JUDGMENT Hon’ble Sudhir Agarwal, J.—This is a defendant’s appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as the “CPC”) which has arisen from the judgment and decree dated 17.10.1986 passed by Sri C.N. Singh, Additional Civil Judge Second, Jaunpur in Civil Appeal No. 103 of 1981, whereby it has allowed appeal and set aside judgment and decree dated 7.3.1981 passed by Sri Virendra Kumar Khare, Munsif City, Jaunpur, dismissing Original Suit No. 313 of 1976. The Lower Appellate Court has decreed the suit by reversing decree of Trial Court. 2. The appeal was admitted on the following two substantial questions of law: “(I) Whether Court below erred in relying on sale-deed of 1973 which was executed by Zamindar as alleged by plaintiff when he had no rights left to him due to abolition of Zamindari? (II) Whether findings recorded by Court below against defendant that he was licensee of plaintiff is perverse, there being no legal evidence worth the name in this finding?” 3. The plaintiffs, Rajpat, Nanhku and Manku sons of Sahdeo, instituted Original Suit No. 313 of 1976 for ejectment of defendant-appellant from disputed premises constituting a Dalan and Madaha, detailed in the map appended to plaint as ‘D’ and ‘CH’, respectively. 4. The plaint case is that plaintiffs are owners of Dalan, Madaha and trees existing on plot No. 41 which also comprised of a Sahan. Plot No. 41 was acquired by plaintiffs through registered sale-deed dated 10.1.1973 executed by Sri Ram Iqbal Singh, Zamindar. Defendants, Kalkatti son of Kariya and Banshraj son of Kalkatti were Washerman and had no place for residence. Plaintiffs and other villagers used to have their clothes washed by defendant and with permission of villagers, defendants were residing in village. In January, 1973, for 2-3 years defendants sought permission to reside in Dalan and Madaha at plot No. 41 with assurance that whenever required they would vacate the same. Plaintiffs permitted them and their capacity to stay in disputed premises was that of a licensee. After two years plaintiffs requested defendants to vacate premises which was denied, hence the suit. 5. Defendants-appellant contested suit stating that plaintiffs and defendants both are in possession of disputed premises but disputed Dalan and Madaha was in possession of defendants. Defendant 1 is resident of Village Katahari, Tahsil Kirakat, District Jaunpur and by occupation a Washerman. After two years plaintiffs requested defendants to vacate premises which was denied, hence the suit. 5. Defendants-appellant contested suit stating that plaintiffs and defendants both are in possession of disputed premises but disputed Dalan and Madaha was in possession of defendants. Defendant 1 is resident of Village Katahari, Tahsil Kirakat, District Jaunpur and by occupation a Washerman. About 40-41 years back defendant 1 came to Village Biswa where there was no Washerman and stayed thereat. On the request of villagers, the then Zamindar permitted defendant 1 to occupy disputed premises and since then he is residing and in possession of disputed premises. His possession of disputed premises is much prior to enforcement of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the “Act, 1950”), i.e., before abolition of Zamindari. The suit is barred by non-impleadment of necessary parties, limitation and also Sections 38 and 41 of Specific Relief Act, 1963 (hereinafter referred to as the “Act, 1963”). The suit is liable to be dismissed for want of notice under Section 106 of Transfer of Property Act, 1882 (hereinafter referred to as the “Act, 1882”). 6. Trial Court formulated nine issues as under: ^^1- D;k oknhx.k fookfnr Hkwfe ,oa fuekZ.k ds ekfyd gSa\ 1. Whether the plaintiffs are owners of the disputed land and construction? 2- D;k okn izfroknh uacj&1 dh iRuh ,oa cPpksa ds vla;kstu ls nks"kiw.kZ gS\ 2. Whether the suit suffers from non-joinder of wife and children of defendant No. 1? 3- D;k okn dk ewY;kadu de gS vkSj U;k;'kqYd vi;kZIr vnk fd;k x;k gS\ 3. Whether the suit is undervalued and the Court fee is underpaid? 4- D;k okn dkyckf/kr gS\ 4. Whether the suit is time-barred? 5- D;k okn /kkjk 38@41 fofufnZ"V vuqrks"k vf/kfu;e ls ckf/kr gS\ 5. Whether the suit is barred by Section 38/41 of Specific Relief Act? 6- D;k okn /kkjk 106 lEifRr LFkkukUrj.k vf/kfu;e ds vUrxZr uksfVl u fn;s tkus ds dkj.k =qfViw.kZ gSa\ 6. Whether the suit is flawed on account of a notice u/s 106 of Transfer of Property Act having not been given? 7- D;k okn foca/ku ,oa miefr ds fl)kUr ls ckf/kr gS\ 7. Whether the suit is barred by principles of estoppel and acquiescence? 8- D;k fookfnr Hkwfe mfpr :i ls fofufnZ"V ugha gS\ 8. Whether the disputed land is not properly specified? 7- D;k okn foca/ku ,oa miefr ds fl)kUr ls ckf/kr gS\ 7. Whether the suit is barred by principles of estoppel and acquiescence? 8- D;k fookfnr Hkwfe mfpr :i ls fofufnZ"V ugha gS\ 8. Whether the disputed land is not properly specified? 9- D;k oknhx.k fdlh vuqrks”k ds ikus ds vf/kdkjh gSa\** 9. Whether the plaintiffs are entitled to any relief?” (English Translation by Court) 7. While considering issue 1, Trial Court observed that Arazi 41 has area of one acre wherein plaintiffs are owner of 50 decimal of land. There is no partition or division of said Arazi yet plaintiffs are owner of 50 decimal of Arazi 41, hence they are owner of disputed premises. Trial Court then proceeded further to consider the question, whether plaintiffs constructed disputed Dalan and Madaha and gave possession thereof to defendants in January, 1973 but answered it against plaintiffs. 8. Issue 2 relating to non-impleadment of necessary parties was answered in favour of plaintiffs. Issue 3 was already answered vide order dated 29.2.1980 in favour of plaintiffs and made part of judgment. Issues 4, 5 and 6 were also answered in favour of plaintiffs. However, issue 7 was answered against plaintiffs. Issue 8 was also answered in favour of plaintiffs. While considering issue 9, in the light of findings recorded on issues 1 and 7, suit was dismissed vide judgment and decree dated 7.3.1981. 9. Thus Trial Court after holding that construction of Sahan and Dalan was not owned by plaintiffs and that the suit was barred by principle of estopple and acquiescence, dismissed the same. 10. The plaintiffs-respondents then preferred Civil Appeal No. 103 of 1981. The Lower Appellate Court (hereinafter referred to as the “LAC”) found that defendants had not proved that they possessed disputed property and raised construction over it, 30-35 years back. On the contrary erstwhile ownership of Ram Iqbal Singh was duly proved. This was also proved that disputed property was earlier in possession of plaintiffs and subsequently they got a sale-deed executed from owner of premises, i.e., Ram Iqbal Singh. Therefore, plaintiffs had proved raising of construction on disputed property with permission of Zamindar, Ram Iqbal Singh who also subsequently transferred land by a sale-deed. In these circumstances LAC allowed appeal and decreed suit granting relief of ejectment of defendants-appellant from disputed premises. 11. Therefore, plaintiffs had proved raising of construction on disputed property with permission of Zamindar, Ram Iqbal Singh who also subsequently transferred land by a sale-deed. In these circumstances LAC allowed appeal and decreed suit granting relief of ejectment of defendants-appellant from disputed premises. 11. This appeal came up for hearing before Hon’ble Anant Kumar, J. on 9.7.2014 when it was noticed that certain documents of revenue record mentioned in judgments of Courts below were not available with record of Court below. The Court directed Registry to trace out the said record. Thereafter on 4.9.2014, after perusing office report that revenue record was not available in lower Court record, it directed the office to sent letter to Court below, if documents are not available, to get those documents reconstructed. Pursuant thereto, District Judge, Jaunpur vide letter dated 22.9.2014 has informed this Court that revenue records were consigned to record room and documents papers No. 56 Ga, 60 Ga, 61 Ga, 81 Ga, 82 Ga, 83 Ga, 86 Ga and 87 Ga have all been weeded out. Paper No. 64 Ga, original sale-deed is available. 12. When matter came up for hearing, learned counsel for appellant stated that he has already filed written argument and Court may decide appeal after perusing the same and the available record. 13. Learned counsel for appellant has stated in the written argument that suit was filed on 19.7.1976. Plaintiffs founded their case on sale-deed dated 10.1.1973 and that defendants were given permission in January, 1973 to stay in disputed premises. The said permission was revoked in June, 1976. Defendants-appellant contested suit claiming that they are owner in possession over Dalan and Madaha and plaintiffs have no concern therewith. The defendant 1 came in village about 40-41 years back and constructed Dalan and Madaha over disputed land with permission of Zamindar. On the date of vesting defendants became owner of existing construction. Defendants were allotted adjacent land for agricultural purposes. Trial Court while dismissing suit observed: (i) The land in dispute was recorded as ‘Banjar’. The old number of plot in dispute was 50/1 and 50/2 in Khatauni or 1356 Fasli, it was recorded as ‘Banjar’. (ii) Banjar land was converted into Abadi by villagers including defendant-appellant without permission of Zamindar. (iii) Plaintiffs have failed to prove that Dalan and Madaha was constructed by plaintiffs-respondents. The old number of plot in dispute was 50/1 and 50/2 in Khatauni or 1356 Fasli, it was recorded as ‘Banjar’. (ii) Banjar land was converted into Abadi by villagers including defendant-appellant without permission of Zamindar. (iii) Plaintiffs have failed to prove that Dalan and Madaha was constructed by plaintiffs-respondents. (iv) Plaintiffs have also failed to prove that they have granted permission to defendant-appellant to live in Dalan and Madaha. (v) Defendants are residing in Dalan and Madaha for last 30-35 years without any objection on behalf of plaintiffs. 14. It is then contended that there is no evidence on record relied by LAC to show that plaintiffs raised disputed construction with permission of Zamindar. Findings of LAC in this regard are based on no evidence. The sale-deed is dated 10.1.1973. Zamindari was abolished w.e.f. 1952. The Ex-Zamindar, Ram Iqbal Singh, therefore, had no right or title over disputed land in 1973 to transfer land to plaintiffs. The plaintiffs could not have become owner in possession of disputed plot. The sale-deed dated 10.1.1973, foundation of title of plaintiffs, could not have conferred such title on plaintiffs. 15. He further urged that LAC relief on the statement of Ex-Zamindar, Ram Iqbal Singh, whose statement is not worth believing. Ram Iqbal Singh had stated that his uncle was Zamindar of plot in dispute and not his mother. He stated that a patta was executed in favour of his mother by his uncle, so she became “Bhumidhar”. This statement of Ram Iqbal Singh is not supported by any evidence on record. Admittedly neither Ram Iqbal Singh nor his mother was Zamindar of plot in dispute, but according to his statement his uncle was Zamindar. No patta has been filed nor there is any record to prove that uncle of Ram Iqbal Singh has executed patta in favour of his mother. There is no evidence on record that the land in dispute was ever recorded as Bhumidhari land of mother of Ram Iqbal Singh. Rather Khatauni 1356 Fasli proves that it was recorded as ‘Banjar’, old plot No. 50/1 and 50/2. During consolidation operation new No. 41 of old Nos. 50/1 and 50/2 had been recorded in the name of Smt. Dharmraji and Smt. Balraji. Thus, sale-deed dated 10.1.1973 which is the basis of title of plaintiffs could not have conferred any title on plaintiffs. During consolidation operation new No. 41 of old Nos. 50/1 and 50/2 had been recorded in the name of Smt. Dharmraji and Smt. Balraji. Thus, sale-deed dated 10.1.1973 which is the basis of title of plaintiffs could not have conferred any title on plaintiffs. LAC has not considered these material, submission and evidence on record, so findings recorded by LAC is illegal and is liable to be set aside. 16. In respect of substantial question No. 2, appellant’s case is that Trial Court has recorded following findings based on evidence: (i) The plaintiff did not produce any evidence that permission was granted to defendant-appellant to live in construction in dispute. Plaintiffs in their statement did not support their contention that in January, 1973, Dalan and Madaha was given to defendant. (ii) There was no witness present at that time. (iii) LAC did not consider and discuss plaintiffs evidence on this point and has jumped to the findings without any evidence in support of it on behalf of plaintiffs that they have given permission to appellant-defendant to live in it and now they have revoked permission. This finding is perverse. (iv) LAC has also misread documentary evidence in holding that plaintiff name was recorded in revenue record. Trial Court has considered these documents and has rejected plea taken by plaintiff. Name of plaintiffs had not been recorded. Paper No. 81 Ga, Ch. Form-45, Ch Form 41 or in Paper No. 53 Ga, do not support the case of plaintiffs. 17. It is submitted that LAC has recorded finding otherwise which is perverse and not supported by any evidence, therefore, impugned judgment is liable to be set aside. Reliance is placed on decisions in Bondar Singh and others v. Nihal Singh and others, AIR 2003 SC 1905 and Kulwant Kaur v. Gurdial Singh Mann and others, AIR 2001 SC 1273 . 18. Since none appeared on behalf of plaintiffs-respondents, hence this Court has proceeded ex parte and deciding appeal on the basis of arguments advanced by learned counsel for appellants vide written arguments and after perusal of available record. 19. Defendant-appellant has relied on the findings of Trial Court that land in dispute was recorded as Banjar and for that purpose he referred to Khatauni of 1356 Fasli. 