ORDER :- The respondent filed the suit for declaration and injunction claiming that he had perfected his title to the suit property by adverse possession from 1955. Both the Courts held in his favour. 2. One important physical feature that must be noted for deciding, this case is the location of the superstructure and the extent of the vacant land in the suit property. The Advocate Commissioner filed a report describing the suit property as ABCD. In the south-western corner there is the house bearing door No. 5/12. About 29 feet from the house on the eastern side is clean and the Advocate Commissioner has noted that it appears to be used by the persons, who were living in the house. Whereas all over the vacant site “Veli" thorns were spread. The Advocate Commissioner has noted the existence of an old latrine in the north-western corner which is in disuse and is unreasonable because of the thorny undergrowth. On the north-western corner there are remnants of an old compound wall. On the eastern side also, there were traces of the old compound wall. The Advocate Commissioner has noted that it is almost impossible to go across the property from one end to another, due to the existence of thorns. Though this is a second appeal, the Commissioner’s Report regarding the physical features has a bearing on the decision. 3. The fact that there was a Ginning Factory in the suit property is not really in dispute. It is also admitted that the respondent occupied the superstructure after it was vacated by the previous owner. According to the respondent, his occupation was adverse to the true owner whereas according to the appellants, it was by permission. 4. Mr. Raghunathan, learned counsel for the appellants submitted that to hold that there is adverse possession, there should be a clear pleading regarding the date from which adverse possession commences. The animus to hold against the true owner must also be pleaded whereas that has not been done in the instant case and according to the appellants, the respondent had entered possession promising that he would vacate whenever demanded. Therefore, there was no question of adverse possession. The animus to hold against the true owner must also be pleaded whereas that has not been done in the instant case and according to the appellants, the respondent had entered possession promising that he would vacate whenever demanded. Therefore, there was no question of adverse possession. Further, he submitted that even assuming without admitting that the appellants had perfected title to the superstructure, the same cannot be said of the vacant land because there is no evidence of animus possidendi and one acre of land cannot be treated as appurtenant to the superstructure in a small area in one corner. According to the learned counsel, the Courts below had not considered the question of adverse possession correctly. He relied on Ponnaiyan v. Munian (died), (1995) 1 Mad LW 680; Natesan v. Chinnachi Kandar, (1996) 2 Mad LW 344 : ( AIR 1996 Mad 468 ); Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri, (2000) 6 SCC 735 : ( AIR 2000 SC 2629 ); S. Subba Reddiar v. Bhagyalakshmi Ammal, (1996) 2 Mad LW 31; Pazhamaruthai alias Marudamathu v. M. Subramaniam, (2001) 3 CTC 142 : (2001 AIHC 3128); Udayanasamy hevar v. Mootor Thevar, (2001) 1 Mad LJ 137; Pappammal (died) v. Valliammal (died), (1996) 2 Mad LJ 194 and State of Rajasthan v. Harphool Singh, (2000) 5 SCC 652 . 5. Mr. K. Srinivasan, learned counsel for the respondent, on the other hand submitted that it is admitted by the appellants that the respondent has been in possession from 1960. It is the respondent’s case that he held it adverse to the title of the true owner. When the appellants claim that it was permissive occupation, they should have proved permission. The learned counsel submitted that all the documents would show the enjoyment of the suit property by the respondent. He also submitted that in any event, the adverse possession is a finding of fact and cannot be disturbed in second appeal and therefore, there shall be no interference. The learned counsel submitted that all the documents would show the enjoyment of the suit property by the respondent. He also submitted that in any event, the adverse possession is a finding of fact and cannot be disturbed in second appeal and therefore, there shall be no interference. The learned counsel relied on the following decisions: (1) Arumugha Thevar v. Melavasaga Thevar, (1999) 3 Mad LW 621 : (1999 AIHC 2759); (2) Thangamani v. Santhiagu, (2000) 3 Mad LW 848 : (2001 AIHC 719); (3) Parsinni v. Sukhi, (1993) 4 SCC 375 : (1993 AIR SCW 3606); (4) V. Muthiah Pillai v. Vedambal, AIR 1986 Mad 106 ; (5) M. Nadar Kesavan Nadar v. Narayanan Nadar Kunjan Nadar, (2000) 10 SCC 244 ; (6) Rajender Singh v. Santa Singh, (1973) 2 SCC 705 : ( AIR 1973 SC 2537 ); (7) Nair Service Society v. K. C. Alexander, AIR 1968 SC 1165 . 