The judgment establishes that adverse possession requires actual possession and a specific period of time, and the timing of the suit in relation to the possession is crucial in determining adverse possession claims.

S. Ali Ahmad, J.

1. The plaintiff-appellant filed a suit for declaration of title with respect to 0.03 acre of land of pot No.3079 (Municipal Kheshra No.1765) together with a house situated thereon in Mahalla Nawadah in the town of Arrah.

2. The plaintiffs case, inter alia was that the plot in question belonged to Kashim Sah who died leaving behind two sons, Fazal Sha and Sami Sah. There was a partition of the plot between the two sons. Fazal Sah was allotted three decimals on the southern, side ; whereas Sami Sah was allotted 3 decimals on the northern side. The plaintiff says that he purchased from Fazal Sah the southern portion of the plot measuring 3 decimals under a registered sale-deed dated 21st july, 1966. It is said that thereafter he came in possession of the said land and applied for mutation, but the same was illegally refused and at that time it transpired that the defendants were claiming the property as their on the basis of an auction purchase in Execution Case No.33 of 1943. It is said that the defendants did not acquire any tide on the basis of the aforesaid sale and the delivery of possession was also only on paper.

3. The defendants appeared and contested the suit. According to them, the land belonged to Tafazul Sah the father of Kasim Sah. It is said that one sheikh Rahman Bux obtained a decree against him and put the same in execution from a decision of Shri Sachidanand Roy, Fifth Additional District Judge, Arrah dated 15th May, 1980 affirming the decision of Shri Bamchandra Prasad, Second Munsif, arrah dated 16th August, 1976, (i. e. , Execution Case No.33 of 1943) and in that execution proceeding was auctioned and sold and purchased by Sheikh Rahim Bux, who was then the Secretary of Dharmen Masjid. It is said that Kashim Sah son of Tafazul sah and the father of the vendor of the plaintiff filed an objection under Order xxi, Rule 58 of the Code of Civil Procedure, but the said objection was rejected. No suit under Order XXI, Rule 63 of the Code of Civil Procedure was filed. Thereafter the property was sold and hence sale certificate was prepared in the name of Sheikh Rahim Bux who took delivery of possession on the 2nd february, 1946. It was said that thereafter the defendants were in possession of the suit house through different tenants including one Hamid.

4. The courts below on a consideration of the evidence, came to the conclusion that no title was left Fazal Sah and, therefore, the sale-deed dated 21st July, 1966 executed by him in favaur of the plaintiff did not convey any title. Although it was not specifically mentioned in the pleadings that, the plaintiff had acquired title by adverse possession, yet the courts below examined the case of possession of the plaintiff and held that the plaintiff was not in possession over the disputed land. On the basis of these findings the suit was dismissed by the trial court as well as by the first appellate court.

5. During the pendency of this appeal an application under Sec.151 of the Code of Civil Procedure has been filed wherein it has been stated that mohammad Jamiluddin has now been elected as the Secretary of the Dharman masjid, Arrah. A prayer, therefore, has been made that his name may be substituted in place of Massiuzamma, who was the Secretary of the said masjid. Therefore, after hearing both parties on 6th April, 1984 the name of Mohammad Jamiluddin has been, substituted in place of respondent no.1.

6. It has been urged in support of the appellant that the trial court should have framed an issue as to whether the plaintiff has acquired title by adverse possession. It is said that since this issue has not been framed, the Judgment and decree passed by the courts below should be set aside and the case be sent back to the trial court for taking evidence after framing an issue on the point. It has been stated in the plaint that Fazal Sah was in possession of the suit land, and the plaintiff purchased the same from him in the year 1966 and si