Judgment ( 1. ) THE plaintiff has preferred this appeal aggrieved by the judgment and decree dated 31. 7. 1991 in Civil Appeal No. 45-A/1987 by the Additional Judge to the Court of District Judge, Khurai, District Sagar by which the judgment and decree in Civil Suit No. 36-A/1986 dated 10. 10. 1987 of the Civil Judge class-I, Khurai was reversed. The trial Court decreed the suit of the appellant but the appellate Court dismissed by allowing the appeal. ( 2. ) THIS appeal was admitted on 26. 10. 1991 on following substantial question of law: "whether inspite of statement of respondent wilson in para 8 of his evidence, it can be held that he has prescribed his title by adverse possession?" ( 3. ) THE learned counsel for appellant submitted that the appellate Court found adverse possession of defendant/ respondent no. 1 Wilson on the basis of sale deed dated 7. 5. 1958 Ex. D/2, but failed to take cognizance of the document Ex. P/7 dated 13. 12. 1958 by which the property was repurchased by mst. Yashoda Jalaiya from Wilson in favour of plaintiff Jaswant Singh, who was minor at that time. In the document Ex. P/7, a specific averment was made by the vendor that the possession of the land shall be handed over after reeping the crop standing on the land. In view of this specific averments made in the document Ex. P/7, there was no question of claiming any adverse possession by Wilson against the appellant. The defendant, respondent Wilson ought to have pleaded and proved his adverse possession against the appellant. In absence of this, the appellate Court erred in dismissing the suit of the appellant on the basis of adverse possession of respondent. Respondent Wilson in para 8 of his statement specifically admitted that on the date of execution of the document Ex. P/18 dated 20. 5. 1964, the disputed land belongs to the ownership of Jaswant Singh, but the document ex. P/18 has wrongly been disbelieved by the appellate Court. Ex. P/18 was a document dated 20. 5. 1964 by which Wilson executed an agreement in favour of plaintiff and admitted the title of plaintiff. Hence there was no question of any adverse possession against appellant since 7. 5. 1958 as held by the appellate Court. ( 4. P/18 has wrongly been disbelieved by the appellate Court. Ex. P/18 was a document dated 20. 5. 1964 by which Wilson executed an agreement in favour of plaintiff and admitted the title of plaintiff. Hence there was no question of any adverse possession against appellant since 7. 5. 1958 as held by the appellate Court. ( 4. ) THAT, in the case ingredients of adverse possession were not pleaded by the defendant Wilson. He referred to para 12 of the written statement in support of his contention and placed his reliance to the Apex Courts judgments in Mohan Lal vs. Mirza Abdul Gaffar : (1996) 1 SCC 639 and karnataka Board of Wakf vs. Govt. India: (2004) 10 SCC 779 and submitted that this appeal be allowed, the judgment and decree passed by the appellate Court be set aside and that of the trial Court be restored. ( 5. ) THE learned counsel appearing for respondents supported the judgment and decree passed by the appellate Court and submitted that the appellate Court has rightly reversed the judgment and decree of the trial Court and dismissed the suit of plaintiff/appellant. In document Ex. P/7, there are specific averments that the possession of the land was not handed over to jashoda and it was to be handedover after reaping the crop, meaning thereby that on 13. 5. 1958, the possession of the land was not delivered. Jashoda appeared as DW1 and she admitted in her statement that when she was at nagpur, the defendant Wilson took possession of the land. She was at nagpur upto 1960 and after her retirement from service, she shifted from nagpur to village, meaning thereby that Wilson was in possession prior to 1960 and not from June-July 1965 as pleaded by the plaintiff. That the possession under an invalid deed was also an adverse possession. Reliance was placed to the Apex Court judgment in State of West Bengal vs. Dalhousie Institute Society: AIR 1970 SC 1779 and Lokanadha v. Lokhono:air 1930 Madras 738 and submitted that this appeal may be dismissed with costs. ( 6. ) TO appreciate rival contentions of the parties, factual position in the case may be looked into. The suit was filed by Jaswant Singh before the trial Court on 7. 6. 1966 on following grounds: (i) That, at village Bagdhari, Tahsil Khurai , land S. No. 23/3 area 20. ( 6. ) TO appreciate rival contentions of the parties, factual position in the case may be looked into. The suit was filed by Jaswant Singh before the trial Court on 7. 6. 1966 on following grounds: (i) That, at village Bagdhari, Tahsil Khurai , land S. No. 23/3 area 20. 02 hectare is situated. Out of this, six acres of land was in dispute which was shown by red colour in the map of plaint. (ii) That, the aforesaid land was purchased by the god mother of plaintiff during his minority from Swedish Mission, Bagthari. She got possession of the land on behalf of the plaintiff. That on 7. 5. 