1. This is a defendants' second appeal in a suit instituted by plaintiff 1, the admitted proprietor of the land, and plaintiff 2, settled under plaintiff 1 from the year 1938, for declaration of title to and recovery of possession of a piece of homestead land bearing plot No. 594 khata No. 73 in Qila Mahi Khandak tauzi No. 11088 within the limits of the Bihar Municipality. In the record of rights the plot is recorded as gairmazrua malik. The plaintiffs trace the cause of action for their suit to their dispossession from the land in suit on account of the warning notice and several acts of possession exercised by the defendant-appellants, such as, planting of bamboos, cutting of neem tree and appropriating the same, storing bricks thereon and carrying away stones and khowa that were on the land, to their house. With these allegations the reliefs prayed for are that it may be adjudicated that the land in dispute constituted the interest of plaintiff 2 by virtue of settlement, and that the plaintiffs always remained in possession and occupation thereof, that the defendants had no title to tbs land in dispute, that neither the defendants nor their ancestors ever came into possession thereof in any capacity, that the possession of the defendants over the land in dispute is wrongful, that plaintiff 2 may be put in possession by ejecting the defendants therefrom that if for any reason there may be difficulty in passing a decree in favour of plaintiff 2, a decree for recovery of possession may be awarded in favour of plaintiff 1 and that a decree for damages of Rs. 5 in favour of plaintiff 2 being the price of stones and khowa and Rs. 10 being the price of neem tree cut and appropriated by the defendants be granted. The date of dispossession as stated in the plaint para. 22 is the 26th March, 1941 the date of notice of the order under Section 144 of the Cr PC, and possession of defendant 1 over the property in suit. The defendant, appellants resisted the suit on the ground that they have been in possession of the land in dispute from the 29th Asarh 1317 Fasli when a hukmnnama was granted by Babu Alakh Prakash Singh alias Babu Rashbihari Singh, an ancestor of plaintiff 1, to the father of defendant 1 and that since then neither the plaintiffs nor their predecessors-in-interest were in possession of the same. They thus urged that the plaintiffs' suit was barred by limitation having been brought on 26th March 1941, more than 12 years after the date of the hukumnama.

2. The trial Court disposed of the suit disallowing the claim of plaintiff 2 on the finding “Plaintiff 2 has not taken a valid settlement of the land and is not entitled to any relief” and; decreed the suit in favour of plaintiff 1 only, for recovery of possession by eviction of the defendants with the modification that the claim for damages was disallowed. Plaintiff 2 did not agitate against the order of dismissal of his suit which order, therefore, is final for the purpose of this litigation as between the contending parties. The defendants preferred an appeal against the-decree passed by the trial Court.

3. Both the Courts have held that the plaintiff has proved his title but not the defendant-appellants, they having failed to prove the alleged settlement by Alakh Prakash. The only issues the decisions on which have been controverted in this appeal are:

“(1) Is the suit barred by limitation?

(5) Are the plaintiffs entitled to recover possession of the land in suit.”

4. Issue No. 5 presents no difficulty in view of-establishment of the plaintiff's title which is an accomplished fact according to the conclusions reached by both the Courts below. Plaintiff 1 will be entitled to recover possession in case her suit be held as in time. The question of limitation, therefore, looms large in this appeal and has to be determined. There is no dispute that the suit is governed by Article 142, Limitation Act which reads:

“For possession of immovable property when the plaintiff while in possession of the property has been dispossessed or has discontinued the possession. 12 year The date of dispossession or discontinuance.”

5. There can be no manner of doubt that the plaintiff has to establish that her suit is in time; in other words, her suit is within 12 years from the date of her dispossession or discontinuance of possession on her part. As this is self-evident that according to the averments of the plaint the cause of action for the suit took place on the date the plaintiffs were dispossessed by the defendants, the question of discontinuance of possession does not arise for consideration. The finding that is expected in such a suit, of the final Court of fact, is in regard to whether the alleged dispossession has taken place either on the date assigned or on any other date within 12 years of the institution of the suit. Approached from this angle of vision, there need be no difficulty in applying the law to the facts of this case. In order to find that the alleged dispossession took place on 26th March 1941, two facts have to be determined by all means: One is that the dispossession imputed to the defendants did take place on the date alleged; secondly, that the plaintiffs were in possession till then. Alternatively, the requirements of law will be satisfied if it is found that the plaintiffs were in possession till some time within 12 years of the suit. The latter alternative arises only when the plaintiff fails to prove dispossession by the defendant on the date alleged. In such a case when the plaintiff is allowed to succeed, and for that purpose to save the limitation by proof of possession within 12 years of the suit, be is in fact allowed to prove a case of discontinuance of possession rather than dispossession. It would be more a question of rule of pleadings and fairness of the trial rather than a question of law to determine whether the plaintiff should be permitted to take a stand on an alternative provided by law but not pleaded by him. Though in some cases the difference between discontinuance of possession and dispossession may be reduced to a vanishing point but it is a distinction well discernible. To envisage a concrete case, discontinuance of possession may arise when a defendant asserting either title in himself or its absence in the plaintiff successfully deters the latter from exercising his acts of possession. Dispossession occurs only when somebody exercises acts of possession adverse to the plaintiff.

