Possession must be hostile and express to establish adverse possession; mere long possession without knowledge of ownership does not suffice.

JUDGMENT

Mr. Kuldeep Tiwari, J.

This is regular second appeal filed by the plaintiffs. Both the parties hereinafter referred to with their respective status before the learned lower Court concerned. It is a decree of reversal.

2. The plaintiffs filed a suit for possession of the suit land with the allegations that they are owners in equal shares of 1/6th share of the suit land. Previously, Bhagwan Singh, husband of plaintiff No.1 and father of plaintiffs No.2 and 3 was in possession of the the suit land. It was further pleaded that taking undue advantage of the absence of the plaintiffs, the defendants, who have their land adjacent to the plaintiffs' land, have encroached upon some portion of the land of the plaintiffs. After having doubt about the illegal encroachment made by the defendants, a demarcation was carried out on 12.11.1984 and it was found that out of khasra No.288/2, an area of (1-0) and in khasra No. 389 an area of (0-16) has been found in illegal possession of the defendants No.1 to 3 and out of khasra No.405/2, an area of (0-18) is in illegal possession of defendant No.4.

3. Upon notice, the defendants filed the written statement denying the pleadings of the plaintiffs and pleaded that they are in possession of their land and they have not encroached upon the land of the plaintiffs. The defendants further raised the issue of correctness of the demarcation report and apart from that an additional plea was also taken regarding the maintainability of the suit in the present form and in the alternate, they have set up a plea of adverse possession.

4. Upon replication filed by the plaintiffs, the learned lower Court concerned framed the following issues:-

"1. Whether the plaintiffs are owners in equal share of 1/6th share in the land mentioned in para No.2 of the plaint?OPP.

2. Whether the defendants have encroached upon the land in suit?OPP.

3. Whether the suit is not maintainable?OPD.

4. Whether the suit property is not properly specified? IF so its effect?OPD.

5. If issue No.2 is proved whether the defendants have become owners by way of adverse possession?OPD.

6. Whether the suit is within time?OPD.

7. Whether the suit is properly valued for the purposes of court fee and jurisdiction?OPP.

8. Whether defendant No.4 is entitled to special costs under Section 35-A C.P.C.?OPD.

9. Relief."

5. Before this Court proceeds to mention the facts further, it is relevant to note here that the suit was earlier dismissed, however, in the appeal preferred by the plaintiffs, the lis was remanded back to the learned lower Court concerned to decide afresh after getting demarcation of land conducted by appointing a Local Commissioner to the rank of Naib Tehsildar. Thereupon, the demarcation was conducted and the defendants were found in illegal possession of the land belonging to the plaintiffs.

6. The learned lower Court concerned has decided issues No. 1 to 7 in favour of the plaintiffs and issue No.8 was not pressed by the defendants and, therefore, decided in favour of the plaintiffs and decreed the suit vide judgment dated 24.8.1988.

7. Having aggrieved with the judgment and decree (supra), the defendants filed the first statutory appeal. The learned Appellate Court concerned though maintained the findings on issues No.1 to 3 in favour of the plaintiffs, however, decided issue No.4 in favour of the defendants and declared them as owners by way of adverse possession of the portion of the land belonging to the plaintiffs upon which they have encroached upon. This caused grievance to the plaintiffs and they filed the present regular second appeal.

Submissions By The Learned Counsel For The Appellants

8. Learned counsel for the appellants-plaintiffs would submit that the findings on issues No. 5 and 6, which were decided against them by the learned First Appellate Court, are infact perverse and, therefore, liable to be set-aside. He further submits that once issues No.1 and 2 have been decided in favour of the plaintiffs then there was no