Thadani C. J. - I have bad the advantage of reading the judgment of my learned brother, but I regret I am unable to hold that the plaintiff-respondent has acquired title by reason of adverse possession for the statutory period, [2] The arrangement described by the plaintiff in the plaint makes no reference to his possession of the estate in his own right as against the auc­tion purchaser. Manifestly the arrangement was a secret arrangement made between the plaintiff and the auction- purchaser, by which the plaintiff sought to hoodwink his creditors, that; is to say, if any of his creditors had attempted to attach the estate, the plaintiff would have set up the title of the auction-purchaser or his successor-in-title and persuaded him to file claim proceedings on the strength of the purchase. It was not until 1940, some 7 years after the auction-sale in Octo­ber, 1933 that the plaintiff satisfied all his credi­tors. Until 1940, therefore, the plaintiff was note in a position to assert his hostile title against anybody, much less against the auction-purchaser whom he would not have hesitated to use in order to thwart his creditors. [3] This promiscuous arrangement made with the auction purchaser in order to defeat his credi­tors can scarcely be countenanced by a Court; of Law to enable a party thereto to sustain his title by adverse possession so long as his possession can be traced to this promiscuous arrangement. The plaintiff's possession of the estate on and after the date of the auction-sale being in pur­suance of this promiscuous arrangement, it can only be regarded as a kind of permissive posses­sion derived from the auction-purchaser, and until such permissive possession is displaced by hostile possession openly asserted for the statutory period, I do not think the question of adverse possession can properly arise. [4] The question of the rights of the parties in a case where A alleges that immovable property was purchased by B with A's money, as in the present case, was considered in the judgment of Patanjali Sastri J. in Moolji Jaitlis & Co., v. K. S. & W. Mills Go , A.I.R. (37) 1950 P. c. June 83 at 99 Pr. 59. 59. His Lordship observed; "The Privy Council, however, have pointed out that the law in India reoognises no distinction between legal and equitable estates in property and that there is only one owner of property and that is the trustee, the right of the beneficiary being in a proper case to call upon the trustee to convey to him." (Vide Chhatra Kumari v. Mohan Bikram, 58 Ind. App. 279). [5] I can understand a case where the so-called beneficial owner (in this case, the plaintiff), while being in possession of the property of which the legal owner is the trustee, first calls upon the legal owner to convey the property to him, and upon the legal owner's refusal to convey the property, the beneficial owner claims to continue in possession as the true owner for the statutory period from the date of the refusal, in which case it might be legitimate to say that he had acquired title by adverse possession-the starting point be­ing the refusal of the trustee (in this case, the auction purchaser or his successor') to convey the property to him. It is settled law that a beneficiary cannot set up adverse possession against the trustee unless the beneficiary first renounces his character as such. In the present case, no such renunciation was made by the plaintiff in relation to the auction purchaser. In the absence of such a renunciation, the requisite animus, namely, the intention to assert hostile title, was wanting in this case until 1941. [6] The cases upon which my learned brother has relied are not cases where defaulting estate-owners had sued auction-purchasers or their suc­cessors in title. In those cases, the auction-pur­chaser had sued a stranger in possession, and their Lordship of the Privy Council and the learned Judges of the Calcutta High Court held that the date of the commencement of the adverse possession against the auction-purchaser was the date of the auction sale. In those cases, the auction-pur­chaser had sued a stranger in possession, and their Lordship of the Privy Council and the learned Judges of the Calcutta High Court held that the date of the commencement of the adverse possession against the auction-purchaser was the date of the auction sale. In none of the cases to which my learned brother has referred has it been laid down that where a defaulting estate-owner whose estate has been auctioned continues to remain in possession without more on and after the date of the sale, whether by himself or through his tenants-he acquires title by adverse possession against the auction- purchaser after the expiry of the statutory period from the date of the sale, much less if the defaulting estate-owner continues to be in possession on or after the date of the auction sale in pursuance of a promiscuous arrangement with the auction-purchaser, an arrangement by which he acquires no greater rights than the rights of a beneficiary as against a trustee. [7] It is also to be remarked that in none of those cases was the question of the applicability of S. 86 of the Assam Land and Revenue Regula­tion involved. It may be conceded that S. 86 is no bar to a case where the defaulting estate- owner seeks to establish his title by adverse