Judgment

BEG J.:- The plaintiffs-appellants, before us by grant of special leave, had filed a suit on 20-4-l959 far possession against Me defendants respondents, of 331 Canals and 11 Marlas of land the Khasra numbers of which are given in the plaint. The plaintiffs were the sons of Smt. Premi a daughter of Sham Singh (deceased), the original owner at the plots, and of Smt. Malan, who, as the widow of Sham Singh, had gifted the plots in dispute 1935, half and half, to the plaintiffs and Sent. Khemi, the younger sister of their deceased mother, Smt. Premi. It appears that Smt. Khemi, who was issueless, had also made a gift in favour of the plaintiffs before her death in 1944. The plaintiffs are said to have obtained possession of the whole land in dispute thus gifted to them. But, as there was considerable uncertainty at that time about the rights of the daughters and the powers of a widow to donate during her life time under the customary law in Punjab, which was applicable to the parties, the defendants-respondents, the 8th degree collaterals of Sham Sink, had filed a suit on 3-7-1940 for possession of the land in dispute. This suit had been stayed from 1941 to 29-5-1946, under the Indian Soldiers (Litigation) Act, 1925, to the benefits of which the plaintiffs were entitled. It appears that there was also a dispute over mutation of names between the plaintiffs and defendants-respondents in revenue courts which ended finally by an order in favour of the appellants donees passed by the Financial Commissioner of Punjab on 13-12-1946. Defendants-Respondents, suit of 1940, for declaration of rights and possession, renumbered in 1949, ended with the judgment and decree of a Division Bench of the Punjab High Court passed in favour of the appellants on 21-11-1958.

2. The plaintiffs asserted, in their suit No. 179 of 1959, filed on 16-4-1959, now before us in appeal, that the defendants-respondents had taken illegal and forcible possession of the land in dispute after the decision of the High Court on 21-11-1958, and that, as the defendants-respondents refused to deliver possession of the land to the plaintiffs, they were compelled to file their suit for possession. The defendants-respondents, however, claimed that they had taken possession over the whole of the land in dispute after the death of Smt. Khemi, issueless, in 1944, and that, since then, they had been in open, continuous, exclusive possession as owners, adversely to the rest of the world. Hence, according to the defendants-respondents, the plaintiffs suit was barred by limitation.

3. There cannot be the least doubt, after looking at the plaint, that the plaintiffs-appellants, having alleged possession and dispossession, for which they claimed relief by delivery back of possession of the land in dispute to them, the case fell squarely within the ambit of Art. 142 of the Limitation Act of 1908. The defendants-respondents had, however, pleaded the bar of limitation as well as acquisition of title by their adverse possession for over 12 years.

4. The Trial Court had framed the first three issues which had a direct bearing on the question whether Art. 142 or 144 of the Limitation Act of 1908 would be applicable. These issues were:

"1. Whether the plaintiffs obtained the possession of the land in dispute through the Tehsildar near about the date 13-12-1946 as alleged them in para 3 of the plaint? O. P.

2. Whether the defendants took possession of the land in dispute after 21-11-1958 as alleged in para 5 of the plaint? O. P.

3. Whether the defendants have become owners of the land in dispute through adverse possession? O. D."

5. The Trial Court rightly aced the burden of proof of the first two issues on the plaintiffs and of the third issue upon the defendants. It took up and decided the three issues together holding that the plaintiffs suit is barred by Art. 142 of the Limitation Act. The first Appellate Court also rejected the plaintiffs case of acquisition of possession on 13-12-194