P.M. Mukhi, J.

1. This appeal discloses a somewhat regrettable state of affairs, in that, both the trial Court and the lower appellate Court have fallen in error in approaching the matter in dispute from the point of view of possession rather than title. In fact, it is fairly conceded that both the Courts below have approached the matter as if it was a suit for possession under Article 64 of the Limitation Act of 1963 and not under Article 65 thereof.

2. There is no manner of doubt that the plaintiffs filed the suit for possession of immovable property based on title, so that for such a case the period of limitation for the purposes of determining whether there is adverse possession by the defendants would commence from the date when the possession of the defendants becomes adverse to the plaintiffs.

3. It is necessary to set out the relevant facts, particularly as the question of adverse possession is not always a legal plea as such but is based on facts which must be ascertained and proved.

4. The dispute concerns a portion of land lying midway between Survey No. 68 and Survey No. 69, situate in village Pout, Taluka Mangalwedha, District Sholapur. The disputed portion consists of about 34 gunthas and itself comprises two parts both stretching from East to West. There is a big bund over an area of 18 gunthas and to the South of the bund is the strip of land comprising the remaining 16 gunthas.

5. The plaintiffs and defendant No. 2s father, Sadhu Nimagre, purchased the land comprised in Survey No. 68 with an area of 35 acres 28 gunthas, Pot Kharab 28 gunthas on the 6th of November 1956 from one Madhavrao Ramchandra Ingole under a registered sale-deed.

6. It is the plaintiffs case that their father was already in possession of the said land mentioned above before the execution of the sale-deed in his favour as a tenant cultivator. The plaintiffs then aver that even when the negotiations for the purchase of Survey No. 68 were going on between the plaintiffs father and Madhavrao Ramchandra Ingole, defendant Kundalika Babaji Nimagre, who is the owner of the adjoining Survey No. 69 encroached upon the disputed 34 gunthas and constructed a bund on a portion of 18 gunthas therefrom. It is thus the contention of the plaintiffs that the encroachment on the 34 gunthas of land belonging to the plaintiffs father took place some time in October 1956.

7. There is no dispute that defendant No. I purchased Survey No. 69 from the Rajasaheb of Jath some time in 1950 under a sale-deed dated the 6th of March 1950. It is the plaintiffs contention that no protest as such was lodged in writing by the previous owner of the land Shri Ingole when the encroachment took place in October 1956 and it is suggested that this was so because out of the consideration money of Rs. 3,000 Shri Madhavrao Ramchandra Ingole had already received Rs. 2,800 so that by the time the encroachment took place the said Madhavrao Ingole had lost interest in the land and since the plaintiffs father had not as yet purchased the land he could also not lodge a protest in writing.

8. Although a dispute seems to have arisen between the parties, it is substantially clear that nothing was done by both the parties till 1961 when on the 22nd of November 1961 defendant No. 1 made an application to the Cadastral Surveyor for survey of the land comprised in the two Survey Nos. 68 and 69. On the 13th of June 1961 the plaintiffs also similarly applied for measurement of the two survey numbers and it would appear that on the 27th/28th of April 1963 a survey map was prepared and it was discovered that the 34 gunthas of land on which defendant No. 1 had encroached formed part and parcel of Survey No. 68.

9. The Cadastral Surveyor Mr. Thakur thus came to the conclusion that 34 gunthas of land belonged to the plaintiffs and defendant No. 2, who had become owners of the land, originally purchased by their father.

10. The plaintiffs demanded possession of the encroached portion, but defendant No. 1 refused to oblige. On the contrary, defendant No. 1 proceeded immediately to file an application before the Aval Karkun for entering his name in the Record of Rights in respect of these 34 gunthas of land.

11. On the 9th of February 1965 the Tenancy Aval Karkun by an order, which is at Exh. 71, caused an entry to be made on the 27th of February 1965, in the mutation register and a new survey number, being Survey No. 68/2+3+4 with an area of 34 gunthas, assessment Rs. 0-4-6 was formed and curiously the name of defendant No. 1 was entered as the owner of these 34 gunthas. It is contended on behalf of the plaintiffs that defendant No. 1 got this done in collusion with the Revenue authorities. The plaintiffs immediately filed an appeal before the Revenue authorities challenging the order of the Tenancy Aval Karkun and I am told at the Bar that the said appeal is probably still pending.

