A person who openly and continuously possesses land under a claim of right adverse to the title of the true owner for the statutory period acquires title to the land by adverse possession, regardless of his belief that the land belonged to himself.

This appeal is by the defendants and is directed against the judgment and decree passed by the Assistant District Judge, Barpeta in Title Appeal No. 132 of 1970.

2. The material facts of the case may be briefly stated as follows:

Defendant No. 6, Satyanath Sarma, took settlement of 3 kathas 16 Lechas of land covered by dag No. 66 of K. P. Patta No. 276, more fully described in the schedule to the plaint, on payment of cash rent of Rupees 16/- per annum and was in possession of the land. During his illness during the last re-settlement operation the defendants dispossessed the plaintiff from the land. The plaintiff then served notice on the defendants demanding vacant possession of the land. Defendant No. 6 complied but defendants Nos. 1 to 5 did not. Hence he filed the present suit for recovery of possession.

3. Defendants Nos. 1 to 5 have filed a joint written statement while defendant No. 6 has filed a separate written statement, they have denied that defendant No. 6 was ever a tenant under the plaintiff and that he had vacated the land on demand by the plaintiff as alleged by him. They have also denied that defendants 1 to 5 trespassed on the suit land as alleged by the plaintiff. They have further pleaded that defendants 1 to 5 acquired title to the land by adverse possession.

4. The trial court held that defendants Nos. 1 to 5 have acquired title by adverse possession on the suit land and dismissed the suit. On appeal the first appellate court rejected, as false, the plaintiffs case that defendant No. 6 was a tenant and that he vacated it about 4 or 6 years ago and that defendants 1 to 5 trespassed into the land during the last re-settlement operation. He has concurrently found that defendants 1 to 5 were in possession of the land for more than 12 years. He, however, found that the "plaintiff lost his father at the age of 1 ½ years and, therefore, he grew up in the house of his maternal uncle. During that period the defendants came to occupy the land. But their possession was entirely of a permissive nature."

5. The finding of the first appellate Court, quoted above, is unsustainable in law inasmuch as it is inconsistent with his own rejection of the plaintiffs case of tenancy of the land under the plaintiff as false. The plaintiff pleaded that defendant No. 6 was a tenant under him. This case has been concurrently rejected by both the courts below. It was nobodys case that defendants 1 to 5 were tenants under the plaintiff or that they were in permissive possession of the land under him. The plaintiffs definite case was that defendants Nos. 1 to 5 were trespassers, while the case of defendants 1 to 5 was that they have been possessing the land as a part of their own patta land since the days of their fore-fathers. The case of permissive possession is a new case not pleaded by any of the parties, but made out by the lower appellate court. A court cannot, under the law, make out a new case not pleaded by the parties. The above finding, therefore, is to be quashed.

6. But for this erroneous finding the learned first appellate court, otherwise, upheld the judgment and decree of the trial court.

7. Shri J. N. Sarma, learned counsel appearing for the respondents strenuously submits that even without this finding of the first appellate court, the judgment and decree of the first appellate court are sustainable in law. He submits that on the facts and circumstances of the case it must be held that defendants Nos. 1 to 5 have not acquired title by adverse possession. His submission is that these defendants have pleaded that they believed that the land in question was a part of the land covered by their own patta, while both the courts below have found that in reality the land is covered by the patta belonging to the plaintiff. To put it more precisely his submission is that when the defendants 1 to 5 under a mistaken belief possessed the land, their possession, however long it may be will not constitute adverse possession. H