JUDGMENT : Heard the learned counsel for the appellants. 2. No one turns up on behalf of the respondents in spite of repeated calls, though notice has validly been served upon them. Hence, this appeal is heard and disposed of ex-parte. 3. This Second Appeal under Section 100 of the Code of Civil Procedure has been directed against the judgment and decree of reversal dated 02.02.1998 passed by learned 5th Additional District Judge, Giridih, in Title Appeal No.26 of 1996 by which the learned first appellate court reversed the judgment and decree of dismissal of the suit of the plaintiff filed with a prayer for:- (a) declaration that sale-deed No.2998 dated 14.03.1990 executed by defendant Nos.1 to 3 in favour of the defendant No.4 and 5 as null and void and not binding upon the plaintiff; (b) plaintiff’s right over the lands of plot No.1515 measuring area 1 decimal and the house constructed over there be declared and the plaintiff’s possession over the same be confirmed and (c) other relief; and held that the plaintiffs are entitled for vacant possession of the suit land and the sale-deed dated 14.03.1990 executed by the defendant Nos.1 to 3 in favour of the defendant Nos.4 and 5 with respect to plot No.1515 is not binding upon the plaintiff as the same has never been acted upon. 4. The brief fact of the case of the original plaintiff is that the suit land was the Raiyati land recorded in Survey Khatian in the name of Sher Ali Mian and the same was in possession of their father Fatuli Mian as Dar- Raiyat and Dar-Raiyat Khata was prepared in the name of the father of the plaintiff namely Fatuli Mian. Fatuli Mian constructed a house over the suit land and was living in the house constructed over the suit land and paying rent to the State of Bihar. Besides the plaintiff, Fatuli Mian had another daughter namely Bibi Muktari and a son namely Reyajuddin. The plaintiff was living in the house constructed over the suit land and was paying rent to the Raiyat Bako Khan and was also paying tax to the Giridih Municipality and obtaining rent receipt in her name. Besides the plaintiff, Fatuli Mian had another daughter namely Bibi Muktari and a son namely Reyajuddin. The plaintiff was living in the house constructed over the suit land and was paying rent to the Raiyat Bako Khan and was also paying tax to the Giridih Municipality and obtaining rent receipt in her name. It is further the case of the plaintiff that the plaintiff purchased the suit land including the vacant land and house from the son of the recorded Raiyat namely Bako Khan by virtue of registered sale-deed dated 24.01.1979 marked Ext. 1. The plaintiff apart from the house, has also left some vacant land which has been in continuous possession of the plaintiff and the plaintiff has been running business of grocery shop in the house situated over the suit land. It is further the case of the plaintiff that the defendant Nos.4 and 5 hatched a plan to grab the vacant land and house of the plaintiff and in collusion with the defendant Nos.1 to 3, got a forged sale-deed executed in their favour with respect to the suit land and another land of 1 decimal bearing plot No.1514 under Khata No.23 dated 14.03.1990 and on the basis of the said forged sale-deed started claiming ownership of the suit land. It is also asserted by the plaintiff that the defendant Nos.1 to 3 have no right to sell the suit land as the same was already sold by the father of the defendant No.1 namely Bako Khan on 24.01.1979 and the defendant Nos.2 and 3 has also no selling right in respect of the suit land and the defendants threatened the plaintiff to dispossess her from the suit house, hence, the plaintiff filed the suit. 5. The case of the defendants on the other hand is that the brother of the Fatuli Mian namely Jhari Mian is the Dar-Raiyat in respect of 1 decimal of land of plot No.1514 under Dar-rayati Khata No.23 of Mouza Koldiha and the same was recorded in the name of Jhari Mian. The defendants admitted the case of the plaintiff that Fatuli Mian was the Dar- Raiyat of the suit land. The defendants admitted the case of the plaintiff that Fatuli Mian was the Dar- Raiyat of the suit land. It is the case of the defendant that both the houses of Jhari Mian and Fatuli Mian stood over the plot Nos.1514 and 1515 and since Fatuli Mian and Jhari Mian were full brothers, hence, they have admitted the said position and they never raised any objection about the existence of house of the other party on their respective land. It is further the case of the defendant that as both Jhari Mian and Fakuli Mian continued to be in possession of their respective houses in the said manner by encroaching upon each other’s land openly, peacefully, continuously and adversely to the knowledge of each other for several twelve years; therefore both of them acquired title by adverse possession. Therefore, Bako Mian had no right, title or interest to transfer the suit land to the plaintiff by virtue of registered sale-deed dated 24.01.1979. Hence, it was pleaded that the suit of the plaintiff be dismissed. 