12. Now, whatever may be the position, the fact is that on the 20th of July 1965 the plaintiffs filed the present suit for possession of the encroached land to the extent of 34 gunthas which includes the bund put up on the 18 gunthas out of the said 34 gunthas.

13. Defendant No. 1 filed his written statement on the 13th of November 1965 and it would appear that the contention of defendant No. 1 was, firstly; that Survey No. 69 originally belonged to Shrimant Rajkumar Udayasinghrao Ramrao Dafale of Jath State; that defendant No. 1 used to take the land on lease for a period of five years by auction; and that by the year 1951 defendant No. 1 had purchased that land from the Rajasaheb of Jath State. According to defendant No. 1, he put up the disputed bund over a length of about 400 to 500 feet and planted Neem and Babul trees on both sides of the bund. Defendant No. 1 has pleaded that he had not made any encroachment and that he had put the bund on his own land some 12 to 13 years back. The defence thus was that the plaintiffs had no right to claim possession of the alleged encroachment area and the removal of the bund. It is clear that defendant No. 1s defence was based on his own ownership of the disputed 34 gunthas.

14. The written statement of defendant No. 1, of which a free translation has been supplied to me, generally reads as follows : First of all the plaintiffs suit is denied. It is then stated that the allegation of the plaintiffs that the plaintiffs had purchased the disputed portion of land is false. There is then an assertion that defendant No. 1 had purchased the land Survey No. 69 from the Rajasaheb of Jath State and that he was in possession even prior thereto as a tenant it is then stated that the defendant No. 1 had put up a bund on the suit land with a length of about 400 to 500 feet and that there are rows of trees of Neem and Babul on both sides of the bund. It is not stated in the written statement that these trees were planted by defendant No. 1. Defendant No. 1 then avers, after denying the encroachment, that he had constructed the bund some 12 to 13 years prior to the filing of the suit. Since the written statement was filed on 13-11-1965, that places the construction of the bund, according to the defendant No. I, in the year 1952. Then the plaintiffs right is challenged and the statement is that the plaintiffs have no right whatsoever over the suit land. There is a reference to the order passed by the Tenancy Aval Karkun and then follows a denial of the plaintiffs contention that defendant No. 1 had put up the bund at the time when the plaintiffs father was negotiating the purchase from Madhavrao Ingole in 1956. There is then a reassertion by defendant No. 1 that he had put up the bund some four to five years prior to the sale-deed in favour of the plaintiff. The allegation of collusion with the Aval Karkun is denied and this is followed by the general statement that the plaintiffs had no cause of action and it is stated that as defendant No. ! did not construct the bund on the plaintiffs property, the plaintiffs would have no right to claim that the bund to removed. Lastly, it is stated that the suit is false and vexatious.

15. The learned trial Judge framed a number of issues. The first one being whether the plaintiffs proved their title to the 34 gunthas of land, secondly, whether the plaintiffs proved their possession of 35 acres 28 gunthas along with defendant No. 2, i.e. Survey No. 68. Then an issue was raised as to whether the plaintiffs proved that it was between the period of 1-10-1956 to 31-10-1956 that defendant No. 1 had encroached upon the disputed portion of 34 gunthas and constructed a bund thereon. On this and other issues and after considering the evidence led before him, the learned trial Judge came to the conclusion that the plaintiffs had proved their title, that they had also proved that the encroachment took place in the month of October 1956 and that they were entitled to possession of the 34 gunthas of land from defendant No. 1 and to the removal of the bund itself. The learned trial Judge thus decreed the suit and also ordered that the mew-profits for a period of three years next before the suit should be determined as also future mesne-profits.

16. Aggrieved by this order and judgment of the trial Court, defendant No. 1 Kundalika Babaji Nimagre filed Civil Appeal, being Civil Appeal No. 335 of 1967, in the Court of the Extra Assistant Judge, Sholapur. The learned Assistant Judge somewhat curiously framed the following points:

(1) Did the plaintiffs prove their or their predecessors possession of the thirty-four gunthas within twelve years next before the suit

(2) Did they prove that they had existing title to the thirty-four gunthas on the date of the suit

(3) Whether the plaintiffs were entitled to possession of the land His findings on all these three points were in the negative.

