In a suit for declaration of title and confirmation of possession, the onus is on the defendant to establish adverse possession.

Ramaswami, J.

1. This appeal involves the important question whether the Subordinate Judge was right to hold that the suit was barred under Article 142, Limitation Act.

2. The dispute relates to 14.68 acres of bakasht land in village Chak Dharampur. The Mouza belonged to Ramadhin Singh and Shyamadhin Singh who on 1st August 1917 executed a gale dead in favour of Safdar Ali who in his turn made a registered wakf deed appointing the plaintiff as mutawalli. The plaintiff brought the suit alleging that in the year 1912 Ramadhin Singh and Shayamadhin Singh had in execution of rent decrees purchased the land and obtained dakhaldehani thereof; that in the survey proceeding the land was recorded as bakhashi; that Safdar Ali continued to be in khas possession after his purchase; that in the year 1937 the defendants set up a false claim to the land on account of the Kisan movement. A proceeding under Sec.145 was instituted in the Court of the Sub divisional Magistrate who by his order dated 7th June 1939 held that the defendants were in possession of the land. The plaintiff, therefore, brought the suit for a declaration that the land was bakasht and for recovery of possession by evicting the defendants.

3. The main ground of defence was that the rent decree obtained by Eamadhin Singh and Shayamadhin Singh were fraudulent and collusive, that the plaintiff never obtained khas possession of the land, that the defendants continued to be in possession and on account of a subsequent compromise the landlord settled the land with the defendants at nakdi rent after taking salami. After Safdar Ali purchased the mouza the defendants obtained renewal of settlement on payment of further salami.

4. Upon these contentions the lower appellate Court found that the case of settlement with the defendants was not true and defendant could not claim to be tenants by virtue of the alleged settlement. But on the question of possession, the lower appellate Court held that both the parties had adduced unsatisfactory evidence and since the onus of proof under Article 142 was upon the plaintiff the suit was barred by limitation.

5. On behalf of the appellant, Mr. P.R. Das contended that the lower appellate Court has misplaced the onus of proof and it was erroneous to hold that the suit was barred. Learned counsel maintained that the suit was in substance for a declaration of title and confirmation of possession, the cause of action starting from 7th June 1939 the date of the order of the Special Magistrate under Sec.145, Criminal P. C., declaring that the defendants were in possession of the land in dispute. Learned counsel made reference to paras 31 and 33 of the plaint and contended that the suit was governed by Article 144, Limitation Act, and that the burden was upon the defendants to establish the nature and extent of the right asserted. In support of his argument learned counsel referred to Midnapore Zamindary Co. Ltd. V/s. Panday Sardar 2 Pat. I.J. 606: (A.I.R. (4) 1917 Pat. 471), in which the proprietor of land sued a tenure-holder for recovery of possession of land on which the latter had encroached. The plaintiff claimed that the area in dispute should be declared to be the mal land of the mouza and that he should be awarded khas possession of the same. In the alternative there was a plea that if defendants were found not liable to be ejected it should be declared that the plaintiff was entitled to fair and equitable rent for the land occupied. Defendant 1 contested the suit claiming that the disputed area was ghatwali land and denied that the plaintiffs or their predecessors had any right to or possession of the land in suit. The trial Court gave a decree in favour of the plaintiff but the lower appellate Court set aside the decree of the trial Court on the ground that the plaintiff had failed to prove possession of the land within 12 years of the institution of the suit. On appeal, the High Court held that the suit was not barred and that plain