1958, father of the plaintiff Jaipal singh in the capacity of guardian sold disputed six acres of land to the defendant. The land was repurchased by Jashoda Jalaiya as a guardian of the plaintiff in the name of plaintiff on 13. 12. 1958. That after purchase of the aforesaid land, the plaintiff was in possession of the land but in June-July, 1965, the defendant no. 1 again dispossessed the plaintiff from disputed six acres of land. Initially the dispossession was pleaded in June-July 1964, but by an amendment dated 13. 12. 89, the year was changed as 1965. (iii) That, the defendant no. 1 claimed that he purchased the land from father of the plaintiff Jal Pal Singh during his minority for a consideration of rs. 1200/-out of which an earnest money of Rs. 750/-was paid and remaining amount of Rs. 450/-was payable at the time of sale deed. The plaintiff disowned the aforesaid agreement and pleaded that he was not bound by the aforesaid agreement. (iv) That, the aforesaid agreement if was executed, then it was during minority of the plaintiff and in fact the actual guardian of the plaintiff was mst. Jashoda Jalaiya who purchased the land from her own money for plaintiff in the capacity of guardian of the plaintiff, so the natural father of the plaintiff Jaipal Singh was having no right to sell the aforesaid land. Apart from this, Jaipal Singh was not declared guardian under law so he was not the guardian of the plaintiff. Apart from this, even if such agreement is found, then it was to the detriment of the interest of plaintiff and does not bind him. The defendant no. Apart from this, Jaipal Singh was not declared guardian under law so he was not the guardian of the plaintiff. Apart from this, even if such agreement is found, then it was to the detriment of the interest of plaintiff and does not bind him. The defendant no. 1 himself had breached the agreement and had not paid the remaining amount to the plaintiff. No sale deed was executed within a period of three years. No willingness or readiness was shown by the defendant no. 1. That the plaintiff asked for possession of the land from the defendant in June, 1973, but he had not agreed and continued with his illegal possession. He was also taking benefit of yield of the land. On these grounds, the plaintiff claimed damages for the last 3 years Rs. 3000/ -. Jaipal Singh was made a proforma defendant no. 2. On these grounds the suit was filed for possession of the land. ( 7. ) THE defendants 2 and 3 Yashoda Jalaiya and Jai Pal Singh though filed written statement but had not contested the suit. The defendant no. 1 contested the suit by filing a detailed written statement. The written statement of defendant no. 1 was as under: (a) That, the plaintiff was not owner of the land and in fact the owner of the land was Jaipal Singh and he himself purchased the land, but name of plaintiff was nominally written in the sale deed. Defendant no. 2 is neither related nor guardian of the plaintiff. She was having no concerned to purchase the land. The natural guardian of the plaintiff was Jaipal Singh, who sold the land to defendant no. 1 Wilson. He was having full right to sell the land. Defendant no. 2 was neither the guardian nor was she entitled to purchase the land as a guardian of the plaintiff, in particular when natural guardian was alive. That the possession of defendant no. 1 on the disputed land was continuing since 1958. In patwari papers possession of defendant no. 1 was shown. The plaintiff or his father Jai Pal Singh or defendants 2 and 3 were never in possession of the land. (b) That,jai Pal Singh was the real owner of the land from whom defendant no. That the possession of defendant no. 1 on the disputed land was continuing since 1958. In patwari papers possession of defendant no. 1 was shown. The plaintiff or his father Jai Pal Singh or defendants 2 and 3 were never in possession of the land. (b) That,jai Pal Singh was the real owner of the land from whom defendant no. 1 purchased the land and paid earnest money and remaining consideration was payable to him, to which the defendant was always ready and willing to pay. On this ground, Jai Pal Singh got entered name of defendant no. 1 in the revenue papers and possession of defendant no. 1 continued. Defendant no. 1 made various requests to Jai Pal Singh for execution of the sale deed, but he avoided. The plaintiff was not entitled for the possession. In additional plea, the defendant pleaded that since 1958, defendant is in possession of the land as owner of the land and even if there was any right of plaintiff it was vanished and defendant no. 1 had become full owner of the land. That the suit was not filed within 12 years from the date of dispossession and was barred by limitation. That, defendant no. 1 got possession of the land from Jaipal Singh and only execution of the sale deed remained for which defendant no. 1 was always ready and willing, and even on the date of filing of the written statement, to execute the sale deed. So under Section 53-A of the Transfer of Property Act, plaintiff cannot dispossess defendant no. 1, ? By