Sikri, J.— One Mohd Mir Khan brought a suit in the Court of the Munsif Aurangabad against a number of persons for a declaration that 8 bighas of land under Khata No. 22, situate at Mauza Gopalpur, Dist. Gaya, constituted the bakasht interest of the plaintiff, who had been in possession and occupation thereof, and he prayed in the alternative “that if in the opinion of the Court the plaintiffs be deemed to have been dispossessed from the suit land under Section 144 (CrPC), in that case, the plaintiffs may be put in sir possession thereof on dispossession of the defendants and a decree for future mesne fronts from the date of dispossession till the date of realisation, may also be passed in favour of the plaintiffs. He alleged in the plaint that the said land had been in sir possession of the plaintiffs and 9.81 acres (including the said 8 bighas) is recorded in the Record of Rights, Survey Khaitan, as the bakasht land of the plaintiff. He further alleged that he had sown seeds in two bighas in the month of Asadh 1353, when Defendants 2, 3 and 5 interfered with his possession. Proceedings under Section 144 CrPC, were started which resulted in a decision against him. He asserted that the defence of the above defendants in Section 144 proceedings that Plots Nos. 587, 832 and 846 and portion of 881 had been settled by him and that they were in possession, was false. He further stated that after the Section 144 proceedings he grew rabi crop in the suit land after cultivating the same with his own plough and bullock and was still in possession but since a cloud had been cast over the title of the plaintiffs due to the decision in Section 144 proceedings, the plaintiffs was entitled to get his title to possession over suit land confirmed by court.
2. It is apparent from the above recital that, except in the relief clause. the plaintiffs asserted that he had been in possession and continued to be in possession and that he had title to the land. It was in the alternative that he prayed for possession if the plaintiffs be deemed to have been dispossessed.
3. The defendants in their written statement did not deny the title of the plaintiffs to the suit land but asserted that “the plaintiffs being the only member in his house used to remain outside in some service and consequently he gave the entire urea of the lands in Khata No. 22 to these defendants to cultivate them on batai over more than 25 years ago, and since then the defendants have been and are in peaceful cultivating possession over the same and have also acquired occupancy rights in them”. They further alleged they have been dividing crops regularly to the plaintiff but the plaintiff never granted any receipt to them.
4. The Munsif held that the plaintiff settled these lands with the defendants some 28 years ago. On the question of possession he held that ever since the settlement, the defendants have been in possession and cultivating the lands, and that the plaintiff since after the settlement has not been in possession. He concluded that the plaintiff having been out of possession for more than 12 years was not entitled to possession. He, in consequence, dismissed the suit with costs. The plaintiff appealed and succeeded before the appellate court. The Additional Sub-Judge was of the view that “the onus was on the defendants to prove that they were rate of the lands and that they had acquired occupancy rights in these lands and unless they succeeded in proving these, they could not success-fully resist the plaintiff's suit.” After going through the evidence, he came to the conclusion that the defendants had not been able to prove their case about settlement and possession.
5. Five defendants appealed to the High Court, It was contended before the High Court on behalf of the defendants that the appellate court had wrongly put the onus on the defendants, but the High Court, relying on Jaldhari v. Rajendra Singh AIR (1958) Pat 386 did not accede to this contention. The High Court held that the title of the plaintiff had been admitted by the defendants and their case of settlement and possession for 12 years had been rejected by the appellate court. The plaintiff had never alleged that he had been dispossessed. The learned Judge further observed as follows:
“As the defendants never got possession since the case of the defendants have been rejected and the plaintiff having never alleged that he has been dispossessed, it is clear that once title has been admitted by the defendants, on the pleadings it follows that the landlord is in possession and if the land-lord is in possession, on the pleadings of the parties in the present case there can be no question of coming to a formal finding of fact that the plaintiff was in possession because on the pleadings the plaintiff never claimed that he had been ejected or dispossessed and the defendants never asserted that they forcibly ejected the plaintiff.”
In conclusion, the learned Judge held that having regard to the facts and circumstances of this particular case, the burden was on the defendants to show whether they have been in possession for 12 years or more. In the result he dismissed the appeal. The defendants having obtained leave from this Court, the appeal is now before us for disposal.
6. It has been argued on behalf of the appellants that the Full Bench judgment relied on by the learned Judge was wrongly decided and that on the facts of this case. Article 142 and not Article 144 governed the case. We are of the opinion that the Full Bench was correctly decided and that Article 144 applied to the facts of this case.
