1. To my mind this is a clear case and has been misconstrued in the Courts below owing to two fallacies against which I have frequently protested. I think the Courts have misunderstood it probably because they did not actually study Arts. 142 and 144, Limitation Act, which deal with totally distinct matters which unfortunately are constantly confused, even by decisions in the High Court. Secondly, the lower appellate Court committed the fault of deciding the limitation issue only instead of disposing of all the issues so that the Court of appeal could give a final decision if it was wrong. Now the case will have to go back. It is a difficult task to decide in every case what cause of action the plaintiff intended to set up when the controversy is about the Article in the Limitation Act, partly because the pleading is not consistent and also because I am afraid pleaders have by bitter experience got into the habits of claiming possession when really the relief which they claim is declaratory, because they have had so many cases of declaratory relief dismissed under the Specific Relief Act.
2. But reading between the lines the plaintiff claims title. You cannot call it an ejectment suit, because the plaintiff alleged in para. 5 that the defendant 2 was never in possession. What he probably meant to say was that in some way or another the defendant had threatened the plaintiff's possession, or had cast some cloud or threat upon the plaintiff's title, and on the face of it, it is odd and inconsistent to claim recovery of possession from a person who at the same time you say was never in possession, and a suit for possession against a person who has never been in possession must fail. But defendant 2 cured any defect which there was in the plaint. Two negatives do not make an affirmative but two defective pleadings sometimes make an intelligible cause of action, and it is quite obvious that the real issue was that the defendant claimed to have been in adverse possession. By para. 3 she pleaded that since the death of Ranjit Singh she alone had been in proprietary possession, and issue 3 was framed on that plea. Now I have exhausted myself in trying to explain the irreconcilable cases and to make clear the difference between Arts. 142 and 144 in a judgment by a Bench to which I was a party reported in the case of Jai Chand v. Girwar Singh  41 All. 669 in which I endeavoured to explain and enforce the decision of the Privy Council in the case of Secy. of State v. Chelikani Rama Rao A.I.R. 1916 P.C. 21 which I regard as a command to the High Courts in India, and as having overruled several decisions in this and other High Courts. If the suit is for possession by a plaintiff who says that while he was in possession of the property he was dispossessed or has gone out of possession, then he must show possession within 12 years because the suit must be brought within 12 years of the date of the dispossession, and nobody can be dispossessed who is not already in possession, nor can you retain possession unless you are in possession. But in every other case in which a plaintiff claims possession of immovable property, it must be a case under Article 144, because it is a case not otherwise specifically provided, and in such a case limitation only begins to run where the defendant's possession becomes adverse. The result of that is that the onus lies on the defendant to plead and prove that his possession became adverse and continued adverse for more than 12 years before the suit. In this case the defendant alleged it. She has failed to prove it in this sense that both the Courts have got off the rails and have found not in favour of the defendant, which was the only way in which the defence could succeed, but against the plaintiff. The first Court says that the suit ought to have been brought within 12 years of the date of the death of Ranjit Singh. That is quite irrelevant. It had to find that the defendant had been in adverse possession continuously since the death of Ranjit Singh in order to entitle the defendant to succeed on this issue. The lower appellate Court has done practically the same thing. In a judgment, which I can only describe as vague, it finally comes to the conclusion that the plaintiff's right of possession arose on the death of Ranjit Singh. It may have done so, but before the defendant could succeed on this plea she had to obtain a finding that she had been in adverse possession.
3. I suspect that the findings favourable to the defendant in both the Courts on this misdirection were obtained by citing to the learned Judge the old authorities under Section 142, which do not apply, and that probably those who argued the case are just as much responsible as those who have decided it, but the defendant having pleaded it, an issue having been framed upon it, both Courts having decided it, and the defendant having failed to obtain from either Court a finding that her possession had been continuous and adverse for more than 12 years, the matter has been decided unfavourably to the defendant and is no longer, to my mind, a relevant issue in the suit and ought to be treated as decided in favour of the plaintiff. The rest of the case must go down for the disposal of the remaining issues.
4. We, therefore, allow the appeal, set aside the decree of the Court below, and remand the case under Order 41, Rule 23, to be disposed of according to law.
5. The second appeal arises out of a suit brought by the plaintiff's in respect of certain property. Defendant 1 is the father of the plaintiffs. Defendant 2 is the widow of their father's first cousin Ranjit Singh. The plaint sets forth that Ranjit Singh was joint with Badri, father of the plaintiffs, that on the death of Ranjit Singh the property came to their father Badri by survivorship, but that the name of the widow, i.e., defendant 2, was recorded in the village papers by way of consolation, though she was never in possession of the property. It goes on to state that the plaintiffs' father brought a suit against the widow in respect of the property and was unsuccessful. It does not say whether that suit was one for possession or merely for declaration. It goes on to say that the plaintiffs are not in any way bound by the finding in that suit against their father as he was not representing them, but, notwithstanding this fact, the defendant 2 has been obstructing the plaintiffs in their possession of the property. The natural relief to be asked on these facts was one for a declaration, but the plaintiffs have not only asked for an injunction against the widow but they have asked to recover possession of the property from her. Unfortunately, the lower Courts both appear to have treated this suit as one for possession of the property. At the present stage it appears to me to be too late to treat it otherwise, especially this appeal has been argued by counsel on both sides on the basis of its being a suit for possession.
6. The trial Court framed an issue as to whether Ranjit Singh was joint or separate from Badri, the father of the plaintiffs, and held that, he was separate. This finding was against the plaintiffs. Again the trial Court held that the father had represented plaintiffs in the suit against defendant 2, and so the claim was barred by the rule of res judicata. Lastly it held that the widow, defendant 2, had been in adverse possession of the property for more than 12 years. Now this last finding was inconsistent with the finding that Ranjit Singh was separate from Badri. If he was separate then the widow would be in possession as a widow and could not be in possession adversely.
7. The lower appellate Court only dealt with the question of limitation. It affirmed the decision of the trial Court that the widow had been in adverse possession for more than 12 years at the date of suit. The same objection exists to this finding as was mentioned above. If Ranjit Singh was separate from Badri, there could be no question of adverse possession.
8. I would, therefore, remand the case to the lower appellate Court. The lower appellate Court should consider the finding of the trial Court as to Ranjit Singh being joint with Badri or otherwise. If it finds that he was separate from Badri, as was found by the trial Court, then no question of adverse possession arises. The widow is entitled as a widow to maintain possession of the property and the suit must fail as the plaintiffs do not sue for a declaration as reversioners against the transferees, that the alienation to them is only good for her lifetime. If, however, it finds that the family was joint, it will be necessary for the lower appellate Court to decide whether the widow has acquired a right to the property by 12 years' adverse possession. In coming to decision on this point the Court should remember, as pointed out by my learned brother, that the burden of proof is on the widow and not on the plaintiffs. Thirdly, the lower appellate Court will have to decide whether the trial Court was right in holding that the suit between the father and the widow was by the father as representing the plaintiffs. If it agrees with the decision of the trial Court then this suit will clearly be barred by operation of res judicata.