Ramaswami, J.

(1) This appeal involves the important question whether the Subordinate Judge was right to hold that the suit was barred under Article 142, Limitation Act.

(2) The dispute relates to 14.68 acres of bakasht land in village Chak Dharampur. The Mouza belonged to Ramadhin Singh and Shyamadhin Singh who on 1st August 1917 executed a gale dead in favour of Safdar Ali who in his turn made a registered wakf deed appointing the plaintiff as mutawalli. The plaintiff brought the suit alleging that in the year 1912 Ramadhin Singh and Shayamadhin Singh had in execution of rent decrees purchased the land and obtained dakhaldehani thereof; that in the survey proceeding the land was recorded as bakhashi; that Safdar Ali continued to be in khas possession after his purchase; that in the year 1937 the defendants set up a false claim to the land on account of the Kisan movement. A proceeding under Section 145 was instituted in the Court of the Sub divisional Magistrate who by his order dated 7th June 1939 held that the defendants were in possession of the land. The plaintiff, therefore, brought the suit for a declaration that the land was bakasht and for recovery of possession by evicting the defendants.

(3) The main ground of defence was that the rent decree obtained by Eamadhin Singh and Shayamadhin Singh were fraudulent and collusive, that the plaintiff never obtained khas possession of the land, that the defendants continued to be in possession and on account of a subsequent compromise the landlord settled the land with the defendants at nakdi rent after taking salami. After Safdar Ali purchased the mouza the defendants obtained renewal of settlement on payment of further salami.

(4) Upon these contentions the lower appellate Court found that the case of settlement with the defendants was not true and defendant could not claim to be tenants by virtue of the alleged settlement. But on the question of possession, the lower appellate Court held that both the parties had adduced unsatisfactory evidence and since the onus of proof under Article 142 was upon the plaintiff the suit was barred by limitation.

(5) On behalf of the appellant, Mr. P.R. Das contended that the lower appellate Court has misplaced the onus of proof and it was erroneous to hold that the suit was barred. Learned counsel maintained that the suit was in substance for a declaration of title and confirmation of possession, the cause of action starting from 7th June 1939 the date of the order of the Special Magistrate under Section 145, Criminal P. C., declaring that the defendants were in possession of the land in dispute. Learned counsel made reference to paras 31 and 33 of the plaint and contended that the suit was governed by Article 144, Limitation Act, and that the burden was upon the defendants to establish the nature and extent of the right asserted. In support of his argument learned counsel referred to Midnapore Zamindary Co. Ltd. v. Panday Sardar 2 Pat. I.J. 606: (A.I.R. (4) 1917 Pat. 471) [LQ/PatHC/1917/200] , in which the proprietor of land sued a tenure-holder for recovery of possession of land on which the latter had encroached. The plaintiff claimed that the area in dispute should be declared to be the mal land of the mouza and that he should be awarded khas possession of the same. In the alternative there was a plea that if defendants were found not liable to be ejected it should be declared that the plaintiff was entitled to fair and equitable rent for the land occupied. Defendant 1 contested the suit claiming that the disputed area was ghatwali land and denied that the plaintiffs or their predecessors had any right to or possession of the land in suit. The trial Court gave a decree in favour of the plaintiff but the lower appellate Court set aside the decree of the trial Court on the ground that the plaintiff had failed to prove possession of the land within 12 years of the institution of the suit. On appeal, the High Court held that the suit was not barred and that plaintiffs were entitled to a decree. If Article 142 applied the plaintiff must succeed because the plaintiff having proved his proprietary title was entitled to claim the presumption that ha had possession and that his possession continued till within 12 years of the suit. It was for the defendants to rebut the presumption and this they have failed to do. But the learned Judges held that; Article 144 really applied to the case and that since the defendant! had failed to prove adverse possession the plaintiff was entitled to a decree for khas possession of the land.

