JUDGMENT R. Bhaskaran, J. 1. This appeal was filed by defendants 1 and 2 in O. S. No. 224/1994 on the file of the Subordinate Judge's Court, Trichur. After the filing of the appeal the 1st appellant died and his legal heirs have come on record as additional appellants 3 and 4. 2. The suit was for recovery of possession of the plaint schedule properties on the strength of title of plaintiff and defendants 3 and 4 from defendants 1 and 2 with mesne profits. According to the plaintiff the plaint schedule properties were acquired by deceased Gopalan and were in his possession till his death. The third defendant is the widow of Gopalan. The plaintiff and 4th defendant are his children. The properties were being looked after by defendants 1 and 2 and Kumaran as the plaintiff was aged only one year and 4th defendant was only 4 years when Gopalan died on 17th Edavam 1125 M.E.(1950). As per the custom the 3rd defendant had gone to her house immediately after the death of Gopalan. The plaintiff and defendant 4 were getting share of profits from the properties. The plaintiff started residing in item No. 4 from 1986 onwards. Defendants 1 and 2 filed O. S. 208/86 and O. S. 445/86 before Munsiff Court, Vadakkancherry against the plaintiff and 3rd defendant and obtained an injunction. Therefore the plaintiff is constrained to file the suit for declaration of title and recovery of possession on behalf of defendants 3 and 4 also. 3. Defendants 1 and 2 filed written statement denying the entire averments in the plaint. The properties were purchased in the name of Gopalan for all the members of the family. When these items were sold for realisation of loan amount in auction the first defendant purchased the property. In 1962 the properties were partitioned by the members of the family and they are in separate possession of the properties since then. Gopalan died unmarried. The plaintiff or 4th defendant has no connection with deceased Gopalan. The plaintiff is not residing in item No. 4. In the additional written statement the defendants have also taken the plea of adverse possession and limitation. 4. The trial court raised the following issues. 1. Whether the suit is maintainable? 2. Whether the suit is barred by principle of res judicata? . 3. The plaintiff is not residing in item No. 4. In the additional written statement the defendants have also taken the plea of adverse possession and limitation. 4. The trial court raised the following issues. 1. Whether the suit is maintainable? 2. Whether the suit is barred by principle of res judicata? . 3. Whether the 2nd plaintiff (it is a mistake basing the written statement of defendants 1 and 2) the third defendant is the legally wedded wife of deceased Gopalan? 4. Whether the first plaintiff (only one plaintiff) and 3rd defendant are thelegitimate children of deceased Gopalan (defendants 3 and 4 are the wife and children of Gopalan? 5. Whether the plaintiff and 3rd defendant have any absolute title over the plaint schedule properties? 6. Whether the plaintiffs have any legal possession over any portion of the plaint schedule properties? 7. Whether the plaintiffs and 3rd defendant (plaintiff and defendants 3 and 4) have any legal right to get a decree for recovery of possession? 8. Reliefs and costs? 5. The plaintiff examined himself as PW1; PW2 was an independent witness. Exts. A1 to A11 were marked on the side of the plaintiff. Defendants examined Dw 1 to Dw3 and produced Exts. B1 to B9. After trial the trial court granted a decree as prayed for. 6. The points arising for consideration in this appeal are : 1. Whether the plaintiff is the son of deceased Gopalan? 2. Whether the suit is barred by res judicata? 3. Whether the defendants have perfected their title by adverse possession and limitation? 4. Whether decree for mesne profits at the rate decreed by the court below is sustainable or not? Point No. 1 7. Ext. A9 is the extract of the school admission register of A. S. M. U. S. Mullurkkara relating to the plaintiff. In that his father's name is described as Kummathully Gopalan. Ext. A8 partition deed shows that the name of deceased brother of defendants 1 and 2 was Kummathully Gopalan. In Ext. A6 will executed by Kumaran, brother of Gopalan there is specific recital entitling the plaintiff to get Rs. 1,000/- from the 1st defendant who was given some properties of Kumaran under that will. In the will the plaintiff is described as the son of his deceased brother Gopalan. In compliance with this document the Ist defendant paid Rs.1,000/- to the plaintiff and Ext. 1,000/- from the 1st defendant who was given some properties of Kumaran under that will. In the will the plaintiff is described as the son of his deceased brother Gopalan. In compliance with this document the Ist defendant paid Rs.1,000/- to the plaintiff and Ext. A7 is the certified copy of the receipt issued by the plaintiff. The only contention of the appellants is that in Ext. X1 extract of school certificate of the plaintiff, in the column where the name of guardian or parent appears the name of Arumughan is seen. As rightly pointed out by the trial court, it could be the name of guardian that is shown in Ext. X1. The 3rd defendant, the mother of plaintiff is the daughter of Arumughan. Therefore there is no inconsistency. In the light of the above, it is clear that the plaintiff is the son of Gopalan who owned the plaint schedule properties. This point is found in favour of the plaintiff/respondent. Point No. 2: 8. According to the defendants 1 and 2, they had filed two suits against the plaintiff for injunction restraining him from entering into the plaint schedule properties. In that suit, the plaintiff claimed to be a coowner with defendants 3 and 4 and defendants contended that the suit was not maintainable. Those suits were decreed as the plaintiff herein did not seriously contest the suits. According to the learned counsel for the appellants a reading of the judgment in that suit (O. S. No. 445/1986 of Munsiff Court, Vadakkancherry (Ext. B9) will show that there were observations with regard to the right of the plaintiff and it will operate as re judicata in the present suit. Though an issue was raised in this suit with regard to res judicata, we find from the written statement that there was no pleading to the effect that the present suit is barred by res judicata. Mere general contention that the suit was not maintainable will not be a substitute for a plea of res judicata. The trial court was not justified in going into this contention without proper plea. The plaint in the earlier suit was not produced in the present suit, though the written statement was produced. Without producing the plaint in the earlier case it is not possible to hold whether the present suit is barred by res judicata or not. The trial court was not justified in going into this