1. The questions for the Division Bench are:--
'(1) Whether the ease reported as AIR 1958 Raj 206 and the view taken in 1971 Raj LW 492 require reconsideration regarding the applicability of Article 142 of the Limitation Act, 1908, on account of the legislative changes brought about by Articles 64 and 65 of the Limitation Act, 1963?
(2) If so, whether in a suit for recovery of possession of immovable property based on title as well as on the assertion of prior possession and subsequent dispossession or discontinuance of possession, Article 144 of the Limitation Act, 1908, and not Article 142 thereof applied?
The subject-matter in litigation is a house situate at Sardarshahr. It belonged to one Ghanshyamdas who died in 1942, leaving behind his widow Mst Narbada and two minor sons Mangilal and Laduram. The suit is For possession based on dispossession.
2. The plaintiffs sued on the allegation of title in themselves and also alleged that they were in possession but were dispossessed by the defendants. The plaintiffs' case was that they were the owners of the house, having purchased the same from Tormal and others by a registered sale-deed dated 6-1-1961; that their vendors on their part had purchased the house from Mst. Narbada widow of Ghanshyamdas by a registered sale-deed dated 17-7-1946, executed by her attorney on her behalf and as guardian of her two minor sons Mangilal and Laduram. According to the plaintiffs, their vendors viz. Tormal and others, were placed in possession of the suit house in pursuance of the sale, but they had not handed over possession of the entire property. At the time of the sale of the house, it was alleged that one Shrilai Asal Saria was residing in the northern portion of the house with the permission of the original vendees i.e. Tormal and others. It was averred that after the sale of the house in favour of the plaintiffs, the defendants Mangilal and Laduram continued to reside there with the permission of the plaintiffs. The plaintiffs further averred that during the period they had taken possession of the remaining portion of the house, but proceeded to say that during the period they had gone out of Rajasthan on business, the defendants took forcible possession of the portion not previously in their possession. The present suit was filed on 18-9-1963 in the Court of Senior Civil Judge, Chum. The plaintiffs alleged that they were dispossessed from the house in suit during their absence sometime in June 1963.
3. The defendants in their written statement denied that the plaintiffs or their vendors were owners of the house in dispute or that they were ever placed in possession thereof or that the plaintiffs were dispossessed therefrom in June 1963. as alleged. They also denied that Shrilai Asal Saria was in possession of the northern portion of the house as a licensee of the plaintiffs. They pleaded that they had been in adverse possession for more than 12 years, and that the suit was barred by limitation.
4. The court of first instance found that the plaintiffs had failed to prove that they or their predecessors-in-title viz. Tormal and others, were placed in possession of the suit house i.e., at any time from 17-4-1946 to 6-1-1961, the date of the alleged sale in their favour, or that they had been wrongfully dispossessed therefrom in June 1963. The court held that the suit being for possession after dispossession fell within Article 142 of Schedule 1 of the Limitation Act, 1908. The plaintiffs having failed to prove their possession within 12 years from the date of dispossession, the court dismissed the plaintiffs' suit for possession as barred by limitation.
5. On appeal, the learned single Judge remitted an issue on title. The finding of the court of first instance thereon was that though the plaintiffs had proved their title they had failed to prove that they or their predecessors-in-title had been in possession of the suit house or their alleged dis-posses-eion at any time within 12 years of the suit. On that finding the plaintiffs' suit ought to fail under Article 142 of the Limitation Act, 1908.
6. When the appeal came to be reheard by the learned single Judge, he felt some doubt and difficulty as to the applicability of Article 142 of the Limitation Act, 1908 due to certain observations of the Supreme Court in Nair Service Society v. K. C. Alexander, AIR 1968 SC 1165, expressing that Articles 64 and 65 of the Limitation Act, 1963 were not remedial but declaratory of law. In support of the reference, the learned single Judge has quoted at length passages from Sutherlands Statutory Construction, 3rd Edition, para-5110 and Craies on Statute Law, 6th Edition, p. 146. In making the reference, the learned single Judge observes :--
'The question arises to what extent the legislative changes brought about by the Limitation Act of 1963 could be regarded as the legislative declaration of legislative judgment, in view of the sharp division of the judicial opinion in the country, prior to the enactment of Articles 64 and 65 in the Limitation Act of 1983. It will have to be considered whether the changes in the law were in the nature of amendments in the law or they were in the nature of consolidation or re-enunciation of the previous law, according to the true legislative intent.'
