S. Acharya, J.
1. The defendants, who were respondents 1 to 12 in the Court below, have preferred this second appeal against the decision of the Additional District Judge, Cuttack in Title Appeal No. 142 of 1967 reversing the decision of the Second Munsif, Cuttack in Title Suit No. 246 of 1961.
2. The plaintiff's case In short is that one Sana Das was the father of de-fendant No. 10. and he was recorded as the tenant in respect of the suit lands comprising an area of Ac. 1.93 decimals in Khata No. 194, specifically described in the schedule of the plaint. The above-named Sana Das Possessed the suit lands till his death in 1945. Thereafter defendant No. 10, the daughter of Sana Das, succeeded to the suit property as the only heir and successor of late Sana Das. She sold the suit property to the plaintiffs along with some other properties by a registered sale deed dated 18-12-1956 and delivered possession of the same to the plaintiffs. The plaintiffs remained in possession of the suit lands, but in the year 1958 defendants 1, 2 and 5 with the help of a large number of Gundas trespassed into the suit lands, cut and removed the ripe paddy crops raised thereon by the plaintiffs, for which a case under Section 379 I. P. C. was filed against these defendants. The trial Court acquitted these defendants on their plea as specifically stated in the plaint, to be referred to later in this judgment.
According to the plaintiffs Sana Das was an illiterate Person he was possessing the suit lands on his own right and he never executed any Nadavi deed in favour of the landlords. The defendants were the ex-proprietors of the Mahal till the touzi, in which the suit lands are situated, vested in the Government of Orissa. The defendants have had no title to or possession over the suit lands. Mainly on the above averments the plaintiffs inter alia pray for a declaration of their title to and for confirmation of their possession over the suit lands. They further pray that in case the plaintiffs are found to have been dispossessed from the suit lands during the Pendency of the suit, a decree for recovery of possession of the suit lands in their favour may be passed. They also pray for the issue of a permanent injunction against the defendants restraining them from interfering with the plaintiffs' possession of the suit lands in any manner.
3. The case of defendants 1 to 9, who filed a joint written statement, shortly stated, is that their ancestors got the suit lands recorded Benami in the name of Sana Das, one of their servants, to avoid certain complications. Subsequently a Nadavi deed was taken from the above-named Sana Das in April, 1934. According to them neither Sana Das nor his daughter, defendant No. 10 ever possessed the suit-lands and they never paid any rent for the same. The defendants paid rent after the abolition of the Zamindary and possessed the suit lands as before. Plaintiff No. 3 filed a criminal case against some of these defendants on the strength of a collusive Kabala executed by defendant No. 10 in favour of the plaintiffs, but the accused persons were acquitted in that case. It is alleged that Sana Das had no title to the suit lands, and even assuming that he had any title to the same that was lost on account of his discontinuance of possession for more than 12 years. They also aver that they are in Possession of the suit lands for more than 12 years to the knowledge of evervbody. and so they have acquired good title to the same by adverse possession. It is also alleged that the ancestors of the defendants since long dispossessed Sana Das and accordingly his heirs and successors never possessed the suit lands, and so the plaintiffs cannot have any remedy in this suit, and this suit is barred by limitation.
4. The trial Court found that the defendants had been in possession of the lands since the life time of Sana Das: the plaintiffs or their predecessors-in-interest were not in possession of the suit lands within the prescribed period of limitation, and so the suit was barred by limitation as per Article 142 of the old Limitation Act.
The appellate court finds that the defendants have failed to prove that they are in possession of the suit lands. It also finds that the plaintiffs have title to the suit lands and they are and their predecessors-in-interest were in possession of the same. On the above finding it decreed the plaintiff's suit.
5. Undisputedly the provisions of the old Limitation Act apply to this case. On the arguments advanced by the learned counsel for both the parties the only question which arises for consideration in this appeal is whether the Article applicable to this case is Article 142 or Article 144 of the old Limitation Act.
6. Mr. Swain, the learned counsel for the appellants states that the fact that the plaintiffs instituted a criminal case under Section 379 I. P. C. in the year 1958 against some of the defendants as they trespassed into and cut and removed paddy crop from the suit lands, and in that case those defendants were acquitted on their plea of bona fide exercise of right as stated in the plaint, and the facts that the plaintiff's prayer to mutate their own names in respect of the suit lands was rejected, and the plaintiffs after all these had to institute this suit, with an alternative prayer for recovery of possession go to show that the plaintiffs were actually not in possession of the suit lands and had been dispossessed of the same by defendants.