6. Keeping this aspect of the question in view, it becomes immaterial for consideration whether a judgment in which there is neither a clear finding of dispossession within 12 years nor of discontinuance of possession within the same period does effectively and satisfactorily dispose of the issue. The answer to this question must be in the negative.

7. I shall now quote a few passages from the judgment of the learned lower appellate Court in order to bring into relief his mode of disposal of the issue. While dealing with the question of title set up by the defendant, the Court observes:

“The evidence of possession over this parti (fallow) land which is still fallow as was seen by the learned Munsif will be dealt with in the next issue and it would appear that evidence of possession alone is not such from which an inference of permanent settlement could be drawn in favour of the defendant. X, therefore, find that appellant had failed to prove that his father obtained permanent settlement of the land in suit from Babu Alakh Singh.”

8. He formulated the next point in the following words:

“Whether the appellants are in possession of the disputed land for 12 years before the suit and had thereby acquired right by adverse possession when the suit was brought?”

9. This formulation clearly evinces manifestly a wrong approach to the case. This approach has necessarily vitiated his examination of the evidence as to possession adduced by the parties respectively. The result that he reached on an examination of both sides' evidence is summarised in the following words:

“Reading the oral evidence of both sides it appears that no overt act of possession was exercised on the disputed land by any party except the construction of chabutra prior to Section 144 of the Cr PC, proceedings and the land otherwise was uncultivated waste. Though appellant's witness says that appellant constructed it, appellant's version is that it was existing from before. There is no definite evidence of the appellant having constructed the same. On the other hand plaintiff claims to have constructed it after plaintiff 2 took settlement by registered patta and kabuliat and shortly before Section 144 of the Cr PC proceedings.”

10. It has been contended by Mr. Baldeva Sahay, counsel for the respondent, that the last sentence of the passage quoted above occurring, as it does, after an expression of opinion as to unreliable character of the defendant-appellant's evidence as to construction of a chabutra necessarily imports that what the Court decided was that the-plaintiff's claim of construction of a chabutra was substantiated. I cannot, however, accede to this contention inasmuch as such an inference is thoroughly well negatived by the sentence that immediately follows, namely:

“The only reliable evidence among all the witnessed examined by both parties is of P.W 1 who was Deputy Inspector of Schools and has since retired.”

11. This sentence evidently connotes that no other evidence adduced by the plaintiff was held reliable. The position deducible, therefore, is that if P.W 1 has spoken about the construction of a chabutra by the plaintiff, it would amount to a finding in favour of the plaintiff but not otherwise. While referring to what P.W 1 deposed, the learned Court of appeal below says:

“In 1940 he (P.W I) was occupying a house adjoining the disputed land. Because the disputed land was parti he used to sit on the land occasionally under the neem tree and has seen plaintiff Binod Bihari in possession of the parti land, the only overt act of possession exercised by Binod Bihari was that he used to the his cow on the land.”

12. In order to ascribe to this passage the effect of a finding as to possession in favour of the plain, tiff it has to be seen whether the learned Court of appeal below himself considered the tying of cow on the land as an overt act of possession. It should be remembered that the Court has said in the passage already referred to:

“Reading the oral evidence of both sides it appears that no overt act of possession was exercised on the disputed land by any party except the construction of chabutra…”

13. It is clear, therefore, that he finds no possession in favour of the plaintiff. The operative part of the learned lower appellate Court's final conclusion appears in the following words:

“I, therefore, find that the appellant failed to prove that he was ever in possession of the land for 12 years prior to Section 144 of the Cr PC, proceedings. The learned Munsif was justified in decreeing the suit in favour of the plaintiffs.”

14. This, what can be called culmination of his judgment, indicates that he has dealt with the case as if it was one falling within the purview of Article 144, Limitation Act, but from his statement of the case from the pleadings, which I have already noticed, it is clear that the case is one which is governed for the purpose of limitation by Article 142, Limitation Act.

15. If any part of his judgment can be so interpreted as to deal with the case from an angle of vision compatible with applicability of Article 142 rather than of Article 144, it is this:

“The gairmazrua land lying open and waste land should be deemed in possession of the proprietor unless the person claiming it proves his exercise, right and actual act of possession over the same which the defendant failed to do.”

16. Assuming but not accepting as correct that this was the way in which the question of limitation was sought to be disposed of in favour of the plaintiff by the Court of Appeal below, I should say that his mode of approach was thoroughly wrong.

