K. J. SENGUPTA, J. ( 1 ) I have the benefit of going through the draft judgment of my learned Brother and I agree with His Lordship's conclusion and findings. However, to supplement it slightly I add few words with the risk of surplussage. The decree of eviction is impugned in this appeal by the appellants who are predecessor in interest of one samulya Das, since deceased. ( 2 ) THE short case of the plaintiff is that one Sunil Chowdhuri, since deceased who was the father of the plaintiff No. 2 and the husband of plaintiff No. 1, purchased amongst other the suit property from one baidya Nath Dutta and Nirmal Chandra Dutta. Sunil was a modestly prosperous businessman and he had has civil construction business. He died leaving the plaintiff No. 1 and Plaintiff No. 2 and his father namely one Kshetranath Chowdhuri then surviving now since deceased. After death of Sunil father Kshetranath became the guardian of persons and properties of the Plaintiff No. 2 Kshetranath allowed Samulya, since deceased to occupy the suit premises where habitable structure had already been built by his son Sunil as at that point of time it was difficult for Kshetranath to manage the property effectively because some local people wanted to grab the property illegally. In order to prevent such illegal possession of the suit property being taken Samulya was allowed to occupy and stay as licensee. After death of Kshetranath and on attaining majority the plaintiff No. 2 along with his mother, the plaintiff No. 1 wanted to get back the suit property. As such the defendant being the predecessor in interest of Samulya das, since deceased were asked to vacate and quit the same. So it was simple suit for recovery of possession of the property on revocation of leave and license. The defendants filed written statement and they denied the ownership of the plaintiff. They also denied that their father samulya Das had been in possession of the suit property as licensee, according to them Samulya Das having found the property in vacant condition and having found no owner nor any claimant occupied the same erecting structures and shed for their residence. ( 3 ) SAMULYA Das came from a nearby village in search of employment, later on he became very competent and reputed mason in the locality. ( 3 ) SAMULYA Das came from a nearby village in search of employment, later on he became very competent and reputed mason in the locality. Since then the property has been in possession of samulya and after his death the defendants have been in possession uninterruptedly to the notice and knowledge of every one and thus they became owner by way of adverse possession. ( 4 ) ON the face of the aforesaid pleading the following issues are framed by the learned Trial Judge: 1. Is the suit maintainable in law and its present form? 2. Is there any cause of action for the suit? 3. Are the plaintiffs owners of the disputed properties as alleged? 4. Are the defendants licensees in the disputed properties under the plaintiffs as alleged? ( 5 ) ARE the plaintiffs entitled to get a decree for declaration and recovery of khas possession as prayed for? ( 6 ) TO what other relief or reliefs, if any, are the plaintiffs entitled? ( 7 ) WHETHER the title of the plaintiffs in A schedule property has been extinguished by the act of adverse possession of the defendants? 5. The plaintiffs in order to prove their case particularly the ownership of the same examined plaintiff No. 2 and one Ramendra sundar Mondal and also adduced documentary evidence. The appellant/defendant No. 1 himself also examined as defendant witness, one Sunil Ranjan Chakraborty, one Satyasadhan Panja, one Ashoke kumar Biswas and one Rabi Kanta Das were examined on behalf of the defendant. 6. The learned Trial Judge has found that the plaintiffs have been able to prove the case of ownership and the appellants/defendants failed to prove the case of adverse possession and granted decree. 7. The learned counsel for the appellant submits that the learned trial Judge failed to appreciate the evidence legally and properly as the plaintiffs could not prove the ownership and further failed to hold that the defendant have become owner by way of adverse possession. It is the contention of the appellants further that the learned Trial judge contrary to law has shifted the burden to prove the case of the adverse possession. It is the contention of the appellants further that the learned Trial judge contrary to law has shifted the burden to prove the case of the adverse possession. He urges it is the burden of the plaintiff to prove the case of leave and licence and the same could not be proved because the original licensor is not available to prove the same and he was the person who could prove the same and none else. Both the parties cited a number of authorities in support of their respective cases. ( 8 ) THE point for consideration in this appeal is whether learned Trial judge legally appreciated the evidence and further correctly passed the decree or not. My learnecd Brother has examined the evidence adduced by both the parties and I have also gone through the same. I am of the view that the