AIR 1948 PATNA 391

Patna High Court

Hon'ble Judge(s): Ray , J

Limitation Act (9 of 1908) , Art.142— Suit for possession on ground of dispossession - Plaintiff has to prove that he was dispossessed on alleged date or was in possession within 12 years of suit - Evidence of both parties as to possession unworthy of credit - Suit must fail as presumption arising on proof of title cannot be called in aid in such case. Where a suit is brought for possession and ejectment of the defendant on the ground that the plaintiff was @page-Pat392 dispossessed on certain date, the onus lies on the plaintiff to prove not only that he had title and antecedent possession but also that he was dispossessed on the alleged date or on any other date within 12 years of the institution of tie suit. The latter alternative arises only when the plaintiff fails to prove dispossession by the defendant on the date alleged. In such a case when the plaintiff is allowed to succeed, and for that purpose to save the limitation by proof of possession within 12 years of the suit, be is in fact allowed to prove a case of discontinuance of possession rather than dispossession. It would be more a question of rule of pleadings and fairness of the trial rather than a question of law to determine whether the plaintiff should be permitted to take a stand on an alternative provided by law but not pleaded by him. In a suit for ejectment....