S. D. Khare, J. - (1.) A learned single Judge of this Court hearing this second appeal framed the following question and referred it to a Division Bench:-- "If a plaintiff claims possession against the defendant alleging him to be his ten ant and fails to prove the tenancy set up by him, whether in such a case Art. 142 of the Limitation Act will apply or Arti cle 144 of the Limitation Act?"
(2.) IT was noticed by the Division Bench that there was apparent conflict between two Division Bench decisions of this Court as to how the aforesaid ques tion be answered and, therefore, it re ferred the same for the consideration of this Full Bench. The suit giving rise to the second appeal was instituted on the allegations that the defendant was the tenant of the plaintiff of a small portion of the land in dispute and had, after obtaining his per mission and promising to pay rent, built a thatched construction on it six or seven years before the institution of the suit. It was further alleged that the defendant had stopped paying rent to the plaintiff from the year 1950 and when notice was sent to him in the year 1952 he denied the plaintiffs title. Another notice was, there fore, given to the defendant in the year 1954 terminating his tenancy. The plain tiff, therefore, sought the reliefs of pos session and rent and damages for use and occupation.The suit was contested on the ground that the defendant was not the tenant of the plaintiff but had made the constructions on the land after obtaining permission from one Sm. Ram Kaur, the owner of the land. The trial Court held that the plaintiff was the owner of the land in dispute and Sm. Ram Kaur had no interest in that land and decreed the suit. The lower ap pellate Court did not disturb the finding of the trial Court on the point of the title of the plaintiff to the land in suit. It however, arrived at the conclusion that the plaintiff had failed to prove the alleged tenancy and had also failed to prove that he had been in possession of the land In suit at any time within twelve years of the date of the suit and the defendant's contention that he had been in possession over that land for a period much exceeding twelve years could be true. The suit Was, therefore, dismissed on the ground that it was barred by Art, 142 of the First Schedule to the Limitation Act.
(3.) IN the circumstances of the case it has become very important as to which Article of the First Schedule to the Limi tation Act would apply. In case Art. 144 applies, the burden of proof would lie on the defendant to establish adverse pro prietary possession of more than twelve years. No such proof was furnished and, therefore, the suit could be decreed. On the other hand, if Art. 142 applies, there can be no doubt that the lower appellate Court was fully justified in dismissing the suit.;