JUDGMENT 1. THIS second appeal is of the defendant and is directed against the judgment and decree dated 12th June, 1998 passed in Title Appeal No. 48 of 1996 by the learned Additional District Judge, 7th Court, Alipore decreeing the suit after reversal of the judgment and decree of dismissal dated 22nd April, 1995 passed by the learned Civil Judge (Senior Division), 3rd Court at Alipore in Title Suit No.106 of 1983. The facts are these: 2. THE premises No. 69, Hazra Road measuring about of 11 cottahs 10 chittacks 4 sq. ft. belonged to Corporation of Calcutta which transferred the same to Dr. Monmotha Nath Chatterjee by a deed of conveyance on 21st December, 1911. Monmotha Nath Chatterjee died on 25th April, 1939 leaving his will and testament dated 23rd April, 1939. His heirs are Krishna Das (son), Hrishikesh (son), Monindra Lal Mukherjee (predeceased daughter's son) and two other daughters,namely, Giribala and Shyama Sundari. Krishna Das, Hrishikesh and Monindra Lal were made executors of the will and they obtained probate from the High Court of the will on 14th August, 1939. Giribala Devi and Shyama Sundari Devi filed a suit being No. 996 of 1943 for removal of executors and for appointment of the Administrator General of Bengal as receiver. On 13th August, 1943 the High Court appointed the Administrator General of Bengal as receiver in respect of the properties left by the testator including the properties being 69, Hazra Road. Then, Krishna and Hrishikesh filed a suit being No. 1198 of 1943 in the High Court against Monindra for administration of properties and for construction of the will. On 15th May, 1945 the High Court after consolidation of the above two suits passed a preliminary decree for partition and directed sale of the residuary estate left by the testator. On 15th May, 1946 a preliminary decree was passed on compromise and one Mr. Beni Madhav Chatterjee, Advocate of this Court was appointed Commissioner for partition with powers upon him to make partition and division of the residuary estate into six equal parts and to sell the same by public auction to the highest bidder. On 15th May, 1946 a preliminary decree was passed on compromise and one Mr. Beni Madhav Chatterjee, Advocate of this Court was appointed Commissioner for partition with powers upon him to make partition and division of the residuary estate into six equal parts and to sell the same by public auction to the highest bidder. Then on 6th February, 1948 an order was passed further by the High Court to the effect that the executors to the will and the Commissioner so appointed by the Court would jointly execute and register sale deeds in respect of the immovable properties, that is residuary estate in terms of the decree. Then an auction sale was conducted pursuant to which the original plaintiff of this suit Surya Sekhar Chatterjee, his brother Purnendu Sekhar Chatterjee and Chandra Sekhar Chatterjee purchased the entire eastern portion of the premises No.69.Hazra Road, measuring 4 cottahs 13 chittacks and 20 sq.ft. which was referred to in the sale deed as Lot-B.Chandra Sekhar died on 15th June, 1949 leaving widow Provati and a minor son Shasanka Sekhar. A deed of conveyance in respect of the eastern portion measuring 4 cottahs 13 chittacks 20 sq.ft. of land was executed by the executors of the will and the Advocate commissioner in favour of Surya Sekhar Chatterjee, Purnendu Chatterjee, Provati Devi, for self and minor son Shasanka Sekhar Chatterjee on 9th June, 1950. Then this Chatterjee family effected partition of their properties including this property by registered deed of partition on 28th January, 1957 by virtue of which the entire 4 cottahs 13 chittacks 20 sq.ft. which is Lot-B was allotted to Surya Sekhar alone. Other non-suit properties were allotted to other co-sharers.Now, Surya Sekhar raised construction covering an area of 2 cottahs 12 chittacks 24 sq. ft. within his purchased land and within the partitioned land measuring 4 cottahs 13 chittacks 20 sq. ft, a portion thereof measuring 2 cottahs 41 sq.ft. out of said 4 cottachs 13 chittacks 20 sq.ft. was left vacant in the southern part of the said eastern portion of the said premises, in the northern part of the eastern portion measuring 2 cottahs 12 chittacks 24 sq. ft. where constructions were raised there were certain tenants.ln terms of the auction sale another deed of conveyance was executed by Krishna Das, Hrishikesh and Monindra Lal Mukherjee of the one part and the Commissioner Mr. ft. where constructions were raised there were certain tenants.ln terms of the auction sale another deed of conveyance was executed by Krishna Das, Hrishikesh and Monindra Lal Mukherjee of the one part and the Commissioner Mr. Beni Madhav of the other part in favour of Hrishikesh Chatterjee in respect of Lot-A which was the western portion of 69,Hazra Road measuring 4 cottahs 14 chittacks 4 sq.ft. THE present defendants are said to be tenants under Hrishikesh in respect of a portion of the Lot- A which is western part of the premises No.69, Hazra Road and which is not the suit property. Further Hrishikesh Charterjee died leaving widow Rama Chatterjee, son Arpan Chatterjee and daughter Arpita Chatterjee. Hrishikesh died on 4th December, 1957. Now Rama, Arpan and Arpita, the heirs of Hrishikesh sold 2 cottahs 10 chittacks 3 sq. ft. to one Sushil Kr. Das out of their 4 cottahs 14 chittacks 4 sq.ft. on 21.11.1979. Now the plaint case is that the defendants who were tenants under Hrishikesh in respect of a portions of the Lot-A which is western part of the premises No. 69, Hazra Road encroached upon the plaintiff's land measuring. 