JUDGMENT AND ORDER : Heard Mr. Y.M. Lokendro, learned counsel for the appellant/plaintiff and Mr. S. Dijeshwor, learned counsel for the respondent/defendant. 2. This is a second appeal directed against the judgment and decree dated 12.3.2013 passed by the Learned District Judge Manipur East in Civil Appeal No. 3 of 2012, which was instituted on an appeal filed by the appellant against the judgment and decree dated 03.02.2012 passed in O.S. No. 21 of 2009 by the learned Civil Judge, Junior Division, Imphal West. The appellant filed a suit in the Court of Civil Judge Junior Division, Imphal West (O.S. No. 21 of 2009) praying for permanent injunction to restraint the defendant(respondent in this case) from entering into what he claims his own land being under Patta No. 9 (old), 310 covered by C.S. Dag No. 645, measuring 0.38 acre and situated at new Village No. 83 Lamjaotongba under Imphal West Sub Division (hereinafter referred to as suit land) and disturbing his peaceful possession of the same by claiming as follows : 3. That, he purchased the suit land from one Langpoklakpam Tamphajao Singh on 03.02.1965 and on the same day a sale deed to that effect was executed and registered as registration No.640 in the office of Special Sub Registrar, Imphal with late Mohon Singh, younger brother of the land owner as attesting witness. After he purchased the land, he invested thousands of rupees for the development of the land, and constructed a dwelling house and out house on the eastern portion of the land and also planted various types of plants and seasonal vegetables from time to time. And in such manner he has been in possession of the land for the last 45 years without any disturbances from any quarter. 4. That, on 14.08.2008, he went to pay land revenue for the suit land and on that day he came to know that the name of Langpoklakpam Mohon Singh from Moiranghanuba Leirak was wrongly recorded in the record of rights of the suit land by way of inheritance from his father. After coming to know this fact, he filed an application before the Deputy Commissioner, Imphal West District for correction of the land record in respect of the suit land and the same was registered as Revenue Misc. Case No. 4 of 2008. After coming to know this fact, he filed an application before the Deputy Commissioner, Imphal West District for correction of the land record in respect of the suit land and the same was registered as Revenue Misc. Case No. 4 of 2008. Following the application, the Deputy Commissioner directed the S.D.O, Patsoi to enter his name (the plaintiff) in the record of rights of the suit land. In accordance with the order of the Deputy Commissioner, his name was recorded in the record of rights of the suit land. 5. However, on 04.03.2009 at 1.00 p.m. the defendant along with his men came to the suit land and tried to put up a fence on the boundaries of the suit land, but due to his timely action, the defendant and his men could not enter the suit land. Therefore, in order to prevent such occurrence in future, he approached the Court of Civil Judge, Junior Division, Imphal West for an order of permanent injunction for restraining the defendant, his men and privies from entering into the suit land. The defendant contested the suit and at the same time made a counter claim by claiming as follows : 6. That, the suit land belonged to his late father Langpoklakpam Munal Singh and on the death of his father on 15.08.1994 right and title over the same, by inheritance, has automatically devolved on him, therefore, he is the owner of the same and not the plaintiff. That the land purchased by the plaintiff from Langpoklakpam Tamphajao Singh did not include his land under C.S. Dag No.645 which he inherited from his father but it was wrongly included in the schedule appended to the sale deed of the land under Patta No. 82/308 covered by CS Dag No. 643, measuring 0.78 acre, situated at Village No. 83, Lamjaotongba, Imphal West District (the suit land). That in the schedule of the land purchased by the plaintiff instead of giving the land under CS Dag No. 644, the land of Langam Bilashini Devi and the land under CS Dag No. 645, land of Langpoklakpam Munal Singh (father of the defendant) as the eastern boundary, Moiranghanuba Leirak was wrongly given as the eastern boundary of the same which lies on further east of the aforesaid two lands. Even then, when the name of the plaintiff was mutated in the record of rights of the land under Patta No. 82/308 covered by CS Dag No. 643, the same did not include the suit land which according to him is under CS Dag No. 645. Patta No. 83/310 and measuring 0.38 acre. It is by taking advantage of this, that the plaintiff has claimed the suit land to be a part of the land he purchased from Shri Langpoklakpam Tamphajao Singh. The area purchased by the plaintiff is 0.78 acre covered by Dag No. 643 as per the registered sale deed and the land of the plaintiff (the suit land) is only 0.38. Therefore, if proper measurement and demarcation is done in respect of the plaintiff’s purchased land, it would be found that the land of the defendant is not included in the land purchased by him. 7. That for the sake of convenience in earning livelihood for the family, his father late Langpoklakpam Munal Singh left his land (suit land) with his family members including the defendant and stayed at Saiton Watha Lambi Anandpur in Bishnupur District but his father visited the suit land frequently and during one of those visits, the plaintiff requested his father to allow him to construct a Kutcha shed to reside in the suit land so as to enable him to vegetate the whole area of the land he purchased from Shri Langpoklakpam Tamphajao Singh. His father allowed him on his assurance that he would vacate the suit land as and when his father asked him to do so. The plaintiff, with that assurance he gave, was allowed to stay in the suit land. 8. That the name of his father, Shri Langpoklakpam Munal Singh was recorded in the land record of the suit land in 1960 and after he passed away in the year 1994, his name (defendant) was mutated in the land record by the learned S.D.C. Imphal West, vide order passed in Mutation Case No 307/SDC/IW(P) of 2009 on an application submitted by him. In that mutation case, objection of the plaintiff was taken into consideration but it was rejected by the learned S.D.C. and thereafter, his name was entered in the record of right of the suit land. 9. That the plaintiff filed a Misc. Application before the Deputy Commissioner, Imphal West which was registered as Misc. In that mutation case, objection of the plaintiff was taken into consideration but it was rejected by the learned S.D.C. and thereafter, his name was entered in the record of right of the suit land. 9. That the plaintiff filed a Misc. Application before the Deputy Commissioner, Imphal West which was registered as Misc. Case No. 4 of 2008 praying for record correction under Section 41 (2) of the MLR & LR Act 1960 and the same was proceeded ex parte and in that, the Deputy Commissioner, on the basis of the report of the S.D.O, Patsoi being No. 2/13/SDO/PSI/SEND/Case/07 dated 18.12.2008 passed an order dated 07.09.2009 by which the name of the plaintiff was mutated in the land record of the suit land. The defendant came to know of the same only when he went to the office of the S.D.C., Imphal West Patsoi on 28.10.209. Being aggrieved, he had field a revision petition before the Court of presiding officer, New Tribunal which registered the same as Revision Case No. 57 of 2009 (the case has been disposed during the pendency of the original suit before the trial court in favour of the defendant/respondent). 