Judgment :- 1. The plaintiff in O.S. No 13 of 1980 on the file of the District Munsif, Ranipet is the appellant. The suit filed by him was one for declaration that he is the owner of ‘B’ schedule property, more specifically described in the plaint plan, and for a consequential injunction restraining the defendants from interfering with his possession over the same. 2. As per Ex.A-1 the plaintiff purchased the property from his previous owner one Munirathina Mudaliar. It is the case of the plaintiff that even though as per the measurements given in the document, the plaint ‘B’ schedule property may not be covered therein, he came into possession of the same ever since the date of sale deed and was using that portion as adjunct to his building. It is said that after purchase of the vacant land under Ex.A-1 he has put up construction and was residing permanently. Draining of waste water from his house was through a drain constructed in the ‘B’ schedule and the entire portion is cemented. It is said that the area is adjunct to his building and is being used by him as owner. Defendants have now put forward a claim over the said area which necessitated the filing of the suit. 3. As against the said contention raised by the plaintiff, defendants put forward a plea that the plaintiff is not the owner of the ‘B’ schedule property and he also did not come into possession on the basis of sale. The plaintiff did not enjoy the property as adjunct to his house and the defendants still continue to be in possession. At any rate, the claim put forward by the plaintiff on the plea of adverse possession cannot be accepted. 4. On the above pleadings, the trial Court took oral and documentary evidence. Exs.A-1 to A-3 were marked on the side of the plaintiff. Exs.B-1 to B-3 were marked on the side of the defendants. Exs.C- 1 to C-4 are the reports and plans prepared by the Commissioner appointed by the Court. P.W.1 and D.W.1 who were examined are the plaintiff and the first defendant respectively. 5. The trial Court, after taking into consideration the entire documents, both oral and documentary, decreed the suit as prayed for. Exs.C- 1 to C-4 are the reports and plans prepared by the Commissioner appointed by the Court. P.W.1 and D.W.1 who were examined are the plaintiff and the first defendant respectively. 5. The trial Court, after taking into consideration the entire documents, both oral and documentary, decreed the suit as prayed for. It came to the conclusion that the plaintiff has been using the ‘B’ Schedule property as per Exs.A-1 and the claim of the plaintiff is proved. The suit was decreed declaring the title and also granting permanent injunction restraining the defendants and his men from interfering with his possession. 6. Against the judgment and decree of the trial Court, defendants, preferred A.S. No. 252 of 1983 on the file of the Additional District Judge, Vellore. The lower appellate Court reversed the finding of the trial Court and allowed the appeal. The lower appellate Court was of the view that there was no specific pica of adverse possession and that apart even on evidence, the claim has not been proved and on both the grounds, the findings of the trial Court were set aside and the suit was dismissed. 7. Against this judgment, the plaintiff has preferred this Second Appeal on the following substantial question of law: “Has not the lower appellate Court committed an error of law in holding that there was no plea., of adverse possession claimed by the plaintiff’ when in fact, in the plaint, he had claimed that for several years he had been in possession of the property adverse to the interests of the defendants and that his title has become perfect?” 8. For answering the question of law, it has to be considered as to what is the exact pleading put forward in the plaint. In para-3 of the plaint it is stated thus: Tamil 9. The said claim put forward by the plaintiff is denied in the written statement. On facts, the lower appellate Court found that the claim put forward by the plaintiff is not proved. In para-3 of the plaint it is stated thus: Tamil 9. The said claim put forward by the plaintiff is denied in the written statement. On facts, the lower appellate Court found that the claim put forward by the plaintiff is not proved. The main reason for entering into such a finding is that the plaintiff, while he was examined has stated thus: Tamil The lower appellate Court found that on the basis of this statement, it cannot be said that the plaintiff was claiming his title on the basis of prior possession and therefore, he cannot put forward a claim that he has prescribed the title by adverse possession. The lower appellate Court held that the plaintiff is not entitled to the relief sought for, in view of the pleadings. 10. The lower appellate Court also held that even assuming that the claim put forward on the basis of adverse possession can be considered, the same is not proved. Plaintiff purchased the property in the year 1960 and thereafter put up construction in the Year 1965. Plaintiff did not adduce any evidence as to when he put up the drain on the backyard of his building. He claims possession only from the year. 1969 and the suit was filed in the year 1980 i.e. within a period of 12 year. Therefore, the claim put forward by the plaintiff is not proved. 11. I feel that the judgment of the lower appellate Court is based on the findings on facts. Now, I will go to the question of law whether the plaintiff has proved his case, assuming that there is a plea of adverse possession. 