19. Defendant-appellant has relied on the findings of Trial Court that land in dispute was recorded as Banjar and for that purpose he referred to Khatauni of 1356 Fasli. If that be so, the disputed land would not be covered by definition of ‘land’ under Section 3(14) of Act, 1951 and, therefore, question of its vesting under the provisions of Act, 1951 with defendant-appellant also would not arise. A Banjar land is not one as is covered by definition of “land” under Section 3(14) of Act, 1951, is the view taken by this Court in Rangi v. Gaon Sabha, 1970 RD 495. 20. It is also evident from record (Paper No. 81C) that in consolidation proceedings disputed plot in its entirety was recorded in the name of Dharamraji and Balraji. Ram Iqbal Singh is the son of Dharamraji and succeeded property after death of Dharamraji. He sold his share in disputed property vide sale-deed dated 10.1.1973 to plaintiffs-respondents. Ram Iqbal Singh was examined as PW-2 and he proved these facts. 21. On the contrary, defendant-appellant’s case is that their predecessors came to village in question several years back and stayed in premises in question. Admittedly, disputed premises was not owned by predecessors of defendant-appellant. No evidence has come on record to show their title or that of defendant-appellant. He also did not show any valid authority to occupy disputed premises. While owner of property in dispute, Ram Iqbal Singh, has stated that plaintiffs-respondents were occupying property even before execution of sale-deed, no otherwise credible evidence has been adduced by defendant-appellant to controvert aforesaid evidence of Ex-Zamindar, Ram Iqbal Singh. 22. Both the Courts below have recorded finding regarding title over disputed land in favour of plaintiffs-respondents and thus I find no reason to disturb it. 23. However, with respect to Dalan and Madaha, Trial Court has recorded a finding against plaintiffs-respondents for only reason that plaintiffs-respondents could not adduce any evidence to show that aforesaid construction was raised by them. In fact an inference has been drawn by Trial Court in respect of constructions against plaintiffs-respondents ignoring the fact that when plaintiffs-respondents were occupying premises prior to 1973 and no credible evidence could be brought by defendant-appellant before Court below to show that possession over disputed land, the question of raising construction thereon by defendant-appellant would/does not arise at all. In fact an inference has been drawn by Trial Court in respect of constructions against plaintiffs-respondents ignoring the fact that when plaintiffs-respondents were occupying premises prior to 1973 and no credible evidence could be brought by defendant-appellant before Court below to show that possession over disputed land, the question of raising construction thereon by defendant-appellant would/does not arise at all. Therefore, while partly answering issue 1 against plaintiffs-respondents, Trial Court completely erred and recorded a perverse finding and that has been corrected by LAC by allowing appeal and recording a finding otherwise. 24. Learned counsel for appellant vehemently contended that evidence was not adduced by plaintiffs-respondents but in view of the Court the fact is that defendant-appellant had no valid title or authority to possess property in dispute and, therefore, heavy onus lie upon it to show when it got possession of disputed property and also that constructions were raised by him. 25. It is true that burden to prove case in order to seek relief initially lie upon plaintiff, but onus continues to shift during course of proceedings when parties adduce evidence. 26. There is a distinction between burden of proof and onus of prove. It is well known and well established. 27. Initial burden of proof, admittedly, would be on the plaintiff in view of Section 101 of Indian Evidence Act, 1872 (hereinafter referred to as the “Act, 1872”) which talks of burden of proof, and says: “Burden of proof.—Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” 28. The burden of proving a fact rests on the party who substantially asserts affirmative of issue and not upon the party who denies it; for a negative is usually incapable of proof. The provision is based on the rule, i.e. incumbit probatio qui dicit, non qui negat. In Constantine Line v. I.S. Corpn, (1941) 2 All England Report 165, Lord Maugham said; “It is an ancient rule founded on consideration on good sense and should not be departed from without strong reasons.” 29. A person who asserts a particular fact has to prove the same. In Constantine Line v. I.S. Corpn, (1941) 2 All England Report 165, Lord Maugham said; “It is an ancient rule founded on consideration on good sense and should not be departed from without strong reasons.” 29. A person who asserts a particular fact has to prove the same. Until such burden is discharged, the other party is not required to be called upon to prove his case. Whoever desires a Court to give judgment, dependent on the existence of facts which he asserts, must prove that those facts exist. The distinction between “burden of proof” and “onus” is that the former lies upon the plaintiff and never shifts but the “onus” shifts. Shifting of onus is a continuous process, in the evaluation of evidence. For example, in a suit for possession, based on title, once the plaintiff is able to create a high degree of probability so as to shift onus on the defendant, it is then for the defendant to discharge his onus and in absence of such discharge by defendant, burden of proof lying on plaintiff shall be held to have been discharged so as to amount to proof of plaintiff’s title. 30. The above distinction between “burden of proof” and “onus” of proof has been explained in A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136 , followed in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and another, (2003) 8 SCC 752 . 31. In Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971 , Apex Court in para 9 and 11 of the judgment said: “9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be exception thereto. The learned trial Court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.” “11. The fact that the defendant was in a dominant position must, thus, be proved by the plaintiff at the first instance.” 32. Pleading is not evidence, far less proof. Issues are raised on the basis of pleadings. The appellant in his written statement denied and disputed the said averments made in the plaint.” “11. The fact that the defendant was in a dominant position must, thus, be proved by the plaintiff at the first instance.” 32. Pleading is not evidence, far less proof. Issues are raised on the basis of pleadings. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side. It is in these circumstances, in Anil Rishi v. Gurbaksh Singh (supra) the Court observed that party who was in dominant position must prove the fact. On this aspect I find further support from the decision in Krishna Mohan Kul v. Pratima Maity, AIR 2003 SC 4351 , wherein the Court held: “The onus to prove the validity of the deed of settlement was on the defendant No. 1. When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position.” 33. In recording the above opinion, Court relied on Section 111 of Act, 1872 and held that one has to distinguish between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in various ways and, in particular, three, namely, (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102, the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the relief. 34. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and another, (2004) 6 JT (SC) 442, Court in para 29 said: “In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the Court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.” (Emphasis added) 35. In the present case, initial burden was discharged by plaintiffs-respondents by adducing evidence of Ex-Zamindar, Ram Iqbal Singh, who also proved that plaintiffs-respondents were in possession of disputed property even before execution of sale-deed dated 10.1.1973 and also that defendant-appellant was not in possession till date of execution of sale-deed. Thereafter onus shifted upon defendant-appellant to adduce credible evidence to prove their case which they have failed. The LAC, therefore, has recorded its finding in favour of plaintiffs-respondents and, in my view, correctly. 36. The judgments cited by appellant, therefore, does not help the appellant in any manner. The decision in Bondar Singh and others v. Nihal Singh and others (supra) was a case where there was an issue of transfer of title by adverse possession. Here I do not find that any case of adverse possession has been pleaded and proved by defendant-appellant in any manner. 37. The issue of adverse possession cannot be conceived by a Court in absence of specific pleadings confirming requisites of plea of adverse possession followed by furnishing of credible evidence in support of such pleading. Learned counsel for appellant could not show its pleadings in written statement to claim title on the basis of adverse possession. On the contrary, it was pleaded by defendant-appellant in written statement that on request of villagers, defendant No. 1 got permission from the then Zamindar and took possession of disputed land and thereafter raised disputed construction thereupon. Thus the case set up appellant is of permissive possession. 38. On the contrary, it was pleaded by defendant-appellant in written statement that on request of villagers, defendant No. 1 got permission from the then Zamindar and took possession of disputed land and thereafter raised disputed construction thereupon. Thus the case set up appellant is of permissive possession. 38. In order to attract plea of adverse possession the law is now well settled and it may be appropriate to recapitulate the same in the light of various authorities on the subject hereunder. 39. The principle of adverse possession though had been recognized in India since the time ancient, but for the purpose of present case it would be appropriate to go in the past only since when the codified law has been enacted, i.e., in British India, by the then rulers. The statute, which is now operating the field, has been enacted, after enforcement and adoption of Constitution, by people of India i.e. after independence. 40. The principle of adverse possession and its consequences wherever attracted, has been recognized in the statute dealing with limitation. The first codified statute dealing with limitation came to be enacted in 1840. The Act 14 of 1840 in fact was an enactment applicable in England but it was extended to the territory of Indian continent which was under the reign of East India Company, by an authority of Privy Council in The East India Company v. Oditchurn Paul, 1849 PC 43. 41. For British Indian Territory the first codified statute dealing with limitation was Act No. 14 of 1959. It however provided limitation of suits only. It did not contain any recognition of a right of immoveable property by prescription. It was, however, modified by Act 9 of 1871 and, for the first time, gave some recognition to the doctrine of prescription, i.e., the doctrine of extinctive prescription as to land and hereditary offices and of positive prescription as to easement. It lived short and was replaced by Act 15 of 1877 which extended principle of extinctive prescription to moveable property and the principle of positive or acquisitive prescription to profits a prendre. 42. The Law of Prescription prescribes the period at the expiry of which not only the judicial remedy is barred but a substantive right is acquired or extinguished. A prescription, by which a right is acquired, is called an “acquisitive prescription”. 42. The Law of Prescription prescribes the period at the expiry of which not only the judicial remedy is barred but a substantive right is acquired or extinguished. A prescription, by which a right is acquired, is called an “acquisitive prescription”. A prescription by which a right is extinguished is called “extinctive prescription”. The distinction between the two is not of much practical importance or substance. The extinction of right of one party is often the mode of acquiring it by another. The right extinguished is virtually transferred to the person who claims it by prescription. Prescription implies with the thing prescribed for is the property of another and that it is enjoyed adversely to that other. In this respect it must be distinguished from acquisition by mere occupation as in the case of res nullius. The acquisition in such cases does not depend upon occupation for any particular length of time. 43. Doctrine of limitation and prescription is based upon two broad considerations. The first, there is a presumption that a right not exercised for a long time is non-existent. Where a person has not been in possession of a particular property for a long time, the presumption is that he is not the owner thereof. The reason is that owners are usually possessors and possessors are usually owners. Possession being normally evidence of ownership, the longer the possession has continued the greater is its evidentiary value. The legislature, it appears, therefore, thought it proper to confer upon such evidence of possession for a particular time, a conclusive force. Lapse of time is recognised as creative and destructive of right instead of merely an evidence for and against their existence. The other consideration on which the doctrine of limitation and prescription may be said to be based is that title to property and matters of right in general should not be in a state of constant uncertainty, doubt and suspense. It would not be in the interest of public at large. The object of the statute of limitation is preventive and not creative but in a matter covered by the principle of “adverse possession” it also creates. It interposes a statutory bar after a certain period and gives a quietus to suits to enforce an existing right. 44. It would not be in the interest of public at large. The object of the statute of limitation is preventive and not creative but in a matter covered by the principle of “adverse possession” it also creates. It interposes a statutory bar after a certain period and gives a quietus to suits to enforce an existing right. 