A person who has title to a property and sues for possession need not be in possession within 12 years of suit. However, if the defendant is able to establish that he has prescribed title by adverse possession, the plaintiff's suit will fail.

JUDGMENT:- The plaintiff is the appellant. The suit relates to a house which originally belonged to one Venkatachalam. His son Balu left the house in 1932 and was thereafter not heard of. Venkatachalam also died soon after. From the evidence in this case it appears that Balu's wife Thirupathiammal, who is the plaintiff's vendor also left the house at about the same time and went to live with her parents. On 27-4-1945, she executed a sale in plaintiff's favour. The first defendant purchased the same property from Chennammal, Venkatachala's widow on 6-12-1945. The matter came up once before to this Court, on appeal. The finding of the Courts below that the plaintiff had title to the property was confirmed. It was remanded to the lower appellate Court for a finding whether the plaintiff was in possession within 12 years of suit. After remand, the learned District Judge, Salem, has, after an exhaustive discussion of the evidence on record, came to the conclusion that the plaintiff was not in possession within 12 years of suit. This finding being one of fact has got to stand. In any case, it is simply supported by the evidence on record.

2. But the point urged on behalf of the appellant is that the question whether the plaintiff who has title and who sues for possession of the property to which he is entitled should, in order to succeed in his suit, also show possession within 12 years of suit no longer arises, in view of the provisions of the Arts. 64 and 65 of the Limitation Act, 1963 and as the Supreme Court has in its decision in Nair Service Society v. K. C. Alexander, AIR 1968 SC 1165 held that the present Articles 64 and 65 are merely declaratory, the matter must be decided on the basis of the present Arts. 64 and 65 rather than under Art. 142 as was directed by this Court in its order of remand. On the other hand, it is urged on behalf of the respondents, that the Court below had no jurisdiction to consider any question other than the one it was directed to consider by the order of remand of this Court and that it was not open to the lower appellate Court to consider whether the matter fell within Arts. 64 and 65 of the present Limitation Act. In respect of suits filed before the Limitation Act. 1963 came into force, the provisions of that Act have to be given effect to where fresh steps like appeal etc., have to be taken and not the provisions of the Limitation Act, 1908, subject, of course, to the provisions of Section 30 of the 1963 Act. The provision of Section 30 applies, however, only to suits for which the period of limitation under 1963 Act is shorter than the period prescribed under the 1908 Act. Therefore, Section 30 of the 1963 Act does not apply to this case. When this suit was filed Art. 142 applied. The effect of the Art. 142 of 1908 Act as interpreted by a Full Bench of this Court is that even where a person with a title files a suit for possession, but fails to show possession within 12 years of suit, he has got to fail, even though the person in possession might not have completed his title by adverse possession. It is this defect that has been cured by the 1963 Act. Articles 64 and 65 have been interpreted by the Supreme Court as declaratory and not remedial. The effect, therefore, of the decision of the Supreme Court is that it should always be deemed to have been the law that when a person who has title sues for possession, need not be in possession within 12 years of suit and he is entitled to succeed unless the defendant is able to establish that he has prescribed title by adverse possession. Now in this case, the first defendant's possession is only from the date of sale, 27-12-1945, and it is less than 12 years. Of course, he can add the possession of his vendor, to his own possession, provided his vendor's possession was adverse to the plaintiff's vendor. From what we have already stated, it would be obvious that the plaintiff's vendor had never been in possession though she had title. Can i