12. The plaintiff and defendants are neighbours and the schedule property is in the backyard of both the plaintiffs and the defendants building. The defendants building is in the eastern side of the plaint schedule property. In the plan attached to the plaint, ABCD block is the property purchased by the plaintiff as per Ex.A-1. The claim of the plaintiff is that BCEF block which is having a width of 2 feet x3 feet respectively are the properties purchased by him under Ex.A-1. In the 2 feet x3 feet width of the property, he has put up a drain and has also cemented a portion of the width of the property. The claim of the plaintiff is that BCEF block which is having a width of 2 feet x3 feet respectively are the properties purchased by him under Ex.A-1. In the 2 feet x3 feet width of the property, he has put up a drain and has also cemented a portion of the width of the property. The water through the drain is taken towards the south where he has dug a pit and the water is stored there. 13. The Commissioner who visited the property has stated that the defendant is residing close-by on the eastern side, but there is no access or a door opening to the western side of his building. The report is absolutely silent about the width of the drain or about the plastering of the same of about the disputed block. It is not a case of construction made by the plaintiff, but mere user of draining some waste water of his building through the plaint schedule property, which he claims as ‘possession’, with an intent to exclude the real owner and which according to him will be sufficient to put forward a plea of adverse possession. 14. I do not think that such a claim can be legally entertained by the plaintiff. Rustomji, in his book, on Limitation, VII Edition at page 906, while consider the principles of adverse possession, says: “A naked possession without any claim of title is not sufficient. User of an intermittent or fugitive nature, accompanied by no assertion of right, is a very common phenomenon in this country, and arouses no opposition. Such user does not amount to adverse possession. The question is whether such user as has been proved is to be ascribed to tolerance or right? If a set of facts are reasonable with kindness and good neighbour liness, and are consistent with the evidence that what was done might have been done precario, i.e by sufferance, a claim of right will be repelled. It is the wise policy of the law not to construe acts of charity, though continued and repeated for never so many years, in such a manner as to make them the foundation of legal obligations. A mere passive possession without intending to claim the property is insufficient regardless of the length of time such a possession continues, or however, open, notorious or exclusive it may have been. A mere passive possession without intending to claim the property is insufficient regardless of the length of time such a possession continues, or however, open, notorious or exclusive it may have been. It is not the mere possession that determines the rights of the parties, but it is the character of the possession that controls.” In one of the very earlier decisions of Bombay High Court, in Framji Cursetji v. Goculdas Madhowji (I.L.R. 16 Bombay-338) their Lordships held: “A small piece of land being of no present use to its owner and being convenient in may ways to his neighbour, the latter made use of it, in various ways, without objection for more than twelve years. A privy and sheds for cows, goats, fowls etc and a hut for a ghariwallah-all, however, structures of a flimsy and purely temporary character - were said to have been constructed and maintained for many years on the said piece of land. Such user, it was contended, amounted to adverse possession.” The Bench of Bombay High Court has also held thus: “Such user as this was insufficient to give a title to the land by adverse possession. User of this sort, under similar circumstances, is common in this country and excites no particular attention. It is neither intended to denote, or understood as denoting-on the one side or the other - a claim to the ownership of the land, and where this, and no more, is the case it would be wrong to hold that a claim by adverse possession has been made out.” Their Lordships in the above judgment at page 342 have held: “Such acts are done every day in almost every part of Bombay, without any claim to ownership being thereby intended. If it were a question of easement the case would be different. Some acts, it is true, constantly repeated, may under some circumstances ripen into a right to continue them for ever, but that is wholly different question to this, where a claim to the soil of the land itself is set up.” 15. The above decision of Bombay High Court was followed by our High Court in Chokkalinga Naicken v. Muthusami Naicken and others (I.L.R. 21 Madras -54). Their Lordships in the above judgment have held thus: “There the suit was for a large area of land paying rent. The above decision of Bombay High Court was followed by our High Court in Chokkalinga Naicken v. Muthusami Naicken and others (I.L.R. 21 Madras -54). Their Lordships in the above judgment have held thus: “There the suit was for a large area of land paying rent. Here the suit is for a few square yards of vacant land used as vacant house-site or backyard in a town. The acts necessary to establish adverse possession in the two cases are very different. The use of the land by the defendant for the purposes of a backyard would not, under the circumstances, be sufficient to constitute adverse possession, especially when it is remembered that the parties are brothers. The case reported as Framji Cursetji v. Goculdas Madhowji (I.L.R. 16 Bombay -338) is in point. Plaintiff having the title to the land must be held to have been in possession until first defendant began to build on it in 1894. Plaintiff then immediately protested and brought this suit in 1895. Plaintiffs suit is not barred by limitation.” 