7. We fail to appreciate the reasoning of the learned single Judge. The suit of the plaintiffs was instituted on 18-9-1963 i.e., before the Limitation Act. 1963 was brought into force. The learned single Judge, has not. made any reference to Section 31 of the new Act. which reads as follows :--
'Section 31.-- Nothing in this Act shall,--
(1) enable any suit, appeal or application to be instituted, preferred of made, for which the period of limitation prescribed by the Indian Limitation Act, 1908 (9 of 1908V expired before the commencement of this Act; or
(2) effect any suit, appeal or application instituted, preferred or made before, and pending at, such commencement.'
This provision makes it clear that the provisions of the new Act will have no effect in suit, appeal or application instituted, preferred or made before, and pending on the date of the enactment of the new Act and that if a suit, appeal or application had been barred under the old Act i.e. under the Limitation Act, 1908, the provisions of the new Act cannot be invoked.
8. Before the commencement of the new Act, Article 142 of the old Act was operative and a plaintiff to recover possession had to establish his possession within 12 years of the suit, even in a case where he establishes title. The pro-visions of the new Act cannot be construed to take away the vested right of the defendant to raise a defence based on Article 142 of the old Act. When Section 31(b) of the Limitation Act, 1963 expressly states that nothing in the Act shall apply to pending suits, we fail to see how Articles 64 and 65 of that Act can be called in aid to the construction of Article 142 of the Limitation Act. 1908, as a 'parliamentary exposition' of the preexisting law.
9. Shri L. R. Mehta, learned counsel for the appellants, with his usual erudition and consumate skill, tried to bring in Articles 64 and 65 of the new Act as aid to construction oi Articles 142 and 144 on the hypothesis that the new Act was only declaratory and not remedial. It was said that, 'whatever be the legal position under the 1908 Act, the new Act 1963 had completely changed that legal position' and that, 'the subsequent Act of Parliament was a 'parliamentary exposition of the law as it stood prior to the enactment of the 1963 Act and. therefore, even in respect of the suits filed earlier to the new Act, the plaintiff need not prove possession within 12 years of the suit for recovery of possession, if he establishes title to the suit property'. It was, therefore, said that the dychotomy between the two classes of suits falling under Articles 142 and 144 was clearly brought out by enacting Articles 64 and 65 which, he asserts, as the learned single Judge has in his order of reference, was a 'parliamentary exposition' of law as it stood prior to the enactment of the new Act. According to him, Article 142 of Schedule I of the Limitation Act, 1908, therefore, only applied to suits based on possessory title, i.e., where the plaintiffs sought the relief of possession on the strength of his prior possession followed by subsequent dispossession. In support of the contention, strong reliance was placed on the observations of the Supreme Court in Nair Service Society v. K. C. Alexander (AIR 1968 SC 1165). Learned counsel drew our attention to the long title of the Limitation Act 1963 which shows that it is an act to consolidate and amend the law for the limitation of suits, etc. He also relied on the Objects and Reasons of the new Act. We fail to appreciate this line of reasoning.
10. Nothing really turns on the long title. The Limitation Act, 1908, was also, as its long title states, was an Act to consolidate and amend the law relating to the limitation of suits. The Objects and Reasons of the Limitation Act, 1963 no doubt states that, 'Articles 142 and 144 of the Limitation Act, 1908 have given rise to a good deal of confusion with respects to suits for possession by owners of property'. It was, therefore, proposed 'to replace Article 142 by Article 64, but it is restricted to suits based on possessory title so that an owner of property does not lose his right to property unless the defendant in possession is able to prove the adverse possession', they further state that, 'Article 65 is new and deals with suits based on title'. Merely because Article 64 of the new Act was now restricted to suits based on. possessory title, that would not, in our mind, curtail the ambit of Article 142 of the old Act.
