JUDGMENT :

Sugato Majumdar, J.

1.The instant Second Appeal was filed against the appellate judgement and decree dated 30/06/2008, passed by the Learned Additional District Judge, 3rd Court, Hoogly in Title Appeal No.74 of 2004, reversing the judgment and decree of the Trial Court dated 12/03/2004.

2. The sum and substance of the plaint case was that the Plaintiffs jointly purchased a plot of land admeasuring 2 cottahs 20 sq. ft. along with structures standing thereon (suit property) on 17/02/1992 by a registered deed of conveyance. Prior to purchase, the Defendant No.1 was in occupation of the same as caretaker. On the date of execution of the deed of conveyance, the proforma Defendant No.2 cancelled the license granted to the Defendant No.1 and asked to handover the possession. On request, a fresh leave and license was granted to the Defendant No.1 by the Plaintiffs. On or about 06/10/1994 the Plaintiffs requested the Defendant No.1 to quit and vacate the suit property but they requested for extension of license for another period of six months to which the Plaintiffs agreed. Again on 21/06/1995, the Plaintiffs requested the Defendant No.1 to vacate the suit property but the Defendant No.1 denied. On being constrained, the Plaintiffs instituted the original suit for recovery of possession along with other reliefs.

3. The Defendant No.1 contested the suit by filling written statement denying all the allegations. The Defendant No.1 denied that he was a caretaker under the Defendant No.2. It was denied that on verbal request, the Plaintiffs allowed the Defendant No.1 to continue possession. The positive case of the Defendant No.1 was that he was an “Adivasi” and had been residing in the suit property by constructing two tile shaded rooms with brick built walls; the Defendant No.1 had also been enjoying the usufructs of the land and fruit bearing trees since 1963. The Defendant No.2 came on 01/01/1970 and asked him to vacate but not only he refused to do that but ousted the Defendant No.2 from the suit property. The Defendant No.1 had been in possession of the suit property forcefully, continually with full knowledge of the Defendant No.2 by making construction therein. In other words, the Defendant No.1 raised the defense of adverse possession to the claim of the Plaintiffs.

4. The Trial Court framed four issues on the basis of rival pleadings:

1. Is the suit maintainable in its present form?

2. Are the Plaintiffs owners of the suit property?

3. Is the Defendant a licensee in the suit property?

4. Are the Plaintiffs entitled to get decree as prayed for?

5. The Trial Court decided the Issue No.1 and 2 in favour of the Plaintiffs. So far as the Issue No.3 was concerned, it was observed by the Trial Court that the Plaintiffs failed to prove their case. It was also observed that the Plaintiffs failed to file any document to show their possession in the suit property. The Plaintiffs also failed to prove grant of license to the Defendant No.1. The Issue No. 3 was decided against the Plaintiffs. On appreciation of evidence, the Trial Court dismissed the suit.

6. On being aggrieved and dissatisfied with the judgment and decree passed by the Trial Court, the Plaintiffs preferred the first appeal. The Appellate Court set aside the judgment and decree passed by the Trial Court. The Appellate Court observed, while setting aside the judgment and decree of the Trial Court that a person who claimed title to the property by adverse possession, must establish that the possession was adequate, continuous and that it must be known to the real owner as adverse. If there is no evidence as to when the possession became adverse, a new suggestion that the possession was uninterrupted for twelve years is not enough. The Defendant No.1 failed to establish the same, as observed. It was further observed that though the Defendant No.1 claimed to have made constructions but no pleading is there to indicate that such construction was made in order to exclude the real ow