JUDGMENT S.K. Kar, J. 1. Although not at the time of admission but during the hearing of this appeal the following substantial questions of law were formulated, viz.- (a) Whether the finding of the learned District Judge that in absence of mutation of the names in the relevant record, the successors plaintiff has no title is correct. (b) Whether the finding of the Court below that the defendant acquired title by adverse possession is correct. 2. Before dealing with the real controversy it will be convenient to reflect the respective cases of the rival parties. 3. To the concise, the case (as it stands on the amendment of plaint in the year 1992) for the appellants/plaintiffs is that Late Pratap Ch. Ghosh died don 6.3.1971 leaving behind him the plaintiffs as his heirs and during his life-time he used to own and possess land measuring 2B-4K-19L appertaining to dags No. 6 and 7 of Khatian No. 97 at Goaltali, Bamanpara (described with more particulars in schedule appended to the plaint) out to which the disputed land is 2K-5L (which is hereinafter called 'the suit land'). 4. That one late Bhagalu Nunai, predecessor-in-interest of the respondent/defendant Ghanashyam Nunia and Proforma respondents/ defendants Radhu Chouhan and Smti Chandaiya Nunia, approached late Pratap Ch. Ghosh in the year 1945 to allow him to reside on the suit land which was vacant at that time and consequently was permitted to occupy the same (suit land) by constructing thatched house thereupon. That Pratap Ch. Ghosh died on 6.3.1971 leaving his wife and minor sons and daughters, the present plaintiffs/appellants (hereinafter to be referred as 'appellants' only). 5. That the appellants demanded vacation of the suit land on attaining majority in the year 1984. Respondents /defendants (to be called 'respondents' only hereinafter) took time but by September 1984 they refused to vacate the suit land hence this suit on 23.1.1986 for declaration of title and recovery of possession by evicting the respondents along with other reliefs, citing the accrual of cause of action on and from September 1984. 6. Respondents /defendants (to be called 'respondents' only hereinafter) took time but by September 1984 they refused to vacate the suit land hence this suit on 23.1.1986 for declaration of title and recovery of possession by evicting the respondents along with other reliefs, citing the accrual of cause of action on and from September 1984. 6. By presenting their separate written statements, between 1987 to 1993, the respondents in addition to the usual and conventional pleas, denied the allegations other than those specifically admitted in the written statements and contended, inter alia, that late Bhagalu Nunia, father of the defendants came to possess the suit land for about last 80 years by developing the same and making it fit for residential purpose and started residing thereupon constructing dwelling houses. 7. That on death of said Bhagalu Nunia his heirs, the defendants, namely, Gadhadhar Chouhan, Radhu Chouhan and Smt. Chandaiya came to possess and enjoy the same on their own rights. That there was no demand, to vacate the suit land, as pleaded in the plaint. That the predecessors of the appellants late Pratap Ch. Ghosh had no interest in the suit land and said Bhagala Nunia was in possession of the suit land with full knowledge of late Pratap Ch. Ghosh, beyond the period of 12 years and thereby acquired title by adverse possession and he died 22/23 years back leaving him the defendants as his legal heirs. 8. That on the death of Bhagalu Nunia respondents are possessing the suit land with the full knowledge of the appellants in their capacities as heirs and said Bhagalu Nunia and having their respective house thereupon. That part of suit land has contained a holding in the name of said Bhagalu Nunia under Goalpara municipality from the beginning. 9. That for the sake of argument, even if the title in favour of the appellants is admitted it will be extinguished by principle of law of adverse possession and hence the suit is liable to be dismissed. 10. Upon these pleadings of the rival parties the issues were framed on 7.1.1989, but learned Munsiff recorded somewhat different issues in the judgment which are as follows :- (i) Whether there is cause of action. (ii) Whether the suit is barred by limitation. (iii) Whether Shri Pratap Ch. Ghosh was the original owner of the suit land. 10. Upon these pleadings of the rival parties the issues were framed on 7.1.1989, but learned Munsiff recorded somewhat different issues in the judgment which are as follows :- (i) Whether there is cause of action. (ii) Whether the suit is barred by limitation. (iii) Whether Shri Pratap Ch. Ghosh was the original owner of the suit land. (iv) Whether the parents of the defendants had been occupying the suit land with due permission from the said Shri Pratap Ch. Ghosh. (v) Whether the defendants have acquired right title and interest over the suit land by way of adverse possession. (vi) Whether the plaintiffs have the right title and interest over the suit land. (viii)To what relief(s), if any, the parties are entitled ? 