possession, but it cannot be said that if a defaulting estate owner somehow or other continues to be in pos­session by himself or through his tenants on and after the date of the auction sale, his possession is necessarily adverse from that date. In virtue of S. 71 of the Assam Land and Revenue Regula­tion, an auction purchaser gets the estate free from all encumbrances. If a defaulting estate-owner therefore, continues to be in possession by himself or through his tenants on and after the date of the auction sale, his possession must be regarded as that of a trespasser in relation to the auction-purchaser if it is not rooted in a contract of lease or licence or some other kind of permis­sive possession. A trespasser's possession is not necessarily adverse to the true owner from the date of his trespass; it becomes adverse only when he asserts his own title openly and continuously for the statutory period. A trespasser's possession is not necessarily adverse to the true owner from the date of his trespass; it becomes adverse only when he asserts his own title openly and continuously for the statutory period. There is no evidence in this case that the plaintiff, while in possession of the estate through his tenants, asserted his own title against the auction purchaser. It is not dis­puted that the plaintiff was never in physical possession of the estate either before or after the auction-sale. His tenants were said to be in pos­session of the estate. As I have said, in virtue of S. 71 of the Regulation, the estate must be deem­ed to have been sold free of the tenant's posses­sion; at no time did the tenants claim to be in possession adversely to the auction-purchaser. It is not the case of the plaintiff that at any time after the auction-sale he entered into a fresh agreement of lease with his erstwhile tenants in derogation of the rights of the auction-purchaser, On the contrary, according to the plaintiff him-self, be entered into a promiscuous arrangement with the auction purchaser in order to defeat his creditors. I do not, therefore, see how such a promiscuous arrangement made with the auction. purchaser can be regarded in law or equity as the starting point for the statute of Limitation. (8] It is in evidence that shortly after the revenue sale, the auction-purchaser had his name entered in the mutation register, and it is to be supposed that the revenue authorities entered the name of the auction purchaser in the mutation register in accordance with the provisions of the Assam Land and Revenue Regulation. Some years later the plaintiff attempted to have his name entered in the mutation register, but failed. It is true that the finding of the lower Appellate Court is that the plaintiff was in possession, but it was never the case of the plaintiff that he was in physical possession of the estate. His case was that he was in possession of the estate through his tenants. But the possession of the tenants as also that of the plaintiff through his tenants came to an end on the data of the auction-sale in Octo­ber, 1923, in virtue of the provisions of S. 71 of the Regulation. His case was that he was in possession of the estate through his tenants. But the possession of the tenants as also that of the plaintiff through his tenants came to an end on the data of the auction-sale in Octo­ber, 1923, in virtue of the provisions of S. 71 of the Regulation. In point of law, therefore, there was no justification for the Lower Appellate Court to hold that the plaintiff was in possession through his tenants, in the absence of a fresh agreement of tenancy between the plaintiff and his tenants on or after the auction-sale. There was no such agreement and Bone is alleged. There is no evidence that after the auction sale the tenants remained in possession under the plaintiff. The tenants' possession, if any, was wholly inde­pendent of the plaintiff The plaintiff, therefore, cannot be regarded as being in possession of the estate through his tenants. On the admitted or proved facts, therefore, the Lower Appellate Court has erred in law, having regard to the provisions of S. 71 of the Assam Land and Revenue Regula­tion, in holding that the plaintiff was in possession, whether by himself or through his tenants, after the date of the auction-sale. [9] It is significant that in 1941, 8 years after the auction sale, the plaintiff accepted a deed of relinquishment executed by defendants 1 and 2, the successors-in-title of the auction purchaser. It is settled law that, to constitute adverse posses­sion, there must be an intention to hold the estate as an owner. A reasonable inference from the act of the plaintiff in accepting a deed of relinquishment from defendants 1 and 2 in 1941, before the expiry of the statutory period, is that the plaintiff did not hold the estate as an owner until then. On the facts of this case, especially bearing in mind the promiscuous arrangement, the plain­tiff's acceptance of the deed of relinquishment from defendants l and 2, before the expiry of 12 years, is, in my opinion, to be regarded as an acknowledgment of their title. Indeed what was done in 1941 by the plaintiff on the one hand and defendants 1 and 2 on the other, can properly be referred to the promiscuous arrangement. Indeed what was done in 1941 by the plaintiff on the one