6. The substantial questions of law raised by the appellants are regarding the adequacy of pleadings and proof to show adverse possession and whether there can be adverse possession in the absence of hostility and finally, whether occupation of the building without anything more would constitute acquisition of title by adverse possession in respect of large extent of vacant site? 7. According to the respondent, the suit property was in the possession of Kasturisamy Naidu and after him from 1955 he was in possession and that he had held it by adverse possession and that he had put up live fence around the suit property. Documents are there showing that he had obtained electricity connection for the suit property and also paid property tax. Though there is a reference to the Ginning Factory in his cross-examination and that the built-up portion was originally the office of the Ginning Factory he would state when he occupied the property, the Ginning Factory was not there. He denied that the Ginning Factory was dismantled only in 1960. He claimed that he has lost the property tax receipts for the years 1955-1966. P.W. 2 would say that the Ginning Factory was dismantiled before the respondent occupied the built-up portion. P.W. 3’s evidence is not clear in this regard apart from admitting that there was a Ginning Factory. According to D.W. 1, the Ginning Factory was dismantled, except for the office room in the south-western corner. P.W. 2 would say that the Ginning Factory was dismantiled before the respondent occupied the built-up portion. P.W. 3’s evidence is not clear in this regard apart from admitting that there was a Ginning Factory. According to D.W. 1, the Ginning Factory was dismantled, except for the office room in the south-western corner. According to his evidence, he permitted the respondent to occupy this portion. He has not examined any other witnesses to prove his case of permission. Therefore, apart from his own version, there is nothing else. On the other hand, the respondent has shown that for years, atleast from 1966, he has been paying the property tax and from 1977, he is also paying the electricity charges. Therefore, his possession has been open and continuous for anyone to see. 8. The question is quite different with regard to the remaining vacant land. The Advocate Commissioner’s report shows that it is covered by thorny wild undergrowth. The plaintiff’s witnesses have stated that the respondent would cut off all the “Veli" thorns and sell them. The respondent is a “purohit" and an astrologer and to what extent he would have cut the thorny wild growth is debatable. In any event, it is pointed out by the learned counsel for the appellants that the Advocate Commissioner’s report clearly shows it is well-nigh impossible to reach the north-eastern corner from the south-western corner because of this undergrowth. It has to be seen whether the respondent could still claim that there was open and continuous possession of the vacant land for all the world to see so that his title by adverse possession gets ripened. 9. In (1995) 1 Mad LW 680 (cited supra), it is held as follows : “Adverse Possession, Pleadings - Actual and exclusive possession coupled with, intention to hold as owner, openly and continuously - Hostile possession, express or implied, in denial of title of true owner - No statutory definition. Duty of plaintiff to plead and prove. Animus is the crucial factor - Mere factum of patta standing in the name of a person or the person paying the kist, may not help." 10. Duty of plaintiff to plead and prove. Animus is the crucial factor - Mere factum of patta standing in the name of a person or the person paying the kist, may not help." 10. In (1996) 2 Mad LW 344 : AIR 1996 Madras 468 (cited supra), it is held as follows : “Adverse Possession Tamil Nadu Act 17 of 1978, and CPC, S. 100 - Exclusive possession, coupled with intention to hold as owner, necessary - Claim of right must be actual, exclusive, adequate, in continuity, in publicity and in extent so as to show that it is adverse to the true owner, and must be peaceful, open and continuous. Mere user of property cannot be taken as assertion of proprietory right." 11. In (2000) 6 SCC 735 : AIR 2000 SC 2629 (cited supra), it was held in the absence of time and manner in which possession was converted to open, hostile and adverse possession, claim cannot be upheld. 12. In (1996) 2 Mad LW 31 (cited supra), this Court tressed that since adverse possession is an exception to the general rule, that title can be acquired only through lawful means and it is for the person, who claim such title to prove satisfactorily his adverse possession. 