JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—Both the above second appeals arise out of common judgment and order dated 13.11.1987 passed by the IV Additional District Judge, Bulandshahar in Civil Appeal No. 71 of 1984 (Ram Prasad v. Pran Sukh and others) and Civil Appeal No. 112 of 1984 (Ram Prasad v. Pran Sukh and others) and these appeals are being decided by a common order. 2. The facts of the case are that two suits namely Original Suit No. 280 of 1981 and 425 of 1981 were filed before the Court below. The Original Suit No. 425 of 1981 was filed by respondent Ram Prasad against the appellant Pran Sukh and others for permanent injunction. The other Original Suit No. 280 of 1981 was filed by the appellant against respondent Ram Prasad for the relief of possession. 3. It may noted that with respect to the suit property, the proceedings under Section 145 Cr.P.C. were initiated and the disputed property was attached and it was directed that both the parties should get declaration of their rights with respect to the land in question from the Civil Court. 4. The case of the plaintiff respondent in Original Suit No. 425 of 1981, which was treated as the leading case, was that he had purchased 9 Biswa of land in question 5 years before the commencement of Chakbandi in the village from one Prabhu Singh, father of the defendant No. 9 Tota Ram. The disputed land i.e. plot No. 175 was given new number 121 during the consolidation proceeding. 5. Further case of the plaintiff respondent Ram Prasad was that after purchase of the land he had entered into possession and constructed an abode over 9 biswa of the land. The plaintiff-respondent was still continuing in possession and there existed a boundary wall over the property in dispute which was constructed by him. He was in actual physical possession of the suit property. The defendant Tota Ram son of Prabhu Singh was never in possession of the property in dispute. Prem Sukh, the defendant No. 1 and Gulab Singh father of defendant Nos. 2 to 8 alleged to have purchased the suit property by a sale-deed executed by defendant No. 9 in their favour and threatened to interfere in the possession of the plaintiff Ram Prasad. Prem Sukh, the defendant No. 1 and Gulab Singh father of defendant Nos. 2 to 8 alleged to have purchased the suit property by a sale-deed executed by defendant No. 9 in their favour and threatened to interfere in the possession of the plaintiff Ram Prasad. As there was apprehension of breach of peace and therefore, proceedings under Section 145 Cr.P.C. had commenced and the property was attached. It was given in the possession of the Receiver appointed by the Court. 6. Further the plaintiff’s case was that he was intimate with Prabhu Singh father of Tota Ram and though certain consideration was paid by him to Prabhu Singh, no formal document i.e. sale-deed was executed in his favour. Plaintiff Ram Prasad remained in peaceful continuous possession of the property in dispute for more than 20 years prior to the date of filing of the suit. He took plea of having perfected his title by adverse possession over the suit property for a period of more than 12 years and thus having become owner of the property in question. The sale-deed dated 19.1.1979 executed by Tota Ram Son of Prabhu Singh the defendant No. 9 in favour of Pran Sukh and Gulab Singh was a sheer waste piece of paper and was executed with ulterior motive to dispossess the plaintiff Ram Prasad from the suit property. 7. Appellant Pran Sukh and heirs of Gulab Singh filed suit No. 280 of 1981 and pleaded that they had purchased 36 square yard x 16 square yard area of Plot No. 117 (new No. 121) through sale-deed dated 19.1.1979 and after purchase they had constructed a boundary wall and hut over the disputed property. As per the plaint case of Original Suit No. 280 of 1981, on the southern side of a portion of the property purchased by the appellants Pran Sukh and others, there exists the house of Tota Ram. The trial Court framed various issues after exchange of pleadings. Relevant issues Nos. 5, 6, 7 and 11 are as follows : (5) Whether the plaintiff is owner of Plot No. 117 Rakba 9 Biswa? (6) Whether the plaintiff is in possession of Plot No. 117 Rakba 9 Biswa and whether he had planted any tree? The trial Court framed various issues after exchange of pleadings. Relevant issues Nos. 5, 6, 7 and 11 are as follows : (5) Whether the plaintiff is owner of Plot No. 117 Rakba 9 Biswa? (6) Whether the plaintiff is in possession of Plot No. 117 Rakba 9 Biswa and whether he had planted any tree? (7) Whether name of Tota Ram had wrongly been enterred in the land given in exchange of plot No. 117 during consolidation proceeding and whether he had no right to execute the sale-deed? (11) Whether the plaintiff Ram Prasad had perfected his ownership over the disputed property by adverse possession as stated in paragraph No. 16 of the plaint? If yes, its effect? 8. Issue No. 5, 6 and 7 were decided together by the trial Court and it was held that there was discrepancy in the plaint case and the statement made by the plaintiff Ram Prasad. There was nothing on record which indicates that the plaintiff Ram Prasad had ever been in possession of the disputed land. In the plaint the finding is that he had stated that 9 biswa of land in dispute was purchased by him from Prabhu Singh whereas in his examination-in-chief, the area of land alleged to have been purchased by him was mentioned only 100 Sq.ft. x 50 sq. ft. i.e. total area 5000 sq. ft. for an amount of Rs. 4,500/- which is less than the total area of 9 biswa. The contention of the plaintiff Ram Prasad that he had constructed Kotha, hutment and boundary wall over the land in question was disbelieved by the Court below. 