hand and defendants 1 and 2 on the other, can properly be referred to the promiscuous arrangement. Proper­ly interpreted, the promiscuous arrangement to which I have referred, means that the auction-purchaser was the owner of the estate until such time as the plaintiff succeeded in paying off his creditors, and that the plaintiff's possession-whe­ther by himself or through his tenants, was to be regarded as a kind of permissive possession only. [10] My conclusion then is that the finding of the Lower Appellate Court that the plaintiff has acquired title to the estate by adverse possession, is erroneous in law and must be set aside. [11] The result is that the judgment of the Lower Appellate Court is set aside and that of the Trial Court is restored with costs throughout. The appeal is allowed accordingly. [12] Ram Labhaya J-This is an appeal from the order of the Sub Judge, L. A. D., dated 26th June 1949 by which the order of the Munsiff of Gauhati dated 11th June 1948 dismissing plain­tiff's suit with costs was reversed and plaintiff's suit decreed. Contesting defendants 1 and 2 have appealed [13] The suit out of which this appeal arises was for a declaration that the plaintiff was the owner of the land in dispute by adverse posses­sion and also for confirmation of his possession. [14] Plaintiff's ease was that the land in dis­pute measuring 35 B. 21/2 L. was the undivided rd share of the entire land measuring 105 B, 8 L. covered by SO years periodic N. K. patta No. 9. He found himself in embarrassed circumstances in 1932 when his creditors pressed him for payment of his dues. The lands of patta No. 9 were the only source of his livelihood. He consulted Lakhinath Sarma, his friend, who is represented in this litigation by defendants 3 and 4 and ac lording to his advice allowed the land of patta No. 5 to fall into arrears of land revenue in order that it may be put up for sale. According to the arrangement that he had made with Lakhinath, he was to purchase the land at the auction with plaintiff's money. In pursuance of this arrange­ment the land revenue that accrued due was not paid and the land was sold on 11th October 1933. According to the arrangement that he had made with Lakhinath, he was to purchase the land at the auction with plaintiff's money. In pursuance of this arrange­ment the land revenue that accrued due was not paid and the land was sold on 11th October 1933. It was purchased by Lakhinath ostensibly, though in reality he was benamidar for plaintiff who had supplied the consideration for the sale. Lakhinath did not take possession of the pro­perty from the plaintiff either through Court or privately, though on the basis of sale his name was mutated in the revenue records as an owner. Plaintiff later succeeded in paying off his credi­tors but by this time Lakhinath had died. B(. fore his death Lakhinath had communicated the arrangement to his wife, mother of defendants 3 and 4, and instructed her to recovery the entire patta land to the plaintiff. She, acting as a guardian of defendants 3 and 4, relinquished title to the lands on 8th August 1941 by a registered deed of relinquishment. Defendant 5, a brother of Lakhinath, indicated his assent to the relin. quishment by attesting the deed. Dinanath Sarma was another brother of Lakhinath. Defendants 1 and 2 are his sons. After the death of Lakhinath, there was some friction between the three branches of Lakhinath's family. Dinanath, father of defendants 1 and 2 got his name mutated in respect of £rd share of the lands of patta No. 9 evidently on the basis of that the land had been purchased by Lakhinath on behalf of the family of which he was a member. Plaintiff tried to obtain cancellation of the mutation but did not succeed. He then instituted the suit claiming a declaration of title and confirmation of his possession. In para. 7 of the plaint it is distinctly stated that plaintiff's right and title be declared by adverse possession and his posses­sion be confirmed. [15] Defendants 1 and 2 alone resisted the k claim. Their case was that Lakhinath purchased the property not as the result of any arrange­ment -with the plaintiff as his benamidar, but as a beneficial owner with funds belonging to the joint family of which he was a member. The allegation of the plaintiff that he supplied the sale consideration to Lakhinath was repudiated. Their case was that Lakhinath purchased the property not as the result of any arrange­ment -with the plaintiff as his benamidar, but as a beneficial owner with funds belonging to the joint family of which he was a member. The allegation of the plaintiff that he supplied the sale consideration to Lakhinath was repudiated. They also claimed that the land purchased re­mained in the joint possession of the family and later on when there was some friction in the family, the father of defendants 1 and 2 got his name mutated in respect of 1/3rd share in the land. Defendants claimed further that they were in possession of their 1/3rd share through tenants. [16) The two issues with which we are con­cerned at this stage of the case are as follows : Issue No. 2 : Whether the father of defendants 1 and 2 was owner of the suit land as his £rd share as alleged in the written statement ? Issue No. 3 : Whether the plaintiff is entitled to a decree as claimed ? [17] The