Sandhya Rani Dutta v. B. N. Singh — 1989 DIGILAW 394 (PAT)

JUDGMENT B. P. Singh, J. - The plaintiff is the appellant. She filed Title Suit No. 73 of 1971 in the court of Munsif, Ranchi, for declaration of title in respect of the suit land measuring an area of one katha six chhataks out of M. S. Plot no. 2321 in ward no. 7 situate at Purulia road, Ranchi, demarcated in the schedule attached to the plaint. The suit lands comprise a portion of sub-plot no. 7 of plot no. 2321 as also the passage adjacent thereto. The plaintiff claimed title to the suit lands and alleged that the defendant/respondent was an encroacher who had no title whatsoever. She claimed khas possession of the suit land after evicting the defendant therefrom. The suit was contested by the defendant. The learned Munsif, Ranchi, by his judgment dated 11.3.1978 and decree dated 21.3.78 dismissed the suit. On appeal, the Addl. Subordinate Judge, Ranchi, in Title Appeal no. 26/10 of 1978-79 by his judgment and decree dated 26th of September, 1979 dismissed the appeal and affirmed the order of the learned Munsif. The appellant preferred Second Appeal no. 251 of 1979(R) before this Court. The second appeal was heard by me and by order dated 6th of April 1989 I allowed the application filed by the appellant before this court under Order 6 Rule 17 of the Code of Civil Procedure praying for amendment of the plaint. The amendment was allowed for the reasons contained in order dated 6.4.1989 and the matter was remitted to the court of the Addl. Subordinate Judge, Ranchi, for permitting the plaintiff/appellant to amend his plaint. The defendant/respondent was also afforded an opportunity of filing additional written statement and after giving opportunity to the parties to adduce evidence on the question of title, the appellate court was required to record its finding on that question and to send the finding to this court. In accordance with the order of this Court, the appellate court has recorded its finding which is contained in judgment dated 31.7.1989. He found that the plaintiff/appellant had established her title while defendant respondent had failed to do so. He, however, did not go into the question of adverse possession as he was not required to go into that question. The matter was, thereafter heard by me. He found that the plaintiff/appellant had established her title while defendant respondent had failed to do so. He, however, did not go into the question of adverse possession as he was not required to go into that question. The matter was, thereafter heard by me. The respondent was permitted to file his memorandum of objection to the findings recorded by the court below and as such a memorandum of objection was filed by the defendant/respondent. The matter was, thereafter, heard at length. 2. The suit giving rise to this appeal was filed on the 7th of April, 1971 by the plaintiff/appellant. In her plaints, she stated that M. S. Plot no. 2321 was held and possessed by Smt. Soubhagya Manjari Devi. She sub-divided the plots into various sub-plots and sold them to different persons. The plaintiff/appellant purchased several sub-plots from the vendees of Smt. Southagya Manjari Devi by registered deeds of sale between the years 1962-64. By reason of such purchases, the plaintiff came in possession of those plots. While sub-dividing the plot into sub-plots, a passage 16' in widh was left by the side of sub-plot nos. 1 to 5 and 7. It appears from the map annexed to the plaint that plot no. 2321 is a big plot. It has been sub-divided into several plots. Plot nos. 6 and 7 about the Purulia Road while plots 1 to 5 are behind these two sub-plots. A passage has been carved out which runs adjacent to plots 1 to 5 and 7. According to the plaintiff, the defendant/respondent, a tresspasser, encroached over a portion of sub-plot no. 7 and put up a structure over-night to which he went on making improvements. A proceeding u/s. 145 Cr. P. C. was initiated but the same has remained pending for a long time. According to the plaintiff/appellant, the defendant came on the land in or about the year 1968. According to the plaintiff, the defendant recently encroached over a portion of the passage as well and started making some constructions. Thereafter, proceedings were initiated u/s. 144 Cr. P. C. and long drawn criminal proceedings continued, with the result that the defendants respondent went on making constructions from time to time and has now erected a structure over the encroached portion of land. According to the plaintiff, the defendant tresspassed over sub-plot no. Thereafter, proceedings were initiated u/s. 144 Cr. P. C. and long drawn criminal proceedings continued, with the result that the defendants respondent went on making constructions from time to time and has now erected a structure over the encroached portion of land. According to the plaintiff, the defendant tresspassed over sub-plot no. 7 in the year 1968 and over a portion of the passage in January, 1971. He had no right, title and interest in the suit lands and hence was liable to be ejected. On these averments, the plaintiffs appellant claimed adjudication of title and possession over the suit lands after eviction of the defendant who is described as a trespasser, 3. The defendants respondent in his written statement alleged that the plaintiff's suit was false, frivolous and vexatious. The usual plea that the plaintiff's suit was barred by principles of waiver, acquiescence and estoppel were also raised. It was the case of the defendant that