Under the new Limitation Act, in a suit based on title even if dispossession also is alleged, the defendant can succeed only if he proves that his possession has become adverse to the plaintiff beyond 12 years of the suit. The plaintiff need prove only his title and he need not show that he was in possession within 12 years of the suit.

G. B. PATTANAIK, J.

( 1 ) PLAINTIFFS are the appellants against the confirming judgment and decree of the Subordinate Judge, Bhadrak in Title Appeal No. 22 of 1975. Plaintiffs suit is for declaration of title, confirmation of possession and giving direction to the defendants to fill up the tanks dug out over the disputed 'ka' and 'kha' schedule lands and for damages.

( 2 ) ACCORDING to the plaint case schedule 'ka' land appertains to plot No. 1500 measuring Ac. 0. 04 decimals which was purchased from one Netramani Naik by a registered sale deed dated, 31-7-1957 (Ext. 1 ). Schedule 'kha' land is a part of Ac. 0. 05 decimals appertaining to plot No. 1501 which the plaintiff No. 2 got from one Rani Bewa by virtue of a registered gift deed dated, 7-2-1948 (Ext. 2) and the plaintiffs thus were in possession of the same. The defendants have a tank on plot No. 1500/1771 which they purchased and the said tank lies adjoining north of the suit plots. The defendants forcibly dug out portions of the two plots namely, plot Nos. 1500 and 1501 in the year, 1966 as a result of which the disputed portion formed a part of the tank. Accordingly, the present suit is by the plaintiffs with a further prayer that Rs. 270/- be paid as damages.

( 3 ) THE defendants denied all the allegations made in the plaint and have averred that the disputed lands are part of their plot No. 1500/1771 and they have been enjoying the same uninterruptedly as of right for more than 100 years and have acquired title by adverse possession. On these pleadings, the learned Munsif has found relying on the report of the civil court commissioner that the disputed 'ka' and 'kha' schedule lands appertain to plot Nos. 1500 and 1501 respectively belonging to the plaintiffs. He has also held that the defendants have failed to adduce evidence to the effect that they are possessing the disputed land adversely and have perfected their title by adverse possession. But all the same, he has dismissed the plaintiffs' suit on a further finding that the plaintiffs have failed to prove their possession within 12 years from the filing of the suit.

( 4 ) ON appeal the learned Subordinate Judge confirmed each of the findings of the trial court.

( 5 ) MR. Misra, the learned counsel for the appellants submits that the title having been established and the defence case of adverse possession having been rejected the courts below committed error of law in dismissing the plaintiffs' suit on a finding that the plaintiff's have failed to prove their possession within 12 years from the date of filing of the suit. The courts below failed to notice the change in law in this regard. Under the old Limitation Act, in all suits for possession based on dispossession, whether the plaintiffs had title or not, the burden of proof was on the plaintiff to prove that he was in possession and was dispossessed within 12 years of the suit and in all suits for possession based only on title, the burden of proof was on the defendants to prove that his possession became adverse to the plaintiff beyond 12 years of the suit. However, under the new Limitation Act, in a suit based on title even if dispossession also is alleged, the defendant can succeed only if he proves that his possession has become adverse to the plaintiff beyond 12 years of the suit. The plaintiff need prove only his title and he need not show that he was in possession within 12 years of the suit. (AIR 1975 Orissa 165, (Saura Bauri v. Subudhilaxminarayana); AIR 1976 Mad 124, (Bhagavathy Pillai v. Savarimuthu); AIR 1975 Gauh. 47, (Hanjabam Bapumacha Sharma v. Hanjabam Gukul Chandra Sharma); 40 Cut LT 143 (Chandra Sekhar Pati v. Ahalya Devi) ). In this view of the matter, the conclusion of the courts below is wholly erroneous and cannot be sustained.

( 6 ) IT was then contended by the learned counsel for the respondents that the suit must fail as there had been no prayer for recovery of possession. In para 9 of the plaint, it has been specifically pra