Adverse possession requires adequate continuity, publicity, and extent, and a plea is needed to show when possession becomes adverse to determine the starting point of limitation.

Tarun Kumar Gupta, J.:-

1. This appeal is directed against the judgment and the decree passed by Learned Additional District Judge, 2nd Court, Asansol in Title Appeal No. 8 of 2004 / 71 of 2003 by setting aside the judgment and the decree passed by learned Civil Judge (Junior Division), 2nd Court, Asansol in Title Suit No.233 of 2000.

2. The respondents / plaintiffs filed said suit for declaration and mandatory injunction alleging that their father Debkumar Dasgupta purchased ‘A’ schedule property from Bengal Coal Company Ltd. on 8th October, 1971 on payment of a valuable consideration (Rs.600/-) and came into possession of the same on the 22nd of October, 1971. It is further case that the defendant No.1 company proposed to hand over the ‘B’ schedule property to their father in exchange of the ‘A’ schedule property in terms of a deed of exchange. Though the plaintiffs’ father delivered possession of the ‘A’ schedule property and came into possession of the ‘B’ schedule property, but deed of exchange was not executed in spite of repeated requests. The plaintiffs’ father died on 21.09.1979 and the plaintiffs as his heirs and legal representatives continued to possess ‘B’ schedule property as of right. Only when the plaintiffs tried to sell out the ‘B’ schedule property they came to learn about said non-execution of deed of exchange by the defendant No.1 Company. As in spite of repeated requests and sending of lawyer’s notice dated 12th of May, 2000 the defendant company did not execute the deed of exchange, the plaintiffs were compelled to file this suit for declaration and mandatory injunction.

3. The defendants filed a written statement denying material allegations of the plaint and contending inter alia that the suit was not maintainable as plaintiffs already filed another suit being Title Suit No.33 of 1999 against these defendants on similar and identical grounds. It is a specific case that the alleged sale by M/s. Bengal Coal Company Ltd. to the plaintiffs’ father on 08.10.1971 was illegal, inoperative and collusive and that both ‘A’ schedule and ‘B’ schedule properties were properties of Bengal Coal Company Ltd. and that after nationalization of Coal Mines said lands vested to the defendant No.1 Company as per provisions of Coal Mines (Notification) Act, 1973 free from all encumbrances. It is further case that the suit lands were all along under the occupation of Bengal Coal Company Ltd. and thereafter under the defendant Company and the plaintiffs or their predecessor in interest were never in possession of the same and the suit was liable to be dismissed with cost.

4. Learned Trial Court framed several issues and after contested hearing dismissed the suit by observing that plaintiffs failed to adduce any cogent evidence to establish either their title to ‘A’ schedule or to ‘B’ schedule property or their possession thereon.

5. The plaintiffs preferred an appeal being Title Appeal No. 8 of 2004 / 71 of 2003 which after contested hearing was allowed by allowing decree to the plaintiffs as prayed in the plaint. Learned Lower Appellate Court in the process observed that though there was no registered document regarding purchase of the ‘A’ schedule property by the plaintiffs’ father from M/s. Bengal Coal Company Ltd. and though admittedly there was no registered deed of exchange executed by the defendant company allowing the exchange of ‘A’ schedule property with ‘B’ schedule property, but the plaintiffs and before plaintiffs their father were in possession of ‘A’ schedule property and thereafter ‘B’ schedule property and that in this way plaintiffs acquired a title to the ‘B’ schedule property by way of adverse possession.

6. At the time of admission of this second appeal filed at the instance of the defendant Company the following substantial questions of law were framed :

(a) Whether the learned Court of appeal below was justified in holding that the suit out of which the present appeal arises was not hit by order 23