16. In Kaladhari Singh v. Jibacbh Mishra and others (A.I.R. 1939 Patna - 399) it was held thus: “In deciding question of adverse possession the nature of the rights exercised by the parties and the relationship between them will have to be looked into in order to see whether the acts were permissible or so trivial as not to be noticed. In a case where the land is adjoining the house of the defendants and the plaintiff is not a resident of that locality where the land is situate, little acts of possession cannot be effectively taken notice of at once by the plaintiff against whose interest they were exercised. If therefore a small piece of land of no present use to the owner but convenient in many other ways to the neighbour is made use of by the latter by doing on it acts of possession all however of a flimsy and temporary character such as stocking straw and logs of wood, building sheds and removing earth therefrom without objection for more than 12 years, such a user excites no particular attention. It is neither meant to denote, nor understood as denoting on the side of the other a claim to t he ownership of the land. It is neither meant to denote, nor understood as denoting on the side of the other a claim to t he ownership of the land. Where such and no more is the case, it would be altogether wrong to hold that a claim to title by adverse possession has been made out.” 17. Mr. Mantha Ram Murthy, in his book ‘Law of Adverse Possession’ 1985 Edition, at page 488 has stated that the nature of the rights exercised by the parties and the relationship between them will have to be looked into in order to see whether the acts were permissive or so trivial as not to be noticed. 18. In Kamakshya Narainsingh v. Karanpura Development Company (A.I.R. (37) 1950 Patna - 134) at para 74 of the judgment, it was observed thus: “Casual and spasmodic acts of digging or boring holes on different spots within the coal area cannot be said to be such possession as to attract the rule of adverse possession.” In Gulab Devi v. Monji Ram and another (AIR. 1919 Lahore - 156) it was held thus: “The use of land in a village as a ‘convenient adjunct’ cannot be regarded as an indication of an assertion that the land so used is property of the person using it.” 19. From the above legal position, it is clear that merely permitting the drain water to cross through a small strip of land cannot be taken as an assertion of hostile title. It is not a case of overt act of assertion of the plaintiff, but it can only be treated as an act of licence. Every flimsy act by a neighbour need not be taken note of seriously by the real owner. To maintain good relationship between the neighbours such flimsy acts are ignored. But, that cannot be a foundation of a legal claim, and that too, to declare title in favour of the plaintiff. It is not a case of exclusion of right of the defendant over the property. 20. The plaintiff purchased the property in the year 1960 and it is in evidence that a construction was begun in the year 1965. There is absolutely no evidence as to when did he complete the construction and when did he open the drain with an intention to hold it of his own. 20. The plaintiff purchased the property in the year 1960 and it is in evidence that a construction was begun in the year 1965. There is absolutely no evidence as to when did he complete the construction and when did he open the drain with an intention to hold it of his own. Hence, there cannot be any question of hostile title immediately after the plaintiff purchased the property which was only a vacant land. The question of putting up a drain will arise only when the construction was completed and there was a necessity for a drain. Under the above circumstances, it is for the plaintiff to prove from what date he asserted title to ‘B’ schedule property, as his own. 21. In the recent decision of the Supreme Court in Abubakar Abdul Inamdar v. Harun Abdul Inamdar (AIR. 1996 S.C 112) at para 5 of the judgment it is held thus: “With regard to the plea of adverse possession, the appellant having been successful in the two courts below and not in the High Court, one has to turn to the pleadings of the appellant in his written statement. There he has pleaded a duration of his having remained in exclusive possession of the house, but nowhere has he pleaded a single overt act on the basis of which it could be inferred or ascertained that from a particular point of time his possession became hostile and notorious to the complete exclusion of other heirs, and his being in possession openly and hostilely.” 22. In Annasaheb Bapusahen Patia v. Balwant ( 1995 (2) S.C.C. 543 ) it has been held thus at para 2 of the judgment: “Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must how by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. In deciding whether the acts, alleged by a person, constitute adverse possession regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed.” 23. If I go by the decision of the Supreme Court of which reference was made earlier, I do not think that the lower appellate Court was wrong in holding that there was no specific plea of adverse possession, in the sense, that there was animus to hold against the defendant from a definite date which is a material fact on which pleading is lacking. In the year 1960 there was no drain and if the act of opening a drain is considered to be an overt act, that is the cause of action on which he is to rely. The plaintiff has not pleaded that fact in his plaint. I hold that the findings of the lower appellate Court is correct both on legal and factual aspects. 24. Consequently, the Second Appeal is dismissed. No costs.