9. While deciding the issue No. 11, the Court below has recorded a finding that the plaintiff Ram Prasad in his plaint on one hand had pleaded that he had purchased the property and on the other hand, took the plea of being owner by adverse possession on the ground of having been in possession of the property for more than 20 years. The possession of the plaintiff over the disputed property, if any, can be said to be a permissive possession. The plaintiff Ram Prasad has failed to give any date on which he had ascertained his claim of adverse possession by showing hostility against the real owner. The possession of the plaintiff over the disputed property, if any, can be said to be a permissive possession. The plaintiff Ram Prasad has failed to give any date on which he had ascertained his claim of adverse possession by showing hostility against the real owner. There is no clear and equivocal evidence that his possession was on the ground of hostility to the real owner and he had ever announced his clear ownership to a denial of the title of true owner to the property claimed. No Animus Possidendi has been set up in the plaint or in evidence. As such no case of adverse possession has been made out. Mere continuous and undisturbed possession for a long time does not make title of any person perfect on the basis of adverse possession. The Original Suit No. 425 of 1981 filed by Ram Prasad was dismissed accordingly by the judgment and order dated 18.2.1984 passed by the trial Court. 10. The lower appellate Court decided the issue of adverse possession in favour of plaintiff respondent Ram Prasad on the ground that the disputed plot has been recorded as Abadi in the records prepared during the consolidation operation i.e. From No. 41 which is exhibit No. 1,wherein name of Prabhu Singh has been recorded. In CH form No. 2-A which is Khasra Chakbandi also indicates that name of Prabhu Singh was recorded over the Plot No. 171 (new number) which was recorded as Abadi. Thus it is established from these two entries that the land in dispute was Abadi at the time when village underwent consolidation. 11. Contention of the plaintiff appellant Ram Prasad was that he had raised abadi over the disputed plot prior to Chakbandi and had constructed one pacca kotha and two huts is established from the entries in Form 41 and CH Form 2A.. His case was also that he had constructed kachcha boundary wall and put fodder cutting machine over the disputed plot. After 8.7.1997, when the kachcha boundary wall fell he constructed a pacca boundary wall over the disputed plot. Considering the statement of the plaintiff respondent as also the statement of DW-1 Pran Sukh and DW-3 Tota Ram, lower appellate Court recorded its finding that DW-1 in his statement categorically submitted that at the time of purchase there was no construction over the plot in dispute. Considering the statement of the plaintiff respondent as also the statement of DW-1 Pran Sukh and DW-3 Tota Ram, lower appellate Court recorded its finding that DW-1 in his statement categorically submitted that at the time of purchase there was no construction over the plot in dispute. No boundary wall or hut was constructed by Tota Ram. The disputed land is 50 sq. ft. x 100 sq. ft. DW-1 Pran Sukh further stated that after purchase he raised two huts and one kothi. No boundary wall was constructed by him, though he denied that the boundary wall was constructed by Ram Prasad. In so far as DW-3 Tota Ram is concerned, in his statement before the Court below he submitted that no construction existed over the disputed plot namely 50 sq.ft. x 100 sq. ft., though it was a portion of total area of 9 Biswa of plot No. 117 (new No. 121) which was recorded as Aabadi. He further stated that no construction was raised by him over the land in dispute and whatever construction existed over the disputed land were raised by Gulab Singh and Pran Sukh after purchase. The boundary wall was also constructed by them. 12. Taking into consideration of the contradiction in the statement of DW-1 and DW-3, the lower appellant Court recorded a finding of fact that there exists a boundary wall over the disputed property and both the defendants namely Tota Ram and Pran Sukh stated that they did not construct the boundary wall. This fact itself makes it clear that the plaintiff Ram Prasad was in possession of the property in dispute and the boundary wall was constructed by him. Existence of boundary wall is a very important piece of evidence which clearly establishes the possession of Ram Prasad over the land in dispute. There is no contradiction in the statement of Ram Prasad and the evidence on record. Thus, the possession of Ram Prasad over the land is proved and he being in possession of the disputed property for more than 20 years perfected his title by way of adverse possession. The sale-deed executed by Tota Ram was found to be a forged and showy document on the ground that Tota Ram had no right or title over the disputed property on the date of execution of the sale-deed. The sale-deed executed by Tota Ram was found to be a forged and showy document on the ground that Tota Ram had no right or title over the disputed property on the date of execution of the sale-deed. His possession over the disputed property was hostile to the true owner i.e. Tota Ram. Mere fact that the name of Tota Ram was recorded in the Chakbandi proceedings, he had no right to execute the sale-deed in favour of Pran Sukh and Gulab Singh. With these observations the appeal filed by Ram Prasad were allowed. Suit No. 425 of 1981 was decreed in favour of Ram Prasad and suit No. 280 of 1981 was dismissed. The sale-deed dated 19.1.1979 executed by Tota Ram in favour of appellants was declared null and void by the judgment and order dated 13.11.1987. 