learned Trial Judge has correctly found the plaintiffs were the owner. In support thereof there were documentary evidence. Moreover, if the plea of adverse possession is taken by any of the parties then by necessary implication the ownership of the adversaries are accepted and in fact are to be accepted otherwise case of adverse possession cannot stand. In fact in the cross-examination bablu (DW1) himself had admitted his late father was brought by Sunil, the father of the plaintiff No. 2 as licensee (at page 68 of para 6) who was owner. So the learned Trial Judge rightly rejected challenge against ownership made by the appellants. ( 9 ) NOW when the ownership of the plaintiff has been proved so also induction of predecessor in interest of the present appellants, in fact admitted, it is for the appellant/defendants are to establish their right to occupy the same with the plea of adverse possession. ( 10 ) ACCORDING to me going through the evidence I can conclude that the appellants have failed to prove their case though they desperately tried to put up case of adverse possession in vain. Oral evidence and irrelevant documentary evidence are of no assistance to prove their case of advease possession against the right and title of the owners. The fact findings of the learned Trial Judge appears to be consistent, reasonable and no other findings could be arrived at atleast by us on reading of evidence. Oral evidence and irrelevant documentary evidence are of no assistance to prove their case of advease possession against the right and title of the owners. The fact findings of the learned Trial Judge appears to be consistent, reasonable and no other findings could be arrived at atleast by us on reading of evidence. ( 11 ) UNDER provision of the Evidence Act 102 "a person has to prove his case. If he fails to prove, the burden in a suit or proceedings lies on that person who would fail if no evidence at all are given on either side. " ( 12 ) IN this case since burden has not been discharged, naturally defence set up by the appellants automatically fails. ( 13 ) JUDICIAL pronouncement in this regard is consistent: in the case of Thakur Krishan Singh v. Arvind Kumar, AIR 1995 SC 73 , Supreme Court laid down in paragraph 5 that: ". . . . . . A possession of a co-owner of licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession of howsoever length of time does not result in converting the permissive possession into adverse possession. . . " ( 14 ) IN another occasion Supreme Court in case of Annasaheb bapusaheb Patil and Ors. v. Balwant alias Balasaheb Babusaheb Patil, AIR 1995 SC 895 in paragraph 12 concept of adverse possession is explained as follows: "- 'adverse possession means hostile assertion that it a possession which 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 show by clear and unequivocal evidence that is possession was hostile to the real owner and amounted to a denial of his title to the property claim'. 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 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 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. " ( 15 ) WHEN the defendants have failed to prove they are bound to be declared as trespasser. The learned Trial Judge has exactly held so. Therefore, the appeal is dismissed and no order as to cost. Sanjib Banerjee, J.-A decree of eviction has been challenged in this appeal by licensees who claimed title to the land in question by adverse possession. ( 16 ) THE daughter and mother plaintiffs claimed to be owners of the land in question. The land was owned in 1959 by Sunil Kumar chowdhury, the predecessor-in-interest of the plaintiffs-respondents. The first respondent was born a few months after her father's death. 18. The plaintiffs claimed that the predecessor-in-interest of the defendants, Samulya Das had been granted licence in 1982 by Sunil's father Kshetranath, acting on behalf of his daughter-in-law and minor granddaughter. Samulya continued as licensee till his death whereupon the plaintiffs permitted Samulya's heirs then residing with him at the time of his death to continue as licensee. The plaintiffs alleged that upon the plaintiffs requiring the licensees to deliver possession, the defendants sought to dispute the plaintiffs' title in 1992. The suit was thereupon filed in January 1993. ( 17 ) THE defendants, in their combined written statement, fairly conceded to the plaintiffs and/or their predecessor-in-interest originally having title to the land, but contended that in the later part of 1963 Samulya came to occupy the lands and, in couse of time, set up house thereon. Samulya's right over the land had been perfected in course of time, according to the defendants. Samulya's original entry upon the land and his perfection of title therein was asserted on the following lines : ". . . Samulya's right over the land had been perfected in course of time, according to the defendants. Samulya's original entry upon the land and his perfection of title therein was asserted on the following lines : ". . . Samulya Das having selected the suit land having no claimant, thought the suit land to be a