(1.) THE suit giving rise to this appeal is in respect of land measuring 451 kanals 3 marlas and used as pasture in village Sultankhanwala. The facts, which are no longer disputed, are these : Ancestors of plaintiffs-respondents were the original owners of the entire land of Sultankhanwala. About 100 years ago they transferred their proprietary rights in the entire area to Sodhi Jagat Singh, ancestor of the defendants-appellants, and they themselves became occupancy tenants of the land in their possession. It was further agreed that 500 ghumaons shall remain reserved as pasturage (charagah) for the exclusive use and benefit of the occupancy tenants. The agreement was recorded in the wajib-ul-arz and other settlement records. Sodhi Jagat Singh, and his descendants uptil now continue to be entered as owners of the suit land in the proprietary column of the revenue records. In 1937, the occupancy tenants presented an application to the revenue authorities to enter "charagah" as its owner. This application of theirs was dismissed by Assistant Collector, Ferozepore on 28th June, 1939, and the entries continued as before. The position, therefore, is that while the Sodhis are the owners of the land, the occupancy tenants alone have the right to use it as a pasture. The total area, however, continued diminishing us the Sodhis at different times brought portions of the land reserved for charagah under cultivation. In 1937 the area appears to have been reduced to 360 ghumaons and in 1939 to 230 ghumaons. On 15th May, 1940, some of the occupancy tenants brought a suit, in a representative capacity, (1) for a declaration that the land was reserved as pasture, (2) for ejectment of the Sodhis from 694 kanals and 14 marlas which they had brought under cultivation, and (3) for injunction restraining the defendants from interfering with the plaintiffs' rights to graze their cattle in the rest of the land. The defendants of the suit, inter alia, pleaded that only such part of the land transferred to their ancestors by the plaintiffs' ancestors was to be set apart as pasture as may be sufficient for the purpose, that a large area, besides 694 kanals and 14 marlas, had also been brought under plough by the defendants and with respect to it the plaintiffs ought to have prayed for consequential relief and, therefore, a suit merely for a declaration did not He and that the suit for ejectment was barred by time. Subordinate Judge Second Class, Ferozepore, in his judgment dated 17th June, 1941, arrived at the conclusion that the defendants were the owners of the land but, according to the agreement, the particular area of 500 ghumaons was to be kept as charagah, that the plaintiffs alone, even to the exclusion of the owners, were entitled to graze their cattle in the land and that the suit, so far as the prayer for ejectment was concerned, was barred by time. It was also found that, with the exception of the field numbers enumerated in the judgment, which lay vacant, the remaining land had already been cultivated by the defendants and with respect to it a suit for declaration did not lie. A decree for declaration and injunction as regards the land lying vacant was passed in favour of the plaintiffs. The suit with respect to 694 kanals and 14 marlas and also with respect to the rest of the land was dismissed. The plaintiffs' appeal against this decree and cross-objections of the defendants were dismissed by the District judge. On plaintiffs' further appeal, the decree was confirmed by the High Court on 31st May, 1944.
(2.) THE occupancy tenants, again in a representative capacity, instituted the present suit on 2nd May, 1947. On the grounds as before, they prayed for ejectment of the defendants appellants from land measuring 451 kanals 3 marlas, alleging that the defendants had brought it under plough some ten or eleven years ago. The suit was resisted on various grounds but with none of them, except that the suit was barred by time, we are now concerned. Counsel for the plaintiffs in a statement before framing of issues made it clear that the suit related to a part of the land with respect to which the previous suit was dismissed on the ground that a prayer for possession ought to have been made and, therefore, a declaratory suit did not lie. Sub-Judge First Class, Ferozepore, who was seized of the case, has held that the suit was governed by Article 144 of the Limitation Act and the defendants failed to prove their adverse possession for the statutory period. He consequently decreed the suit. The dfendants have now come in appeal.
(3.) LENGTHY arguments have been adduced by Mr. S. L. Puri, learned counsel for the appellants, with a view to show that it is Article 142 of the Limitation Act that applies and not Article 144. It is contended that Article 142 is not confined to suits for possession on the ground of possessory title but it applies to all cases of dispossession, whether the plaintiff is suing merely on the basis of his possessory title or on his proprietary title. Where in a suit for possession the plaintiff pleads possession and dispossession or discontinuance of possession, the suit is governed by Article 142 and it would be wrong to say that a person who proves title in a suit for ejectment has the right to the decree sought unless the defendant proves adverse possession for twelve years. The plaintiff is not entitled to succeed unless he shows, in addition to title, that he was in possession of the property within twelve years of the suit. Number of authorities have been cited in support of the contention. It is pointed out that in this case the plaintiffs claimed the suit property on the basis of their title and further alleged that the defendants had brought the land under cultivation some ten or eleven years before the institution of the suit. In the circumstances, it lay upon the plaintiffs to prove affirmatively that they were in possession of the land in dispute at any time within twelve years of the suit. According to the counsel, the trial Court was wrong in applying Article 144 to the facts of the case, and since the plaintiffs failed to prove their possession within twelve years the suit ought to have been dismissed as barred by time.;