10. That on 04.12.2009 at about 12.45 p.m., he (defendant) along with his relatives and friends went to the suit land he had inherited from his father to construct his own dwelling house. But the plaintiff with the help of some local goons prevented him from doing the same and threatened him and his family members that if they do not leave the place they would face dire consequences. For fear of the loss of their lives, the defendant and his relatives left the place. It is submitted that it is the plaintiff who is preventing the defendant from entering his own land (suit land) which he inherited from his father, therefore, there is no reason to pass an injunction order against him. The respondent/defendant, therefore, prayed for a decree for evicting the appellant/plaintiff from the suit land and demolishing the structures constructed in the suit land and injunction preventing the plaintiff and his men from constructing any structures further, pending disposal of the counter claim. 11. After hearing the parties, the learned Civil Judge, Junior Division framed the following issues and recorded his findings, conclusion and drew the decree as follows : “15. Heard the ld. Counsel of the plaintiff, and the ld. 11. After hearing the parties, the learned Civil Judge, Junior Division framed the following issues and recorded his findings, conclusion and drew the decree as follows : “15. Heard the ld. Counsel of the plaintiff, and the ld. Counsel of the defendant. The plaintiff has exhibited the following documents- (i) Sale deed dt. 3.02.1965 (Ext. A/2). (ii) Certified copy of Jamabandi u/p 310(N) covered by Dag No. 645 measuring .38 acre, situate at village No. 83 - Lamjaotongba (Jamabandi of the suit land) (Ext. A/3). (iii) To whom it may concern (Ext. ¼). (iv) Order dt. 7.09.2009 of Revenue Misc. Case No. 4 of 2008 (Ext. A/5). The defendant has exhibited the following document : (i) Certified copy of the Jamabandi under patta No. 9/310, dag No. 645 measuring an area of 0.38 acre, situated at Village No. 83 Lamjaotongba, i.e. the suit land standing in the name of Langpoklakpam Muhal Singh. (Ext. B/2). (ii) A certified copy of Trace Map dt. 21.07.08 showing land under dag no. 643, 644 and 645 (Ext. B/3). (iii) A copy of the Invitation Card for the Shradha Ceremony of Langpoklakpam Muhal Singh. (Ext. B/4). (iv) Certified copy of order dt. 29 January, 2011, passed by the Revenue Tribunal, Manipur in Revenue Revision Case No. 57 of 2009. (Ext. B/5). (v) patta no. Certified copy of the Jamabandi of the suit land. (Ext. B/6). (vi) Certified cancelled and uncancelled Jamabandi Patta under 9(old) 308 (new) covered by C.S. Dag No. 643, measuring 0.78 acre of village no. 0.83 Lamjaotongba. (Ext. B/7). 16. Both parties have examined three witness each. P.W. No. 1 Soubam Kullachandra Singh is the plaintiff. P.W. No. 2 Moirangthem Yaima Meetei is from the locality of the plaintiff. D.W. No. 1 is Langpoklakpam Ibocha Singh the defendant no. 1. D.W. No. 2 Langpoklakpam Tonjao Singh is a resident of the moirang Hanuba Leirak. D.W. No. 3 Langpoklakpam (O) Mani Devi is also a resident of Moirang Hanuba Leirak. ISSUE NO. 1. Whether Langpokpam Tamphajao Singh was the original owner of the suit land ? If not, whether Langpoklakpam Muhal Singh was the original owner of the suit land ? 17. The genuineness of Ext. A/2 which is the sale deed dt. 30.02.1965 is not disputed. As per Ext. A/2, the plaintiff had purchased all homestead land under patta no. 83/308, measuring an area of 0.78 acre from Shri Langpokpam Tamphajao Singh. If not, whether Langpoklakpam Muhal Singh was the original owner of the suit land ? 17. The genuineness of Ext. A/2 which is the sale deed dt. 30.02.1965 is not disputed. As per Ext. A/2, the plaintiff had purchased all homestead land under patta no. 83/308, measuring an area of 0.78 acre from Shri Langpokpam Tamphajao Singh. The schedule of the said homestead land is given in Ext. A/2 as follow : On the north Homestead land of Watham Bokul Singh and Langam Dhonbabu Singh; On the South Homestead land of Watham Gourahari Singh; On the East Moirang Hanuba Leirak; On the West Agricultural land of Wahengbam Gouro Singh. The boundaries of the suit land as given in the plaint is as follow : On the north Homestead land of Langpoklakpam Bokul Singh and Langam Dhonbabu Singhl; On the South Homestead land of Watham Gourahari Singh; On the East Moirang Hanuba Leirak; On the West Agricultural land of Wahengbam Gouro Singh. The present case is such that the suit land will be included within the homestead land measuring in Ext. A/2 if the said schedule is correct i.e. if it is bounded on the eastern side by the Moirang Hanuba Leirak. This fact is clear from perusal of Ext. B/3 which is a certified copy of the trace map. The name of L. Muhon Singh the father of the defendant appears as an attesting witness on the original copy of sale deed dt. 03.02.1965. 16. It is the contention of the ld. Counsel of the plaintiff that all the P.Ws. had deposed that the suit land was purchased from Langpoklakpam Tamphajao by the plaintiff. He further contended that if Langpoklakpam Tamphajao was not the owner of the suit land, he could not have possibly sold it to the plaintiff in the presence of the Langpoklakpam Muhal Singh. 17. Ld. Counsel of the defendant on the other hand raised the question why the name of the plaintiff was not recorded in the records of rights of the suit land at the same time when his name was mutated in respect of land in Ext. B/7, if the suit land at all belonged to Langpoklakpam Tamphajao. 18. Whether the suit land belonged to Lampoklakpam Tamphajao or not has to be proved by documents. The statements of P.Ws. B/7, if the suit land at all belonged to Langpoklakpam Tamphajao. 18. Whether the suit land belonged to Lampoklakpam Tamphajao or not has to be proved by documents. The statements of P.Ws. regarding ownership of the suit land are at best their opinions in the absence of any documents upon which they based their statements. 19. The plaintiff has not filed any document to show the suit land originally belonged to Langpokpam Tamphajao Singh. The sale deed in Ext. A/2 was made between the plaintiff and Langpokpam Tamphajao Singh. The contents of Ext. A/2 do not prove that the suit land belonged to Langpokpam Tamphajao Singh. At best it can only mean late Langpokpam Tamphajao Singh claimed the land transferred by Ext. A/2 as his. The claim of a person cannot prove anything. The fact that late L. Muhon Singh, the father of the defendant was an attesting witness to the sale deed cannot mean late L. Muhon Singh admitted the correctness of the contents of Ext. A/2. He was merely a witness to the execution of the said sale deed and not a party to the sale. 20. The plaintiff ought to produce land records showing Langpokpam Tamphajao Singh was the owner of the suit land as it is not the case of the plaintiff that the sale deed was made before any land survey was done. The plaintiff has failed to discharge his burden of proof on the issue. 21. Ext. B/5 is a certified copy of order dt. 29 January, 2011, passed by the Revenue Tribunal, Manipur in Revenue Revision Case No. 57 of 2009. Vide the said order of the Revenue Tribunal passed during the pendency of this suit land counter claim, the order dt. 7.09.2009 of the Deputy Commission, Imphal West in Revenue Misc. Case No. 4/2008 was set aside. Hence, a competent court has validated the recording of the name of Langpoklakpam Muhal Singh (or Muhon Singh) in the land records of the suit land. There is no escape owner of the suit land being the original recorded pattadar and presumptive possessor of the suit land. 23. Hence first part of issue no. 1 is answered in the negative and the second part in the affirmative. ISSUE NO. 2 : Whether the plaintiff had purchased the suit land from Langpoklakpam Tamphajao Singh by executing the sale deed bearing no. 640 dt. 23. Hence first part of issue no. 1 is answered in the negative and the second part in the affirmative. ISSUE NO. 2 : Whether the plaintiff had purchased the suit land from Langpoklakpam Tamphajao Singh by executing the sale deed bearing no. 640 dt. 3.02.1965 of the special Sub-Registrar Imphal? 