learned Munsiff found issue No. 2 in favour of defendants 1 and 2. Under Issue No. 8, he dealt with the plaintiff's claim, the basis of which was adverse possession. His finding on this issue was against the plaintiff. As a result of these findings, he dismissed the suit. On the date of argument in the trial Court, an additional issue was framed, This issue involved the ques­tion whether the suit was maintainable under the provisions of the Assam Land and Revenue Regulation ? The learned Munsiff held that S. 86 of the Regulation was a bar to the suit to the extant that it was on the basis of any arrangement for a benami purchase as alleged in the plaint. [18] The learned Sub-Judge on appeal held that S. 86 would be a bar to the suit if plaintiff claimed any relief on the basis that Lakhinath was a beramidar and he himself was the beneficial owner. He, however, was of the view that though facts about the arrangement between him and Lakhinath had been stated in the plaint, the claim to ownership of the property was not based on the alleged benami purchase but that it rested on adverse possession. He, however, was of the view that though facts about the arrangement between him and Lakhinath had been stated in the plaint, the claim to ownership of the property was not based on the alleged benami purchase but that it rested on adverse possession. The plaintiff in his view had to state these facts to explain how Lakhinath after purchasing the property osten­sibly, did not take possession and allowed plain­tiff to remain in adverse possession thereof. He, therefore, addressed himself to the question of adverse possession taking it as the only point that arose for determination in the case. His finding was that plaintiff was in adverse possession from the date of the sale and as his posses­sion before suit had continued uninterrupted for over 12 years Lakhinath and all those who claim­ed through him lost their title in the property and plaintiff's possession ripened into title on the expiry of 12 years from the date of sale. He found that plaintiff had been in exclusive pos­session of the entire land of patta No. 9 and de­fendants were not in possession of any part. [19] The only serious question requiring deter­mination at this stage of the case is whether the plaintiff has acquired title in the land in dispute by adverse possession. The finding of the learned Sub Judge is that plaintiff has been in possession of the land of the entire patta since the date of sale. [20] The correctness of this finding has been questioned. The finding is on a question of fact and can be asailed only on grounds mentioned in S. 100, Civil P. C. The learned counsel has not been able to give us any valid reason for dis­carding this finding. No error of law or proce­dure has been pointed out which would go to vitiate it. The evidence bearing on the question of actual possession has all been considered. Lakhinath never got possession of the property through Court. We have not been referred to any evidence showing that he ever was in pos­session during his life time. His representatives defendants 3 & 4 and his brother a coparcener acknowledged in 1941 that plaintiff had continued in possession in spite of the sale. Contesting defendants do not suggest that land was partitioned. Plaintiff gave evidence of his possession through tenant and also about payment of land revenue. This evidence has been relied on. His representatives defendants 3 & 4 and his brother a coparcener acknowledged in 1941 that plaintiff had continued in possession in spite of the sale. Contesting defendants do not suggest that land was partitioned. Plaintiff gave evidence of his possession through tenant and also about payment of land revenue. This evidence has been relied on. The learned counsel for the plaintiff-respondent has not been able to point to any evidence bearing on the possession of defendants which has been left out of consideration. In these circumstances I see no justification for differing from the finding on the question of possession. But, even if the finding were erroneous, it would not be open to challenge in second appeal. It remains to be considered whether this possession has ripened into title. In this connection the learned counsel for the appel­lant has urged that possession of the plaintiff if it at all became adverse, it would be so only from 8-8 1941, the date on which the deed of relinquishment was executed by defendants 3 & 4 in favour of the plaintiff. The learned counsel pointed out that the learned Sub-Judge had omitted to consider the effect of this document and it was mainly by reason of this omission that he challenged the correctness of the finding on the question of adverse possession. [21] The contention raised is not well founded. The possession of the plaintiff in the circumstances of this case would be adverse from the date of the sale. Lakhinath vras the purchaser at the sale. Plaintiff was a defaulter. The moment the sale took place, the possession of the defaulter (plaintiff) became adverse. He had lost title to the land before the sale. By the reason of the sale, the title was transferred to the purchaser and this would be so even if Lakhinath pur­chased the property with plaintiff's money as his benamidar, as S. 86 of the Assam Land & Revenue Regulation