JUDGMENT

1. This is a plaintiffs' appeal under Section 12(2), Oudh Courts Act. The plaintiffs-appellants brought a suit for possession of three plots in dispute on the allegation that they were the proprietors of the plots in suit with which the defandants had no concern and that the defendants were in illegal possession of plot No. 582/2 for the last eight years and of plots Nos. 582/1 and 583/2 for the last ten years. The defendants-respondents alleged that they had been in adverse possession of the said plots for the last 25 years or 30 years. In para. 8 of the written statement they pleaded that in 1910 there were proceedings under Section 145, Criminal P.C., between the parties in which their possession was upheld and no suit having been filed within time by the plaintiffs, their suit now was time barred. The trial Court framed the following issues:

(1) Are the plaintiffs owners of the plots in suit ?

(2) Whether defendants have perfected their title by adverse possession ?

(3) Is the suit barred by limitation, as alleged in para. 8 of the written statement ?

(4) To what relief, if any, are plaintiffs entitled?

2. On issue 1 it held that the plaintiffs were the proprietors of the land in suit. Issue 2 was decided in the negative and on issue 3 it was held that the plea that the suit was barred by Article 47, Limitation Act, had no force. The learned Munsif did not consider Article 142, Limitation Act, obviously for the reason as indicated above that it was not raised in the written statement. In the result the suit was decreed. In appeal the learned Subordinate Judge (now Civil Judge) of Gonda held that on the allegations in the plaint the suit was governed by Article 142, Limitation Act. He framed a fresh issue as follows and remanded the case for a fresh decision of the point of limitation: "Have the plaintiffs been in possession of the plots in suit within limitation?" An appeal against the said order of remand was dismissed by a single Judge of this Court from whom the appellants obtained leave to appeal to a Bench of this Court under Section 12(2), Oudh Courts Act, and the present appeal is the appeal filed in pursuance of that leave.

3. We have heard the learned Counsel for the parties at length. On behalf of the appellants the following points have been argue: (1) That the Article of the Limitation Act applicable to a suit must be discovered on the allegations in the plaint. It is not open to a Court to hold an enquiry on that point by going into evidence. (2) That the present suit is a suit for possession on title alone and is not based upon dispossession by the defendants and is governed by Article 144 and not by Article 142, Limitation Act.

4. On the first point we are of opinion that the suit is clearly based upon an allegation of dispossession of the plaintiffs by the defendants. The allegation in para. 2 of the plaint that the defendants are in illegal possession of some property in suit for the last eight years and of the rest for the last ten years amounts clearly to an allegation that the plaintiffs were dispossessed of the plots in dispute eight or ten years ago. The language of para. 2 is not capable of bearing any other interpretation. In fact one of the plaintiffs who was examined as P.W. 4 stated that he had been formerly in possession of the plots in dispute and the defendants had taken possession about nine years ago. This is the view taken by the learned single Judge of this Court who heard the second appeal and we find ourselves in full agreement with him. It is thus clear that the only Article applicable is Article 142.

5. Even assuming that there was no allegation of dispossession involved in para. 2 of the plaint we are of opinion that the contention of the learned Counsel for the appellants that the Court in discovering the Article of the Limitation Act applicable to the suit is tied to the statements in the plaint, is incorrect. In our opinion in order to determine the particular Article appli