44. Act 15 of 1877 was replaced by Limitation Act, 1908 (hereinafter referred to as the “LA 1908”) and ultimately the Limitation Act, 1963 (hereinafter referred to as the “LA 1963”) is holding the field repealing all earlier enactments. The provision dealing with extinction of title after expiry of a particular period due to hostile possession of another and transfer of title to such persons in possession is recognized in Section 28 of LA 1908 and similar provision is contained in Section 27 of LA 1963. 45. The doctrine of limitation is founded on considerations of public policy and expediency. It does not give a right where there exist none, but to impose a bar after a certain period to the remedy for enforcing an existing right. The object is to compel litigants to be diligent for seeking remedies in Courts of law if there is any infringement of their right and to prevent and prohibit stale claims. It fixes a life span for remedy for redressal of the legal injury, if suffered, but not to continue such remedy for an immemorial length of time. Rules of limitation do not destroy rights of the parties and do not create substantive rights if none existed already. However, there is one exception i.e. Section 28 of L.A. 1908 (Section 27 of LA 1963), which provides that at the determination of period prescribed for instituting suit for possession of any property, his right to such property shall stand extinguished and the person in possession, after expiry of the such period, will stand conferred title. The law of limitation is enshrined in the maxim “interest reipublicae ut sit finis litium” (it is for the general welfare that a period be part to litigation). 46. Mere expiry of limitation could have extinguished remedy but the principle embodied in Section 28 of LA 1908 (Section 27 of LA 1963), extinguishes the right also and thereby makes the said general principle inapplicable. 46. Mere expiry of limitation could have extinguished remedy but the principle embodied in Section 28 of LA 1908 (Section 27 of LA 1963), extinguishes the right also and thereby makes the said general principle inapplicable. Once the right of getting possession extinguished it cannot be revived by entering into possession again [See Salamat Raj v. Nur Mohamed Khan, (1934) ILR 9 Lko. 475; Ram Murti v. Puran Singh, AIR 1963 Punj 393; Nanhekhan v. Sanpat, AIR 1954 Hyd 45 (FB) and Bailochan Karan v. Bansat Kumari Naik, 1999 (2) SCC 310 ]. 47. Privy Council in Sundar v. Parbati, (1889) 12 All 51 agreed with the view of this Court that possession is a good title against all the world except the person who can show a better title. By reason of his possession such person has an interest which can be sold or devised. 48. The limitation prescribed for adverse possession is not the limitation for maintainability of suit. The former matures a right in a person on happening of certain events continued for a period prescribed in Act, 1963. It is a consequence of principle of prescription. The later is the period whereafter the remedy for redressal of a grievance is lost to a person. I would elaborate both these aspects to make the two aspects beyond any possible confusion and misunderstanding. 49. To understand the concept of “adverse possession” it would be necessary to have a clear idea about the concept of “possession” and “ownership” in respect of immovable property. 50. In Muslim law, a man in possession of property although by wrongful means has obvious advantages over the possessor. The possessor is entitled to protection against the whole world except the true owner. [The Principles of Mohammedan Jurisprudence (1911)]. 51. In ‘Ancient Indian Law’ possession was nothing but a legal contrivance based on the considerations of dharma. Use and enjoyment of property was restricted and controlled by the holy scriptures. In old Hindu law possession was of two kinds. (a) with title; and (b) without title where possession continued for three generations. Enough importance, however, was given to title (agama) to prove possession. Katyayana said, “there can be no branches without root, and possession is the branch”. 52. In Modern era, various jurists have dealt with the term “possession” being an important aspect of individual’s rights. 53. (a) with title; and (b) without title where possession continued for three generations. Enough importance, however, was given to title (agama) to prove possession. Katyayana said, “there can be no branches without root, and possession is the branch”. 52. In Modern era, various jurists have dealt with the term “possession” being an important aspect of individual’s rights. 53. “Ihering” defines possession, “whenever a person looks like an owner in relation to a thing he has possession, unless possession is denied to him by rules of law based on convenience”. Apparently this definition does not give any explicit idea on the subject. It only states that the concept of possession is an ever changing concept having different meaning for different purposes and different frames of law. 54. “Pollock” says, “In common speech a man is said to be in possession of anything of which he has the apparent control or from the use of which he has the apparent powers of excluding others”. The stress laid by Pollock on possession is not on animus but on de facto control. 55. “Savigny” defines possession, “intention coupled with physical power to exclude others from the use of material object.” Apparently this definition involves both the elements namely, corpus possession is and animus domini. 56. The German Jurist ‘’Savigny’ laid down that all property is founded on adverse possession ripened by prescription. The concept of ownership accordingly as observed by him involve three elements-Possession, Adverseness of Possession, (that is a holding not permissive or subordinate, but exclusive against the world), and Prescription, or a period of time during which the Adverse Possession has uninterruptedly continued. 57. “Holmes” opined that possession is a conception which is only less important than contract. 58. According to Salmond on “Jurisprudence”, 12th Edition (1966) (First Edition published in 1902) by P.J. Fitzgerald, Indian Economy Reprint 2006 published by Universal Law Publishing Co. Pvt. Ltd. Delhi (hereinafter referred to as “Salmond’s Jurisprudence”), page 51, it says, the concept of “possession” is as difficult to define as it is essential to protect. It is an abstract notion and is not purely a legal concept. It is both a legal and a non-legal or a pre-legal concept. He tried to explain the concept of possession with reference to different factual and legal concepts. 59. The first one is “possession in fact”. It is a relationship between a person and a thing. It is an abstract notion and is not purely a legal concept. It is both a legal and a non-legal or a pre-legal concept. He tried to explain the concept of possession with reference to different factual and legal concepts. 59. The first one is “possession in fact”. It is a relationship between a person and a thing. The things one possesses in his hand or which one has in his control like clothes he is wearing, objects he is keeping in his pocket etc. For such things it can be said that he is in possession of the things in fact. To possess one would have to have a thing under his physical control. If one captures a wild animal, he gets possession of it but if the animal escapes from his control, he looses possession. It implies that things not amenable in any manner to human control cannot form the subject-matter of possession like one cannot possess sun, moon or the stars etc. Extending the above concept, “Salmond” says that one can have a thing in his control without actually holding or using it at every given moment of time like possession of a coat even if one has taken it off and put down or kept in the cupboard. Even if one falls asleep, the possession of the coat would remain with him. If one is in such a position, has to be able in the normal course of events to resume actual control when one desires, the possession in fact of the thing is there. Another factor relevant to the assessment of control is the power of excluding other people. The amount of power that is necessary varies according to the nature of the object. 60. The possession consisted of a “corpus possessions” and “animus possidendi”. The former comprised both, the power to use the thing possessed and the existence of grounds for the expectation that the possessor’s use will not be interfered with. The latter consisted of an intent to appropriate to oneself the exclusive use of the thing possessed. 61. Then comes “possession in law”. A man, in law, would possess only those things which in ordinary language he would be said to possess. But then the possessor can be given certain legal rights such as a right to continue in possession free from interference by others. 61. Then comes “possession in law”. A man, in law, would possess only those things which in ordinary language he would be said to possess. But then the possessor can be given certain legal rights such as a right to continue in possession free from interference by others. This primary right in rem can be supported by various sanctioning rights in person am against those who violates the possessor’s primary right; can be given a right for compensation for interference and a dispossession and the right to have his possession restored from the encroacher. 62. Another facet of possession is “immediate” or “mediate possession”. The possession held by one through another is termed “mediate” while that acquired or retained directly or personally can be said to be “immediate or direct”. There is a maxim of civil law that two persons could not be in possession of the same thing at the same time. (Plures eandem rem in solidum possidere non possunt). As a general proposition exclusiveness is of the essence of possession. Two adverse claims of exclusive use cannot both be effectually realised at the same time. There are, however, certain exceptions, namely, in the case of mediate possession two persons are in possession of the same thing at the same time. Every mediate possessor stands in relation to a direct possessor through whom he holds. Two or more persons may possess the same thing in common just as they may own it in common. 63. Next is “incorporeal possession”. It is commonly called the possession of a right and is distinct from the “corporeal possession” which is a possession of the thing. 64. In “The Elementary Principles of Jurisprudence” by G.W. Keeton, II Edition (1949) published by Sir Isaac Pitman and Sons Ltd. London (First published in 1930), “possession” has been dealt in Chapter XV. It says: “‘Possession,’ says an old proverb, “is nine points of law.” Put in another way, this implies that he who has conscious control of an object need only surrender his control to one who can establish a superior claim in law.” 65. Thus the essentials of possession in the first instance include a fact to be established like any other fact. Whether it exists in a particular case or not will depend on the degree of control exercised by the person designated as possessor. Thus the essentials of possession in the first instance include a fact to be established like any other fact. Whether it exists in a particular case or not will depend on the degree of control exercised by the person designated as possessor. If his control is such that he effectively excludes interference by others then he has possession. Thus the possession in order to show its existences must show “corpus possession is” and an “animus possidendi”. 66. Corpus possession is means that there exists such physical contact of the thing by the possessor as to give rise to the reasonable assumption that other persons will not interfere with it. Existence of corpus broadly depends on (1) upon the nature of the thing itself, and the probability that others will refrain from interfering with the enjoyment of it; (2) possession of real property, i.e., when a man sets foot over the threshold of a house, or crosses the boundary line of his estate, provided that there exist no factors negativing his control, for example the continuance in occupation of one who denies his right; and (3) acquisition of physical control over the objects it encloses. Corpus, therefore, depends more upon the general expectations that others will not interfere with an individual control over a thing, then upon the physical capacity of an individual to exclude others. 67. The animus possidendi is the conscious intention of an individual to exclude others from the control of an object. 68. Possession confers on the possessor all the rights of the owner except as against the owner and prior possessors. “Possession in law” has the advantage of being a root of title. 69. There is also a concept of “constructive possession” which is depicted by a symbolic act. It has been narrated with an illustration that delivery of keys of a building may give right to constructive possession of all the contents, to the transferee of the key. 70. There is a distinction between the terms “possession”, “occupation” and “control”. The distinction between “possession” and “occupation” was considered in Seth Narainbhai Ichharam Kurmi and another v. Narbada Prasad Sheosahai Pande and others, AIR 1941 Nag 357 and the Court held: “Bare occupation and possession are two different things. The concept of possession, at any rate as it is understood in legal terminology, is a complex one which need not include actual occupation. The concept of possession, at any rate as it is understood in legal terminology, is a complex one which need not include actual occupation. It comprises rather the right to possess, and the right and ability to exclude others from possession and control coupled with a mental element, namely, the animus possidendi, that is to say, knowledge of these rights and the desire and intention of exercising them if need be. The adverse possession of which the law speaks does not necessarily denote actual physical ouster from occupation but an ouster from all those rights which constitute possession in law. It is true that physical occupation is ordinarily the best and the most conclusive proof of possession in this sense but the two are not the same. It is also true that there must always be physical ouster from these rights but that does not necessarily import physical ouster from occupation especially when this is of just a small room or two in a house and when this occupation is shared with others. The nature of the ouster and the quantum necessary naturally varies in each case.” 71. The distinction between “possession”, “occupation” or “control” was also considered in Sumatibai Wasudeo Bachuwar v. Emperor, AIR (31) 1944 Bom 125 and Court held: “Some documents containing per-judicial reports were found in a box in the house occupied by the applicant and her husband. When the house was raided by the police, the husband was out and the applicant (wife) produced the keys with one of which the box could be opened. In addition to per-judicial reports, there were some letters in the box addressed to the applicant. When the house was raided by the police, the husband was out and the applicant (wife) produced the keys with one of which the box could be opened. In addition to per-judicial reports, there were some letters in the box addressed to the applicant. Held, (1) that, prima facie, the box containing the documents would be in the possession of the husband and the mere fact that in his absence he had left the keys with the applicant (wife) would not make her in joint possession with himself; nor did the fact that there were letters in the box addressed to the wife mean that she was in joint possession of all the contents of the box; (2) that the wife was in the circumstances in possession of the box within the meaning of R. 39(1) of the Defence of India Rules; (3) that occupation in R. 39 (2) of the Defence of India Rules meant legal occupation, and the applicant could not be held to be in occupation or control of the house so as to render her guilty under R. 39 of the Defence of India Rules.” 