13. In (2000) 5 SCC 652 (cited supra), it is held follows : “When the property was a vacant land before the alleged construction was put up, to show open and hostile possession which could alone in law constitute adverse to the State, in this case, some concrete details of the nature of occupation with proper proof thereof would be absolutely necessary and mere vague assertions cannot by themselves be a substitute for such concrete proof required of open and hostile possession. Even if the plaintiff’s allegations and claims, as projected in the plaint, are accepted in toto, the period of so-called adverse possession would fall short by 5 years of the required period. There is no scrap of paper or concrete material to prove any such possession of the plaintiff’s father nor was there any specific finding supported by any evidence, in this regard." 14. (2001) 1 Mad LJ 137 (cited supra), also stressed the requirements of law and burden of pleadings of proof by the plaintiff. 15. (1996) 2 MLJ 194 (cited supra) also dealt with the burden of proof. 16. (2001) 1 Mad LJ 137 (cited supra), also stressed the requirements of law and burden of pleadings of proof by the plaintiff. 15. (1996) 2 MLJ 194 (cited supra) also dealt with the burden of proof. 16. In (1999) 3 Mad LW 621 : 1999 AIHC 2759 (cited supra), this Court held that for possession to be adverse, it must be a possession of a person, who did not acknowledge others rights, but denied them. 17. In (2000) 3 Mad LW 848 : 2001 AIHC 719 (cited supra), this Court held as follows : “Claim by a person and his predecessors in title by open and continuous occupation asserting positive title and failure by real owner to assert rights can constitute adverse possession. Defendant was in possession of the property for more than the statutory period - Absence of animus and knowledge about the true owner is immaterial when possession was open and in continuous assertion of one’s own rights - Plaintiff or predecessors in title had not taken any steps to exercise due vigilance in order to arrest time running against them." 18. In AIR 1986 Madras 106 (cited supra), it is held as follows : “The party claiming to hold the immovable property adversely must at least go on to prove that it was in denial of the owner’s title and that he excluded him from the enjoyment of his property. Where a stranger is in possession it is not necessary to do so to the knowledge of the true owner, but it is sufficient if the possession is hostile, notorious and exclusive." 19. In (2000) 10 SCC 254 (cited supra), the Supreme Court held that the High Court’s interference with concurrent findings of fact in second appeal was not justified when both the Courts comes to a definite conclusion on the basis of evidence on record that respondents had failed to establish by positive evidence that their possession of the disputed property was hostile to the real owners. 20. In the present case the pleadings are clear. The plaint para No. 3 reads as follows : “The plaintiff occupied the suit property in the year 1955, .......... to the knowledge of the then owner Venkataswamy Naidu and also was holding the suit property adverse to his interests in the same. ........... 20. In the present case the pleadings are clear. The plaint para No. 3 reads as follows : “The plaintiff occupied the suit property in the year 1955, .......... to the knowledge of the then owner Venkataswamy Naidu and also was holding the suit property adverse to his interests in the same. ........... In order to safeguard the property, the plaintiff also put up a live fence around the suit property and this again was done to the knowledge of the original owner." 21. In his evidence he has stated that he occupied house after getting the keys from Perumalsamy and that Venkatasamy Naidu, who is the person from whom the appellant purchased the property knew that he was residing in the built up portion. He has referred to the electricity connection. It is clear therefore, that the respondent was living in the built-up portion in south-western corner denying the rights of the true owner with an intention to hold it as his own. Therefore, the animus as regards this portion of the property is evident from the pleadings and it is also been proved. Therefore, there is no difficulty with regard to the same. 22. But the question is not so clear insofar as the vacant portion is concerned. The appellant had raised this specific ground before the Appellate Court. The Commissioner’s Report would show that the appellant is using only 29 feet of the vacant space and the rest of the vacant space shows no evidence of human enjoyment and the Appellate Court ought to have considered it from this angle. In the pleadings there is no reference to the manner in which the respondent had enjoyed the vacant space. While the exhibits relating to the property tax for door No. 5/12 and electricity connection would show that the respondent was in possession and enjoyment of the same, there is no evidence to show that he was exerting control over the vacant space. The evidence that he would remove the thorns periodically is not found in the plaint and it is repeated verbatim by P.Ws. 2, 3 and 4 and it is not very much believable since the Advocate Commissioner’s Report shows that the vacant space does not show any evidence of human attempt to regulate, control or check the wild thorny undergrowth. The Appellate Court answers this question as follows : [Vernacular matter omitted.......Ed.] 23. 