(1.) The plaintiff-appellant had sued for declaration and joint possession of land, 62 Bighas and 3 Biswa in area, situated in Mauza Devki, Pargana Bharmour, in Khata No. 62 Khatauni No. 92 Khasra Nos. 1134, 1135, 1140, 1142, 1144, 1147 to 1150, 1166 and 1168. The only basis of his claim disclosed in the plaint dated 1212- 1957 was that he was entered as owner of a half of the above-mentioned land and that the defendants were entered as owners of the other half. The defendants, who are the sons of a man called Saraf and grandsons of Chand, denied the right and title of the plaintiff to any part of the land in dispute despite the entry of his name in the revenue records which, according to the defendants, was erroneous. The plaintiff is a nephew of Chand mentioned above. He set up, in the course of evidence, a right flowing from a gift by Smt. Diu-kari, the widow of Chand, who was alive at the time when the suit was brought and is presumably still alive but was not examined as a witness. His case, taken up in evidence, was that Smt. Diukari, the step-mother of Saraf, had been given the land in dispute under a will made by Chand. It was also submitted that Smt. Diukari had already obtained possession of the land in dispute against Saraf after filing a suit in 1942 against Saraf who had been disinherited by Chand.
(2.) An examination of the plaint in the instant case discloses an attempt to overcome the defect that the plaintiff was actually out of possession. After asserting that the plaintiff and the defendants were co-owners, presumably by reason of the entries as co-owners in the revenue record only, the plaintiff went on to assert that the defendants were refusing to give him. his rights as a co-owner and excluding him from actual possession so that he was compelled to bring the suit. It seems to mo that the following observations made by Sulaiman, C. J. in Bin-dhyachal v. Ram Gharib, AIR 1934 All 993 (FB) at p. 998. are applicable to cases of this very type:
(3.) Although the Senior Subordinate Judge, Chamba, who tried the suit, framed an issue on adverse possession governed by Article 144, Limitation Act only, and, thereby placed the burden of proving such adverse possession upon the defendants, the first issue framed relates to the alleged right and title of the plaintiff as owner and the burden of proving this certainly lay on the plaintiff. In my opinion, the learned Judge ought to have framed another issue and placed the burden of proving his own possession within 12 years also on the plaintiff. However, inasmuch as the effect of Sections 3 and 28 of the Limitation Act is to make it obligatory upon the plaintiff to prove, as a part of the burden of proving his subsisting title, that a suit on the basis of dispossession is not barred by time, it could be said that Issue No. 1 covers the defendants' objection that the plaintiff should prove possession within 12 years as a part of proof of subsisting title alter admitting dispossession in his plaint. I think that the plaintiff's admission, in the plaint, that the defendants were excluding him from-the benefits of his alleged ownership and possession, amounted to an admission of dispossession.