72. A person other than owner, if continued to have possession of immoveable property for a period as prescribed in a Statute providing limitation, openly, without any interruption and interference from the owner, though he has knowledge of such possession, would crystallise in ownership after the expiry of the prescribed period or limitation, if the real owner has not taken any action for re-entry and he shall be denuded of his title to the property in law. ‘Permissible possession’ shall not mature a title since it cannot be treated to be an ‘adverse possession’. Such possession, for however length of time be continued, shall not either be converted into adverse possession or a title. It is only the hostile possession which is one of the condition for adverse possession. 73. Ordinarily an owner of property is presumed to be in possession and such presumption is in his favour where there is nothing to the contrary. But where a plaintiff himself admits that he has been dispossessed by the defendant and no longer in proprietary possession of property in suit at the time of institution of the suit, Court shall not start with the presumption in his favour that possession of property was with him. But where a plaintiff himself admits that he has been dispossessed by the defendant and no longer in proprietary possession of property in suit at the time of institution of the suit, Court shall not start with the presumption in his favour that possession of property was with him. Mere adverse entry in revenue papers is not relevant for proof of adverse possession. Possession is prima facie evidence of title and has to be pleaded specifically with all its necessary ingredients namely, hostile, open, actual and continuous. 74. The consequences and conditions precedent as also the requirement of law in an action founded on the plea of adverse possession have been discussed by Courts time and again and a retrospect of some of the important decisions which provides binding guidelines on the aforesaid aspects may be referred to hereinbelow. 75. In Gunga Gobind Mundul v. Collector of the 24-pergunnahs 11 Moore’s I.A., 345 it was observed by Privy Council that continuous possession for more than twelve years not only bars the remedy, but practically extinguishes title of true owner in favour of possessor. This was followed by a Division Bench of Calcutta High Court in Gossain Das Chunder v. Issur Chunder Nath, 1877 III ILR 3 (Cal) 224. 76. In Gossain Das Chunder (supra), High Court held that 12 years continuous possession of land by wrong doer not only bars the remedy but also extinguishes title of rightful owner. It confers a good title upon the wrong doer. 77. In Bhupendra Narayan Sinha v. Rajeswar Prosad Bhakat and others, AIR 1931 PC 162 , Privy Council held where a person without any colour of right wrongfully takes possession as a trespasser of a property of another, any title which he may require by adverse possession will be strictly limited to what he has actually so possessed. That was an interesting case of dispute of ownership in respect to subsoil. It was held that there can be separate ownership of different strata of subsoil, at all events where minerals are involved. If a grant of surface right was given by the owner and the licensee is given possession to carry out the said right, by quarrying stones etc. It was held that there can be separate ownership of different strata of subsoil, at all events where minerals are involved. If a grant of surface right was given by the owner and the licensee is given possession to carry out the said right, by quarrying stones etc. possession of subsoil in the eyes of law remain with the owner though it is only a constructive possession but in the absence of anything to show that with the knowledge of the owner the licensee held possession of subsoil and minerals therein and continued with that possession for statutory period of limitation to continue its ownership such plea of adverse possession in respect to subsoil cannot be accepted. 78. In Basant Kumar Roy v. Secretary of State for India and others, AIR 1917 PC 18 , it was held: “An exclusive adverse possession for a sufficient period may be made out, inspite of occasional acts done by the former owner on the ground for a specific purpose from time to time. Conversely; acts which prima facie are acts of dispossession may under particular circumstances fall short of evidencing any kind of ouster. They may be susceptible of another explanation, bear some other characters or have some other object. ... If, as their Lordships think, no dispossession occurred, except possibly within twelve years before the commencement of this suit, article 144 is the article applicable, and not article 142.” 79. In Board Nageshwar Bux Roy v. Bengal Coal Co., AIR 1931 PC 18 , observations in respect of adverse possession similar to what has been noted above were made and the said judgment was followed in Bhupendra Narayan Sinha (supra). 80. The law in respect of adverse possession, therefore, is now well settled. It should be nec vi nec clam nec precario. (Secretary of State for India v. Debendra Lal Khan, AIR 1934 PC 23 , page 25). This decision has been referred and followed in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 (para 4). Court further says that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. [Radhamoni Debi v. Collector of Khulna, 27 Ind App. 136 at p. 140 (PC)]. The case before Court in P. Lakshmi Reddy (supra) was that of co-heirs where the plea of adverse possession was set up. [Radhamoni Debi v. Collector of Khulna, 27 Ind App. 136 at p. 140 (PC)]. The case before Court in P. Lakshmi Reddy (supra) was that of co-heirs where the plea of adverse possession was set up. In this regard it was held: “But it is well settled in order, to establish adverse possession of one-co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of the joint title. The co-heir in possession cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus of his own part in derogation of the other co-heir title. It is settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.” (Emphasis added) 81. In Thakur Kishan Singh v. Arvind Kumar, AIR 1995 SC 73 the Court said: “A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.” (Emphasis added) 82. In Sheo Raj Chamar and another v. Mudeer Khan and others, AIR 1934 All. 868, it was held: “If, indeed it did, the defendants have acquired a right by sheer adverse possession held and maintained for more than 12 years. The adverse possession to be effective need not be for the full proprietary right.” 83. In Saroop Singh v. Banto and others, 2005(8) SCC 330 the Court held in para 30: “30. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. . . ..” (emphasis added) 84. In Saroop Singh v. Banto and others, 2005(8) SCC 330 the Court held in para 30: “30. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. . . ..” (emphasis added) 84. In T. Anjanappa and others v. Somalingappa and another, 2006 (7) SCC 570 the pre-conditions for taking plea of adverse possession has been summarised 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 to as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverese 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.” (emphasis added) 85. In P.T. Munichikkanna Reddy and others v. Revamma and others, AIR 2007 SC 1753 it was held: “It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner.” 86. In the above case, Court also discussed law in detail and observed: “Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. In the above case, Court also discussed law in detail and observed: “Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.” (Para 5) “Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the Court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one’s right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title.” (Para 6) “Therefore, to assess a claim of adverse possession, two pronged enquiry is required: 1. Application of limitation provision thereby jurisprudentially “willful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. 2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property” (Para 9) (Emphasis added) 87. In para 12 of the judgment, referring to its earlier decision in T. Anjanappa (supra), Court held, if the defendants are not sure who is the true owner, question of their being in hostile possession and denying title of true owner would not arise. In para 12 of the judgment, referring to its earlier decision in T. Anjanappa (supra), Court held, if the defendants are not sure who is the true owner, question of their being in hostile possession and denying title of true owner would not arise. It also referred on this aspect its earlier decisions in Des Raj and others v. Bhagat Ram (Dead) by LRs. and others 2007(3) SCALE 371 and Govindammal v. R. Perumal Chettiar and others, JT 2006(1) SC 121. 88. In Annakili v. A. Vedanayagam and others, AIR 2008 SC 346 Court pointed out that a claim of adverse possession has two elements (i) the possession of defendant becomes adverse to the plaintiff; and (ii) defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi is held to be a requisite ingredient of adverse possession well known in law. Court held: “It is now a well settled principle of law that mere possession of the land would not ripen into possessor title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in 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.” (emphasis added) 89. In Secretary of State v. Debendra Lal Khan (supra) it was held that period of possession of a series of independent trespassers cannot be added together and utilized by the last possessor to make up statutory total period of adverse possession. This was followed in Wahid Ali and another v. Mahboob Ali Khan (supra). 90. In (Sm.) Bibhabati Devi v. Ramendra Narayan Roy and others, AIR 1947 PC 19 it was observed that in order to claim a right of ownership applying principle of adverse possession it is a condition precedent that possession must be adverse to a living person. Herein appellant was possessing property under a mosque after death of defendant. It was held that possession cannot be said to be adverse. 91. Herein appellant was possessing property under a mosque after death of defendant. It was held that possession cannot be said to be adverse. 91. In Chhote Khan and others v. Mal Khan and others, AIR 1954 SC 575 , Court observed that no question of adverse possession arises where possession is held under an arrangement between the co-sharers. 92. The Court in P. Lakshmi Reddy (supra) quoted with approval Mitra’s Tagore Law Lectures on Limitation and Prescription (6th Edition) Vol. I, Lecture VI, at page 159, quoting from Angell on Limitation: “An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession. (Angell, Sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession.” 93. It further held: “Consonant with this principle the commencement of adverse possession, in favour of a person, implies that that person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until site animus.” (emphasis added) 94. In Karbalai Begum v. Mohd. Sayeed, (1980) 4 SCC 396 in the context of a co-sharer, it was held: “...It is well settled that mere non- participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession.” 95. In Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543 , Court, in para 15, said: “15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title. One who holds possession on behalf of another, does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.” (emphasis added) 96. In Vidya Devi v. Prem Prakash, (1995) 4 SCC 496 , Court in paras 27 and 28 held: “27...it will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen. 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.” (emphasis added) 97. In Roop Singh v. Ram Singh, (2000) 3 SCC 708 it was held that the defendant, if got possession of suit land as a lessee or under a batai agreement then from permissive possession when it became hostile has to be shown. It is for him to establish by cogent and convincing evidence, hostile, animus and possession adverse to the knowledge of real owner. Mere possession for a long time does not result in converting permissive possession into adverse possession. 98. It is for him to establish by cogent and convincing evidence, hostile, animus and possession adverse to the knowledge of real owner. Mere possession for a long time does not result in converting permissive possession into adverse possession. 