Discontinuance of possession, as opposed to dispossession, occurs when a person in possession goes out and is followed into possession by another person, and implies a voluntary act, an abandonment of possession followed by the actual possession of another.

( 1 ) THIS second appeal arises out of a suit for declaration of title and possession in respect of a Bagichi (consisting of some structure and open land ). It was alleged in the plaint that this suit property together with other properties was mortgaged with the plaintiff's ancestors on May 16, 1925. The plaintiff's father resided in bombay. His Munim Vithaldas Kothavi looked after his business at Khilchipur where the suit property is situate. The munim temporarily permitted some persons (not named in the plaint, nor made parties) to use the suit property for recreation. The plaintiffs father died on December 8, 1951, and the munim predeceased him. When the plaintiff came to Khilchipur he found the 18 defendants in possession of the suit premises. The plaintiff nor his ancestors had ever permitted any individual or corporation or institution but had given permission only to particular persons and after they ceased to exist, the permission also determined. The defendants' possession was alleged to be that of trespassers.

( 2 ) THE suit was dismissed by the trial Judge on two grounds. It was held that the suit was bad for non-joinder of necessary parties. Secondly, the suit was barred by limitation. The first appellate Court upheld the judgment and decree of the trial judge on both these grounds.

( 3 ) IT is contended by Shri Patankar that this suit was based on the specific allegation that the 18 persons (defendants) were in wrongful possession and decree against them was claimed. As such it was unnecessary to add any other person as defendant. In my opinion, this contention must be accepted. The contesting defendants, it is admitted by Shri Inamdar, did not give the names of any other person as being in possession of the suit premises. The objection was vaguely raised in the written statement. It is a different question whether a decree, if passed in favour of the plaintiff against the defendants, would be effective or not in the absence of any other person or persons who may be in possession. Shri Inamdar's argument is that on the suit premises a recreation club is being run and unless all the members of that club were made parties to the suit, no effective decree could be passed. It is true that a club is not a legal entity, unless it is incorporated or is a registered society. But here it is not known whether in fact there are any members other than the defendants. The suit, therefore, cannot be held to be bad for non-joinder of necessary parties.

( 4 ) AS regards the question of limitation, the findings of the courts below are that in 1925 a club was started on the suit premises. The opening ceremony of that club was performed by the Ruler of Khilchipur State. This fact is reported in the annual administrative reports of the State for the years 1925 (Ex. D. 6), 1926 {ex. D. 1), 1941 (Ex. D. 7) and 1944-45 (Ex. D. 2 ). Both the Courts below have found that there was overwhelming evidence to prove that fact. It is also found that since 1925 there was continuous possession of the members of the club who use the premises for the purposes of recreation. Both the courts below have applied art. 142 of the Limitation Act.

( 5 ) IT is urged by Shri Patankar that the Courts below have erred in not applying article 144 to this suit inasmuch as the plaintiff alleged that the defendants were trespassers and the contesting defendants also applied to the Court for amendment of the written statement to add the allegation that their possession was adverse. I find from the record that the application for leave to amend was disallowed on March 1, 1954, by the trial Judge. It is true that the defendant's plea that the premises had been given to the club by the Ruler of Khilchipur has been negatived. But it remains a fact that according to the plaintiff himself certain persons had been given premissive possession, and it is not alleged by the plaintiff that at any time after 1925 he or his ancestors entered into possession. To