11. In Nair Service Society v. K C. Alexandar (AIR 1968 SC 1165) their Lordships of the Supreme Court while considering the relative scope of Sections 8 and 9 of the Specific Relief Act. 1963. had observed fat p. 1173) :--
'The uniform view of the courts is that if Section 9 of the Specific Relief Act is utilised the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of 6 months has passed questions of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under Section 9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one. The present amended Articles 64 and 65 bring out this difference. Article 64 enables a suit within 12 years from dispossession, for possession of immoveable property based on possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Article 65 is for possession of immoveable property or any interest therein based on title. The amendment is not remedial but declaratory of the law.'
Relying on the above observations that the law as laid down by Articles 64 and 65 of the new Act is only declaratory and not remedial. Shri Mehta, learned counsel for the appellants, stre-nuously contends that Articles 64 and 65 should be deemed to have been the law even before the commencement of the new Act and that where a person who has got title sues for possession is entitled to succeed even without showing posses-sion within 12 years of the suit, unless defendants are able to establish that they have perfected title by adverse possession. He urges that, in a suit based on title coupled with allegation of possession and dispossession or permissive possession, Article 144 will apply, when it is found, that the plaintiff has proved his title, but Ms allegations of possession end dispossession, or of permissive possession were untrue. He further contends that in view of the change in law, Article 142 of the old Act should be interpreted as being limited to suits based on possessory title. In support of these contentions the learned counsel relied upon the decision of Alagiriswami J., in K. Mudaliar v. K. Munuswami Pillai, AIR 1970 Mad 328 and that of Dharmadhikari J., in Madhao Pandurang v. Yeshwant, AIR 1974 Bom 12. We are afraid. the contentions cannot be accepted. The decisions relied upon do not, in our opinion, lay down the correct law.
12. With respect, we are unable to accept the view expressed by the learned Judges. The decision of Alagiriswami J., in K. Mudaliar v. K. Munuswami Pillai, AIR 1970 Mad 328 has since been reversed by a Division Bench of the Madras High Court in Southern India Education Trust, Madras v. M S Jaga-dambal, AIR 1972 Mad 162. In Southern [ndia Education Trust. Madras v. M. S. Jagadambal, Ramanujam J., in delivering the judgment of the Division Bench, observes (at pp. 166, 167) :--
'It was contended before the Supreme Court that Sections 8 and 9 of the Specific Relief Act provided for two exclusive categories of suits, one based on title and another based on possession, that a possessory suit can only be filed within 6 months of dispossession as provided under Section 9 and that any suit filed for recovery of possession after six months can only be on title. In rejecting that contention the Supreme Court held that Section 8 does not provide for any specific category of suits, that it only refers to the procedure contemplated by the Civil Procedure Code, that a possessory suit can be maintained even after six months under Article 142 of the old Act, and that the plaintiff can maintain the suit based on his prior posession even though he had not filed a suit within 6 months of his dispossession under Section 9 of the Specific Relief Act. The Supreme Court ex-pressed that the distinction between a suit on title and a possessory suit has been clearly brought out by Articles 64 and 65 of the new Act and that those Articles are merely declaratory. Their Lordships of the Supreme Court have not expressed the view that the law laid down by the Full Bench in AIR 1990 Mad 798 (FB) is no longer good and that Article 142 of the old Act cannot be applied to suits on title.'
13. There was a conflict of opinion as to whether the mere proof of previous possession on the part of the plaintiff for a time less than the prescriptive period i.e. for less than 12 years, will entitle him, in any case, to recover the property, if he has failed to sue within 6 months under Section 9 of the Specific Relief Act. 1877.
14. In Khajah Enaetoollah v. Kishen Soondur, (1867) 8 Suth WR 386 Dwarka-nath Mitter J., observed that, 'the object of the section appears to discourage people from taking the law into their own hands, however good their title may be, and the mere omission of the party dispossessed to avail himself of the summary remedy cannot amount to acquiescence in the act of dispossession, so as to deprive him of his right to rely on his previous possession In an action of ejectment against a trespasser. In Wall Ahmad v. Ajudhla, (1891) ILR 13 All 537 (FB) Edge C. J., Straight and Tyrell JJ. agreed with the view taken by Mitter J., and observed that, 'possession is evidence of title and gives a good title as against a wrong-doer but a person who has not had possession cannot, without proof of title, turn another out of possession, even though that other may have no title, for possession is a good title against everyone who cannot prove a better'.
15. In Perry v. Clissold, 1907 AC 73 Lord Macnaghten observed:
'A person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner.'