Smt. Saubhagya Manjari Devi had no title to the suit properties nor was she ever in possession thereof. The alleged sales effected by her therefore did not confer any title upon the transferees as they were all illegal and invalid. Plaintiff never came in possession of the suit properties at any time. The existence of any passage as shown in the map attached to the plaint was denied. He claimed that he was not a trespasser and that he had raised construction over the suit land in or about the year 1963 after obtaining its sanction from the Ranchi Improvement Trust. He carried on his business in the said house. The defendant claimed to have been in possession of the suit properties even prior to the alleged purchase made by the plaintiff, on these averments, it was claimed that the plaintiff acquired no title to the lands in suit and was, therefore, not entitled to institute a suit nor was she entitled to any relief. On 27.2.1978, the defendant amended his written statement by adding paragraph 12 thereto wherein he stated that he had entered the suit land by taking oral settlement of the same from Kumar Dhurbendra Nath Sah Deo in the year 1759, and that after remaining in possession of the same since 1959, constructed his house thereon in 1963. It was, therefore, apparent that he was not a trespasser, but was the owner of the land in his own right. It was, therefore, apparent that he was not a trespasser, but was the owner of the land in his own right. 4. It will, thus, appear from the pleadings of the parties that while the plaintiff claimed title to the suit lands by reason of purchase made by her by registered deed of sale from the vendee of Smt. Soubhagya Manjari Devi, the owner of the land, the defendant claimed oral settlement thereof from one Kumar Dhurbendra Nath Sah Deo. Both the plaintiff and the defendant therefore claimed title to the suit land and, therefore, the question which the courts were required to determine was as to which of them had better title to the suit lands. I may only notice at this stage that in the written statement filed by the defendant/respondent, no plea of acquisition of title by adverse possession was specifically raised. 5. Evidence was adduced before the trial court by the parties. The learned Munsif held that the plaintiff had failed to establish her title to the suit land. He further held that the defendant had succeeded in establishing that he had been residing over the snit land since 1959 and as such he had acquired right by adverse possession. On such findings, the suit was dismissed. When the matter came in appeal before the Addl. Subordinate Judge, Ranchi, it was urged before him that there was no material to support the plea of adverse possession urged by the defendant before the trial court. On the other hand document of title had been produced before the court which fully established title of the plaintiff. The appellate court referred to the sale deed dated 29-5-1962 executed by Soubhagya Manjari Devi in favour of Pramilla Devi. He then referred to the sale deed dated 3-12-1962 executed by Pramilla Devi in favour of the plaintiff. This document was exhibited as Ext. 2. The appellate court observed that though under Ext. 2 the sale deed showed that some lands had been purchased by the plaintiff from one Pramilla Devi on 3-12-1962, but from the averment in the plaint it appeared that the plaintiff claimed to have purchased thy land from Soubhagya, Manjari Devi and there was no mention about the name of Pramila Devi in the plaint. No document was exhibited to show which of the sub-plots was purchased by the plaintiff. No document was exhibited to show which of the sub-plots was purchased by the plaintiff. The plaintiff who had appeared as a witness could not give any idea about the portion of land relating to which suit had been filed. The appellate court thought that it was surprising that the plaintiff who had her own residential house hereby could not prevent the defendant from raising construction over the suit land. It therefore, appeared to him that the plaintiff could not prove her title over the portion of plot no. 2321, namely, sub-plot no. 7 and the passage. He held that plaintiff had no possession over the land since it was lying parti without any compound wall. He, therefore, held that the plaintiff had failed to prove her title to the suit land. Accordingly, he affirmed the judgment and decree of the trial court. 6. The plaintiff filed Second Appeal no. 251 of 1979 (R) before this Court. She also filed an application under Order 6 Rule 17 of the Code of Civil Procedure for permission to amend the plaint. The purpose of the proposed amendment was to disclose the name of the vendor and other particulars relating to the registered deed of sale dated 3-12-1962 which had already been exhibited in the suit as Ext. 2 and to give further particulars about the title of the vendor of Smt. Pramila Devi. It will appear from the statements in the plaint to which I have referred earlier, that the plea of the plaintiff was that the original owner Smt. Soubhagya Manjari Devi had sub-divided the plot into various sub-plots and sold them to various persons. The plaintiff had purchased these sub-plots from such persons. No doubt the name of the vendors had not been disclosed in the plaint. However, the registered sale deed executed by Pramila Devi in favour of the plaintiff was exhibited at the trial as Ext. 2 which disclosed all the particulars. The only defect was that the plaintiff had not disclosed the name of her