This second appeal is by the plaintiffs. The suit was decreed by the learned trial Court which was reversed by the learned lower appellate Court. Hence, this appeal. 2. Briefly stated, facts are as follows :- One Md. Abdul Gani was a tenant under the landlord Maharaja Kirit Bikram Kishore Deb Barma Manikhya Bahadur and Gopi Chandra Das and Gagan Chandra Das took settlement of the suit land and constructed houses thereupon. By registered sale deed dated 66.11.1917 with delivery of possession the land was sold to the plaintiff and as such he became a tenant under the Maharaja and thereafter under the State of Assam. Defendant was inducted into suit land and house as a licensee on the request of a friend. Plaintiff has pleaded that defendant has without any permission, constructed a sanitary latrine. The plaintiff asked the defendant to vacate the land but in spite of repeated demands including registered notices the defendant failed to do so. Hence, the suit for recovery of khas possession by evicting the defendant who according to the plaintiff was a licensee under the plaintiff. It may be stated that plaintiff died during the pendency of this matter and his legal heirs have been substituted. 3. The suit has been resisted by the defendant. Apart from the legal pleas taken by the defendant, the specific plea of the defendant is the alleged purchase by the plaintiff was collusive, fraudulent and without consideration. According to the defendant, the suit land was a vacant plot of land and he occupied it by taking settlement from above Abdul Gani about 25 years back and thereafter he has been in posse­ssion of the land on his own right abversely to all others. The learned trial Court framed as many as five issues which are quoted below : (i) Has the suit been valued properly (ii) Is the suit bad for non joinder of State of Assam y (iii) Is the suit barred by time for the defendant being in possession for more than 12 years ? (iv) Whether the plaintiff (or his heirs have) has right, title and interest in the suit land ? (v) Are the plaintiffs entitled to recover possession by ejecting the defendants ? 4. The learned trial Court held that the suit is not barred by limitation/adverse possession and that plaintiff has acquired right, title and interest over the land. (iv) Whether the plaintiff (or his heirs have) has right, title and interest in the suit land ? (v) Are the plaintiffs entitled to recover possession by ejecting the defendants ? 4. The learned trial Court held that the suit is not barred by limitation/adverse possession and that plaintiff has acquired right, title and interest over the land. Accordingly the suit was decreed. 5. Learned lower appellate Court affirmed the findings of the learned trial Court holding that the suit land belonged to the plaintiff and that the defendant was licensee with the condition that he would vacate the land on demand. However, learned lower appellate Court applying the provisions of section 60 of the Indian Easement Act, 1882 held that the licence became irrevocable as the defendant constructed structures of permanent character incurring expenses. "while coming to the above decision, the learned lower appellate Court took into consideration the decision of this Court in Shri Girindra Kumar Horn Chondhury vs. Shri Ajit Mohan Nag, (1982) 1 GLR NOC 3. The learned lower appellate Court further held "that the permissive possession granted to the defendant also became adverse as soon as he started doing works of permanent nature on the suit land." In view of the above finding, the appeal was allowed by setting aside the judgment and decree of the learned trial Court. 6. During trial plaintiff examined 4 witnesses and defendant deposed himself and did not examine any other witness. 7. Mr. Sen at the out set has urged that placing reliance on the provisions of the Indian Easement Act, 1882 is illegal inasmuch as this Act is not applicable to the State of Assam, There is no dispute that this Act is not applicable. Mr. Senapati was urged that even though the Act is not applicable the principle of the Act has to be followed, hi this connection, Mr. Senapati has placed reliance in Nunia Mai vs. Maha Dev, AIR 1962 Punjab 299 wherein it was held by learned Single Judge that in those parts of the country where Indian Easements Act is not in operation, there is no reason why the principles underlying the provisions of the Act should not be followed in so far as they embody the rules of equity, justice and good conscience. I agree, with respect, with the above ratio and in fact Mr. I agree, with respect, with the above ratio and in fact Mr. Sen has also not disputed this legal position and accordingly hold that though section 60 of the said Act is not applicable the principle laid down in the said section may be followed. 8. Mr. Sen has urged that 'there is no plea set up by the defendants regarding irrevocable licence and the case of the defendant is that he was a tenant and in addition also took the plea of adverse possession. According to Mr. Sen as no such plea was taken by the defendant, the learned lower appellate Court erred in law in coming to the above conclusion. 9. There is no dispute that in any civil suit the 'parties are governed by their pleadings and no amount of evidence can be looked into in respect of facts which are not pleaded. It is also settled law that Court cannot make out a new case for the parties which is not pleaded. 