S.C. Das, J.This second appeal, under Section 100 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 23.02.2007, passed by learned Addl. District Judge, Court No. 3, West Tripura, Agartala in Title Appeal No. 37 of 2003 where-under the learned Addl. District Judge has affirmed the judgment and decree of dismissal of Title Suit No. 32 of 2002 dated 25.04.2003, passed by learned Civil Judge, Jr. Division, Court No. 1, Agartala.

2. The second appeal has been admitted for hearing on the following substantial question of law:

"Whether the courts below have interpreted the principles of adverse possession correctly in the facts and circumstances of the case"

3. Heard learned counsel Mr. D.K. Biswas for the appellant. None appeared for the respondents.

4. The appellant as plaintiff instituted Title Suit No. 32 of 2002 seeking declaration of title over the suit land described in the schedule of the plaint on the basis of adverse possession and also prayed for confirmation of possession and permanent injunction against the defendant-respondents.

5. The plaintiff in his pleadings, inter alia, contended that his father late Paresh C.h. Acharjee and another Manindra Karmakar in the first part of the year 1953 entered in Tripura from the then East Pakistan and they purchased 1 kani of paddy land of Plot No. 9147 of Jote No. 11 from Jotedar Amina Khatun on payment of a consideration of Rs. 500/- and they became owner of the purchased land in equal share. Thereafter his father developed his part of the land and constructed huts thereon and started living with the family including the plaintiff. The suit land measuring 2 gandas, 2 karas appertains to said purchased land of his father which has been recorded in Khatian No. 7952, old C.S. Plot No. 1138 (P), present C.S. Plot No. 881 of Mouja Agartala sheet No. 2. Subsequently Maharaja of Tripura acquired the suit land for certain purpose but neither any compensation was paid to the original owner Smt. Amina Khatun nor to the purchasers i.e., Paresh Ch. Acharjee and Manindra Karmakar and physical possession was also not taken over by the Maharaja.

It is also contended by the plaintiff that the D.M. & Collector proposed to allot .37 acres of land but subsequently the power of allotment of the D.M. and Collector was ceased by the Tripura administration and therefore, allotment could not be given. The plaintiff also contended that Manindra Karmakar subsequently sold his share to one Aswini Sutradhar and thereafter Aswini Sutradhar was possessing 50% of the purchased land. It is further contended by the plaintiff that 7 gandas, 2 karas of land was subsequently allotted by the Govt. of Tripura in the name of Smt. Dipali Acharjee, mother of the plaintiff and the rest land was recorded as Khas land. Father of the plaintiff died on 27.11.1972 and the plaintiff exclusively possessed the suit land and residing thereon with his wife, son and daughter constructing houses thereon. He continued his possession after the death of his father and in the year 1973 the defendant Nos. 3 and 4 tried to dispossess the plaintiff but due to resistance they failed in their attempt and the plaintiff continued his possession in the suit land denying right, title and interest of the defendants for more than 40 years. It is also contended by the plaintiff that in the finally published Khatian dated 07.02.1967 the suit land along with other lands were recorded as Khas land and in Khatian No. 7952, C.S. Plot No. 1138 and 1136 in remark column of the Khatian i.e. Column No. 23 the name of his father Paresh Chandra Acharjee was recorded as unlawful possessor. The plaintiff continued his unlawful possession in the suit land. It is further contended by the plaintiff that at the instigation of his mother, defendant Nos. 3 and 4 included some portion of the suit land in the boundary of allotted land of his mother. He has also contended that on 17.04.2002 at 11-00 a.m. the staff of defendant Nos. 3 and 4 made attempt to evict the plaintiff in collusion with and under the instigation of Smt. Dipali Acharjee, mother of the plaintiff and therefore, plaintiff apprehending that he may be dispossessed from the suit land at any time. It is the claim of the plaintiff that after the death of his father in the year 1972 he continued his possession denying right, title and interest of the defendants and therefore, his possessory title has been perfected in the meantime and the defendants since trying to dispossess him from the suit land he instituted the suit seeking declaration of his title by adverse possession and confirmation of possession as well as permanent injunction.

6. Defendants contested the suit by filing written statement contending that the suit land along with other lands are Govt. Khas land and the plaintiff has got no right, title and interest over the suit land. The plaintiff is a mere trespasser in the suit land and he acquired no right by adverse possession. It is also contended that mother of the plaintiff Dipali Acharjee filed an Objection Case No. 15/02 before the Settlement authority of Agartala Municipal Circle impleading the plaintiff as Opposite Party with a prayer for allotment of the suit land in her favour and hence, the prayer of the plaintiff for declaration of his title by way of adverse possession was imaginary and the defendants prayed for dismissal of the suit.

7. Considering the pleadings of the parties, the trial Court framed following four issues--

(i) Is the suit maintainable in law

(ii) Has the plaintiff right, title, interest and possession over the suit land

(iii) Is the plaintiff entitled to the decree as prayed for

(iv) To what other reliefs the parties are entitled

8. In the course of trial, the plaintiff examined himself and 3 (three) other witnesses and also proved the following documents in support of his case.