24. In view of my finding of issue no. 1, there can be only one conclusion i.e. the suit land was not purchased from Tamphajao Singh by the sale deed in question. Also my finding of issue no. 3 later, will lead to the same conclusion. ISSUE NO. 3 : Whether the schedule of the land given in the sale deed dt. 3.02.1965 is correct or not ? 25. It was submitted by the ld. Counsel of the plaintiff that D.W. No. 1 and 3 admitted during their cross examination that the suit land was included in the land purchased by the plaintiff from Langpoklakpam Tamphajao Singh. However, I do not find any statement of the D.Ws. which suggest they admitted that the schedule of the land given in Ext. A/2 is correct. Saying the suit land was included in the schedule of the land given in Ext. A/2 is one thing and saying the said schedule is correct is another. 26. The fact that all the P.Ws. had consistently described the boundaries of the land purchased by the plaintiff from Langpoklakpam Tamphajao Singh vide Ext. A/2 in such a way to include the suit land does not amount to anything. The total area transferred by it was 0.78 acre. The area under Dag No. 645 and 543 are respectively 0.38 and 0.78 acre as shown by both Ext. A/4 and Ext. B/7. The combined area is more than what was purportedly transferred by the said sale deed. 27. Ld. Counsel of the plaintiff also submitted that if the patta numbers and dag numbers are infirm, then the schedule of the land will prevailed as per Order VII, Rule 3 CPC. I find the argument unsustainable. Order VII Rule 3 deals with description of immovable property in plaint. It deals with how the plaint should be drafted in such cases involving immovable property. It is not a rule of evidence. I find the argument unsustainable. Order VII Rule 3 deals with description of immovable property in plaint. It deals with how the plaint should be drafted in such cases involving immovable property. It is not a rule of evidence. I fail to see how Order VII Rule 3 can possibly be of any assistance to determining which one will prevail in case of inconsistency between the area of land and its schedule in a deed of transfer. 28. Further Ext. B/7 which is a certified cancelled and uncancelled Jamabandi Patta under patta no. 9(old) 308 (new) covered by C.S. Dag No. 643 measuring 0.78 acre of village no. 83 Lanjaotongba shows the name of the plaintiff as the recorded pattadar. This is consistent with the sale deed Ext. A/2. There is nothing to indicate Ext. A/2 pertains to other land apart from the land mentioned in Ext. B/7. 29. Ld. Counsel of the defendant also rightly pointed out the fact that there is no material to show the Dags under 643 and 645 were one part of the same dag which was later bifurcated into two different Dags having separate patta numbers, a fact which was also noted by the Revenue Tribunal in its order dt. 29.01.11 (Ext. B/5). 30. Also, in view of my finding in issue no. 1, Langpoklakpam Tamphajao Singh could not sell land that did not belong to him. Therefore, the schedule of the land given in the sale deed dt. 3.02.1965 cannot be correct. The issue no. 3 has is answered in the negative. ISSUE NO. 4 : Since when has the plaintiff been possessing the suit land and whether the plaintiff has been possessing it permissively or not? 31. That the suit land is at present being possessed by the plaintiff is not disputed. However, the nature of possession and the length of time are disputed facts. 32. In his affidavit the plaintiff as P.W. no. 1 had stated that he purchased the suit land with delivery of possession from Langpoklakpam Tamphajao Singh. During his cross-examination, he denied that he resided at the suit land as a permissive possessor of L. Muhon Singh. He also denied that L. Muhon Singh used to frequently visit the suit land. 33. In his affidavit the plaintiff as P.W. no. 1 had stated that he purchased the suit land with delivery of possession from Langpoklakpam Tamphajao Singh. During his cross-examination, he denied that he resided at the suit land as a permissive possessor of L. Muhon Singh. He also denied that L. Muhon Singh used to frequently visit the suit land. 33. Moirangthem Yaima Meetei, the P.W. No. 2, among others, stated that the plaintiff has been possessing the suit land without disturbance from any quarter for the last 45 years. During his cross-examination, he stated that his home was located some 300 feet east to the plaintiff’s house. He also stated he knew late Langpoklakpam Tamphajao Singh. 34. Khwairakpam Amuyaima Singh, the P.W. No. 3 who was 75 years of age as given in his affidavit stated that the plaintiff had purchased the suit land with delivery of possession from Langpoklakpam Tamphajao Singh about 45 years ago. During his cross-examination, he stated that the father of the defendant Shri Mohan used to dwell in the suit land by constructing some rough kutcha structure. He also stated his homestead land lied to the North of the plaintiff’s homestead land intervene by a house. 35. D.W. No. 1 stated in his affidavit that his deceased father during his life time left his land and stayed at Saiton Makha Lambi Anandpur to earn his livelihood with his family members including the D.W. No. 1. He also stated that before shifting his residence to Saiton, his father and family members resided in the suit land by constructing as kutcha structure [this particular averment is not made in the written statement or counter claim of the defendant and hence is inadmissible] 36. Langpoklakpam Tonjao Singh, the D.W. No. 2 stated at paragraph no. 6 of his affidavit that Langpoklakpam Muhal Singh after shifting of his residence, frequently came to the suit land to enquire the position of the suit land. He also stated that on one such visit, the plaintiff requested him to (permit) constructing kutcha sheds in his land so as to vegetate the whole land purchased by him from Langpoklakpam Tamphajao Singh. He continued to state that Langpoklakpam Muhal Singh agreed on the assurance of the plaintiff that he would vacate it as and when he was asked to do the same. He continued to state that Langpoklakpam Muhal Singh agreed on the assurance of the plaintiff that he would vacate it as and when he was asked to do the same. He further stated that since then, the plaintiff used to reside inside the suit land as permissive possessor. During his cross-examination, he stated that he did not know when Muhal visited the suit land after he had shifted to Saiton Makha Lambi Anandpur. He also stated he did not know when L. Muhal Singh talked with the plaintiff for the construction of kutcha shed. He also stated that he had no knowledge of the contents of paragraph no. 6 of his affidavit. 37. Langpoklakpam (O) Mani Devi, the D.W. No. 3 in her affidavit at paragraph no. 5 stated that the plaintiff has been residing in the suit land with the permission of the Langpoklakpam Muhal Singh. She also stated that Langpoklakpam Muhal Singh left the suit land about 40 years ago but often visited the suit land. She also stated that the Muhal Singh and the plaintiff were in good terms. However, she admitted during her cross-examination that she had never witnessed/seen the plaintiff and late L. Muhal Singh talking to each other. 