Judgment :- 1. The First defendant is the appellant. The suit from which the second appeal arises was for declaration of title and for injunction. The property belonged to one Parameswaran Nair He executed a settlement deed on 16-41116 in favour of his wife, Kunjukunjamma and sister Parvathy Amma, reserving a life-interest to himself. His wife died in 1962, Her only legal representative was the husband himself, who also died in 1963. Tie plaintiff is the only son of Parvathi Amma. Parameswaran Nair's heir at law on his death was his mother who assigned the rights that she inherited from her son to the first defendant. The first defendant filed O.S. "No. 104 of 1965 against Parvathy Amma and others for partition. That suit was dismissed on the ground that Kunjunjamma had in her life-time bequeathed her rights in the properties to the minor son of Parvathi Amma, namely, the present plaintiff, In appeal, the appellate Court set aside the decree of the trial Court and the same was confirmed by this Court in S. A. No. 302 of 1971. 2. During the pendency of the final decree proceedings Parvathy Amma died. An application was filed to implead the present plaintiff as the legal representative of deceased Parvathy Amma. He avoided notice and immediately filed the present suit for a declaration of his title on the ground that he was in possession of the property adverse to the original owners and also for an injunction. The suit was dismissed by the trial Court finding against the plaintiff's title by adverse possession. The appellate Court set aside the decree and judgment of the trial Court. Hence this second appeal. 3. The questions of law raised are not happily worded. According to me, the only substantial question of law that arises in this second appeal is, whether, on the facts and circumstances of the case, the plaintiff has succeeded in establishing the case put forward by him that he had been in possession of the property from 1954 onwards adverse to the rightful owners. 4. It is well-settled that where a person claims title by adverse possession, he has to plead and prove the case satisfactorily; the possession required must be adequate in continuity, in publicity and in extent. The question is as to whether the pleadings and evidence in the case are sufficient to find a case of adverse possession. 4. It is well-settled that where a person claims title by adverse possession, he has to plead and prove the case satisfactorily; the possession required must be adequate in continuity, in publicity and in extent. The question is as to whether the pleadings and evidence in the case are sufficient to find a case of adverse possession. The plaintiff examined pws.1, 2, 3, 5 and 6 to prove his case. The trial court was not impressed with the evidence of pws.1, 2, 3 and 5, but relied upon the evidence of pw. 6, though he was declared hostile. But the appellate court held that the evidence adduced was sufficient to prove the plaintiff's case. 5. Since the question to be decided is the fact of possession and its character, the learned counsel for the respondent forcefully contended with reference to decided cases that a finding of possession, including a finding of adverse possession, is a finding of fact, which cannot be disturbed in second appeal, however erroneous the finding might be. I shall presently deal with; this question after referring to the pleadings and the evidence on which the case of adverse possession was founded by the plaintiff. 6. In Para.5 of the plaint, it is stated that the substantial building in the plaint property was constructed by the plaintiff's father. When he attained majority, he took possession of the property and had been keeping possession of the same since then as his own adversely and openly against Parameswaran Nair, Kunjukunjamma Parvathy Amma and others. He has been staying there. He has put up structures in the property and improved it by spending money of his own. While he was examined as pw.1 he deposed as follows: "The first defendant is brother of my mother (though wrongly taken down as brother of mother and Parvathi Amma). The first defendant and his elder son used to come to our house and used to take the Income from the property from my mother and aunt henbl/z . I felt that they wanted to take possession - of the properties stealthily from my mother. I took the property from my mother by force". In cross-examination it is stated that the mother was staying in the main house in the property. Parameswaran Nair was also staying in the said house. He died in 1963. I felt that they wanted to take possession - of the properties stealthily from my mother. I took the property from my mother by force". In cross-examination it is stated that the mother was staying in the main house in the property. Parameswaran Nair was also staying in the said house. He died in 1963. He has further stated that he was not in possession of any document to prove that he was in