The statement of lew by Lord Mac-naghten makes no. distinction between the possession wrongfully obtained or otherwise. Their Lordships of the Supreme Court in Nair Service Society v. K. C. Alexandar (AIR 1968 SC 1165) followed the dictum of Lord Macnaghten in Perry v. Clissold and reiterated that even after expiry of the period mentioned in Section 8 of the Specific Relief Act, 1963, a suit based on possessory title was maintainable and in such a suit the plaintiff .need not prove his title, stating :--
'It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And ii the original owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.'
The point in controversy before their Lordships was entirely different viz., whether a suit based on possessory title brought after expiry of 6 months from the date of dispossession, i.e., the period mentioned in Section 9 of the Specific Relief Act, 1963, was maintainable.
16. The rights of the parties stand to be determined with reference to Article 142 or 1'44 of the Limitation Act, 1908. The question whether, in the facts and circumstances of the case, Article 142 or 144 of the Act applied was one for the learned single Judge to decide. It is well-settled that a suit for recovery of possession of immoveable property based on title as well as on the assertion of prior possession and subsequent dispossession or discontinuance of possession falls within the purview of Article 142 of the Act.
17. In repelling the contentions, Shri C. L. Agrawal, learned counsel for the respondents, during his ably marshalled argument1;, contends that the principles upon which the applicability of Article 142 or 144 depends have been clearly laid down by their Lordships in three authoritative decisions viz., Maharajah Koowur Nitrasur Singh v Baboo Nund Loll Singh. (1850-61) 8 Moo Ind App 199 (PC) Mohima Chander Mazoomdar v. Mohesh Chander Neogi, (1889) ILR 16 Cal 473 (PC), Mohammud Amanulla Khan v. Badan Singh, (1890) 1LR 17 Cal 137 (PC) and Dharani Kanta Lahiri v. Gabar Ali Khan, (1913) 25 Mad LJ 93 (PC). These principles may be summarised as follows :--
'In cases falling under Article 142 of Schedule I of the Limitation Act, 1908, the plaintiff must, at the outset, show possession within 12 years, and cannot rest merely on a proof of title, while in cases falling under Article 144, the plaintiff may rest content with proof of title only in the first instance and the burden lies on the defendants to show that they were in adverse possession i.e. they have had a possession inconsistent with the title of the plaintiff, for more than 12 years before suit'.
18. The Courts have hitherto regarded Maharaja Koowur Baboo Nitrasur Singh v. Baboo Nund Loll Singh, (1859-61) 8 Moo Ind App 199 (PC) as the leading case on the subject. In that case, which arose on account of disputes concerning the boundaries of two estates, Lord Justice Turner, delivering the judgment of the Privy Council, observed :--
'Again, their Lordships concur with the majority of the Sudder Court in thinking that the issue of possession is the first to be considered in this case, and that it is wholly independent of the boundary question. The appellant is seeking to disturb the possession, admitted to have existed for about eleven years, of defendants, who insist on a possession of much longer duration as a statutory bar to the suit. It clearly lies on him to remove that bar by satisfactory proof that the cause of action occurred to him (for that is the way in which the Regulation puts it -- Ben Regulation III of 1973, Section 16 on a dispossession within twelve years next before the commencement of the suit; and, therefore, that he, or some person through whom he claims, was in possession during that period. No proof of anterior title, such as would be involved in the decision of the boundary question in his favour, can relief him from this burden, or shift it upon his adversaries by compelling them to prove the time and manner of dispossession. The lands in question may have been part of Mouzah Gopaulpore, and as such may have been enjoyed by his ancestor, and yet he may have lost, by lapse of time, his right to recover them Their Lordships, therefore, propose to consider in the first place, what evidence there is that the appellant, or any person through whom he claims, was in possession of the lands in question at any time within twelve years next before the commencement of the suit.'
Thus, their Lordships held that when a plaintiff's suit is upon a dispossession, the onus was on him to prove his possession within 12 years of the suit.