vendor and the date of registration of sale deed in the plaint. However, the registered sale deed executed by Pramila Devi in favour of the plaintiff was exhibited at the trial as Ext. 2 which disclosed all the particulars. The only defect was that the plaintiff had not disclosed the name of her vendor and the date of registration of sale deed in the plaint. Since the document of title was already on record and since the plaintiff only prayed for amendment of the plaint to disclose the necessary particulars, which did not amount to setting up of new title or pleading a fresh cause of action, having regard to the interest of justice, allowed the application for amendment and permitted the defendant to file additional written statement. The parties were also given opportunity to adduce further evidence in view of the proposed amendment of the plaint and the matter was remitted to the appellate court to record its finding on the question of title and to send such finding to this Court. 7. After remand, the appellate court has found that the plaintiff has been able to establish her title and that the defendant has failed to establish his title. So far as the defendant is concerned, he claimed to have taken an oral settlement from Kumar Dhurbendra Nath Sah Deo in the year 1959 and further claimed that he had been coming in possession since then. The appellate court has found that no documentary evidence was produced before him to establish such settlement-obviously because it was an oral settlement. But he further found that he had not filed any other document to prove that Dhurbendra Nath Sah Deo was the original owner of the suit property. He therefore, held that there was no document on record to prove that Dhurbendra Nath Sah Deo was the original owner of the suit land, therefore, the oral settlement in favour of the defendant was not acceptable. On the other hand, the plaintiff examined A. W. 1. He stated on oath that the suit land originally belonged to Thakur Mahendra Nath Sah Deo and the land was recorded in the khatian in his name. The said Thakur Mahendra Nath Sah Deo sold the land to Smt. Soubhagya Manjari Devi through a registered deed of sale dated 30th of January, 1960, certified copy whereof was exhibited as Ext. 2 after remand. The said Thakur Mahendra Nath Sah Deo sold the land to Smt. Soubhagya Manjari Devi through a registered deed of sale dated 30th of January, 1960, certified copy whereof was exhibited as Ext. 2 after remand. Smt. Soubhagya Manjari Devi sold the land to different persons and in those transactions A. W. 1 had acted as the middle man. He, however, proved that Smt. Soubhagya Manjari Devi sold the land to Smt. Pramila Devi and that Smt. Pramila Devi sold the suit land to the plaintiff in the year 1962. He proved the sale deed dated 29-5-1962 executed by Soubhagya Manjari Devi in favour of Pramila Devi which was marked as Ext. 2/A after remand. The appellate court also found his evidence to be acceptable since he had not been shaken in his cross-examination. He, thereafter, considered Ext. 1 the M. S. khatian finally published in the year 1959 which showed that plot no. 2321 was recorded in the name of Thakur Mahendra Nath Sah Deo who had been shown as the owner and occupier of the land. Ext. 2 which was marked after remand, was the sale deed dated 30th January, 1960 executed by the aforesaid Thakur Mahendra Nath Sah Deo in favour of Soubhagya Manjari Devi under which the suit lands as well as other lands had been transferred to Soubhagya Manjari Devi. Ext. 3 after remand is the sanction plan for construction of building while Ext. 4 was the carbon copy of letter for revision of holding tax. Exts. 5 and 6 are other documents to which it is not necessary to refer because they do not relate to title. Having regard to the evidence regarding title of Thakur Mahendra Nath Sah Deo, the sale made by him in favour of Smt. Soubhagya Manjari Devi, the sale thereafter by Soubhagya Manjari Devi in favour of Pramila Devi and ultimately the sale by Pramila Devi in favour of the plaintiff on 3.12.1962, he held that the evidence on record established the title of the plaintiff. There was nothing on record to doubt the genuineness of these registered deeds of sale. On the basis of such evidence on record, the appellate court held that the plaintiff had proved her title to the suit lands and the defendant had failed to establish his title to the suit lands. 8. There was nothing on record to doubt the genuineness of these registered deeds of sale. On the basis of such evidence on record, the appellate court held that the plaintiff had proved her title to the suit lands and the defendant had failed to establish his title to the suit lands. 8. The learned counsel appearing for the plaintiff/appellant submitted that the finding recorded by the appellate court after remand is in favour of the plaintiff/appellant. He submitted that since the finding was based on reliable evidence on record which was of unimpeachable character being registered deeds of sale that finding could not be disturbed. I have carefully considered the finding recorded by the appellate court after remand. I entirely agree with the finding recorded by the appellate court because the finding is recorded on the basis of registered deeds of sale. These documents cannot be impeached. In any event, the defendant/respondent could not urge any ground on which such a document should be disbelieved. On the other hand, all that the defendant has pleaded is an oral settlement of the year 1959. He could not give the date on which such an oral settlement was made. In the course of argument I asked Mr. Kameswar Prasad learned counsel appearing on behalf of the defendant to show me any evidence on record which establishes the date of such oral settlement. Even the defendant has not disclosed the date of oral settlement. Mr. Kameswar Prasad, therefore, fairly submitted that on the basis of the evidence. On record, he can only say that the date of the oral settlement has not been disclosed by the defendant. Further the defendant claims title through Dhurbendra Nath Sah Deo. But there is nothing on record to show that Dhurbendra Nath Sah Deo had anything to do with the lands in suit. No document whatsoever has been produced to establish the title of the settler of the defendant. 