C. A. RAHIM, J. This appeal has been preferred against the judgment and decree of Civil Judge, Gorakhpur, dated 10-10- 1985 in Civil Appeal No. 439 of 1983. By that judgment he allowed the appeal filed by the plaintiff and decreed the suit with cost. The defendant was directed to remove the constructions ABCD situated in Khasra No. 985 in Mohalla Basharatpur, Tahsil Rasulpur, Pargana Handi, Tahsil Sadar, District Gorakhpur and to deliver the possession to the plaintiff. 2. The plaintiffs case, in brief, is that the plaintiff is bhumidhar and owner of the plot in Khasra Nos. 985 and 986 in Mauja Basharatpur within Tahsil and District Gorakhpur. He was a Government servant and had to remain outside Gorakhpur in connection with the said service. He retired in December 1980. In June 1979 when he was posted at Barabanki he received anin formation that the defendant had been car rying construction in Khasra No. 985 illegally. On receiving the said information he went to Gorakhpur and moved an applica tion before the Gorakhpur Development Authority to demolish the said construc tion. Information to police was also given but without any affect. The defendant stated that the said construction is in Khasra No. 1198 which he acquired from Gaon Sabha but according to the plaintiff the said state ment was wrong and it was being done in plot No. 985 and not on 1198. 3. The defendant contested the suit by filing a written statement where it is alleged that the construction of the defendant was done by his mother 40 years ago, which he repaired about 17- 18years ago and he there after changed the thatched roof in the year 1981. It was also stated by the defendant that the said construction was done on agricul tural land in plot No. 1198 and not in 985, as alleged by the plaintiff, but when the map was prepared by the Amin the defendant made an amendment of the written state ment and added paragraph No. 20-A, which runs thus: "that if on the basis of incorrect entries in Government records the construction in dispute found to be situate in plot No. 985, then too, the defendants construction which is 40 years old, acquired adverse possession over the ownership rights from the time of his ancestors. Since 40 years the plaintiff was not in possession of the disputed land. Since 40 years the plaintiff was not in possession of the disputed land. " On the pleadings of both the parties 12 issues were framed. Out of them issues No. 1,2 and 12 are relevant for the purposes of determining the adverse possession. (1) Whether the plaintiff is bhumidhar of plot No. 985. If so its effect? (2) Whether the construction in suit lies in Plot No. 985. If so its effect? (12) Whether the defendant has got title by adverse possession? 4. The learned Munsif held issues Nos. 1,2 & 12 in favour of the defendant. Accord ingly he dismissed the Suit with costs. Being aggrieved by the said judgment and order dated 31-10-1983 the plaintiff filed an ap peal which was decided in the aforesaid manner. 5. Before this Court the appeal was heard on 4. 5. 1993. The brother Judge who heard the appeal remanded the case back to the court below to decide the question of adverse possession, as according to him the court below did not framed issue on record a clear finding as to when possession of the defendant began and whether there was ad verse possession. The matter went to the Supreme Court. The Honble Judges by order dated 10-11-1994 remanded back the matter to this Court to consider it once again if it would still choose to consider remanding the case to the lower appellate court when it was found that an issue with regard to adverse possession was framed. 6. It appears that issue No. 12 has been framed by the lower court to the effect whether the defendant has become owner of the suit land by way of adverse possession. So it is now required to be decided whether the plea of adverse possession taken by the defendant alternatively with the claim for title on the disputed land, was proved. 7. It is apparent that in the written statement the defendant has claimed that the disputed land did not belong in plot No. 985 but within plot No. 1198. At that time the plea of the defendant was obviously that he neither encroached upon the land in plot No. 985 nor he made any construction thereon. 7. It is apparent that in the written statement the defendant has claimed that the disputed land did not belong in plot No. 985 but within plot No. 1198. At that time the plea of the defendant was obviously that he neither encroached upon the land in plot No. 985 nor he made any construction thereon. His application for amendment with the plea of adverse possession was made on 13-4-1983 but there too the con tention of the defendant was that if the disputed land was found to be situated in plot o. 985 then due to the construction of the defendant made 40 years ago it should be treated as adverse possession. But he did not relinquish his right of ownership which ac cording to him acquired by his ancestors. 