forbids the granting of any relief to a beneficial owner on the ground that the certified purchaser was a benamirar. Lakhinath thus became the owner by operation of law even if the sale consideration was supplied by the plaintiff. He bad the right to immediate possession. Plaintiff if he continued in possession after the sale was in possession adversely to the true owner. Lakhinath thus became the owner by operation of law even if the sale consideration was supplied by the plaintiff. He bad the right to immediate possession. Plaintiff if he continued in possession after the sale was in possession adversely to the true owner. The finding of fact arrived at is that he was in possession till the institution of the suit. His adverse possession continued un­interrupted for over 12 years. The result vas that the auction purchaser and those claiming title through him lost their title which was reacquired by the plaintiff at the expiry of 12 years. No further overt act after the sale was necessary to make the possession of the defaulter adverse to the purchaser. When the purchaser at a revenue Side acquires title by sale, the defaulter who con­tinues in possession after the sale is a trespasser and his possession is adverse to the purchaser from the date of sale. What is sold at a revenue sale is not the right, title and interest of the defaulter but the interest of the Government subject to the payment of Government assessment. The title of the defaulter is determined on his failure to pay the Government assessment. Period of limitation for adverse possession against the purchaser at such a sale would, therefore, run from the date of sale. [22] In Secretary of State v. Wazed Ali Khan, A.I.R. (8) 1921 Cal. 687. the property was sold under the Bengal Revenue Sale Law. It was held that 'in a sale held under Act XI [ll] of 1859, what is sold is not the interest of the defaulting owner which is determined on the failure to pay the Govern­ment assessment but the interest of the Crown subject to the payment of the Government assess­ment, and therefore, the period of limitation for adverse possession against the purchaser at such a sale only commences to run from the date of the sale." [23 This view was based on an earlier Privy Counsel case reported in Surjakanta Acharya v. Sarat Chandra, A. I. K (i) 1914 p. c. 82. Their Lordships of the Privy Council also held that "under the provisions of Act XI [ll] of 1859, revenue sales are held free of encumbrances and as the right by adverse possession claimed is at its best only an encumbrance on the Mahal pur­chased limitation runs against the purchaser only from the date of the sale and if the suit is within 12 years from that date it is not barred." [24] It is noteworthy that a person in posses­sion could not according to this view avail of his adverse possession before sale against a purchaser when property is sold for arrears of land revenue. But from the date of sale his possession would be adverse to the purchaser. The sale in this case was under the Assam Land & Revenue Regulation. Under S 71 of the Regulation the defaulting estate is sold free of all encumbrances. The defaulting estate becomes liable to sale under S. 70. The authorities referred to above fully cover this case. The period of limitation against the purchaser, therefore, commenced to run from the date of the sale. There is DO force in the contention that possession became adverse when the deed of relinquishment was executed. The deed of relinquishment was merely an acknowledgment of a title which the law did not recognise. The execution of the deed did not affect the nature of possession which had already become adverse. The relinquishment was merely a pre­mature acknowledgment of title, though it amounted to a recognition of the fact that the plaintiff was in possession as an owner, and as 12 years had not elapsed since the date of sale, this deed of relinquishment by itself did not operate as a transfer of title to the plaintiff. Defen­dants are claiming through Lakhinath. If posses­sion was adverse against Lakhinath before the deed of relinquishment it would be adverse against them also. In these circumstances the deed of relinquishment would not give a starting point for limitation against the purchaser of the pro­perty. I have no doubt that in the absence of any arrangement under which Lakhinath is alleged to have purchased the property, the pos­session of plaintiff would have been adverse to his coparceners from the moment of sale, but even if Lakhinath purchased the property as a benamidar, the position would not be altered. I have no doubt that in the absence of any arrangement under which Lakhinath is alleged to have purchased the property, the pos­session of plaintiff would have been adverse to his coparceners from the moment of sale, but even if Lakhinath purchased the property as a benamidar, the position would not be altered. The arrangement not being enforceable under the law, Lakhinath was entitled to the property. Plaintiff was holding the property-in his own right and for his benefit. Lakhinath knew it. Plaintiff's possession, therefore, was adverse to his knowledge There is no suggestion in this case that after the sale plaintiff remained in posses­sion as an agent or lessee or tenant on behalf of Lakhinath or on behalf of the