JUDGMENT : SIDDHARTHA CHATTOPADHYAY, J. 1. Initially two second appeals were preferred from a common judgment, by which the counter claim filed by respondent was decreed and the suit filed by the present appellants was dismissed. Both the appeals were affirmed by First Appellate Court. 2. Thereafter, the plaintiff/appellants do not like to pursue the second appeal by which his suit was dismissed, but he pursued second appeal in which the defendant's/respondent's counter claim was decreed followed by eviction order. 3. Doubting the correctness and legality of the said judgments of the learned Trial Court as well as the First Appellate Court, the plaintiff/appellant has filed this second appeal. 4. Factual scenario is required to be recapitulated. Shorn of unnecessary details, the plaintiff's case is such that their predecessor one Mumtaz Ali, who happens to be the husband of plaintiff No. 1 and the plaintiff Nos. 2 to 4, are the children of the said Mumtaz Ali since deceased. The suit land bearing survey No. 111/15 measuring total area of 2000 Sq. Ft. was originally purchased by the Grand Mother of the plaintiff Nos. 2 to 4, who happens to be the mother-in-law of the plaintiff No. 1. In the year 1965 the father of the plaintiff/appellant Nos. 2 to 4 went to mainland and at that time he asked the husband of his sister namely Abdul Karim to take care of the said land. In the year 1972, the said Mumtaz Ali came back from mainland and started residing with the present appellant and his children in the said land. It has been specifically pleaded that the plaintiff had demolished the old structure constructed by her Grand Mother and since then the appellants are residing on the suit land. After the sad demise of Mumtaz Ali, the appellants approached Abdul Karim to get the land mutated in their name and initially Abdul Karim agreed to, but ultimately did not adhere to the request of the plaintiff/appellants. Then the plaintiff decided to settle her claim with Abdul Karim and also decided to take steps for mutation of the land. Subsequently they came to know that the defendant/respondent purchased the land in the year 1986, but in spite of that they are in continuous possession for a long time. Then the plaintiff decided to settle her claim with Abdul Karim and also decided to take steps for mutation of the land. Subsequently they came to know that the defendant/respondent purchased the land in the year 1986, but in spite of that they are in continuous possession for a long time. He had been paying municipal rents and taxes and also had undertaken to repair the said building and also made addition and alteration thereto. They got water tap connection and had been paying water bill for the same. In the year 2003 the appellant suddenly came to know that the respondent is trying to sell the land to some third person and when they approached the defendant, the said defendant/respondent categorically asserted that she had every right to sell the same. According to the appellants, they are in possession since 1972 and as a result, they have acquired a perfect title under the style of adverse possession. 5. After getting notice from the learned Trial Court, the defendant/respondent appeared therein and contended that she has purchased the suit land long back from Abdul Karim and has been in possession. She further averred that she was a teacher and had been imparting education in government schools and her job was transferable in nature. She has claimed the title of the property as well as by filling counter claim she wanted to get the property and also to evict the plaintiff/appellants from the suit property. Her specific case is such that she has purchased the property from Abdul Karim after observing the codal formalities at a consideration of Rs. 30,000/- and it was duly registered before the Sub Registrar on 14.02.1986 She also asserted that before selling the land, the original owner Abdul Karim obtained sale permission from the competent authority in 1984. She has mutated her name by the order of Tehsildar and before mutation Tehsildar has affixed notice in Form J dated 25.04.1986 The specific case of the defendant is also such that the appellant No. 1 had approached her for accommodation because she could not afford to maintain her five children. Out of sympathy, the defendant/respondent allowed her to stay in the suit land. Not only that as the plaintiff had been looking after the said property she used to pay some remuneration to her also. Out of sympathy, the defendant/respondent allowed her to stay in the suit land. Not only that as the plaintiff had been looking after the said property she used to pay some remuneration to her also. For the purpose of purchasing the said land she had taken loan from her office and executed a mortgage deed in favour of the Administration which was also registered by the Sub Registrar, Port Blair on 11.02.2003 After paying the whole principal amount along with the interest, she got back the mortgage deed and a certificate has been issued by the Tehsildar regarding ‘non-encumbrance’. 6. According to the respondent, she is the rightful owner and has been in possession and the so called possession of the plaintiff/appellants are just possession under the style of ‘permissive possession’. 7. It appears from the judgment of the learned Trial Court that the said Court had framed the issues and recorded evidence of both sides. After recording evidence of the respective parties, the Trial Court has passed the decree in respect of counter claim filed by the defendant/respondent and dismissed the suit of the plaintiff. That finding was challenged before the First Appellate Court, who also after a threadbare discussion and after appreciation of evidence has affirmed the said finding of the learned Trial Court. 8. At the very outset, learned counsel Mr. K.M.B Jayapal appearing on behalf of the appellant submitted that both the Courts below failed to appreciate the evidence of the plaintiff/appellant in its proper perspective and particularly in regard to possession. He further contended that he had produced electricity bills, water tax in support of his possession and he has inducted a tenant who used to pay rent to him. 9. As against this learned Counsel Ms. A.S Zinu appearing on behalf of the respondent submitted that if both the Courts below came to a same finding after proper appreciation of evidence, then there is a little scope to appreciate the evidence at this stage. 