11. During hearing of the suit appellants examined one of them (P.W. 2) and 5 other witnesses whereas defendants examined one of them Ghanashayam (D.W. 1) and 3 other persons. Documentary evidence relied upon by the appellants are 'Jama-bandi' of village Goaltali, Bamanpara (Ext. 1), revenue paying receipts (Exts. 2, 3). There is another document also marked Ext. 1 which is a gift-deed by late Partap Chandra Ghosh in favour of Binoy Krishna Ghosh (P.W. 1) with respect to a portion of said suit patta land. 12. I have heard learned counsel on both sides. While learned counsel for the respondents supported the decision of the first Appellate Court, learned counsel appearing for the appellants, however, contended that the suit was filed by the appellants for eviction of the respondents and all the issues framed in the suit were answered in favour of the appellants but on appeal learned first appellate court reversed the findings of the trial court wrongly and dismissed the suit on perverse findings of facts on misconception of law, particularly while dealing with issue No. 4. 13. SUBSTANTIAL QUESTION OF LAW NO. (A): The framing of the issues by the trial court during passing of the judgment was not challenged before first appellate court. There may be a confusion in so far framing of the issues by the trial court; but then, substantially the prime issues before the trial court were covered and the pertinent one was the question of adverse possession which was subject matter of issue No. 5. Law is well-settled that a suit will never fail for not framing or improper framing of issues. Law is well-settled that a suit will never fail for not framing or improper framing of issues. The confusion, if any, is not likely to effect the defence prejudicially. Only defect is that there was a discrepancy in numbering the issues. 14. Be that as it may, we are not really concerned with any other issues now save and except issues Nos. 5 and 6 which were decided against the appellants by the first appellate court and consequently the suit was dismissed. An attentive and cautious study of the reasons given by the first appellate court in the impugned judgment will go to show that the law has been misconceived. The appellants are undisputedly the heirs of Late Pratap Ch. Ghosh and as such on death of Pratap Ch. Ghose all rights and interest in the properties enjoyed by him during his life-time will devolve to his successors-in-interest, i.e. the appellants, unless and until any evidence to the contrary to hold otherwise. In the case in hand appellants have adduced convincing evidence through the town Mandal P.W. 5 and supported by dependable witness like P.W.s 1 and 6, both being advocates, and P.W. 6 is a disinterested witness. There was neither pleadings not evidence of any type to show that appellants were not the legal heirs of late Pratap Ch. Ghose. There is no law that title will extinguish simply for not mutating the names of the heirs and they will not inherit the property of predecessor-in-interest. Thus, the first appellate court was in a serious error of law in holding that non-mutation of names of the appellants will deprive them from the right to inherit the property or from claiming title therein. It was not the case of the respondents either that appellants were not the heirs of late Pratap Ch. Ghose. It was a serious misconception on the part of the learned first appellate Court to make out a third case beyond the pleadings of rival parties. Accordingly, I find this observation of the first appellate court is irrelevant and carries no merit at all. It is liable to be struck down as perverse. 15. SUBSTANTIAL QUESTION OF LAW NO. (B): This is the main bone of contention in the suit. Accordingly, I find this observation of the first appellate court is irrelevant and carries no merit at all. It is liable to be struck down as perverse. 15. SUBSTANTIAL QUESTION OF LAW NO. (B): This is the main bone of contention in the suit. But it will have to be borne in mind that as per the pleadings on record there is no definitive not distinct claim of adverse possession as per the prevalent law of adverse possession. In the written statements of the respondents, in order to claim adverse possession, what has been stated is an independent claim of title based on continued possession for long period. The claim of adverse possession in the written statement in verbatim goes as follows : (para 13 of W.S. of Ghanshyam, defendant No. 1) "The real position is that suit land is in continuous possession of the defendant for about last 80 years and from the time of his father without any interruption and he is enjoying the same by constructing house. Neither late Pratap Ch. Ghose nor the plaintiffs ever had any title over the suit land." But it is further pleaded that even if, for sake of argument, there is some interest of the appellants in the suit land (identity never disputed) the same is not enforceable in view of defendants acquiring title by way of adverse possession due to running out of the time prescribed by limitation. 