10. In the case in hand after coming to the finding that the defendant was a licensee under the plaintiff, in my opinion, the learned lower appellate Court erred in law in considering whether it was an irrevocable licence as it was not pleaded. Mr. Senapati has urged that as the plaintiff him suit his pleaded licensee in the case in hand, there is no illegality for the learned lower appellate Court to examine whether it was an irrevocable licence. I am unable to accept the contention of the learned counsel inasmuch as any party in a civil Court cannot take the other party by surprise. If such a plea would have been taken in the written statement, the plaintiff would have adduced evidence on this count. 11. Ongoing through the judgment of the learned lower appellate Court, I find that basis of irrevocable licence has been dealt with while dealing with Issues Nos. 3 and 4 and I quote the relevant portion of the findings of the learned lower appellate Court - "In the instant case, the defendant claimed to have constructed the houses on the First Schedule land 24/25 years ago. He first constructed a house with kerosene tin on the roof and a kitchen with thatch 10/11 years before (from the date of deposition) he constructed a house with tin sheets. He first constructed a house with kerosene tin on the roof and a kitchen with thatch 10/11 years before (from the date of deposition) he constructed a house with tin sheets. There are three rooms and he has also taken power and constructed latrine." From these facts, it cannot be held in my opinion, that the defendant executed work of permanent character as laid down in section 60 of the Indian Easement Act. I, therefore, hold that the finding of the learned lower appellate Court is erroenous in law. 12. According to Mr. Sen whether the licence was irrevocable one or not would depend on the original grant and as this plea was not taken by the defendant, the plaintiff had no occassion to prove the original terms of the licence. Mr, Sen has placed reliance in Gnjrat Ginning and Manu­facturing Co. Ltd., AIR 1936 PC 77 wherein after considering section 62 of the Easement Act, 1882, it was held that "acting upon the licence" means acting upon a right granted to do upon the land of the grantor something which would be unlawful in the absence of such right. As in the case in hand, the original condition of the licence is not available, the. plea of the defendant regarding irrevocable licence is not sustainable in law. 13. Mr. Senapati has urged with considerable force that as soon as the house was constructed by the defendant and as there was no resistance from the plaintiff though defendant was a licensee, adverse possession started from the date of construction of the house. In reply, Mr. Sen has stated that it would depend on the terms and conditions of the licence granted by the plaintiff. Merely because the house was constructed, it cannot be held that adverse possession commenced from the date of construction. 14. As the defendant has taken plea of adverse possession, the burden is on the defendant to prove this plea. Except his own state­ment, no other evidence has been adduced. It may be stated that mere possession however, long does not necessarily mean that it would be ad versed against the true owner. 15. Adverse possession becomes hostile to the rightful owner when a person openly and continuously possesses land under a claim of right and adverse to the title of the true owner for the statutory period. There is no evidence on this point. 15. Adverse possession becomes hostile to the rightful owner when a person openly and continuously possesses land under a claim of right and adverse to the title of the true owner for the statutory period. There is no evidence on this point. That apart, there is also no finding of the learned appellate Court in this regard. 16. As the learned Court blow has held that the defendant was a licensee his possession was permissible and the question of adverse normally can not arise. Mr. Sen has placed reliance on the decision of the Apex Court in The State Bank of Trayancore ys. Arvindan Kunjn Panicker, AIR 1971 SC 996 . It was held by the Supreme Court that a permissive possession cannot be converted into an adverse posse­ssion unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of the true owners for a period of 12 years or more. Relying on this decision Mr. Senapati has also urged that as the defendant asserted his title for more than 12 years, the suit is barred by adverse possession. Their Lordships have clearly stated that such assertion should be against true owners. In the written statement defendant has not made any assertion of his title was adverse against the present plaintiff, but he has made only a vague statement regarding adverse possession. In view of the above ratio, I am unable to accept the finding of the learned lower appellate Court regarding adverse possession In other words I hold that after having decided that the defendant was a licensee, the finding regarding adverse possession is not sustainable in law, I may also add that there is no evidence on this point from the side of the defendant. 