2 cottahs 41 sq. ft. being a part of 4 cottahs 13 chittacks 20 sq.ft. of land in the eastern half or Lot-B and this encroached area is to the southern part of the eastern portion premises abutting Sevak Baidya Street, and not only that, the defendants also encroached upon some portions of premises of 2/1 Sevak Baidya Street in respect of which the owners of the said 2/1, Sevak Baidya Street instituted a suit against the defendants. THE plaintiff in course of his employment was out of the town of Calcutta and having come from Andamans he found that the defendant had demolished the boundary wall in the western part and encroached upon the above area of 2 cottahs 41 sq.ft. of land in the eastern portion in which the defendants are rank trespassers. Therefore, the plainitff Surya Sekhar instituted the suit for decree for khas possession of the aforesaid area of the land and for certain other consequential reliefs. The suit was instituted on 3rd May, 1982 and a few days after institution of the suit Surya Sekhar sold his entire 4 cottahs 13 chittacks 20 sq. ft. of land, inclusive 6f the suit property, to Raj Kr. Das, Sukumar Das and Kali Kr. The suit was instituted on 3rd May, 1982 and a few days after institution of the suit Surya Sekhar sold his entire 4 cottahs 13 chittacks 20 sq. ft. of land, inclusive 6f the suit property, to Raj Kr. Das, Sukumar Das and Kali Kr. Das, the added plaintiffs. Surya Sekhar died sometime after he himself had given evidence as P.W.1 before the learned trial Court. And his heirs also have been substituted, although they did not claim to have any interest in the property because of the transfer effected by Surya Sekhar Chatterjee to the aforesaid three persons on 12th May, 1982. 3. THE defendants are Kamal Bose, Kallol Bose, Biswanath Ghosh and M/s. Alfa Automobile, a partnership firm of which Kallol Bose and Biswanath Ghosh were partners. THEir case is that they obtained thika tenancy of a land measuring more or less 4 cottahs 6 chittacks at 69 Hazra Road with wall in three sides having its opening in the south at Sevak Baidya Street from Hrishikesh Chatterjee at a monthly rental of Rs. 70 per month in the name of M/s. Alfa Motors and thereafter constructed sheds at their own cost and started business thereon. THE defendant No. 2 Kallol Bose was the constituted attorney of the partnership firm. Hrishikesh having died the thika tenants aforesaid would pay rent to his widow at the increased sum of Rs. 99/-. In view of the Calcutta Thika Tenancy Act this area of 4 cottahs 6 chittacks (more or less) vested into the state w.e.f. 18th January, 1982 and the defendants have become direct tenants under the State. Story of encroachment of the plaintiffs' portion measuring 2 cottahs 41 sq.ft. being the southern half of the eastern portion (Lot-B) has been denied to be true. In the concluding paragraph of the written statement it has been alleged that if the defendants are found to be in possession of any area of land beyond the area of 4 cottahs 6 chittacks which they obtained by thika tenancy from Hrishikesh then in respect of the alleged excess area the defendants have acquired title by adverse possession. 4. In the concluding paragraph of the written statement it has been alleged that if the defendants are found to be in possession of any area of land beyond the area of 4 cottahs 6 chittacks which they obtained by thika tenancy from Hrishikesh then in respect of the alleged excess area the defendants have acquired title by adverse possession. 4. LEARNED trial Court dismissed the suit principally on the ground that the evidence tendered by the original plaintiff Surya Sekhar disclosed that there was no partition, no demarcation between western lot and the eastern lot or lot-A or B respectively; this being so, alleged encroachment could not be decided. Learned trial Court observed that the plaintiff did not make any prayer for appointment of survey passed commissioner for ascertaining the actual area in possession of the defendants. Learned Court of appeal below observed that it became substantially and meticulously clear that the defendants being thika tenants under the erstwhile landlord Hrishikesh Chatterjee have been enjoying more quantum of land beyond the area which was actually let out to them by the said Hrishikesh; they cannot claim their right of tenancy in respect of the quantum of land in excess of what Hrishikesh or his widow Rama Devi had. The learned Court of appeal below went on observing that if the written statement of the defendant is accepted then it would be palpably clear that the defendant's partnership firm definitely encroached upon the land of others and they have pleaded also that they have perfected the title in respect of the encroached portion by virtue of adverse possession. It was observed that when a tenant encroaches upon a land outside his tenancy but belonging to his landlord he cannot acquire absolute title to that by adverse possession but obtained only the right of tenancy. Accordingly, the appeal was allowed. 5. THE substantial questions of law are these:- (a) Whether the learned Court of Appeal below committed error in holding that the defendants have encroached upon the land of the plaintiffs, being the suit land as described in the plaint. (b) Whether the learned Court of Appeal below committed error in law in not holding that the defendants have perfected title in respect of the alleged encroached portion by virtue of adverse possession. (b) Whether the learned Court of Appeal below committed error in law in not holding that the defendants have perfected title in respect of the alleged encroached portion by virtue of adverse possession. (c) Whether the learned Court of Appeal below committed wrong in law in not holding that the plea of encroachment cannot be adjudicated upon without appointing a survey passed commissioner. 