In a suit for possession based on title, the plaintiff need not prove possession within 12 years of the suit; the defendant must prove adverse possession for 12 years to extinguish the plaintiff's title.

1. :- This is a family feud between two sisters Mst. Kali and Smt. Ganga about a house in which admittedly Smt. Ganga was living.

2. Plaintiff Smt. Kali along with others filed this suit for possession of the suit room and for mesne profits alleging that this house belonged to Bhajja and was gifted by his wife Smt. Champa to Smt. Kali. The plaintiffs case was that they were living in this house for 45 years. Smt. Champa executed gift-deed in favour of plaintiff on September 10, 1947 and it was got registered.

3. According to the plaintiff, the husband of the 'defendant was ailing and, therefore, the defendant asked the appellant-plaintiffs to give one room, the description of which is given in para 3 for the purpose of living. The husband of the respondent had died in Samvat 2024 but the defendant did not hand over possession back to the plaintiff even on demands. This resulted in registered notice by the plaintiff to defendant.

4. The defendant denied that the suit room belonged to Bhajja or that the possession was given to respondent-defendant by the appellant. According to them, the suit room belonged to Soda brother of Gajja & it was inherited by Gajja & Champa. Appellant No. 1 was married first to Dulla and thereafter she had a Nata with appellant No. 2. Mst. Champa wife of Gajja and, Gula sold this property to defendant and her husband and since then she is in possession,

5. The following issues were framed:-an style='font-family:Ankit' HINDI MATTER /b/span

6. After recording of the evidence the trial court dismissed the suit holding that the plaintiff has failed to prove that possession was given to the defendant by permission. It was further held that the defendant is in possession even before the execution of the gift-deed since 1947 and her possession has become adverse.

7. The appellant court confirmed the judgment of the trial court and hence this appeal. Mr. Shishodia has submitted that once it was proved that the plaintiff had the title of the property, heavy burden lay on the defendant to prove adverse possession and the mere act of possession is not sufficient to prove the essential conditions for claiming adverse possession in law. It was argued that the defendants' witnesses themselves have said that they were not aware what was the type of possession of the defendant and that being so, existence in support of possession fails to prove adverse possession

8. Mr. Shishodia further submitted that in the Limitation Act Articles 64 and 65 which have replaced Articles 142 and 144 new have altered the earlier law. He relied on Budhi Mahal and Ors. v. Gangadhar Das and Ors. 1978 Vol. XLVI The Cuttack Law Times 287, in which it was observed as under:

"Articles 142 and 144 of the Old Limitation Act have been replaced by Articles 64 and 65. The law, as it stood, appeared to favour a trespasser as against an owner because in an ejectment suit by the owner of the property it was not sufficient for him to establish his title but he had also to further establish that he was in possession of the property within 12 years before the date of the institution of the suit. Articles 65 of the New Limitation Act relates to suits for possession based on title and provides that the period of limitation is 12 years from the date when possession of the defendants becomes adverse to the plaintiff. The plaintiff will succeed if he proves his title without being required to prove his possession within 12 years of the suit. If the defendants wants to default the rights of the plaintiff, he has to establish his adverse possession for a period of 12 years which will have the effect of extinguishing the title of the owner.
Reliance was also placed upon Bitola Kuer v. Ramcharan AIR 1978 Allahabad 555 wherein it was held as under:

"Where the suit was on the basis of title and the plaintiff had succeeded in proving her title.
Held that the plaintiff could be denied the relief of possession only if the defendant succeeded in showing that he was