38. The D.W. no. 1 or the rest of D.Ws. has not mentioned the exact year when Muhal Singh left the suit land. However, both the depositions of the P.W.s. as well as those of the D.Ws. suggest that the plaintiff has been possessing the suit land for a considerable length of time. The version of the defendant that the plaintiff was permissive possessor of Muhal Singh is not supported by any of his witnesses. D.W. no. 2 had stated that he had no knowledge of the contents of paragraph no. 6 of his affidavit while D.W. no. 3 admitted that she had never witnessed/seen the plaintiff and late Muhal Singh talking to each other. 39. Hence, the defendant has failed to discharge his burden of proving that the plaintiff was a permissive possessor of his deceased father Langpoklakpam Muhal Singh. 6 of his affidavit while D.W. no. 3 admitted that she had never witnessed/seen the plaintiff and late Muhal Singh talking to each other. 39. Hence, the defendant has failed to discharge his burden of proving that the plaintiff was a permissive possessor of his deceased father Langpoklakpam Muhal Singh. Given the depositions of the P.W.s which could not be shaken during their cross-examinations and the admitted fact of long possession of the of the suit land by the plaintiff, the preponderance of evidence is in favour of the fact that the plaintiff came to take possession of the suit land in 1965 as claimed by him. 40. Hence first part of the issue is answered to the effect that the plaintiff has been possessing the suit land since 1965. The second part is answered in the negative. ISSUE NO. 5 : Is there cause of action of the present suit or the counter claim? 41. In view of my finding of Issue no. 1, 2, and 3, the plaintiff is not the owner of the suit land. He has failed to show the legal basis of his possession of the suit land. On the other hand, the defendant being the legal heir of the original pattadar late Langpoklakpam Muhal Singh has a better title to the suit land. Hence, there is no cause of action of the present suit. 42. On the other hand, the defendant is the legal heir or a legal heir of his father who was the owner of the suit land. Hence by inheritance, he has rights and title over the suit land including the right to possess it. The plaintiff as P.W. No. 1 during his cross-examination had admitted that on 4.12.2009, the defendant and his men came to the suit land. He also stated that he did not permit them to settle inside the suit land however. The mere fact of the plaintiff instituting the suit will also show that the plaintiff resisted the defendant from taking possession of the suit land. Hence there is cause of action of the counter claim. ISSUE NO. 6: Whether the plaintiff and the defendant are entitled to the reliefs claimed? 43. In view of my findings of other issues, no relief prayed for can be granted to the plaintiff. 44. The defendant has proved his case. Hence there is cause of action of the counter claim. ISSUE NO. 6: Whether the plaintiff and the defendant are entitled to the reliefs claimed? 43. In view of my findings of other issues, no relief prayed for can be granted to the plaintiff. 44. The defendant has proved his case. In his written statement to the counter claim of the defendant, the plaintiff has not specifically disputed the existence of structures as described at schedule B and C of the counter claim. Hence, it is deemed to be admitted. 45. The fact that he failed to p rove issue no. 4 in his favour will not disentitle him to the relief of demolition and eviction. It is not the case of the plaintiff that his right over the suit land was perfected by adverse possession. 46. It is hereby ordered and declared that (i) the plaintiff is to be evicted from the suit land described in the schedule A of the counter claim appended below and the possession of the said land be given to the defendant. (ii) The structures mentioned at schedule B and C of the counter claim appended below are to be demolished, subject to payment of proper demolition fee by the defendant. The suit of the plaintiff is dismissed and the counter claim decreed with cost. B.C. shall prepare decree accordingly. Announced in open court Sd/- CJJD/IW” 12. Not satisfied with the judgment and decree of the learned Civil Judge (Jr. Divn.) as given above, the plaintiff/appellant filed the First appeal against the same before the learned District Judge, Manipur East assailing the judgment and decree on the following grounds (the grounds given here below are reproduced verbatim as given in the petition of the appellant / plaintiff): “GROUNDS (I) For that, the suit land is included in the purchased land vide sale deed dated 03.02.1965 being No. 640 of the Sub Registrar, Imphal. The Court below committed grave error in not appreciating the validity and relevancy of the Sale Deed, dated 03.02.1965 and as such the impugned judgment and decree is liable to set aside. (II) For that, it is admitted that the appellant is the possessor of the suit land since 1965 and not a permissive possessor of the suit land. This indicates that the suit land was purchased by the appellant. (II) For that, it is admitted that the appellant is the possessor of the suit land since 1965 and not a permissive possessor of the suit land. This indicates that the suit land was purchased by the appellant. Moreover the appellant has also a possessory right over the suit land and as such he could not be evicted from the suit land and therefore, the impugned judgment & decree is liable to be set aside. (III) For that, the impugned judgment and decree is based on the decision of the Revenue Tribunal, Manipur. The Revenue Tribunal, Manipur has no jurisdiction to decide right and title of the suit land and moreover decision of the Revenue Court is not binding to the Civil Court and as such the impugned judgment & decree is liable to be set aside. (IV) For that, the impugned judgment & decree is self contradictory and against the law and it cannot be sustainable in the eye of law and therefore the impugned judgment and decree is liable to be set aside. (V) For that, the court below has failed to appreciate the evidence of the witnesses and the written argument of the plaintiff and thus the Court had deliberately dismissed the suit and decreed the counter claim of the defendant on the inconsistence defence set up by the defendant. The impugned judgment & decree is bad in law and as such the same is liable to be set aside. (VI) For that, the defendant and his witnesses admitted that the suit land is included in the purchased land by the plaintiff from Langpoklakpam Tamphajao Singh. It ought to have decreed the suit even on the admission made by the defendant in his evidence and as such the impugned judgment and decree is liable to be set aside. (VII) For that, the other grounds will be urged at the time of hearing of this appeal. 3. That, the value of the suit was Rs. 5,000/- which is accepted by the trail court and the value of appeal is also same and court fees is being paid under Section 7(iv)(d) of the Court Fees Act, 1870 as extended to the State of Manipur. 3. That, the value of the suit was Rs. 5,000/- which is accepted by the trail court and the value of appeal is also same and court fees is being paid under Section 7(iv)(d) of the Court Fees Act, 1870 as extended to the State of Manipur. In the above facts and circumstances, the Hon’ble Court may be pleased to : (a) Admit this appeal; (b) Stay the impugned judgment and decree till the disposal of this appeal; (c) Call for records from the court below; (d) Set aside the impugned judgment and decree ; (e) Grant a decree for perpetual injunction as prayed in the suit in favour of the appellant thereby restraining the respondent and his privies, agent etc. (f) Cost of litigation, for the ends of justice.” 