6. On the basis of the rival pleadings, the learned trial court framed the following nine issues:- (i). Is the suit as framed maintainable? (ii). Has the plaintiff any cause of action for the suit?? (iii). Is the suit barred by limitation? (iv). Is the suit hit by the principles of waiver, acquiescence and estoppel and doctrine of stand-by? (v). Is the sale deed No.2998 dated 14.03.1990 executed by defendant No.1 to 3 in favour of defendant No. 4 to 5 fit to be declared null and void? (vi). Have the defendants made any encroachment over any portion of plot No.1515, Khata No.76 of village Koldiha by constructing a house thereon after institution of the suit as alleged by the plaintiff or not? And whether the land encroachment, if any, has been made from the time of Jhari Mian and Fatuli Mian? (vii). Does the plaintiff’s house also stands over any portion of plot No.1514 Khata No.76 of village Koldiha? (viii). Has the plaintiff any valid right, interest and possession over the suit property? (ix). It is the plaintiff entitled to any relief in the suit? 7. The learned trial court took up issue Nos. (vii). Does the plaintiff’s house also stands over any portion of plot No.1514 Khata No.76 of village Koldiha? (viii). Has the plaintiff any valid right, interest and possession over the suit property? (ix). It is the plaintiff entitled to any relief in the suit? 7. The learned trial court took up issue Nos. (vi), (vii) and (viii) together and decided the same in favour of the defendants and against the plaintiff and in the process, considered the report of Pleader’s Commissioner (Ext.3) and considered that several witnesses including the defendant and plaintiff have clearly accepted before him that there was a Khaprapos house since long before the same was converted into a pucca house and also came to a conclusion that there was no vacant land in plot No.1515 right from the days Fatuli Mian had been in possession of the land. 8. The learned trial court thereafter took up issue Nos.(iii), (iv) and (v) together and decided the issues in favour of the defendants and in the process observed that the plaintiff has admittedly encroached upon the plot No.1514, therefore, the plaintiff has no right to ask the defendant to remove their house standing partly over the suit land. 9. Lastly, the learned trial court took up the issue Nos.(i), (ii) and (ix) together and decided the same against the plaintiff as well and dismissed the suit on contest. 10. Being aggrieved by the judgment and decree passed by the trial court in Title Suit No.47 of 1990 dated 07.06.1996, the plaintiff-respondents filed Title Appeal No.26 of 1996 which was ultimately heard and disposed of by the learned first appellate court by the judgment dated 02.02.1998. The learned first appellate court framed the sole point for determination as under:- “Whether the judgment and decree passed by the learned trial court is legal and proper and as to whether the learned court below has come to a correct finding or whether it requires any interference in this appeal?” 11. The learned first appellate court considered that it is the case of the plaintiff that some land from the suit land was left vacant which has been pleaded by the plaintiff in para-10 of the plaint and the response to the same is in para-12 of the written statement that there was a vacant piece of the land in the suit land. Hence, in view of this admission of the defendants in the pleadings about existence of a vacant portion of suit land, the finding of the trial court that there was no vacant land over the suit land did not find favour with the learned first appellate court. The learned first appellate court did not consider the evidence of the witnesses of the defence that there was no vacant portion of the suit land at the time of filing of the suit as the same was contrary to the pleadings of the defendants. The learned first appellate court took note of the portion of the Ext. 3 i.e. the report of the Pleader’s Commissioner wherein it has been stated that the Pleader’s Commissioner found newly constructed house over the portion of the suit land and also took note of the fact that the Khatiyan which was marked Ext. H, also shows that besides house, there was a ‘Sahan’ which in English means ‘Inner Courtyard’. So, the same also indicates about the existence of a vacant land on part of the suit land as courtyard and found fault with the finding of the trial court on the basis of the Ext. 3 and Ext. H, also shows that besides house, there was a ‘Sahan’ which in English means ‘Inner Courtyard’. So, the same also indicates about the existence of a vacant land on part of the suit land as courtyard and found fault with the finding of the trial court on the basis of the Ext. 3 and Ext. H that there was no vacant portion of land on the suit land right from the time of Fatuli Mian and also considered that the evidence of the witnesses of the plaintiff to the effect that, the vacant land was to the South of the house of the plaintiff though it has not been specifically pleaded in the plaint by the plaintiff, the direction of the vacant land beside the house of the plaintiff situated over the suit land and observed basing upon the finding of the Survey Knowing Pleader Commissioner that he found encroachment over some land and corelating the same with the testimony of the witnesses of the plaintiff that the land was a vacant land, the learned first appellate court came to a conclusion that the defendants have constructed a house over the said vacant land during the pendency of the suit and basing upon the fact that the original plaintiff purchased the suit land from