Basheer Ahmed Sayeed, J.
1. This second appeal is preferred by the first defendant in the suit against the decree and judgment of the learned District Judge of North Malabar.
2. The plaintiff brought the suit for directing the first defendant and seven other defendants to vacate and surrender possession of the suit property to the plaintiff with, arrears of pattom as shown, in the plaint and future purappad calculated at the rate mentioned in the plaint on the basis of an oral entrustment mentioned in the plaint. In the alternative, if the oral entrustment is not proved, he prayed for a decree on the basis that the plaintiff and defendants are in the relationship of jenmi and tenants because the defendants are holding the properties under the plaintiff with his permission and also on the strength of the plaintiff's title thereto.
The defendant-appellant contested the suit on the ground inter alia that he was not under permissive occupation of the plaintiff. On the other hand his allegation was that he was let into possession by one Pakkar who was the karnavan of the plaintiff and that the jenm stands in the name of the said Pakker. He further contended in his written statement that since the plaintiff himself had admitted in the plaint that the deceased Pakker had a right over the property, the plaintiff had no right to file the suit before getting his rights partitioned and that the suit was not maintainable.
There was also an alternative plea by the defendant that even if the plaintiff acquired any right over the suit property through his wife, since the aforesaid Pakker was holding and cultivating the propertyin jenm right for a long time denying the rights ofthe plaintiff's wife, the plaintiff was barred by limitation and adverse possession from filing the suit.
3. The learned District Munsif found on the evidence that though the first defendant was admitted to be in possession of the property from 1918 onwards, he' was unable to believe the case put forward by the first defendant that he was granted a lease by Pakker on a purappad of Rs. 25 rent inclusive of assessment. He also held that the plaintiff's case that he put the first defendant in possession a year after Ex. A. 2 i.e., the lease of 1945, on a rent of 270 seers of paddy and one Kavn bananas, or 250 seers of paddy, one kavu of bananas and Rs. 12 was not proved.
He therefore held that as the oral lease put forward by the plaintiff was not proved, the plaintiff was entitled to recover possession of the property on the strength of his title with damages for use and occupation. He gave a decree in favour of the plaintiff against the defendants. On appeal, the learned District Judge field that possession of the first defendant-could not be regarded as adverse to the plain-tiff and that the plaintiff must be regarded as being in constructive possession of the property. Therefore he opined that the plaintiff was entitled to maintain the suit and confirmed the lower court's decree.
4. It is now contended before me by Mr. Pocker, learned counsel for the appellant, that both the courts have not considered the fundamental issue that arises in the case, viz., whether the plaintiff could succeed merely on the strength of his title without proving his possession within a period of 12 years prior to the suit, especially when the plaintiff's claim that the first defendant was put in possession by him was negatived and at the same time the defendant's claim that he was put in possession by Pakkaramar was also negatived.
The fact that emerges out of the findings of the two courts below is that the defendant is admittedly in possession for over 12 years. The plaintiff is entitled to the property because it was allotted to him under a prior decree to which the first defendant was not a party. Pakkaramar, the. person from whom the first defendant claims and which claim was negatived, appears to have been a party to the prior suit. Therefore when the plaintiff's claim as well as the defendant's claim have been negatived, the question is whether it is incumbent upon the plaintiff to prove his possession or whether it is incumbent upon the defendant to prove his adverse possession against the plaintiff.
The question further arises as to which article governs the case, whether it is article 142 or article 144. Under article 142, it is incumbent upon the plaintiffto prove not merely his title but also his possession within a period of 12 years prior to the suit if he claims possession. According to the trend of the rulings of this court and other courts, it is not article 144 that applies. That is a residuary article. My attention has been drawn to a decision in Official Receiver. East Godavari v. Govinda Raju, ILR 1940 Mad 953: AIR 1940 Mad 798 (A), where it has been definitely held that article 142 applies to a case like this and the Full Bench has laid down that incases like this mere proof of title will not be sufficient to award a decree in favour of the plaintiff but that the plaintiff should also prove his possession, within a period of 12 years prior to the suit.
To the same effect are the decisions in Sangamlal v. Gangadin : AIR1946All389 , and Ravunny Nair v State, AIR 1934 Trav-Co 444 (C). These decisions are authorities for the proposition that if the plaintiff who has been dispossessed were to sue for possession, he should not only establish his title but should also prove his possession within 12 years prior to suit. In the circumstances of the present case, reading the two judgments of the courts below, it is amply clear that what is found is that the defendant has been in possession right through from 1918 onwards but the claim that the plaintiff put him in possession or that the defendant got possession, from another owner, are both negatived.
In such circumstances it is very essential and inevitable that the plaintiff should prove his possession if he were to succeed in dispossessing the defendant who has admittedly been in possession for over the period of 12 years. Both the Courts have not adverted to this aspect of the case and I consider there is considerable force in the argument of the learned counsel for the appellant that the courts below have misdirected themselves and have not considered the material point that was involved in the suit.
5. Mr. Rama Variar argued that since there was a prior suit and that since the title of the plaintiff had been found and that the person through whom the defendant claimed, viz., Pakarmar, was a party to the suit, possession of the defendant should be considered to be only permissive and therefore it was not necessary for the plaintiff to prove possession in himself, possession of the defendant being that of the plaintiff himself. I do not think I can agree with this contention, for the case of the plaintiff that by means of an oral lease he permitted the defendant to occupy the lands has been definitely negatived.
Even so, as already stated, the case of the defendant that he went into possession of the land under an oral lease from Pakarmar has also been negatived and what remains is the admitted possession of the defendant, whether it was by trespass or adverse to the plaintiff or to anybody else docs not matter. But in so far as the plaintiff conies to the court on the strength of his title, if he were to get possession he is bound to prove that he was in possession within the period of 12 years from the date of dispossession. If the period of 12 years from the date when he was dispossessed is exceeded, then certainly be is out of court and he cannot get any relief in the suit. Therefore the judgments of the two courts below have to be set aside and the plaintiff's suit will have to be dismissed. The appellant will be entitled to his costs throughout.
6. Leave to appeal is refused.