13. The learned District Judge, after hearing all the parties, passed the impugned judgment by which the judgment and decree of the learned Civil Judge (Jr. Divn.), Imphal West was upheld and dismissed the appeal as devoid of merit. Being aggrieved, the plaintiff/appellant has come to this Court with this second appeal. Before I take up the appeal and the substantial questions of law raised in this appeal, it would be appropriate to put on record the decision of the learned District Judge. Therefore, the same is reproduced as follows : 9. “ISSUE NO. 1: Issue No. 1 relates as to whether Langpoklakpam Tamphajao Singh was the original owner of the suit land and if not, whether the Langpoklakpam Muhal Singh was the original owner of the suit land. The burden to prove that the first part of this issue lies to the plaintiff and the second part of this issues lies to the defendant. The plaintiff described the suit land in the plaint as follows : “SCHEDULE OF LAND A homestead land under patta No. 310(new), covered by Dag No. 645 measuring an area of 0.38 acre, situated at village no. The plaintiff described the suit land in the plaint as follows : “SCHEDULE OF LAND A homestead land under patta No. 310(new), covered by Dag No. 645 measuring an area of 0.38 acre, situated at village no. 83-Lamjaotongba standing in the name of the plaintiff, is bounded as follows : On the North Homestead land of Langpoklakpam Bokul Singh and Langam Dhonbabu Singh; On the South Homestead land of Watham Gourahari Singh; On the East Moirang Hanuba Leirak; On the West Agricultural land of Wahengbam Gouro Singh.” The defendant, on the other hand, described the suit land in his counter claim as follows : SHEDULE - “A” A piece of homestead land measuring an area of 0.38 acre under patta No. 9/31(N), covered by C.S. Dag No. 645, situated at Village No.83-Lamjaotongba, which is bounded on the : North By the homestead land of Langam Bilashini Devi; South By the homestead land of Watham Gourahari Singh; East By the Moirang Hanuba Leirak; West By the land of the plaintiff (C.S. Dag No. 643).” 10. The main contention of the plaintiff / appellant is that the suit land originally belonged to Langpoklakpam Tamphajao Singh and he purchased the same by executing a Registered Sale Deed dated 0302.1965. The said Regd. Sale deed is produced by the plaintiff/appellant and the same is exhibited as Ext. A/2. As per the said Regd. Sale Deed dated03.02.1965 the land purchased by the plaintiff/appellant is a homestead land under patta No. 83/308 measuring 078 acre and described the schedule of the land as follows : SCHEDULE OF THE SAID HOMESTEAD LAND The said homestead land under patta no. 83/308 situated at Village No.83-Lamajaotongba is bounded as follows : On the North Homestead land of Watham Bokul Singh and Langam Dhonbabu Singh; On the South Homestead land of Watham Gourahari Singh; On the East Moirang Hanuba Leirak; On the West Agricultural land of Wahengbam Gouro Singh.” On the careful examination of description of land purchased by the appellant from one L. Tamphajao Singh by executing a Registered Sale Deed dated 03.02.1965 [Ext. A/2] and the description of suit land in the plaint, the patta no. and area are quite different in such a way that the patta no. found in Ext. A/2 is under patta No. 83/308 and area is 0.78 acre and whereas the patta no. found in the plaint is under patta no. A/2] and the description of suit land in the plaint, the patta no. and area are quite different in such a way that the patta no. found in Ext. A/2 is under patta No. 83/308 and area is 0.78 acre and whereas the patta no. found in the plaint is under patta no. 310 (new), covered by Dag No. 645 measuring an area of 0.38 acre. The contention of the defendant is that the suit land belonged to his father, L. Muhal Sigh and neither his father nor L. Kulachandra Singh, the elder brother of his father never transferred the suit land to the plaintiff at any point of time. 11. Learned counsel of the appellant has contended that as per Ext. A/2 the boundary of the land purchased is Moirang Hanuba Leirak and as such, the suit land is included within the purchased land by the appellant from the original owner Kulachandra Singh. It is also submitted by the ld. Counsel of the appellant that the title of the property should be on the basis of the titled acquired to the land and not by the entries in the Revenue records but the trial court wrongly based his findings on the entries made in the revenue records and the decision of the Revenue Tribunal who has no jurisdiction to decide the question of title. Ld. Counsel has also relied to the following case laws : 1. AIR 1996 SC 2786 : “The title of the property should be on the basis of the titled acquired to the land and not by mutation entries.” 2. AIR 1994 SC 227 : “Entries in Jamabandi - Evidentiary value of - They are not proof of title - Parties have to establish relationship or title to property” 3. AIR in 1986 SC 305 : “The person in possession of the property is entitled to maintain his possession and for that purpose is entitled to the use of reasonable force to keep away the trespasser.” 4. AIR 2009 SC 2966 : “Suit for possession - Burden of proof is on plaintiff to make out his title and entitlement to possession”. 5. AIR 2007 SC 2349 : “Dismissal of suit by giving contradictory findings regarding title of the plaintiff only on basis of entries in revenue records Liable to be set aside.” 6. AIR 2009 SC 2966 : “Suit for possession - Burden of proof is on plaintiff to make out his title and entitlement to possession”. 5. AIR 2007 SC 2349 : “Dismissal of suit by giving contradictory findings regarding title of the plaintiff only on basis of entries in revenue records Liable to be set aside.” 6. AIR 2007 SC 3169 : “A person cannot convey any title, which he himself does not possess.” 7. AIR 2007 SC 3169 : “Until the document is avoided or cancelled by proper declaration of duly registered documents remains valid and binds the parties.” 12. It is axiomatic from the documents produced by both the parties that there are two homestead lands. One homestead land is under patta no. 83/310 covered by C.S. Dag No. 645 measuring 0.38 acre (suit land) recorded in the name of L. Muhal Sigh and another homestead land is under Patta No. 83/308, covered by C.S. Dag No. 643 measuring 0.78 acre recorded in the name of L. Tamphajao Singh. As per Ext. A/2 the homestead land involved in the said sale transaction is the land under patta no. 83/308 covered by C.S. Dag No. 643 measuring .78 acre recorded in the name of Tamphajao Singh and not the suit land. The sale transaction made in between the appellant and late Tamphajao Singh was in the year 1965 i.e. just after the first survey operation in Manipur. There is no document in the record to show that the said two homestead lands were under a same patta and dag no. prior to execution of Ext. A/2. In other words, the said two homestead land have been in existence in the same manner since the first survey operation in Manipur which was started from 1960. It is settled principle of law that entries in Jamabandi has not evidentiary value of title for the person whose name is recorded and there should be a relationship to the title. In Manipur the first Survey operation was started ot conduct from the year, 1960 as per Manipur Land Revenue and Land Reforms Act, 1960. During the course of first survey operation verification was conducted by examining the title documents, if any produced by the parties and possession of the land and on the basis of that verification, Revenue records such Jamabandi pattas, Dag Chithas and Revenue Maps were prepared. During the course of first survey operation verification was conducted by examining the title documents, if any produced by the parties and possession of the land and on the basis of that verification, Revenue records such Jamabandi pattas, Dag Chithas and Revenue Maps were prepared. Thus, those revenue records prepared in the first survey operation after thorough verification may be presumed to have relationship of title of the person whose name was recorded unless contrary is proved. It is crystal clear that the plaintiff has failed to produce any documentary evidence or oral evidence to support the assertion that the suit land was belonged to late L. Tamphajao Singh. On the other hand, defendant has able to establish that the suit land is a separate land from the land mentioned in Ext. A/2 and it belonged to his father, L. Muhal Singh. In the result, I come to the conclusion that the plaintiffs failed to prove that the suit land belonged to late Tamphajao Singh. On the other hand, the defendant established that the suit land belonged to his father late L. Muhal Singh. Hence, the trial Court rightly held the first part of Issue no. 1 in negative and the second part in affirmative. 