1. The only point urged before us is one of limitation. The Subordinate Judge has dismissed the plaintiff's suit on the ground that Art. 142 of the Limitation Act applied to the case, and the plaintiff not having proved possession within 12 years, his suit was barred. The plaintiff did not allege in the plaint that he was dispossessed by the defendants. He case was that he let defendants into possession under an agreement of tenancy and that they would not give up possession. The defendants denied plaintiff's title and set up title by adverse possession for over 12 years. The District Munsif granted a decree in favour of the plaintiff, but the Subordinate Judge, on appeal, held that the plaintiff failed to prove his possession within 12 years of the suit.
2. Article 142 is applicable only to cases where the plaintiff alleges possession and dispossession in his plaint. Where he sets up a tenancy or license as the basis of the defendants' possession the proper article applicable would be Art. 144. If the defendants are able to make out adverse possession for over 12 years, the plaintiff's suit would be barred. Here the learned Subordinate Judge found that the agreement set up was not proved. But he has not found on the evidence that the defendants were in adverse possession for over 12 years. He says:
If the defendants had been in possession on 25th July 1907, the suit would be barred. I consider that the evidence has not established that the plaintiff was in possession within the statutory period.
3. In this case the plaintiff is not bound to prove possession within 12 years. We therefore, set aside the decree of the Subordinate Judge and direct him to restore the appeal to file and dispose of it after recording finding on Issue No. 4. If the finding be that the defendants have been in adverse possession for over 12 years the plaintiff's suit would be barred. If the Subordinate Judge is not able to arrive at the finding that the defendants have been in adverse possession for over 12 years, the plaintiff ought to succed.
4. Costs will abide the result.