way of amendment, defendant raised certain more pleas as under: that, the possession of the defendant was since 1958, the plaintiff admitted his possession since 1964 and from that date the suit was barred by limitation. The plaintiff by amendment had changed the year from 1964 to 65. The father of the plaintiff purchased the land in the name of plaintiff, as benami. The owner of the land was Jai Pal Singh. Jai Pal Singh paid the entire amount. Jai Pal Singh was guardian of his son. Jaipal Singh also sold the land to Kripal Singh S/o Mathew Babu by registered sale deed, but the said sale deed was not challenged by the plaintiff after attaining majority. The plaintiff cannot challenge the agreement in favour of the defendant. Jai Pal Singh paid the entire amount. Jai Pal Singh was guardian of his son. Jaipal Singh also sold the land to Kripal Singh S/o Mathew Babu by registered sale deed, but the said sale deed was not challenged by the plaintiff after attaining majority. The plaintiff cannot challenge the agreement in favour of the defendant. On these grounds, the suit was contested by defendant no. 1. ( 8. ) THE trial Court framed issues, recorded evidence and arrived at following findings: (i) That defendant no. 2 Yashoda Jalaiya purchased the land for plaintiff on 20th Feb. 1957 from Swedish Mission. This land was sold by the father of the plaintiff, which was again purchased by defendant Yashoda Jalaiya on 13. 12. 1958 for plaintiff; (ii) that the land belongs to the plaintiff and he is the owner of the land. (iii) That, the defendant no. 1 Wilson in June-July 1965 dispossessed the plaintiff and took illegal possession of the land, (v) That, defendant no. 1 had breached the agreement by not getting the sale deed executed within three years from the date of the agreement (vi) that, defendant no. 1 had earned profit of crop from 1973-74 to 1975-76 for Rs. 3,000/ (vii) The suit was within limitation. (viii) That, defendant no. 1 Wilson was not in possession of the land since 1958. (ix) That, Jai Pal Singh had neither written a letter dated 20th May, 1959 in favour of the defendant nor delivered possession to defendant. (x) That, the land which was purchased in the name of plaintiff Jaswant Singh was not of the ownership of Jai Pal Singh. (xi) That, the defendant no. 3 had not pressurized defendant no. 1 for the agreement dated 20. 5. 1964. . On the aforesaid findings, the trial Court decreed the suit for possession and mesne profit. ( 9. ) AGGRIEVED by the judgment and decree passed by the trial Court, defendant Wilson preferred an appeal before the Additional Judge to the Court of District Judge, Sagar, Khurai which was registered as Civil Appeal No. 45 a/1987. This appeal was decided by the judgment and decree dated 31st July, 1991. The appellate Court recorded following findings: (i) That, the possession of defendant no. This appeal was decided by the judgment and decree dated 31st July, 1991. The appellate Court recorded following findings: (i) That, the possession of defendant no. 1 since 1965 was not in dispute (ii) That, the plaintiff was not firm in respect of his dispossession initially, the date of dispossession was pleaded as June July 1964 but subsequently by way of amendment it was amended as June July, 1965. (iii) That, the plaintiff during the course of transaction was minor and he was taken care of by her God mother defendant no. 2. Yashoda Jalaiya after retirement ,since 1960 was residing at khurai and before it she was at Nagpur. (iv) That defendant no. 2 Yashoda Jalaiya in para 12 of her statement had admitted that when she was at Nagpur, defendant Wilson took possession of the land and as per statement of Yashoda Jalaiya, defendant Wilson was in possession prior to 1960. (v) That documents P/7, P/3 and P/18 were executed which show that after the execution of document Ex. D/1, the plaintiff was not in possession of the land. (vi) That defendant no. 1 had not taken possession with the permission of plaintiff. The possession of the defendant no. 1 from beginning was adverse to the plaintiff and by Ex. P/18 which was a suspicious document, no case can be made out in favour of the plaintiff. Ex. D/1 was not accepted by the plaintiff and he cannot take benefit of it. That Wilson was in possession of the land since 7. 5. 1958, his possession was adverse to the plaintiff and recording these findings, in paras 65 to 71, the appellate Court allowed the appeal and dismissed the suit. These judgments and decrees are under challenge in this appeal. ( 10. ) THE learned counsel for the appellant submitted that even on the basis of the documents as have been found proved by the appellate Court, no case is made out for adverse possession against the plaintiff. The defendant no. 1 claimed adverse possession since 7. 5. 1958 but the appellate Court had not considered the document Ex. P/7 of 3. 12. 1958 by which the property was repurchased by Mst. Yashoda from Wilson in favour of plaintiff Jaswant. Ex. P/7 the sale deed dated 13. 12. 1958 was not in dispute. There was no question of recording a finding that since 7. 