Bako Mian by registered sale-deed and considering the fact that the defendant did not adduce any evidence on the point of sale-deed dated 14.03.1990 with respect to the suit land rather in the course of arguments they stated that the defendants are not pressing their right, title and interest on the basis of the said sale-deed and as the defendants in their written-statement have denied to have obtained any sale-deed dated 14.03.1990 in their favour with respect to the suit land, the first appellate court held that as the plaintiffs have been in possession of the entire suit land for the last 70 years, they have acquired perfect title by way of adverse possession also and as the sale-deed dated 14.03.1990 with respect to the suit land has never been acted upon, held that the same is not binding upon the plaintiff and allowed the appeal as already indicated above. 12. 12. At the time of admission of this appeal vide order dated 04.08.1998, the following two substantial questions of law were framed:- “(a) whether the learned lower appellate court has committed any error on a substantial question of law by making out a completely different case for the plaintiff beyond the pleadings of the plaint and the relief prayed for and then granting a decree in regard thereto. (b) whether the plaintiff can be granted a decree in respect of a property or subject matter beyond the pleadings of the plaint and the relief prayed.” 13. Mr. Ayush Aditya- learned counsel for the appellants submits that the learned first appellate court erred by not considering the testimony of the Ext. 3 which is the report of the Survey Knowing Pleader Commissioner that therein he has mentioned that on enquiry from the persons present near the suit land, some of the persons told him that there existed a Khaprapos house which was converted into a newly constructed house. It is then submitted by Mr. Aditya that the learned first appellate court erred by making out a completely different case for the plaintiff beyond the pleadings of the plaint and the relief prayed for and ought not have granted a decree in respect of the property or subject matter beyond the pleadings of a plaint and the relief prayed. It is next submitted that the learned court below could not properly appreciate the evidence in the record. Hence, it is submitted that the impugned judgment and decree passed by the learned first appellate court be set aside and the judgment of the dismissal of the suit passed by the learned trial court be restored. 14. Having heard the submissions made by the learned counsel for the appellants and after carefully going through the evidence in the record so far as first substantial question of law is concerned, this Court finds that there is no substance in the record for framing such substantial question of law; as the learned first appellate court nowhere has strayed away from the relief prayed for by the plaintiff in the suit. The only addition the first appellate court has made while discussing the pleadings of the plaintiff is that the plaintiff in the plaint has mentioned that there was some vacant land besides the house constructed over the suit land and basing upon the evidence in the record, learned first appellate court has only specified that the vacant portion of the land was towards the south of the house of the plaintiff. So, this specification of the vacant land situated over the suit land though not specifically mentioned in the plaint but there was evidence in the record to this effect, in the considered opinion of this court, cannot be termed as making out a completely different case for the plaintiff. 15. It is undisputed case of the parties that the original plaintiff purchased the suit land from the son of the recorded tenant Bako Mian by a registered sale-deed marked Ext. 1. The defendants could not put forth any evidence whatsoever as to how that sale-deed is in any manner not sufficient to transfer the right, title and interest of Bako Mian over the suit land to the original plaintiff. Though, the defendants on the other hand claimed in their pleading that they have right, title, interest over the suit land on the basis of the sale-deed dated 14.03.1990 executed by the defendant Nos.1 to 3 in favour of the defendant Nos.4 and 5 but they could not muster enough courage to bring the said sale-deed on the record and abandoned that pleading and claimed their title over the suit land otherwise than upon the same. The defendants have taken the plea of adverse possession but neither in the pleading nor even at the time of hearing of this appeal, the defendants-appellants could say as to on which date the position claimed by them over the suit land became hostile and against which real owner. The defendants have taken the plea of adverse possession but neither in the pleading nor even at the time of hearing of this appeal, the defendants-appellants could say as to on which date the position claimed by them over the suit land became hostile and against which real owner. It is a settled principle of law that adverse possession requires all the three classic requirements to co-exist at the same time, namely, adequate in continuity, adequate in publicity and adverse to a competitor, in denial of title and his knowledge moreover Animus possidendi under hostile colour of title is also required; as has been observed