13. Present appeal was admitted on 23.2.1988 on question No. 2, 3, 5 and 6 as substantial question of law for determination at the time of hearing of the appeal. Before commencement of the arguments for final hearing of appeal, both the learned counsels for the parties submit that the only relevant substantial question of law for deciding the controversy in the present appeal is question No. 4 framed in the memo of Appeal, which is as under : “Whether under the present set of circumstances, any case for adverse possession or its maturity could have been inferred?” 14. Thus, question No. 4 was framed as substantial question of law after hearing both the learned counsels for the parties. Learned counsels extended their arguments on question No. 4. In so far as question no 2 and 3 are concerned, learned counsel for the appellants submits that they are not substantial question of law. Question No. 5 and 6 were not pressed during the course of argument. Thus, the only question remains to be decided is with regard to adverse possession of the plaintiff/respondent Ram Prasad over the land in dispute in the present set of circumstance. 15. Challenging the judgment passed by the lower appellate Court, learned counsel for the appellant vehemently submits that in so far as adverse possession is concerned, the burden of proof heavily lies upon a person who has put his claim for determining question of adverse possession. 15. Challenging the judgment passed by the lower appellate Court, learned counsel for the appellant vehemently submits that in so far as adverse possession is concerned, the burden of proof heavily lies upon a person who has put his claim for determining question of adverse possession. The Court has to take into consideration the facts of each case and the circumstance under which the right of adverse possession is claimed and then it should also consider that the possession of person claiming that user was sufficient to amount to ouster all other persons except the real owner. The burden is always on a person who asserts such a claim to prove by clear and unequivocal evidences as to when his possession became hostile to the real owner. Mere possession for a long time does not make the title of a person perfect on the plea of adverse possession. 16. In the Instant case, the exact period from which the plaintiff is in adverse possession has not been pointed out. No element of hostility can be seen in the claim set up in the written statement or in evidence so as to make out a case of adverse possession. Only basis of the claim as set out in the plaint is long and continuous possession and further construction of an alleged boundary wall over the plot in question. Lower appellate Court has committed illegality in accepting the claim of adverse possession of the plaintiff only on the basis of oral evidences. No documentary evidence was filed by the plaintiff to prove his possession. 17. On the one hand, the plaintiff respondent claimed that he is owner in possession of the plot in question namely area 50 sq. ft. x 100 sq. ft. on the basis of oral sale and in alternative he took plea of adverse possession. At no point of time it was stated or proved by the plaintiff Ram Prasad that he had ousted the true owner claiming that his possession is hostile to real owner. Even otherwise, he himself submitted that he was intimate with Prabhu Singh, father of Tota Ram from whom he alleged to have purchased the plot in question by oral sale. He claimed to have a good relationship with Tota Ram also who is true owner of the plot in question. Even otherwise, he himself submitted that he was intimate with Prabhu Singh, father of Tota Ram from whom he alleged to have purchased the plot in question by oral sale. He claimed to have a good relationship with Tota Ram also who is true owner of the plot in question. For the first time in the suit filed in the year 1981 he claimed ownership by adverse possession that too in a plea taken in alternative. Thus, in the instant case, the circumstances are not sufficient to prove adverse possession of Ram Prasad over the plot in question. 18. Having heard learned counsel for the parties and perused the record this Court thinks it proper to go through the law relating to adverse possession in order to appreciate the question in this appeal. in Lachhimi Nath Pathak and another v. Bholanath Pathak and others, AIR 1964 All 383 , it has been observed by this Court that for determining the question of adverse possession, the Court has to take into consideration the facts of each case and the circumstances under which the right of adverse possession is claimed. Requirement to make the possession adverse depends on facts and circumstances of a particular case or the relationship between the parties. It has been further observed that possession to make adverse must be excercised, exclusive and hostile. Mere exercise of possession is not always enough. It should further show that the true owner was aware of the hostility. In Vidya Devi @ Vidya