17. I should refer to the decision in 6 P.L.J 478,1 in which relying upon a passage from the judgment of their Lordships of the Privy Council in 16 Cal. 473,2

“In all actions for ejectment where the defendants are admittedly in possession… and under a claim of title it lies upon the plaintiff to prove his own title. The plaintiff must recover by the strength of his own title and it is the opinion of their Lordships that in this case the onus is thrown upon the plaintiffs to prove their possession prior to the time when they were admittedly dispossessed and at some time within 12 years before the commencement of the suit… and that it does not lie upon the defendants to show that in fact the plaintiffs were so dispossessed,”

18. it was held that in a suit in ejectment, the plaintiff must not only prove his title but also that he has been in possession within 12 years from the date of the institution of the suit. If it is found that the evidence produced by both the plaintiff and the defendant as to possession is unworthy of credit, the plaintiff's suit must fail inasmuch as the presumption which arises upon proof of title cannot be called in aid to give weight to evidence unworthy of credit any more than if no evidence at all had been given. In this view of the matter, the plaintiff's suit can be dismissed in view of the learned lower appellate Court's finding that the evidence adduced by both sides is unworthy of credit. But to adopt this course would amount to upholding a wrong done by the lower appellate Court in his appreciation of the law applicable to the case. He will have to be told what should be the right approach to the case, and granting a proper approach what is the point on which a finding is needed for satisfactory disposal of the issue as between the parties. I should, therefore, remit this case back to the lower appellate Court to come to a finding whether the plaintiff has discharged the onus that lay upon him to prove not only that he had title and antecedent possession but also that he has been in possession within 12 years from the date of the institution of the suit. There is always an exception to this rule in cases where possession is not capable of proof by acts of actual user. I cannot do better than quote a passage from the judgment of Sir Dawson-Miller C.J in the above referred to Full Bench case to define the exception. The passage runs as follows:

“Possession, however, is not always capable of proof by acts of actual use, and the absence of evidence of user in the case of submerged or jungle waste lands does not necessarily raise a presumption against the plaintiff's continued possession where antecedent title and possession are proved, and in such cases it has been held that the continuance of possession may be presumed if antecedent title and possession are proved.”

19. I must further point out that this exception is a case of “discontinuance of possession” contemplated in Article 142. I have already said that the rule of pleadings and fair and square deal to the defendant in the trial of a case should come into play in determining whether the plaintiff will be allowed to succeed on a case of discontinuance of possession while he made a case of dispossession. Even if a case of discontinuance of possession be acceded to him, he will have to prove specifically how and by what act of the defendant and when the discontinuance of possession took place.

20. With regard to the rule of pleading of which I have made reference more than once in the earlier part of my judgment, I will refer to two cases cited at the Bar. One of them is the case in 60 M.L.J 4303 where it had been said:

“If the plaintiff puts forward a case of effective possession and adduces evidence in support of it, as the plaintiffs have done in this case, then he cannot give up that case and rely upon any presumption in support of his possession, because the special case set up by him is inconsistent with any such presumption.”

21. The next case cited, in this behalf, is 67 I.C 6734 in which occurs the following passage:

“Where definite evidence of acts of possession is forthcoming there is no difference between the proof of possession in the case of jungle, waste or uncultivated lands and in that of cultivated lands. But whereas in the case of cultivated lands the plaintiff will fail if he does not prove his possession within 12 years, in the case of jungle or waste lands, if he proves his title, there is a presumption in his favour where, having regard to the nature of the land, possession cannot be expected to be proved by acts of actual user and enjoyment. If, however, the plaintiff asserts that he exercised acts of ownership upon the land and adduces evidence in support of such assertion, he cannot, where such evidence is disbelieved by the Court, turn round and rely upon any presumption, because the case set up by him negatives the existence of circumstances which would give rise to the presumption, and is inconsistent with it.”

22. I should, therefore, ask the Court of appeal below to see that no new case is sprung up upon the defendant at the stage of appeal. In all fairness to the respondent, the attention of the Court below should also be drawn to the decision of this Court in 3 Pat. 2586. In this case Sir Dawson-Miller C.J who delivered the leading judgment in the Full Bench case in 6 P.L.J 478 had to deal with a case in which the evidence adduced by the plaintiff and the defendant was weak particularly in reference to the nature of the land concerned. His Lordship at p. 265 of the report referring to another decision of his said:

“It was, therefore, clearly laid down that not only in cases where the evidence was strong on both sides but in cases where the evidence is such as might be believed but is also weak, in both cases the Court having a difficulty in arriving at a satisfactory conclusion of where the truth lies may take into consideration the presumption arising from title as well as the other probabilities in the case. If, therefore, the learned Judge, from whose decision this appeal is brought, was of opinion that the presumption arising from title could not be called in aid in cases where the evidence is weak, but nevertheless credible, I must respectfully decline to agree with his view of the matter as it appears to me to be contrary entirely to the view taken in the case 3 P.L.T 460 last cited.”

23. In the view that I have taken, I do not think it necessary for me to go through the evidence in order to decide whether I should remand the case or dispose of it finally. In view of the wrong approach on the part of the lower appellate Court, I consider it necessary that the case must go back to him for rehearing and disposal in accordance with law bearing in mind the observations hereinbefore made. The appeal is, therefore, allowed, the case is remitted back to the lower appellate Court, and the costs should abide the result.

S.C

24. Appeal allowed.