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Appeal from Appellate Decree No. 297 of 1948, decided on 14th December 1953, against the Decree of Umadas Gupta, Subordinate Judge, Additional Court, Bakargani, dated the 26th May, 1947, in Title Appeal No. 131 of 1946 affirming the Decree of Achinta Kumar Sen Gupta, Munsif, 1st Court, Patuakhali, dated 30th April, 1946.

Arts. 142 and 144‑Dis tinction between‑Tenant taking possession of land outside his tenancy and claiming tenancy right‑‑Onus of proof under Art. 142.

The difference between Article 142 and Article 144 of the Limitation Act, is one of onus. In neither case limita tion starts unless some one is in adverse possession. In all cases where the date when limitation starts is known to the plaintiff, that is, cases where he alleges to have been dispos sessed or to have been discontinued possession from a specified date, the onus is on him to show that he was in pos session within twelve years from the date of institution of the suit. Such a case will be governed by Article 142. There is no escape from the latter Article where the plaintiff himself sets up a story of possession or dispossession or discontinu ance of possession. All other cases of adverse possession beyond this limit come under residuary Article 144.

Under Article 142 of the Limitation Act, the onus is no doubt on the plaintiff to prove his possession within the statutory period. But a true owner can prove the factum of his possession by showing that, nobody else is in possession.

'Kameshwar Singh Bahadur v. Faturi Missra and the A I R 1934 Pat. 339 dissented from.

Ishan Chandra Mitter v. Raja Ram Ranjan Chakraburty 2 C L J 125, Raktoo Singh and others v. Sudhr am Ahir and others 8 C L J 557 and Dharani Kanta Lahiri Chowdhuri and another v. Gabar Ali Khan and others 17 C W N 389 (P C) rel.

Debesh Chandra Bhattacharya for Radhikayanjan Guha for Appellant.

Birendra Nath Choudhury for Respondents.

‑This appeal has been brought by defendant No. 1. The defendants lost in moth the Courts below. The plaintiffs purchased the suit land on the 10th of Chaitra, 1351 B. S., from two ladies‑Anandamayee and Lakshminioni, who had purchased it from Kailash on the 8th of Bhadra, 1333 B. S. The plaintiffs brought the suit for declaration of title and recovery of possession, alleging that the defendants had dispossessed them on the 28th of March, 1945, which corres ponds to the 14th of Chaitra. 1351 B.S., when the defendants had constructed a but on the land. The defendants did not deny the plaintiff's title but claimed tenancy Linder then, alleging that they had taken settlement of it from Kailash in the year 1330 B.S.

The only point raised in this second appeal concerns the decision on the question of limitation

Clearly, the case is governed by Article 142 of the Limitation Act. I am unable to, agree with the view taken in Kam eshwar Singh Bahadur v. Faturi Missra and others (A I R 1934 Pat. 339), that where the defendant does not dispute the full title of the plaintiff but claims a tenancy right under him, the case should be governed by Article 144 and not by Article 142. The learned judges in that case did not refer to any authority in support of the view taken. It has been held mat when tenant takes possession of lands outside his tenancy, claiming tenancy right, Article 142 will apply. See Ishan Chandra Mitter v. Raja Ram Ranjan Chakraburty (2 C L J 125). This view is supported also by Raktoo Singh and others v. Sudhram Ahir and others (8 C L J 557) arid Dharani Kanta Lahiri Chowdhuri and another v. Gabar Ali Khan and others (17CWN389(PC)).

The difference between Article 142 and Article 144 is one of onus. In neither case limitation starts unless some one is in adverse possession. In all cases where the date wheel limitation starts is known to the plaintiff, that is, cases where he alleges to have been dispossessed or to have discontinued possession from a specified date, the onus is on him to show that he was in possession within twelve years from the date of institution of the suit. Such a case will be governed by Article 142. There is no escape from the latter Article where the plaintiff himself sets up a story of possession and dispossession or discontinuance of possession. All other cases of adverse possession beyond this limit come under the residuary Article 144.

In this case the learned Additional Subordinate Judge does not appear to have been quite certain in his mind as to which of the two Articles was applicable. He, in concurrence with the Court of first instance, disbelieved the story of tenancy set up by the defendants and also disbelieved the evidence of their possession before the alleged date of dispos session. But at the same time he considered the evidence of the plaintiffs' possession to be not quite satisfactory. After expressing his views in these lines, the learned Additional Subordinate judge gave his decision thus

"In view of the evidence and circumstances, I am of opinion that the defendants did not possess the suit land till 41 they erected but on the same 4 or 5 years ago.

"No question of the suit being barred by adverse possession, therefore, arises. Whether the plaintiffs actually possessed the land before that or not, possession must be deemed to have been with them, as they were the rightful owners. The suit is therefore also not barred under Article 142 of the Limitation Act."

The point raised by Mr. Bhattacharjee is whether the decision of the learned Subordinate judge, in so far as it rests on Article 142, is right. The question is whether, if Article 142 applies, as it must, the plaintiffs can succeed in this case. Under this Article the onus is no doubt on the plaintiff to prove his possession within the statutory period. But a true, owner can prove the factum of his possession by showing that nobody else is in possession. If I drop a needle on the road, remain in possession of it until somebody else has taken possession of it. Similarly, if my land is lying follow and I have not actively exercised possession in it, it is still in my posses sion, for nobody else has exercised any act of possession therein. In a case concerning such a land if the plaintiff can show that he is the true owner and nobody else is in possession of it, then he is in possession of it.

In the present case the evidence has very clearly estab lished and both the Courts below have found, that the plaintiffs are the true owners. It has also been established that nobody else was in possession, the only counteracting evidence having been disbelieved. The plaintiffs' evidence, though standing by itself is not satisfactory, is strengthened by the fact that no one else is in possession and is sufficient to discharge the onus that lies on them. . The appeal is dismissed with costs.

K. B, A. Appeal dismissed,

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