B.K. Patra, Ag. C.J.
1. The short and important point that arises for determination in this second appeal is whether Article 142 or Article 144 of the Limitation Act, 1908 applies to the facts of this case, which may be shortly stated.
2. One Hemachandra Behra who died in the year 1948 had a son named Suryananda and a daughter named Taramani defendant No. 6. During Hemachandra's life time, he had given his daughter Taramani in marriage to Banamali (defendant No. 7). Suryananda died some time after the death of Hemachandra. Suryananda's widow is Malati (defendant No. 1). On 10-4-1947 one Jagannath Jena sold 0.52 acre of land to defendant No. 6 who being then a minor was represented in the transaction by her father guardian Hemachandra. Ext. B is the sale deed. On 12-4-1947, one Gada Bewa sold 0,76 acre of land to defendant No. 6 who being minor was represented by her husband defendant No. 7, Ext. C is the sale deed. On 17-11-1947, Hemachandra executed a registered Patta in respect of 2.72 acres of land in favour of his daughter defendant No. 6 who being then still a minor was represented by her husband-guardian defendant No. 7. Ext, A is the Patta.
3. After the abolition of the estates in 1952 by which time Hemachandra was dead, his son as the proprietor of the tonzi in which the lands covered by Exts. A B and C are situated, submitted a rent rolf to the Anchal Adhikari in which defendant No. 6 was shown as recorded tenant in respect of those lands. On the strength of the rent roll so submitted, defendant No. 6 was recorded as a tenant in respect of those properties. On 24-4-1962, defendant No. 6 Taramani executed the sale deed Ext. 1 in favour of plaintiffs 1 and 2, in respect of 2.79 acres of lands which admittedly form a part of the lands covered by Exts. A, B and C.
4. It is the case of plaintiffs 1 and 2 that after the execution of the sale deed in their favour, possession of the disputed properties was delivered to them and they were in possession thereof and had in the year 1962, leased out the same for cultivation to plaintiffs 3, 4 and 5. The latter grew crops in that year, but the same was forcibly cut and carried away by defendants 1, 3, 4 and 5, It is unnecessary to refer at length to the circumstances under which according to the averments made in the plaint, defendants 1, 3, 4 and 5 acted high-handedly in the manner alleged, but it is asserted in the plaint that despite the disturbance to the possession of plaintiffs 1 and 2, they are still in possession of the lands and they brought the suit giving rise to this appeal for declaration of their title to and for confirmation of their possession therein, but if it is found that they have been dispossessed for a decree for recovery of possession.
5. The suit was contested only by defendant No. 1 and her minor son defendant No. 2. Their case, in short, is that Hemachandra Behra the proprietor of the estate being apprehensive of the incoming legislation regarding abolition of estates and with a view to save those properties executed the Patta Ext. A benami in favour of his daughter and for the same reason purchased the properties covered by Exts. Band C benami in the name of his daughter. It is alleged that neither defendant No. 6 nor her husband defendant No. 7 ever acquired any title to the properties covered by Exts. A, B and C and that they were never in possession thereof. The sale deed Ext. 1 executed by Taramani in favour of plaintiffs 1 and 2 is stated to be without any consideration and plaintiffs 1 and 2 never got and never had possession of the disputed properties which all along continued to be in possession of Hemachandra and after him in possession of his son Suryananda, and after the death of the latter have been in possession of defendants 1 and 2. It is further alleged that the suit is also barred by limitation.
6. The trial Court dismissed the plea of benami set up by the contesting defendants and held that the properties covered by Exts. A, B and C had been acquired by defendant No. 6 with her own rands. On the question of limitation, he held that relevant Article applicable to the facts of the case is Article 142 of the Limitation Act, and although the plaintiff No. 2 had title to the properties! he must in order to succeed establish that he was in possession of the properties some time during twelve years preceding institution of the suit. Discussing the evidence regarding possession adduced by both the parties, he found that the evidence was worthless on both sides and accordingly dismissed the suit.
7. On appeal, the District Judge upheld the finding of the trial Court that the contesting defendants failed to establish the benami character of transactions evidenced by Exts. A, B and C and that defendant No. 6 had acquired a valid title to the same. He also upheld the trial Court's finding that Ext. 1 is genuine and supported by consideration. But on the question of possession, he differed from the finding of the trial Court and held that defendant No. 6 was in possession of the suit properties till she executed the sale deed Ext. 1 in favour of the plaintiffs and accordingly passed a decree in favour of the plaintiffs 1 and 2.