possession of the property. From 1954 June, he became a major and thereafter he had been in possession of the property. He further stated that his mother and Parameswaran Nair did not hand over the property to him, and therefore he took it by force. They did not resist it; nor did they take legal proceedings against him for taking forcible possession. When pursued in cross-examination he stated that it was not by using force that he took possession of the property. In addition to this, he relied upon the evidence of pw.2, Pw.3 and pw.5 to prove his possession and enjoyment. He examined Pw6, who however did not support his case but put forward a definite case that the plaintiff came into possession of the property only in 1963 after the death of his mother. This, in short, is the summary of the evidence adduced. I thought it necessary to refer to the plea put forward by the plaintiff in the plaint and the evidence in support of it so as to understand clearly the materials on which the plaintiff wanted to establish his case of adverse possession. 7. The respondent's counsel relied upon two decisions of the Supreme Court reported in Madamanchi Ramappa v. Muthalur Bojjappa (AIR 1963 SC 1633: 1964-2-SCR 673) and in Sinha Ramanuj v. Ranga Ramanuja (AIR 1961 SC 1720), for highlighting the narrow jurisdiction of this Court in dealing with the findings of fact arrived at by the Court? of fact. In AIR 1963 SC 1633:1964-2-SCR. of fact. In AIR 1963 SC 1633:1964-2-SCR. 673 it is observed thus: It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of fact; but on such occasions it is necessary to remember that what is administered in Courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of S.100, it would inevitably introduce in such decisions, an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid". In AIR. 1961 SC 1720 at page 1730 the Supreme Court has observed: "...It has now been well settled that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact however gross the error may seem to be. The judgment of the learned judge does not disclose that there are any permissible grounds for interference with the finding of the District Judge." These are binding authorities and this Court will be overstepping its limit if the findings of fact are interfered with disregarding the limitations set upon this Court by binding precedents and S.100 CPC. (old and new). 8. The respondent's counsel rested his case on the plea that the finding of possession by the appellate Court is a finding of fact which cannot be disturbed in second appeal. He put forward the additional case that even the finding on adverse possession is a finding of fact. I shall examine this contention with reference to cases cited. 9. In Janikiramaraju v. Appalaswami (AIR 1954 Madras 772), the following passage occurs at Para.23: "The question of adverse possession is essentially a question of fact. A party relying upon it should expressly plead and ask for an issue to be raised in respect thereof." There the learned judge was emphasising the need for setting out the facts clearly to entertain a plea of adverse possession. In MD. Aminuddin v. Md. A party relying upon it should expressly plead and ask for an issue to be raised in respect thereof." There the learned judge was emphasising the need for setting out the facts clearly to entertain a plea of adverse possession. In MD. Aminuddin v. Md. Abdur Rahiman (AIR 1941 Nagpur 343) the Court has observed thus: "Whether a right to a property has been lost by reason of adverse possession is a question of fact and if the law has been appreciated a right in the lower court and if the necessary evidence has been there, the point cannot be agitated in second appeal. But if the judge of the lower appellate Court has not understood the law aright, the High Court in second appeal can consider the point". This observation also cannot help the respondent, since what is highlighted is the need for the proper application of law to the facts of a given case. In State of A. P. v. Fakrubi (AIR. 1962 A. P. 518), it is thus stated: 'The question whether possession was adverse or not is often one of fact, but it might also be a conclusion of law; or a mixed question." The extract lays down that the finding is mixed question. 10. On these authorities it was contended that the finding by the Court below on adverse possession is a finding of fact, or at best, only a mixed question of fact and law and that if the Court below had come to a correct conclusion on the evidence available, the said finding should be deemed to be a final finding of fact which the High Court cannot disturb. I have already indicated that the above decision cannot help the respondent. 