In a suit for possession, where the plaintiff does not admit tenancy but the defendant alleges tenancy of a permanent nature, Article 144 of the Limitation Act applies, and the burden of proof is on the defendant to prove that he has been in possession for 12 years or more.

Judgment

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 plaintiff be deemed to have been dispossessed from the suit land under S.144 (Cr. P.C.), in that case, the plaintiff may be put in sir possession thereof on dispossession of the defendants and a decree for future mesne profits from the date of dispossession till the date of realisation, may also be passed in favour of the plaintiff. He alleged in the plaint that the said sir land had been in sir possession of the plaintiff and 9.81 acres (including the said 8 bighas) is recorded in the Record of Rights, i.e., Survey Khaitan, as the bakasht land of the plaintiff. He further alleged that he had sown scads in two bighas in the month of Asadh 1353, when defendants 2, 3 and 5 interfered with his possession. Proceedings under S. 144, Cri. P.C., were started which resulted in a decision against him. He asserted that the defence of the above defendants in S.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 S. 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 plaintiff due to the decision in S. 144 proceedings, the plaintiff 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 plaintiff 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 plaintiff be deemed to have been dispossessed.

3. The defendants in their written statement did not deny the title of the plaintiff to the suit land but asserted that

"the plaintiff being the only member in his house used to remain outside in some service and consequently he gave the entire area 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 raiyats of the lands and that they had acquired occupancy rights in these lands and unless they succeeded in proving these, they could not successfully 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 (FB) did not accede to this contention. The High Court