19. The question of the burden of proof was afterwards considered by a Full Bench of the Calcutta High Court in Mahomed Ali Khan v. Khajah Abdul Gunny, (1883) ILR 9 Cal 744 (FB) and the following principles had been laid down by the majority of the Judges :--
1. The ordinary rule is, that under Act XIV of 1859. the cause of action, and under the present law the event from which. limitation is declared to run, must have occurred within the prescribed period, and that it lies on the plaintiff to show this. Accordingly where the suit is for possession, the plaintiff is bound to prove possession and dispossession within 12 years.
2. As a general rule, the plaintiff cannot, merely by proving anterior title or possession at any period prior to 12 years before suit, shift the onus upon the defendant.
20. In Mohima Chander Mazoomdar v. Mohesh Chander Neogi, (1889) ILR 16 Cal 473 (PC), the suit was for recovery of possession on the allegation that the plaintiffs were the owners and were dispossessed while in possession by the defendants 9 years before the date of the suit. The defendants were admitted to be in possession and to have dispossessed the plaintiff. The Judicial Committee held in those circumstances that the burden was on the claimants to prove their possession at some time within 12 years next preceding the suit. It was not sufficient for them to show an anterior title without proof of their possession within 12 years to shift the burden on the defendants of showing that they were entitled to remain in possession. In the judgment under appeal, the subordinate Judge, who tried the case, observed :--
'When I showed above that the plain-tiffs are the rightful owners of the disputed land, it is for the ryot defendants to show that they are entitled to remain in possession of these lands'.
Their Lordships' comment on this observation is this :--
'That, as a proposition of law. is one which hardly meets with the approval of their Lordships.'
Their Lordships went on to say :--
'This is in reality what in England would be called an action in ejectment, and in all actions for ejectment where the defendants are admittedly in possession, and a fortiori where, as in this particular case, they had been in possession for a great number of years, and under a claim of title, it lies upon the plaintiff to prove his own title. The plaintiff must recover by the strength of his own title, and it is the opinion of their Lordships that, in this case, the onus is thrown upon the plaintiffs to prove their possession prior to the time when they were admittedly dispossessed, and at some time within twelve years before the commencement of the suit...... and that it does not lie on the defendants to show that in fact the plaintiffs were so dispossessed.'
This is a clear pronouncement to the effect that in cases governed by Article 142 of the Act XV of 1877 (as well as Article 142 of Act IX of 1908) the onus is on the plaintiff to prove that he was dispossessed within the statutory period.
21. In Mohammad Amanulla Khan v. Badan Singh, (1'90) ILR 17 Cal 137 (PC) the plaintiffs' ancestors, at the settlement in the Delhi District in 1843, declined to pay revenue in respect of a plot of land which has been held under rent-free tenure and has been resumed in 1838. The land was nevertheless assessed end the Government made an engagement with the villagers, i.e. the defendants in the suit, under which the villagers were to be put in possession. A revision of the settlement took place some 30 years later and the plaintiff claimed possession on the strength of their title. According to the judgment under appeal to the Privy Council, the plaintiffs were undoubtedly the proprie' tors before 1838, but the land had been since 1842 in the possession of the defendants, who had exercised all the rights of proprietors. The suit would appear to have been based on the plaintiff's title to the plot and not merely on the possessory title and it would further ap-pear that the plaintiff did not admit or set up any dispossession or discontinuance. Nevertheless, their Lordships construed the facts as to amount, in law, to proof of dispossession. Their Lordships observed :--
'It appears to their Lordships to be clear that when there was this refusal on the part of the plaintiffs, or their aneestors, to make the engagement for the payment of the revenue, and the Government made the engagement with the villagers, the defendants, there was a dispossession, or a discontinuance of possession, of the plaintiffs within the meaning of this article (Article 142)..... There has been no possession of any description in the plaintiff or their ancestors since the period of engagement with the defendants; and whether any proprietary right may have existed is not the question; it is whether there has been a dispossession or a discontinuance, which there clearly was. No doubt the proprietary right would continue to exist until by the operation of the law of limitation it had been extinguished; but upon the question whether the law of limitation applies, it appears to be clear that it comes within the terms of the Article 142: ..... Article 144 as to adverse possession only applies where there is no other article which specially provides for the case.'
Their Lordships said that it was unnecessary to embark upon an inquiry whether there has been an adverse possession. The decision of their Lordships is, therefore, an authority for the proposition that, where although the plaintiff does not, in terms, admit his dispossession (and even denies it), still on the allegations in the plaint, the suit is one really based on dispossession or discontinuance. Article 142 alone will apply and not Article 144.
