1. The plaintiff in the Court of first instance is the appellant here. He brought the suit, out of which this appeal has arisen, praying for a declaration of his title to a large tract of land the largest portion of which was covered with wood, water, etc., and in the alternative, for possession. He said in his plaint that once many years ago the parties were co-sharers, that there was a partition in 1889 and the entire tract of land fell to the plaintiff's share and was formed into one complete mahal. He further stated that a short time before the institution of the suit, that is to say in 1918, the defendants had a partition case among themselves and as a result of that they divided the land. He further alleged that on the 24th of October, 1918, the defendants interfered with his possession. The suit was instituted on the 10th of December, 1918. The defence was that the title was with the defendants and at any rate they had acquired it by having completed twelve years' adverse possession.
2. The Court of first instance found that the plaintiff had failed to prove by satisfactory evidence his possession within twelve years of the suit, Ho also found that the defendants too had failed to prove their adverse possession for that period. The learned Subordinate Judge applied Article 144 of the Indian Limitation Act and said that the defendants having failed to prove twelve years' adverse possession, the plaintiff ought to succeed. He accordingly gave a declaration as to plaintiff's title. Some of the defendants appealed and the learned District Judge decreed the appeal having applied Article 142 of the Indian Limitation Act.
3. In this Court two main points have been urged. First, it has been urged that the plaintiff's title having been found to have existed in 1889, it was for the defendants to have proved adverse possession far over twelve years. The second point urged is this. A large portion of the land which is unculturable is covered with wood and water and that the nature of this land has not been taken into consideration by the learned Judge of the lower Appellate Court. The argument is that where possession is doubtful and title is clear, possession ought to follow title. As we read the judgment of the learned District Judge, we find that he also agreed with the Court of first instance that the plaintiff had made out his title under the partition of 1889 the learned Judge, however, found that in the settlement of 1901 the plaintiff's name disappeared from the settlement record, and that the names of the defendants have continued since the last settlement. He, therefore, found that the plaintiff had failed to prove that any title subsisted in him. Evidently he applied the Article 142 of the Limitation Act.
4. It appears to us that the plaintiff having proved that he got the lands in suit in 1889, that fact should have been taken as the basis of decision. The plaintiff nowhere stated in the plaint that ha had bean dispossessed. It has not been found as a fact that he was actually dispossessed on a certain date. In the circumstances according to the Privy Council case of The Secretary of State for India v. Chellikani Rama Rao A.I.R. 1916 P.C. 21, followed in Jai Chund Bahadur v. Girwar Singh (1919) 41 All. 669. Article 144 would apply and the learned Judge should have considered whether the defendants had completed a title in themselves by being in adverse possession for twelve years.
5. The second point mentioned above is really involved in the first. In considering the question of possession, the learned Judge will have to consider the nature of the property. How far that property is capable of being possessed directly will have to be considered. We may draw the learned Judge's attention to a recent case decided on the 18tb of July, 1921 by their Lordships of the Privy Council in Kuthali Moothavar v. Pertingali Kunharankutty A.I.R. 1922 P.C. 181. That case related to certain hills. The title was with one party and the other party had proved that he had exercised possession over the property in a clearer manner than the party having the title. In the circumstances of the case the Judicial Committee held that the party with title should succeed. We are of opinion that the learned Judge has approached the case from a wrong point of view and it is necessary that ha should reconsider the ease in the light of the remarks contained in this judgment. We accordingly set aside the decree of the Court below and remand the ease to it for being re-tried. Costs here and hitherto will abide the result.