G.K. Misra, C.J.
1. Plaintiffs' suit was for declaration of title and recovery of possession of disputed lands fully described in the schedule attached to the plaint. Their case is thatthey and their ancestors have been enjoying the Sands long since, and defendants 1 to 4 have no right, title and interest in the disputed lands. Taking advantage of a wrong entry in the record of rights these defendants trespassed upon the disputed lands in 1962. The suit was filed in 1967 seeking declaration of title and recovery of possession and other reliefs.
Defendants 1 to 4 contested the suit alleging that they have been in possession of the disputed lands from 1951 onwards and they have acquired title by adverse possession. They do not claim any independent title apart from adverse possession.
2. The trial court recorded the following findings :--
(1) Defendants 1 to 4 are in possession of the disputed lands from 1951 (1961?);
(2) Plaintiffs were in possession of the disputed lands from 1948 to 1961;
(3) The disputed lands stood originally recorded in the name of Choudhury Sundaranarayan;
(4) Plaintiffs have not established their independent title to the disputed lands.
The learned trial court however declared the title of the plaintiffs and allowed recovery of possession of the suit lands on his finding that the plaintiffs were in anterior possession and defendants 1 to 4 were subsequent trespassers.
Against the trial court decree defendants 1 to 4 filed an appeal before the Subordinate Judge. Rayagada. He set aside the judgment of the trial court and directed that plaintiff would be given an opportunity to correct Ext. 1 (Record of rights) with that of estate patta No. 6. Opportunity was given to the parties to give further evidence.
It is against the appellate order remanding the' suit that this civil revision has been filed.
3. It would be apparent from narration of facts that plaintiffs claim relief both on proprietary and possessory title. The onus is on the plaintiffs to prove their proprietary title. If plaintiffs have title, that can be dislodged only by proof of acquisition of title by adverse possession by defendants 1 to 4. If contesting defendants have acquired title by adverse possession then plaintiff's suit for declaration of title is liable to be dismissed.
4. If on the other hand plaintiff fail to prove independent proprietary title they would also succeed to get possession of the disputed lands if they prove that they were in earlier possession and were dispossessed by defendants 1 to 4 who claim no independent title. In other words, if the possession of defendants 1 to 4 falls short of the requisite prescriptive period of 12 years and the plaintiffs have anterior possession then plaintiffs would not be entitled to declaration of title, but mere recovery of possession. The law on the subject has been fully discussed in ILR (1963) Cut 482, (Gadadhar Sahu v. Karsanbasta Patel).
5. Both the parties have entered into evidence and question of giving them opportunity to adduce further evidence does not arise. The learned lower appellate court exercised his jurisdiction illegally in resorting to a short circuit and remanding the case to the trial court. His judgment directing remand is hereby set aside.
6. When the case would go back to the lower appellate court he would address. himself to the following questions on the basis of materials on record :--
(1) Have the plaintiffs title to the disputed lands?
(2) Have defendants 1 to 4 acquired title to the disputed lands by adverse possession?
(3) Were the plaintiffs in possession of the disputed lands earlier than the defendants, and if so for what period?
(4) If the defendants have acquired no title by adverse possession and the plaintiffs had anterior possession and were dispossessed by defendants 1 to 4, then a decree for possession should be granted in favour of the plaintiffs without passing a decree for declaration of title.
7. On the aforesaid analysis, the judgment of the lower appellate court is set aside and the case is sent back to him for disposal in accordance with law and directions given above. The civil revision is allowed as indicated above. Costs will abide the result.