On the above submission Mr. Swain contends that Article 142 only is applicable to this case, and accordingly the court below, without proceeding to enquire about the defendant's possession of the suit lands, should at first have directed its attention to examine if the plaintiffs have been able to establish that thev instituted this suit within 12 vears of their dispossession, and as that fact has not been categorically established by them, the suit is barred by limitation. He also urges that the trial Court arrived at the finding that the plaintiffs were not in possession of the suit lands within the prescribed period of limitation, and the finding of the appellate Court regarding possession of the suit lands is a half-hearted and hesitant one and should not be relied and/or acted upon for any Purpose whatsoever.
7. In the plaint it is nowhere averred that the plaintiffs have been dispossessed by the defendants. In paragraph 5 of the plaint it is stated that the defendants 1, 2 and 5 with the help of a large number of Gundas and their labourers trespassed upon the suit lands on 26-11-1958 and cut and removed therefrom the ripe paddy crops raised by the plaintiffs due to which the plaintiffs instituted a criminal case under Section 397 I. P. C, against these defendants, but they were acquitted on a particular plea as stated in the said paragraph. Having stated so it is thereafter specifically averred in the same Paragraph that after 1958 the plaintiffs are in peaceful possession of the suit lands and they are raising and appropriating crops therefrom. The plaintiffs, as stated in paragraph 2 above, mainly ask for a declaration of their title to and confirmation of their possession of the suit lands. The prayer for recovery of possession is not made on the basis of their dispossession by the defendants prior to the institution of the suit. The prayer to this effect as specifically worded is 'in case the plaintiffs are found to have been dispossessed during the pendency of the suit then recovery of possession of the same.' may be decreed in their favour. So dispossession prior to the institution of the suit has nowhere been alleged in the plaint.
In the above-mentioned criminal case instituted by the plaintiffs in the year 1958 against defendants 1, 3 and 5 it is said that the court acquitted the accused persons of the charge under Section 379 I. P. C. on their plea that they kept the properties Benami in the name of Sana Das who executed an unregistered Nadavi deed in their favour. There is nothing on record to show that the accused persons proved the above-mentioned facts on which they based their plea. The trial Court specifically negatived the aforesaid case of Benami and the appellate Court has in effect accepted that finding. Merely because of the acquittal of the accused persons in the criminal Court it cannot be presumed or inferred that the accused persons continued in possession of the suit lands and the plaintiffs were dispossessed therefrom from that time onwards. The plaintiffs as stated earlier specifically aver that since after that incident the plaintiffs are in possession of the suit lands; and the court below finds that the plaintiffs are in possession and the defendants were never in possession of the suit lands. In the order of the Revenue Authority in Mutation Case No. 2868/60 (Ex. 5) there is no definite finding to the effect that the defendants were in possession of the suit lands. Paragraph 6 of the said order does not show if the content thereof is a finding of the authority or is a statement of fact as alleged by one of the parties to that Mutation Case.
On a perusal of Ext. 5 I do not find anything definite therefrom on which it can be said that the Revenue authority found that the plaintiffs were not in possession of the suit lands. It is quite evident from Ext. 5 that the respective claims of both the parties to mutate their own names in respect of the lands in Khata No. 164 were disallowed, and these lands were ordered to be kept as before in the name of the aforesaid Sana Das on the finding that the dispute between the Parties relating to the aforesaid lands, is of a civil nature. That being so it cannot be said that the rejection of the plaintiff's prayer to set their names mutated in respect of the suit lands is indicative of the fact that the plaintiffs were not in possession of the same as contended by Mr. Swain.
Moreover the above-mentioned prayer for recovery of Possession as emoted above is not an alternative prayer for the main prayer for confirmation of possession. That is an independent prayer and has been made to meet the exigency of the situation arising from any overt act of the defendants during the pendency of the suit.
8. In order that Article 142 of the old Limitation Act is attracted the plaintiffs must initially have been in possession of the Property and should have been dispossessed by the defendants or some one through whom the defendants claim or alternatively the plaintiffs should have discontinued possession. (AIR 1965 SC 1553 at P. 1555). The plaintiff's title to the suit lands, as found by the court below, is not assailed. The plaintiffs directly or indirectly have nowhere alleged dispossession or out of possession of the suit lands, as can be seen from the discussion made above. The Court below has arrived at the finding of fact that the plaintiffs are in possession of the suit lands and the defendants were never in possession of the same. On these facts I am of the opinion that Article 144 and not Article 142 is applicable to this case, ( In this connection the decision in AIR 1965 SC 875 may be seen).
9. Mr. Swain has contended that once it is held that Article 144 is applicable to this case he can no further challenge the findings and conclusions of the court below on any other ground.
10. In the result therefore I do not find any merit in this appeal which accordingly is dismissed but in the circumstances without costs of this Court.