16. Thus, in the instant suit there is neither clear admission of title of the appellants with respect to suit land nor any legal and definitive assertion of the right of adverse possession. Naturally, such claim is to be treated as a claim arising out of confusion, if not by way of desperation, and that being so, it will have to suffer for being hit by defect of uncertainty and conflicting pleadings. True, alternative plea is permissible but one cannot just blow hot and cold in the same breath. Such an inconsistencies is fatal to any claim of rights. 17. A claim of adverse possession will vary from case, to case depending upon the facts and circumstances of each case and it was held that mere possession, however long, does not necessarily mean that it would be, adverse against the true owner. Such an inconsistencies is fatal to any claim of rights. 17. A claim of adverse possession will vary from case, to case depending upon the facts and circumstances of each case and it was held that mere possession, however long, does not necessarily mean that it would be, adverse against the true owner. It was also held by Hon'ble Apex Court and the law till holds the field that a person pleading adverse possession has no equity in his favour. In law it is for the party claiming to plead and establish title by adverse possession. 18. The legal source to claim title by plea of adverse possession is Section 27 read with Article 65 of the Limitation Act (36 of 1963) and Section 27 goes as follows - "27. EXTINGUISHMENT OF RIGHT TO PROPERTY - At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished." and the period of such limitation is given by Article 65 of the Schedule of said Act. Article 65 reads as follows – "Description of Period of Time from which suit limitation period begins to run 65. For possession of Twelve When the possession immovable property or years of the defendant any interest therein becomes adverse to based on title. The plaintiff." Thus, Article 65 provides that when the possession of a defendant becomes adverse to the plaintiff, the plaintiff can institute a suit based on title to recover the possession of immovable property or any interest, therein if he comes within 12 years of setting up of such claim of adverse possession, else his right will otherwise extinguish thereafter if not so agitated. Adverse possession really means a 'hostile' possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession, the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. In Era Malappa v. Sriram, Hon'ble High Court of Andhra had very rightly held that adverse possession is a mixed question of facts and law and not law alone and has, therefore, got to be pleaded and proved. There cannot be any variance between pleading and proof. In Era Malappa v. Sriram, Hon'ble High Court of Andhra had very rightly held that adverse possession is a mixed question of facts and law and not law alone and has, therefore, got to be pleaded and proved. There cannot be any variance between pleading and proof. It is needless to say that there should be a starting point in time denying title of true owner to compute the period of twelve years to run out for acquisition of title by adverse possession as provided by column 3 of Article 65 of Limitation Act. 19. In the instant case the title of the appellants is not admitted in clear terms but in alternative to a claim of independent title on long possession without disclosing source of acquisition. Title to immovable property can be acquired by purchase from one holding it, by method of law of inheritance, gift, relinquishment, or any other method of transfer or by prescriptive right as contained in Section 27 read with Article 65 of Limitation Act etc. It is nowhere stated in the pleading of the respondents how, where from and at what point of time any hostile claim was made by the respondents denying title of the appellants. 