(6) The same principle has been expounded in Sir Rameahwar Singh v. Bit Lal Singh, 6 P. L. T. 5141 (A. I. R. (12) 1925 Pat. 739) [LQ/PatHC/1925/31] and Sameshwar Singh v. Faturi Missrft, A. I. R. (21) 1934 pat. 339 [LQ/PatHC/1934/43] : (149 I. C. 453). In the latter case Wort J. referred to the circumstances that it was admitted position that the plaintiff had title and it was also the case of the defendants that had they a title, it was not of the proprietary interest but a limited tenancy interest only as against the admitted proprietor the zamindar. The learned Judge therefore held that the defendant must either show title to tenancy right by contract or by the fact that he has been in possession for the necessary period and the onus was equally upon him to show the date upon which he came in possession and his title began. Such a case was governed by Article 144, not Article 142, and it was impossible for the Judge in trying such a suit to raise any presumption against the plaintiff by reason of the absence of any evidence on the part of the plaintiff.

(7) For the respondent learned counsel placed reliance upon Dino Monee Debia v. Doorga Pershad 21 W. R. 70: (12 sang. L. R. 274). But this case is not of much assistance for the Full Bench merely laid down that in a suit for possession of land against a tenant who was really a trespasser the defendant merely by alleging tenancy in his written statement did not preclude himself from setting up the defence of the law of limitation. In that case the defendants in their written statement pleaded a mourusi holding with respect to some of the plots in dispute; and with respect to other plots they set up an independent title claiming them to belong to another taluk than that of the plaintiff. The present case must be distinguished for the defendants have not raised the alternative plea of limitation in their written statement.

(8) For the respondent reference was made to Ishan Chandra Mitter v. Raja Ramranjan Chakarbutty, 2 C.L.J. 125, in which the landlord sued the defendant for khas possession of land which lay outside the boundaries of the leases granted by the plaintiff. The learned Judges held that when a tenant took possession of the land outside his tenancy and professed to do so in his character as tenant the landlord was dispossessed in a limited sense, in other words he was deprived of actual or khas possession of the land but not of proprietary possession or possession by receipt o rent. In such a case Article 142, Limitation Act, would apply and the landlord who wishes to eject the defendant must bring a suit within 12 years of his dispossession; If he does not do so, his title to recover actual possession would be barred, although his title to receive fair rent would not be barred, the possession of the tenant, so fat as the latter right is concerned having never been adverse. The learned Judges however thought that where the tenant intende the encroachment for his own benefit and sets up a title adverse to the entire interest of the landlord Article 144, Limitation Act might be applicable. The distinction appears somewhat illogical for on principle there is no differences between a case where the person sets up a title adverse to the entire landlords interest and a case where he prescribes for the limited interest of a tenant. In any event the authority of this case appears doubtful for in a subsequent case, Gopal Krishna v Lakhiram, 16 C.W.N. 634 : (14 I. C. 212), upon almost similar facts a Division Bench held that Article 144 would apply. It was observed that though a tenant was bound to treat that which was an encroachment on his landlords land as held by him under his landlord the landlord was not bound to treat the land on which his tenant encroached as held under a tenancy. But the landlords right to recover possession of the land encroached upon may be lost by the tenant having adversely to the landlord asserted his title as tenant to the land for more than 12 years. Under Article 144, Limitation Act, there may be adverse possession not only of immovable property but of any interest therein, and a tenant may claim to have been in adverse possession for 12 years of a limited interest in encroached land, viz , a tenancy commensurate with that in the admitted lease between the parties.