Vati (Dead) By LRS. v. Prem Prakash and others, 1995 (4) SCC 496 , the Apex Court held in paragraphs 22 and 28 which are as follows : “22. Adverse possession” means hostile possession, that is, a possession which is expressly in denial of the title of the true owner. (See: Gaya Parshad Dikshit v. Nirmal Chander and another, AIR 1984 SC 930 . The denial of title of the true owner is a sign of adverse possession. In Ezaz Ali v. Special Manager, Court of Wards, AIR 1935 PC 53, it was observed: “The principle of law is firmly established that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed.” “28. Ouster” does not mean actual driving out of the co- sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus (ii) long and uninterrupted possession of the person pleading ouster and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law. 19. In Annakili v. Vedanayagam and others, AIR 2008 SC 346 , three elements pointed out in the case of Vidya Devi (supra) were considered. It was observed in paragraph 22 in the said judgment that Animus possidendi is requisite ingredient of adverse possession. It is now well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have Animus Possidendi and hold the land adverse to the title of the true owner. For the purpose of adverse possession, not only animus possidendi must be shown to exist but the same must be shown to exist at the commencement of the possession. The person claiming possession must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title. 20. The Apex Court had relied upon T. Anjanappa and others v. Somalingappa and another, (2006) 7 SCC 570 , in paragraphs 24 of judgment which is quoted as under : “It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action.” 21. Same view was expressed earlier in Annasaheb Bapusaheb patil and others v. Balwant @ Balasaheb Patil and others, 1995 (2) SCC 543 . In paragraph 14 of the said judgment it has been observed that the burden is on the person who bases his title on adverse possession to 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. 22. 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 be ascertained from the facts and circumstances of each case. In Thakur Kishan Singh(Dead) v. Arvind Kumar, (1994) 6 SCC 591 , it was observed that where the possession initially was permissive, the burden was heavy on the person who claims to establish when it became adverse. It was a case where the appellant entered into possession over the land in dispute under a licence from the respondent for the purpose of Brick Kiln. The Court observed that a possession of a co-owner or of a licencee 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 however length of time does not result in converting the permissive possession into adverse possession. 23. Mere possession for however length of time does not result in converting the permissive possession into adverse possession. 23. Thus, after consideration of law relating to adverse possession the Court is required to look into the facts and circumstances of the instant case so as to ascertain as to whether the plea of adverse possession taken by Ram Prasad can be said to be fulfilled with three ingredients as laid down in Vidya Devi (supra) which is a settled principle of law relating to adverse possession. In the instant plaint case there is no dispute with regard to long and uninterrupted possession of Ram Prasad over the land in question. However, the case of plaintiff Ram Prasad in Original Suit No. 425 of 1981 is that he had entered into possession over the disputed land after an oral purchase from Prabhu Singh, father of Tota Ram. In the plaint and also in his oral evidence he came out with the clear case that there was a great intimacy between him, Prabhu Singh and Tota Ram, so he did not bother to get a formal document i.e. sale-deed executed in his favour. He had entered into the possession over the land in dispute and constructed his Abadi over 9 Biswa of land. It may also be noted that property in dispute as described at the foot of the plaint is 50 sq.ft X 100 sq.ft., which is much less than 9 Biswa of land, alleged to have been purchased by him from Prabhu Singh father of Tota Ram. The sale-deed was executed in favour of Pran Sukh and Gulab Singh on 19.1.1979 by Tota Ram. They filed Original Suit No. 280 of 1981 on 7.12.1981 for possession as the disputed property was attached in the proceedings initiated by Ram Prasad under Section 145 Cr.P.C. Another Original Suit No. 425 of 1981was filed by Ram Prasad on 26.11.1981 claiming two reliefs. First relief was for permanent injunction as against the defendant Pran Sukh and heirs of Gulab Singh and Tota Ram. Second relief sought was for cancellation and declaration of sale-deed executed in favour of Prabhu Singh and Gulab Singh by Tota Ram as null and void. It may also be seen that in his statement on oath, Ram Prasad had averred that he had purchased 100 sq. ft. X 50 sq. ft. Second relief sought was for cancellation and declaration of sale-deed executed in favour of Prabhu Singh and Gulab Singh by Tota Ram as null and void. It may also be seen that in his statement on oath, Ram Prasad had averred that he had purchased 100 sq. ft. X 50 sq. ft. of plot No. 117 (new No. 221) i.e. the land in dispute for a consideration of Rs. 4500/- from Prabhu Singh and Tota Ram. The trial Court after consideration of evidence recorded a finding that possession of Ram Prasad was permissive possession and it has not come up on record as to on which date he showed his animus and possession became hostile to the true owner. The trial Court has gone to the extent of recording a finding that Ram Prasad had failed to establish his possession over the land in dispute and therefore there cannot be any question of having perfected his title by way of adverse possession. 