6. BEFORE we enter into the submissions of the learned Counsels for the parties it is relevant for us to examine first documentary evidence and then oral evidence. Certain evidence are not in dispute. Dr. Manmatha Nath Mukherjee was the owner by virtue of purchase from Calcutta Corporation on 21.11.1911 the premises No.69, Hazra Road measuring 11 cottahs 10 chittacks 4 sq.ft. He died on 25.4.1939 leaving a will dated 25.4.1939; his heirs were Krishna Das, Hrishikesh, Manindra (son of the predeceased daughter), Giribala and Shyama Sundari. Krishna Das, Hrishikesh and Manindra were the executors of the will and they obtained probate of the will from the High Court on 14.8.1939. In the suit being No. 996 of 1943 instituted by Giribala and Shyama Sundari the High Court passed an order on 13.8.1943 appointing Administrator General of Bengal as receiver. Krishna Das and Hrishikesh on the other hand instituted a suit being No. 1198 of 1943 for administration of the estate and proper construction of the will. On the prayer of the parties later, the suits were amalgamated and a preliminary decree was passed by the High Court on 25.5.1946 directing division of the sale proceeds into certain units by sale of the residuary estate mentioned in the will of the Manmatha Nath Chatterjee. Sale was effected by auction on 3.7.1948 of the premises No. 69 Hazra Road. By the order of the Court dated 6.2.1948 the executors and Mr. Beni Madhav Chatterjee, Advocate who was appointed commissioner for partition were to execute sale deed. Now the entire property was divided into two lots-A and B. A. lot fell into western portion and B lot in the eastern portion. The eastern portion measured 4 cottahs 13 chittacks 20 sq.ft. which was purchased in auction sale by the original plaintiff Surya Sekhar Chatterjee, Purnendu Sekhar Chatterjee and Chandra Sekhar Chatterjee on 9.6.1950 (Ext.1). Chandra Sekhar died leaving Provati (widow) and Sasankha Sekhar (minor son). The eastern portion measured 4 cottahs 13 chittacks 20 sq.ft. which was purchased in auction sale by the original plaintiff Surya Sekhar Chatterjee, Purnendu Sekhar Chatterjee and Chandra Sekhar Chatterjee on 9.6.1950 (Ext.1). Chandra Sekhar died leaving Provati (widow) and Sasankha Sekhar (minor son). These Chatterjees drew up by and between themselves a deed of partition on 28.1.1957 (Ext. I/A) whereby this entire 'B' lot measuring 4 cottahs 13 chhittacks 20 sq.ft. was allotted to Surya Sekhar who became thus the exclusive owner of this lot. Now the further admitted fact is that the executors and the Advocate Commissioner sold lot-A portion, that is western portion of 69 Hazra Road measuring, 4 cottahs 14 chittacks and 4 sq.ft. of land to Hrishikesh Chatterjee by a conveyance dated 29.4.1948 (Ext. 7). It is also not in dispute that at a much later date, 21st November, 1979 the heirs of Hrishikesh, namely, Rama Chatterjee, Arpan Chatterjee and Arpita Chatterjee sold 2 cottahs 10 chittacks 3 sq.ft. of land to one Sushil Kr. Das by a deed of sale on 21.11.1979. Therefore, the original plaintiff Surya Sekhar Chatterjee was the exclusive owner of 4 cottahs 13 chittacks and 20 sq. ft. of land being the eastern portion of the plot at 69 Hazra Road. It is his case that in the northern half of this eastern portion he constructed certain shop rooms measuring 2 cottahs 12 chittacks 24 sq.ft. of land and let out the same to certain tenants, while the southern half of the eastern portion measuring 2 cottahs 41 sq.ft. was kept vacant; allegedly this later area has been encroached upon by the defendants who as per their written statements claimed to have obtained thika tenancy from Hrishikesh in respect of more or less 4 cottahs 6 chittacks. Now according to the defendants, this area of 4 cottahs 6 chhittacks cannot be the land of the plaintiff as it is within the western portion of the premises No. 69 Hazra Road. When or on which day the defendants got thika tenancy from Hrishikesh in respect of 4 cottahs 6 chittacks of land has not been averred in the written statement. When or on which day the defendants got thika tenancy from Hrishikesh in respect of 4 cottahs 6 chittacks of land has not been averred in the written statement. Whether Hrishikesh did at all grant thika tenancy to the defendants in respect of 4 cottachs 6 chittacks of land definitely is a question but it does not fall for consideration if this area of 4 cottachs 6 chittacks is said to be a part of 4 cottahs 14 chittacks 4 sq.ft. of land which Hrishikesh Chatterjee got by sale on 29.9.1948. Now if Hrishikesh granted thika tenancy to the defendants in respect of 4 cottahs 6 chittacks out of 4 cottahs 14 chittacks 4 sq.ft. of land to the defendants, then the question would arise how the heirs of Hrishikesh could execute in favour of Sushil Kumar Das a deed of sale on 21.11.1979 an area of land measuring 2 cottahs 10 chittacks 3 sq.ft. of land which to all intents and purposes would have to be a part of 4 cottahs 14 chittacks 4 sq.ft. of tand. In other words, grant of thika tenancy to the defendants in respect of 4 cottahs 6 chittacks by Hrishikesh, as the defendants claimed in their written statement, and sale of 2 cottahs 10 chittacks 3 sq.ft. of land by the heirs of Hrishikesh Chatterjee to Sushil Das by a deed of conveyance dated 21.11.1979 if totalled together would fail to match with Hrishikesh's total area of 4 cottahs 14 chittacks 4 sq.ft. of land. This would not be absolutely irrelevant in the context of the plea of encroachment. In the context as above, it is necessary to refer in brief evidence of the parties. P.W.1 who is in his Examination-in-Chief referred to the" whole plaint case said in cross-examination that even in. 1979-80 both portions - eastern and western were never physically partitioned by raising any wall or any such 'thing.' He said in his Examination-in-Chief that Hrishikesh Chatterjee had purchased south and west portion of the premises No. 69, Hazra Road. He did not demarcate the suit property by raising of pillar but it was done according to plan. He said that the defendants have been forcibly occupying the suit property since 1936-37 which is not even the case of the defendants. Again, he said that after his purchase he got the property demarcated. He did not demarcate the suit property by raising of pillar but it was done according to plan. He said that the defendants have been forcibly occupying the suit property since 1936-37 which is not even the case of the defendants. Again, he said that after his purchase he got the property demarcated. A suggestion was given by the defendants to P.W.1 that the defendants forcibly has occupied the suit property in 1980. Again, he has said at some other places of his cross- examination that there was no partition of the eastern and the western side of 69, Hazra Road. Further, it was suggested to P.W.1 that in respect of the suit property the defendants are also thika tenants which the defendant denied. P.W.2 Gopi Nath Mukherjee is a formal witness who produced certified copy of deed of sale executed by the heirs of Hrishikesh Chatterjee in favour of Sushil Kr. Das on 21.11.1979 in respect of 2 cottahs 10 chittacks 3 sq. ft. of land. It is not necessary to deal with evidence of Raj Kr. Das, the vendee from Surya Sekhar Chatterjee on 12.5.1982 because he has no knowledge of the relevant facts before purchase was made by him of the entire lot-B (eastern) from Surya Sekhar measuring 4 cottahs 13 chittacks 20 sq.ft. of land. PW.4 Basudev Roychowdhury and P.W.5 Kala Pada Mistry are formal witnesses. 