contesting defen­dants. His possession, therefore, must be taken to be adverse whether Lakbinath purchased the property as a benamidar or as a beneficial owner. There seems to be no escape from this position. I have, therefore, no hesitation in holding that the plaintiff remained in adverse possession of the property for over 12 years and Lakhinath and all those who derived title through him lost their remedy by suit to obtain possession of the property. Where right to obtain property is lost by efflux of time the right to property itself is extinguished under S 28 Limitation Act. The result is that on the expiry of a period of 12 years from the date of sale the purchaser and all those who claim through him not only lost their remedy but also lost their title in the property. The process which resulted in the loss of the rights of the auction purchaser and his representatives also resulted in the acquisition of the same rights by the person in possession. The extinction of the title of the rightful owner operates to give a good title to the wrong-doer for title to property cannot remain in a state of suspense. The authority in support of this view is abundant. It found clear expression in Akhauri Haliwant v. Deo Narain, A. I. R (28) 1941 Pat 181, Panjaram Jagoba v. Bam Ghintoo. A. I. R. (27) 1940 Nig. 49 (F. B.), Jitendra Kumar v. Debendra Chandra, A. I. B (26) 1939 Cal. 50 and Masjid Shahid Ganj v. Shiromani Gurdwara Prabandhak Committee, Amritsar, A. I. R (25) 1938 Lah 369 (F B.) Refer. A. I. R. (27) 1940 Nig. 49 (F. B.), Jitendra Kumar v. Debendra Chandra, A. I. B (26) 1939 Cal. 50 and Masjid Shahid Ganj v. Shiromani Gurdwara Prabandhak Committee, Amritsar, A. I. R (25) 1938 Lah 369 (F B.) Refer. Jence may be made in particular to Badri Chaudhari v. Harbans Jha, A.i.E (6) 1919 Pat. 447, in which it was laid down that a fraudulent transfe­ror continuing in possession for over 12 years was , entitled to a declaration or recovery of possession been if fraud was carried out. In this case the principle embodied in S. 28, Limitation Act with all that it implies was applied to a case which was very similar to the case of the plaintiff before us. [25] My conclusion, therefore, is that plaintiff has acquired title on the basis of adverse posses­sion and he is, as such, entitled to a decree as held by the learned Sub- Judge. The appeal, therefore, must fail and should be dismissed with costs. [26] Deka J. - This appeal has come to me for hearing on a difference between the Hon'ble the Chief Justice and the Hon'ble Ram Labhaya J. under cl. 36 of the Letters Patent of the Calcutta High Court which is operative with regard to the High Court of Assam. [87] This is a second appeal arising from the judgment and decree passed by the learned Sub­ordinate Judge, L. A D., setting aside the judg­ment and decree passed by the Munsiff at Gauhati. The suit relates to an area of 35 bighas and odd leohas of land covered by N K. Periodic Patta No. 9 of village Baruajani in Mauja Pubpar. The Patta originally stood for 105 bighas and 8 lessas In the name of plaintiff Bhaba Nath Sirma but the land was put up to sale for default in pay­ment of revenue on 11-8 3933 and the same was purchased by Lakhinath Sarma, father of defen­dants 3 and 4. The plaintiff's case is that he allowed the land to be pat up to Revenue sale because there were several claims against him by many of the creditors and he purchased the land in benami in the name of Lakhinath in the Reve­nue sale and continued in possession. Lakhinath got his name muttted with respect to the land Boon after the Revenue sale in 1933 but did not disturb the plaintiff s possession. Lakhinath got his name muttted with respect to the land Boon after the Revenue sale in 1933 but did not disturb the plaintiff s possession. Lakhinath Sarma had two other brothers, Dinanath, father of 'defendants 1 and 2 and one Chandranath. Lakhi­nath and Dinanath are both dead. Chandranath, defendant 5 is still alive. Dinanath got his name mutated with respect to 3rd of the land covered by Patta No. 9 on 30-6 1941 and the heirs of Lakhinath, defendants 3 and 4 got their names mutated with respect to 3rd share in the Patta on 6 7-1943. But Chandranath made no attempt to have his name recorded with respect to the patta land. The mother of defendants 3 and 4 who was the widow of late Lakhinath Sarma, executed a deed of release (Ex. l) with respect to the entire patta land viz. 105 bighas and 8 kssas on 8-8-1941 purporting to execute the said deed as a guardisn of defendants 3 and 4, who were then minors. The plaintiff made an attempt to have his name mutated with respect to the entire patta land in 1946, but his attempt failed possibly due to the opposition of defendants 1 and 2 and the plaintiff thereafter brought this suit on 26-2-1947 for a declaration of his title and restitution of posses­sion with respect to 3rd of the patta land claimed by the heirs of Dinanath, i. e., defendants 1 and 2, who have contested this suit. [28] It is conceded on behalf of the plaintiff that his suit for declaration of title or restitution of possession of the patta land on the ground that Lakhinath Sarma was a benamidar, would be hit by S. 86, Assam Land Revenue Regulations, and it is accepted that the plaintiff can succeed with respect to his claim only on his