8. The learned counsel for the defen dant-appellant has submitted that this alternative plea being inconsistent to each other cannot be taken by the defendant. He has referred the case of Arundhati Mishra (Smt.) v. Sri Ram Charitra Pandey (1994) 2 Supreme Court Cases 29. In paragraph 4 it has been held: "the question in this case is whether the plea of adverse possession sought to be set up by the respondent could be permitted to be raised. The pleas based on title and adverse possessions are mutually inconsistent and the latter does not begin to operate until the former is renounced. It is his own case that he came into possession of the suit house in his own right and remained in posses sion as an owner. The appellant is only benamidar. Therefore, his plea is based on his own title. He never denounced his title nor admitted the title of the appellant. He never denounced his character as an owner asserting adverse possession openly to the knowledge of the appellant and the appellants acquiescence to it. Thereafter, he remained in open and peaceful possession and enjoyment to the knowledge of the appellant without acknowledging/or acquiescing the right, title and interest of the appellant. The plea of adverse possession, though available to the respondent, was never raised by him. Only on receipt of the first notice he denied title of the appellant and made it known to him for the first time through the reply of the notice got issued by him. Even then the plea of adverse possession was not raised in the written statement. Only on receipt of the first notice he denied title of the appellant and made it known to him for the first time through the reply of the notice got issued by him. Even then the plea of adverse possession was not raised in the written statement. No explana tion for the belated plea was given. Even assuming that the reply dated March 15, 1971 constitute assertion of adverse possession, the limitation would start running against the appellant only from March 15,197 land not earlier. The suit was filed in 1978 within 12 years. Under these cir cumstances, the High Court is not justified in permitting the respondent to raise the plea of adverse possession. . . . . " In the instant case the plea of the defendant is that his mother got the allot ment of plot No. 1198 from the Church Mission 40 years prior to the date of the institution of the suit. She constructed the house where the defendant was born. He made repair in 1985 and after decision of the Gorakhpur Development Authority on the application made by the plaintiff with regard to the construction he changed the thatched roof to a pacca roof in 1981. In the written statement he categorically stated that the said construction did not-belong to plot No. 985 but situated on plot No. 1198. In the application filed for amendment of the written statement on 13-4-1983 he also did not put up specific plea with regard to the adverse possession but stated hesitat ingly that if the said construction to be found in plot No. 985 that should be treated as adverse possession when he appeared before the court on 12-10- 1983 to depose in this case, the consistently stated that the said house was 40-45 years old and it was constructed on plot No. 1198 by his mother. In the last paragraph of cross-examination he also reiterated 1985 NUMBER MERE MAKAN SE SATAHUAHAI. " No where it was stated by the defendant that the house was constructed on plot No. 985 which belonged to the plaintiff. So it appears that the plea of adverse possession taken by the defendant in his amendment application alongwith his plea of ownership alternative ly, but not pursued by the defendant in his deposition which was made after six months of the said amendment. So it appears that the plea of adverse possession taken by the defendant in his amendment application alongwith his plea of ownership alternative ly, but not pursued by the defendant in his deposition which was made after six months of the said amendment. So the claim of averse possession remained confined in the written statement byway of amendment but it was not exerted by the defendant at the time of giving evidence. Even assuming that he had the plea of adverse possession alter natively, this point falls within the mischief of the decision of Arundhati Mishra (supra ). The plea of adverse possession if available to the defendant appellant was never raised by him in an unequivocal terms. According to the said decision even assuming that he raised such a plea in his application for amendment of the written statement on 13-4-1983, the Suit will not suffer on the ques tion of limitation as there was no claim of adverse possession prior to the said amend ment. It appears that all along the defendants plea was based on his own title. He never denounced his title nor the ad mitted the title of the plaintiff-respondent. In order to raise the plea of adverse posses sion it is necessary to assert that he is in possession of a particular plot which he does not own as of right. He must assert that his possession is adverse to the right of ac tual owner. Accordingly the two pleas claiming right of ownership and of adverse possession, cannot be raised in one breath. In the instant case the claim of adverse pos session not being raised specifically, une quivocally and in clear terms dis- owing the right of the plaintiff, is not available to the defendant. Accordingly I find that there is no substance in the contention of the learned counsel for the plaintiff- respon dent. 9. The learned lower appellate court referring some decisions, including one of the Privy Council, has held that animous of the defendant possessing the disputed land adversely against the interest of the plain tiff, has not been proved. 