7. AS against the evidence on behalf of the plaintiff there is D.W.1 Kamal krishna Basu, the defendant No.1, who says in his examination-in- chief that he is in possession of 4 cottahs 6 chittacks-"a demarcated portion" by settlement from Hrishikesh Chatterjee in the year of 1948 and raised a shed with brick built wall for the purpose of motor repairing workshop and residence. He would pay rent to Mr. Chatterjee and he has rent receipt to that extent since 1958-59 and then he sold his motor repairing workshop to the defendant No.3 Biswanath Ghosh. He says that he disposed of his thika tenancy right to Biswanath Ghosh in 1968 and the original deed is with Biswanath. He produced a certified copy of that deed. He also produced certain rent receipts before the trial Court (Ext. A) showing payment of rent to Rama Devi. A question was asked to him whether there was any demarcation of the area. He said in reply that he cannot say about demarcation. He produced a certified copy of that deed. He also produced certain rent receipts before the trial Court (Ext. A) showing payment of rent to Rama Devi. A question was asked to him whether there was any demarcation of the area. He said in reply that he cannot say about demarcation. He clarified in his cross-examination that it is not his evidence-in-chief that he has been living in the suit property. He pleaded his innocence as to devolution of title in the Chatterjee family (Manmatha Chatterjee). He also pleaded his innocence as to whether the land at 69 Hazra Road was ever measured. He also does not know as to whether Surya Sekhar Chatterjee, the original plaintiff, was ever in possession of the suit land or any part thereof. He also does not know as to whether Raj Kr. Das or his brothers possesses the eastern portion, that is, the disputed property. He does not know the extent of area of the land of 69 Hazra Road. In his later part of his cross-examination, he said that he took settlement of land measuring about 5 cottahs. Kallon Basu, the defendant No. 2, now one of the partners of Alfa Automobiles deposed as P.W.2 saying that he is occupying the suit property as thika tenant and he purchased the suit property from P.W.1 which must be rejected. He says that the land on which he is carrying on a business is not a vacant land. He further says that the suit property as claimed by the plaintiff forms a part of my area over which I am conducting the business. There was never any wall and any part of the area over which I have been conducting the business. He denies the plaintiff's suggestion that he forcibly trespassed into the suit property. 8. MR. Bidyut Kr. Banerjee, learned Senior Advocate appearing for the appellant submitted that the finding of the learned Court of appeal below that there has been encroachment of the suit land by the appellants is without any foundation of fact or evidence on record and the learned Judge has not assigned any reason as to why in the context of the learned trial Court's finding based on evidence that there has been no partition between the eastern and the western portion by demarcation of any wall he could disagree with the learned trial Court's finding. MR. MR. Banerjee submitted that Manmatha Nath Chatterjee had purchased from Calcutta Corporation 11 cottahs 10 chittacks 4 sq.ft. of land. Of this area a portion measuring 4 cottahs 13 chittacks 20 sq.ft. was purchased by Surya Sekhar Chatterjee, while Hrishikesh Chatterjee purchased 4 cottahs 14 chittacks 4 sq. ft. of land. If these two portions are taken together then still there remains more than 1 cottah in the premises at 69, Hazra Road. Secondly, in view of evidence of P.W.1 that even in 1979-80 the eastern portion and the western portion were never physically partitioned by raising any wall and there was no demarcation of the suit property the plaintiff / respondent cannot get any decree for eviction unless an Advocate Commissioner is appointed to find out as to whether there has been any encroachment of land. The learned trial Court has subsequently observed this aspect of the matter in support of the dismissal of the suit, which could not have been ignored by the learned Court of appeal below. It is further submitted that even if it is accepted for the sake of argument that there has been encroachment by the defendants then by continuance of an uninterrupted possession for the property for more than 12 years the defendants have got title by adverse possession in respect of the suit property. Mr. Banerjee submitted with reference to a decision in S.V.R. Mudaliar v. Mrs. C, Rajabu. F.Buhari, reported in AIR 1995 SC 1607 that the reasons given by the trial Court for its finding must be considered by the appellate Court; where in the instant case the learned trial Court has assigned reasons for not decreeing the suit because of absence of evidence of partition between the eastern portion and the western portion or between Lot-B and A respectively, the learned Court of appeal below without refuting this finding cannot jump to the conclusion on the basis of some amount of evidence that the encroachment has been proved. Mr. Banerjee submitted that in his Examination-in-Chief P.W.1 has said that Hrishikesh Chatterjee had purchased south and west portion of Premises No.69, Hazra Road, This might be an indication that purchase by Hrishikesh Chatterjee of 4 cottahs 14 chittacks and 4 sq. ft. Mr. Banerjee submitted that in his Examination-in-Chief P.W.1 has said that Hrishikesh Chatterjee had purchased south and west portion of Premises No.69, Hazra Road, This might be an indication that purchase by Hrishikesh Chatterjee of 4 cottahs 14 chittacks and 4 sq. ft. of land might be located covering or overlapping the suit property, or else there