13. ISSUE NO.2 : Issue No. 2 relates to whether the plaintiff had purchased the suit land from Langpoklakpam Tamphajao Singh by executing the sale deed bearing No. 640 dt. 3.2.1965 of the Special Sub-Registrar, Imphal. In issue no. 1 it is held that the suit land did not belong to late L. Tamphajao Singh and thus, the question of purchasing the suit land from L. Tamphajao Singh by the plaintiff/appellant will not arise at all. Hence, there is no interference to the finding of the trial Court. 13. ISSUE NO. 3 : Issue No. 3 relates as to whether the schedule of the suit land in the sale deed dt. 3.2.1965 is correct or not. The contention of the appellant / plaintiff is that as per Ext. A/2 the eastern boundary of the land purchased by him “Moirang Hanuba Leirak” and thus, the suit land is included to the land purchased by him from late Tamphajao Singh. Ld. Counsel has also submitted that D.Ws. 3.2.1965 is correct or not. The contention of the appellant / plaintiff is that as per Ext. A/2 the eastern boundary of the land purchased by him “Moirang Hanuba Leirak” and thus, the suit land is included to the land purchased by him from late Tamphajao Singh. Ld. Counsel has also submitted that D.Ws. are also admitted in the cross examination that the suit land is included in the land purchased by the appellant and thus, this issue is wrongly decided by the trial Court. It is true that as per Ext. A/2 the eastern boundary of the land purchased by the appellant is reflected as ‘Moirang Hanuba Leirak”. However, Ext. B/3, the Trace Map of Village No. 83-Lamjaotongba of the year 1960-61, shows that on the eastern side of the land under Dag No. 643, the purchased land of the appellant under Ext. A/2, there lies two homestead lands under Dag Nos. 644 and 645. Further, in issue no. 1, it has been decided that the suit land did not belong to late Tamphajao Singh from whom the plaintiff / appellant purchased the land described in Ext. A/2. Moreover, the witnesses produced by both the parties are not the persons who participated at the time of execution and registration of Ext. A/2 and thus, their testimonies as regards the land purchased under Ect. A/2 will have no value being hearsay evidences. In the result, I am of the considered view that the Trial Court rightly held that the schedule of the land given in the sale deed dated 03.02.1965 is not correct. 14. ISSUE NO. 4 : Issue No. 4 relates as to since when ahs the plaintiff been possessing the suit land and whether the plaintiff has been possessing it permissively or not. It is an admitted fact that the plaintiff/appellant has been in possession of the suit land but the contention of the defendant is that the possession of the plaintiff is permissive possession through his father since during his life time living at Saiton Makha Lambi Anandpur to earn his livelihood. It is an admitted fact that the plaintiff/appellant has been in possession of the suit land but the contention of the defendant is that the possession of the plaintiff is permissive possession through his father since during his life time living at Saiton Makha Lambi Anandpur to earn his livelihood. The Trial Court after thorough discussion of the oral evidences of both the parties observed that the plaintiff has been able to establish that he has been in possession of the suit land and the defendant failed to prove that the possession of the plaintiff over the suit land is permissive possession through his father, late Muhal Singh. I have also gone through the testimonies of the P.Ws and D.Ws. and I do agree with the finding of the trial court of this issue no. 4. But the important question is as to whether any right or title is created to the plaintiff by his long possession over the suit land. The case of the plaintiff/appellant is based to Ext. A/2, a Registered Sale Deed for purchasing a homestead land described in the said Sale Deed, by claiming that the boundary described of the eastern side in the said Ext. A/2 is Moirang Hanua Leirak and accordingly, it includes the suit land which lies on the adjacent west of Moirang Hanuba Leirak. So, the case of the plaintiff/appellant is not on the basis, adverse possession in respect of the suit land. In the above issues no. 1, 2k and 3 it has been decided that the suit land did not belong to late L. Tamphajao Singh from whom the plaintiff claimed to purchase the suit land; the land purchased by the plaintiff by executing Ext.A/2 is not the suit land and the boundary description given in the schedule is not correct. The plaintiff/appellant may possess the suit land since 1965 but no legal right or title will be created to him unless he establish that he possessed the suit land adversely against the possession or establish his adverse possession against the defendant, no legal right or title will be created to the plaintiff/appellant in respect of the suit land. Hence, this issue is decided accordingly. 15. ISSUE NO. 5 : Issue No. 5 relates to cause of action of the suit or the counter claim. Hence, this issue is decided accordingly. 15. ISSUE NO. 5 : Issue No. 5 relates to cause of action of the suit or the counter claim. In view of the findings made in the above issues, I come to the conclusion that the plaintiff has no cause of action to bring the present suit against the defendant and on the other hand, the defendant has cause of action to bring counter claim against the plaintiff. Hence, there is no interference to the finding of the trial court. 16. ISSUE NO. 6 : Issue No. 6 relates to the reliefs claimed by both parties. In view of the findings made in the above issues, I come to the conclusion that the plaintiff/appellant is not entitled to the reliefs claimed and on the other hand, the defendant is entitled to the reliefs claimed. The case laws relied by the learned counsel of the appellants are not in support of the appellant. Hence, there is no ground for interference to the impugned order. Accordingly, the present appeal is dismissed as devoid of merit. The parties are to bear their own costs. Return the case record of the Trial Court along with a copy of this judgment. Judgment and order is signed, sealed and announced in the open Court on this 12th of March, 2013. Sd/- District Judge, Manipur East” 14. The main contention of the appellant/plaintiff in this Second Appeal is that inspite of the finding of the trial court that he has been in possession of the suit land for 45 (forty five) years openly and visibly by constructing his dwelling house and that too not as permissive possessor, and concurrence of the same by himself, the learned District Judge, Manipur East (First Appellate Court) wrongly upheld judgement of the learned Civil Judge (Jr. Divn.), Imphal West and dismissed his appeal. Therefore, the judgement of the trial court and the first appellate court deserves to be set aside. Divn.), Imphal West and dismissed his appeal. Therefore, the judgement of the trial court and the first appellate court deserves to be set aside. Based on the plea of the appellant, facts and circumstances of the case, it was felt that the following substantial questions of law raised by the petitioner/appellant needs to be decided : “The substantial questions of law raised in the present appeal are : (1) Whether long possession of the suit land by the plaintiff for a continuous period of 45 years openly, visibly and independently and exclusively against the defendant, would shut the right of the defendant to evict the plaintiff, or as to whether long possession of the suit land by the plaintiff would ripen into ownership of the suit land or whether any action by the defendant, who has all along been a silent witness to act of the plaintiff in occupying the suit land for the last 45 years without initiating any act to eject the plaintiff, would be barred by the principles of waiver, estoppel and acquiescence? (2) Can the plaintiff who is in possession of the suit land for 45 years be deprived of the right accruing on account of law of prescription merely on the ground that the plaintiff omitted to use the expression adverse possession in the pleading?” 