This appeal arises out of a suit for recovery of possession of some land with houses and Gharats standing thereon. The plaintiff alleged that his grand-father entrusted the land to the defendant at the time he went to Chamba, that his father Makhan on his return from Chamba regained possession for a short time but died soon after, that on the death of his father the plaintiff was a minor and the defendant continued to cultivate the land, that the defendant got the name of Makhan entered in the revenue papers as an absentee, that the defendant tried to get the name of the plaintiff removed from the revenue records but he was unsuccessful in his attempt and lastly the plaintiff prayed for the possession of the property. The defendant resisted the suit on the ground that he was in adverse possession of the property for more than 12 years and that he had effected improvements by incurring considerable expense. The trial court of Subordinate Judge Udhampur dismissed the plaintiffs suit as barred by time. On appeal the learned District Judge reversed the finding of the trial court and remanded the case to it for decision on the merits. The defendant has come up in further appeal to this court.

On behalf of the defendant appellant it is argued that the land was abandoned by the grand-father of the plaintiff and was in possession of the defendant for over 40 years, that Makhan returned from Chamba and did not regain the possession from the defendant and that the defendant was in adverse possession for more than 12 years and therefore had acquired title by prescription. Lastly it was argued that as Article 142 of the Limitation Act was applicable to this case the burden ought to have been on the plaintiff to prove that he was in possession of the property within 12 years prior to the date of the suit.

It appears that the grand-father of the plaintiff left for Chamba and the defendant got into the possession of the land. In the mutation proceedings on 7th Bhadon 1967 the defendant admitted the title of Makhan the father of the plaintiff. He clearly stated that in case Makhan were to come back from Chamba he would be entitled to get the land from him. On 18th Sawan 1968 Sikandar the son of the defendant admitted before the Revenue Officer that the land belongs to Makhan. It is therefore obvious that the defendant and his son in the year 1968 admitted the title of the plaintiffs father and there was no declaration on their part that they were holding the land in adverse possession to the real owner. According to the plaintiff, when Makhan returned from Chamba he got the possession of the land from the defendant, but from the evidence it is not clear that Makhan ever regained the possession of the land. The finding of the Subordinate Judge is also to the same effect. If Makhan did not recover the possession of the land from the defendant and allowed him to cultivate it, it does not show that the possession of the defendant was adverse to him. The defendant had to show as to what the nature of his possession was and whether by his conduct or overt act he had changed the nature of his possession from permissive to an adverse one. It is only on 21st Maghar 1991 that the defendant openly asserted his adverse possession against the plaintiff as is clear from the mutation proceedings No. 173 wherein it is mentioned that Gaffar is holding the land in adverse possession and he is not prepared to hand over the possession to the plaintiff, while the plaintiff stated that He was helpless and unable to recover the possession from the defendant. It is from this date that the time begins to run against the plaintiff. Before the year 1991 there is nothing to show that the defendant ever asserted that he was holding the land in adverse possession to the plaintiff or to the plaintiffs father. The learned counsel for the appellant has laid great stress on the fact that as the plaintiffs ancestors had abandoned the land and the defendant had got into possessi

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