9. Faced with this situation, learned counsel for the defendant/respondent urged before me that the suit of the plaintiff could not be decreed unless the plaintiff not only established her title but also proved her possession over the suit lands within a period of 12 years from the date preceding the filing of the suit. He relied upon a judgment of this Court reported in A.I.R. 1921 Patna page 237 for this proposition. He relied upon a judgment of this Court reported in A.I.R. 1921 Patna page 237 for this proposition. He submitted that since the plaintiff had not proved by evidence that she was actually in possession of the suit land within 12 years of the date of filing of the suit, even if her title was established. the suit could not be decreed. According to him even after remand, the position did not improve so far as the plaintiff was concerned. Since the plaintiff had failed to prove her possession over the suit land as required by law, the defendant was not required to give any further evidence, and that is why after remand, the defendant did not adduce any evidence whatsoever. He further submitted that in any view of the matter, the defendant had proved title by adverse possession and that the evidence on record clearly established that he has been in possession of the suit land since 1959. The suit was filed in the year 1971 and, therefore, by the time the plaintiff filed the suit, the defendant had perfected his title by adverse possession. On the other hand Sri. N.K. Prasad appearing for the plaintiff/respondent contended that the submission urged on behalf of the defendant ignored the fact that the law had undergone a change in this regard. According to him, the relevant provisions of the Limitation Act of the year 1908 did provide that the plaintiff must not only establish his title but also his possession within 12 years of the date preceding the filing of the suit. He however submitted that in view of Article 65 of the Limitation Act of 1963, a plaintiff suing on the basis of his title is not required to prove his possession within 12 years of the date proceeding the date of filing of the suit. If the plaintiff establishes his title, it is for the defendant to establish that such title has been defeated by reason of the defendant having acquired title by adverse possession. He relied upon the judgment of this Court reported in 1982 BBCJ 320 : 1982 PLJR 301 and upon a judgment of the Madras High Court reported in AIR 1976 Madras 124. He further contended that the defendant had not raised the plea of adverse possession and, therefore, there was no justification for this Court to go into that question. He relied upon the judgment of this Court reported in 1982 BBCJ 320 : 1982 PLJR 301 and upon a judgment of the Madras High Court reported in AIR 1976 Madras 124. He further contended that the defendant had not raised the plea of adverse possession and, therefore, there was no justification for this Court to go into that question. According to him, even the trial court was not justified in going into that question, and in any view of the matter, the finding recorded by the trial court is perverse and is based on no evidence on record. It was further submitted that even if that plea could be gone into, on the facts as pleaded by the defendant himself, that plea was negatived since the defendant did not disclose the exact date of the oral settlement which is said to have been made in the year 1959, and the instant suit was filed in April, 1971. 10. I shall first take up the legal submission urged on behalf of the defendant that the plaintiff having failed to prove her possession within 12 years preceding the date of filing of the suit, even if she has succeeded in establishing her title, the suit cannot be decreed. Under the Limitation Act, 1908, Article 142 provided for suits for possession of immovable property when the plaintiff while in possession of the property had been dispossessed or had discontinued the possession. The period of limitation prescribed for such a suit was 12 years from the date of the dispossession or discontinuance. The residuary article namely Article 144, provided for suits for possession of immovable property or any interest therein not otherwise specially provided for. The period of limitation prescribed for such a suit was 12 years from the date when possession of the defendant became adverse to the plaintiff. Article 142 covered suits based on what can be called possessory title, that is, title derived from previous possession, as also suits based on title, that is, proprietory title. It was well settled that in any suit governed by Article 142 of the Limitation Act, 1908, the plaintiff had not only to establish his title but also that the said title was a subsisting one by showing that he was in possession within 12 years. It was well settled that in any suit governed by Article 142 of the Limitation Act, 1908, the plaintiff had not only to establish his title but also that the said title was a subsisting one by showing that he was in possession within 12 years. Once it was so established, the onus shifted to the defendant to establish that he had a better title than the plaintiff and, therefore, entitled to retain possession. There was no distinction between a suit based upon title and a suit based upon previous possession. Since in both cases, limitation runs from plaintiff's dispossession or discontinuance of possession, the onus was upon the plaintiff to prove when his dispossession or discontinuance of possession took place. 