(9) On behalf of the respondent learned counsel referred to Raja Mohan Bikram Shah v. Deonarain Mahto, A. I. R. (32) 1945 pat 453 [LQ/PatHC/1945/39] : (24 Pat. 379) in which the plaintiff sued for khas possession of certain land on the ground that it was his bakasht and that the defendants bad no raiyati right. The defendants on the contrary alleged that they possessed the land as raiyati on manhunda rent. The lower appellate Court found that the plaintiff had not proved khas possession within 12 years of the suit and the defendants had been in possession thereof as ratyats on manhunda rent. On appeal to the High Court, Sinha J. observed that in a suit for ejectment the onus was on the plaintiff to make out his title and his possession within 12 years of the suit. Where his title as proprietor is admitted by the defendants the plaintiff must prove his title in the limited sense of title to khas possession. But with great respect this dictum seems to be obiter since the lower appellate Court had found that the defendant had proved that they were raiyats on manhunda rent and this finding was accepted by the High Court. The test for determining whether a proposition is obiter is whether the decision would have been the same if a word has been inserted in the proposition reversing its meaning, (Wambaugh--Study of Cases, p. 17). Applying this test the question of limitation was not material for the decision of Mohan Bikram Shah v. Deonarain Mahto, A.I. R. (32) 1945 pat. 453 [LQ/PatHC/1945/39] at p. 456 : (24 Pat. 379) the report states :

"Certainly, it lay on the defendants to prove their tenancy, and the finding recorded by the learned Judge on appeal is to the effect that the defendants had proved their tenancy, and that the plaintiff had failed to prove that the lands were in his direct possession since after 1921, when the alleged settlements were made by him in favour of the defendants. It the defendant had failed to prove their tenancy, their position on the findings of the learned Additional District Judge, would be that of trespassers, and in that case they would have indefeasible title not by virtue of the settlements but by adverse possession."

(10) Upon the pleadings in the present case I am of opinion that the suit is not barred. After examining the record, the lower appellate Court has found that both parties have adduced unsatisfactory evidence as regards possession of the land. But the Court has failed to take into consideration the presumption arising from the title of the plaintiff. For the respondents, it was contended that no such presumption can be called in aid in appraisement of the evidence and reference was made to the Full Bench decision in Shiva Pd. Singh v. Hira Singh, 6 pat. L. J. 478 ; (A. I. R. (8) 1921 Pat. 237 [LQ/PatHC/1921/109] F. B.). But in Matuk Singh v. Tian Sahu, 2 Pat. 1: (A.I.R. (9) 1922 pat. 432) [LQ/PatHC/1922/136] , Sir Dawson-Miller explained the limits to which the principle of the Full Bench decision can be extended and observed that, in a suit for ejectment, where the evidence adduced by both parties, although unsatisfactory is not altogether valueless, the Court is entitled: to take into consideration the presumption arising from title and the probabilities of the case.

(11) In this context reference should be made to the Secretary of State v. Sri Rajah Chelikani Ramarao, 25 C. L. J. 69 : (A.I.R. (3) 1916 p. C. 21) in which the Crown claimed an island in the sea bat the High Court of Madras dismissed the suit on the ground that the Crown had failed to prove possession i.e., a subsisting title within the period of limitation. The Judicial Committee disagreed with this view and observed as follows :

"Their Lordships are of opinion that the view thus taken of the law is erroneous. Nothing is batter settled than that the onus of establishing property by reason of possession for a certain requisite period lies upon the person asserting such possession. It is too late in the day to suggest the contrary of this proposition. It were not correct it would be open to the possessor for a year or a day to say I am here; be your title to the property ever so good you cannot turn me out until you have demonstrated that the possession of myself and my predecessor was not long enough to fulfil all legal conditions."

And later the Judicial Committee goes on to say :

"It would be contrary to all legal principle thus to permit the squatter to put the owner to the fundamental right to a negative proof upon the point of possession."

In the present case, the plaintiff would succeed, even if Article 142 is applicable. But the authorities establish that upon the pleadings of the casa the appropriate provision would be Article 144 and the suit will not fail until the defendants establish adverse possession for the statutory period either of the entire or limited interest.

(12) Upon these grounds I should set aside the decrees of the lower Courts and order that the plaintiff should be granted a decree. I should accordingly allow the appeal with costs.