is no meaning to use the expression by P.W.1 of 'south' and 'west' portion of the premises in question. Mr. Banerjee referred to Sakhahari Parwatrao Karahale v. Bhimashankar Parvatrao Karahale, reported in 2002 (9) SCC 608 to argue that there cannot be grant of the decree of the suit by the learned first appellate Court in absence of evidence of partition. In the reported case it was found by the Supreme Court that the finding of family arrangement was a new case taken by the High Court when there was no evidence of partition. Mr. Banerjee further referred to the decision in B.Gangadhar v. B.G. Rajalingam, reported in 1995 (5) SCC 238 . This decision is of no relevance to the case at hand, it is not his evidence-in-chief that he has been living in the suit property. He pleaded his innocence as to devolution of title in the Chatterjee family (Manmatha Chatterjee). He also pleaded his innocence as to whether the land at 69 Hazra Road was ever measured. He also does not know as to whether Surya Sekhar Chatterjee, the original plaintiff, was ever in possession of the suit land or any part thereof. He also does not know as to whether Raj Kr. Das or his brothers possesses the eastern portion, that is, the disputed property. He does not know the extent of area of the land of 69 Hazra Road. In his later part of his cross-examination, he said that he took settlement of land measuring about 5 cottahs. Kallon Basu, the defendant No. 2, now one of the partners of Alfa Automobiles deposed as P.W.2 saying that he is occupying the suit property as thika tenant and he purchased the suit property from P.W.1 which must be rejected. He says that the land on which he is carrying on a business is not a vacant land. He further says that the suit property as claimed by the plaintiff forms a part of my area over which I am conducting the business. He says that the land on which he is carrying on a business is not a vacant land. He further says that the suit property as claimed by the plaintiff forms a part of my area over which I am conducting the business. There was never any wall and any part of the area over which I have been conducting the business. He denies the plaintiff's suggestion that he forcibly trespassed into the suit property. 8. MR. Bidyut Kr. Banerjee, learned Senior Advocate appearing for the appellant submitted that the finding of the learned Court of appeal below that there has been encroachment of the suit land by the appellants is without any foundation of fact or evidence on record and the learned Judge has not assigned any reason as to why in the context of the learned trial Court's finding based on evidence that there has been no partition between the eastern and the western portion by demarcation of any wall he could disagree with the learned trial Court's finding. MR. Banerjee submitted that Manmatha Nath Chatterjee had purchased from Calcutta Corporation 11 cottahs 10 chittacks 4 sq.ft. of land. Of this area a portion measuring 4 cottahs 13 chittacks 20 sq.ft. was purchased by Surya Sekhar Chatterjee, while Hrishikesh Chatterjee purchased 4 cottahs 14 chittacks 4 sq. ft. of land. If these two portions are taken together then still there remains more than 1 cottah in the premises at 69, Hazra Road. Secondly, in view of evidence of P.W.1 that even in 1979-80 the eastern portion and the western portion were never physically partitioned by raising any wall and there was no demarcation of the suit property the plaintiff / respondent cannot get any decree for eviction unless an Advocate Commissioner is appointed to find out as to whether there has been any encroachment of land. The learned trial Court has subsequently observed this aspect of the matter in support of the dismissal of the suit, which could not have been ignored by the learned Court of appeal below. It is further submitted that even if it is accepted for the sake of argument that there has been encroachment by the defendants then by continuance of an uninterrupted possession for the property for more than 12 years the defendants have got title by adverse possession in respect of the suit property. Mr. It is further submitted that even if it is accepted for the sake of argument that there has been encroachment by the defendants then by continuance of an uninterrupted possession for the property for more than 12 years the defendants have got title by adverse possession in respect of the suit property. Mr. Banerjee submitted with reference to a decision in S.V.R. Mudaliar v. Mrs. C, Rajabu. F.Buhari, reported in AIR 1995 SC 1607 that the reasons given by the trial Court for its finding must be considered by the appellate Court; where in the instant case the learned trial Court has assigned reasons for not decreeing the suit because of absence of evidence of partition between the eastern portion and the western portion or between Lot-B and A respectively, the learned Court of appeal below without refuting this finding cannot jump to the conclusion on the basis of some amount of evidence that the encroachment has been proved. Mr. Banerjee submitted that in his Examination-in-Chief P.W.1 has said that Hrishikesh Chatterjee had purchased south and west portion of Premises No.69, Hazra Road, This might be an indication that purchase by Hrishikesh Chatterjee of 4 cottahs 14 chittacks and 4 sq. ft. of land might be located covering or overlapping the suit property, or else there is no meaning to use the expression by P.W.1 of 'south' and 'west' portion of the premises in question. Mr. Banerjee referred to Sakhahari Parwatrao Karahale v. Bhimashankar Parvatrao Karahale, reported in 2002 (9) SCC 608 to argue that there cannot be grant of the decree of the suit by the learned first appellate Court in absence of evidence of partition. In the reported case it was found by the Supreme Court that the finding of family arrangement was a new case taken by the High Court when there was no evidence of partition. Mr. Banerjee further referred to the decision in B.Gangadhar v. B.G. Rajalingam, reported in 1995 (5) SCC 238 . This decision is of no relevance to the case at hand. 9. MR. Sudhis Dasgupta, learned Senior Advocate for the respondents/plaintiffs has submitted that