The main legal point established in the judgment is that in cases of recovery of possession, the plaintiff must prove possession within 12 years, even if the title is proved. The court also clarified the principles of possession in cases of diluviated, jungle, or waste lands.

JUDGMENT

1. This appeal arises out of a suit for recovery of possession of the land in dispute on declaration of plaintiff's title thereto, The plaintiff and the defendant are patnidars under the owners of Touzi Nos. 92 and 14, respectively, both the Touzis being situate in the same village. The plaintiff claimed the land as appertaining to Touzi No. 92 while the defendant claimed it as part of Touzi No. 14.

2. The Court of first instance held that the plaintiff had failed to prove both title and possession and dismissed the suit. The learned District Judge on appeal found that plaintiff's title was proved, but that he failed to prove possession within 12 years and accordingly dismissed the suit. The plaintiff has appealed to this Court.

3. It is contended on behalf of the appellant, first, that the title having been found to be with the plaintiffs the onus was upon the defendant to prove that the claim was barred by limitation by reason of adverse possession on his part. Secondly, that in any case, having regard to the nature of the land, the onus should have been placed on the defendant. Thirdly, that the evidence on both sides having been found to be unsatisfactory, there was a presumption that possession follows title.

4. With regard to the first contention, it is to be observed that plaintiff alleged that he was in possession of the land which was khas patit, and that the defendant excavated a tank on the land in spite of the objections of the plaintiff four or five years before the suit claiming the same as part of his patni mahal, and he was accordingly dispossessed from the land. The case, therefore, clearly was one under Article 142 of the Limitation Act. It is well settled that, where the plaintiff while in possession has been dispossessed and is out of possession at the date of suit the onus is upon him to prove that he was in possession and was dispossessed within 12 years of the suit,

5. It is contended, however, on behalf of the appellant that come of the authorities show that where plaintiff's title is proved, the onus is upon the defendant to show that the plaintiff lost that title by adverse possession for 12 years on the part of the defendant. It is necessary, therefore, to examine the authorities on the point.

6. One of the earliest cases is that of Maharajah Koowar Baboo Nitrasur Singh v. Baboo Nund Lall Singh 8 M.I.A. 199 : 1 Suth. P.C.J. 420 : 1 Sar. P.C.J. 744 : 1 W.R.P.C. 51 : 19 E.R. 506. In that case, it appears that decrees were made in the year 1813 in suits respecting disputed boundaries of certain mouzahs in two Zemindaries, and the boundary line was determined. In 1845 a suit was brought by the representatives of one of the parties in the above suits to recover land alleged to be part of one of these mouzahs which land it was admitted by the plaintiff that the defendant had been in possession of since the year 1834. It was pleaded in defence, first, that the land claimed was within the boundary declared by the decrees of 1816 to belong to the defendant; and, secondly, that the plaintiff or those under whom he claimed had been out of possession for Upwards of twelve years and that the cause of action was consequently barred by Regulation III of 1793, Section 16. Lord Justice Turner, in delivering the judgment of the Judicial Committee, observed that "the issue of possession is the first to be considered in this case, and that it is wholly independent of the boundary question. The appellant is seeking to disturb the possession admitted to have existed for about eleven years of defendants, who insist on a possession of much longer duration as a statutory bar to the suit. It clearly lies on him to remove that bar by satisfactory proof that the cause of action accrued to him (for that is the way in which the Regulation puts it) on a dispossession within twelve years next before the commencement of the suit, end, therefore, that he, or some person through whom he claims, was in possession during that period.