JUDGMENT 1. IN the suit, out of which this appeal arises, a prayer for declaration of the title and recovery of possession and injunction was made by the plaintiff. The plaint case was that the properties described in the schedule to the plaint originally belonged to one sri Md. Yusuf Mondal. He held the same at a jama of Rs. 74/1/- under the landlords Mahendra Nath Mukherjee, ramdas Mukherjee and Hooghly Trust limited. About 30 years ago Yusuf went to America without making any arrangement whatsoever for his landed properties and as such they lay follow and in consequence huge arrears of rent were accumulated in the landlord's sherista. It was further stated in the plaint that inspite of search for the tenant the landlords could not find yusuf and in 1344 B. S. the landlords brought the lands which remained as abandoned, into khas possession and possessed the same till 1348 B.S. : thus after possessing for about 4 years they settled the land to Ayub Ali Sarkar. The said settlement was made by mahendra Nath Mukherjee on the 28th chaitra, 1349 B.S. at a jama of Rs. 59-4 annas by means of an Amalnama. The other landlords also settled their shares with Ayub at a jama of Rs. 7-6-6 p. each. Since that settlement Ayub was possessing the lands all along and sometime in 1955 he was killed by some decoits leaving the plaintiffs as his sole heirs. It was further contended that the plaintiff became direct tenants under the State of West Bengal after the vesting in the year 1362 B.S. Some properties were recorded in the r. S. operation in the name of defendant No. 1 The plaintiffs preferred an objection under section 44 (1) of the west Bengal Estates Acquisition Act. The same was corrected though the defendant No. 1 was written in R.S. record of rights as in forcible possession in some of the properties. For the reasons stated the plaintiffs were forcibly driven out of the land in suit and as such they were compelled to file the suit in question. According to the plaintiff, defendant No. 1 abandoned the suit property and his title was lost by adverse possession by the landlord under the provision of Article 3 schedule 3 of the Bengal Tenancy Act as well as by adverse possession by Ayub ali for more than 12 years. 2. According to the plaintiff, defendant No. 1 abandoned the suit property and his title was lost by adverse possession by the landlord under the provision of Article 3 schedule 3 of the Bengal Tenancy Act as well as by adverse possession by Ayub ali for more than 12 years. 2. DEFENDANT No. 1 did not appear in the trial court but defendant Nos. 2 and 3 who are his daughters sons entered appearance and contested the suit. In the lower appellate court however, defendant No. 1 figured as one of the appellants. The defence taken by defendant nos. 2 and 3 was that Md. Yusuf went to America in the year 1913 leaving behind his mother, wife, minor sons and a daughter. After his departure his properties were looked after by his mother and wife. In course of time however, the mother, his wife, daughter and minor sons all died. After their death defendant Nos. 2 and 3 who were minor sons of the daughter of Yusuf lived with their father in a different village Harat. Ayub Ali was a relation of defendant No. 1. He was entrusted by Yusuf to look after the lands on his behalf. Accordingly Ayub was looking after the land as trustee. The defendants stoutly denied that Ayub Ali took settlement of the lands from the landlords or that Yusuf ever abandoned the same. It was contended that Ayub Ali's possession, if any, must be construed to be the possession on behalf of Yusuf. 3. THE matter came up for hearing before the learned Subordinate Judge, first Court, Hooghly in Title Suit No. 41 of 1961 and the said suit was decreed. Against the said decree and judgment title Appeal No. 386 of 1966 was filed by the defendants. The learned additional District Judge, who heard the appeal dismissed the same and the judgment and decree passed by the learned Subordinate Judge were affirmed. Against the said decision this second appeal has been preferred. 4. MR. Sanyal, learned Advocate for the appellants has mainly attacked the finding of the courts below on two grounds, namely, that the adverse finding recording the case of entrustment of the properties by defendant No. 1 in favour of Ayub Ali is not based on proper appraisal of evidence and secondly, the finding regarding adverse possession is not based on the consideration of legal principles involved in such matters. Mr. Mr. Ghosh, on the other hand, submits that the first point raised cannot be urged as the said point has been negatived by both the courts below and as the same question is mainly a question of fact the same has been concluded by concurrent finding of both the courts. Regarding adverse possession Mr. Ghosh submits that both the courts below were justified in holding that the right of defendant No. 1 in the property in question was lost by a special law of limitation under the