11. So far as Article 144 of the Act of 1908 was concerned, in cases falling under this article, the plaintiff was required to establish his ownership to the suit property and also the fact that the defendant entering into possession was not in contravention of his title. Once these elements were established by the plaintiff, the onus was on the defendant to prove that he had been in adverse possession for more than 12 years before suit. Since time ran from the date on which the defendant's possession became adverse to the plaintiff, the onus of proving when the defendant's possession became adverse to the plaintiff was on the defendant. It is well settled that the onus of proving adverse possession is always on the party who sets up title by adverse possession. 12. The Limitation Act, 1963 has brought about a significant change so far as suits for possession of immovable property or any interest therein based upon title are concerned. Article 64 of the Act of 1963 is now confined to suits for possession of immovable property based on previous possession and not on title, where the plaintiff while in possession has been dispossessed. Such a suit must be filed within 12 years of the date of dispossession. The onus therefore, is on the plaintiff not only to establish his possessory title, but also to prove that he was in possession of the suit property within 12 years of the date of filing of the suit. The same principle will, therefore, apply to such a suit as applied to a suit governed by Article 142 of the Act of 1908. The same principle will, therefore, apply to such a suit as applied to a suit governed by Article 142 of the Act of 1908. However, the main part of Article 65 of the Act of 1963 relates to a suit for possession of immovable property or any interest therein based on title. The period of limitation prescribed is 12 years from the date when the possession of the defendant became adverse to the plaintiff. Therefore, the plaintiff has only to lay the foundation for the applicability of Article 65 by establishing his title. Once that is done, the onus shifted to the defendant to prove that he had been in adverse possession for more than 12 years before the suit. 13. The position that emerges from the above discussion is that a suit based upon possessory title is governed by Article 64 of 1963 Act and so far as the onus of proof is concerned the same principles apply as applied to a suit governed by Article 142 of the Act of 1908. But so far as suits based on title are concerned, the principles regarding onus of proof as applied to suits governed by Article 144 of the Act of 1908 shall apply to such suits. Consequently in a suit for possession based upon title, the plaintiff is only required to prove his title and not that he was in possession within 12 years of the date of filing of the suit. If he proves his title, the onus shifts to the defendant to prove that such title has been defeated by defendant's adverse possession for a period of 12 years before the filing of the suit. 14. While making its recommendations, the Law Commission in its report observed that it was highly iniquitous and unjust to the true owner to require him not only to establish his title, but also that his dispossession or discontinuance of possession had taken place within the period of limitation. Even these objects and reasons relating to Article 64 of the Act of 1963 disclose that Article 64 was restricted to suits based on possessory title so that an owner of property does not lose his right to the property unless the defendant in possession is able to prove adverse possession. Even these objects and reasons relating to Article 64 of the Act of 1963 disclose that Article 64 was restricted to suits based on possessory title so that an owner of property does not lose his right to the property unless the defendant in possession is able to prove adverse possession. I have noticed the observation of Law Commission and those objects and reasons, not as an aid to interpretation but only to indicate that the legislative intent has been fully given effect to by the clear words employed in Articles 64 and 65 of the Act of 1963. 