98. In Darshan Singh v. Gujjar Singh, (2002) 2 SCC 62 in para 7 and 9, Court held: “...It is well settled that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an ouster of other co-sharers.” “9. In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied.” 99. In Amarendra Pratap Singh v. Tej Bahadur Prajapati and others, AIR 2004 SC 3782 : (2004) 10 SCC 65 considering as to what is adverse possession, Court in para 22, observed : “What is adverse possession? Every possession is not, in law, adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of 12 years calculated from the date when the possession of the defendant becomes adverse to the plaintiff. By virtue of Section 27 of the Limitation Act, at the determination of the period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. By virtue of Section 27 of the Limitation Act, at the determination of the period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter’s title. It is that extinguished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. Inaction for a period of 12 years is treated by the Doctrine of Adverse Possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession.” 100. However, Court further observed that property, if by virtue of some statutory provisions or otherwise, is alienable, the plea of adverse possession may not be available. It held: “23. The nature of the property, the nature of title vesting in the rightful owner, the kind of possession which the adverse possessor is exercising, are all relevant factors which enter into consideration for attracting applicability of the Doctrine of Adverse Possession. The right in the property ought to be one which is alienable and is capable of being acquired by the competitor. Adverse possession operates on an alienable right. The right in the property ought to be one which is alienable and is capable of being acquired by the competitor. Adverse possession operates on an alienable right. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor and yet sits idle. Such inaction or default in taking care of one’s own rights over property is also capable of being called a manner of ‘dealing’ with one’s property which results in extinguishing one’s title in property and vesting the same in the wrong doer in possession of property and thus amounts to ‘transfer of immovable property’ in the wider sense assignable in the context of social welfare legislation enacted with the object of protecting a weaker Section.” 101. From the above discussion what boils down is that the concept of adverse possession contemplates a hostile possession, i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge other’s right and in fact deny the same. 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 amounts to denial of his title to property claimed. In order to determine whether the act of a person constitutes adverse possession, ‘animus in doing that act’ is most crucial factor. Adverse possession commences in wrong and is aimed against right. A person is said to hold property adversely to real owner when that person in denial of owner’s right excluded him from enjoyment of his property. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of rightful owner and tends to extinguish that person’s title. Possession is not held to be adverse if it can be referred to a lawful title. The persons setting up adverse possession may have been holding under rightful owner’s title, i.e., trustees, guardians, bailiffs or agents. Such person cannot set up adverse possession. Burden is on the defendant to prove affirmatively. 102. Possession is not held to be adverse if it can be referred to a lawful title. The persons setting up adverse possession may have been holding under rightful owner’s title, i.e., trustees, guardians, bailiffs or agents. Such person cannot set up adverse possession. Burden is on the defendant to prove affirmatively. 102. An occupation of reality is inconsistent with the right of true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner, i.e., with intention of excluding all persons from it, including rightful owner, he is in adverse possession of it. Where possession could be referred to a lawful title it shall not be considered, adverse. The reason is that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title. One who holds possession on behalf of another does not, by mere denial of other’s title, make his possession adverse so as to give himself benefit of statute of limitation. A person who enters into possession having a lawful title cannot divest another of that title by pretending that he had no title at all. 103. Adverse possession is of two kinds. (A) Adverse from the beginning or (B) that become so subsequently. If a mere trespasser takes possession of A’s property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of land as A’s bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitles adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if adverse possessor remains in possession for a certain period of time producing effect of barring right of true owner, and thus, converting possessor into owner, or of depriving true owner of his right of action to recover his property although true owner is ignorant of adverse possessor being in occupation. 104. 104. In Hari Chand v. Daulat Ram, AIR 1987 SC 94 , Court held if encroachment was not new one but structure was in existence prior to acquiring title over property, the decree on the basis of adverse possession cannot be granted in favour of plaintiff. Paras 10 and 11 of judgment read as under: “10. On a consideration of these evidences it is quite clear that the disputed kachha wall and the khaprail over it is not a new construction, but existed for over 28 years and the defendant has been living therein as has been deposed to by Ramji Lal vendor of the plaintiff who admitted in his evidence that the land in dispute and the adjoining kachha walls had been affected by salt and the chhappar over the portion shown in red was tiled roof constructed about 28 years back. This is also supported by the evidence of the defendant, D.W. 1, that the wall in dispute was in existence when the partition was effected i.e., 28 years before. On a consideration of these evidences the Trial Court rightly held that the defendant had not trespassed over the land in question nor he had constructed a new wall or khaprail. The trial Court also considered the report 57C by the Court Amin and held that the wall in question was not a recent construction but it appeared 25-30 years old in its present condition as (is) evident from the said report. The suit was therefore dismissed. The lower appellate Court merely considered the partition deed and map Exts. 3/1 and 3/2 respectively and held that the disputed property fell to the share of the plaintiff’s vendor and the correctness of the partition map was not challenged in the written statement. The Court of appeal below also referred to Amin’s map 47 A which showed the encroached portion in red colour as falling within the share of plaintiff’s vendor, and held that the defendant encroached on this portion of land marked in red colour, without at all considering the clear evidence of the defendant himself that the wall and the khaprail in question existed for the last 28 years and the defendant has been living there all along. P.W. 1 Ramji Lal himself also admitted that the wall existed for about 28 years as stated by the defendant and the kachha walls and the khaprail has been effected by salt. The lower appellate Court though held that P.W. 1 Ramji Lal admitted in cross-examination that towards the north of the land in dispute was the khaprail covered room of Daulat Ram in which Daulat Ram lived, but this does not mean that the wall in dispute exists for the last any certain number of years, although it can be said that it is not a recent construction. Without considering the deposition of defendant No. 1 as well as the report of the Amin 57 C the IInd Addl. Civil Judge, Agra wrongly held that the defendant failed to prove that the wall in dispute and the khaprail existed for the last more than 12 years before the suit. The Civil Judge further held on surmises as “may be that the wall and khaprail have not been raised in May, 1961 as is the plaintiff’s case, but they are recent constructions.” This decision of the Court of appeal below is wholly incorrect being contrary to the evidences on record.” “11. On a consideration of all the evidences on record it is clearly established that the alleged encroachment by construction of kuchha wall and khaprail over it are not a recent construction as alleged to have been made in May 1961. On the other hand, it is crystal clear from the evidences of Ramji Lal P.W. 1 and Daulat Ram D.W. 1 that the disputed wall with khaprail existed there in the disputed site for a long time, that is 28 years before and the wall and the khaprail have been affected by salt as deposed to by these two witnesses. Moreover the Court Amin’s report 57 C also shows the said walls and khaprail to be 25-30 years old in its present condition. The High Court has clearly came to the finding that though the partition deed was executed by the parties yet there was no partition by metes and bounds. Moreover the Court Amin’s report 57 C also shows the said walls and khaprail to be 25-30 years old in its present condition. The High Court has clearly came to the finding that though the partition deed was executed by the parties yet there was no partition by metes and bounds. Moreover there is no whisper in the plaint about the partition of the property in question between the co-sharers by metes and bounds nor there is any averment that the suit property fell to the share of plaintiff’s vendor Ramji Lal and Ramji Lal was ever in possession of the disputed property since the date of partition till the date of sale to the plaintiff. The plaintiff has singularly failed to prove his case as pleaded in the plaint.” 105. In Maharaja Sir Kesho Prasad Singh Bahadur v. Bahuria Mt. Bhagjogna Kuer and others, AIR 1937 PC 69 , Privy Council has held that mere receipt of rent by persons claiming adversely is not sufficient to warrant finding of adverse possession. The possession of persons or their predecessors-in-title claiming adverse possession must have “all the qualities of adequacy, continuity and exclusiveness” necessary to displace title of persons, against whom, they claim. Relevant extracts from page 78 of the said judgment reads as follows: “the mere fact that many years after the sale the Gangbarar maliks or persons depriving title from them are obtaining rent for the land is in itself very significant. Even in a locality exposed to dilution by the action of the river this circumstance alone might be given considerable weight. But without sufficient proof to cover the intervening years it was most reasonably held by the learned Subordinate Judge to be insufficient. The circumstance that the Maharaja was not in possession or in receipt of rent is, it need hardly be said, insufficient under Art. 144 to warrant a finding of adverse possession on behalf of the respondents or their predecessors-in-title. The circumstance that the Maharaja was not in possession or in receipt of rent is, it need hardly be said, insufficient under Art. 144 to warrant a finding of adverse possession on behalf of the respondents or their predecessors-in-title. Their Lordships are of opinion that on the materials produced it cannot be contended that the learned Subordinate Judge was obliged in law to find that the possession of the principal respondents had “all the qualities of adequacy, continuity and exclusiveness” (per Lord Shaw 126 CWN 66610 at p. 673) necessary to displace the title of the Maharaja, and they think that no reason in law exists why his finding of fact in this respect should not be final.” 106. Pleadings are necessary. Recently, Court has considered in detail various authorities on the question of adverse possession in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and others, AIR 2009 SC 103 and in para 18 has observed that 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 rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. 107. Court also referred to its earlier decision in D.N. Venkatarayappa and another v. State of Karnataka and others, 1997 (7) SCC 567 observing : “Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession.” 108. In D.N. Venkatarayappa (Supra), Court emphasized importance of pleading as also the pre requisites of plea of adverse possession and said : “3. In D.N. Venkatarayappa (Supra), Court emphasized importance of pleading as also the pre requisites of plea of adverse possession and said : “3. ...What requires to be pleaded and proved is that the purchaser disclaimed his title under which he came into possession, set up adverse possession with necessary animus of asserting open and hostile title to the knowledge of the true owner and the later allowed the former, without any let or hindrance, to remain in possession and enjoyment of the property adverse to the interest of the true owner until the expiry of the prescribed period. The classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario.” “... ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.” “apart from the actual and continuous possession which are among other ingredients of adverse possession, there should be necessary animus on the part of the person who intends to perfect his title by adverse possession.” “A person who under the bona fide belief thinks that the property belongs to him and as such he has been in possession, such possession cannot at all be adverse possession because it lacks necessary animus for perfecting title by adverse possession.” “... one of the important ingredients to claim adverse possession is that the person who claims adverse possession must have set up title hostile to the title of the true owner.” “...there is not even a whisper in the evidence of the first petitioner with regard to the claim of adverse possession set up by the petitioners. It is not stated by the petitioners that they have been in continuous and uninterrupted possession of the lands in question.” “But, the crucial facts to constitute adverse possession have not been pleaded. Admittedly, the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Admittedly, the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant’s possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant.” “Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession” “...person, who comes into possession under colour of title from the original grantee if he intends to claim adverse possession as against the State, must disclaim his title and plead his hostile claim to the knowledge of the State and the State had not taken any action thereon within the prescribed period.” “5. ... in claiming adverse possession certain pleas have to be made such as when there is a derivative title as in the present case, if the appellants intend to plead adverse possession as against the State, they must disclaim their title and plead this hostile claim to the knowledge of the State and that the State had not taken any action within the prescribed period, it is only in those circumstances the appellants’ possession would become adverse. There is no material to that effect in the present case. Therefore, we are of the view that there is no substance in any of the contentions advanced on behalf of the appellants.” (emphasis added) 109. In Mahesh Chand Sharma v. Raj Kumari Sharma, AIR 1996 SC 869 , necessity of pleading was emphasized and Court in para 36, said : “In this connection, we may emphasise that a person pleading adverse possession has no equities in his favour. In Mahesh Chand Sharma v. Raj Kumari Sharma, AIR 1996 SC 869 , necessity of pleading was emphasized and Court in para 36, said : “In this connection, we may emphasise that a person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession. For all the above reasons, the plea of limitation put forward by the appellant, or by Defendants Nos. 2 to 5 as the case may, be is rejected.” (emphasis added) 110. In Prabhu Narain Singh v. Ram Niranjan and others, AIR 1983 All 223 in para 6 Court observed : “A person claiming title to any land by adverse possession has to be very specific about the area of the land and the period over which he has been in possession.” 111. In Ramzan and others v. Smt. Gafooran and others, AIR 2008 All 37 , Court observed : “27. It is, therefore, explicit that unless there is specific plea and proof that adverse possessor has disclaimed his right and asserted title and possession to the knowledge of the true owner within a statutory period and the true owner has acquiesced to it, the adverse possessor cannot succeed to have it established that he has perfected his right by prescription.” “29. As pointed out above, where the defendants are not sure who is the true owner and question of their being in hostile possession then the question of denying title of true owner does not arise. At the most, the defendants have claimed and which is found to be correct by the trial Court that they have been in possession of the disputed property since the inception of the sale-deeds in their favour. They came in possession, according to their showing, as owner of the property in question. It follows that they exercised their right over the disputed property as owner and exercise of such right, by no stretch of imagination, it can be said that they claimed their title adverse to the true owner.” 112. The pleading must be specific to the date when possession become adverse. It follows that they exercised their right over the disputed property as owner and exercise of such right, by no stretch of imagination, it can be said that they claimed their title adverse to the true owner.” 112. The pleading must be specific to the date when possession become adverse. In Ram Charan Das v. Naurangi Lal and others, AIR 1933 PC 75 the property of a Mutt was alienated by Mahant by executing a Mukararri (permanent lease) in favour of one Munshi Naurangi Lal. The sale-deed of the land in dispute was also executed to another one and both the documents contain a stipulation that they were executed to meet expenses and necessities of Mutt. After the death of Mahant, a suit was filed by successor in office against the lessee and purchaser etc. claiming possession of property in dispute to Mutt. Defendants besides others, took the plea of adverse possession also. The question was, did possession of the concerned defendant became adverse to Mutt or Mahant representing the Mutt on the date of relevant assurance or date of death of the concerned Mahant. Trial Court held latter date to be correct while the High Court took a contrary view and upheld the former date. Privy Council held: “In other words a mahant has power (apart from any question of necessity) to create an interest in property appertaining to the Mutt which will continue during his own life, or to put it perhaps more accurately, which will continue during his tenure of office of mahant of the mutt, with the result that adverse possession of the particular property will only commence when the mahant who had disposed of it ceases to be mahant by death or otherwise. If this be right as it must be taken to be, where the disposition by the mahant purports to be a grant of a permanent lease, their Lordships are unable to see why the position is not the same where the disposition purports to be an absolute grant of the property nor was any logical reason suggested in argument why there should be any difference between the two cases. In each case the operation of the purported grant is effective and endures only for the period during which the mahant had power to create an interest in the property of the mutt.” (emphasis added) 113. In each case the operation of the purported grant is effective and endures only for the period during which the mahant had power to create an interest in the property of the mutt.” (emphasis added) 113. The pleading is necessary since burden also lies on the person who claims adverse possession. In Smt. Bitola Kuer v. Sri Ram Charan and others, AIR 1978 All 555 in para 16 the Court said: “It is well settled that title ordinarily carries with it the presumption of possession and that when the question arises is to who was in possession of land, the presumption is that the true owner was in such possession. In other word” possession follows title. The inevitable Corollary from this principle is that the burden lies on the person who claims to have acquired title by adverse possession to prove his case.” 114. In T. Anjanappa and others v. Somalingappa and another, 2006 (7) SCC 570 , pre-conditions for taking plea of adverse possession has been summarised 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 to as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverese 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.” 115. In order to defeat title of a plaintiff on the ground of adverse possession it is obligatory on the part of respondent to specifically plead and prove as to since when their possession came adverse. If it was permissive or obtained pursuant to some sort of arrangement, the plea of adverse possession would fail. In Md. In order to defeat title of a plaintiff on the ground of adverse possession it is obligatory on the part of respondent to specifically plead and prove as to since when their possession came adverse. If it was permissive or obtained pursuant to some sort of arrangement, the plea of adverse possession would fail. In Md. Mohammad Ali v. Jagadish Kalita and others, (2004) 1 SCC 271 with reference to a case dealing with such an issue amongst co-sharers, the Court observed, “Long and continuous possession by itself, it is trite, would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription. 116. It was also observed in para 21 that for the purpose of proving adverse possession/ouster, defendant must also prove animus possidendi. 117. In L.N. Aswathama and another v. V.P. Prakash JT 2009 (9) 527, Court, in para 17 and 18, said: “17. The legal position is no doubt well settled. To establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence.” “18. ...When a person is in possession asserting to be the owner, even if he fails to establish his title, his possession would still be adverse to the true owner. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative pleas available on the same facts. Therefore, the contention of the plaintiffs that the plea of adverse possession is not available to defendant is rejected.” (emphasis added) 118. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative pleas available on the same facts. Therefore, the contention of the plaintiffs that the plea of adverse possession is not available to defendant is rejected.” (emphasis added) 118. Where a plea of adverse possession is taken, the pleadings are of utmost importance and anything, if found missing in pleadings, it may be fatal to such plea of adverse possession. Since mere long possession cannot satisfy requirement of adverse possession, the person claiming it, must prove as to how and when adverse possession commenced and whether fact of adverse possession was known to real owner. (R.N. Dawar v. Ganga Saran Dhama, AIR 1993 Del 19 ). 119. In Parwatabai v. Sona Bai, 1996 (10) SCC 266 , it was stressed upon that to establish claim of adverse possession, one has to establish exact date from which adverse possession started. The claim based on adverse possession has to be proved affirmatively by cogent evidence and presumptions and probabilities cannot be substituted for evidence. The plea of adverse possession is not always a legal plea. It is always based on facts which must be asserted, pleaded and proved. A person pleading adverse possession has no equities in his favour since he is trying to defeat right of true owner and, therefore, he has to specifically plead with sufficient clarity when his possession became adverse and the nature of such possession. [See Mahesh Chand Sharma (supra)]. 120. In Parsinnin v. Sukhi, (1993) 4 SCC 375 , it said that burden of proof lies on the party who claims adverse possession. He has to plead and prove that his possession is nec vi, nec clam, nec precario i.e., peaceful, open and continuous. 121. Besides, alternative plea may be permissible, but mutually destructive pleas are not permissible. The defendants may raise inconsistent pleas so long as they are not mutually destructive as held in Biswanath Agarwalla v. Sabitri Bera and others, JT 2009 (10) SC 538. 122. In Gautam Sarup v. Leela Jetly and others, (2008) 7 SCC 85 , Court said that a defendant is entitled to take an alternative plea but such alternative pleas, however, cannot be mutually destructive of each other. 123. 122. In Gautam Sarup v. Leela Jetly and others, (2008) 7 SCC 85 , Court said that a defendant is entitled to take an alternative plea but such alternative pleas, however, cannot be mutually destructive of each other. 123. In Ejas Ali Qidwai and others v. Special Manager, Court of Wards, Balrampur Estate and others, AIR 1935 Privy Council 53 certain interesting questions cropped up which also attracted certain consequences flowing from annexation of province of Oudh in 1857 by the British Government. It appears that one Asghar Ali and his cousin Muzaffar Ali granted a mortgage by conditional sale of the entire estate of Ambhapur (commonly known as the Taluka of Gandara) and certain villages to the then Maharaja of Balrampur. The mortgaged property situated in District Bahraich, which was in the Province of Oudh. The mortgagee brought an action to enforce his right, got a decree in his favour and ultimately possession of the property in 1922. The sons of Asghar Ali thereafter brought an action in Civil Court for recovery of their share of the mortgaged property on the ground that it was the absolute property of their father and on his death devolved on all the persons who were his heirs under the Mahomedan Law. They challenged Iqbal Ali’s right to mortgage the whole of estate and impeached the mortgaged transaction on various grounds. The claim was resisted on the ground that succession to the estate was governed by the rule of primogeniture according to which the whole of the estate descended first to Asghar Ali and after his death to his eldest son Iqbal Ali. The defence having been upheld the claim was negatived by the trial Court as well as the Court of appeal. Before Privy Council the only question raised was whether succession to property was regulated by rule of primogeniture or by Mahomedan Law. 124. Privy Council while considering the above question observed that the Province of Oudh was annexed by the East India Company in 1856 but in 1857 during the first war of independence by native Indians much of its part was declared independent. Soon after it was conquered by the British Government and it got reoccupation of the entire province of Oudh. Privy Council while considering the above question observed that the Province of Oudh was annexed by the East India Company in 1856 but in 1857 during the first war of independence by native Indians much of its part was declared independent. Soon after it was conquered by the British Government and it got reoccupation of the entire province of Oudh. Thereafter in March 1858, British Government issued a proclamation confiscating, with certain exceptions, the proprietary right in the soil of the Province, and reserved to itself power to dispose of that right in such manner as it may deem fit. On 10th October 1859, British Government (the then Government of India) declared that every talukdar with whom a summary settlement has been made, since re-occupation of Province, has thereby acquired a permanent, hereditary and transferable proprietary right, namely in the taluka for which he has engaged, including the perpetual privilege of engaging with the Government for the revenue of the taluka. Pursuant to that declaration, Wazir Ali with whom a summary settlement of Taluka has already been made, was granted a Sanad which conferred upon him full proprietary right, title and possession of estate of Ambhapur. In the said grant, there contained a stipulation that in the event of dying intestate or anyone of his successor dies intestate, the estate shall descend to the nearest male heir according to rule of primogeniture. Subsequently, in order to avoid any further doubt in the matter, Oudh Estates Act I of 1869 was enacted wherein Wazir Ali was shown as a Tallukdar whose estate according to custom of family, on or before 13.2.1856, ordinarily devolved upon a single heir. However, having noticed this state of affairs, Privy Council further observed that this rule was not followed after the death of Wazir Ali and Taluka was mutated in favour of his cousin Nawazish Ali. He was recorded as owner of Taluka. Thereafter in 1892 Samsam Ali entered the joint possession with Nawazish Ali and after death of Nawazish Ali, Samsam Ali was recorded as the sole owner. The system of devolution of property was explained being in accordance with the usage of family and when name of Asghar Ali was recorded, he also made a similar declaration. Thereafter in 1892 Samsam Ali entered the joint possession with Nawazish Ali and after death of Nawazish Ali, Samsam Ali was recorded as the sole owner. The system of devolution of property was explained being in accordance with the usage of family and when name of Asghar Ali was recorded, he also made a similar declaration. Faced with the situation, appellant sought to explain possession of Nawazish Ali as adverse possession but the same was discarded by Privy Council observing: “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.” 