1. This appeal arises out of a suit for recovery of possession of the disputed land on declaration of the plaintiffs' title to the same.
2. The Court of first instance decreed the suit, but that decree was set aside by the lower Appellate Court which dismissed the suit. The plaintiffs have appealed to this Court.
3. The Court of Appeal below has decided both the questions of title and limitation against the plaintiffs, but we think that it has not dealt with the case properly. With regard to the question of title, the learned Subordinate Judge observes the Munsif has stated many things in his judgment regarding title and possession in respect of the lands, but most of his observations are based upon surmises '. He does not state, however, what they are The Munsif elaborately discussed the evidence as to title. The learned Subordinate Judge refers to certain documents but appears to have considered only some of the grounds upon which the Munsif based his decision. The judgment is one of reversal, and we do not think that he has dealt with the question satisfactorily.
4. As regards the question of limitation, the Court of Appeal below has held that the plaintiffs had failed to prove possescion within twelve years. That would ordinarily be sufficient to dispose of the case, as it falls under Article 142 of the Limitation Act, and the plaintiffs must fail unless they prove possession within twelve years, even assuming that the title is with them. It is contended that if the plaintiffs have got title and the lands are waste, there was a presumption that possession follows title. But the plaintiffs asserted that the land was capable of possession and adduced evidence of definite acts of ownership. In these circumstances, the plaintiffs cannot rely upon any presumption (assuming that they have title) and if the evidance adduced is not accepted, the suit must be dismissed on the ground of limitation, It appears that both parties adduced evidence of definite acts of ownership having been exercised upon the land. The Munsif held that Ails were raised by the Kriihans of the plaintiffs and that they also cultivated til and kali on the disputed land for some years. The defendants also adduced evidence of possession. The learned Subordinate Judge, however, says that the lands are admittedly danga.
5. The plaintiffs alleged that their lessors were in possession through a, tenant Bipin Napit. The learned Subordinate Judge its the earlier portion of his judgment seems to have disbelieved the allegation, Ha says The lease of this Bipin Napit is not produced. The defendants' case is that Bipin was turned out by Lukhi Narayan.' This Lukhi Narayan was the vendor of the defendants. If Bipin held the land as tenant before the settlement with the plaintiffs which took place in 1901, and if Bipin was dispossessed by the defendants' vendor, there could not be any continuances of possession of the plaintiffs' lessors or of the plaintiffs even if they had title, unless they subsequently recovered possession within 12 years of the suit, and the case might have been disposed of on this ground alone. Bit the learned Subordinate Judge says-' The evidence on the record shows that bath parties have been trying to oust each other of possession since a number of years.' This implies that the plaintiffs got into possession at any rate oncs, because there can be no question of ousting unless a party is in possession. And if that is so, the more fact that Bipin was ouetad would not be conclusive: because if, before Lukhi Narayan or the defendants bad acquired a title by ad78rse possession for twelve years after ousting Bipin, the plaintiffs again got into possession within twelve years before; suit, and if they were the rightful owners,, their claim would not be barred by limitation, The findings of the Court of Appeal below on the point are, therefore, not clear.
6. In these circumstances?, we think that the case should go bask to the lower Appellate Court in order that the appeal may be re heard and disposed of according to law. Costs to abide the result.