5. 5. 1958 but the appellate Court had not considered the document Ex. P/7 of 3. 12. 1958 by which the property was repurchased by Mst. Yashoda from Wilson in favour of plaintiff Jaswant. Ex. P/7 the sale deed dated 13. 12. 1958 was not in dispute. There was no question of recording a finding that since 7. 5. 1958, defendant Wilson was in possession of the land. It was necessary on the part of defendant Wilson to plead and prove his adverse possession, and the starting point of limitation when his possession became adverse to the plaintiff by some overact. In this regard, the appellant placed reliance to the Apex Court judgment in Mohan lal vs. Mirza Abdul Gafoor (1996)1 SCC 639 and submitted that the plea of adverse possession cannot be sustained when alternative plea of retention of possession by operation of Section 53a of the Transfer of Property Act was also made. Both the pleas were inconsistence and plea of adverse possession cannot be found. ( 11. ) HE has also placed his reliance to a recent judgment of the Apex Court in Karnatka Board of Wakf vs. Govt. of India (2004) 10 SCC 799 and submitted that to establish plea of adverse possession, the defendant ought to have proved his possession adequate and in extend to say that his possession was adverse to the true owner. He must have stated that his dispossession of the rightful owner was actual, exclusive, hostile and continued over the statutory period. The starting point of limitation ought to have been pleaded and proved by the defendant. In absence of which, plea of adverse possession cannot be sustained. ( 12. ) THE learned counsel appearing for respondents submitted that the plea of adverse possession recorded by the appellate Court is a finding of fact in which no interference is needed from this Court. ( 13. ) TO appreciate the aforesaid contention, legal position as held in mohan Lal and Karnataka Wakf Board may be looked into: "3. The only question is whether the appellant is entitled to retain possession of the suit property. Two pleas have been raised by the appellant in defence. One is that having remained in possession from March 8, 1956, he has perfected his title by prescription. The only question is whether the appellant is entitled to retain possession of the suit property. Two pleas have been raised by the appellant in defence. One is that having remained in possession from March 8, 1956, he has perfected his title by prescription. Secondly, he pleaded that he is entitled to retain his possession by operation of Section 53-A of the Transfer of property Act, 1882 (for short, the Act)4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder 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. , upto completing the period of his title by prescription nec vi nec clam nec precario. Since the appellants claims is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the 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. In Karnataka Wakf Board, the Apex Court held thus: 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. Nonuse of the property by the owner even for a long time wont 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. 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 Venkatarayappa v. State of Karnataka (1997) 7 scc 567 ). Physical fact of exclusive possession and the animus possidendi 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 )" ( 14. ) NOW in the light of the settled position of law by the Apex Court in mohan Lal and Karnataka Wakf Board (supra), the factual position in the present case may be seen. a) Mst. Yashoda purchased the property by sale deed dated 20th Feb. 1957 ex. P/5 from Mohan Domair S/o Domair of Swedish Misson Baaggthari, khurai. At the time of purchase of the property, Jaswant Singh was minor and in the sale deed itself it has been specifically mentioned that Jaswant Singh, minor purchased the property through Smt. Yashoda Jalaiya. Thereafter the said property was sold by Jai Pal Singh as guardian of jaswant Singh by sale deed Ex. D/2 dated 7th May, 1958. The sale deed was in the name of Sunil Kumar S/o Wilson. Again on 13. 12. 1958, the property was purchased in the name of Jaswant Singh Minor through Smt. Yashoda Jalaiya from Sunil S/o Wilson. The sale deed was executed by Wilson defendant no. 1. D/2 dated 7th May, 1958. The sale deed was in the name of Sunil Kumar S/o Wilson. Again on 13. 12. 