no appointment of Advocate Commissioner was indeed needed because within the eastern portion of 4 cottahs 13 chittacks 20 sq.ft. This decision is of no relevance to the case at hand. 9. MR. Sudhis Dasgupta, learned Senior Advocate for the respondents/plaintiffs has submitted that no appointment of Advocate Commissioner was indeed needed because within the eastern portion of 4 cottahs 13 chittacks 20 sq.ft. which was purchased by Surya Sekhar Chatterjee and others by the deed dated 9.6.1950 there could be no settlement in favour of the defendants and P.W.1 has categorically stated in his evidence that during his absence from Calcutta the defendants had encroached upon the property. Secondly, it is submitted that the evidence of D.W.2 Kallol Basu that "the suit property as claimed by the plaintiff forms a part of my area over which I am conducting my business" clearly indicates unambiguously that the encroachment was complete and demolishes the argument that an Advocate Commissioner should have been appointed for ascertainment of the actual area in possession of the defendant. It is further argued by MR. Dasgupta that if the heirs of Hrishikesh Chatterjee sold 2 cottahs 10 chittacks 3 sq. ft. of land out of 4 cottahs 14 chittacks 4 sq.ft. of land to Sushil Das on 21.11.1979 (Ext. 7) then how was it that the defendants were granted thika tenancy in respect of 4 cottahs 6 chittacks of land; evidently the defendants have encroached upon the southern part of the eastern portion of the plaintiffs land and there was also evidence that the defendants also encroached upon the some portions of the premises No.2/1, Sevak Baidya Street. It is submitted by MR. Dasgupta that in view of the pleadings and evidence of the witnesses for the plaintiff there cannot be any acquisition of title by adverse possession by the defendants in respect of 2 cottahs 41 sq.ft. of land belonging to the plaintiffs. MR. Dasgupta, further submitted that during argument the learned Counsel on behalf of the appellant has sought to make a case that the defendant has made encroachment outside the suit premises but within the entire 11 cottahs 10 chittacks 4 sq.ft. of land which belonged to Dr. Manmatha Nath Chatterjee. of land belonging to the plaintiffs. MR. Dasgupta, further submitted that during argument the learned Counsel on behalf of the appellant has sought to make a case that the defendant has made encroachment outside the suit premises but within the entire 11 cottahs 10 chittacks 4 sq.ft. of land which belonged to Dr. Manmatha Nath Chatterjee. Such approach is not permissible as no such case has been made out in the written statement and the point was also not raised in any Courts below and in support of the submission reference has been made to the decision in Baburam @ Durga Prasad v. Indra Pal Singh, reported in 1998 (6) SCC 358 . With reference to the decision cited by MR. Banerjee in S.V.R. Mudaliar (supra) MR. Dasgupta argued that this decision has been overruled in 1999 (4) SCC 350 following the decision of Three Judges Bench in Ram Chandra Ayyar andAnr. v. Ramalingam ChettiarandAnr., reported in AIR 1963 SC 302 . The Three Judge Bench decision in Ram Chandra Ayyar (supra) dealt with the scope and ambit of Section 100 C.RC. It was held that if the High Court is satisfied that the decision is contrary to law or some usage having the force of law, or that the decision has failed to determine same material issue of law or usage having- the force of law, or if there is a substantial error or defect in the procedure provided by the Code, or by any other law for the time being in force which may have produced error or defect in the decision of the case upon the merits, it can interfere with the conclusions of lower Appellate Court but where the lower Appellate Court, MR. Dasgupta argues, has exhaustively assigned reason for overturning the decree of the trial Court, the High Court must not overturn the decree of the first appellate Court merely on the ground that the learned trial Court's reasonings were not traversed, which according to MR. Dasgupta, were really traversed. MR. Dasgupta argues, has exhaustively assigned reason for overturning the decree of the trial Court, the High Court must not overturn the decree of the first appellate Court merely on the ground that the learned trial Court's reasonings were not traversed, which according to MR. Dasgupta, were really traversed. MR. Dasgupta further referred to the decision in Arumugulm v. Sundarambal and Anr., reported in 1994 (4) SCC 350 where it was held that the High Court in second appeal cannot interfere with the judgment of the first appellate Court merely on the ground that the first appellate Court failed to advert to the reasons ascribed by the trial Court and the first appellate Court can consider the evidence adduced by the parties and give its own reasons for accepting or rejecting the evidence of any party or the other party. This decision affirmed and followed Ramchandra Ayyar (supra) and overruled S. V.R. Mudaliar. 10. MR. Dasgupta, in order to controvert the submission of MR. Banerjee that the appellants have acquired title by adverse possession of the suit property has referred to three decisions of the Supreme Court, namely, S.M.Karim @ Tamanna Sabeb v. Mst. Bibi Sakina, AIR 1964 SC 1254 , P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors., 2007 (6) SCC 59 and Annasaheb Bapu Saheb Patil and Ors. v. Balwant @ Balasaheb Babusaheb Patil and Ors., 1995 (2) SCC 543 . In SM.Karim (supra) it has been held that adverse possession must be adequate in continuity, in publicity and extent and a plea is required at last to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. A mere suggestion that a party is in possession for "several twelve years" is not sufficient. The same is the principle enumerated in P. 7. Munichikkanna (supra) where it has been held that possession must be open, continuous and hostile with intention to dispossess the owner; and the date of dispossession which is the starting point of adverse possession is important. In Anna Saheb (supra) the same principle has been reiterated. With respect to the submission of Mr. Banerjee that identity of the suit