17. As I have already mentioned, both the Courts below seemed to have proceeded to look at the matter at a tangent, in the sense that the learned trial Judge, as well as the learned Assistant Judge, both, sought to consider whether the plaintiffs had proved their possession of the encroached portion, viz. 34 gunthas within 12 years next before the suit. Both the Judges went even further by posing a question whether the title of the defendant No. 1 had been complete by adverse possession of the encroached portion, by the defendants.

18. It requires to be noticed that no such issue was framed by the trial Court nor was any point raised on the question of the purported adverse possession of defendant No. 1 of the disputed 34 gunthas of land.

19. Mr. Ajit Shah, the learned Advocate for the appellants-original plaintiffs, has contended that the lower appellate Court has fallen in error in that that Court made out an entirely new case for defendant No. 1 as to adverse possession even though defendant No. 1 had never raised the plea of adverse possession in specific terms.

20. Mr. Shah has strenuously urged that the pleadings do not contain any plea of adverse possession as such. He says that if defendant No. 1 wanted to resist the plaintiffs suit for possession on the plea of having acquired title by adverse possession, then it was incumbent upon defendant No. 1 to raise the plea of adverse possession specifically in the pleadings. Mr. Shah points out that it is settled law that the question of adverse possession is not a purely legal question, because adverse possession must be based on facts which must not only be averred but proved.

21. The second contention of Mr. Shah is that the lower appellate Court has fallen in error in so far as it has approached the matter as if it was a suit for possession under Article 64 of the limitation Act of 1963 and not a suit for possession of immoveable property based on title within the meaning of Article 65. Mr. Shah then elaborates by contending that it is not necessary for the plaintiffs to prove continued possession for 12 years next before the suit as the lower appellate Court seemed to have felt. Mr. Shah has also stated as a proposition of law that in a suit for recovery of possession and title if the plaintiffs prove the title then the burden of proof shifts on to the defendants to prove adverse possession if such a defence is taken.

22. Mr. V. B. Rege, the learned Advocate for the respondent-defendant No. 1, contended that it could perhaps be said that both the Courts below had somewhat gone wrong in approaching the matter as if it were a suit under Article 64 of the Limitation Act of 1963 and not a suit under Article 65. Mr. Rege contends that because of this error, proper evidence does not appear to have been led before the Court below and it is his contention that the matter should be remanded back for retrial.

23. Mr. Reges second contention is that if the written statement is read as a whole, then it would be found that even though a specific issue has not been raised, a plea of adverse possession had in fact and substance been taken. Mr. Reges contention is also that the mere fact that an issue had not been raised would not be fatal to the defence,

24. Now, there can be little doubt that before a party can succeed in establishing title on the basis of adverse possession, a plea to that effect must be specifically raised. It is a cardinal principle that a person who claims adverse possession must plead to that effect and must show on what date he came into possession, what was the nature of his possession, whether the fact of his adverse possession was known to the owner and what was the period of such adverse possession. The Supreme Court and this High Court have held that whenever there is a claim for adverse possession it must be clearly made and proved. (See S. M. Karim v Bibi Sakina : AIR 1964 SC 1254 [LQ/SC/1964/39] and S. A. No. 113 of 1964 decided on 13th April 1973 at Nagpur Per Sapre J.) The Principle of law as to what is necessary to constitute adverse possession is well settled and the principle is that such a possession must be "adequate in continuity, in publicity, and in extent, to show that it is possession adverse to the true owner. In other words, there must be a clear assertion of a hostile title."

25. As the Privy Council has stated in Secretary of State v. Debendra Lal Khan : AIR1934 PC 23 "The nature of the requisite possession must necessarily vary with the nature of the subject possessed."

26. Now first of all, Mr. Rege has contended that the written statement in fact contains a plea of adverse possession. I regret, I am unable to read the written statement in the manner suggested.

