In a suit for recovery of possession of immoveable property, if the plaintiff sues on the basis of title and also alleges dispossession by the defendant, Article 144 of the Limitation Act, 1908 applies, and the plaintiff must prove his title. The burden is then on the defendant to show that the suit was brought beyond 12 years from the date of dispossession.

( 1 ) THIS appeal is from the judgment and decree passed by the learned Subordinate Judge, 7th Court at Alipore, reversing those of the learned Munsiff passed in a suit brought by the present respondents as plaintiffs for declaration of title and recovery of khas possession on the following allegations.

( 2 ) THE suit was originally brought by one Smt. Imaman Bibi who later was substituted by the present plaintiffs as the latter were transferees from the said Smt. Imaman Bibi of the said suit property. In May, 1950 the said Imaman Bibi left the suit property which belonged to her because of communal troubles. The defendants taking advantage of the fact that the suit property was lying vacant committed trespass and pulled down structures standing thereon and raised some new structures. The said original plaintiff Imaman Bibi tried to recover property after peace was restored but she failed to get back the property from the defendants in spite of the assurance given by the defendants that they would vacate the suit property after they succeeded in getting some accommodation elsewhere.

( 3 ) THE defendants denied that Imaman Bibi was the owner of the suit property or that she left the same in May, 1950. The defence case is that the defendants acquired title by adverse possession of the suit property for more than 12 years preceding the date of the institution of the suit. The defendants also denied that on being requested by the plaintiffs to vacate the suit property they assured that they would do so. Originally the suit was dismissed by the learned Munsif but on an appeal being preferred the Court Of Appeal below sent the case back on remand in the learned Munsiff for retrial. The appeal court found that the elements of adverse possession were not at all discussed by the learned Munsiff and that the materials on record were rather scanty. It was also observed by the Court of Appeal below that under the law Imaman Bibi was to satisfy that she was in possession of the suit property within a period of 12 years prior to the institution of the suit, otherwise, she could not recover possession of the suit property from the defendants. The learned Munsiff was directed to give the parties an opportunity of adducing such evidence as they would like to adduce for proving their respective cases.

( 4 ) AT the retrial the plaintiffs examined one more witness, namely, P. W. 3 Bahadur Prasad Shaw but the defendants did not examine any further witness. On behalf of the plaintiffs certain documents marked as Exhibit 5 series were proved.

( 5 ) ACCORDING to the learned Munsif who heard the suit after the aforesaid remand, the settled law is that whenever the plea of limitation is raised it is for the plaintiff to show prima facie that the cause of action upon which he is suing is not barred by limitation. Further, according to him, the suit is governed by Article 142 of the Indian Limitation Act, 1908 (hereinafter referred to as the old Act ). The finding of the learned Munsif is that the plaintiffs failed to prove that their vendor Imaman Bibi was in possession up to April, 1950 and left the suit property in May, 1950. The learned Munsiff further found that at least some of the defendants were in possession of the suit property since March, 1950 and Imaman Bibi was not in possession since then. The suit was instituted on April 23, 1962. On the basis of the aforesaid finding the learned Munsif dismissed the plaintiffs' suit as the plaintiffs failed to prove that the suit was filed within 12 years from the date of dispossession by the defendants.

( 6 ) FROM the decision which the learned Munsif took after the remand there was an appeal and the learned Subordinate Judge allowed the appeal as against the contesting defendants. There was a compromise petition filed on behalf of the plaintiffs and two of the defendants, namely, Defendants Nos. 1 and 2. This compromise petition was allowed as the same was found to be lawful