9. On behalf of defendants, one witness has been examined as D.W. 1 and the defendants also proved the following documents which are marked as Exbt. A Series.

10. At the conclusion of trial, by impugned judgment dated 25.04.2003, the trial Court decided the material issues against the plaintiff and accordingly dismissed the suit. The appeal filed by the plaintiff in the appellate court has also been dismissed and hence, this second appeal.

11. It is categorically held by the trial Court as well as the appellate court that the plaintiff has failed to prove his adverse possession in the suit land and hence, he is not entitled to relief sought in the suit.

12. The concept of adverse possession contemplates a hostile possession, i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the others rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor.

13. The Gauhati High Court in the case of Jamila Begum & Ors. v. Sudhir Chandra Paul & Ors., reported in (2013) 1 TLR 896 and the case of Smt. Tapasi Rani Das Vs. Sajal Das and Others, . (Both the judgments were scribed by me (S.C. Das, J.), it has been held that by "adverse possession" is meant possession which is hostile, under a claim or colour of title, actual, open uninterrupted, notorious, exclusive and continuous. Adverse possession is made out by the co-existence of two distinct ingredients: first, such a title as will afford colour, and second, such possession under it as will be adverse to the right of the true owner and title by adverse possession becomes complete only when the possession of the trespasser continues uninterruptedly for the full statutory period.

14. Learned counsel Mr. Biswas appearing for the appellant has submitted that father of the plaintiff entered in the suit land along with other lands by purchase from Amina Khatun in the year 1953 and thereafter his father continued in possession till death on 27.11.1972 and after the death of his father, the plaintiff continued his possession, constructed houses on the suit land and living thereon and all these are acts of possession of the plaintiff denying title of the rightful owner i.e. the defendants. The trial Court and the appellate Court failed to construe the facts and circumstances and the evidence on record and thereby arrived at a wrong finding. It is also contended by Mr. Biswas, learned counsel that the plaintiffs possession in the suit land has not been disputed by the defendants and while such possession has not been disputed and the plaintiff has proved his act of possession denying title of rightful owner, the trial Court as well as the appellate Court would decree the suit in his favour.

15. I have meticulously gone through the judgment passed by the trial Court as well as the appellate Court, the pleadings of the parties and the evidence on record.

16. Plaintiffs case is that his father late Paresh Chandra Acharjee and Manindra Karmakar purchased 1 (one) kani of land in equal share from one Smt. Amina Khatun. To prove that fact no document of title produced by the plaintiff. It appears that the plaintiff produced a certified copy of jote khatian of Touji No. 196 in the name of Amina Khatun but that does not prove that father of the plaintiff late Paresh Chandra Acharjee and Manindra Karmakar purchased the suit land with other lands from Amina Khatun. The plaintiff failed to prove that fact. The plaintiff further contended in his pleadings that the purchased land of Paresh Chandra Acharjee and Manindra Karmakar was subsequently acquired by the then Maharaja of Tripura. But neither any compensation was paid to the original Jotedar Amina Khatun nor to the purchasers and possession was also not taken over. The plaintiff in his deposition stated nothing about that fact. No document also produced to show that there was any acquisition process by the then Maharaja of Tripura. It is further contended by the plaintiff in the plaint that in the first part of 1973 the staff of defendant Nos. 3 and 4 tried to dispossess the plaintiff from the suit land but the plaintiff made timely resistance and therefore, the defendant Nos. 3 and 4 could not succeed in their attempt to dispossess him. Neither the plaintiff nor his witness uttered a single word in their evidence that in the year 1973 the subordinate staffs of defendant Nos. 3 and 4 tried to dispossess the plaintiff from the suit land and the plaintiff resisted them and therefore, they could not succeed in their attempt.

17. It is further stated in the plaint that the suit land was recorded as Khas land at first in Khatian No. 7952, finally published on 07.02.1967, but in his evidence the plaintiff did not utter a single word as to when the suit land was first recorded as khas land. If father of the plaintiff purchased the suit land along with other lands from a rightful owner he acquired title in the suit land and his title will extinguish in case he transferred it or if it was acquired as alleged by the plaintiff. In his pleadings the plaintiff clearly stated that there was an acquisition but neither any compensation given nor possession was taken over and that fact has not been proved at all. It is, therefore, not at all established as to when the title of the suit land vested in the State Govt. and when the plaintiff started possession denying title of the defendants. If the father of the plaintiff was a rightful owner by purchase and the accusation process was failed as stated by the plaintiff, the plaintiff would take due course of law for correction of the record of right if it was found that the land was wrongly recorded as khas land. Simply preparation of a record of right as khas land cannot, in the ordinary course extinguishes the title of a rightful owner unless the title is transferred. The plea of the plaintiff is camouflaging and neither the plaintiff made clear pleadings nor adduced clear evidence in support of his claim of adverse possession. The plaintiff in his pleading further stated that 7 gandas 2 karas of land has been allotted in the name of his mother Dipali Acharjee and that a part of the suit land has been wrongly allotted. It is also contended by the plaintiff that at the instigation and in collusion with his mother Dipali Acharjee defendant Nos. 3 and 4 made attempt to dispossess him but Dipali Acharjee has not been made a party in the suit. The suit filed by the plaintiff, therefore, suffers from defect of parties and/or non joinder of necessary parties.