proving that he held the entire patta land exclusively and pos­sessed the same adversely to all others, for a leng­th of time exceeding 12 years. The learned Munsiff held after discussing the evidence that the plain, tiff has failed to prove his adverse possession for more than twelve years with respect to the entire patta land or the land in suit. The learned Munsiff held after discussing the evidence that the plain, tiff has failed to prove his adverse possession for more than twelve years with respect to the entire patta land or the land in suit. The learned Sub­ordinate Judge set aside the finding of the learned Munsiff and held that in his opinion the plaintiff had been able to prove that he had been posses­sing the laud adversely to the true owner for more than twelve years and had thus acquired a good title to the land involved in the suit. The learned Subordinate Judge, however, premised this issue in a defective manner. He observed in his judgment that "absolute title by adverse possession can be established only on proof of continuous possession of the property for an un­interrupted period of 12 years." In my opinion the proposition is not correctly stated. Possession to be adverse, must not only be continuous but it| should be visible, exclusive, and hostile. The learned Subordinate Judge failed to discuss these aspects of the possession alleged to be exercised by the plaintiff and was wrong in coming to his find­ing that the possession by the plaintiff was in any sense hostile or adverse to the true owner or that he held it exclusively for more than 12 years. The learned Subordinate Judge himself finds that the plaintiff possessed the land after the Revenue sale in 1933 in pursuance of an agreement with Lakhi­nath, though the text or tenor of that agreement is not made explicit His Lordship the Chief Jus­tice in his judgment has characterised this agree­ment as some sort of a 'promiscuous arrangement,' the terms of it not being definitely known. Be that as it may, it is clear even from the plaint itself that till the debts of Bhaba Nath were liquidated, he had neither the strength nor the courage to assert possession with respect to the land openly or publicly and he got the so-called re-conveyance by the deed of relinquishment only in 1941 when he claims to have liquidated his liabilities. This goes to show that there could be no hostile and visible possession with respect to the land by the plaintiff till he got that document executed in his favour by the widow of Lakhi­nath In this view, his adverse possession with respect to the patta land does not date prior to the date of relinquishment in 1941. This goes to show that there could be no hostile and visible possession with respect to the land by the plaintiff till he got that document executed in his favour by the widow of Lakhi­nath In this view, his adverse possession with respect to the patta land does not date prior to the date of relinquishment in 1941. I am not at all satisfied with the finding of adverse possession as arrived at by the learned Subordinate Judge. His judgment is not a satisfactory judgment of rever­sal. The learned Munsiff has discussed in his judgment that the plaintiff made an attempt to prove possession with respect only to 26 bighas of land by two of his tenants P. Ws. 3 and 4 and there was no attempt to prove possession with respect to the entire patta land on the basis of which the plaintiff asserted his perfection of title with respect to the land in dispute. The learned Subordinate Judge did not discuss at all the evidentiary value of the statements made by these two witnesses P. Ws. 3 and 4. The evidence is totally lacking to prove except the bare statement of the plaintiff, that he exercised possession with respect to the patta land since the date of the Revenue sale in 1933. Stricter proof is necessary to establish acquisition of title by adverse possession for the statutory period and I have no hesi­tation in saying that the evidence led by the plaintiff on this point is far from satisfactory. It appears from the Revenue receipts filed on behalf of the plaintiff [vide Exs. 2 (l) and 2 (3)] that the plaintiff himself paid revenue in 1946 and 1947 in the name of Dinanath and others. That goes to show that he did not deny or dispute openly the title of the father of defendants 1 and a with res­pect to the patta land till the institution of the suit. [29] There is another aspect of the case which the learned Subordinate Judge did not at all consi­der. He seemed to accept the plaintiff's story that [he continued to possess the land through his old [tenants even after the date of the Revenue sale in favour of Lakbinalh. Section 71, Assam Land Revenue Regulations, provides that in a Revenue sale the land is sold free of all encumbrances previously created thereon by any other pardon than the purchaser. He seemed to accept the plaintiff's story that [he continued to possess the land through his old [tenants even after the date of the Revenue sale in favour of Lakbinalh. Section 71, Assam Land Revenue Regulations, provides that in a Revenue sale the land is sold free of all encumbrances previously created thereon by any other pardon than the purchaser. But he is precluded from ejecting any tenant having a right of occupancy under the rent law for the time