11. Counsel for the appellant, however, relied upon the decision is Venkat Charlu v. Rajah of Vizianagoram (AIR. 1942 Madras 725), in which it is stated: "This is no doubt in one respect a finding of fact but it seems to me that the question whether certain admitted facts constitute an open assertion of title is a question of law and in this case, the learned District Judge is clearly wrong in holding that there has been no open assertion of title " The law on this point was exhaustively considered by Venkatarama Ayyar J. in 1953 (II) MLJ. 241-Krishnayya v. Udayalakshmama. 241-Krishnayya v. Udayalakshmama. The learned judge referred to the decision in Balaram Guria v. Shyama Charan Mandal (1920) 24 CWN.1057 and quoted with approval what Mookerjee C. J., observed in that judgment to the following effect: "It has been contended on behalf of the respondents, as a last resort, that this is a matter with which we are not competent to deal in second appeal. It is plain, however, from the decision of the judicial Committee in the case of Lachmeswar Singh v. Manowar Hossain (ILR.19 Calcutta 253 (PC), that the question of adverse possession which we have to determine is a mixed question of fact and law. In respect of the facts found by the lower Appellate Court, which is the final Court competent to deal with facts, we are bound to accept them as conclusive. But when we are called upon to consider whether from the facts found an inference can fairly be drawn that the possession was adverse, it is a question of law which we are entitled to investigate. The facts found need not be questioned; it is the soundness of the conclusion from that that is in question and this is a matter of law." He also referred to Jogenara Nath Mukherjee v. Rajendra Nath Bhattacharjee (1922) 26 CWN. and to Dipnarain Rai v. Pundeo (1946) ILR 25 Patna 412. After surveying the various authorities, Ayyar J. observed that in a given case, the question whether on the facts proved a legal inference of adverse possession is possible or not is a question of law, and the contention to the contra was repelled. 12. In Orient Distributors v. Bank of India Limited (AIR 1979 SC 867), the Supreme Court had to consider a kindred question under S.100 CPC. (as unamended). The Civil Appeal before the Supreme Court arose from a suit for a permanent injunction restraining the defendant from causing any obstruction to the use of a particular way. The trial Court held that the disputed passage was not the only means of access leading to the plaintiff's tenement. It also held that it was neither a part of the demise nor constituted an essential element of the contract of tenancy. On evidence, it was found that besides the disputed passage, the plaintiffs were using another entrance. The trial Court held that the disputed passage was not the only means of access leading to the plaintiff's tenement. It also held that it was neither a part of the demise nor constituted an essential element of the contract of tenancy. On evidence, it was found that besides the disputed passage, the plaintiffs were using another entrance. In appeal, the appellate court reversed the decree of the trial court and held that the passage formed part of the demise and also constituted an essential element of the contract of tenancy. In second appeal, the Madras High Court reversed the finding of the lower appellate court. It was contended before the Supreme Court that the High Court should not have interfered with a finding of fact recorded by the lower appellate court on an appreciation of the evidence. It was argued that the appellant's plea before the High Court was only whether the disputed passage formed part of tenancy obtained by them and on the materials on record, the first appellate court, which was the final Court of appeal, had come to a conclusion which should have been accepted by the High Court. The Supreme Court repelled this plea and held that what was posed before the High Court was not purely a factual one but one which related to the legal inference possible from proved facts and observed as follows: "In our view, therefore, the High Court was right in taking the view that the question was not purely a factual one but one relating to the propriety of the legal conclusion that could be drawn on the basis of proved facts." It may be that the finding of possession simpliciter arrived at by the appellate court is binding on this court. But the additional question that a finding on adverse possession also is a question of fact finds little support in decided cases and in my judgment, the contention raised by the respondent's counsel cannot be accepted. The question whether possession found is adverse or not is clearly a question of law. Otherwise, there will not be any difference between a bare finding of fact of possession and a finding of adverse possession. A finding on adverse possession is based on the legal conclusion from proved facts. The question whether possession found is adverse or not is clearly a question of law. Otherwise, there will not be any difference between a bare finding of fact of possession and a finding of adverse possession. A finding on adverse possession is based on the legal conclusion from proved facts. A finding of fact on possession is based on evidence The conclusion that possession is adverse has to be tested against principles of law governing it. To establish adverse possession, a person who sets up that plea has to plead and prove all the ingredients necessary to support such a plea. The inference from proved facts whether possession is adverse or not falls clearly and according to me unhesitatingly, within the region of a question of law. I am in respectful agreement with the principle of law enunciated in 1953 (II) MLJ. 241 and the decisions relied upon by the learned judge therein. 