10. After hearing submission of the rival parties, it seems to me that the fate of the appeal hinges only on the issue if the appellant had been able to prove the case that he perfected his right and title by adverse possession. 11. 10. After hearing submission of the rival parties, it seems to me that the fate of the appeal hinges only on the issue if the appellant had been able to prove the case that he perfected his right and title by adverse possession. 11. It is axiomatic truth that the plea of ‘adverse possession’ is not absolutely a pure question of law, but blended with the factual aspect along with the flavour of law. 12. Only for that purpose, in such a case, evidence on this point is required for further scrutiny. The plaintiffs/appellants' positive case is such that their predecessor had purchased the property and thereafter requested Abdul Karim to take care of the suit property. In course of evidence the plaintiff/appellants could not produce any title deed or mutation of their predecessor. Therefore, question of ownership does not lie. This apart, a person cannot claim ownership as well as adverse possession simultaneously. In course of evidence PW 1 clearly admitted that they own a house at Bambooflat and also admitted that suit land is not lying in the name of their grandfather. He has also referred to the notices issued to the appellant by the Municipal Council and also the electricity bills and one declaration of Vankat Rao, who claimed to be tenant under the plaintiff/appellant. 13. The most significant part is such that the appellant No. 1 i.e. to say Ashiya Khatoon did not depose in this case. PW 1 has produced some water tax bills which are marked exhibit 1 series and also filed two notices issued by Municipal Council and also the electricity bills. He has also filed the certificate issued by one Venkat Rao. The said Venkat Rao did not come to depose in favour of the plaintiff/appellant. He admitted that since their prayer for getting the land mutated was refused, his mother has filed the suit. In cross-examination he specified their stand ‘we are residing in the suit premises on the plea that it is the house of my grandmother. It is a fact that the suit land is still not in the name of my grandmother’. 14. Therefore the appellants' stand is such they are in possession as owner of the suit property which they had inherited from their grandmother. There is no evidence that they are in possession openly and by ousting the defendant/respondent. 15. PW 2 also reiterated same. 14. Therefore the appellants' stand is such they are in possession as owner of the suit property which they had inherited from their grandmother. There is no evidence that they are in possession openly and by ousting the defendant/respondent. 15. PW 2 also reiterated same. He said ‘Ramzan Ali and Ashiya Khatoon residing in the suit premises knowing that it is the house of their dadi’. He further stated in cross-examination that the plaintiff made addition and alteration to the said building by constructing a room to the old building and kitchen, but he could not substantiate his contention by producing any document that they have constructed or made any addition or alteration in the suit property. 16. PW 3 could not say when the plaintiff had made any addition or alteration and repair of the suit premises. She also clarified that she had seen Shivpathi (the defendant/respondent) in the suit property for two to three times. 17. Evidence of PW 4 is not much relevant for the purpose of adjudication of this case. 18. On the other hand, the defendant/respondent had clearly stated that how she got the property from Abdul Karim. She had produced her title deed, mutation and everything. Her contention is such that the plaintiff/appellants were in possession under the style of permissive possession. The plaintiff/appellant failed to establish that they are in possession and their possession is ‘nec vi, nec clam, nec precario”. The person who claims adverse possession must establish the following ingredients namely:— (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 he is in possession, (e) His possession was open and undisturbed. 19. It is perhaps needless to say ‘animus possidendi’ is the main ingredient of adverse possession. Unless the person proves that he has a requisite animus the period for prescription does not commence. 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. The sound qualities of a typical adverse possession lie in it being open, continuous and hostile. 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. The sound qualities of a typical adverse possession lie in it being open, continuous and hostile. The principle behind against such title 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 the claim of right colour of title. 20. Learned counsel appearing on behalf of the appellant the decision reported in (2002) 6 SCC 404 (YADARAO DAZIBA SHRAWANE v. NANILAL HARAK CHAND SHAH) wherein the Hon'ble Apex Court has come to a conclusion, that if judgment is based on misinterpretation of documentary evidence or ignored the material evidence in that case High Court can interfere in second appeal. From the discussion made above it is crystal clear that both the Courts below had considered documentary evidence in its proper perspectives and never ignored any material evidence. 21. Therefore, the said decision is not applicable in the present case. He has also relied on a decision reported in (2004) 10 SCC 779 (KARNATAKA BOARD of WAKF v. GOVERNMENT of INDIA). Practically in the said celebrated judgement, the Hon'ble Apex Court succinctly indicated five factors which a person should prove to sustain the claim on adverse possession, which this court has also already considered at the time of appreciation of the evidence. 22. Learned counsel appearing on behalf of the respondent relied on the decision reported in connection with the GURUDWARA SAHEB v. GRAM PANCHAYAT VILLAGE SRITHALA REPORTED in (2014) 1 SCC 669 , wherein the Hon'ble Apex Court in unequivocal terms held that plea of adverse possession may be used a shield and not as a sword. 23. Therefore, after considering the evidence and finding of the learned Trial Court as well as First Appellate Court I am of the view that there is hardly any scope to interfere with the said concurrent finding of the learned Courts below. The decree is to be drawn by the learned Registrar accordingly. 24. Accordingly this instant appeal merits rejection. 25. Let a copy of this judgment and LCR be sent to the learned Trial Court for information and taking necessary action.