JUDGMENT
S. Ali Ahmad, J.
1. This second appeal is by the plaintiffs, whose suit for declaration of title and recovery of possession with respect to 73 decimal of land fully described in the plaint has been dismissed by the lower appellate Court.
2. Shortly stated the case of the plaintiff-appellants was that plot No. 229 under Khata No. 22 was recorded in the name of Chuni Dhanuk, who was described as occupancy raiyat Bha’wali in the Khatian. Chuni Dlumuk had two sons Mahadeo and Sheo-dhari. These two sons of Chuni Dhanuk came in possession of plot No. 229 on the death of their father. It is further said that on a partition between two brothers, plot No. 229 was allotted to the share of Mahadeo, who remained in exclusive possession till hii death and after that his son, plaintiff No. 1 came in possession. With regard to plot No. 228, it is said that this plot was a ditch and was recorded as Garha ghairmazarua in the khalian. According to plaintiffs’ further case. this plot was adjacent west to plot No. 229. The case of the plaintiffs further is that he and his ancestor filled up 19 decimal ot plot No. 228 and amalgamated ft with plot No. 229 and remained in possession till 13-8-1963 when they were dispossessed from 19 decimal of plot No. 228 and 54 decimal of plet No. 229, The suit, therefore, for declaration of title and recovery of possession with mesne profit was filed.
3. The defendants appeared and contested the suit. Their case, in short, was that plot No. 229 was the Bakast of the family of Jagdip Narain Singh of Daili, who, in the year 1314. Fs. gave plot No. 229 along with other lands to Chuni Dhanuk on Bhawali rent. Chuni Dhanuk abandoned the land which auain came in possession of the landlord, with respect to plot No. 228 the case of the defendants was that the landlord filled up 25 decimals of this plot which was a ditch and amalgamated it with plot No. 229 and brought it under cultivation. Further the defendants say that in the year 1350Fs., the Maliks settled the whole of plot No. 229 and 25 decimal of plot No. 228 in their favour and realised rent up to four annas kist of 1363 Fs. whereafter the intermediary interest of the Maliks vested in the State of Bihar. The defendants also said that after the vesting of the zamindari, they are paying rent to the State of Bihar and are in cultivating possession of the land in question.
4. The trial court on a consideration of the evidence adduced in the case held that the entry in respect of plot No. 229 was correct and Chuni Dhanuk was occupancy raiyat of the holding. It also held that the plaintiffs and the ancestor were in possession of the disputed land from the time of the survey until they were dispossessed on 13-8-1963. With respect to plot No. 228, the trial court was of the view that 19 decimal of this plot was in possession of the plaintiffs for the last 25 to 30 years. On these findings, the trial court held that the defendants’ story of settlement was not correct and that they had also failed to prove acquisition of their title by adverse possession. The suit was accordingly decreed. The lower appellate court affirmed the findings that the survey entry with respect to plot No. 229 was correct and that the defendants failed to prove their case with regard to abandonment by Chunj Dhanuk. The court of appeal below, however, allowed the appeal and dismissed the suit holding that the plaintiffs had failed to prove their possession over the suit land within 12 years of the institution of the suit and that the defendants had proved their title by adverse possession.
5. Mr. Kailash Roy, learned counsel for the appellants first submitted that the court of appeal below was wrong in holding that the defendants had proved their title by adverse possession. In support of his contention learned counsel has referred to paragraph 26 of the Judgment wherein the court of appeal below has recorded the findings of adverse possession on the ground that admittedly the defendants are in possession and the plaintiffs have failed to prove their possession within 12 years. The inference of adverse possession drawn on the aforesaid fact is obviously wrong and Mr. Kailash Roy is absolutely right in saying that the finding of adverse possession is erroneous in law, but that really does not solve the difficulty of Mr Roy. The suit was fifed in the year 1963 and as such it will be governed by Article 142 of the old Limitation Act, 1908. Mr. Roy, perhaps, being conscious of this Article 142 contended that admittedly plaintiff’s ancestors were in possession of the disputed land at the time of the revisional survey. He, therefore, urged that in cases like this the principle of Article 142 will not be applicable as there is a presumption with regard to continuity of possession. The defendants, according to him, therefore, should prove that the plaintiff was not in possession of the suit lands within 12 years. To support his contention, learned counsel referred to the case of Natboo Lal v. Durga Pd. (AIR 1954 SC 355) and placed great reliance on the expression “the law presumes in favour of continuity of possession”. This observation of their Lord-ships of the Supreme Court, in my opinion, was made in an entirely different situation. The trial court, the lower appellate court and the High Court had unanimously held that on the death of Laxmi, the plaintiff in that case, continued in possession of the house and the suit was within the period of limitation. This finding was challenged before the Supreme Court. Their Lordships rejected the argument find held that the unanimous finding could not be assailed and in that connec-tinn also observed, perhaps, to give strength to she finding of possession, that the law presumes in favour of continuity of possession. Mr. Roy also referred to the case of Tape-sara Kuer v. Kulap Rajwar (AIR 1957 Pat 92) “wherein Raj Kishore Prasad, J. (as he then was) noticed the observations made by their Lordships of the Supreme Court in the case reported in AIR 1954 SC 355 (Supra) and applied the principle to the facts of the case. So far as the case in hand is concerned, in my opinion, the presumption of continuity of possession cannot be of any assistance to Mr. Roy. If his argument is to he accepted then it will have to be presumed that the appellants remained in possession till 13-8-1963. Mr. Roy could not cite any case wherein presumption with respect to the date of the dispossession has been made in favour of a person, who alleged that while in possession he was dispossessed on a particular day.
6. Mr. S. S. Asghar Hussain, on the other hand, has referred to the decision in the case of Ghoghar Rauit v. Jagarnath Prasad Singh (AIR 1947 Pat 475). Meredith, J. (as he then was) rejected a similar argument in these words :–
“The general presumption of continuance of an existing state of affairs would not help him, and he would have independently to prove his possession within the statutory period. How then can he be in a more favourable position where he relies merely on the presumption of the Record of Rights to show that he was in possession in 1896 ? The general presumption, if it could carry him to success, would equally cany him to success in both cases, but when the Full Bench says that it cannot cany him to success even if be hu fully established hu possession outside the statutory period, then how can it avail merely because he relies upon the Record of Rights. The actual presumption of correctness which the Record of Rights carries is merely that he was in possession at the time the record was made. Anything further depends on the general rule of evidence, to which I have referred, and I can only interpret the Full Bench decision as “holding that general rule of evidence in favour of presuming the continuity of things shown to exist at a prior date cannot be availed of in suits for ejectment.”
I may only add that Meredith, J. came to the aforesaid conclusion on the basis of the case of Raja Shiva Pd. Singh v. Him Singh (AIR 1921 Pat 237) (FB). With respect. I entirely agree with all that has been said by Mere-dith, J. In my view also, the plaintiff must prove his possession within the statutory, period and cannot succeed on the basis of possession beyond the maximum limit prescribed by Article 142 of the Limitation Act. To take a contrary view will only mean violation of the provision as contained in Article 142 of the Limitation Act.
7. Mr. Roy also urged that the findings regarding possession is against the weight of the evidence. It is not possible to reappraise the evidence in second appeal. No such illegality has been pointed out which may justify my interference with this finding.
8. I, therefore, see no merit in the appeal, which is dismissed, but in the circumstances of the case, there will be no order as to costs.