P L D 1953 Baghdad﷓ul﷓Jadid 10 (PLP)

ABDUL HAMID MALIK, J.-This is an appeal from a deci sion of the learned District Judge, Rahimyarkhan dated the 11th December 1951, which reversed the Judgment and decree of the Senior Subordinate Judge, Rahimyar Khan dated 31st May 1951. The appeal arises out of a suit for possession of 74 kanals of land situate in Mauza Ehsanpur, Tehsil Rahimyar khan brought by the plaintiffs against the defendants. It was alleged by the plaintiffs that they were the owner of the land in suit that some two or three years ago, they had been dis possessed by the defendants. The learned trial Judge dismissed the suit of the plaintiffs on the ground that the plaintiffs have not proved a subsisting title and that they have failed to prove possession within 12 years of the suit. On appeal, the learned District Judge came to the finding that the defendants had not succeeded to prove their adverse possession for a period of more than 12 years and therefore he decreed the suit of the plaintiffs. Mr. Chishti, the learned counsel for the defendant-appel lants has strenuously urged that the plaintiffs came in the Court admitting that they were out of possession and had been so for more than 2 years. This being so, it was their bounden duty to prove by incontrovertible evidence that they had been in possession up to that date. It was further urged that the onus was not on the defendant-appellants to prove that the plaintiffs lost their title by adverse possession on the part of the defendants. He further added that it had been correctly held by the trial Court that the suit fell within the ambit of Article 142 of the Limitation Act and therefore it was for the plaintiffs to prove that they had brought the suit within the statutory period of 12 years from the date of dispossession. In support of his contentions the learned counsel referred to 1939 Lab. 217, 1935 Lab. 507 and 1938 Cal.

207. It is correct that in all the above cited rulings it was observed that where the plaintiff's case is based on the fact of his possession and subsequent dispossession by the defendants the case comes within the purview of Article 142 of the Limitation Act." In order to ascertain exactly the grounds on which the plaintiffs have come in this Court it is necessary to look to their pleadings in the plaint. Para. 2 of the plaint runs as follows :- "That the defendants Nos. 1 and 2 have illegally taken possession of the land for the last two and three years." In the written statement the defendants pleaded that they were in adverse possession of the land for more than fifty (50) years and that one Hazoor Bakhsh, a plaintiff, had admitted their adverse possession by giving a statement before the Naib-Teshildar in mutation No. 225 dated the 20th June 1941. The defendants, therefore, claimed that the plaintiffs had lost their title by adverse possession. 1t is now clear that the plaintiffs based their case on possession and subsequent dispossession by the defendants. This being so, the provisions of Article 142 of the Limitation Act are attracted and therefore the onus was on the plaintiffs to prove that they bad instituted the suit within 12 years of the alleged dispossession. The plaintiffs have produced three witnesses, Abdul Karim Patwari, Wahid Bakhsh and Ghulam Hussain to prove their possession within 12 years of the suit. A glance at their statements shows that the trial Court was correct in not taking into consideration their evidence. The patwari could not state the exact area of the land in suit, being new-comer. Similarly Ghulam Hussain P. W. could not locate the land. Third witness, Wahid Bakhsh is one of the plaintiffs who stated that the land in question had been brought under cultivation some four or five years ago and that he had been in the enjoyment of the land but he could not id state what advantage accrued to him out of the land. Briefly speaking the evidence referred to above is sufficient to prove that the plaintiffs were in possession of the land within 12 years of the suit. On other hand there is mass of evidence on record produced by the defendants to show that they have been in an adverse possession for more than 12 years Hozoor Bakhsh plaintiff appeared as a defendant witness and stated that he did not remember that he had given any state ment before the Naib-Tehsildar admitting the adverse posses sion of the defendants. Be that as it may, the copy of the mutation Exh. D. Z. does show that Hazoor Bakhsh did give the statement admitting that the defendants were holding the land adversely for more than 12 years. The learned counsel for the plaintiff respondents, tenaciously urged that in the revenue papers it was shown that the defendant-appellants were in possession of the land since 1940 and that the whole land in suit had not been brought under cultivation but was a banjar land. He further alleged that prior to 1940 one Noor Din was in possession of the land and as it had not been shown by the defendant-appellants that they were claiming through Noor Din, the defendants could not tack the possession of Noor Din to their own possession and therefore at the most the defendant-appellants were holding the land adversely since 1940-a period short of 12 