P. S. NARAYANA, J.

( 1 ) THIS Letters Patent Appeal is filed against the Judgment of the learned Single Judge in a. S. NO. 1729/83 dated 28-7-1992 reversing the judgment in O. S. No. 190/72 on the file of additional Subordinate Judge Guntur dated 23-6-1983.

( 2 ) THE plaintiff in the suit and the respondent in the appeal is the appellant in the present Letters Patent Appeal and 2nd defendant-appellant is the 1st respondent and 1st defendant is the 2nd respondent and since the appellant died, in C. M. P. No. 10274/96, appellants 2 to 6 were brought on record. For the purpose of convenience the parties are referred to as arrayed in the suit.

( 3 ) THE plaintiff filed O. S. No. 190/72 on the file of Additional Subordinate Judge, guntur for partition of the plaint schedule properties into two equal shares and to allot one such share and a preliminary decree was passed on 14-2-1977 in respect of Item nos. 2 and 3 and the suit was dismissed as far as Item No. 1 of the plaint schedule is concerned. The 2nd defendant in the suit is claiming exclusive right, title and possession over Item No. 1 of the plaint schedule property. The petitioner carried the matter in appeal and the matter was remanded with a direction to decide the question whether the 2nd defendant had acquired title to Item no. 1 of the plaint schedule property by adverse possession and after remand, the trial Court decreed the suit on 23-6-1983 regarding Item No. 1 of the plaint schedule holding that the 2nd defendant is in permissive possession and hence the plea of adverse possession is not sustainable. The 2nd defendant filed A. S. No. 1729/83 and the learned Single Judge after considering the oral and documentary evidence allowed the appeal on 28-7-1992 and deleted Item No. 1 from the preliminary decree and aggrieved by the same, the plaintiff filed the present letters Patent Appeal.

( 4 ) IN the Court of first instance. P. Ws. 1 and 2 were examined on behalf of the plaintiff and D. Ws. 1 to 7 were examined on behalf of the defendants and Exs. A-1 to a-31, X-1, B-1 to B-15 were marked. The suit was decreed on the ground of permissive possession and the plea of adverse possession raised by the 2nd defendant was negatived.

( 5 ) NOW, the only question that is to be considered is whether the 2nd defendant had acquired title to Item No. 1 of the plaint schedule property by adverse possession. In other words, since the exclusive possession of the 2nd defendant relating to Item No. 1 of the plaint schedule is not in dispute, the question is whether the plaintiff, under the guise of claiming the relief of partition, can eject or throw-out the 2nd defendant from item No. 1 of the plaint schedule property.

( 6 ) HEARD both sides. Sri T. Veerabhadrayya, the learned Counsel for the appellant-plaintiff had vehemently contended that the trial Court after elaborate discussion of both oral and documentary evidence recorded a finding that the possession of the 2nd defendant relating to item No. 1 is only permissive and permissive possession will never become adverse possession. The learned Counsel had placed reliance on V. Muthiah Filial (died) and others v. Vedambal and others, The State bank of Travancore v. Arvindan Kunj panicker and others. The learned Counsel also contended that in a Letters Patent appeal, the whole decree lies open and there can be re-appreciation of both fact and law and relied upon decision of Supreme Court in Smt. Asha Devi v. Dukhi Sao and another. The learned Counse1 making elaborate submissions had taken us through the respective pleadings and also evidence and further had drawn our attention to the relevant findings 6f the trial Court and of the learned Single Judge. The learned Counsel also had pointed out that the learned Single judge had not adverted to certain of the aspects and had reversed the well-considered judgment of Court of the first instance. The learned Counsel also had contended that plea of adverse possession is a mixed question of fact

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