bengal Tenancy Act and also by adverse possession under Article 144 of the limitation Act. 5. IT has been urged on behalf of the appellants that the courts below have erred in not relying on the series of letters by which correspondence alleged to have been made by defendant no. 1 and Ayub showing that Ayub was entrusted to look after the properties. Both the courts were reluctant to rely on those letters that according to us have also been made on cogent reasons. As such the said finding is not liable to be interfered with in this second appeal. The said finding being based on fact and the said finding being concluded by both the courts below, we are afraid we cannot enter into the same and to appraise the evidence afresh. We are fortified with the decision in the case of Deity pattabhiramaswamy v. S. Hanymayya and Others reported in A.I.R. 1959 S.C. p. 57 wherein their Lordships held : "the provisions of S. 100 are clear and unambiguous. There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however, gross the error may seem to be. Nor does the fact that the finding of the first appellate court is based upon some documentary evidence make it any the less a finding of fact. A judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate court based upon an appreciation of the relevant evidence." As such the first point raised by Mr. Sanyal fails. 6. MR. Sanyal has also submitted that it is absurd to think that defendant no. 1 would abandon the properties when he left India for America leaving his mother, wife, son and daughter and daughter's son. Sanyal fails. 6. MR. Sanyal has also submitted that it is absurd to think that defendant no. 1 would abandon the properties when he left India for America leaving his mother, wife, son and daughter and daughter's son. It has transpired that after the departure of defendant No. 1 his mother, wife, son and daughter died. Defendant Nos. 2 and 3 being the sons of the daughter had been living in their father's house elsewhere. It was noticed that during that period there was a great depreciation and deficiency and crops were not fetching adequate price. For the reasons stated nobody was interested to keep the properties by paying rent to the landlords and in consequence the same was abandoned. Whatever might be the reasons, it has been established and it has so been held by both the courts below that defendant No. 1 abandoned the property. For the reasons already stated we need not further enter into that matter. Mr. Sanyal has submitted that in any view of the matter the said abandonment has not been treated as one abandonment under section 87 of the bengal Tenancy Act and as such the finding of abandonment by the learned courts below ought not to be accepted. 7. IT has never been urged by mr. Ghosh that the said was a case of abandonment in terms of the provisions of that section. Moreover, provisions of section 87 of the Bengal Tenancy act are not the only mode of abandonment. We are also of the view that a person may abandon his holding and he loses his right therein either by special law of limitation under Article 3 of schedule 3 of the Bengal Tenancy Act or by adverse possession under Article 144 of the Limitation Act as the case might be. 8. IN the instant case both the courts below have held that the zamindar took possession of the land and had the same cultivated in khas for four years and then after that those lands were settled to Ayub. The said finding being a finding of fact it is binding on the parties and we are not in a position to reconsider the same we are afraid that we cannot interfere with the said finding in the second appeal for the reasons already stated. The said finding being a finding of fact it is binding on the parties and we are not in a position to reconsider the same we are afraid that we cannot interfere with the said finding in the second appeal for the reasons already stated. Even if the said contention of plaintiffs fail there is another hurdle for the defendants to cross. Both the courts below after appraisal of the evidence both oral and documentary have found that Ayub had possessed the property in question for more than 12 years as such the defendant No. 1's right, if there was any, must have been lost. 9. MR. Sanyal has next argued that all the necessary ingredients of adverse possession have not been established in this case. According to him, defendant No. 1 admittedly have been living out of India and as such possession by the landlord or by Ayub was not known to defendant No. 1, accordingly the question of adverse possession cannot arise in this case. The said contention is not acceptable to us. There is no law which enjoins the duty on the person who asserts adverse possession to bring the same to the notice of the competitor to perfect a title by adverse possession. One must prove that possession required was adequate in continuity, publicity and in assertion of his own right against the real owner. In other words the possession