24. The lower appellate Court while recording a finding of adverse possession heavily relied upon the oral evidences of the parties and considering the contradictions in the statement of Pran Sukh DW-1 and Tota Ram DW-3 has concluded that the boundary wall was constructed by Ram Prasad after he entered into possession of the land in question. The lower appellate Court has recorded a finding of fact that there exists a boundary wall over the land in question and concluded that that if Ram Prasad would not have been in possession of land in dispute, then in that case no question of raising boundary wall would have arisen. Thus, the lower appellant Court concluded that plaintiff Ram Prasad had perfected his title by adverse possession by constructing boundary wall over the land in dispute. 25. This Court after giving thoughtful consideration to the facts and circumstances of the present case, pleadings of the parties and the evidences on record comes to the conclusion that the finding of the lower appellate Court cannot be sustained for the reason that the lower appellate Court swayed away by the fact that the boundary wall was constructed by Ram Prasad after he came into possession over the land in dispute. 26. The law relating to adverse possession as narrated above, was not considered while recording the said finding. 26. The law relating to adverse possession as narrated above, was not considered while recording the said finding. Now dealing with the peculiar facts and circumstances of the instant case with the law on adverse possession, it is admitted fact that the plaintiff Ram Prasad entered into possession of the land in question with the permission of true owner i.e. Prabhu Singh and Tota Ram. 27. He himself admitted that at the time of entering into possession, he was intimate with Pran Sukh and Tota Ram. Then at that time, the possession of Ram Prasad at best could be said to be a permissive possession. In his pleadings and oral evidence, he had admitted that he raised a kachcha boundary wall and when the said boundary wall fell he constructed a pacca boundary wall over the land in question. As he was having a good relationship with Tota Ram, the factum of construction of boundary wall over the land in question is not sufficient to conclude that he had asserted his claim of title and showed that his possession having become hostile to the true owner. It is settled law that heavy burden lies upon a person claiming adverse possession and the burden becomes heavier when it is to be established that the permissive possession later on became adverse possession. The ratio of judgment in Lachhimi Nath Pathak (supra) and Thakur Kishan Singh (supra) is that while recording a finding of adverse possession, the Court has to consider the relationship of the parties. 28. The plaintiff Ram Prasad has failed to produce any documentary evidence to establish his claim of title over the suit property and his alternative plea of having perfected his title by way of adverse possession, has been established from the record. Having considered the facts and circumstances of the present case, this Court finds that the plaintiff Ram Prasad has failed to fulfill the ingredients of adverse possession i.e. declaration of hostility which must be clear and unequivocable as against the true owner i.e. Tota Ram. At no point of time he had asserted that he had ousted Tota Ram expressly or impliedly in denial of title of true owner. Mere construction of boundary wall would not amount to denial of title of the real owner to the property claimed. 29. At no point of time he had asserted that he had ousted Tota Ram expressly or impliedly in denial of title of true owner. Mere construction of boundary wall would not amount to denial of title of the real owner to the property claimed. 29. Learned counsel for the petitioner as also the learned counsel for the respondent placed reliance on various judgments of the Apex Court in support of their arguments. The Court does not want to burden this judgment by narrating and dealing with all the judgments relied upon by the learned counsel for the parties. However, suffice is to say that learned counsel for the petitioner also relied upon the judgment of Annakili (supra) which has been discussed above in detail. On the other hand, learned counsel for the respondent Sri Siddharth relied upon judgment of Lachhimi Nath Pathak (supra) to urge that the construction of boundary wall by a party is conclusive evidence of the date of start of adverse possession against the other party and the construction made by Ram Prasad the petitioner and his continuous possession for more than 12 years within the knowledge of true owner would result in perfection of his title by way of adverse possession. The judgments relied upon by the learned counsel for the respondents are given in the facts and circumstances of the particular case and are clearly distinguishable in the facts and circumstances of the present case. 30. In view of the aforesaid, the findings of lower appellate Court cannot be sustained and is quashed. The substantial question of law No. 4 framed is answered in favour of the appellants Pran sukh and others. Both the second appeals are allowed. ————