by the Hon’ble Supreme Court of India in the case of Ravinder Kaur Grewal & Others vs. Manjit Kaur & Others reported in (2019) 8 SCC 729 paragraph-60 of which reads as under:- “60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.” (Emphasis supplied) It is also a settled principle of law that 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 has been held by the Hon’ble Supreme Court of India in the case of Karnataka Board of Wakf v. Government. of India & Others (2004) 10 SCC 779 inter alia observed as under: (SCC p. 785, para 11) “11. Xxxxx 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 the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.” Thus in the absence of any such essential pleading and proof certainly the claim of the defendants-appellants of acquiring title by way of adverse possession has no legs to stand. 16. 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.” Thus in the absence of any such essential pleading and proof certainly the claim of the defendants-appellants of acquiring title by way of adverse possession has no legs to stand. 16. So far as the contention of the learned counsel of the appellants that the failure on the part of the first appellate court to consider the oral testimony of Survey Knowing Pleader Commissioner regarding the statement of various persons met with him during his site visit, it is pertinent to mention here that it is crystal clear from the report of the Survey Knowing Pleader Commissioner that writ was issued to him in order to locally investigate over the suit land; to be specific under the following three points:- (i) to ascertain whether defendants were making any construction over the suit land; (ii) to measure the construction made by the defendants over the suit land and to ascertain the age of such construction; (iii) whether the defendants have stacked bricks and stone chips near the suit land for construction of roof. 17. In respect of first question, the Pleader Commissioner has categorically stated that no construction was going on by the time of his inspection. 18. In respect of the second question, he has stated that he was not allowed by the defendant No.3 to enter into the newly built house. The Pleader Commissioner found that some bricks and stone chips were kept near the suit land. 19. It is a settled principle of law that the testimony of the Pleader Commissioner stands in the same footing as any other witness and as he was a Survey Knowing Pleader Commissioner and not a Commissioner to record the deposition of any witness, certainly, the Survey Knowing Pleader Commissioner exceeded his mandate given to him by the court as the court never authorised the Survey Knowing Pleader Commissioner to record the statement of any person. Thus the hearsay statements from others about which the Survey Knowing Pleader Commissioner deposed in the court or mentioned in his report, in the facts of the case, are not creditworthy. Hence, non-consideration of the same by the first appellate court cannot be termed as perversity. 20. Thus the hearsay statements from others about which the Survey Knowing Pleader Commissioner deposed in the court or mentioned in his report, in the facts of the case, are not creditworthy. Hence, non-consideration of the same by the first appellate court cannot be termed as perversity. 20. Because of the discussions made above as the prayer made by the plaintiff in the plaint and the relief given by the first appellate court to the plaintiffs in the plaint has already been mentioned specifically in the foregoing paragraphs of this judgment, this Court is of the considered view that the first appellate court has not made any completely different case for the plaintiffs beyond the pleadings of the plaint and the relief prayed for. Hence, the first substantial question of law is answered in the negative. This Court is of the considered view that the learned lower appellate court has not committed any error on a substantial question of law nor made out a completely different case for the plaintiff beyond the pleadings of the plaint and the relief prayed for and then granting a decree in regard thereto. 21. Now coming to the second substantial question of law as to whether the plaintiff can be granted a decree in respect of a property or subject matter beyond the pleadings of the plaint and the relief prayed is concerned, the second substantial question of law as framed, is basically having the same ingredients as that of the first substantial question of law but has been produced in different verbatim; as this Court has already answered the first substantial question of law in negative. Because of the same reasons, this Court has no hesitation in holding that the plaintiff has not been granted any decree in respect of property or subject matter beyond the pleadings of the plaint and the relief prayed for. Accordingly, the second substantial question of law is also answered in the negative. 22. In view of the answer given to the substantial questions of law, this Court is of the considered view that there is no merit in this appeal. Accordingly, this appeal is dismissed ex-parte. 23. There will be no order to the cost. 24. The parties to bear their own cost. 25. Let a copy of this judgment along with the lower court records be transmitted to the learned concerned courts below forthwith.