1. The finding is that the title to the property belongs to the plaintiff. The lower Appellate Court has also found that the defendant had not effective possession of the plot for more than 12 years before the suit. He at first had only what may be called fugitive possession by tying his cattle at the place.
2. Now, so long as the defendant had not taken effective possession, the legal possession of the land remained in the plaintiff, who was the owner.
3. It is contended that effective possession must be taken to have commenced at least on the date of Exhibit V, that is, in 1894, more than 12 years prior to the suit. Exhibit V is relied on as an admission of the defendant's title to the property by a stranger. But if the defendant's possession was not effective in its character, it is not easy to see how an admission of his title by a stranger would make it effective possession. Reliance is placed on a passage in Mitra on Limitation, 4th Edition, page 146, where it is stated 'in the absence of an openly avowed claim of right to the land, the acts and circumstances attending the appropriation or user must be such as imply or denote such a claim.' If the possession is of an ineffective character such as by tying cattle, assuming that its character could be improved by an assertion of title made to the owner's knowledge, we are clearly of opinion that it is necessary for the defendant to show that the owner had knowledge of such assertion, or that it was made under circumstances which would imply that he must have had knowledge. The case is not similar to one where the possession has been effective and adverse, in which case it is true that knowledge of such possession on the part of the owner is not necessary to give the defendant a title after the expiration of the period of prescription. We do not think the learned author intended to lay down anything different from our statement of the law. He speaks of 'an openly avowed claim' apparently meaning thereby a claim which may be taken to have come to the knowledge of the owner.
4. We dismiss the second appeal with costs.