8. The defendants having appealed to this Court, the appeal was allowed and the case was remanded to the lower appellate Court with certain directions. After remand, the learned District [fudge after hearing both the parties upheld the trial Court's finding that Exts. A, B and C are not benami, and that defendant Nos. 6 acquired a valid title thereunder and that in respect of the suit properties she executed the sale deed Ext. 1 in favour of plaintiffs 1 and 2 for consideration. On the question of possession, however, he held that the evidence on both sides regarding possession of the suit lands is unworthy of credence. He, therefore, 'in agreement with the trial Court, held that Article 142 of the Limitation Act applied to this case and that consequently the suit wasrightly dismissed. Hence this second appeal by the plaintiffs 1 and 2.
8. The concurrent findings of the Courts below that Exts. A, B and' C are not benami, but that defendant No. 6 had acquired a valid title to the properties covered thereunder has not been assailed and in any case is binding on me. It is, however, strenuously contended by Mr. Pal, learned Counsel for the appellants that having regard to the pleadings in this case, the appropriate Article that is applicable is not Article 142 but the residuary Article 144, and that title having been found with the plaintiffs, it was incumbent upon the defendants to prove their possession which they have failed to establish in this case. The second contention is that even if it is held that Article 142 applied, the Courts below have failed to take into consideration certain important aspects of the plaintiffs' case and had failed to take note of certain important admissions made on the defendants' side and thereby erred in their conclusion that the plaintiffs had failed to establish their possession over the disputed properties within 12 years preceding the institution of the suit. Both these contentions require careful consideration.
10. Article 142 of the Limitation Act applies in terms to a case where the plaintiff while in possession of the property has either been dispossessed or has discontinued possession. In such cases, the plaintiff has not only to prove title to the property but has to establish that he was in possession some time during a period of 12 years preceding the institution of the suit. This Article would not therefore apply to a case where the plaintiff was never in possession, but sues for possession only on the basis of his title because in such a case, there is neither dispossession of nor discontinuance of possession by the plaintiff. To such a case, the residuary Article 144 would apply and the title of the plaintiff and right to recover possession can be defeated only on proof by the defendant that he has acquired adverse possession of the property and consequently the title of the plaintiff to the property has been lost. Possession of the plaintiff in such circumstances would also include possession of the person from whom he has derived title. If Article 142 is held to apply to the facts of this case, it would be necessary for the plaintiffs to establish that either they or their vendor defendant No. 6 were in possession of the disputed properties sometime during the period of 12 years preceding the institution of the suit. Mr. Pal, learned Counsel for appellants has drawn my attention to the recitals in the written statement and specially to the one contained in para. 19 thereof and stated that according to the contesting defendants neither the defendants 6 and 7 by themselves nor the plaintiffs were ever in possession of the properties and that therefore this case is not governed by Article 142 but should be held to be governed by Article 144.But in making this submission, he has overlooked the averments made in the plaint that defendant No. 6 after having acquired the properties under Exts. A, B and C, was in possession thereof and that after she executed the sale deed in favour of palintiffs 1 and 2, the latter got possession of the properties and are still continuing in possession thereof. If I am to accept Mr. Pal's contention, the averment made in the written statement, it cannot be accepted only for the limited purpose of holding that the plaintiffs and their predecessor were never in possession of the properties and therefore the question of either the possession or discontinuance of possession by the plaintiffs would not arise. In that case the contention of the defendants must be accepted as a whole and if it is so accepted it must be held that despite defendant No. 6 having title to the properties covered by Exts. A, B and C, Hemachandra, his son Suryananda and thereafter defendants 1 and 2 as their successors-in-interest remained in possession of the properties in assertion of their own right therein, in which case, the further conclusion must follow that by the time defendant No. 6 executed the sale deed Ext. 1 in 1962 in favour of plaintiffs 1 and 2, her title to the disputed properties had been lost by reason of adverse possession by defendants 1 and 2 and their predecessors-in-interest. It, however, appears to me that where, as in this case, contradictory positions had been taken by the plaintiffs and the contesting defendants regarding possession of the disputed properties, the plaintiffs would have to stand by the recitals made by them in the plaint, although at the same time it must have to be made clear that no plaintiff can be allowed to avoid the operation of Article 142 by a clever drafting of the plaint. Doubtless at one time, there was a view that the question whether Article 142 or Article 144 applied to the facts of a given case depended on the allegations made in the plaint. This view has now been negatived by a chain of decisions of different High Courts. It is now well settled that the plaintiff cannot be allowed by skilful drafting of the plaint to evade the operation of Article 142 and that the decision as to the applicability of the particular Article must necessarily depend upon the proved or admitted facts of the case.