27. The facts of this case show in a very substantial manner that even defendant No. 1 was not clearly aware that the 34 gunthas fell within Survey No. 6$ and that he was by his action in constructing the bund on 18 gunthas and bringing 16 gunthas within the area of Survey No. 69 he was doing an act which was hostile to the true owner. In fact, the record shows that both the parties were themselves uncertain as to the boundary between Survey No. 68 and Survey No. 69. This explains why in 1961, first defendant No. 1 and thereafter the plaintiffs made applications to the Cadastral Surveyor for measuring the land and it is obvious that the question at issue, when the survey of Survey Nos. 68 and 69 was made and a map prepared, must have been whether the area comprised in the 34 gunthas which were somewhere in the middle of the two Survey numbers fell within Survey No. 68 or Survey No. 69. This much is, therefore, certain that till 1968 no question of either of the parties claiming a hostile title to the other could arise.

Now whenever a question of attitude arises, then it is obvious that first there must be knowledge, than there must be an under standing of the situation and then the adoption of an attitude or the expression of an intention.

29. As Mr. Shah has pointed out, mere possession can never, without something more, convey the intention that that possession of such a person is hostile and adverse.

30. In Second Appeal No. 1088 of 1958 decided by me on the 7th of April 1975,1 had occasion to discuss this aspect and a reference was made to a Division Bench judgment of this Court in Swamirao v. Bhimabhai : AIR 1921 Bom. 368 , [LQ/BomHC/1920/204] where this High Court on a consideration of section 28 of the Indian Limitation Act, 1908 (which is pari material with section 27 of the Indian Limitation Act of 1963) held as follows :

... An owner of property does not lose his right to property merely because he happens not to be in possession of it for twelve years. His right under section 28 is only extinguished at the determination of the period limited by the Act to him for instituting a suit for possession of the property. It must be, therefore, that the period cannot be determined unless it has commenced to run, and the period will not commence to run until the owner is aware that some one else in possession is holding adversely to himself....

31. It is necessary to repeat that both the parties at least till 1961 were not aware that some portion from out of the two survey numbers, viz. 68 and 69 was being held by one or the other adversely to the true owner.

32. It was suggested by Mr. Rege that if a person rightly or wrongly feels that the property of which he is in possession is his own, then his possession must automatically be hostile and adverse to the true owner. I am afraid, this argument is not tenable because it is implicit when the question of adverse possession arises that the possession must be hostile. The question of adverse possession is a mixed question of law and fact. Therefore mere possession for more than twelve years does not lead to the inference that the possession is adverse. To prove title to the land by adverse possession, it is not sufficient to show that some acts of possession have been done. It has been held that even a trespasser does not necessarily intend to prescribe for a hostile title simply by remaining in occupation, his attitude may be a purely negative and passive one.

33. On the facts of this case, it is difficult to appreciate how it can be said with any show of reason that defendant No. 1 was in possession of the 34 gunthas of land adversely to the plaintiffs when he did not know the exact boundary between Survey Nos. 68 and 69 and for may have felt that he was building a bund on his own land.

34. There has been a good deal of controversy as to when the bund was constructed. The contention of defendant No. 1 is that it was constructed in 1952 and the contention of the plaintiffs that it was constructed in October 1956. In ray view, this point, apart from defendant No. 1s possession of the 34 gunthas of land, loses its relevance once it is held that no hostile intention had ever been expressed until 1963, when the Cadastral Surveyor came to the conclusion that the 34 gunthas properly came within Survey No. 68 and not Survey No. 69. It can, therefore, be contended that defendant No. 1s possession of the 34 gunthas became adverse to the plaintiffs within the meaning of Article 65 of the Limitation Act of 1963 as soon as he came to know that, according to the Cadastral Surveyor, the 34 gunthas of which he was in possession did not belong to him but were part of Survey No. 68 belonging to the plaintiffs.

35. If the view that I had taken is correct, then no difficulty arises. As a matter of fact, whether the written statement of defendant No. 1 contained a plea of adverse possession or not would also lose its relevance once the conclusion is arrived at that the adverse possession of defendant No. 1, if any, could only arise when it was affirmatively known to both the parties on the preparation of the Cadastral Survey map that 34 gunthas fell within the area of Survey No. 68.

35. In the result the appeal is allowed, the order and judgment of the Extra Assistant Judge, Sholapur, dated the 26th of June 1968 is set aside and that of the trial Court dated the 11th of July 1967 restored with this modification that defendant No. 1 will be entitled at his cost to remove the bund within four months from today, failing which the plaintiffs will be at liberty to remove the bund and recover the cost of such removal from defendant No. 1.

36. In the circumstances of the case there will be no order as to costs.