JUDGMENT J.G. Chitre, J. 1. The appellants are hereby assailing the correctness, propriety and legality of the decree passed by the Additional Judge to the Court of District Judge, Indore in Regular Civil Appeal No. 75-A of 1987 by which he set aside the decree which was passed by IIIrd Civil Judge Class II, Indore in the matter of Civil Suit No. 69-A of 1974 which was in favour of the appellants. 2. This appeal has been admitted on following substantial questions: (1) Whether in view of the facts and circumstances of the case the doctrine of tacking is attracted and whether the lower Appellate Court was right in holding that the respondent No. 1 had perfected his title by adverse possession on that account ? (2) Whether in the facts and circumstances of the case the first Appellate Court was right in law in concluding that the respondent No. 1 had become the legal owner of the suit property by operation of Section 15(1)(d) of the Hindu Succession Act, 1956 on the death of Saibai ? 3. Shri Upadhyaya, learned Counsel for the appellants by making reference to the evidence on record submitted that respondent Laxman has not proved that he became the owner of the suit property by his adverse possession. He submitted further that the first Appellate Court committed the error of law in coming to the conclusion that respondent Laxman inherited the property of Saibai in view of Section 15(1)(d) of Hindu Succession Act, 1956 (hereinafter referred to as Succession Act for convenience). He also submitted that doctrine of "tacking" does not apply in the present case because it is inconsistent with evidence on record. He made reference to Section 93 of Transfer of Property Act in this context. 4. Shri B.K. Joshi learned Counsel appearing for respondent also made a reference to the evidence on record and submitted that deceased Krishnarao was never in possession of the suit property because he was away from suit property and residing at Pune from the year 1947 till his death. He submitted further that Saibai was in continuous peaceful and un-obstruction possession hostile to the title of Krishnarao since 1935 till her death and therefore she had acquired ownership in respect of the suit property by adverse possession. He submitted further that Saibai was in continuous peaceful and un-obstruction possession hostile to the title of Krishnarao since 1935 till her death and therefore she had acquired ownership in respect of the suit property by adverse possession. He further submitted that respondent-Laxman falls in the category of heirs mentioned in Section 15(1)(d) Succession Act and therefore he was owner of the suit property. He justified the impugned decree of the first Appellate Court as correct, proper and legal, 5. Section 93 of Transfer of Property Act reads : XXX XXX XXX XXX XXX 6. It is obvious from the language of Section 93 that it relates generally to transaction of mortgage and it relates to Article 144 of the Limitation Act, 1908 which corresponds to Article 65 of Limitation Act of 1963. Article 65 of Limitation Act, 1963 (hereinafter referred to as New Limitation Act for convenience), reads:- Description of suit Period of Time from which period limitation begins to run 65. For possession of Twelve When the possession of immovable property years the defendant becomes or any interest there- adverse to the plaintiff, in based on title. It provides the period of limitation as 12 years from the time when the possession of defendant becomes adverse to the plaintiff. Section 2(4) of the Limitation Act defines defendant as "defendant" includes any person from or through whom a defendant derives his liability to be sued. Section 2(e) defines defendant as any person whose estate is represented by the defendant either in the capacity of an executor, or other representative or administrator. 7. Shri Upadhyaya placed reliance on the judgment of Bombay High Court in the matter of Hamidmiya Sarfuddin and Ors. v. Nagindas Jivanji and Ors. (AIR 1933 Bombay 217) wherein the Bombay High Court held that in order to constitute adverse possession, possession of distinct trespassers cannot be tacked on as the distinct trespassers cannot be deemed to claim through each other. 8. v. Nagindas Jivanji and Ors. (AIR 1933 Bombay 217) wherein the Bombay High Court held that in order to constitute adverse possession, possession of distinct trespassers cannot be tacked on as the distinct trespassers cannot be deemed to claim through each other. 8. Shri Upadhyaya further placed reliance on the judgment of Privy Council in the matter of Secretary of State v. Debendra Lal Khan (AIR 1934 P.C. 23) wherein Privy Council held that possession acquired under a foreclosure decree is no doubt not in privity with the mortgage title, but when the foreclosure decree was set aside, such title as a possessor has become one derived from the mortgagor, and he was to be answerable as mortgagee in a suit for redemption and accounts. The decree pronounced against him proceeds on the footing of his being a mortgagee in possession, and as a mortgagor for the purpose of the Limitation Act can avail himself or "tack" on to his own adverse possession. 9. Shri Upadhyaya further placed reliance on the judgment of Supreme Court in the matter of Gurbinder Singh and Anr. v. Lal Singh and Anr. ( AIR 1965 S.C. 1553 ) in which Supreme Court held that "in a suit to which Art. 144 is attracted the burden is on the defendant to establish that he was in adverse possession for 12 years before the date of suit and for computation of this period he can avail of adverse possession of any person or persons through whom he claim but not the adverse possession of independent trespassers. This is also clear from the language of third column of Article 144 and the definition of the word "defendant" in Section 2(4). No doubt it is an inclusive definition but the gist of it is the existence of a jural relationship between different persons. There can be no jural relationship between two independent trespassers. Therefore, where a defendant in possession of a property is sued by a person who has title to it but is out of possession, what he has to show in defence is that he or anyone through whom he claims has been in possession for more than the statutory period. An independent trespasser not being such a person, the defendant is not entitled to tack on the previous posssession of that person to his own possession. 