15. The view that I have taken is consistent with the law declared by a Division Bench of this Court in AIR 1982 Patna 206 : 1982 PLJR 301. The decision is binding upon me sitting singly, but lest it be said that the law was so declared upon a concession made, I considered it appropriate to give my own reasons also in support of the proposition laid down in that judgment. This court observed :- "In the present appeal Sri Balbhadra Pd. Singh learned counsel for appellants has trie1 to make out a distinction between the provisions contained in Art. 65 of the Limitation Act, 1963 and that of the provisions contained in Art. 142 of the Limitation Act 1908 which are the corresponding Articles of each other. He has relied on the introduction of the expression "based on title" appearing in Art. 65 of the Limitation Act of 1963 which was not found in the earlier corresponding Article of the Limitation Act of 1908. On that basis, learned counsel Sri Balbhadra Pd. Singh has tried to persuade that by virtue of this introduction, the plaintiffs are required only to prove title; and thereby shift the onus on the defendants to establish adverse possession. There seems to be substance in the contention. It may also be noted here that Sri Prem Lall counsel for the defendant dose not dispute the position of law as put forward by the appellant. There seems to be substance in the contention. It may also be noted here that Sri Prem Lall counsel for the defendant dose not dispute the position of law as put forward by the appellant. Thus, in view of the contentions raised at the bar on this question, I do hold that under the present Art. 65 of the Limitation Act 1963 the plaintiffs have only to prove their title and it is only thereafter, the onus shifts on the defendants to establish the plea of adverse possession." I find that a similar view has been taken by the Madras High Court in the case reported in AIR 1976 Madras 124 and by the Orissa High Court in AIR 1980 NOC 15 and in (1976) 46 Cuttack Law Times 287. Learned counsel for the respondent did not bring to my notice any decision taking a contrary view. 16. It was urged by the respondent that the decision of this Court reported in AIR 1921 Patna 237 has not been overruled and that is binding upon me. The submission overlooks the significant fact of change of Law. The instant suit is governed by the Limitation Act of 1963 while the decision of this court referred to by him was under the earlier Act of 1908. I have already held that so far as suits based on title are concerned, the Act of 1963 has brought about a significant change and in such suits the plaintiff is no more required to prove his possession within 12 years of the date of the filing of the suit. In this view of the matter, the contention urged on behalf of the defendant/respondent must be rejected. 17. I shall now consider the alternative plea urged on behalf of the respondent that even if it be held that the plaintiff had proved her title, such title was defeated by reason of the defendant's adverse possession for a period of 12 years or more before the filing of the suit. It is well settled that it is for the defendant to show that the plaintiff had lost its title by the defendant's adverse possession of the property for the statutory period. The onus in such cases is obviously on the defendant to proof his adverse possession in the statutory period. The law is well settled. It is well settled that it is for the defendant to show that the plaintiff had lost its title by the defendant's adverse possession of the property for the statutory period. The onus in such cases is obviously on the defendant to proof his adverse possession in the statutory period. The law is well settled. As early as in 43 India Appeal 192 : AIR 1916 PC 21 it was observed:- "nothing is better settled than that the onus of establishing title to property by reason of possession for a certain requisite period lies upon the person asserting such possession. It is too late in the day to suggest the contrary of this proposition. If it were not correct, it would be open to the possessor for a year or a day to say : I am here; be your title to the property ever so good, you cannot turn me out until you have demonstrated that the possession of myself and my predecessor was not long enough to fulfill all the legal conditions. It would be contrary to all legal principles thus to permit this squatter to put the owner of the fundamental right to a negative proof upon the point of possession." 18. In 481 I.A. 395 : A.I.R. 1922 P.C. 181 it was observed: "standing a title in "A" the alleged adverse possession of "B" must have all the qualities of adequacy, continuity and exclusiveness which should qualify such adverse possession. But the onus of establishing these things is upon the adverse possessor. Accordingly, when the holder of a title proves, as in their lordships view, he does with some fullness proof in the present case, that he too has been exercising during the currency of his title various acts of possession, then the quality of these acts, even although they might have failed to constitute adverse possession as against another may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is demanded from any person challenging by possession of the title which he bolds" In 1964 (6) S.C.R. 780 : A.I.R. 1964 S.C. 1254 it was observed:- "adverse possession must be adequate in continuity in publicity and extend and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against party affected can be found. There is no evidence here when possession became adverse. If it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for several 12 years or that the plaintiff had acquired an absolute title was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea." 19. From the authorities referred to above, it is quite patent that one who pleads title by adverse possession must not only plead it specifically or at least plead the facts relevant thereto, but the onus is also upon him to prove that he has defeated the lawful title of the plaintiff by acquiring title by adverse possession. The defendant claiming title by adverse possession must establish the precise date from which his possession became adverse because in the absence of such evidence, it would not be possible to establish when possession became adverse so that the starting point of limitation can be found. 