Judgement JUDGMENT:- This appeal is by the plaintiffs and is directed against the judgment and decree passed by the Assistant District Judge, Jorhat, in Title Appeal No.31/71. The suit was for declaration of title in respect of 2 Bighas 16 Lechas of land covered by dag No. 1910 of Periodic Patta No.383 of Golaghat town. 2. The brief facts are that the suit land originally belonged to late Sahabuddin. He had a daughter Mstt. Saru, who predeceased Sahabuddin, leaving two sons, Nur Mahammad (plaintiff No. 1) and Sher Ali (plaintiff No. 2), and two sons. Sher Khan (defendant No. 1) and Anjan, lather of defendant No. 2. Dhan Musalman. The plaintiffs case is that as Saru had predeceased Sahabuddin, they were taken by Sanabuddin to his house where they were brought up. The plaintiffs further case is that Sahabuddin, during his lifetime, gifted the suit land to them. Sahabuddin died on 25-9-37 and since then they have been possessing the land and have acquired adverse possession as against the defendants. But subsequently they were dispossessed by the defendants by constructing houses on the suit land and hence they filed the instant suit for declaration of their title primarily based on gift, and alternatively based on adverse possession. 3. The defendants have filed a joint written statement. They have admitted the geneology. They have further admitted that on their mothers death, the plaintiffs became helpless and they were taken and brought up by Sahabuddin. They, however, deny the plaintiffs allegation of gift, or that they have acquired title by adverse possession. 4. The learned Munsiff, after trial, did not give any categorical finding on the question of gift, but he has found that the plaintiffs acquired adverse possession of the suit land, on the finding that the plaintiffs were in possession of the land since the death of Sahabuddin in 1937. On appeal the learned lower appellate Court has reversed the judgment and decree of the trial Court. He has found that the plaintiffs have failed to prove the gift and also adverse possession. In that view he dismissed the suit. Hence this second appeal. 5. Mr. A. Sarma, learned counsel appearing for the appellants, first submits that the Munsiff, on a consideration of the evidence on record, has by implication found that the plaintiffs have established the gift alleged in the plaint. In that view he dismissed the suit. Hence this second appeal. 5. Mr. A. Sarma, learned counsel appearing for the appellants, first submits that the Munsiff, on a consideration of the evidence on record, has by implication found that the plaintiffs have established the gift alleged in the plaint. Be that as it may, the learned lower appellate Court has found, on a consideration of the evidence on record, that the plaintiffs have failed to prove any of ingredients necessary to prove gift under the Mohammadan Law, namely, (i) declaration of the gift by the donor, (ii) acceptance of the gift by the donee, and (iii) delivery of possession by the donor to the donee, in the instant case the admitted position is that since before the death of Sahabuddin, the plaintiffs used to stay on the land. That might relieve them from the proof of actual delivery of possession, but they had to prove the other two ingredients which they failed to do. Whether there was a gift of the suit land by Sahabuddin to the plaintiffs, is a question of fact and the finding on it by the court of facts, even if erroneous, cannot be upset in a second appeal. 6. The second and only other submission is that as admittedly the plaintiffs were in possession of the land since 15-9-1937, on which date Sahabuddin died, the plaintiffs shall be held to have acquired title to the suit land by adverse possession. The admitted position is that when Sahabuddin was alive, the two plaintiffs became helpless and were sheltered in the house of Sahabuddin. Although they were living in the same house as Sahabuddin on the suit land, that would not constitute their possession of the property in the eye of law. They were in the position of invitees or dependants. An invitee or a dependant may have possession in fact, which is not legal possession; he is said to have custody or detention of the property rather than possession. The plaintiffs could not have, nor have they claimed, any possession of the suit land during the lifetime of Sahabuddin. On the death of Sahabuddin, the title of the land passed to his heirs, namely, to his sons, defendant No. 1 and defendant No.2s father. The plaintiffs continuing in possession would be in constructive possession on behalf of the defendants or in permissive possession. On the death of Sahabuddin, the title of the land passed to his heirs, namely, to his sons, defendant No. 1 and defendant No.2s father. The plaintiffs continuing in possession would be in constructive possession on behalf of the defendants or in permissive possession. It has been found by the learned lower appellate court that the plaintiffs were in permissive possession of the suit property. The title of the defendants which they inherited from Sahabuddin would continue unless it was acquired by the plaintiffs by adverse possession. The burden of proving adverse possession is upon him who claims it. Possession for twelve years or more, simpliciter, constitutes no adverse possession. The lower appellate court has found that the patta was still standing in the name of Sahabuddin. He has further found that the property was put on sale on two occasions for arrears of land revenue and it was the defendants who took steps to have the sales set aside. So he has found that the title of the land continues with the defendants and that the plaintiffs have failed to prove adverse possession as against them. In my opinion the lower appellate court has committed no error of law. 7. Mr. A. Sarma, learned counsel appearing for the appellants, cites AIR 1931 Mad 216, in support of his contention. The decision deals with rights of easement and not adverse possession, and does not help the appellants. 8. In the result the appeal fails and is dismissed. But in the circumstances of the case I leave the parties to bear their own costs. Appeal dismissed.