13. In this case adverse possession is not pleaded as a defence Here the plaintiff bases his title itself on adverse possession. The conclusion to be arrived at on facts proved, is clearly a legal conclusion on the application of the established principles of law. If A is in possession for twelve years that does not establish that the said possession is adverse. That possession can take many shades. It is only when the said possession is proved to be adverse, that one can enter a finding in law that the said possession is adverse. Thus there is a clear distinction between a finding that A is in possession and that he is in possession adverse to the right owner. This raises a question of law which a court of second appeal is entitled to investigate. 14. With this background, I will have to examine the pleadings and the evidence in this case. While so doing I will have first to overcome the hurdle posed by the respondent's counsel basing his argument on S. HO CPC. The limitation imposed upon this Court by S.100 CPC. (new code) have been delineated by the Supreme Court in the decision reported in Mohindra & Mohindra Ltd. v Union of India (1979 (2) SCC 529), which 1 have followed in my judgment in S A. Nos. 168 and 169 of 1976. (1979 KLT. 744). The limitation imposed upon this Court by S.100 CPC. (new code) have been delineated by the Supreme Court in the decision reported in Mohindra & Mohindra Ltd. v Union of India (1979 (2) SCC 529), which 1 have followed in my judgment in S A. Nos. 168 and 169 of 1976. (1979 KLT. 744). The Supreme Court quoted with approval what is laid down in Sir Chunilal v. Metha and Sons Ltd. v. The Century Spinning and Manufacturing Co. Ltd (AIR. 1962 SC 1314) as to constitute a substantial question of law thus: "The proper test would be whether the question of law is of general public importance or whether it directly and substantially affects the rights of the parties, and if so, whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not from difficulty or calls for discussion of alternate views." It cannot be denied that the right of the appellant to one half of the property arises directly and substantially in the second appeal. Attempt of the respondent is to deny to the appellant his one-half right. Therefore, the first part of the test laid down by the Supreme Court is satisfied in this case. The finding regarding adverse possession is intimately connected with the right of the appellant. His right has been denied to him on a finding that it has been lost by possession adverse to him. It is this question that has to be examined, and this question substantially affects the rights of the parties, and hence it amounts to a substantial question of law. 15. The plaint proceeds on the footing that the plaintiff had been in possession of the property adverse to the defendant and contains other necessary averments. But evidence in support of this plea, according to me, falls far short of establishing the plea of adverse possession. PW.1 deposed at one stage that he took the property by force, but retracted from that stand when he was pursued in cross-examination. His case in evidence was that immediately after he became a major in 1954, he took forcible possession of the property and kept it with him till he filed the suit. PW.1 deposed at one stage that he took the property by force, but retracted from that stand when he was pursued in cross-examination. His case in evidence was that immediately after he became a major in 1954, he took forcible possession of the property and kept it with him till he filed the suit. It is necessary to note that at the time when be states that his adverse possession started, his mother had right in the property. What is more, the settlement deed in question executed by Parameswaran Nair had reserved a life-interest in his favour. If that document had taken effect, which it did, according to parties, he continued in possession till 1963. The respondent's mother died in 1973. It is in this context that the evidence of pw. 6 becomes material and important. The appellate judge has disposed of his evidence on the ground that he was interested in the defendant. The evidence of the other witnesses did not find favour with the trial court but it did with the appellate court. pw.6 is a natural and reliable witness and his evidence is