22. In Dharani Kanta Lahiri v. Gabar All Khan, (1913) 25 Mad LJ 98 (PC) the plaintiffs claimed the disputed lands as their own by virtue of their title as a part of their zamindari and alleged that the defendants were in effect (respassers. The defendants contended that the disputed plot was included in a grant to them of the year 1740 renewed in 1845 and that they were all along in possession as permanent tenants under the grant. The defendants also relied on limitation. Their Lordships stated:
'It lay upon the plaintiffs to prove not only a title as against the defendants to the possession, but to prove that the plaintiffs had been dispossessed or had discontinued to be in possession of the lands within 12 years immediately preceding the commencement of the suit. Their Lordships find that the plaintiffs had failed to prove a title against the defendants to the possession of the lands In dispute or any part of them; they failed to prove that the lands, the possession of which they claimed, were not the lands covered by the sanad; and they failed to prove that they had been dispossessed or that their possession had been discontinued within twelve years before suit.'
23. The next important decision of the Privy Council is that reported in Secy. of State for India in Council v. Chellikani Rama Rao, ILR 39 Mad 617: (AIR 1916 PC 21). As this decision has been interpreted by some Courts as making a departure in the law as hitherto understood and they have tried to extend the scope of the ruling beyond the actual decision, it is necessary to closely examine the precise scope of the decision. The proceedings in the case were started under the Madras Forest Act (V of 1882). The lands, the subject-matter of the dispute, were islands which were formed in the bed of the sea near the mouth or delta of the river Godavari. They were within three miles of the main land and were mostly jungle lands. On these facts, it is clear that the title to the lands as and when they were formed was with the Crown. That fundamental fact forms the background of the action. The Government published a notification constituting the lands as a reserved forest. The claimants were proved to have been in possession for 20 years prior to the notification under the Forest Act. The High Court held that under the circumstances, 'it rests upon the Crown to prove that it has a subsisting title by showing that the possession of the claimants commenced or became adverse within sixty years before the notification'. On appeal to the Privy Council, their Lordships reversed this judgment and stated the law as follows:
'Their Lordships are of opinion that the view thus taken of the law by the High Court is erroneous Nothing is better settled than that the onus of establishing title to property by reason of possession for a certain requisite period lies upon the person asserting such possession. It is too late in the day to suggest the contrary of this observation. If it were not correct it would be open to the possessor for a year or a day to say 'I am here; be your title to the property ever so good, you cannot turn me out until you have demonstrated that the possession of myself and my predecessors was not long enough to fulfil all the legal conditions'..... 'It would be contrary to all legal principles thus to permit the squatter to put the owner of the fundamental right to a negative proof upon the point of possession.'
The whole discussion, as regards Article 142 or 144 in the arguments before the Board and in their Lordships' judgment do not deal with any question of limitation, but only as establishing the rights of the parties viz., the alleged acquisition of title by the claimant by virtue of the alleged possession which he set up. There was no question of dispossession or discontinuance of possession either so as to attract Article 142.
24. The Allahabad High Court, however, in Jai Chand Bahadur v. Girwar Singh, ILR 41 All 669 : (AIR 1919 All 403 (2)) and in Kanhaiyalal v. Girwar Singh, AIR 1929 All 753, on the general language of the Privy Council decision In Secy. of State for India in Council v. Chelikani Rama Rao (AIR 1916 PC 21) laid down that, even in case plaintiff sues merely on his title for recovery of possession from the defendant (without any allegation of dispossession or discontinuance), proof of the plaintiff's title at some anterior period (without any proof of possession within the statutory period) is sufficient to give him a decree unless the defendant proves acquisition of title under Article 144 by proof of his adverse possession for the statutory period. This view has been followed in some cases of other High Courts also viz. Mohammad Mahmud v. Muham-mad Afaq, AIR 1934 Oudh 21 and Arab Jhanglu v. Panja-e-shah Yakuballshah, AIR 1938 Sind 198. It was quite clear that the Allahabad High Court's view was wrong.
