S.K. Ray, J.
1. This second appeal is by the plaintiffs. Their suit has been dismissed by the courts below.
2. Plaintiffs filed their suit for recovery of the suit land from the possessionof the defendants who had encroached thereupon by constructing a wall and putting up a fence and amalgamating the same with theirown plots, for permanently restraining defendant No. 1 from opening and using the window which he had opened in his wall.
3. The facts which are no longer indispute are the plaintiffs are the owners ofplots Nos. 1451, 1452 and 1453 appertaining to khata No. 48 in mouza Ramkrishnapur. The defendants are the owners of plots Nos. 1437 and 1438 which adjoin respectively plaintiffs plots Nos. 1453 and 1452 to their west. Plaintiffs have their residential houseon plot No. 1453 and the defendants have their residential house on plot No. 1437 to its adjoining west. Plots Nos. 1451 and 1452 which lie to the adjoining north of plot No. 1453 contains the bari of the plaintiffs. Similarly plot No. 1438 which is adjoining north of plot 1437 is the bari of the defendants. Defendants have put up a pucca wallwhich runs from north to south encroaching a portion of plaintiff's plot No. 1453, and thus stands on a part of plot No. 1453. From the northern extremity of this pucca wall a green fence runs to further north in a straight line with it encroaching portions of plots Nos. 1451 and 1452 belonging to the plaintiffs. This green fence is of big and smalltrees like siju, orakha, tamarind and ambada trees. The age of these trees, as found, willbe 10 to 15 years. A commissioner was deputed to make measurements of various plots to find out if there was encroachment and the extent of such encroachment. He submitted a report, which has been accepted, stating that the defendants have encroached 2 x 90 links of plot No. 1453 on which the pucca wall stands, and 3 other encroachments of 2 x 70 links, 6 x 100 links and 16 x 32 links at different points of plots 1452 and 1451 of the plaintiffs. The plaintiff's case is that these encroachments were made in the year 1959 or 1960 and want recovery of the same in addition to the other consequential reliefs as stated above.
4. Defence is twofold: First that they have not encroached upon the plaintiff's plot and the suit land appertains to their own plots. Secondly, they are in possession of it for more than twenty years and they constructed the wall and opened the window in question also for more than 20 years and that the plaintiff's privacy is not affected in any way.
5. The concurrent findings are that the pucca wall and green fence are in existence for more than 12 years before institution of the suit and the plaintiffs are out of possession of the suit land for that length of time. The lower Appellate Court consequently held that the plaintiffs have lost their right to sue for recovery of the same. The wall and the window have been in existence for a very long time and the defendants have acquired easementary right in respect of the window in question.
6. Two points have been raised on behalf of the appellants:--
(i) The first point is that in view of the fact that the parties are cousins and neighbours and the encroachments are small in extent, it was insufficient to give a title to the land by adverse possession, because user of this sort, under similar circumstances, is common in this country and excites no particular attention: and
(ii) The plaintiffs filed a petition for appointment of a fresh commissioner to ascertain the pucca wall has been constructed with bricks marked 'Jadu', This petition which was filed in consequence of the statement made by defendant No. 1 in his evidence that he purchased bricks in 1963 with which he constructed his house which was burnt in 1961 or 1962, has been wrongly rejected. It is contended that bricks bearing mark 'Jadu' were found to have been used in the pucca, wall it will conclusively prove that it has been constructed in the year 1963 thereby giving a death blow to defence case of adverse possession.
7. I will take up the second point first. This petition was filed at the end of trial, soon after defendant No. 1 had been examined. The lower Appellate Court rightly came to the conclusion that in absence of any admission on the part of defendant No. 1 that he had not purchased such bricks bear-ing mark 'Jadu' at any other time, the appointment of the commissioner in the circumstances would have become fruitless, because even if the commissioner found that bricks bearing the inscription 'Jadu' had been used in the construction of the pucca wall, that would not necessarily lead to a conclusion that the defendant's wall was constructed in 1963 and not long ago as contended by the defendants. I am of opinion that the petition was rightly rejected.
8. The present suit was filed on 13-10-1960. Therefore, old Limitation Act of 1908 applies. It being the plaintiff's case that while they were in possession they were dispossessed by the defendants about 1959 or 1960, Article 142 of the old Limitation Act would apply. Thus, in order to succeed, the onus is on the plaintiffs to prove that they were in possession within 12 years prior to the institution of the suit. In view of the concurrent findings that the wall had been constructed and the green fence put up for more than 12 'years, the plaintiffs obviously were not in possession within 12 years prior to the suit. The suit has been rightly dismissed.