consistent with reality and probabilities of the case. Accordingly it was after the plaintiff's mother's death that he came by possession. This discussion may spell in the realm of appreciation of evidence,. According to me the appellate judge has not discussed the impact of the evidence in the context and circumstances available in the case. Thus, there has been a complete mis-reading of the evidence. The clear evidence in this case is that the plaintiff was residing in the house along with others including Parameswaran Nair till his death and that of his mother. There is also evidence in the case that Kunjukunjamma had been receiving income from the properties. The plaintiff's possession, if any, will have to be considered in this context. He is the only son of his mother. How he kept possession from 1954 to 1960 when he was employed as a police constable is spoken to by him by stating that he occasionally visited the property, that is once in a month to look after the property. His interference with the property during the lifetime of his mother can never in law constitute an open, hostile exercise of possession by him. His evidence supported by the evidence of pws. His interference with the property during the lifetime of his mother can never in law constitute an open, hostile exercise of possession by him. His evidence supported by the evidence of pws. 2, 3 and 5 of his having taken the income of the property, even if true, cannot constitute hostile possession necessary to prove adverse possession in the circumstances of the case. It is true that the respondent's mother in an earlier suit for partition had pleaded that her son (plaintiff) was in possession of the property. That was a suit for partition by the present appellant. The plaintiff feigned ignorance of that suit. It is too much for one to believe that even though Parvathy Amma knew about the pendency of the suit, pw.1, who is her only son and a police constable to boot, never knew about the suit. According to him. it was only in 1973 that he knew about the suit when he received notice in the final decree application. This has to be disbelieved. The property is three acres and odd in extent. The plaintiff-respondent had admitted that he has no documents to prove possession. The only documents produced by him are Ext. A3 series which are tax receipts from 1969 to 1975. These tax receipts standing in the name of his mother cannot help him in his plea of title by adverse possession. True, the patta stands in his mother's name and therefore tax could be paid only in her patta. These documents at best are only equivocal. This is consistent with his mother having been in possession of the property and never consistent with the only case of adverse possession put forward by him. With this evidence, it will not be possible to hold that the plaintiff has succeeded in proving that his possession was adequate in continuity, in publicity and in extent and to show that it is adverse to the competitor, that is, the appellant in this case. The Appellate Judge, in my view, erred in not drawing the proper legal conclusion from proved facts and wrongly relied upon the evidence of pws.1, 3 and 5, in finding adverse possession in favour of the plaintiff. The Appellate Judge, in my view, erred in not drawing the proper legal conclusion from proved facts and wrongly relied upon the evidence of pws.1, 3 and 5, in finding adverse possession in favour of the plaintiff. The learned appellate judge overlooked the fact that the plaintiff himself had deposed that at one stage he was dissatisfied with the management of the property by his mother since she was giving part of the income to the 1st defendant and his son. To prove continuity of possession, there must be unimpeachable evidence on the side of the plaintiff to show that from 1950 to 1960, though he was away, he had been keeping not merely possession of the property but that such possession was hostile to the real owners and to their knowledge. It is difficult to infer from the oral evidence in this case that the plaintiff was holding the property and keeping possession thereof independently, to the exclusion of others and to their knowledge, including his own mother. The evidence of the witnesses only proves possession but it cannot in law prove adverse possession. The only conclusion, in my view, that can be arrived at from the evidence of the plaintiff that he took possession and was managing the properties during the life time of Parameswaran Nair, is that he was permitted to be in possession of the property and to take the income therefrom. This possession cannot constitute adverse possession. From the foregoing discussion, I find that the plaintiff has not succeeded in establishing that he acquired title by adverse possession over the property. In the result, I set aside the decree and judgment of the appellate court and confirm that of the trial court and allow this second appeal with costs.