7. The learned counsel for the appellant urged that in an action in ejectment, one of the things that the plaintiff must prove is his title to immediate possession. This is true and there is no dispute about this proposition. He further urges that where the plaintiffs does not admit tenancy, although the defendant alleges tenancy, he must show possession within 12 years of the suit. He says that the defendants have admitted title of the plaintiff but not possession. To support his proposition, the learned counsel for the appellant, apart from Patna cases which have been overruled by the Full Bench, relied on Official Receiver of East Godavari v. Chava Govind Raju ILR (1940) Mad 953 and Behari Lal v. Sundar Das. In the Madras case, an auction purchaser was obstructed by a person who claimed it as his own ancestral property. The auction purchaser sued for declaration and injunction. The facts are quite different and in none of the cases discussed by the teamed Chief Justice in his judgment a defendant had claimed possession under the plaintiff but had asserted right by adverse possession.
8. In Behari Lal v. Sundar Das the facts as stated in the headnote were these:
“The plaintiffs instituted a suit for possession of a house against N.B and N.D. alleging that in 1927 they had rented the house to N.B, who had sublet it to the defendant N.D The plaintiffs stated in the plaint that they were the owners of the house and that they had instituted a suit previously for recovery of rent against both the defendants, but N.D had asserted his own title to the property and the suit had been dismissed against him, but had been decreed against N.B”
The High Court held that the plaintiffs clearly pleaded possession and dispossession, i.e possession through their tenant N.B and dispossession by the latter's sub-tenant N.D, when he set up a title of his own. This case 15 again distinguishable for the sub-tenant had clearly asserted his own title and denied that of the plaintiff.
9. Another case cited by the learned counsel for the appellant is Kumbhan Lakshmanna v. Tangirala Venkateshwarlu (1948-49) LR 76 IA 202 in which the Privy Council reviewed most of its earlier decisions on this branch of the law. In this case, a holder of a minor inam sued to eject the tenants from the holding, and the Privy Council held that the burden was on the plaintiff to make out a right by proving that the grant included both the melvaram and Kudivaram interests, or that the tenants or their predecessors were let into possession by the inamdar under a terminable lease. One of the cases referred to is Seturatnam Aiyar v. Venkatachala Gounder (1919) LR 47 IA 76 and with reference to it the board observed at p. 224, as follows:
“In the above case it was either admitted or found as a fact that the tenants had been let into possession by the landlord who was the absolute owner. When the tenant claims rights of occupancy in such circumstances their Lordships, in Nainapillai Marakayar v. Ramanathan Chettiar, laid down the principle that the burden will be on him to prove that he has such rights.”
Is the position the same when the plaintiff does not admit any tenancy but the defendant alleges tenancy but of a permanent nature? It seems to us that if a defendant not only admits title of the plaintiff but also admits that he derived possession from the plaintiff as a tenant, the case must proceed on the defendants plea, and for the purpose of deciding whether Article 142 or Article 144 applied, it must be assumed that the plaintiff has not been dispossessed or has not discontinued his possession within the meaning of Article 142, for neither the plaintiff nor the defendant alleges dispossession or discontinuation of possession.
10. Construing the plaint as a whole, it is clear that the plaintiff never alleged dispossession or being out of possession. He asserted ownership of the suit land and claimed that he was m possession. Section 144 CrPC proceedings seemed to have cast a doubt on his title and he accordingly brought a suit for a declaration. It is true that in the alternative he prayed for a decree for possession and mense profits. He was careful even in this alternative prayer to say that he could only be deemed to be dispossessed by Section 144 proceedings. The defendants did not deny the title of the plaintiff to the suit land but asserted that they had been settled and acquired occupancy rights. On these facts it seems to us that it is Article 144 and not Article 142 that applied.
11. In the result, agreeing with the High Court, we hold that the suit was not barred. Accordingly, the appeal fails and is dismissed, but as there is no finding by the Courts below that the plaintiff is in possession, the decree will be modified and limited to a decree for possession of the land in dispute.
12. In the circumstances of the case the parties will bear their own costs in this Court.
13. In view of our decision on the question of limitation, it is not necessary to deal with the point of abatement of the appeal raised by the learned counsel for the respondents.
14. The appellants will pay court fees, which must have been paid by them H they had not been permitted to appeal as members.