In a suit for possession based on title, the onus is on the defendant to prove adverse possession beyond twelve years, and the plaintiff is not required to prove dispossession within twelve years of filing the suit.

G. B. PATNAIK, J.

( 1 ) THIS second appeal was referred by our learned brother Hon'ble L. Rath, J. , to a larger Bench as he did not agree with the decision of our learned brother Hon'ble S. C. Mohpatra, J. in Second Appeal No. 312 of 1980 decided on 8-1-1988 (reported in 1988) (1) Orissa LR 176) on the question whether in a suit filed by the plaintiff based on title for declaration on title and possession on the admitted position that he has been dispossessed, it would be necessary for the plaintiff to prove that the dispossession in question is within twelve years from the date of institution of suit. The learned counsel appearing for the appellants as well as for the respondents agree that only the legal question may be answered by the Division Bench and the matter may be referred back to the learned single Judge for disposal of the second appeal since the second appeal has been heard by our learned brother Hon'ble L. Rath, J. , in part. In view of this instead of disposing of the second appeal, we propose to answer the question formulated earlier.

( 2 ) IT is not necessary for us to state the facts and the findings of the courts below in detail which would appear from the order of reference made by our learned brother Hon'ble L. Rath, J. The suit is one for declaration of title and confirmation of possession or in the alternative for recovery of possession. The averments in the plaint indicate that the plaintiff was dispossessed prior to the filing of the suit. The defence is a denial of plaintiffs' title as also possession as well as the defendants have perfected their title by adverse possession. Before our learned brother Hon'ble L. Rath, J. the decision of Hon'ble S. C. Mohapatra. J. in Second Appeal No. 312 of 1980: (reported in 1988 (1) Orissa LR 176) was cited for the purpose that though plaintiffs' title is established yet since plaintiffs' dispossession is admitted, plaintiffs have to prove that the said dispossession was within twelve years from the date of institution of the suit. The learned Judge (Hon'ble S. C. Mohapatra J.) came to the aforesaid conclusion relying upon Sections 3 and 27 of the Limitation Act. We have carefully examined the judgment of Hon'ble S. C. Mohapatra. J. in Second Appeal No. 312 of 1980. The learned Judge in para 4 of his judgment has stated that the second appeal has been admitted on the following substantial question of law:-"when possession of the defendant is admitted by plaintiff since 1970 but the plaintiff failed to prove his title and possession, prior to disposessison, whether the plaintiff can get decree for title and possession on the doctrine that possession follows title?"having said so, the learned Judge after referring to Sections 3 and 27 of the Limitation Act came to the conclusion:-". . . . . . . . . Where, however, the defendant is admittedly, in possession adverse to the plaintiff's interest, plaintiff is to prove that such possession was within 12 years of the institution of the suit. . . . "this conclusion of Hon'ble S. C. Mohapatra, J. in Second Appeal No. 312 of 1980 has not been found favour with by our learned brother Hon'ble L. Rath, J. in Second Appeal No. 329 of 1981 and, therefore, the matter was referred to a Division Bench.

( 3 ) WHERE a suit for possession of immovable property is filed basing on title, such a suit is governed by Art. 65 of the Limitation Act. Where a suit for possession of immovable property is filed not on basis of title but on the basis of previous possession, such a suit is governed by Art. 64 of the Limitation Act. Under the old Limitation Act, the two relevant articles in this regard were Arts. 142 and 144. Article 64 of the new Act replaces Art. 142 of the old Act but is restricted to suits based on possessery title so that the owner of a property does not lose his right to the property unless the defendant in possession is able to establish his perfection of title by way of adverse possession and that is what has been provid