11. It has already been stated that the prayer made by the plaintiffs is not only for declaration of title and confirmation of possession, but also in the alternative for recovery of possession, in case it is found that they were not in possession of the properties at the time the suit was filed. It is consequently argued by Mr. Mohanty for the respondents that it is essentially a suit for possession and consequently is governed by Article 142. In reply thereto Mr. Pal has relied on a decision of the Supreme Court in Mt. Murti Dusadhin v. Md. Mir Khan, AIR 1965 SC 875. That was a suit for declaration of title to the land in which the plaintiff had asserted in the plaint that he had been in possession and occupation of the suit land, but in the relief clause he had prayed in the alternative that if he be deemed to have been dispossessed of the suit land by reason of earlier proceedings under Section 144, Cr. P. C., he should be put in possession thereof and granted mesne profits. The tenant-defendant did not deny the title of the plaintiff but claimed that the plaintiff settled the land on him and that e had acquired occupancy rights therein. Neither the plaintiff nor the defendant alleged dispossession or discontinuation of possession of plaintiff. In these circumstances, the Supreme Court held that--
'As the defendant not only admitted title of the plaintiff but also admitted that he derived possession from the plaintiff as a tenant, the case must proceed on the defendant's plea, and for the purpose of deciding whether Article 142 or Article 144 applied, it must be assumed that the plaintiff had not been dispossessed or had not discontinued his possession within the meaning of Article 142, for neither the plaintiff nor the defendant alleged dispossession or discontinuation of possession, and on the facts it was Article 144 and not Article 142, that applied.'
The case before me is not one where the defendants either admit the title of the plaintiffs or claim any derivative title from them. The specific case of the plaintiffs is that they obtained possession of the disputed properties from their vendor defendant No. 6 and were in possession thereof by letting out to their tenants plaintiffs 3 to 5, that the plaintiffs 3 to 5 had raised crops therein which however had been cut and carried away by the contesting defendants and their main case, although they do not specifically allege so, is that by such act they had been dispossessed from the lands, If the defendants 1, 3, 4 and 5 were guilty of only fugitive acts of trespass, there is no reason why instead of suing them for damages or for recovery of the value of crops, the plaintiffs should have come to Court for confirmation of their possession and in the alternative for recovery of possession. Having regard, therefore, to the allegations made in the pleadings, it appears to me that this case is governed by Article 142 and not Article 144 of the Limitation Act.
12. It is next argued by Mr. Pal that both the Courts below having concurrently found that the plaintiffs had acquired title to the disputed properties, they are entitled to fall back upon the presumption that possession follows title. In this case, the plaintiffs have let in evidence regarding their possession and it is submitted that even if that evidence is not considered very satisfactory, yet due effect has to be given to the presumption in their favour. To what extent such a presumption would be calledin aid by the plaintiffs was considered by a Full Bench of the Patna High Court in Shiva Prasad Singh v. Hira Singh, AIR 1921 Pat 237 (FB). Dawson Miller, C. J. who spoke for the Bench observed thus:
'The plaintiff in a suit for ejectment mustprove not only his antecedent title but alsohis possession within 12 years of the suit.In the absence of any credible evidenceon either side as to possession the plaintiffmust fail and the presumption arising fromtitle cannot be called in aid to give weight toevidence unworthy of credit any more than ifno evidence at all had been given, and theplaintiff cannot succeed merely by provinga title and possession at some antecedentperiod.' (Per Full Bench)
The very next year, the learned ChiefJustice of the Patna High Court had occasionto deal with the implication of the aforesaidFull Bench decision in Tian Sahu v. Mulchand Sahu (AIR 1922 Pat. 432), where hisLordship observed:
'Merely because the Judge has some difficulty in arriving at a conclusion upon the evidence or that he does not consider the evidence altogether satisfactory, he is thereby not precluded from looking either at the probabilities of the case as disclosed by other parts of the evidence or from the presumption which might arise from the plaintiff's title.'