10. Accordingly I find that there is no substance in the contention of the learned counsel for the plaintiff- respon dent. 9. The learned lower appellate court referring some decisions, including one of the Privy Council, has held that animous of the defendant possessing the disputed land adversely against the interest of the plain tiff, has not been proved. 10. In V Muthiah Pillai and others v. Vedambal and others, AIR 1986 Madras 106, a Division Bench on this aspect held at page 112 that: "the concept of adverse possession con templates a hostile possession i. e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknow ledge the others rights, but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. " In the instant case it appears that the defendant all along claimed that his mother made construction on plot No. 1198 and not on 985. Whether there is proof of adverse possession is a question of fact. Both the courts below have made their own inter pretation of the evidence and documents tendered by both the sides. Broadly it ap pears that the claim of dispossession made by the plaintiff-respondent in June 1979 was not corroborated besides the inspection report dated 7-7-1979 where it was stated that the construction was/made one month before. 11. From the site plan prepared by the Amin it appears that there were three con structions on the disputed land. Apparently it appears that the said inspection report dated 7-7-1979 does not relate to the entire construction but a portion of the construc tion. The learned Munsif did not rely on the evidence of P. W. 2 Doodh Nath on the ground that he was an interested witness as he deposed that he used to go to that place for grazing catties being a resident in a vil lage situated at a distance of one mile. The learned Munsif did not rely on the evidence of P. W. 2 Doodh Nath on the ground that he was an interested witness as he deposed that he used to go to that place for grazing catties being a resident in a vil lage situated at a distance of one mile. But the learned Munsif was not correct in hold ing that since the plaintiff could not prove that the construction was old, therefore, the allegation of the defendant is proved that the construction of the defendant was about 40 years (page 5 of the judgment ). 12. Factual aspects apart whether dis possession was made in the year 1979, ac cording to the plaintiff, or 40 years before, according to the defendant, the case of ad verse possession as made out by the defen dant does not satisfy the ingredients as re quired for the purposes of proving the case for adverse possession. I have already ob served that no animous has been proved on behalf of the defendant which is an essential requirement for such claim. 13. In the case of Musammat Sitaibai v. Jumo, (1935) 157 Indian Cases 283, it was held that: "possession and adverse possession do not mean the same thing. A mere user of the property cannot be taken as a definite assertion of proprietary right, there must be some definite quality in the possession before it can be called adverse, and some act of an unequivocal character to put the owner on guard. There cannot be ad verse possession if the defendant himself did not know that he was occupying some body elses land; he must have the intention of using the property adversely against the other claimant. " Even if assuming that the construction was made 40 years ago on the land of the plaintiff i. e. on plot No. 985, the defendant was in mistaken belief that it was in plot No. 1189, which is clear from the written state ment filed by the defendant in this suit. The said illusion also divested him to file a hesitant amendment, not in specific terms, and also deposition made by him in the year 1983. So it is clear that the defendant him self did not know that he was occupying the land of the plaintiff or in other words he was occupying a portion of plot No. 985. The said illusion also divested him to file a hesitant amendment, not in specific terms, and also deposition made by him in the year 1983. So it is clear that the defendant him self did not know that he was occupying the land of the plaintiff or in other words he was occupying a portion of plot No. 985. That being the position in view of the decision of Sita Bais case (supra) it can be said that his possession was openly and adversely against the right of the plaintiff, as dis-possession and adverse possession are two different concepts which are not mutual to each other. So the plea of adverse possession taken by the defendant is not permissible either in facts or in law. 14. Being devoid of merit, the appeal is, therefore, dismissed with costs. Appeal dismissed. .