17. Mr. Senapati has drawn my attention to the decision of Patna High Court in Maharaj Singh and another vs. Budhu Chamar 'and others, AIR 1952 Patna 46. In that case it was found that the defen­dant acquired possession of the land under invalid lease deed. That being so it was held that as the defendants got possession without any title, lease deed being defective, his possession from the beginning was that of a trespasser and necessarily it was adverse to the plaintiffs and at any rate, so far as their right to khas possession was concerned. That being so it was held that as the defendants got possession without any title, lease deed being defective, his possession from the beginning was that of a trespasser and necessarily it was adverse to the plaintiffs and at any rate, so far as their right to khas possession was concerned. This is not so in the case in hand as it has been clearly held by both the Courts below that from beginning defendant was a licensee. 18. Regarding adverse possession Mr. Senapati has also drawn my attention to the decision of this Court in Smti Khaidem Ningol Moirangthem Ongbi Radhe Devi vs. Shri Khaidem Babudhon Singh, (1986) 1 GLR (NOC) 1. From going through the said report, I find that this Court reiterated the ingredients necessary to claim adverse possession. In the said report, it was also held that "possession can never become adverse if it cane be traced to a lawful title”. In the case in hand as the learned Courts below have held that the plaintiff has got title and that the defendant was a licensee, so his possession could be traced to the lawful title of the plaintiff and accordingly this decision is of no help for the defendant. 19. Mr. Sen has fairly stated that defendant at best is entitled to get cost of construction of the structures on the suit land. But the learned counsel has drawn my attention to the fact that as the defen­dant did not demand any amount for such construction, no relief can be granted. Mr. Sen has placed before this Court the decision in Karan Singh and another vs. Bndh Sen and others, AIR 1938 Allahabad 342, from where I find that compensation can be granted for any improvement done on the land as a licensee. As co claim was advanced in the case in hand before the learned trial Court by the defendant, in fact it was not his case that he was licensee, I am unable to grant any compensation even if construction were made by the defendant. 19A. Another submission of Mr. Sen which needs consideration is that in the memo of appeal before the learned lower appellate Court no such ground regarding irrevocable licence was taken and as such the finding of the learned lower appellate Court is erroneous. Mr. 19A. Another submission of Mr. Sen which needs consideration is that in the memo of appeal before the learned lower appellate Court no such ground regarding irrevocable licence was taken and as such the finding of the learned lower appellate Court is erroneous. Mr. Sen has further urged that this plea also cannot be taken up before this Court in this second appeal. 20. I have perused the memo of appeal before the learned lower appellate Court and I find that not only that this plea was not taken, in fact the ground taken was that the learned Munsiff illegally and most arbitrarily held that the defendant-appellant was a licensee vide ground No, 17. 21. In support Mr. Sen has placed reliance in lyyappan vs. The Dharmodayam Co., AIR 1966 SC 1017 . In the said report it has been held that it is not open to the parties to change his case at the appellate stage." I find from the report that plea of licence was tried to be taken at the stage of appeal, which was not allowed. Though Mr. Sanapati has urged that this decision is not relevant for the present purpose as it was a dispute between a company and another person, I am unable to accept the contention of learned counsel as in my opinion the ratio laid down is applicable in all cases. So the above submission of Mr. Sen has force. I, therefore, hold that this plea of irrevocable licence can not be taken for the first time in the second appeal and further that the learned lower appellate Court erred in law in holding that the licence was irrevocable thereby making a new case for the defendant which are not pleaded. 22. Mr. Senapti has urged that khas possession is adverse and further as the plaintiff allowed the defendant to raise permanent construction without a any objection, now he cannot claim khas posse­ssion. I am unable to accept the contention of learned counsel inasmuch as it cannot be said that merely beet use permanent structure has been constructed by a licensee he cannot be evicted unless such a plea is specifically taken in defence so as to cover the case under section 60 of the Easement Act. It Is not so in the case in hand. It Is not so in the case in hand. It is true that adverse possession was claimed but as stated earlier it was very vague plea and it was not stated in the written statement against whom such a plea was taken. In fact main thrust of the defence was the defen­dant was a tenant under Abdul Gani which, he could not prove. 23. At the cost of repetition and I reiterate that the defendant has absolutely failed to prove the adverse possession and the judgment of the learned lower appellate Court is not tenable in law. 24. For the reasons stated above, I find merit in the present appeal. In the result, the judgment and decree of the learned lower appellate Court are et aside and the judgment and decree of the learned trial Court are restored. Parties to bear their own costs.