suitable place for residing there and accordingly cleared the same and converted the said land into Vita land by depositing earth and constructed two thatched huts and one Brick built room with mud on northern and straw thatch on the eastern portion of the suit land and started living there and used to possess the western and southern portion of the suit land as well by keeping cattle thereon, and surrounded entire land in his possession by tin and nets made of wire and gradually he raised two roomed pucca ghar on the western side and to its north raised a tin and tiled shed pucca ghar. Be it noted that said Samulya Das was a good mason and within short time he gained reputation in the locality for his masonry works. All the above constructions on the suit land were made by him long over two decades openly and adversely to all including its right full owner and by such possession for long over 12 years said Samulya Das acquired an independent and indefeasible title in the suit land by adverse possession on assertion of hostile title. Be it mentioned that prior to coming over to the suit land in 1963 which is located at Nutanpally within Kali bazar Mohalla under Burdwan Municipality said Samullya Das was a permanent resident of village Kalipahari within P. S. Bhatar district Burdwan. Be it further mentioned that whatever education the defendant No. 1 to 4 have, they have received the same at burdwan while residing on the suit land at Nutanpally. Said samullya Das also had Ration Card and was voter while living on the suit land during his lifetime. Thus said Samullya Das having acquired a good title on the suit land by way of adverse possession died on 20. 8. 89 leaving four sons defendant No. 1 to 4 and widow, defendant No. 5 who all have inherited the suit land as heirs of said samullya Das and since then they are in exclusive possession of the suit property. 8. 89 leaving four sons defendant No. 1 to 4 and widow, defendant No. 5 who all have inherited the suit land as heirs of said samullya Das and since then they are in exclusive possession of the suit property. Be it also mentioned that these defendants and also their aforesaid predecessor had been possessing the suit land by constructing and repairing the structures on the suit land and living there all along and exercising various acts of possession over there. . . . " ( 18 ) THE assertion having been made, it was undoubtedly on the defendants to prove adverse possession. In support of such plea, the first defendant had little to offer in his examination-in-chief. In his cross-examination, he admitted that he did not have any knowledge of the contents of the plaint and the relevant portion of his oral testimony is reproduced: ". . . The W. S. filed in this suit was not drafted at my instructions. I cannot say who instructed file the W. S. on our behalf. I have to remain outside in connection with my driving job. I attained knowledge at the age of my 7/8 years. I cannot say in which year and how many years back, my father came to the disputed property at Burdwan for his residence. . . . We have no paper to show that the constructions in the suit premises were all made at the instance of my father. During his life-time, my father was the KARTA of our joint family. Not a fact that the constructions over the disputed premises were not done at the instance of my father, that my father came over the disputed property as a licensee granted by Kshetranath chowdhury, predecessor of the plaintiff, that we, the defendants, are residing in the suit premises on leave and licence of the present plaintiff. We have no paper to show that my father was the owner of the disputed property. . . . " ( 19 ) THE second defendant, Bablu Das, was a little more assertive, though he claimed his father's possession of the suit premises from 1963. The thrust of his evidence was on Samulya's and the defendants' undisturbed possession for a substantial period of time. . . . " ( 19 ) THE second defendant, Bablu Das, was a little more assertive, though he claimed his father's possession of the suit premises from 1963. The thrust of his evidence was on Samulya's and the defendants' undisturbed possession for a substantial period of time. He proved documents from which it was evident that he and some of the other defendants, in fact, were residents of the building constructed on the land in question. He denied that either Samulya or the defendants were licensees under the plaintiffs. In addition, he had this to offer: ". . . Not a fact that our predecessor in interest or we never possessed the suit property since 1963. There is no paper to show that we or our predecessor in interest have been possessing the suit property since 1963. We never paid the occupier's tax to Burdwan municipality at any point of time in respect of the suit property. We submitted application before Burdwan Municipality requesting to accept occupier's tax from us. I do not remember the year when we submitted the said application before Burdwan Municipality. The said application was submitted before Burdwan Municipality at about 5 years back from this date. I shall not call for the said