property could not be established because of no partition, Mr. Dasgupta referred to the decision in Shafiqur Rehman Khan and Anr. v. Smt. Md. Jahan Begum and Ors., 1982 (2) SCC 456 . In Anna Saheb (supra) the same principle has been reiterated. With respect to the submission of Mr. Banerjee that identity of the suit property could not be established because of no partition, Mr. Dasgupta referred to the decision in Shafiqur Rehman Khan and Anr. v. Smt. Md. Jahan Begum and Ors., 1982 (2) SCC 456 . In this decision it has been held that if the identity of the property is established, but not otherwise, the decree will be executed and the decree holder will be put in possession of the property in accordance with the law. It was further held that the executing Court will determine with the help of Exhibit-3 and such other evidence which the parties may adduce whether the decree holders have established satisfactorily the identity of the property in respect to which they have obtained the decree under execution. Therefore, Mr. Dasgupta submits that even in execution proceeding the identity of the property can be established. 11. HAVING gone through the evidence of the witnesses of both the parties, it appears that an improvement has been made in evidence of the defendant's witnesses that the suit property is a part of the thika tenancy of the defendants granted by Hrishikesh Chatterjee. Such a piece of evidence must not be accepted because of the fact that Hrishikesh Chatterjee was without any jurisdiction to grant thika tenancy in respect of any part of the eastern portion which was sold to Surya Sekhar Chatterjee. D.W.2 has claimed in his evidence in chief itself that the suit property claimed by the plaintiff forms a part of his area over which he has been conducting his business. Unquestionably, there is a implicit assertion that the suit property belongs to the defendants. How the suit property could belong to the defendants has not been explained by the defendants, particularly when it is not the claim of the defendants that they obtained thika tenancy of any part of the eastern portion from Surya Sekhar Chatterjee Mr. Dasgupta has raised the point that if the heirs of Hrishikesh Chatterjee could sell 2 cottahs 10 chittacks 3 sq. ft. of land to Sushil Kr. Das then how there could be previous grant of thika tenancy of 4 cottahs 6 chittacks of land to the defendants in 1948. Dasgupta has raised the point that if the heirs of Hrishikesh Chatterjee could sell 2 cottahs 10 chittacks 3 sq. ft. of land to Sushil Kr. Das then how there could be previous grant of thika tenancy of 4 cottahs 6 chittacks of land to the defendants in 1948. It has to be remembered that it is the basic case in the written statement of the defendants that they obtained thika tenancy from Hrishikesh Chatterjee in respect of 4 cottahs 6 chittacks, more or less out of 4 cottahs 14 chittacks 4 sq.ft. of land and the defendants produced certain rent receipts before the learned trial Court (Ext.-A series). Therefore no part of the eastern portion being Lot-B which was sold to Surya Sekhar Chatterjee in auction sale on 9.6.1950 could come to the defendants, unless the defendants have encroached upon any part of that eastern portion, that is the suit property. This is a question which I will consider in the sequel. Now the submission of Mr. Banerjee, learned Advocate appearing for the appellant that what happened to the rest of the area, that is, 11 cottahs 10 chittacks 4 sq.ft. minus 4 cottahs 13 chittacks 20 sq.ft. (Lot-B) + 4 cottahs 14 chittacks 4 sq.ft. (Lot-A) is not without substance. Again, it is not without substance the submission of Mr. Dasgupta that how there could be grant of 4 cottahs 6 chhittacks by way of thika tenancy in favour of the defendants when in 1979 the heirs of Hrishikesh Chatterjee sold two cottahs 10 chittacks 3 sq.ft. of land to Sushil Kr. Das. This raises the question as to whether the alleged grant of 4 cottahs 6 chittacks which is the basic case of the defendant and which the defendant vouchsafes in the very beginning of his Examination-in-Chief could comprise in itself a portion of Lot-B which the plaintiffs claim to be measuring an area of 2 cottahs 41 sq.ft. Mr. Banerjee was fair and candid enough to submit that so far as the pleading of the defendants is concerned and so far as the Examination- in-Chief of D.W.1 is concerned the grant of thika tenancy measuring 4 cottahs 6 chittacks of land was made by Hrishikesh in favour of the defendants out of his Lot-A property, meaning thereby the part of 4 cottahs 14 chittacks 4 sq.ft. of land. of land. It must be stated here that neither Hrishikesh Chatterjee nor Surya Sekhar Chatterjee could grant thika tenancy of 4 cottahs 6 chhittacks of land to the defendants out of Lot-B property, that is the eastern portion measuring 4 cottahs 13 chittacks 20 sq. ft. of land. What Mr. Banerjee intends to argue is that the location of 4 cottahs 6 chittacks of land which was granted to the defendants by way of thika tenancy by Hrishikesh Chatterjee might overlap the south-eastern part of the eastern portion, that is Lot-B which was sold to Surya Sekhar Chatterjee by Hrishikesh and the Advocate Commissioner. Mr. Banerjee has referred to the evidence of P.W.1 who said in his Examination-in-Chief that Hrishikesh Chatterjee purchased south and west portion of the premises No. 69, Hazra Road. This is really confusing. Clear evidence is there of P.W.1 repeatedly that there was no partition by boundary wall or otherwise, no demarcation between eastern portion and the western portion when Hrishikesh Chatterjee purchased 4 cottahs 14 chittacks 4 sq.ft. of land and when Surya Sekhar purchased 4 cottahs 13 chittacks 20 sq.ft. of land. Therefore, which particular area was really granted to the defendants by thika tenancy requires to be determined. I am not unmindful of evidence of D.W.1 that the suit property is part of his thika tenancy. If the suit property meaning thereby 2 cottahs 41 sq.ft. is part of 4 cottahs 13 chittacks and 20 sq.ft. of land as was sold to Surya Sekhar by Hrishikesh and others in the eastern portion on 9.6.1950, then this 2 cottahs 41 sq.ft. of land cannot be comprised within the grant of thika tenancy measuring 4 cottahs 6 chhittacks. Therefore, thika tenancy area of 4 cottahs 6 chittacks of land must form part of 4 cottahs 14 chittacks 4 sq.ft. of land as was purchased by Hrishikesh Chatterjee and this is the stand of Mr. Banerjee, learned Advocate for the defendants-appellants. 