18. According to the plaintiff, his father entered in possession of the suit land in the first part of the year 1953 and his father died on 27.11.1972. After the death of his father he continued in possession and there was continuous possession denying claim of others. In his pleadings he stated that in the year 1973 the subordinate staff of defendant Nos. 3 and 4 made an attempt to dispossess him but in his evidence he stated nothing to that effect. Other witnesses of the plaintiff also did not utter a single word in respect of any such attempt by the subordinate staff of defendant Nos. 3 and 4. The plaintiff, therefore, failed to prove as to on which date he started possession of the suit land denying title of the rightful owner. Burden lies on the plaintiff to prove as to exactly at which point of time he understood that the suit land belonged to somebody else and he started possession of the suit land denying title of rightful owner.

19. In the case of Uttam Kumar Sen and Others Vs. Gita Das Choudhury and Others, the Single Bench of the Gauhati High court, Agartala Bench has held that the plea of adverse possession is not always a legal plea. It is always based on facts which must be asserted and proved. A person who claims adverse possession must show on what date he came into possession, what was the nature of his possession, whether the factum of his possession was known to the legal claimants and how long his possession was open and undisturbed. Unless these are asserted and proved, a plea of adverse possession cannot be inferred from them.

20. In the case of Vasantiben Prahladji Nayak and Others Vs. Somnath Muljibhai Nayak and Others, the Supreme Court has held thus:

"To establish ouster in cases involving claim of adverse possession the defendant has to prove three elements namely, hostile intention; long and uninterrupted possession; and exercise of the right of exclusive ownership openly and to the knowledge of the owner. In cases of adverse possession, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but it commences from the date when the defendants possession became adverse."

21. In the case of S.M. Karim Vs. Mst. Bibi Sakina, , the Supreme Court has held that the claim of adverse possession must be clearly pleaded. The Court has held that adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.

In that reported case, there was no evidence when possession became adverse, if at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.

22. In the case of Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan and Others, the Supreme Court has observed that the law of adverse possession which ousts a owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. The law should not place premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation.

Referring to Hemaji Waghaji Jat (supra), the Supreme Court in the case of State of Haryana Vs. Mukesh Kumar and Others, has seriously criticized the concept of adverse possession. The Court has held that India inherited the law of adverse of possession from the British. The parliament would consider abolishing the law of adverse possession or at least amending and making substantial changes in law in the larger public interest. The Court has held that the parliament must seriously consider at least to abolish "bad faith" adverse possession, i.e., adverse possession achieved through intentional trespassing. Actually believing it to be their own could receive title through adverse possession sends a wrong signal to the society at large. Such a change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief. The Court has further held - "Adverse possession allows a trespasser a person guilty of a tort, or even a crime, in the eyes of law to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change. If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country."

The Court in paras 14 and 23 has observed that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. The ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.

23. Mere continuous possession does not become adverse possession. The plaintiff might have constructed his house in the suit land described in the schedule of the plaint and possessing the same but he has failed to prove as to at what point of time his possession became hostile to the rightful owner. Burden lies on him to prove with adequate pleadings and evidence as to when he has started possession of the suit land denying title of others. He has also failed to prove as to when the defendants became owner of the suit land. According to the plaintiff his father purchased half of 1 (one) kani of land i.e., 10 (ten) gandas of land and it is his case that 7 gandas, 2 karas of land has been allotted in the name of his mother and he alleged that in collusion and at the instigation of his mother, the defendants are trying to dispossess him. The defendants proved the fact that his mother instituted an objection case which was pending before the Survey and Settlement Officer. It is, therefore, very difficult to accept the plea of the plaintiff that he had been possessing the suit land denying the title of rightful owner and thereby acquired possessory title in the suit land.

24. Learned counsel Mr. Biswas referred the case of Kshitish Chandra Bose Vs. Commissioner of Ranchi, and has submitted that the Court has got power to declare title by adverse possession. He has also submitted that the decision of Khitish Chandra Bose is a three Judges Bench decision and the decision of the Apex Court in the case of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala and Another, though is a latest decision but it is a two Judges decision wherein it has been held that the claim of adverse possession can be used as a shield and not a sword and since the earlier decision of larger Bench has allowed title by hostile possession, the suit of the plaintiff ought to have been decreed.

25. In the facts of the present case, in my considered opinion, further discussion on the above reported cases has become redundant since the plaintiff has failed to prove his hostile title by way of adverse possession and therefore, discussion regarding application of the ratio of above decisions has become redundant.

26. In view of the discussions made above, I find nothing wrong in the judgment passed by the trial Court and affirmed by the appellate Court.

27. The second appeal, therefore, stands dismissed with cost.

28. Send down the L.C. records along with a copy of this judgment.