M.D. Bhatt, J.
1. Having lost in both the Courts below, the defendants have preferred the present appeal.
2. The plaintiffs, claiming their title with respect to the suit land, sued the defendants for possession of the land in question. This claim was based on the premise that the defendants were in permissive possession under licence for the last several years; but when asked to deliver back, they refused. The defendants denied the story of licence or permissive possession and equally denied the plaintiffs' title. The trial Court held that the title to the suit land vested in the plaintiffs and that the defendants were in long and continuous possession; but their such possession was not under any licence nor was it permissive to any extent. The trial Court, principally held the view that the suit for possession was governed by Article 144 of the Limitation Act, 1908 (corresponding Article 65 of the Limitation Act, 1963), and as such, decreed the plaintiff's claim, On appeal, being preferred, the lower Appellate Court upheld all the findings of fact of the trial Court and so also the finding on law pertaining to the applicability of Article 144 to the facts and circumstances of the case; and as such, the appeal was dismissed. Hence, now, the present appeal by the defendants.
3. The learned counsel for the appellants-defendants has vehemently urged before me the solitary point that both the Courts below were wrong in applying Article 144 to the facts and circumstances of the case. According to the learned counsel for the appellants, the facts and circumstances of the case actually attracted Article 142, inasmuch as, the plaintiffs' story of permissive possession having not (been) accepted by the Courts below, it was a case of 'dispossession' of the plaintiffs from the suit land or in the alternative, it was a case of the plaintiffs' 'discontinuance in possession'. The appellants' learned counsel in support of his arguments has cited Official Receiver v. Govindaraju (AIR 1940 Mad 798 (FB)), followed later on by this Court also in Daryaosingh v. Kalma Nihala (1960 MPLJ 1146) : (AIR 1961 Madh Pra 179).
4. Before taking up the crucial question whether in the light of the facts and circumstances proved on record Article 142 applied, as suggested by the learned counsel for the appellants or Article 144 applied as held by both the Courts below, it would be fruitful to state the concurrent findings of fact of the courts below. These concurrent findings of fact are :
(i) that the plaintiffs were the owners of suit land;
(ii) that the defendants are in continuous possession of the suit land for the last, at least, 40 years, and
(iii) that the plaintiffs' story regarding licence and permissive possession is without any proof.
5. These concurrent findings of fact are not assailed to any extent before me nor they could be so assailed. It is in the background of these concurrent findings of fact that this Court has to determine, whether the Courts below had rightly applied Article 144 or whether actually it was Article 142 alone which was attracted, as has been now argued by the learned counsel for the appellants. The lower appellate Court, after citing certain rulings, laying down the principles governing the applicability of Article 142 or 144, has ruled out the applicability of Article 142 to the facts and circumstances of the present case on the ground that there was no 'discontinuance of possession', i.e., 'abandonment of title' on the part of the plaintiffs since the plaintiff's had all along been anxiously taking steps to get back the possession by referring the matter to revenue authorities by successive proceedings as detailed and discussed in para 8 of its judgment. It was, hence, held that 'discontinuance of possession' being, thus, not deducible from the facts and circumstances, as pleaded and proved on the side of the plaintiffs. Article 142 was not applicable, and that, only Article 144 alone was applicable which being applied entitled the plaintiffs to the decree for possession in the absence of the defendants' any plea regarding adverse possession beyond the statutory period.
6. The lower appellate Court's above findings and the reasonings therefor, do not appear to be sound, when considered in the light of the plethora of case law dealing with the crucial matter as to what actually constitutes 'discontinuance of possession.'
7. The distinction between 'discontinuance of possession' and 'dispossession' was pointed out in the leading case Of Rains v. Buxton ((1880) 14 Ch D 537), in these words :
'The difference between dispossession and discontinuance of possession might be expressed in this way -- the one is where a person comes in and drives out the others from possession, the other case is where the person in possession goes out and is followed into possession by other persons.'
This definition has been widely accepted in Meharban Lalli v. Usuf Khan Kallu(AIR 1939 Nag 7), where, the law hasbeen succinctly laid down by VivianBose, J. thus :
'The term 'dispossession' applies when a person comes in and drives out others from the possession. It imports ouster, a driving out from possession against the will of the person in actual possession .........The term 'discontinuance' howeverimplies a voluntary act, an abandonment of possession followed by the actual possession of another. It implies that the person discontinuing has given up the land and left it to be possessed by any one choosing to come in. There must be an intention to abandon title before there can be said to be a discontinuance in possession. But this cannot be assumed.'
8. In Gangoobai v. Soni (1942 Nag LJ 99), it is held that 'if a plaintiff sues for possession on the allegation that the defendant came into possession under a licence from the plaintiff and the defendant denies the same, the suit will be governed by Article 142 and not by Art 144 of the Lim. Act, as the plaintiff will be deemed to have discontinued possession within the meaning of the former Article. The plaintiff in such a case must prove that the defendant's permissive possession began within 12 years of the suit.' (underlining is mine).
9. In Official Receiver v. Govindaraju (AIR 1940 Mad 798) (FB), the plaintiff had pleaded permissive possession and defendant had failed to establish it, as is also the case here. It was held by their Lordships after placing reliance on Alam Khan Sahib v. Karuppannaswami Nadan ((1938) 1 Mad LJ 113 : AIR 1938 Mad 415) that such a suit is governed by Article 142 and not by Article 144; and that in such a situation, the plaintiff was bound to prove his possession within 12 years of the suit. Similar view has been held in Krishna Pillai v. Kumara Pillai (AIR 1954 Trav Co. 449) and quoted with approval in the said High Court's subsequent decision Venkiteswara Iyer v. Cheriyathu Mathen (AIR 1957 Trav Co. 223). Their Lordships, invoking the applicability of Article 142, have observed in this connection that the defendant in admitted possession of the property is not obliged to lead evidence to prove that his possession has been hostile for the statutory period. When the alleged origin of his possession as also its permissive or derivative nature are seen to be baseless the plaintiff's claim for recovery of possession on the strength of such allegations must fail unless there is acceptable evidence on his side to the effect that he was in possession of the property within 12 years prior to the date of suit, so as to keep his title alive. The other cases which deserve attention in this regard are Taja Bibi v. Ghulam Mohd. (AIR 1961 J & K 82) and Lingamma v. Putte Gowda (AIR 1963 Mys 1 (FB)).
10. In the light of the decisions referred to above, it may be observed that in the present case also, the defendants are in possession of the land in question belonging to the plaintiffs for over 40 years continuously. Further, plaintiffs' allegations regarding licence and permissive possession are found to be not established. Hence, in these circumstances, plaintiffs would be deemed to have discontinued their possession within the meaning of Article 142. Article 144, would, in such circumstances, have no application at all. The plaintiffs admittedly being not in possession of the suit-land within 12 years before the suit, their suit for possession would, thus, fail; and the defendants, in such a case, would not be required either to plead or prove their adverse possession to any extent. In view of this matter, disagreeing with the lower appellate Court and so also with the trial Court, it has to be held in the light of the facts and circumstances of the case, that the suit, in the matter of limitation, would be governed by Article. 142, and not by Article 144 of the Limitation Act, 1908.
11. In the result, thus, the defendants' appeal is allowed. Setting aside the judgment and decree of the lower appellate Court; it is ordered and decreed that the plaintiffs' suit for possession be and is now dismissed as being time-barred under Article 142 of the Limitation Act, 1908. The respondents-plaintiffs do bear the costs of the appellants-defendants of this Court, and so also of the Courts below, besides bearing their own throughout. Counsel's fee as per schedule, if certified.