125. In S.M. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254 , Court has held that the alternative claim must be clearly made and proved, adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point on limitation against party affected can be found. A mere suggestion in the relief clause that there was an uninterrupted possession for “several 12 years” or that plaintiff had acquired “a possible title” was not enough to raise such a plea. Long possession is not necessarily adverse possession and prayer clause is not a substitute for a plea. Relevant paras 3 to 5 of the said judgment read as follows: “3. In this appeal, it has been stressed by the appellant that the findings clearly establish the benami nature of the transaction of 1914. This is, perhaps, true but the appellant cannot avail himself of it. The appellant’s claim based upon the benami nature of the transaction cannot stand because S. 66 of the Code of Civil Procedure bars it. That Section provides that no suit shall be maintained against any person claiming title under a purchase certified by the Court on the ground that the purchase was made on behalf of the plaintiff or on behalf of someone through whom the plaintiff claims. Formerly, the opening words were, no suit shall be maintained against a certified purchaser and the change was made to protect not only the certified purchaser but any person claiming title under a purchase certified by the Court. Formerly, the opening words were, no suit shall be maintained against a certified purchaser and the change was made to protect not only the certified purchaser but any person claiming title under a purchase certified by the Court. The protection is thus available not only against the real purchaser but also against anyone claiming through him. In the present case, the appellant as plaintiff was hit by the Section and the defendants were protected by it.” “4. It is contended that the case falls within the second sub-section under which a suit is possible at the instance of a third person who wishes to proceed against the property, though ostensibly sold to the certified purchaser, on tie ground that it is liable to satisfy a claim of such third person against the real owner. Reliance is placed upon the transfer by Syed Aulad Ali in favour of the appellant which is described as a claim by the transferee against the real owner. The words of the second sub-section refer to the claim of creditors and not to the claims of transferees. The latter are dealt with in first sub-section, and if the meaning sought to be placed on the second sub-section by the appellant were to be accepted, the entire policy of the law would be defeated by the real purchaser making a transfer to another and the first sub-section would become almost a dead letter. In our opinion, such a construction cannot be accepted and the plaintiff’s suit must be held to be barred under S. 66 of the Code.” “5. As an alternative, it was contended before us that the title of Hakir Alam was extinguished by long and uninterrupted adverse possession of Syed Aulad Ali and after him of the plaintiff. The High Court did not accept this case. Such a case is, of course, open to a plaintiff to make if his possession is disturbed. If the possession of the real owner ripens into title under the Limitation Act and he is dispossessed, he can sue to obtain possession, for he does not then rely on the benami nature of the transaction. But the alternative claim must be clearly made and proved. The High Court held that the plea of adverse possession was not raised in the suit and reversed the decision of the two Courts below. The plea of adverse possession is raised here. But the alternative claim must be clearly made and proved. The High Court held that the plea of adverse possession was not raised in the suit and reversed the decision of the two Courts below. The plea of adverse possession is raised here. Reliance is placed before us on Sukan v. Krishanand, ILR 32 Pat 353 and Sri Bhagwan Singh and others v. Ram Basi Kuer and others, AIR 1957 Pat 157 to submit that such a plea is not necessary and alternatively, that if a plea is required, what can be considered a proper plea. But these two cases can hardly help the appellant. No doubt, the plaint sets out the fact that after the purchase by Syed Aulad Ali, benami in the name of his son-in-law Hakir Alam Ali continued in possession of the property but it does not say that this possession was at any time adverse to that of the certified purchaser. Hakir Alam was the son-in-law of Syed Aulad Ali and was living with him. There is no suggestion that Syed Aulad Ali ever asserted any hostile title against him or that a dispute with regard to ownership and possession had ever arisen. Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for “several 12 years” or that the plaintiff had acquired “an absolute title” was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. The cited cases need hardly be considered, because each case must be determined upon the allegations in the plaint in that case. It is sufficient to point out that in Bishun Dayal v. Kesho Prasad, AIR 1940 PC 202 the Judicial Committee did not accept an alternative case based on possession after purchase without a proper plea.” 126. In B. Leelavathi v. Honnamma and another, (2005) 11 SCC 115 Court has held that adverse possession is a question of fact which has to be specifically pleaded and proved. In B. Leelavathi v. Honnamma and another, (2005) 11 SCC 115 Court has held that adverse possession is a question of fact which has to be specifically pleaded and proved. In the absence of any plea of adverse possession, framing of an issue and adducing evidence, it would not be held that plaintiffs had perfected title by way of adverse possession. Para 11 of judgment read as follows: “11. Plea of adverse possession had been taken vaguely in the plaint. No categorical stand on this point was taken in the plaint. No issue had been framed and seemingly the same was not insisted upon by the plaintiff-respondent. Adverse possession is a question of fact which has to be specifically pleaded and proved. No evidence was adduced by the plaintiff-respondent with regard to adverse possession. Honnamma, the plaintiff in her own statement did not say that she is in adverse possession of the suit property. We fail to understand as to how the High Court, in the absence of any plea of adverse possession, framing of an issue and evidence led on the point, could hold that the plaintiff-respondent had perfected her title by way of adverse possession.” 127. In Dharamarajan and others v. Valliammal and others, 2008 (2) SCC 741 Court has held that in a claim of adverse possession openness and adverse nature of possession has to be proved against owner of property in question. Relevant para 11 of said judgment reads as follows: “11. In our opinion none of these questions could be said to be either question of law or a substantial question of law arising out of the pleadings of the parties. The first referred question of law could not and did not arise for the simple reason that the plea of adverse possession has been rightly found against the plaintiff. Karupayee Ammal’s possession, even if presumed to be in a valid possession in law, could not be said to be adverse possession as throughout it was the case of the appellant Dharmarajan that it was a permissive possession and that she was permitted to stay on the land belonging to the members of the Iyer family. Secondly it has nowhere come as to against whom was her possession adverse. Was it adverse against the Government or against the Iyer family? Secondly it has nowhere come as to against whom was her possession adverse. Was it adverse against the Government or against the Iyer family? In order to substantiate the plea of adverse possession, the possession has to be open and adverse to the owner of the property in question. The evidence did not show this openness and adverse nature because it is not even certain as to against whom the adverse possession was pleaded on the part of Karupayee Ammal. Further even the legal relationship of Doraiswamy and Karupayee Ammal is not pleaded or proved. All that is pleaded is that after Karupayee Ammal’s demise Doraiswamy as her foster son continued in the thatched shed allegedly constructed by Karupayee Ammal. There was no question of the tacking of possession as there is ample evidence on record to suggest that Doraiswamy also was in the service of Iyer family and that he was permitted to stay after Karupayee Ammal. Further his legal heirship was also not decisively proved. We do not, therefore, see as to how the first substantial question of law came to be framed. This is apart from the fact that ultimately High Court has not granted the relief to the respondents on the basis of the finding of this question. On the other hand the High Court has gone into entirely different consideration based on reappreciation of evidence. The second and third questions are not the questions of law at all. They are regarding appreciation of evidence. The fourth question is regarding the admissibility of Exhibit A-8. In our opinion there is no question of admissibility as the High Court has found that Exhibit A-8 was not admissible in evidence since the Tehsildar who had issued that certificate was not examined. Therefore, there will be no question of admissibility since the document itself was not proved. Again the finding of the High Court goes against the respondent herein. Even the fifth question was a clear cut question of fact and was, therefore, impermissible in the Second Appeal.” 128. In A.S. Vidyasagar v. S. Karunanandam, 1995 Supp (4) SCC 570, Court has held that permissive possession is not adverse possession and can be terminated at any time by rightful owner. Relevant para 5 of judgment reads as follows: “5. Even the fifth question was a clear cut question of fact and was, therefore, impermissible in the Second Appeal.” 128. In A.S. Vidyasagar v. S. Karunanandam, 1995 Supp (4) SCC 570, Court has held that permissive possession is not adverse possession and can be terminated at any time by rightful owner. Relevant para 5 of judgment reads as follows: “5. Adverse possession is sought to be established on the supposition that Kanthimathi got possession of the premises as a licensee and on her death in 1948, the appellant who was 4 years of age, must be presumed to have become a trespasser. And if he had remained in trespass for 12 years, the title stood perfected and in any case, a suit to recovery of possession would by then be time-barred. We are unable to appreciate this line of reasoning for it appears to us that there is no occasion to term the possession of Kanthimathi as that of a licensee. The possession was permissive in her hands and remained permissive in the hands of the appellant on his birth, as well as in the hands of his father living then with Kanthimathi. There was no occasion for any such licence to have been terminated. For the view we are taking there was no licence at all. Permissible possession of the appellant could rightfully be terminated at any moment by the rightful owners. The present contesting respondents thus had a right to institute the suit for possession against the appellant. No oral evidence has been referred to us which would go to support the plea of openness, hostility and notoriety which would go to establish adverse possession. On the contrary, the Municipal Tax receipts, Exts. B-39 and 40, even though suggestedly reflecting payment made by the appellant, were in the name of Kuppuswami, the rightful owner. This negates the assertion that at any stage did the appellant assert a hostile title. Even by examining the evidence, at our end, we come to the same view as that of the High Court. The plea of adverse possession thus also fails. As a result fails this appeal. Accordingly, we dismiss the appeal, but without any order as to costs.” 129. Even by examining the evidence, at our end, we come to the same view as that of the High Court. The plea of adverse possession thus also fails. As a result fails this appeal. Accordingly, we dismiss the appeal, but without any order as to costs.” 