15. In support of the case of the appellant/plaintiff it is submitted by his learned counsel that the finding of the learned Trial Court in Issue No. 4 which was confirmed by the learned District Judge in the judgment impugned herein has proved that the petitioner has been in adverse possession of the suit land since 1965. Therefore, the conclusion drawn by both the learned Trial Court and First Appellate Court that the appellant /plaintiff did not take the plea of adverse possession before the trial court, therefore, cannot be given the benefit of it is erroneous and not according to established principle of law. The learned Counsel cited the judgment of Hon’ble Supreme Court passed on 16.04.2004 in the case of “Karnataka Board of Wakf -v- Government of India & Ors., (2004) 10 SCC 779 ” in support of his submission. The learned Counsel cited the judgment of Hon’ble Supreme Court passed on 16.04.2004 in the case of “Karnataka Board of Wakf -v- Government of India & Ors., (2004) 10 SCC 779 ” in support of his submission. The portion of the judgment referred to and relied upon by the learned counsel is as follows : “In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is ‘nec vi, nec clam, nec precario’, that is peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is actual, visible, exclusive, hostile and continued over the statutory period. (Sec. S.M. Karim v. Bibi Sakinal AIR 1964 SC 1254 , Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC 567 ). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128 ). Plaintiff, filing a title suit should be very clear about the origin of the title over the property. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128 ). Plaintiff, filing a title suit should be very clear about the origin of the title over the property. He must specifically plead it. (See. S.M. Karim v. Bibi Sakinal AIR 1964 SC 1254 ). In P. Periasami v. P. Periathambi (1995) 6 SCC 23 this Court ruled that - “Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property”. The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to the case in hand, this Court held : “As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e. up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant’s claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant”. As we have already found, respondent obtained title under the provisions of Ancient Monuments Act. The element of 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 Appellant or the point of time of disposition. Consequently, the alternative plea of adverse possession by respondent is unsustainable. High Court ought not to have found the case in their favour on this ground. So are the aspects of earlier title of Appellant or the point of time of disposition. Consequently, the alternative plea of adverse possession by respondent is unsustainable. High Court ought not to have found the case in their favour on this ground. In the result, these appeals stand dismissed.” The findings of the learned Trial Court in Issue No. 4 which were concurred by the learned District Judge in the impugned order are already given above. 16. Further, the learned counsel by referring to the contents of Para No. 2 and 3 of the plaint of the plaintiff in Original Suit No. 21 of 2009 submitted that though the words “adverse possession” was not mention in the plaint all the ingredients that would show that his claim of title of ownership over the suit land was based on adverse possession also was stated. Therefore, merely not mentioning the word adverse possession will not exclude the appellant/plaintiff from claiming title and ownership of the suit land by adverse possession in the suit. For better appreciation of the learned counsels’ submissions, the content of the 2 (two) paragraphs of the plaint are reproduced here below : “2. That, the plaintiff had purchased the suit land from Langpoklakpam Tamphajao Singh by executing a registered sale deed being No. 640 of the Special Sub-Registrar, Imphal. Thereafter, the plaintiff took the possession of the suit land and has been also paying revenue of it. 3. That, the plaintiff had reclaimed/developed the suit land by spending thousands of money and much human labour. The plaintiff constructed his dwelling house, out houses on the eastern portion of the land and also planted various types of plants and seasonal vegetables from time to time. Thus, the plaintiff has been possessing the suit land without any disturbance from any quarter till date for the last more than 45 (forty five) years. All the localities and surrounding people also know the purchased and possession of the suit land. The Pradhan of Langjing Achouba Gram Panchayat had also issued a certificate in this respect.” 17. Thus, the plaintiff has been possessing the suit land without any disturbance from any quarter till date for the last more than 45 (forty five) years. All the localities and surrounding people also know the purchased and possession of the suit land. The Pradhan of Langjing Achouba Gram Panchayat had also issued a certificate in this respect.” 17. In reply learned counsel for the defendant/respondent submitted that the appellant/plaintiff failed to establish his title and ownership over the suit land and balance of convenience in his favour before the Trial Court, because, his claim in the Trial Court was based on his plea that he purchased the suit land from one, Shri Langpoklakpam Tamphajao Singh and a registered sale deed which was executed to that effect. However, it was found that the land purchased by him is a different patta land and not the suit land. As such, his case was dismissed and the counter claim of the defendant/respondent was granted. Therefore, the appellant/plaintiff cannot now come around and introduce a new ground for his case. If he wanted to take that plea he should have done so in the trial court and not at this stage as that would amount to bringing a new cause of action. It is also submitted that in case the appellant/plaintiff is allowed to take that plea that he has been in adverse possession of the land it would not help his case as that would make the two pleadings of the appellant/plaintiff contradictory. The learned counsel further submitted that possession of a property, however long it may be, cannot give a person title and ownership unless he pleaded and prove that it is an adverse possession. Lastly, the learned counsel submitted that there is no substantial question of law involved in this appeal, therefore, the same deserves to be dismissed. Conclusion and reasons : 18. (i) It is a fact that the plaintiff by evidence has been shown to have been in possession of the suit land since 1965 by both the courts below but neither of the two courts