years. I may say that the arguments of the learned counsel are based on the reasoning which the learned District Judge had adopted in his judgment. However, it is evident that it was for the plaintiffs to prove affirmatively that they had not been continuously kept out of possession for more than 12 years after dispossession. There is no evidence on record that after Noor Din, the possession revested in the owners. There being no proof that the plain tiffs were in possession of the land in any year prior to 1940, if would be difficult to hold that the owners recovered the possession of the land in suit within 12 years prior to the institution of the suit. A continuous adverse possession for the statutory period though by a succession of persons not claim ing under one another does bar the true owner. Even assuming that the defendant-respondents do not claim through Noor Din still the fact is clear that the plaintiffs never obtained the possession of the land within 12 years of the suit. The learned District Judge was therefore wrong in ignoring the possession of the land by Noor Din. At least this much is clear that from Kharif 1936 till the institution of the suit (24th February 1949) the plaintiffs were kept continuously out of possession and before that there is no evidence to show that the plaintiffs were ever in possession of the land in suit. It may be stated that the Kharif crop is sown in the month of October. Secondly, it was contended by the learned counsel for the plaintiffs that a part of the land was uncultivated land and as the plaintiffs bad proved their proprietary title therefore it was for the defendants to prove in what manner they had asserted their adverse title as against the plaintiffs. It was vehemently urged that the suit was governed by Article 144 of the Limi tation Act and not by 142 of the Limitation Act. In support of his arguments the learned counsel referred to a Division Bench ruling of the Lahore High Court reported as Muhammad Yar and others v. Muhammad Yar and another (1929 Lah, 596), where it was held that in case the suit is brought on a proprietary title though it is a case of dispossession yet Article 144 of the Limi tation Act would apply. The learned Judges, obviously, were of the opinion that Article 142, of the Limitation Act is confined to suits on possessory title. The defendants contended that they held the land in their own rights by adverse possession for more than 40 years. It was found that the land remained unculti vated from the year 1907 to 1919 and the suit was brought on 31st of August 1921. All along in the Jamabandi the plaintiffs were described as owner and defendants as in possession. The learned Judges held that the onus of proving adverse posses sion lay on defendants and the suit was governed by Article 144 of the Limitation Act. I may respectfully say that the ruling in question does not lay down the correct law. It is correct that title ordinarily carries with it the presumption of possession and where the question is as to who was in possession of the land presumption is that the true owner was in possession. This presumption will not apply when there is definite evidence to the contrary. There is no difference between the proof of possession in case of uncultivated land and in that of cultivated lands. If the plaintiff asserts that he exercised acts of ownership upon the land and adduced evidence in support of such assertion he cannot, where such evidence is rejected by the Court, turn round and rely upon the presumption "Possession follows title" because the case set up by him negatives the existence of circumstances which gives rise to the presumption and is incon sistent with it. The perusal of the above ruling quoted by the learned counsel clearly shows that the plaintiffs had come in Court on the allegation of possession and subsequent dispossession by the defendants. It was therefore for the plaintiffs, in a suit for eject ment to prove possession prior to dispossession. It is evident that in Article 142 there is nothing limiting its applicability to suits exclusively based on possessory title. It nay also be remarked that the authority relied on by the learned Judges reported as Secretary of State for India v. Chellikani Rama Rao and others (1916 P C 22) was not on all fours with the circumstance of that case. The claimants in that case were admittedly in possession and they never sued for recovery of possession on the grounds of dispossession. Their Lordships of the Privy Council held that the only question was whether they have established their case on the basis of title by adverse possession over 12 years within the meaning of Article 144 of the Limitation Act. That case obviously is no authority for the proposition that where the suit is for possession on the ground of dispossession, Article 144 of the Limitation Act applies. I am therefore of the opinion that the ruling cited by the learned counsel does not help him in the least. In this connection may also refer to a case reported as Muhammad Aman Ullah Khan v. Badan Singh (1890 Punjab Record No. 23). case plaintiff s were proprietors of certain lands dispossessed by the defendants. They thereupon sued the defendants for possession. It was