25. The matter came up to be reconsidered by a Full Bench of the Allahabad High Court in Bindhyachal Chand v. Ram Gharib Chand, AIR 1934 All 993 (FB) and the decisions in Jai Chand v. Girvarsingh, AIR 1919 All 403 (2) and Kanhaiyalal v. Girwarsingh, AIR 1929 All 753 were overfilled. It was argued before the Full Bench that Article 142 was confined to suit based on possessory title and had no application to a suit for possession based on title. But having considered the decisions of their Lord-ships of the Privy Council in Mohima Chander Mazoomdar v. Mohesh. (1889) ILR 16 Cal 473 (PC) and Mohammad Amanulla Khan v. Badansingh, (1890) ILR 17 Cal 137 (PC), the learned Judges constituting the Full Bench rejected this argument. Their Lordships held that Article 142 in its scope was not restricted to suits based on possessory title but also governed suits for possession upon dis-possession or discontinuance of possession where suits were based on title,
Suleman C. J., observed :--
'In cases falling strictly under Article 142, in which the only question is one of dispossession or discontinuance of possession of the plaintiff and not of adverse possession of the defendant, the question of limitation in one sense becomes the question of title, because by virtue of Section 28, Limitation Act, if the claim is barred by time, the title must be deemed to be extinguished.'
The dictum of Sulernan C. J., has been approved of by their Lordships of the Supreme Court in Rajendar Singh v. Santasingh, AIR 1973 SC 2537. In view of this, it is now too late to contend that where a plaintiff in a suit based on title, admits in the plaint that he was dispossessed or that there was discontinuance of his possession, sometime prior to the institution of the suit, i.e. a suit coupled with allegation of possessions and dispossession or discontinuance of possession, or of permissive possession. Article 142 will not apply or that, when it is found that the plaintiff has proved his title, his allegation of possession and dispossession or of permissive possession were untrue, Article 144 will still apply.
26. We may also advert to the lucid exposition of the law on the subject in Official Receiver of East Godavari's case, AIR 1940 Mad 798 (FB), by Leach C. J., who after adverting to the Privy Council decisions on the point, observed :--
'In view of these decisions of the Privy Council it cannot in my judgment, be maintained that a person who proves title in a suit for ejectment has the right to the decree sought unless the defendant proves adverse possession for 12 years. The plaintiff is not entitled to succeed Unless he shows in addition to title, that he has been in possession of the property within 12 years of the suit The Privy Council has declared that to be the effect of Article 142 and that suits for ejectment come within that Article. It may be a hardship that a person who proves a title to property should lose it to a trespasser unless he can also show that he has been in possession within 12 years of suit, but that is what the Limitation Act says and the Court must administer the law. And drafting his plaint in a manner which disguises the real nature of the suit will not help a plaintiff. In (1884) ILR 10 Cal 374 (Gopal Chunder v. Nilmony Mitter), Garth C. J., pointed out that a mere allegation of a tenancy will not relieve a plaintiff from the burden of proving that he or those under whom he claims had been in possession within 12 years. If it did, that device might always be resorted to for the purpose of evading the law of limitation'.
27. In conclusion, we shall quote from a judgment of Vivian Bose, J., in Meherban Lalli v. Yusufkhan, AIR 1939 Nag 7 where he succinctly states:
'There can be no doubt that in a case Which falls under Article 142, Limitation Act, the plaintiff must prove not only title but also possession within 12 years of suit. But before that Article can apply it must be shown either that the plaintiff was dispossessed or that he discontinued the possession. This can be established either by the facts admitted in the plaint or pleadings, or if not admitted there, then by the facts, actually found.'
We are in respectful agreement with these observations of that very eminent Judge.
28. We would accordingly answer questions referred to the Division Bench by saying that where a plaintiff who admits in the plaint that he was dispossessed by the defendants some time prior to the institution of a suit. Article 142 (and not Article 144) of Sch 1 of the Limitation Act, 1908, applies. We are further of the opinion that the decisions of Wan-choo, C. J. and Modi J. in Madan Lal v. Durga Dutt, AIR 1958 Raj 206 and of Lodha J., in Krishna Kanwar v. Brij Mohan, 1971 Raj LW 492 lays down good law and do not require reconsideration regarding applicability of Article 142 of the Limitation Act, 1908, on account of the legislative changes brought about by Articles 64 and 65 of the Limitation Act. 1963.