20. There is much force in the submission urged on behalf of the plaintiff/appellant that in the written statement the defendant has not pleaded adverse possession. It is obvious from a bare reading of the written statement that no such plea has been raised. I have also read the deposition of the defendant. There is no plea of adverse possession even in his deposition, because mere possession is not adverse possession. At the highest the case of the defendant is that he took oral settlement in the year 1959. According to him he raised some constructions in 1963. As observed earlier, the defendant has not disclosed on what date oral settlement was made in his favour. I will assume in his favour that even from the date of the oral settlement, his possession became adverse to that of the lawful title-holder. Learned counsel for the plaintiff strongly resented that this favour could not be shown to the defendant because mere oral settlement did not by itself prove that the defendant exercised any rights in respect of the land in-question. According to him, at the highest, when the defendant raised constructions on the plot, it may be said that he exercised rights adverse to the title of the title-holder. According to him, at the highest, when the defendant raised constructions on the plot, it may be said that he exercised rights adverse to the title of the title-holder. There is force in the submission of the plaintiff/appellant, but, even assuming that the date of the oral settlement is the date for commencement of the adverse possession of the defendant, the plea of adverse possession must fail. The defendant has not disclosed the date from which the adverse possession commenced, namely, the date of oral settlement in 1959. The suit was filed on the 7th of April, 1971. The question is from what date in the year 1959 the adverse possession commenced. The onus was upon the defendant to prove that he had perfected his title by adverse possession for the statutory period of 12 years. It was, therefore, for him to establish that on the 7th of April, 1971 the date of the filing of the suit, he had perfected his title by adverse possession. In the absence of the date of oral settlement, it is not possible to find out the starting point of limitation against the party affected because if the settlement was made any time after 7th of April, 1959, it must be held that the defendant had failed to perfect his title by adverse possession. However, if the oral settlement was made before the 7th April, 1959, the plea of adverse possession raised by the defendant can be examined. The defendant having failed to show when his possession became adverse, even assuming that he was in adverse possession from the date of oral settlement in the year 1959, the case is squarely covered by the principles laid down by the Supreme Court in Abdul Karim A.I.R. 1901 S.C. 1254. It was for him to establish the date from which his possession became adverse so that the starting point of limitation could be found. He having failed to do so, his plea of adverse possession must also fail. 21. I, therefore, hold in agreement with the finding recorded by the appellate court that the plaintiff has proved her title to the suit lands. I further hold that the defendant has not even set up a plea of adverse possession nor is there any evidence on record to establish such adverse possession. 21. I, therefore, hold in agreement with the finding recorded by the appellate court that the plaintiff has proved her title to the suit lands. I further hold that the defendant has not even set up a plea of adverse possession nor is there any evidence on record to establish such adverse possession. Assuming that adverse possession commenced from the date of oral settlement in the year 1959, in the absence of the exact date on which such oral settlement was made and possession commenced, the plea of adverse possession must fail because it is not possible to find out the starting point of limitation in the absence of the relevant date. Because even if the submission of the learned counsel for the defendant is accepted that the oral settlement took place in the year 1959, the suit was filed in the year 1971 and it could be well within the period of limitation unless the defendant proved that the oral settlement was made prior to the 7th of April, 1959. 22. I may only observe that the trial court did hold that the defendant had established his plea of adverse possession merely on the fact that he was in possession since 1959. That as I have shown earlier, is wholly erroneous. Since the defendant has not pleaded adverse possession in the manner required by law, nor is there any evidence at all to establish adverse possession, I did not consider it necessary to remand this appeal to the appellate court on that question. In this view of the matter, this appeal is allowed and the suit filed by the plaintiff/appellant is decreed. The judgment and decree of the trial court as well as the appellate court are set aside. The title of the plaintiff to the suit lands is hereby declared and it is further declared that she is entitled to Khas possession of the same by evicting the defendant/respondent. The plaintiff shall be entitled to her costs throughout.