10. An independent trespasser not being such a person, the defendant is not entitled to tack on the previous posssession of that person to his own possession. 10. The first Appellate Court has held in paragraph 10 of the judgment that doctrine of "tacking" is applicable in the present case and in view of that as respondent Laxman had inherited the property of Saibai, he became the owner of the suit property by adverse possession by which Saibai was the owner of the suit property. 11. It has been revealed by the evidence on record that Saibai had gifted the suit property to deceased Krishnarao, whom the appellants are representing as legal heirs, in the year 1937. The suit was filed by deceased Saibai for cancellation of the said gift-deed but the said suit was dismissed in the year 1940. Thus, the said gift-deed became final in favour of deceased Krishnarao and he became the owner of the suit property and got the possession of the suit property in the year1940. The evidence on record also reveals that Laxman admitted in his crossexamination in paragraph 12 that till death (1961) Krishnarao was in possession of the suit property as owner. Therefore, this evidence on record repells the argument which has been advanced by Mr. B.K. Joshi, Counsel for respondent Laxman. In view of this evidence Saibai was not in possession of the suit property from year 1934 till her death which record discloses was in the year 1968-69. This also proves that Krishnarao was in possession of the suit property till 1961. It means that Saibai could have been in possession of the suit property adverse to the ownership of the appellants since 1961 to 1968-69 when the L.Rs., the appellants were out of Indore and residing in Maharashtra. 12. The first Appellate Court also held that Saibai was owner of the suit property by adverse possession and after her death the present respondent Laxman inherited her property in view of Section 15(1)(d) of Succession Act. 12. The first Appellate Court also held that Saibai was owner of the suit property by adverse possession and after her death the present respondent Laxman inherited her property in view of Section 15(1)(d) of Succession Act. The doctrine of tacking cannot be applied in the present case and respondent- Laxman cannot be treated as owner of the suit property inheriting it through deceased Saibai because Laxman has not pleaded to that effect in his written statement though it was amended by providing paragraph No. 3-A. In paragraph No. 3-A he has made the averment that after the death of Saibai, he was in adverse possession of the suit property continuously without any obstruction openly, peacefully and adverse to the ownership of the present appellants. 13. It is pertinent to note here that the present suit was filed in the year 1974. Saibai was in possession of the suit property till 1968-69 as disclosed by evidence on record. Therefore, after her death respondent-Laxman could be in possession of the suit property from 1968-69 till the present suit was filed in 1974. 14. As the doctrine of tacking is not applicable to the present case as pointed out in above paragraph in view of the judgments of Bombay High Court, Privy Council and Supreme Court quoted supra, respondent-Laxman was obliged to prove that he was owner of the suit property by his independent adverse possession. For that purpose it was necessary for him to prove that he was in possession of the suit property continuously, peacefully, without any obstruction, openly and against the title of the present appellants. The evidence on record shows that his possession in respect of the suit property was not for more than twelve years. Thus, respondent-Laxman has also failed on this Count. 15. The learned Judge of the first Appellate Court has not considered the above important aspect of the matter and has permitted himself to be misled. He mis-applied the doctrine of tacking in context with the evidence on record. He has also erroneously held that in view of doctrine of tacking and as heir of Saibai in view of Section 15(1)(d) of Succession Act, respondent-Laxman became the owner of the suit property. The learned first Appellate Court erred in not holding that it was necessary for respondent-Laxman to prove his independent possession in context with the evidence on record. 16. The learned first Appellate Court erred in not holding that it was necessary for respondent-Laxman to prove his independent possession in context with the evidence on record. 16. Thus, in view of the discussion made above I hereby come to the conclusion that the impugned judgment and decree passed by the first Appellate Court are incorrect, improper and, therefore, illegal. This appeal will have to be allowed and the decree passed by the Trial Court in favour of the appellants will have to be restored. 17. Thus, the appeal is allowed with costs. The decree passed by the first Appellate Court is set aside and the decree passed by the Trial Court is hereby restored. Counsel's fee as per schedule. 18. Mr. B.K. Joshi, learned Counsel for respondent-Laxman made a prayer that time be granted to respondent-Laxman for vacating the suit property. Mr. Upadhyaya, learned Counsel for the appellants seriously objected to it by submitting that appellants do not have any house to reside, however, respondent- Laxman has his own house at Indore. Thus, in view of this aspect of the matter and the long battle of litigation, I hereby dismiss the prayer made by Mr. B.K. Joshi for respondent for granting time to respondent-Laxman to vacate the suit premises.