129. In Goswami Shri Mahalaxmi Vahuji v. Shah Ranchhoddas Kalidas, AIR 1970 SC 2025 , Court held that a party cannot be allowed to set up a case wholly inconsistent with that pleaded in its written statement. Relevant para 8 of said judgment reads as follows: “8. We may now proceed to examine the material on record for finding out ‘the true character of the suit properties viz. whether they are properties of a public trust arising from their dedication of those properties in favour of the deity Shree Gokulnathji or whether the deity as well as the suit properties are the private properties of Goswami Maharaj. In her written statement as noticed, earlier, the Ist defendant took up the specific plea that the idol of Shree Gokulnathji is the private property of the Maharaj the Vallabh Cult does not permit any dedication in favour of an idol and in fact there was no dedication in favour of that idol. She emphatically denied that the suit properties were the properties of the deity Gokulnathji but in this Court evidently because of the enormity of evidence adduced by the plaintiffs, a totally new plea was taken namely that several items of the suit properties had been dedicated to Gokulnathji but the deity being the family deity of the Maharaj, the resulting trust is only a private trust. In other words the plea taken in the written statement is that the suit properties were the private properties of the Maharaj and that there was no trust, private or public. But the case argued before this Court is a wholly different one viz., the suit properties were partly the properties of a private trust and partly the private properties of the Maharaj. The Ist defendant cannot be permitted to take up a case which is wholly inconsistent with that pleaded. This belated attempt to bypass the evidence adduced appears to be more a manor than a genuine explanation of the documentary evidence adduced. The Ist defendant cannot be permitted to take up a case which is wholly inconsistent with that pleaded. This belated attempt to bypass the evidence adduced appears to be more a manor than a genuine explanation of the documentary evidence adduced. It is amply proved that ever since Mathuranathji took over the management of the shrine, two sets of account books have been maintained, one relating to the income and expenses of the shrine and the other relating to that of the Maharaj. These account books and other documents show that presents and gifts used to. be made to the deity as well as to the Maharaj. The two were quite separate and distinct. Maharaj himself has been making gifts to the deity. He has been, at times utilising the funds belonging to. the deity and thereafter reimbursing the same. The account books which have been produced clearly go to show that the deity and the Maharaj were treated as two different and distinct legal entities. The evidence afforded “by the account books is tell-tale. In the trial Court it was contended on behalf of the Ist defendant that none of the account books produced relate exclusively to the affairs of the temple. They all record the transactions of the Maharaj, whether pertaining to his personal dealings or dealings in connection with the deity. This is an obviously untenable contention. That contention was given up in the High Court. In the High Court it was urged that two sets of account books were kept, one relating to the income and expenditure of the deity and the other of the Maharai so that the Maharai could easily find out-his financial commitments relating to the affairs of the deity. But in this Court Mr. Narasaraju, learned Counsel for the appellant realising the untenability of the contention advanced in the Courts below presented for our consideration a totally new case and that is that Gokulnathji undoubtedly is a legal personality; in the past the properties had been dedicated in favour of that deity; those properties are the properties of a private trust of which the Maharaj was the trustee. On the basis of this newly evolved theory he wanted to explain away the effect of the evidence afforded by the account books and the documents. We are unable to accept this new plea. On the basis of this newly evolved theory he wanted to explain away the effect of the evidence afforded by the account books and the documents. We are unable to accept this new plea. It runs counter to the case pleaded in the written statement. This is not a purely legal contention. The Ist defendant must have known whether there was any dedication in favour of Shri Gokulnathji and whether any portion of the suit properties were the properties of a private trust. She and her adviser’s must have known at all relevant times the true nature of the accounts maintained. Mr. Narasaraju is not right in his contention that the plea taken by him in this Court is a purely legal plea. It essentially relates to questions of fact. Hence we informed Mr. Narasaraju that we will not entertain the plea in question.” 130. In the matter of plea of adverse possession, mutually inconsistent or mutually destructive pleas must not be taken in the plaint. Whenever plea of adverse possession is raised, it pre supposes that onwer is someone else and the person taking plea of adverse possession is not the actual owner but has perfected his title by prescription since real owner has failed to initiate any proceeding for restoring possession within the prescribed period under the statute. 131. In P. Periasami v. P. Periathambi and others, 1995 (6) SCC 523 it was said: “Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.” 132. In Mohan Lal v. Mirza Abdul Gaffar, (1996) 1SCC 639, Court said” “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., up to completing the period his title by prescription nec vi, nec clam, nec precario.” 133. In Karnataka Board of Wakf v. Government of India and others, (2004) 10 SCC 779 , Court held, whenever plea of adverse possession is projected, inherent therein is that someone else is the owner of the property. In Karnataka Board of Wakf v. Government of India and others, (2004) 10 SCC 779 , Court held, whenever plea of adverse possession is projected, inherent therein is that someone else is the owner of the property. In para 12 it said: “The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.” 134. The decision in Mohal Lal (supra) has also been followed in Karnataka Board of Wakf (supra) and in para 13, Court has said: “As we have already found, the respondent obtained title under the provisions of the Ancient Monuments Act. The element of the respondent’s possession of the suit property to the exclusion of the appellant with the animus to possess it is not specifically pleaded and proved. So are the aspects of earlier title of the appellant or the point of time of disposition. Consequently, the alternative plea of adverse possession by the respondent is unsustainable.” 135. It would be useful to refer certain observations of a Single Judge of this Court in Abdul Halim Khan v. Raja Saadat Ali Khan and others, AIR 1928 Oudh 155, which, in my view, squarely applies to the facts and pleadings of this case and I am in respectful agreement therewith: “One of the general principles governing the law of limitation is that a person can only be considered to be barred, if he has a right to enter and does not exercise that right within the period fixed by the Limitation Act. The maxim of law is contra non valentem agree nulla currit praescriptio (prescription does not run against a party who is unable to act); vide Broom’s Legal Maxims, 9th edn., p. 576. Accordingly possession cannot become adverse against a person as long as he is not entitled to claim immediate possession. Ex facie it must follow that a person who is not in existence cannot be considered to be in a position to claim whether immediate or otherwise. It is evident that in the eyes of the law the plaintiff did not come into existence as long as he was not adopted. His adoption took place on 27th July 1914. He must be deemed to have come into existence only then. It is evident that in the eyes of the law the plaintiff did not come into existence as long as he was not adopted. His adoption took place on 27th July 1914. He must be deemed to have come into existence only then. It was, therefore, obviously not possible for him to claim possession of the property before that date, and if he was not in a position to claim it at all, having not been then in existence, it would be absurd to say that another person was in possession adversely to him. One might fairly ask: “Adverse against whom?” It certainly cannot be adverse against the plaintiff, who was not then in existence. It may have been adverse against any other person, but we are not concerned with such person unless the plaintiff can be shown to have derived his title from such person.” (page189-190) 136. Recently, in Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale and others, JT 2009(5) SC 395, Court, with respect to a claim of title, based on the pleading of adverse possession, said: “for claiming title by adverse possession, it was necessary for the plaintiff to plead and prove animus possidendi. A peaceful, open and continuous possession being the ingredients of the principle of adverse possession as contained in the maxim nec vi, nec clam, nec precario, long possession by itself would not be sufficient to prove adverse possession.” 137. What should have been pleaded and what a person claiming adverse possession has to show, has been laid down by Court categorically in Karnataka Board of Wakf (supra): “11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It 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. ..... Physical fact of exclusive possession and the animus posdendi 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.” 138. Earlier also, a three-Judges Bench in Parsinni and another v. Sukhi (supra) laid down the following three requisites for satisfying claim based on adverse possession: “5. The appellants claimed adverse possession. The burden undoubtedly lies on them to plead and prove that they remained in possession in their own right adverse to the respondents. .... Possession is prima facie evidence of title. Party claiming adverse possession must prove that his possession mast be “nee vi nee clam nee precario” i.e. 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.” 139. In Maharaja Sir Kesho Prasad Singh Bahadur (supra), it was held that in order to obtain a favourable finding of adverse possession, one must have to satisfy all the qualities of adequacy, continuity and exclusiveness. Reliance was placed on Kuthali Moothavur v. P. Kunharankutty, AIR 1922 PC 181 . 140. In Maharaja Sir Kesho Prasad Singh Bahadur (supra), it was held that in order to obtain a favourable finding of adverse possession, one must have to satisfy all the qualities of adequacy, continuity and exclusiveness. Reliance was placed on Kuthali Moothavur v. P. Kunharankutty, AIR 1922 PC 181 . 140. In the present case, in a very vague and cryptic manner, the plea of adverse possession has been taken in written statement. The defendant-appellant himself is not aware as to against whom he or his ancestors, as claimed, were holding property in dispute as alleged hostile possession. The exact time is also not there. It appears that the understanding of appellant was that mere long period of time of possession, if pleaded, would satisfy the requirement of adverse possession, if above period is more than 12 years. This is apparently against the well established legal requirement, as discussed in great detail above. 141. The defendant-appellant specifically pleaded that on persuasion of villagers his ancestors were permitted by Zamindar to occupy disputed land and that is how possession of defendant-appellant has continued. This was apparently a pleading of permissive possession and not hostile. Further, defendant-appellant did not adduce any evidence to show such permission granted by alleged Zamindar to ancestors of defendant-appellant to occupy disputed property. Further, no evidence has been led by defendant-appellant to show that construction over land in question was raised by predecessors of appellant or appellant himself. What has been done is that a defence has been taken and thereafter an attempt is being made to treat it as proved since that defence, according to appellant, has not been dislodged. This assumption is clearly erroneous. Plaintiffs-respondents have taken specific plea that property in question was owned by Zamindar, Ram Iqbal Singh having succeeded to property through his mother, Dharamraji, whose name was recorded in revenue records alongwith Balraji. Ram Iqbal Singh executed sale-deed dated 10.1.1973 in favour of plaintiffs-respondents. Ram Iqbal Singh appeared in witness box and supported the facts pleaded by plaintiffs-respondents. Thus, to my mind, initial onus stood discharged by plaintiffs-respondents and it shifted upon defendant to prove the facts pleaded by him, which he has failed. There is no pleading of adverse possession on the part of appellant in the manner required in law. 142. Ram Iqbal Singh appeared in witness box and supported the facts pleaded by plaintiffs-respondents. Thus, to my mind, initial onus stood discharged by plaintiffs-respondents and it shifted upon defendant to prove the facts pleaded by him, which he has failed. There is no pleading of adverse possession on the part of appellant in the manner required in law. 142. Moreover, assumption on the part of defendant-appellant that his plea of long standing possession would result in confirment of title upon him, is also fallacious inasmuch as if defendant-appellant otherwise did not hold title over disputed property, the same could not have been claimed by mere assumption of application of adverse possession or alleged long possession. Plea of adverse possession require to be established with substantive pleading and proof and it does not apply by default. Even the alleged long possession is not proved. 143. In the circumstances, in my view, the plea of adverse possession neither has been taken with sufficient facts pleaded in the written statement nor any question can arise to lead evidence for something which is not pleaded. 144. Thus looking to the question of title of defendant-appellant on disputed premises, in absence of any pleading to this effect as also evidence, I find no substance in the submission advanced by learned counsel for the appellant and I am clearly of the view that decision in Bondar Singh and others v. Nihal Singh and others (supra) does not help appellant in any manner. 145. The next authority cited by learned counsel for the appellant is Kulwant Kaur v. Gurdial Singh Mann (supra), which also does not help appellant in any manner. It only says that in second appeal filed under Section 100 C.P.C., Appellate Court shall not interfere with the findings of fact unless found perverse or where such findings stand vitiated on wrong test, on the basis of assumptions and conjectures. Since I do not find any perversity or any wrong assumption on the part of LAC is reversing judgment of Trial Court in respect to that part of issue 1 wherein Trial Court recorded its conclusion against plaintiff, despite holding him owner of land in dispute and hence decision in Kulwant Kaur v. Gurdial Singh Mann (supra) also does not help defendant-appellant in any manner. 146. 146. In view of aforesaid discussion, both questions formulated at the time of admission of appeal are answered against defendant-appellant and in favour of plaintiffs-respondents. 147. The appeal has no merit. Dismissed with costs. 148. Interim order, if any, stands vacated. ———————