In M. A. Rauf v. Bodhi Singh, AIR 1950 Pat 484 that Court held that--
'In a suit for ejectment, where the evidence adduced by both parties, although unsatisfactory, is not altogether valueless, the Court is entitled to take into consideration the presumption arising from title and probabilities of the case.'
The entire legal position on this point was reviewed by a Full Bench of the Patna High Court in Jaldhari Mahto v. Rajendra Singh, AIR 1958 Pat 386. Their Lordships held--
'The rule propounded in the Full Bench decision of Shiva Prasad Singh, AIR 1921 Pat 237 (FB) is not of universal application and should not be extended beyond the facts of that case, and the case of landlord and tenant is entirely different and does not come within the ambit of the doctrine therein laid down. The Full Bench decision does not purport to lay down that in a suit for ejectment on the ground of dispossession, the presumption of possession' arising from admitted or proved title is not at all available. It is incontrovertible that ordinarilly in a suit for ejectment the plaintiff must prove his antecedent title and possession within the statutory period. But cases may arise where possession may be inferred only from title and other circumstances of the case, even though the evidence may not conclusively establish actual physical possession.
The presumption of possession arising from title is not available where the land is capable of actual possession by cultivation or otherwise, and there is no evidence of possession or the evidence adduced is un-worthy of credit. But this presumption is available in all cases (1) where the evidence is equally strong and apparently equally well balanced on both sides so that it is difficult to determine where the truth lies; (2) where the evidence on both sides is weak or unsatisfactory, but not valueless or wholly incredible; (3) where the land is of such a peculiar nature that the evidence of actual user and enjoyment in the ordinary manner could hardly be expected e. g., lands which are waste, jungle, parti, gora, submerged under water or any other kind of land incapable of cultivation. To this extent the general rule laid down by the Full Bench in the case of Shiva Prasad Singh, AIR 1921 Pat 237 (FB) must be deemed to be modified, and in such cases the plaintiff can succeed on the strength of this title alone.'
This Full Bench decision in AIR 1958 Pat 386 was followed by a Bench of this Court in Sudhansu Sekhar Singh Deo v. Haribansha Singh Deo, ILR (1960) Cut 395 where the legal position has been summarised thus:
'It cannot be laid down as a rule of universal application that in a suit for ejectment on the ground of dispossession, the presumption of possession arising from ad mitted or proved title is not at all available. It is incontrovertible that ordinarily in a suit for ejectment the plaintiff must prove his antecedent title and possession within the statutory period. But cases may arise where possession may be inferred only from title and other circumstances of the case, even though the evidence may not conclusively establish actual physical possession. The presumption of possession arising from title is not available where the land is capable of actual possession by cultivation or otherwise, and there is no evidence of possession or the evidence adduced is unworthy of credit. But, this presumption is available in all cases: (1) where the evi dence is equally strong and apparently equally well-balanced on both sides so that it is difficult to determine where the truth lies; (2) where the evidence on both sides is weak or unsatisfactory, but not valueless or wholly incredible; (3) where the land is of such a peculiar nature that the evidence of actual user and enjoyment in the ordinary manner could hardly be expected, e. g., lands which are waste, jungle, parti, gora, submerged under water or any other kind of land incapable of cultivation. In such cases, the plaintiff can succeed on the strength of his title alone.'
