The onus of establishing title to property by reason of possession for a certain requisite period lies upon the person asserting such possession.

Madhavan Nair, J.

1. The plaintiff, appellant, instituted a suit, for establishing his right to the suit-land and for recovery of its possession from the defendants. He alleged in the plaint that the land belonged to the Devasthanam, of which he was the Dharmakartha, that it was leased to the father of the defendant and that when possession was demanded of them it was refused. The contesting defendant viz., the 2nd defendant, claimed the land as his own, as he and his ancestors enjoyed, it, for more than 50 years, as owners without any objection. On these pleadings, three issues were raised, namely : (1) Is the plaint lease true? (2) Does the plaintiff possess a valid title to the suit property? and (3) Is the suit barred by limitation under Article 144 of the Limitation Act? The District Munsif found in favour of the plaintiff, on all these issues and gave him a decree. On appeal by the 2nd defendant, the Subordinate Judge held that the property belonged to the plaint Devasthanam, but that the lease alleged was not proved. As regards the question of possession raised in the case, he set down two points for determination; Point No. 3:

Whether the plaintiff was in possession of the land within twelve years before suit?

and Point No. 4:

Whether he (2nd defendant) and his ancestors have been in adverse possession for over twelve years.

2. On both these points, he found against the plaintiff and, in the result, dismissed his suit.

3. It is argued before me that, in considering the question of limitation, namely Point No. 3, the Subordinate Judge has erred in applying Article 142 of the Limitation Act, to the facts of this case and that as regards adverse possession raised in Point No. 4, his conclusion is not based upon the evidence but on pure surmises. I think the contentions of the learned vakil for the appellant on both these points are well founded. Article 142 runs as follows:

For possession of immovable property, when the plaintiff, while in possession of the property, has been dispossessed, or has discontinued the possession - twelve years - the date of the dispossession or discontinuance.

4. The starting point for limitation under this Article is the date of dispossession or discontinuance. In M Donnell v. MKinty [1847] 10 Ir. L.R. 514, Blackburn, CJ., states that the word discontinuance of possession in the statute means an abandonment of possession by one person, followed by the actual possession of another person : for if no one succeeded, to the possession created or abandoned, there could be no one in whose favour or for whose protection the statute could operate. To constitute discontinuance, there must both be dereliction by the person who has the right, and actual possession, whether adverse or not, to be protected.

5. In Smith v. Lloyd 156 E.R.P. 240 Baron Parke laid down the law as follows:

We are clearly of opinion that the statute applies not to cases of want of actual possession by the plaintiff, but rd cases where he has been out of, and another in, possession for the prescribed time. There must be both absence of possession by the person who has the right, and actual possession by another, whether adverse or not, to be protected, to bring the case within the statute. We entirely concur in the judgment of Blackburn, C.J., in MDonnel v. Kinty [1847] 10 Ir. L.R. 514 and the principle on which it is founded.

6. The principle laid down in these decisions, was accepted in the well-known case of Agency Co. v. Short [1888] 13 A.C. 793 (P.C.), which was followed by the Judicial Committee in The Secretary of State for India v. Krishnamoni Gupta [1902] 29 Cal. 518. In the words of Mookherjee, J., in Brojendra Kishore Roy Choudhury v. Sarojini Ray [1915] 20 C.W.N. 481, "Dispossession" implies the coming in of a person and the driving out of another from possession. "Discontinuance implies the going out of the person in possession and his being followed into possession by another." See also Charu v. Nahush A.I.R. 1923 Cal.