stated that the nature of his possession has been adverse against the defendant/respondent. This may be seen from the findings and conclusions recorded by both the courts below; at issue no. This may be seen from the findings and conclusions recorded by both the courts below; at issue no. 4 and 6 of the judgment of the Civil Judge, (Junior Div.) I/W and at issue No. 4 of the 1st Appellate Court (District Judge, M/E). The judgments are already given above. It is a well settled principle of law that long duration of possession of a property does not entitle the possessor of ownership over the same unless adverse possession is specifically pleaded and the same is proved. The judgement of the Hon’ble Supreme Court passed in “Konda Lakshmana Bapuji -v- Government of A.P. & Ors.” 2002(3) SCC 258 para 53 cited by learned counsel for the respondent/defendant is applicable on this point : “The question of perfecting title by adverse possession is a mixed question of law and fact. The principle of law in regards to adverse possession is firmly established. It is well settled proposition that mere possession of land, however, long it may be would not ripen into possessory title unless the possessor has animus possidendi to hold the land adverse to the title of the true owner. It is true that assertion of title to the land in dispute by the possessor would in an appropriate case, be sufficient indication of the animus possidendi to hold adverse to the title of the true owner. But such an assertion of title must be clear and unequivocal though it need not be addressed to the real owner. For reckoning the statutory period to perfect title by prescription both possession as well as the animus possidendi must be shown to exist. But such an assertion of title must be clear and unequivocal though it need not be addressed to the real owner. For reckoning the statutory period to perfect title by prescription both possession as well as the animus possidendi must be shown to exist. Where, however, at the commencement of the possession there is no animus possidendi, the period for the purpose of reckoning adverse possession will commence from the date when both the actual possession and assertion of title by the possessor are shown to exist.” (ii) From perusal of the pleadings of the plaintiff/appellant in the Civil Court specially the 2 (two) paragraphs i.e. Para No. 2 and 3 of the same referred to by the learned counsel of the appellant/plaintiff, in his effort to show that though, the word adverse possession was not mentioned the facts and circumstances that constitute the same were stated in the plaint of the appellant/plaintiff, one can neither see in those two paragraphs pleading of adverse possession nor can it be inferred or read into it. Further, in the issue No.4 framed and dealt with by the learned Trial Court which is referred to by the learned counsel of the appellant/plaintiff in support of his contention that he has been in possession of the suit land for 45 years has been found to be true by the trial court, the question of adverse possession was not considered at all by the trial court and no finding or findings was also recorded in respect of the same. To make it clear, since adverse possession was not pleaded by the appellant/plaintiff, no issue was framed on it in the Trial Court, and therefore, no finding was recorded. The appellant/plaintiff, as such, can no longer raise the same at this stage. (iii) The question of adverse possession is a mixed question of fact and law; therefore, the same should have been pleaded and proved in the Trial Court. This court in exercise of the power of appeal cannot embark on recording of evidence and also cannot take up a new plea of facts. The case of appellant/plaintiff, as can be gathered from the record, is based on his claim that he acquired the suit land by purchase through a registered sale deed. This court in exercise of the power of appeal cannot embark on recording of evidence and also cannot take up a new plea of facts. The case of appellant/plaintiff, as can be gathered from the record, is based on his claim that he acquired the suit land by purchase through a registered sale deed. If he wanted to take the benefit of his long possession of the suit land as pleaded now he should have taken the plea clearly and specifically before the trial court instead of taking the plea that he purchased the suit land and since then he has been in possession of the same. Having not done so the appellant/plaintiff has missed the opportunity. Therefore, the contention of the learned counsel of the defendant/respondent that the question of taking up the question of law raised by the appellant/plaintiff does not arise in this second appeal, is in tune with the established principle of law, therefore, I agree with it. This principle of law is supported by the judgements cited by the learned counsel of the respondent/defendant. D.N. Venkatarayappa and Another v. State of Karnataka and Others (1997) 7 SCC 567 : “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.” (iv) Further, the first step for successful claim of title by adverse possession is that the claimant must admit that the suit land belongs to another person, but he has entered with the intention of establishing his ownership over the same by dispossessing him and depriving him of the same. Thereafter, he must show and prove that he has been in possession of the suit land by dispossession of the rightful owner continuously and for the time period required by law. In this case, as per the pleading in the plaint of the appellant/plaintiff, the claim of the appellant/plaintiff is that he purchased the land and thereafter, entered into it and possessed the same. In this case, as per the pleading in the plaint of the appellant/plaintiff, the claim of the appellant/plaintiff is that he purchased the land and thereafter, entered into it and possessed the same. It would be contradictory and not complementary for the appellant/plaintiff to plead both, that he purchased the suit land so he has been in possession of the same for so long and at the same time plead that he has been in adverse possession of the same by dispossessing the owner for a long time. Therefore, if the appellant/plaintiff were to take the plea of adverse possession he must first give up the plea that he bought the land and instead plead that he entered the suit land and possessed it for such time as claimed by him, adversely against the interest of the respondent/defendant openly and peacefully. I am of the opinion that this view is in line with the judgement of the Hon’ble Supreme Court in Karnataka Board of Wakf -v- Govt. of India reported in (2004) SCC 779, which is cited by the appellant/plaintiff also, relevant Para 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 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”. In view of the reasons given above, it is hereby held that the question of adverse possession can no longer be a question of law that can be considered and determined in this second appeal. Therefore, possession of the suit land by the appellant/plaintiff, however long it may have been, cannot ripen into ownership of the same. In view of the reasons given above, it is hereby held that the question of adverse possession can no longer be a question of law that can be considered and determined in this second appeal. Therefore, possession of the suit land by the appellant/plaintiff, however long it may have been, cannot ripen into ownership of the same. Thus, it cannot deprive the respondent/defendant of his title and ownership over the suit land and also cannot shut his right to evict the appellant/plaintiff. Therefore, I find no reason to interfere with the judgements of the courts below. With this, the appeal is dismissed.