being in force. The tenants on the land, therefore, became the tenants of Lakhinath with effect from the date of sale by operation of law and unless Bbaba Nath, the plaintiff succeeds in establishing that he made fresh contracts with these tenants, he cannot be said to continue the same rela­tion with the tenants who were in the land in dispute. The plaintiff has never attempted to prove that but he adduced evidence only to prove that he was in possession of 26 bighas of land by the two tenants he examined. Mr. Das who appeared on behalf of the respondent, urged before me that the plaintiff could succeed if he could establish adverse possession with respect to the 35 bighas only that is, the area in dispute in the present suit. There being no partition amio. able otherwise with regard to the patta land, the plaintiff cannot succeed in his suit even by esta­blishing the adverse possession with respect only to a portion of the patta land. [30 I must hold therefore on both these consi­derations, viz., that the possession of the plaintiff could not in any view be adverse prior to 1941 on his own showing and that there is dearth of evi­dence to prove that the plaintiff possessed the entire land adversely all through as alleged. The learned Subordinate Judge was wrong in coming to his finding as to adverse possession without considering the ingredients thereof and his judgment and decree are liable to be set aside. [31] I have had the advantage of reading the judgments of the Hon'ble the Chief Justice and Earn Labhaya J. and with great respect I have to differ from the view taken by the Bam Labhya J. I have already given my views for agreeing with the Hon'ble the Chief Justice on the two points viz. [31] I have had the advantage of reading the judgments of the Hon'ble the Chief Justice and Earn Labhaya J. and with great respect I have to differ from the view taken by the Bam Labhya J. I have already given my views for agreeing with the Hon'ble the Chief Justice on the two points viz. (l) the starting point of limitation, if any, from 1941 and (2) the absence of evidence of adverse possession for more than twelve years with res­pect to the land in dispute. Earn Labhaya J. held that the starting point of limitation started from the date of the Revenue sale. That might have been so if the facts proved were otherwise. The statement in Para. 3 of the plaint, where the plain. tiff says that he liquidated his debts in 1940 and then only he could ask for and obtain the deed of relinquishment by the widow of Lakhinath, shows that he did not assert hostile title with respect to the land openly at least till then. The mutation of Dinanath with respect to 3rd share in the patta land has also some significance. An entry in the record of rights is presumably correct under S. 41 (l), Assam Land Revenue Regulations and read with 8. 53 of the same Regulation, a mutation entry in the record of rights implies a presumption of possession in favour of the record­ed proprietor and as such, possession must be presumed in favour of Lakhinath as well as of Dinanath unless rebutted. The plaintiff admitted, the correctness of these entries by having the land revenue paid in the name of these two persons as appears from the Revenue receipts proved in this case. The mutation of the heirs of Lakhinath at a subsequent stage negatives the plaintiff's story that even defendants 3 and 4 had not exercised acts of possession with respect to the land in dispute. In my opinion it tends to affect the bona fides of Ex. l, the so-called deed of relinquishment, in favour of the plaintiff by the mother of defendants 3 and 4, Taking the facts as a whole, it cannot be said that the plaintiff had perfected his title with respect to the disputed ' land by adverse possession for the statutory period. l, the so-called deed of relinquishment, in favour of the plaintiff by the mother of defendants 3 and 4, Taking the facts as a whole, it cannot be said that the plaintiff had perfected his title with respect to the disputed ' land by adverse possession for the statutory period. Earn Labhaya J. further accepted the Subordinate Judge's view that there is no evi­dence to show that Lakhinath entered into posses­sion of the land by an application to the Revenue authorities but in the face of S. 85 (l), Assam Land Revenue Regulations which provides that the Deputy Commissioner shall put the purchaser in possession of the property sold and shall grant him a certificate, the issue of which is not denied in this case, a further application by or proof of delivery of possession in favour of the auction purchaser becomes wholly unnecessary. It must be assumed that everything required to be done under the law was duly done and Lakhinath had his title perfected with respect to the land he purchased in auction sale whether in benami or otherwise after the issue of sale certificate and registration of his name with respect to the entire land covered by the defaulting patta. [32] The plaintiff in my opinion, failed to prove his case and I agree with the learned Munsiff that the plaintiff's suit is liable to be dismissed. I, in agreement wish my Lord the Chief Justice, direct that the appeal be allowed with costs against res­pondent Bhaba Nath Sarma. The suit will stand dismissed with costs throughout. Appeal allowed.