1. This second appeal is filed by the plaintiff in a suit which was originally filed for fixation of boundary and later converted into recovery of possession. In this second appeal, the only question to be considered is with respect to a pond existing on the north-western portion of the plaintiff's property. Though there was a dispute with regard to a mango tree situated on the boundary of the plaintiff's property, the learned counsel for the appellant did not press that point in the second appeal.

2. With regard to the pond in question, the trial court originally denied the relief to the plaintiff and directed the boundary to be fixed on the eastern side of the pond and excluding the pond from the plaintiff's ownership and possession. The plaintiff filed an appeal and the appellate court remanded the case to the trial court. The appellate court observed that the learned Munsiff accepted Ext. C2 plan and he was of opinion that the survey demarcation in Ext. C2 plan is correct. Since the plaintiff did not care to amend the plaint by adding the relief for declaration to the effect that the pond, mango tree and the blue shaded portion in Ext. C2 plan belonged to her and are in her possession or in the alternative for recovery of possession if they are found to be in possession of the defendants and to fix the boundary, an opportunity was given for that purpose by remanding the suit to the trial court.

2. After remand, the trial court issued an Advocate-Commission to measure the property on the basis of the plaintiff's title deed and the survey records. The plaintiff's title deed takes in Survey No. 2360 and the disputed pond is admittedly found to be in Sy. No. 2360. The defendants have no claim with regard to any portion of the property in that survey number. The Commissioner also identified the property with respect to the extent and it was found that the disputed property is covered by the plaintiff's title deed. The contention of the defendants was that the pond was enjoyed by them along with the adjacent western property as if it is covered by their title deed. Therefore, it was contended that even if there was any title with the plaintiff, it was lost by adverse possession and limitation.

3. The trial court found that the oral evidence of PW.1 will go to show that the plaintiff or PW.1 has never enjoyed the pond and the western levelled up portion which is a portion of plaint A-schedule item No. 1. The trial court found that possession however long may be is insufficient to prescribe title unless there is animus to adverse to the true owner. It was observed that the defendants have not adduced evidence to establish the plea of adverse possession. It was also noted that there was no plea in the written statement that the pond came within plaint A-schedule item and it was being enjoyed by the defendants with the knowledge of the true owner hostile to their title.

4. In appeal, the lower appellate court found that from the description of property conveyed under Ext. Al it cannot be said that the pond was also conveyed to the plaintiff. According to the lower appellate court, if actually the property had been measured out on the date of execution of Ext. A2 the transferee as well as the transferor would have known that the pond is within the extent shown in the document and there will be clear description including the tank also. In that view of the matter, the lower appellate court found that the plaintiff has not established title with respect to the disputed pond.

5. I find it difficult to accept the reasoning of the lower appellate court. The Commissioner has identified the plaint schedule property with respect to survey number and the extent shown in the plaintiff's title deed. Whatever is included in the title deed must be deemed to have been conveyed to the plaintiff unless it is expressly excluded. If a conspicuous portion is excluded then it would have been shown as a boundary in the plaintiff's title deed. Ther