1958, the property was purchased in the name of Jaswant Singh Minor through Smt. Yashoda Jalaiya from Sunil S/o Wilson. The sale deed was executed by Wilson defendant no. 1. These deeds were only in respect of six acres of land and for other lands, there is no dispute in the case. Though the agreement Ex. P/18 was disputed by the defendant and even for the sake of argument if this agreement is ignored, then the fact remains that the sale deed Ex. P/7 was an admitted document between the parties by which Wilson sold the land in favour of Jaswant Singh. In the sale deed Ex. P/7, there is stipulation that the entire consideration was received by Wilson and only right to reap the crop standing on the land at the time of sale deed Ex. P/7 was retained by the vendor. If the entire document is looked into then the possession of the aforesaid land was reconveyed to the plaintiff through Smt. Yashoda Jalaiya. The defendant Wilson in the written statement has specifically pleaded that on 20th May, 1959 Jaipal Singh wrote a letter in favour of the defendant and the defendant was also put in possession prior to it. The defendant also pleaded in para 18 that in fact the land was purchased by Jai Pal Singh in the name of his son. The entire money was invested by Jai Pal Singh and in the same capacity, he sold another land to Kripal Singh Pal S/o Mathew on 13. 5. 1965. This fact specifically shows that defendant Wilson was claiming ownership in the land or possession in part performance then his plea of adverse possession was not in accordance with law settled by the Apex Court in karnataka Wakf Board. If the defendant claimed his possession on the basis of the sale deed or in the alternative claimed his possession under Section 53a of the Transfer of Property Act, then he was not entitled to take a plea of adverse possession as held by the Apex Court. In these circumstances, the appellate Court erred in recording a finding that the possession of the defendant Wilson was adverse to the plaintiff and dismissing the suit. ( 15. In these circumstances, the appellate Court erred in recording a finding that the possession of the defendant Wilson was adverse to the plaintiff and dismissing the suit. ( 15. ) APART from these, the sale deed by Jai Pal Singh in favour of Wilson dated 7. 5. 1958 may also be looked into. It is not in dispute that parties are christians and the principle of Karta of family was not applicable. In absence of applicability of the principle of karta, the appellate Court erred in arriving at a finding that by sale deed dated 7. 5. 1958 Wilson acquired right. Even for the sake of argument, if the aforesaid plea is accepted, then defendant Wilson by sale deed dated 13. 12. 1958 had reconveyed the property in favour of the plaintiff. In these circumstances, the plaintiff was the owner of the land and the plea of adverse possession was not at all established in the case. The plaintiff in para 3 of the plaint pleaded that in June-July 1964, the defendant no. 1 dis-possessed the plaintiff. Subsequently, the year was amended by the plaintiff and in place of 1964, the year 1965 was substituted. The suit was filed on 7. 5. 1976. Even if for the sake of argument,if it is found that in June july, 1964, the plaintiff was dispossessed, even then in absence of proof of plea of adverse possession, the plaintiff could not have been non suited. Article 65 of the Limitation Act provides for the suit of possession of immovable property based on title limitation of 12 years shall be from the possession of the defendant when it became adverse to the plaintiff. The burden was on the defendant to prove his adverse possession against the plaintiff and in absence of it, even if, it is assumed that the plaintiff was dispossessed in June July 1964, the plaintiff cannot be non-suited. The appellate Court without considering the aforesaid factual and legal position erred in reversing the findings of the trial Court. ( 16. ) THE defendant Wilson in para 8 of his statement had admitted the document Ex. P/18. Ex. P/18 is the agreement dated 20. 5. 1964 by which Jai pal Singh as guardian of Jaswant Singh plaintiff, agreed to sell the disputed land in favour of defendant Wilson. The defendant Wilson specifically admitted this fact in his statement that the contents of Ex. P/18. Ex. P/18 is the agreement dated 20. 5. 1964 by which Jai pal Singh as guardian of Jaswant Singh plaintiff, agreed to sell the disputed land in favour of defendant Wilson. The defendant Wilson specifically admitted this fact in his statement that the contents of Ex. P/18 were true. He admitted that on that day, he admitted land of the ownership of Jaswant Singh. The document P/18 was written on 20th May, 1964 meaning thereby on 20. 5. 1964 wilson admitted title of plaintiff Jaswant Singh in the land. In view of this specific admission of Wilson in para 8 of the statement, he ought to have pleaded and proved that after execution of document, when his possession became adverse to the plaintiff. But in this case, neither such was pleaded nor it was proved. In these circumstances, the appellate Court erred in ignoring this material admission of the defendant. On the basis of the aforesaid reasons, the judgment and decree passed by the appellate Court is not sustainable under the law and accordingly the aforesaid judgment and decree are hereby set aside and the judgment and decree passed by the trial Court are restored. ( 17. ) IN the result, this appeal is allowed. The judgment and decree passed by the lower appellate Court are set aside and that of the trial Court are restored. The appellant shall be entitled for the cost of the litigation from the respondent no. 1. The counsels fee is fixed at Rs. 2,000. A decree be drawn accordingly.