. Babu Bindeshri Saran Singh, AIR 1924 All 443 where it was held, upholding in Letters Patent Appeal the judgment of a single Judge of the Court, that the planting of trees on land belonging to another is an act of active trespass, and the owner of the land can sue for removal of the trees so planted and for recovery of possession of the land at any time within 12 years. In the Bench judgment in that case it was pointed out that the real question in Musharraf Alt's case(2) was whether the limitation applicable was that prescribed by Article 32. As was remarked by the learned single Judge this (Mohammad Shaft's) case(2) was in his opinion an action for trespass and possession of land, and he pointed out that the defendants set up title and claimed adverse possession exactly as they have done in the present case. 10. I have been referred also to a later case of the Court of the Judicial Commissioner, Ghafur Khan v. Lala Prag Narayan ( 1921) 9 OLJ 17 : AIR 1922 Oudh 47 in which it was held that a suit for possession of land coupled with an ancillary prayer for the removal of the trees planted on it is governed by Article 142 of the Limitation Act. It does not really make very much difference in a way in the present case whether it was governed by Article 142 or 144 since there was no doubt whatever that the real question was whether the defendants had perfected their title by adverse possession extending beyond 12 years. It appears to me that in all cases it is the duty of the Court of appeal, just as much as it is the duty of the trial Court, to consider what the real substance is of the plaintiff's claim, and there can be no doubt that in the present claim the real substance was the recovery of possession by removal of those structures ditches, and newly planted trees, which constituted an interference or trespass upon the plaintiff's possession and therefore cast a cloud upon his title. 11. In the present case there could be no doubt that the plaintiff is the taluqdar and landholder of the village in suit, and there is no sort of doubt about the rule of law in force in Oudh as laid down in numerous cases, for example Thakur Sheo Narain Singh v. Bodal Singh (1905) 8 OC 177 and Hulas v. Barkat-un-nisa Begam, Rani (1926) 1 Luck 469 : AIR 1926 Oudh 393 that the possession of the taluqdar is to be presumed in waste, and jungle land, and tanks situated in the village of which he is the proprietor. It follows that in the case of acts which constitute a trespass upon that possession, the burden is ordinarily upon the trespasser to establish that he has perfected a title by adverse possession. 12. On behalf of the respondents learned Counsel has scarcely made any attempt to defend the application of Article 120 of the Limitation Act. He contended himself with arguing that if it be held that the article of the Limitation Act applicable to the suit is Article 144, then the case must go back to the lower appellate Court for a finding as to whether the defendants have perfected their title by 12 years' adverse possession. He bases this contention on the argument that the lower appellate Court has not come to any finding of fact. He bases this contention on the argument that the lower appellate Court has not come to any finding of fact. On behalf of the appellant it is, however, in my opinion rightly contended that in as much as learned Counsel for the defendants in the lower appellate Court gave up all issues except issues 3 and 5, he thereby conceded the correctness of the finding of fact which finds a place in issue 2 (b). It follows that there is no necessity to send the case back to the lower appellate Court for a finding of fact on the point raised in issue 2 (b). That finding of fact is final between the parties already, namely that the defendants have not perfected their title by adverse possession going beyond 12 years. 13. In filing his present appeal the plaintiff filed with it an application u/s 151 and Order. VI Rule 17 to amend his plaint so as to make it clear, if it was not already clear, that his suit was a suit for the recovery of possession in so far as he might be held to be out of possession by reason of the acts of the defendants. This application has been contested on behalf of the respondents by learned Counsel who has referred to the notes in Mulla's CPC under Order VI Rule. 17 where ft is said that delay is itself a sufficient reason for refusing leave to amend, and it is pointed out that this application has only been filed on the date of hearing of appeal. Learned counsel for the appellant points out that in his grounds of appeal he foreshadowed his intention to make this application, and he shows from the application itself that it was prepared for an earlier bearing. He therefore argues that there can be no question of delay, and in fact if this intention was indicated in the grounds, of appeal as is clear from a reference to them, there could be no question of delay because the application was necessitated only by the peculiar reasoning which is found in the judgment of the lower appellate Court. He therefore argues that there can be no question of delay, and in fact if this intention was indicated in the grounds, of appeal as is clear from a reference to them, there could be no question of delay because the application was necessitated only by the peculiar reasoning which is found in the judgment of the lower appellate Court. In my opinion this application, had it been necessary, could not have been successfully resisted on the grounds put forward, but I think that the application is unnecessary inasmuch as it was clear to everybody in the trial Court what the substance of the suit was, and that it really was a suit for possession. It seems to have occurred to no one until it occurred to the learned Civil Judge that this could possibly be a suit of any description other than a suit for possession. In view of the fact that the application is unnecessary I reject it. 14. I am quite satisfied that the learned Civil Judge has taken an entirely wrong view of the case in applying Article 120 to the plaintiff's suit. I hold that the suit really falls under Article 144 of the First Schedule of the Indian Limitation Act and was rightly decreed by the Court of first instance. I accordingly allow this appeal with costs of this and the Court below, set aside the decree of the learned Civil Judge and restore that of the trial Court.