Deoki Nandan, J.
1. This is a plaintiffs second appeal in a suit for possession based on title in respect of the portion of a house in Mohalla Dariyabad, Allahabad. The plaintiff claimed to have acquired title to the house by purchase at a court sale in the year 1945. The number of the house when the suit was filed was alleged to be 694, Dariyabad, Allahabad. The portion of the house in suit was described as the western portion comprising of two dalans, two small kotharies and a small courtyard. It was the plaintiff's case that the defendants were in occupation of the portion in suit (house) as licensees on condition that they will make the necessary periodical repairs of the house and vacate the same when demanded by the plaintiff. The plaintiff revoked the defendant's licence by a registered notice dated 22nd May, 1962 and demanded possession.
2. The defence was denial of the plaintiff's title to the house No. 694, Dariyabad, Allahabad and an assertion of their own title to the house. It was also asserted that the defendants had been occupying the house in their own rights as owners and not as licensees. The defendant further pleaded that the plaintiff has not been in possession of the said house within 12 years of the suit and the suit is barred by Articles 142 and 144 of the Indian Limitation Act. The trial Court found that the plaintiff was the owner of the house in suit and the defendants were licensees of the plaintiffs in a portion thereof, that the suit was not barred by limitation and that the defendants were not in adverse possession of the house or owners thereof.
3. On appeal the lower appellate court confirmed the trial court's finding that the plaintiff is the owner of the house in suit but held that the plaintiff had not been in possession of the house within 12 years, next preceding the suit and that the plaintiff's case that the defendants were her licensees being incorrect, and the defendants being in possession openly, their possession must be deemed to have been adverse to the plaintiff.
4. Mr. Dhurva Narain, learned counsel for the appellant urged before me that the approach of the lower appellate court on the question of plaintiff's possession or the defendant's adverse possession was the result of mis-apprehension of law as to the applicability of Articles 142 and 144 of the Indian Limitation Act, 1908. He referred to the Full Bench decision of this Courtin Qadir Bux v. Ramchand (AIR 1970 All 289). It laid down that where a plaintiff is suing for possession on the basis of dispossession, Article 142 is applicable and the burden lies on him to show that he was in possession within 12 years of the suit, while on the other hand if the suit is for possession of immovable property not specifically provided for in any other Article, then in that case Article 144 would apply, and on proof of the plaintiff's title, the suit cannot be dismissed until the defendant establishes that he was in adverse possession for more than 12 years. The plaintiff's case was not that the defendants had at any point of time dispossessed her or that she had discontinued possession. Her suit was based on title. The title pleaded by her was found proved. It was accordingly for the defendants to affirmatively prove adverse possession for more than 12 years.
5. Mr. Dhurva Narain also referred me to the provisions of Arts. 64 and 65 of the Indian Limitation Act, 1963, and the observation of the Supreme Court in the case of Nair Service Society, Ltd. v. K. C. Alexander (AIR 1968 SC 1165) wherein it was observed that:
'The Limitation Act, before its recent amendment (i.e., the Indian Limitation Act, 1908), provides a period of twelve years as limitation to recover possession of immovable property when the plaintiff, while in possession of the property was dispossessed or had discontinued possession and the period was calculated from the date of dispossession or discontinuance......... The uniform view of the courts is that if Section 9 of the Specific Relief Act is utilised the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of 6 months has passed questions of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under Section 9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one. The present amended Articles 64 and 65 bring out this difference. Article 64 enables a suit within 12 years from dispossession, for possession of immoveable property based on possession and not on title whenthe plaintiff while in possession of the property has been dispossessed. Article 65 is for possession of immoveable property or any interest therein based on title. The amendment is not remedial but declaratory of the law.' (Italics Mine).
6. In view of this observation of the Supreme Court and the interpretation of Articles 142 and 144 given by the Full Bench of our Court in Qadir Bux's case (supra) on proof of plaintiff's title, the suit for possession which was clearly based on title and not on previous possession, could not be dismissed unless the defendants established that the period of 12 years had elapsed from the date when their possession became adverse to the plaintiff.
7. The lower appellate court did not consider the question of the plaintiff's possession and the defendant's claim to adverse possession in this light. It is, therefore, clear that - the findings of the lower appellate court on the question of plaintiff's possession and the defendant's claim to adverse possession are vitiated on account of its erroneous approach to the question.
8. In their written statement the defendants did not plead anything to show as to how they became owners of House No. 694 Dariyabad, Allahabad. They had claimed to be the owners of the whole of the house, although the plaintiff's case was that they were in occupation of only western portion of the house consisting of two dalans, 2 small kotharies and a small courtyard. This part of the plaintiff's case that the defendants were in occupation of only the western part of the house has been fully proved by the evidence on the record, documentary as well as oral including the own statement of the first defendant Nasrat Bibi. It is also proved that the plaintiff's brother Farman Ali Khan and his family was in occupation of the rest of the house which bore No. 395 Dariyabad, Allahabad.
It is further established from the record that the plaintiff's predecessor-in-interest Mst. Sikander Jahan Begum had filed a suit No. 539 of 1937 against Subhan Mohammad, brother of Defendants Nos. 1 and 2, in the court of the Munsif, West, Allahabad. That suit was decreed by the Munsifs court on 28th November, 1939 and the decree was affirmed by the first appellate court on 17th October, 1940. It was found in that suit that the father of the said defendant entered the house as a licensee and the plaintiff of that suit was entitled to possession as the owner of the house. The defendants have claimed in the written statement to have continued in possession of the house in the right of their father.
The position of the defendant's father in the house was found in the earlier suit by the plaintiff's predecessor-in-interest (Suit No. 539 of 1937) to be that of a licensee. The defendants have not pleaded or proved any hostile act of adverse possession after the date of the decree in suit No. 539 of 1937. Indeed the first defendant in her statement on oath stated that she lived in the house in suit in the status of her father although she also said that she lived as a owner. The status of the rather of defendants Nos. 1 and 2 in the house, being that of a licensee, the status of defendants Nos. 3 and 4 being sons of defendant No. 1, could not have been better than the status of the father of defendants Nos. 1 and 2 and the defendants were estopped from denying the title of the plaintiff to the house in suit under Section 116 of the Indian Evidence Act, unless they proved that the decree in suit No. 539 of 1937 was executed against Subhan Mohammad and that they entered into possession thereafter independently of their father's right of a licensee in the house.
9. The mere fact that the plaintiff has been found not to have been able to prove the case of having permitted the defendants to occupy the house as a licensee for the first time in the year 1958 cannot, in the light of the law as laid down by the Full Bench in Qadir's Bux's case (supra) deprive the plaintiff of her right to a decree of possession in the suit. The lower appellate court was wrong in holding that on failure of the plaintiff to prove her case of grant of licence in the year 1958, the possession of the defendants must be deemed to be adverse. According to the own case of the defendants they have continued in possession since the time of the father of the defendants Nos. 1 and 2, in the same right in which their father was occupying the house, which was found in suit No. 539 of 1937 to have been that of a licensee.
10. In the result the appeal succeeds and is allowed. The decree of the lower appellate court is set aside and the decree of the trial court for possession of the house in the plaintiffs favour against the defendants is restored with costs throughout. That part of the decree of the trial court which required the defendants to deliver possession of the house in suit within 6 weeks from the date of the judgment of the trial court is, however, deleted as neither necessary nor appropriate.