12. MR. Dasgupta's submission that even in execution proceeding an Advocate Commissioner can be appointed is difficult to accept and since the decision in Shafiqur Rehman (supra) is a very brief one containing few lines and it is difficult to understand what were the facts in the reported case. The extent of possession and the location of possession of the defendants must be determined. The extent of possession and the location of possession of the defendants must be determined. The plaintiff's measurement of this suit property must be supported by Advocate Commissioner, as it is the plaintiff's own measurement. There must first be a demarcation between eastern portion and the western portion or between Lot-A and B and after the western portion is demarcated then the area of 4 cottahs 6 chittacks has to be extracted from that portion and from no other portion. If upon demarcation by Advocate Commissioner it appears that the area of possession of the defendants has extended to the area of the plaintiffs/ respondents then definitely so much of that area, say 2 cottahs 41 sq.ft. of land or otherwise, has to be extracted from the defendants' possession in order to find out the suit property. Furthermore, as MR. Banerjee has submitted initially as to what happened to some 1 cottah or more of land which was neither sold to Hrishikesh nor sold to Surya Sekhar must not be lost sight of. Unless the Court holds that the defendants have encroached upon the suit property as described in the plaint there cannot be any decree; decree can only be passed when the Court is satisfied of the identity of the property. No doubt, there is evidence of the defendant claiming possession of the suit property as part of thika tenancy but I make it clear that the possession of the defendant of any portion of the suit property cannot be by virtue of a thika tenancy interest. As to the plea of adverse possession, I do not find from the evidence of the witnesses that such a plea has really been proved. The essential ingredients of acquisition of title by adverse possession has not been established at all. 13. THE appellant filed a review application being No. 1469 of 2004 for review of the order dated 8th April, 2004 and by the order of the Hon'ble the Chief Justice the said review application was to be heard along with the appeal. Now by the order dated 8th April, 2004 Prabir Kumar Samanta, J.(as His Lordship then was) in CO. No. 1862 of 1999 modified the decree of the Court of appeal below to the extent that the plaintiff/petitioner shall be entitled to recover possession of 2 cottahs 4 sq.ft. Now by the order dated 8th April, 2004 Prabir Kumar Samanta, J.(as His Lordship then was) in CO. No. 1862 of 1999 modified the decree of the Court of appeal below to the extent that the plaintiff/petitioner shall be entitled to recover possession of 2 cottahs 4 sq.ft. of land be it little more or less, being on the southern side of the eastern portion of the premises No.69, Hazra Road comprising a total area of 4 cottahs 13 chittacks 20 sq. ft. of land. Be it little more or less butted and bounded as described in the schedule to the plant. This order was passed upon a revisional application filed on behalf of the respondents. Now this order dated 8th April, 2004 is sought to be reviewed at the instance of the appellants. Since I have heard the appeal itself, the result of the appeal will govern the review application. 14. THE respondents-defendants also filed an application being C.A.N. No. 8439 of 2004 under Order 41 Rule 27 of the C.P.C. praying for permission to produce a document being Annexure-A thereto which is a deed of conveyance dated 26th May, 1950 whereby one Shyama Prasad Mukherjee sold and transferred his thika tenancy rights and kachha structure (front portion) in favour of Hrishikesh Chatterjee. This petition has not been pressed during hearing and is accordingly disposed of. In the conspectus of the case an Advocate Commissioner is required to be appointed to ascertain the following position:- (a) The demarcation of Lot-B measuring 4 cottahs 13 chittacks 20 sq.ft. which was sold on 9.6.1950 to Surya Sekhar Chatterjee. (b) Demarcation of the area 4 cottahs 14 chittacks 4 sq.ft. of the land which was purchased by Hrishikesh Chatterjee (Lot-A). (c) As it is the basic case of the defendants that they obtained thika tenancy of 4 cottahs 6 chhittacks of land from Hrishikesh Chatterjee the site and location of the land which is part of 4 cottahs 14 chittacks 4 sq.ft. of land shall be ascertained. (d) Finding out the area of 11 cottahs 10 chittacks 4 sq. ft. of land minus 4 cottahs 13 chittacks 20 sq. ft. + 4 cottahs 14 chittacks 4 sq.ft. of land. 15. ACCORDINGLY, the appeal is allowed but without costs. The judgment and decree of the learned Court of Appeal below is set aside. of land shall be ascertained. (d) Finding out the area of 11 cottahs 10 chittacks 4 sq. ft. of land minus 4 cottahs 13 chittacks 20 sq. ft. + 4 cottahs 14 chittacks 4 sq.ft. of land. 15. ACCORDINGLY, the appeal is allowed but without costs. The judgment and decree of the learned Court of Appeal below is set aside. Within a month from the date of the receipt of a copy of this judgment the learned trial Court will appoint an Advocate Commissioner for identification of the suit property and after obtaining a report from the Advocate Commissioner and receiving such evidence as might be necessary only with respect to the report of the Advocate Commissioner will hear arguments and deliver judgment in accordance with the law deciding the question of encroachment. The plea of adverse possession has failed and shall not be allowed to re-agitate. 16. NO decree need be drawn up. A copy of this judgment together with the LCR shall immediately be sent to the learned trial Court for information and necessary action. Urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible.