JUDGMENT : 1. Judgment and decree dated 7th August, 2008 passed by the learned Additional District Judge, 1st Court at Bankura in Title Appeal No.97 of 2002 affirming the judgment and decree dated 7th June, 2002 passed by the learned Civil Judge (Junior Division), 1st Court at Bankura in Title Suit No.53 of 1993 is under challenge in the instant appeal under Section 100 of the Code of Civil Procedure (hereafter 'the CPC'). 2. One Amulya Ratan Mandal, predecessor-in-interest of the present appellants filed Title Suit No.53 of 1993 praying for declaration of title, recovery of possession and permanent injunction against the defendants/respondents asserting the following facts:- 3. One Srinath Rakhit and others were the original owners of plot No.1073 of mouza Jhantipahari in the District of Bankura. Srinath instituted Title Suit No.125 of 1926 for partition of his share against his co-sharers. The said suit was decreed by the learned subordinate judge, Additional Court, Bankura. By virtue of the decree passed in the said partition suit, Srinath exclusively became the owner of 9 bighas, 6 kathas and 9 chataks of land. Srinath died sometimes prior to 1950 leaving behind only married daughter, named, Damini Dasi. Damini had four sons namely, Radhanath, Amulya Ratan, Prafulla Kumar and Bibhuti Bhusan. After the death of Srinath, Damini acquired life interest in the said property, while her four sons become reversioners. By a registered deed of sale dated 16th November, 1951, Damini and her sons transferred 1.12 acres of land out of 1.31 acres of land in plot No.1073 to one Ram Kumar Kundu. Remaining .19 decimal of land remained under possession of Damini and her sons. This .19 decimal of land is the suit property and described as such herein below. It is further case of the plaintiffs/appellants that by an amicable partition with Ram Kumar Kundu, Damini and her sons were in possession of the suit property on the north western portion of plot No.1073. Suit property was subsequently butted and bounded by pucca boundary wall raised by Damini and her sons. Subsequently, the said Ram Kumar Kundu expired and his legal heirs sold out entire 1.12 acres of land situated in plot No.1073 in favour of defendants/respondents No.1-4. After purchase, the respondents claimed ownership of entire 1.31 acres of land denying the title and possession of the appellants. So was the suit. 4. Subsequently, the said Ram Kumar Kundu expired and his legal heirs sold out entire 1.12 acres of land situated in plot No.1073 in favour of defendants/respondents No.1-4. After purchase, the respondents claimed ownership of entire 1.31 acres of land denying the title and possession of the appellants. So was the suit. 4. The defendants/respondents contested the suit by filing written statement wherein and whereunder they denied entire allegation made out by the plaintiffs/appellants against them. It is however admitted by the defendants/respondents that Ram Kumar Kundu purchased 1.12 acres of land with specific boundary from Damini and her sons and the remaining portion of the land in plot No.1073, being the suit property, was retained by the said Damini and her sons. Subsequently by an oral purchase, Ram Kumar Kundu purchased the said 19 decimal of land from one of the co-sharers, namely Kalipada Rakshit. After purchase entire 1.31 acres of land was bounded by boundary wall by Ram Kumar Kundu and he started a business of husking mill on the said plot of land. However, the suit property was recorded wrongly in RS Record of Rights in the name of Damini Dasi. Subsequently, it was rectified by the competent authority and entire 1.31 acres of land were recorded in the name of Ram Kumar Kundu. According to respondents, Ram Kumar Kundu had been possessing the suit property openly, uninterruptedly and adversely against the interest of the original owners, namely, Damini and her sons and thereby, they acquired good and indefeasible title over the suit property by adverse possession. The respondents became the owners of entire 1.31 acres of land inclusive of suit property by purchase. 5. The learned trial court dismissed the suit on the grounds:- i. That the plaintiffs/appellants failed to prove possession over the suit property. ii. Since the plaintiffs/appellants failed to take legal recourse for recovery of possession of the suit property within the period of limitation, the suit was barred by limitation. iii. That the suit is barred under Section 34 of the Specific Relief Act and therefore not maintainable. iv. Description of the suit property is vague. 6. The learned Appellate Court affirmed the judgment and decree of dismissal of the said suit in appeal filed by the plaintiffs/appellants. As a result the first appeal was also dismissed. 7. iii. That the suit is barred under Section 34 of the Specific Relief Act and therefore not maintainable. iv. Description of the suit property is vague. 6. The learned Appellate Court affirmed the judgment and decree of dismissal of the said suit in appeal filed by the plaintiffs/appellants. As a result the first appeal was also dismissed. 7. The instant appeal was admitted for hearing under Order 41 Rule 11 of the Code of Civil Procedure on the following substantial questions of law:- 1. Whether the learned First Appellate Court committed substantial error of law in not holding that the defendants have failed to discharge their onus by proving dispossession of the plaintiff from the 'Ka' schedule land for more than twelve years prior to institution of the suit? 2. Whether the learned First Appellate Court committed substantial error of law in not considering the true import of Article 65 of the Limitation Act and also Section 34 of the Specific Relief Act? 8. At the time of final hearing of the appeal, respondents remained absent and unrepresentated even after service of notice upon them. Therefore this Court had no other alternative but to take up the appeal for hearing exparte. 9. I have already recorded the substantial questions of law framed by the Division Bench of this Court at the time of admission of the appeal. It is needless to say at the outset that the question as to whether a party to the suit is in possession of the suit property continuously for 12 years or more is a question of fact. However, the question as to whether such person had been possessing the property continuously, uninterruptedly, openly and adverse to the interest of the rightful owner and thereby acquired title by prescription is undoubtedly a substantial question of law to be determined in this appeal. In Ramlal & Anr. vs Phagua & Ors reported in (2006) 1 SCC 168 , the Supreme Court has held that when lower courts concurrently erred in appreciating the oral and documentary evidence properly the High Court is at liberty to re-appreciate the evidence on record to come to its own conclusion for reversing the orders passed by the Courts below. 10. In the instant case, both the courts below concurrently held that the appellants had right, title and interest over the suit property. 10. In the instant case, both the courts below concurrently held that the appellants had right, title and interest over the suit property. But they failed to prove that they had possession over the same. On the contrary, both the courts below found that the predecessor-in-interest of the defendants was not exclusive possession of entire property including the suit property and thus they acquired title over the suit property by adverse possession. Surprisingly enough, both the courts below did not make any attempt to adjudicate as to whether the appellants are entitled to recovery of possession of the suit property. The said issue was answered by the learned trial court stating, inter alia, that as the defendants/respondents were able to establish their possession adversely against the interest of the plaintiffs/appellants, the later was not entitled to any relief for recovery of possession. Neither the trial court nor the court of appeal in first instance considered the fact that the defendants/respondents even did not claim title over the suit property by adverse possession by filing counterclaim in the suit. 11. In view of such circumstances, in my considered opinion, reappreciation of evidence on record seems to be absolutely necessary. 12. During the trial of the suit, one Ashok Kumar Mandal one of the sons of original plaintiff Amulay Ratan Mandal deposed as PW1. PW2 Laxmikanta Mandal is the nephew of the plaintiff and PW3 Prakash Dhak is a local resident who supported the case of the plaintiffs. 13. One Chittaranjan Lai an employee of Bankura Sub-registry Office deposed on behalf of the defendants/respondents as DW1. DW2 Kashinath Rakshit is the defendant No.4 in the suit. DW3 Biswanath Khan is a local resident and DW4 Shyamal Karmakar is also an employee of Sub-registry Office, Bankura. Besides the witnesses on behalf of the parties, one Bibekananda Sinha deposed in the suit as a court appointed Investigation Commissioner over the suit property and submitted his report. 14. DW2 Kashinath Rakshit is the defendant No.4 in the suit. DW3 Biswanath Khan is a local resident and DW4 Shyamal Karmakar is also an employee of Sub-registry Office, Bankura. Besides the witnesses on behalf of the parties, one Bibekananda Sinha deposed in the suit as a court appointed Investigation Commissioner over the suit property and submitted his report. 