must be overt and not taken in concealment. It has to be seen whether under the circumstances of the case the competitor was in a position to know, if he was vigilant to know the actual possession regarding the property in question. Even if a person goes out of India either voluntarily or under compulsion, he as a reasonable man should make some arrangement to look after his property. If a person enters into such land openly and continue in possession in the assertion of his own rights and completes the required number of years in such possession, his right is perfected under section 28 of the Indian limitation Act. In such a case it is no answer to say, that the person dispossessed was not in the village, to know the act of dispossession. 10. THIS question as to how the title of a person can be perfected by adverse possession came up for decision in different courts at different times. In such a case it is no answer to say, that the person dispossessed was not in the village, to know the act of dispossession. 10. THIS question as to how the title of a person can be perfected by adverse possession came up for decision in different courts at different times. The said question was considered by the Judicial committee in the case of Secretary of state v. Debendra Lal Khan reported in A.I.R. 1934 Privy Council 23. Therein the plaintiff claimed his absolute right in certain fisheries by adverse possession as against the Secretary of state for India. Their Lordships considering all the aspects held like this: "for adverse possession it is sufficient that the possession is overt and without any attempt at concealment so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening." The said principle has also been accepted by their Lordships of the Judicial Committee in the case of maharaja Srishchandra Nandy and others v. Baijnath Jugal Kishore (firm) reported in A.I.R. 1935 Privy Council 36. The observation of their Lordships is to the effect: "the possession required must be adequate in continuity, publicity and in extent to show that it is possession adverse to the competitor. The classical requirement is that the possession should be nec vi clam nee precardio. It is not necessary that the adverse possession should be brought to the knowledge of the person against whom it is claimed. It is sufficient that the possession should be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening." 11. THE principle enunciated by their Lordships is the complete answer to the question posed by Mr. Sanyal. We are also of the view that there was no duty cast upon anybody to bring the factum of dispossession to the notice of defendant No. 1. As a prudent man he ought to have made arrangements to look after his properties and to get information as to what was happening there. A similar point also came up for consideration before ramakrishnan, J. in the case of Vaithilinga gounder v. Kuppusami Gounder reported in A.I.R. (1963) Madras 137. As a prudent man he ought to have made arrangements to look after his properties and to get information as to what was happening there. A similar point also came up for consideration before ramakrishnan, J. in the case of Vaithilinga gounder v. Kuppusami Gounder reported in A.I.R. (1963) Madras 137. It was a case in which the plaintiff alleged that he had to go out of India for certain purpose and as such he had no knowledge as to the factum of dispossession. The same matter came up before His lordship for decision. The following is the decision arrived at by his Lordship : "a person cannot be permitted to urge for the purpose of saving the bar of limitation, that either business or compulsion took him far away from the shores of India, and that therefore there was no opportunity or means for him to know that a trespasser had occupied his property in his absence. The fact that he was not actually aware of the fact that other persons were in adverse possession of the property is also irrelevant. The test is whether he exercised due vigilance in regard to what was happening. Due vigilance will not cover a case where a person is so negligent of his own interest during ms absence abroad as to leave no one to look after his properties. If certain persons in whom he places implicit faith act against the interest, it will not caver the requirements of statute. " 12. THOUGH it is a decision of a single Judge, the principle as has been enunciated in the said judgment is in conformity with the decision arrived at by their Lordships of the Judicial committee. We, therefore, agree with the said decision arrived at by his Lordship. Before we close, we may mention here that the defendants were aware of the plaintiffs' possession as such they sought to introduce their story of entrustment. As that story has failed the defendants cannot get any remedy whatsoever. For the reasons the second paint urged by Mr. Sanyal fails. In the result, the appeal is dismissed with costs. Hearing fee assessed at three gold Mohurs.