held by their Lordships of the Privy Council that Article 142 applied to tire case. Their Lordships observed :- `Where any proprietary right may have existed is not the question. It is whether there has been a dispossession or discontinuance, which there clearly was. No doubt the pro prietary 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, and if there has been any doubt in the minds of the Courts in the Punjab as to what was the effect of the law of limitation in cases of this description, it seems to have arisen from the introduction of some opinion that there must be what is called adverse possession. It is necessary to enter upon that inquiry. Article 144 as to adverse possession only applies when there is no other article which specially provides for the case. In this case their Lordships think Article 142 does provide for the case, and that the suit is barred by the Law of Limitation." The main question on which the present suit hinges is whether Article 142 or Article 144 apply to such a case. Article 142 of the Limitation Act deals with a case when a plaintiff while in possession of his property has been dispossessed or has discontinued the possession. Article 144 of the Limitation Act is a residuary article and applies only to suit for possession of immovable property to which no other article is applicable. The very wording of Article 142 clearly shows that this article would be applicable to suits for possession of immovable property when the plaintiff while in possession of the property had been dispossessed. Such a suit must be brought within 12 years of the date of dispossession. There fore the plaintiff who sues for recovery of possession of the land alleging that while in possession of such property he was dispossessed. Article 142 of the Limitation Act clearly applies. The burden of proving the date of dispossession would be on plaintiff, who in order to succeed must show that the disposses sion was not prior to 12 years before the suit was filed, Article 144 of the Limitation Act would only apply to suits for possession where no other article is applicable. A plaintiff who was never in possession but has acquired a title which entitles him to possession and be brings a suit for possession, then the limitation would be governed by Article 144 of the Limitation Act. In short the main difference between Article 142 and Article 144 of Limitation Act is that when a plaintiff is suing for possession on the ground of dispossession, the onus lies on him to prove that the date of his dispossession was within 12 years of the suit while if the suit is not for possession based upon dispossession but is a suit for possession of immovable property not especially provided for in any other article of the Act then on proof of title of the plaintiff's suit cannot be dismissed until the defendants further prove his adverse possession as against the plaintiff for more than 12 years. In the plaint, filed in the present suit out of which this appeal has arisen the plaintiff: unequivocally stated that they had been in possession of the land and subsequently had been dispossessed by the defendants. This allegation clearly attracts the provisions of Article 142 of the Limitation Act because it is specially provided in the said article that the suit for posses sion of immovable property when the plaintiff while in possession of the property has been dispossessed or has discon tinued the possession is governed by it. The period of limitation would start from the date of dispossession or discon tinuance. It necessarily follows that in case the plaintiff cannot prove to have brought the suit within 12 years of dispossession then the suit is barred by limitation. It is immaterial that part of the land was uncultivated one because the plaintiff has admitted that he was in actual possession of it and it is only three years back that he was dispossessed. It is for him now to prove that the dispossession took place within the statutory period of 12 years. Article 144 of the Limitation Act will have nothing to do with such cases where suit is brought for possession after dispossession. I may add that in the present suit the defendants have adduced ample evidence to show that the uncultivated land was in their actual possession. In this connection 1929 Lah. 34 (36) may be cited with advantage where Addison, J. was pleased to observe as follows:- "I therefore, hold that, though title of waste land is an element to be taken into consideration in weighing the evidence as to possession of the plaintiff within 12 years, it can be of no avail when there is clear evidence on behalf of the defendant showing that the plaintiffs were not in possession or exercising any rights as owners within 12 years." I, therefore, hold that it was for the plaintiffs to prove and establish possession within 12 years of the suit and they have miserably failed to do so. Hence the suit is clearly time-barred and was rightly dismissed by the trial Court. I, accordingly accept the appeal with costs, set aside the judgment and decree of the lower Appellate Court and restore that of the Court of the Senior Sub-Judge, Rahimyarkhan. FAIZ MUHAMMAD, C. J.-I agree with my brother A. Hamid. A. H. Appeal accepted.