In this case, we are dealing with not a land which is not capable of being cultivated, nor is this a case where no evidence regarding possession has been let in by the par ties. The question then for consideration is whether the evidence regarding possession adduced on the side of the plaintiff-appellants is one which is totally unworthy ofcredit or it is just unsatisfactory and weak in nature. The period of possession on which the plaintiffs rely can be divided into two parts,--possession from the year 1947 till 1962 during which the vendor defendant No. 6 and her husband defendant No. 7 were said to be in possession of the properties and possession subsequent to the execution of Ext. 1 in 1962. So far as the first part of the possession is concerned, the lower appellate Court has failed to take note of certain important circumstances which lend considerable assistance to the plaintiffs' claim. It is the admitted case on defendants' side that late Hemachandra Behera the father-in-law of defendant No. 1, after, getting his daughter defendant No. 6 married to defendant No. 7 had been keeping both the daughter and the son-in-law in his house and that they were looking after his properties, It has now been established that none of the documents Exts. A, B and C is benami and that the properties covered thereunder had been acquired by defendant No. 6 and that she was the owner thereof. When it is the admitted case of defendants that during the lifetime of Hemachandra and even after his death in 1948, defendant No. 7 was looking after Hema-chandra's properties, it cannot for a moment be believed that while defendant No. 7 was looking after the properties of Hemachandra and after his death of his son Suryananda, the properties belonging to his wife defendant No. 6 were not being looked after by him and that the same were in possession of Hemachandra and after him of his son Suryananda and further that such possession by Hemachandra and Suryananda was hostile to defendant No. 6. The greater probability is that along with the properties belonging to Hemachandra, defendant No. 7 was also looking after the properties belonging to his own wife defendant No. 6. The touzi which comprised the disputed properties and of which Hemachandra and after his death his son Suryananda were the proprietors was abolished in 1952. D. W, 4 who was the Goomasta of Suryananda has categorically stated that after the abolition of the estates, the rent roll in respect of the properties covered by Exts. A, B and C was submitted to the Anchal authorities in the names of defendants 6 and 7 by Suryananda. He further stated that in 1955, it is he who had prepared this rent roll in the names of defendants 6 and 7 with the assistance of Suryananda and in consultation with him. If defendants 6 and 7 were not in possession of these properties at that time, and if, as is now alleged Suryananda was in possession thereof asserting his own title thereto, it is highly unlikely that he would have voluntarily furnished rent roll in respect of the same in favour of defendants 6 and 7. This circumstance in my opinion cuts at the root of the claim now made by defendants 1 and 2 that defendants 6 and 7 were never in posses-sion of the properties covered by Exts. A, B and C, and that such possession was not only with Hemachandra and Suryananda but that they were in possession thereof claiming a right therein. Discussing the evidence adduced on the plaintiffs' side, all that the lower appellate Court says about the evidence of P. W. 1 who deposed that defendants 6 and 7 and after them the plaintiffs 1 and 2 were in possession of the disputed properties is that this evidence needs cotroboration. He did not characterise the evidence of P. W. 1 as worthless. P. W. 2 the plaintiff has stated that having purchased the disputed properties in 1962, he leased out the lands that very year to his bhag chasis plaintiffs 3 to 5. It is the crop grown by the bhag chasis during the agricultural year 1962-63 that is aHeged to have been cut and carried away by defendants 1, 3, 4 and 5. The suit giving rise to this appeal was filed on 5th April, 1963. Therefore, the plaintiffs claimed to be in possession of the lands for one agricultural year. If P. W. 1 has stated that the plaintiff cultivated the suit land for three years, it is obviously the result of some confusion. Because the plaintiff No. 1 examined as P. W. 2 stated that after purchasing the disputed lands, the plaintiffs let them out to plaintiffs 3 to 5 that very year and they had never cultivated the disputed lands themselves, the learned District Judge thought that there was a contradiction between the evidence of P. W. 2 and that of P. W. 1, because P. W. 1 had stated that the plaintiff had leased out the lands for one year to bhag chasis and thereafter cultivated the lands themselves for two years. I am, therefore, not impressed with the reasons given by the first appellate Court for rejecting the testimony of P. W. 2. The evidence of P. W. 3 who was plaintiff No. 5 in the suit also does not suffer from any infirmities and the ground on which the lower appellate Court does not consider his evidence as satisfactory does not also appear to be justified. In any event, there is absolutely no ground to characterise the evidence adduced on the plaintiffs' side to be worthless, although it may be that considered by itself, the evidence may not be quite satisfactory. But, as pointed out above, whatever may be said about possession of the plaintiffs over the disputed properties, the circumstances of the case and the admissions made by defendant No. 1 in her written statement and her Goomasta D. W. 4 in Court are sufficient to justify the conclusion that before execution of Ext. 1, defendant No. 6 and her husband defendant No. 7 were inpossession of the disputed properties. It is clear, therefore, that even if it is held that the plaintiffs were not in possession of the properties since their purchase in 1962, prior to such purchase, their vendor defendant No. 6 and her husband defendant No. 7 were in possession thereof. The suit is,therefore, not barred by Article 142 of the Limitation Act.
13. In the result, I would allow this appeal, set aside the judgments and decrees passed by the Courts below and decree the plaintiff's suit with costs throughout payable by defendants 1 and 2. The plaintiffs would have a decree declaring their title to the disputed properties and for recovery of possession thereof after ejecting defendants 1 and 2 therefrom.