application from Burdwan Municipality. We have got no copy of the said application showing that the Burdwan Municipality received the said application on putting signature thereon. . . . " ( 20 ) THERE is also the following answer given by Bablu in response to a suggestion made in cross-examination: ". . . My father was permitted to reside at the suit property for protection of the contractory materials of Sunil Chowdhury. . . . " ( 21 ) A neighbour, thereafter, testified in support of the defendants asserting that Samulya and his family had been residing at the suit premises for about 40 years till the time of his deposition in March 2000. In cross-examination it was established that such witness had a tiff with the plaintiffs. He had been reported to the municipality for throwing garbage on the plaintiffs' property and had been asked by the municipality to throw his garbage in the vat provided by the municipality. It was also admitted that the second plaintiff had accompanied the witness daughter-in law to the police station when the daughter-in-law complained of domestic violence. He had been reported to the municipality for throwing garbage on the plaintiffs' property and had been asked by the municipality to throw his garbage in the vat provided by the municipality. It was also admitted that the second plaintiff had accompanied the witness daughter-in law to the police station when the daughter-in-law complained of domestic violence. ( 22 ) A second neighbour claimed that the defendants and/or their predecessar-in-interest had been in occupation of the suit premises since 1956. An advocate and two persons of the locality were examined by the defendants who repeated that Samulya's family had been long time occupants of the suit land. ( 23 ) DESPITE such being the position of the oral evidence before the learned Court below, learned counsel for the appellants submits that the plaintiffs had failed to make out a case of licence. It was the plaintiffs' burden to prove the case of licence and, upon the plaintiffs having failed in that regard, the plaintiffs were not entitled to the decree that came to be passed. In particular, the plaintiffs' assertion of grant of licence to Samulya's heirs was seriously questioned on the ground that it was the first plaintiffs case that following her marriage she was not in Burdwan from 1987. It was submitted that in the absence of the second plaintiff having taken the stand and it being admitted that the first plaintiff was away from 1987, this story of the second licence should have been discarded. Learned counsel also relied on memorandum issued on December 3, 1992 by the Burdwan municipality to the first plaintiff. Such memorandum provided as follows: "with ref. to the above, this is to inform you that holding no. 181/144, Kalibazar under Circle No. 11 stands in the name of sri Sankar Pada Sen, S/o. Lt. Ram Sen in the assessment year of 1991-92 and it is also found from the ml. record that (1) Shri hriday Das (2) Sri Rabi Das (3) Sri Santi Das and (4) Sri Bablu Das, s/o. Lt. Samulya Das are the occupants of the aforesaid holding for 35 years. " ( 24 ) ON behalf of the respondents it was submitted that a plea of adverse possessian had to be pleaded and proved by the person setting up such defence. Samulya Das are the occupants of the aforesaid holding for 35 years. " ( 24 ) ON behalf of the respondents it was submitted that a plea of adverse possessian had to be pleaded and proved by the person setting up such defence. The evidence presented by the defendants, according to learned counsel for the respondents, was only on the defendants' continued possession of the suit property. There was no material to claim that the defendants had set up a title hostile to that of the plaintiffs. ( 25 ) THE decisions reported at AIR 1976 Calcutta 55 (Premendu bhusan Mondal v. Sripati Ranjan Chakravarty), AIR 1995 SC 73 (Thakur kishan Singh (dead) v. Arvind Kumar), AIR 1995 SC 895 (Annasaheb bapusaheb Patil and Ors. v. Balwant alias Balasaheb Babusaheb Patil (dead) fay LRs. and heirs etc.), AIR 1924 PC 150 (Kodoth Ambu Nair v. Secretary of State for India), 2004 (4) Supreme 631 (Karnataka Board of wakf v. Government of India and Ors.), (1994)6 SCC 591 (Thakur Kishan singh v. Arvind Kumar) and 1lr (1979) Bom. 54 (Yesu Sadhu Nimagre and ors. v. Kundalika Babaji Nimagre and Anr.) were cited. ( 26 ) IN the Calcutta case ( AIR 1976 Cal. 55 ), a Division Bench held that when a person in unauthorized occupation admits the title of the true owner, his possession of the property would not be adverse to the true owner's. It was further held that a squatter or trespasser, who did not set up a claim or right, could not plead adverse possession and no length of mere squatting was good to resist a suit for possession by the true owner. In the instant case, the occupiers were said to be in occupation by permission. Upon the defendants denying the licence, they claimed as having originally trespassed upon the land. Though they admitted the plaintiffs' title prior to Samulya's coming into occupation of the suit land, the defendants have not asserted that they or their predecessor-in-interest