2, 3 and 4 and it is not very much believable since the Advocate Commissioner’s Report shows that the vacant space does not show any evidence of human attempt to regulate, control or check the wild thorny undergrowth. The Appellate Court answers this question as follows : [Vernacular matter omitted.......Ed.] 23. The admission if it should be construed as such only relates to the southwestern corner where the Appellate Court merely sates that the appellant knew about the 17 years enjoyment directly. When the specific ground is that there is no physical evidence to human enjoyment, the Appellate Court is bound in law to answer that. Merely because, originally ginning factory existed in the entire area, the occupation of the small portion by the respondent will not give him the right to claim adverse possession of the remaining area where factory building once stood and got destroyed. In fact the appellant had not even satisfactorily proved whether the ginning factory building was in existence when he moved into door No. 5/12 or whether it was destroyed later. If the ginning factory was there at that time, then he has no proof that he had the animus to hold that area as his. In this case, the issue of animus which is the foundation of a title by adverse possession, is held against the respondent. And in fact, in the decisions relied on by both the appellants and the respondent, the learned Judges have repeatedly stressed this point. 24. In (2000) 3 Mad LW 848 : 2001 AIHC 719 (cites supra) the defendant owned the property to the north of the plaintiff’s property and having advantage of the fact the plaintiff was an absentee landlord he solely encroached upon the family property. In those circumstances, the learned Judge held that when the occupier and predecessors in title have openly and hostilely shown that they were in enjoyment and in control of the property and when the owner does not take any steps to safeguard his rights then there is no reason why the occupier cannot claim adverse possession. 25. In this case, there is very little evidence to show possession of the vacant land. In fact the pleadings are not sufficient to show the legal possession of the respondent with regard to the vacant land. 25. In this case, there is very little evidence to show possession of the vacant land. In fact the pleadings are not sufficient to show the legal possession of the respondent with regard to the vacant land. In those circumstances, it is difficult to uphold the judgment of the Courts below and the substantial questions of law raised by the appellant must be answered in favour of the appellant atleast with regard to the vacant land. Without animus there cannot be adverse possession and the Courts below appear to have been under the impression that possession of the built up portion tantamounts to animus to possess regarding the vacant land. To show open possession there must be signs of possession clear for all the world to see, but a vacant land overgrown with wild growth will not show evidence of possession to the knowledge of the true owner. The finding of the Court below is perverse and must be corrected. 26. The Second Appeal is partially allowed and the decree in favour of the respondent is restricted to the house and the portion marked as vacant space which is in use, which extends 29 feet eastward from the north-western point of the portion demarcated as plaintiff’s house in the Commissioner’s Plan. 27. For the purpose of identifying this property, a copy of the Commissioner’s Plan shall be annexed to the decree and the southwest portion marked by the high-lightened and the dotted lines shall be shaded red to show the portion to which the respondent has been granted a decree. 28. As regards the vacant space, covered by the “Veli" thorns bounded by Panchayat Union School Buildings in the north, in the west by north-south lane with an old compound, in the northwest corner with the old compound wall and the old latrine on the northeast corner and shaded blue, the suit is dismissed. 29. The second appeal is therefore allowed to this extent. No costs.