To get out of the mischief of this article of the Limitation Act it is contended relying upon the statement of defendant No. 1 that the suit land is a part of his plot, that the defendant No. 1 never possessed the suit land adversely but under a mistaken notion that the land appertained to his plot and in view of the near relationship of the parties and the smallness of the encroachments such possession of the defendants would not amount to dispossession of the plaintiffs.
Reliance was placed by Mr. Sinha on a passage from the judgment of the Privy Council in the case of Sm. Bibhabati Devi v. Ramendra Narayan Roy, AIR 1947 PC 19, which runs as follows :
'Possession must be adverse to a living person, and, as she was possessing under a mistake as to his death, it is difficult to see how she can claim that by her possession she was asserting a right adverse to one whom she regarded as dead.'
Reliance was also placed upon another dictum of the Privy Council in the case of Ejas Ali Quidwai v. Court of Wards, Balrampur Estate, AIR 1935 PC 53 which runs as follows :--
'A person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed.'
9. If the possession of the defendants is held to be adverse possession then this contention would obviously fail. It is therefore necessary to review the judicial decisions as to what amounts to adverse possession.
The Privy Council in the case of Secy. of State v. Debendra Lal Khan, AIR 1934 PC 23 has dealt with, as to what constitute adversepossession. They accepted a previous dictum of the Board in the case of Radhamoni Debs v. Collector of Khulna, (at p. 140 of 27 Ind App 136) (PC) which runs as follows :--
'the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.'
After stating that the classical requirements of adverse possession are that the possession should be ne vi nec clam nec precario, they proceeded to say--
'Mr. Dunne for the Crown appeared to desiderate that the adverse possession should be shown to have been brought to the knowledge of the Crown, but in their Lordships' opinion there is no authority for this requirement. It is sufficient that the possession be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilante, to be aware of what is happening. If the rights of the Crown have been openly usurped it cannot be heard to plead that the fact was not brought to its notice.'
In the case of Rangalal Ram v. Makhan Lal, ILR (1949) Cut 804, this Court held that :
'Possession in the eye of law consists of the fact of physical occupation and the mental act of holding the subject of possession to the exclusion of others. Legal possession is occupation with the intention of exercising the right of ownership in respect of it. Mere acts of user which do not interfere and are consistent with the owner's title are not sufficient to constitute dispossession of the owner or start adverse possession in favour of the occupant. Possession is never considered adverse if it can be referred to a lawful title.''
The Allahabad High Court in the case of Niranjan Singh v. Mahabir Singh, AIR 193O All 845 held that where the conduct in possession, in certain cases, is like that of an owner it amounts to assertion of hostile title and they applied this principle in the case of possession of a co-sharer who having lost all interests in a family partition, was in cultivating possession of it believing that he had interest in it, and held that in the absence of anything to show that the co-sharers consented to such possession, that possession becomes adverse.
In the case of Mt. Aisha Bibi v. Allah Bakhsh, AIR 1934 Lah 684, the Lahore High Court considered construction of a wall more than 6 feet in height as an act of sufficient assertion of hostile title to the knowledge of the real owner and held that its existence for a period of 12 years more was proof of adverse possession.
By Privy Council in the case of N. Vareda Pillai v. Jeevarathnammal, AIR 1919 PC 44 has said that the character of possession of a donee under an imperfect gift, is adverse to the real owner. This was so because the donee's possession was open and on his own behalf to the exclusion of all others.
In the present case the defendants put up a pucca wall under the very nose of the plaintiffs and in continuation with the same they planted the trees which in course of 15 to 20 years grew to huge sizes. These acts of possession, in my opinion, by their very nature, are effective overt acts of possession without any attempt of concealment, even though the defendants were under the impression that the suit land was a part of their own plot, so that the plaintiffs against whom time was running ought, if they exercised due vigilance, to be aware of what was happening. The act of opening a window affecting the alleged privacy of the plaintiffs amounts to daily intimation that the defendants are possessing the suit land and using the same in their own right and thereby excites particular attention. Thus applying the aforesaid principles to these facts, it is clear that the possession of the defendants was adverse to the plaintiffs and the latter must be deemed to have been dispossessed. Such dispossession having taken place more than 20 years as has been found by the courts below, plaintiffs must be nonsuited having failed to prove their possession within 12 years of the suit.
10. Both the points having failed, there is no merit in this appeal which is accordingly dismissed. But in the circumstances of the case, the parties will bear their own costs throughout.