were the owners at any point thereafter. ( 27 ) IN the decision reported at AIR 1995 SC 73 , there was no dispute that the alleged adverse possessor came into possession under a licence. ( 27 ) IN the decision reported at AIR 1995 SC 73 , there was no dispute that the alleged adverse possessor came into possession under a licence. In that context, it was decided as follows: "a possession of co-owner or a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession. " ( 28 ) THAT test for establishing adverse possession, however, remains unaltered even if the true owner and the alleged adverse possessor dispute the modus of the original entry upon the land. As in the present case, notwithstanding the plaintiffs asserting licence and the defendants, in effect, claiming trespass, adverse possession cannot be established unless it is clearly demonstrated, both in pleadings and in evidence, that the true owner was made aware of a hostile title being set up and that notwithstanding such knowledge, the period prescribed under Article 65 of the Schedule to the Limitation Act had expired. The possession that is required to be demonstrated, is a continuous and uninterrrupted possession and is an integral part in proving adverse possession. But it is only one of the factors. If continuous possession is not established, a plea of adverse possession needs no further examination. But upon long and uninterrupted possession having been established, the next enquiry commences as to whether a title hostile to the true owner had been asserted. Such enquiry is primarily an enquiry on facts. ( 29 ) THE Privy Council had summarized the position at law in the judgment relied upon by the respondents [kodoth Ambu Nair v. Secy. of State (supra)] : ". . . a licensee cannot claim title only from possession however long unless it is proved that the possession was adverse of the licensor, to his knowledge and with his acquiescence. . . . " ( 30 ) THE onus required to be discharged by a person setting up a defence of adverse possession has been long settled. It has been summed up in the case of Karnataka Board of Wakf v. Government of India (supra): "11. . . . " ( 30 ) THE onus required to be discharged by a person setting up a defence of adverse possession has been long settled. It has been summed up in the case of Karnataka Board of Wakf v. Government of India (supra): "11. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the, title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (see: S. M. Karim v. Bibi Sakinal, air 1964 SC 1254 , Parsinni v. Sukhi, (1993)4 SCC 375 and D. N. Venkatarayappav. State of Karnataka, (1997)7 SCC 567 ). Physical fact of exclusive, possession and the exclusion passidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma, (1996)8 SCC 128 ). 12. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma, (1996)8 SCC 128 ). 12. Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (see S. M. Karim v. Bibi Sakinal, AIR 1964 SC 1254 ), In P. Periasami v. Periathambi, (1995)6 SCC 523 this Court ruled that - "whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property. " The pleas on title and, adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639 that it is similar to the case in hand, this Court held: "as regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i. e. , up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant. " ( 31 ) IN the Judgments reported at (1994)6 SCC 591 (Thakur Kishan singh v. Arvind Kumar) and ILR (1979) Bom. 54 (Yesu Sadhu Nimagre and ors. v. Kundalika Babaji Nimagre and Ann), the heavy burden required to be discharged by the alleged adverse possessor has been emphasized. The principle generally followed is that adverse possession must be adequate in continuity, in publicity and in extent, to show that it is possession adverse to the true owner. 54 (Yesu Sadhu Nimagre and ors. v. Kundalika Babaji Nimagre and Ann), the heavy burden required to be discharged by the alleged adverse possessor has been emphasized. The principle generally followed is that adverse possession must be adequate in continuity, in publicity and in extent, to show that it is possession adverse to the true owner. ( 32 ) THE assertion of adverse possession was made in the pleadings by the defendants but there was no material in support. As to whether the defendants were trespassers or licensees, was a pure academic question in the light of their having failed to substantiate the case of title hostile to the plaintiffs. ( 33 ) THE learned Court below had considered the evidence before it and concluded that the defendants had not been able to establish having acquired any right from a specific date. It was found that the defendants had failed to demonstrate as to the capacity in which Samulya possessed the suit property. There was no error committed by the learned Trial court in arriving at the conclusion. The appeal fails. There will, however, be no order as to costs. Urgent photostat certified copy of this Judgment, if applied for, be given to the parties on the usual undertakings. Later: let the Lower Court records be sent down by the department forthwith. Appeal fails