1. This is a plaintiff's appeal against the order of a single Judge of this Court. The plaintiffs filed a suit in which they sought for a declaration that they had acquired a title by adverse possession to a plot of land 8 biswas in extent, namely plot No. 330 in Mahal Baru Mal, mauza Kota. The trial Court dismissed the suit. I n appeal however the learned Civil Judge of Saharanpur reversed the order of the learned Munsif and granted decree as Sirayed for. The defendant came in second Appeal to this Court and the learned single Judge has allowed the appeal and restored the order of the learned Munsif dismissing the suit. The material facts of the case are not in dispute. The title to the land in question is in the defendant. It is a matter of admission however that for a long period of years the plaintiffs had tethered their cattle on the land, and further they had been in the, habit of storing logs of wood thereon. Furthermore, some considerable time ago the plaintiffs, apparently with the intention of building walls to enclose the plot, constructed foundations for these walls. They never however went beyond the construction of the foundations. The land in dispute has never been enclosed by the plaintiffs. In these circumstances the learned single Judge held that although the plaintiffs' possession had been open and continuous, it had not been adverse to the defendant or his predecessors and that therefore the plaintiffs had failed to show that they had qualified a title to the land by adverse possession.
2. We find ourselves in agreement with the learned single Judge. The mere tethering of cattle and storing of logs on a piece of waste land does not amount to denial of title of the true owner of the land. The principle to be applied in cases of this kind was reiterated in a judgment of the Privy Council in Secy. of State v. Debendralal Khan . There, their Lord-whips approved of the principle that
the possession required to establish a title to immovable property under the Limitation Act 1908, Section 28 and Article 144 must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor.
3. In our judgment the tethering of cattle on the land in dispute, which is waste land, and the storing of logs thereon, is no indication of possession which is intended to be adverse to the title of the proprietor of the land. In this connexion we would refer to the decision in Framji Cursetji v. Goculdas Madhowji (1892) 16 Bom. 338. The facts of that case were that a party claiming to have established a right to land by adverse possession had proved that on the land in dispute he had erected
a privy and shed for cows, goats, fowls, &c;, and a hut for a ghariwallah, all however structures of a flimsy and purely temporary character.
4. It was held that such user of the land was by itself insufficient to support a title thereto by adverse possession. Learned Counsel in support of his contention that the possession of the plaintiffs had been adverse to that of the defendant, referred to the case in Rompicherla v. Ismael Saheb (1913) 21 I.C. 765. In our judgment however the decision in that case does not advance the plaintiffs' case. It was there decided that where one of two owners of neighbouring lands encloses with his own a portion of the other's land, the act is a most unequivocal assertion of the intention to appropriate it. In the absence of any circumstance to show that the occupation was permissive, such possession must be held to be adverse.
5. In the present case the land in dispute was not enclosed by the plaintiffs. It appears to us that it would be unfortunate if the law were that by tethering cattle and storing logs upon waste land, the party to whom the cattle and logs belonged was necessarily asserting a title adverse to that of the true owner of the land. Such user oh waste land is such that the proprietor of the land does not generally affect thereto. If such were declared to be the law the permission of the use of waste land for tethering cattle and other kindred purposes generally granted to villagers by proprietors would speedily terminate. We are satisfied upon a consideration of the authorities that the law is otherwise. Learned Counsel for the appellant was forced in the end to admit, that the one act of the plaintiffs which could be regarded as amounting to an assertion of an intention to appropriate the land by the plaintiffs was the construction of the aforementioned foundations. We are unable to agree with learned Counsel that this fact in any way assists his clients. It may well be that when these foundations were constructed the plaintiff had considered enclosing the land and thereby asserting a claim to it adverse to the title of the defendant or his predecessor. Whatever may have been his intention, it is clear that he never carried it out. It may be because the defendant or his predecessor objected. The fact is however that the walls were never constructed and the land was never enclosed. No act therefore was done by the plaintiff which amounted to an unequivocal assertion of an intention to appropriate the land. Upon the whole, matter we are satisfied that the conclusion of the learned single Judge is sound. The appeal is accordingly dismissed with costs.