14. During trial of the suit, some document, viz., a receipt of purchase of one corrogated gate with other accessories, permit of running mini rice mill issued by the competent authority on 18th March, 1993 in the name of the original plaintiff on the suit property, copy of RS Record of Rights, certified copy of the deed by virtue of one which Ram Kumar Kundu, predecessor-in-interest of the venders of the defendants/respondents and the report of learned Advocate Commissioner were marked Exhibit-1-5 respectively. The defendants/respondents, on the other hand, produced four numbers of deeds of sale by virtue of which they purchased specific portions of the property in suit on 26th March, 1993. They also filed certified copies of orders passed in the proceedings under Section 45 and 44(2)(a) of the West Bengal Estate Acquisition Act as well as certified copies of deeds by virtue of which title over the suit property was devolved upon the plaintiff and his brothers, i.e. the sons of Damini Dasi. The said documents were marked as Exhibit No.A-O. I propose to deal with the documentary evidence in course of my discussion whenever necessary. 15. It is matter of record that the suit was filed in the year 1993. The learned trial judge as well as the learned Judge in 1st Appellate Court concurrently held that Ram Kumar Kundu purchased 1.12 acres of land from Damini Dasi and her sons by a registered deed of sale dated 23rd November, 1951. It is also ascertained from the evidence on record that the said Ram Kumar Kundu established a husking mill on his purchased land and used to carry on business under the name and style of Ramkrishna Husking Mill. The respondents purchased 1.12 acres of land in plot No.1073 by virtue of four separate registered deeds of purchase on 26th March, 1993 from the heirs of Ram Kumar Kundu. According to plaintiffs/appellants they were in possession of remaining 19 decimal of land in suit plot No.1073. The respondents purchased 1.12 acres of land in plot No.1073 by virtue of four separate registered deeds of purchase on 26th March, 1993 from the heirs of Ram Kumar Kundu. According to plaintiffs/appellants they were in possession of remaining 19 decimal of land in suit plot No.1073. It was also pleaded by the appellants that by amicable partition, the predecessors of plaintiffs/appellants and Ram Kumar Kundu used to possess specific portions of the property according to their share in suit plot No.1073 by constructing boundary wall and structures. Title of the appellants was not disputed or denied by the respondents. Both the courts below held that the said Ram Kumar Kundu and after his death his heirs and subsequently the respondents being the purchases of 1.12 acres of land in suit plot No.1073, became owners of entire 1.31 acres of land on the basis of RS Record of Rights where entire property in suit plot No.1073 measuring about 1.31 acres of land was recorded in the name of the said Ram Kumar Kundu. 16. Mr. Asit Raut, learned Advocate on behalf of the appellants submits before me that the learned courts below miserably failed to consider that settlement record is not a document of title. It does not create or extinguish title to land. At the most, it must be relevant as some evidence of title to the recorded plots of land and may raise a presumption of title by virtue of statutory presumption of correctness attaching to its entries. However such evidence is rebuttable and can be rebutted. In support of his contention Mr. Raut refers to a judgment of this Court in the case of Usha Ghosh vs. Rabindranath Das reported in AIR 2005 Cal 190 . 17. It is further submitted by Mr. Raut that both the courts below failed to consider that even in 1993, the competent authority granted licence for running the business of husking mill on the suit plot in favour of the original plaintiff. The said document (Exhibit-2) is a proof of possession of the suit property by the original plaintiffs/appellants. 18. It is further submitted by Mr. Raut that admittedly Ram Kumar Kundu purchased 1.12 acres of land in plot No.1073. Remaining .19 decimal of land was in possession of Damini Dasi and her sons. The said document (Exhibit-2) is a proof of possession of the suit property by the original plaintiffs/appellants. 18. It is further submitted by Mr. Raut that admittedly Ram Kumar Kundu purchased 1.12 acres of land in plot No.1073. Remaining .19 decimal of land was in possession of Damini Dasi and her sons. Deeds of sale in favour of Ram Kumar Kundu and subsequently in the names of the respondents are primary documents of title. A person cannot claim title over the property over which he did not acquire any title by any of the modes of transfer contemplated in the Transfer of Property Act. He further submits that even assuming that the respondents are in possession the suit property, mere possession does not constitute adverse possession. To prove adverse possession the party is bound to furnish all particulars as to how and in what manner he comes to possession of the property in question. The mere possession even of a trespasser will not constitute adverse possession unless accompanied by open assertion of hostile title. Evidence on record is absolutely silent with regard to the basic ingredient of adverse possession, i.e., open assertion of hostile title. In support of his contention, Mr. Raut relies on a Division Bench judgment of this Court reported in 1998 (2) CHN 8 (Cal) (Rubiren Engineering Corporation vs. Abhoy Singh Surana & Ors). 19. It is not disputed that Ram Kumar Kundu purchased 1.12 acres of land from Damini Dasi and her sons in the year 1951. The vendors of Ram Kumar Kundu had retained remaining .19 decimal of land in their possession. Thus Ram Kumar Kundu by virtue of his purchase of undivided portion of suit plot No.1073, became a cosharer with his vendors Damini Dasi and her sons. Well established is the law that possession of a cosharer is never considered adverse if it can be referred to a lawful title. It was held in Godavari Lakshminarasamma vs Godavari Rama Brahman And Ors. reported in AIR 1950 Mad 680 that mere non-participation in the profits of the property by one co-owner and exclusive possession by the other will not be sufficient to constitute adverse possession by the latter. To constitute ouster by a co-owner there must be an open and unequivocal denial of the title of the other coparcener to the knowledge of the latter. To constitute ouster by a co-owner there must be an open and unequivocal denial of the title of the other coparcener to the knowledge of the latter. Uninterrupted sole occupation of common property without more must be referred to the lawful title possessed by the joint holder to use the joint estate and cannot be regarded as an assertion of right to hold it as separate. The same principle was laid down by the Hon'ble Supreme Court in AIR 2002 SC 606 (Darshan Singh & Ors vs Gujjar Singh (Dead) By Lrs. & Ors). 20. In the instant case, I have carefully considered the oral as well as documentary evidence adduced by the witnesses on behalf of the defendants/respondents. There is absolutely no evidence on the issue of assertion of hostile title by the respondents or their vendors or by Ram Kumar Kundu as clear ouster of the title and possession of plaintiffs/appellants and their predecessors by denying title. Mutation in the settlement Record of Rights in the name of Ram Kumar Kundu does not amount to ouster unless there is a clear declaration that title of other cosharers was denied. 21. In Hemaji Waghaji Jat vs Bhikhabhai Khengarbhai Harijan reported in AIR 2009 SC 103 , the Hon'ble Supreme Court held that a 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 the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. 22. The learned courts below failed to consider such aspect of the matter and dismissed the suit filed by the plaintiffs/appellants. In my considered view, concurrent findings of both the courts below are perverse and cannot be sustained. 23. As a result, the instant appeal be and the same is allowed exparte. 22. The learned courts below failed to consider such aspect of the matter and dismissed the suit filed by the plaintiffs/appellants. In my considered view, concurrent findings of both the courts below are perverse and cannot be sustained. 23. As a result, the instant appeal be and the same is allowed exparte. The judgment and decree of dismissal passed by both the courts below in Title Suit No.53 of 1993 and the Title Appeal No.97 of 2002 are set aside. 24. As a result, Title Suit No.53 of 1993 be and the same is decreed exparte with cost. 25. Right, title and interest of the plaintiffs/appellants over the suit plot mentioned in schedule 'ka' of the plaint is declared by a decree of declaration. 26. Plaintiffs/appellants do also get a decree for recovery of possession of the suit property. 27. The defendants/respondents are directed to quit, vacate and deliver of peaceful possession of the suit property within two months from the date of this decree, failing which the plaintiff/appellants are at liberty to put the decree in execution. 28. The defendants/respondents are also restrained by a decree of permanent injunction from disturbing lawful possession of the plaintiffs/appellants over the suit property. 29. Office is directed to draw up the decree accordingly. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.