contention without proper plea. The plaint in the earlier suit was not produced in the present suit, though the written statement was produced. Without producing the plaint in the earlier case it is not possible to hold whether the present suit is barred by res judicata or not. It was so held in Marriam Bibi v. Abdul Rahim (2000 AIHC 661). The Earlier suit was not contested also. It was only for injunction and possession of property as on the date of suit was more important point to be decided. In the absence of necessary pleadings in the written statement specifically raising the plea of res judicata, we will not be justified in declaring the suit as barred by res judicata. Hence this point also is found against the appellants. Point No. 3 9. This In fact is the main point argued by the learned Senior Counsel Sri. N. N. Suganapalan. According to the learned counsel, the defendants have effected partition of the same property as early as in 1962 and eversince that date the defendants have been in separate possession of the property as their own and more than thirty two years Have elapsed before the present suit is filed. Therefore the trial court should have dismissed the suit. It is pointed out that though the plaintiff was a minor at the time of the death of Gopalan, there was no justification in not filing the suit within twelve years of the attaining of majority by the plaintiff. Though there is some force in the contention of the counsel for the appellants, we have to take into account the peculiar facts of this case and the nature of possession by the defendants before holding that their possession was adverse possession. There is no contention before us that the plaintiff, if he is the son of Gopalan was not entitled to inherit the property of Gopalan. Exts. A1 to A4 proved that the plaint schedule properties were the self acquisitions of Gopalan. The plaintiff was aged only one year at the time of death of Gopalan. In the absence of any major member, (the 3rd defendant, wife of Gopalan had to go her house as, per custom on the death of her husband) the brothers of Gopalan were managing the properties. The plaintiff was aged only one year at the time of death of Gopalan. In the absence of any major member, (the 3rd defendant, wife of Gopalan had to go her house as, per custom on the death of her husband) the brothers of Gopalan were managing the properties. They had a fiduciary capacity towards the legal heirs of Gopalan and they could not appropriate the property for themselves. It may be for that reason that in Ext. A8 partition deed they said that the properties were joint properties purchased in the name of Gopalan. Really they were holding the properties as trustees for and on behalf of the real owners. Therefore they could not claim adverse possession against the real owners. For claiming adverse possession the defendants 1 and 2 have to plead and prove as to at what time their possession become adverse as held in V. Rajeshwari v. T. C. Saravanabava ( 2004(1) SCC 551 . The plea of adverse possession was raised only in the additional written statement. The defendants originally set up title in themselves. The two are mutually exclusive as held by the Supreme Court in Arundhati Mishra v. Sri. Ram Charitra Pandey ( 1994(2) SCC 29 ). The Supreme Court observed in that case as follows: "The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced." 10. Therefore there is no merit in the claim of adverse possession set up by the defendants 1 and 2. The contention in Ground No. 1 of the memorandum of appeal that the plaintiff did not prove possession within twelve years of filing of the suit is unsustainable after the commencement of Limitation Act, 1963. Similarly the contention that Exts. A6 and A7 will stand in the way of the plaintiff claiming the properties is also unsustainable as Ext. A6 was a will executed by a brother of Gopalan giving his properties to the Ist defendant in which an obligation for payment of Rs. 1,000/- to the plaintiff is made. There is nothing in Ext. A6 to show that the payment was in lieu of the share of the plaintiff in his father's properties. In fact the property dealt with in Ext. A6 is not the property shown in the plaint schedule. The learned counsel for the appellants also relied on Ext. 1,000/- to the plaintiff is made. There is nothing in Ext. A6 to show that the payment was in lieu of the share of the plaintiff in his father's properties. In fact the property dealt with in Ext. A6 is not the property shown in the plaint schedule. The learned counsel for the appellants also relied on Ext. B6 certificate of purchase obtained by the Ist defendant with respect to item No. 4 of the plaint schedule. There is nothing to show that it was obtained with notice to the plaintiff and in the circumstances of the case it will only enure to the benefit of the real owner. The There is also a contention that the Ist defendant has purchased the property (Item 2 in the plaint schedule) as per Ext. B5 in Court auction in execution of the decree for enforcement of mortgage created by Gopalan during his life time. Ext. B5 is only a sale proclamation. In fact there is nothing to show that the Ist defendant purchased the property in his name. He only deposited the decree amount to avert sale. Ext. B5 is in 1953 when the Ist defendant was managing the properties after the death of Gopalan and when the plaintiff was a minor. So he cannot claim any exclusive right for himself and that by, itself will not make him the absolute owner of the property. Therefore there is no merit in the above contention and the point is found against the appellants. Point No. 4 . 11. This relates to the mesne profits. The plaint alleged Rs. 16,000/- as mesne profits. In the written statement it was denied. Without any evidence the trial court granted a decree for Rs. 15,000/- per year as on calculation of the income as stated in the plaint it will come only Rs. 15,000/-. We find that this was not the proper course to be adopted as the question of profits was not assessed on the basis of any evidence. In fact there is no evidence whatsoever with regard to the question of mesne profits. In this case though the liability for payment of mesne profit is on defendants 1 and 2, the exact question has not been fixed on the basis of evidence. Therefore the same can be decided in execution proceedings. In fact there is no evidence whatsoever with regard to the question of mesne profits. In this case though the liability for payment of mesne profit is on defendants 1 and 2, the exact question has not been fixed on the basis of evidence. Therefore the same can be decided in execution proceedings. In the result the appeal is dismissed subject to the modification that quantum of mesne profit can be fixed in execution proceedings. The parties shall bear their costs in this appeal.