20. Appellants, on the other hand, have in addition to the oral testimonies relied upon contents of Ext. 1, the relevant Jama bandi and deed of gift (also Ext. 1) dated 7.1.1995 to show title in favour of their predecessor-in-interest late Pratap Ch. Ghose. Gift-deed, Ext. 1 was admitted into evidence without any objection and during cross-examination of the donee (P.W. 1) also there was no challenge to its authenticity or relevancy in connecting the suit land. P.W. 1 is nephew (sister's son) of late Pratap Ch. Ghose. Another Ext. 1 is certified copy of the Jama bandi showing name of pattader as Pratap Ch. Ghose with respect to dags 6, 7 of patta No. 97 measuring 2B-4K-19L of land of which suit lands is a part. P.W. 5 is the Town Mandal who supported title in favour of the Pratap and subsequent transferees by corroborating the fact contained in the Jama bandi (inducted into evidence by P.W. 2). Interestingly the impugned judgment has categorically held the title of the appellants. P.W. 5 is the Town Mandal who supported title in favour of the Pratap and subsequent transferees by corroborating the fact contained in the Jama bandi (inducted into evidence by P.W. 2). Interestingly the impugned judgment has categorically held the title of the appellants. I quote from the impugned judgment - "From exhibit 1 the Jama bandi, it is clearly seen that Pratap Ghose was the original owner of the suit land and he had title over the suit land though the defendant denied his title." Therefore, there is clear finding of the appellate court that appellants have been able to prove their title to the suit land. The onus thus shifted to respondents to prove any claim of adverse possession converted to title by prescription. The laws in this context, to reiterate, says that A person who comes to court in assertion of his title by adverse possession must show to the satisfaction of the court that at some given point of time, the possession became adverse to the true owner. There is neither pleading nor evidence to that effect from the respondents. The pleading has denied tittle of appellants and their predecessor-in-interest and asserted that the father of the respondent and he himself on the death of his father was in possession for 80 years without any interruption merely by way of actual occupation. The respondent (D.W. 1) during his deposition on oath stated as follows - "This land was occupied by my father in the year 1935 on his own rights." Respondent D.W. 1 thus, never claimed any adverse possession by giving the essential ingredients of it. During cross-examination D.W. 1 stated that disputed land/suit land is 'Khas' land, meaning Govt. land ; but he never attempted to obtain the patta. But simultaneously he also stated that he had no knowledge who owns the suit land. Therefore, there is neither appropriate pleading nor adequate evidence to prove any case of adverse possession. Mere filing a series of municipal tax-receipts, Ext. 'Ka' series, cannot give evidence of title. Pleadings and evidence are at variance. D.W.s 2/3 during the cross-examination stated they do not know who is owner of the suit land. There evidence is of no use to respondent. No other material could be deposed by D.W. 4 and the oral evidence as a whole proved nothing to support any case of adverse possession. Pleadings and evidence are at variance. D.W.s 2/3 during the cross-examination stated they do not know who is owner of the suit land. There evidence is of no use to respondent. No other material could be deposed by D.W. 4 and the oral evidence as a whole proved nothing to support any case of adverse possession. All the D.W.s simply deposed on a case of possession of respondent and his father to a certain land since 1935 which is not a disputed question of fact, starting point apart. Truly speaking D.W. 1 himself has disproved his own case in the pleadings and advanced a confusing claim during his oral evidence. 21. As against these, the P.W.s jointly made out a consistent case in favour of the appellant and deposed fully in support of the pleadings on plaint. P.W.s 1 and 6 are advocates by profession and there is absolutely nothing to discredit them as witnesses. P.W. 5 has proved Jama bandi to trace documentary evidence in support of title asserted by appellants. Thus, I find the first appellate court committed a gross error in reversing the finding of trial court on issue Nos. 5 and 6. The discussion of evidence and the findings recorded by first appellate Court are perverse, due to conflicting opinions and expression of illogical conclusion without valid, logical and legal reasons. P.W. 1 by most reliable statements has proved title of late Pratap Ch. Ghose and permissive possession of the respondents over the suit land and he was fully and effectively corroborated by P.W. 6. P.W. 2 deposed that hostile title was set by respondent Ghanashyam only by September 1984 and hence he filed the suit (date of suit is 23.1.1986) which is quite within period of limitation prescribed as 12 years. There is nothing to discredit him as a witness. On the whole evidence by appellants is cohesive, consistent and weighter than that of the respondents. The findings of trial court was correct notwithstanding absence of recording of an exhaustive discussion of evidence to arrive at such decisions. 22. In the result, the judgment and decree of the first appellate court is set aside and that of the trial court (original court of Munsiff) is restored and affirmed. No costs. Appeal is allowed. 23. Case-records of two courts below be send back without any delay. Appeal allowed