JUDGMENT H.P. Asthank, J. - This is a Defendant's appeal arising out of a suit for possession of a plot of land No. 231 in the city of Kanpur, which has been decreed by the lower appellate court which reversed the decree of the trial court dismissing the suit. 2. The suit was brought on the allegation that the Plaintiff was the owner of the disputed plot; that he had given it on lease to De-Walde Company in 1914 for a period of five years renewable for another five years; that the aforesaid Company relinquished this plot some time in 1924 and there after the Plaintiff had been in possession of it; that in 1942 the Defendant, who obtained a certain transfer from the De-Walde Company obtained wrongful possession over this land and refused to vacate it when he was asked to do so. In 1942 the present Plaintiff had filed a suit against the Defendant in respect of the disputed land as well as some other property on the ground that the Defendant had wrongfully taken possession of it. The Defendant contested that suit. The Plaintiff made an application to withdraw that suit on account of some legal defect. He was permitted to withdraw the suit with liberty to file a fresh suit in respect of the disputed land but in respect of the remaining property the suit was dismissed. The suit which has given rise to this appeal was filed in 1946 more or less on the same allegations on which the former suit, No. 334 of 1942, had been filed against the Defendant. The Defendant contested the suit on several grounds. He pleaded that the Plaintiff was not the owner of the disputed land, that he was not in possession of it within 12 years of the suit and that the Defendant had acquired title to it by adverse possession. Two other points were raised, one of which was that the suit was not maintainable in view of the order of this Court dated 6-5-1946 passed in S.A. No. 334 of 1942, and the other was that the suit was not cognizable by the civil court. 3. The trial court decided all issues in favour of the Plaintiff except issue No. 3 on the question of limitation. 3. The trial court decided all issues in favour of the Plaintiff except issue No. 3 on the question of limitation. If found on this issue that the Defendant had acquired title by adverse possession for more than 12 years and so the Suit was barred by limitation The lower appellate court did not agree with the finding of the trial court. It was of the opinion that the Plaintiff had obtained possession over the property in dispute in 1924 or 1925 and there was a presumption of continuity of possession in his favour; that the Defendant was not in adverse possession of the disputed property. It accordingly allowed the appeal and set aside the decree of the trial court and decreed the suit for possession. 4. The only point which has been argued before me in this appeal is the question of limitation because it is on that point alone that the suit was dismissed by the trial court and decreed by the lower appellate court. It has been argued on behalf of the Respondent that the finding of the lower appellate court on the question of possession was a finding of fact and, as such, it was binding on this Court in S.A. No doubt the finding with regard to possession is a finding of fact and has to be accepted unless there is something which shows that this finding is not warranted from the evidence on the record. It has been contended for the Appellant that there was a definite allegation on his behalf that the Plaintiff had not been in possession of the property in dispute within 12 years and, as such, the proper Article which was applicable to the present case was Article 142 of the Limitation Act and not Article 144, and if Article 142 was applied to the present case it was for the Plaintiff to prove by satisfactory evidence that he had been in possession of the disputed property within 12 years of the suit. It was further argued that the lower appellate court had taken a wrong approach to this question and had decreed the suit merely because it found that the Defendant had failed to prove his adverse possession. 5. It was further argued that the lower appellate court had taken a wrong approach to this question and had decreed the suit merely because it found that the Defendant had failed to prove his adverse possession. 5. The question which arises for consideration is which is the proper Article which is applicable to the present case, and in order to decide this question it is necessary to examine the plaint. It appears from an examination of the plaint that the Plaintiff came to the court with the definite allegation that he was the owner of the disputed property and was in possession of it till 1942 when he was wrongfully dispossessed by the Defendant. In view of this clear allegation the proper Article in my opinion was Article 142 which should have been applied to the present case and not Article 144. It was for the Plaintiff to prove by satisfactory evidence that he was in possession of the property till 1942 when he was wrongfully dispossessed by the Defendant. It is an admitted fact that the land in dispute and the other property which was the subject matter of the former suit No. 334 of 1942 lie in one enclosure and there is a wall around it. It further appears from the evidence on the record that this property along with the other property which was the subject matter of the former suit was transferred by means of a sale deed in 1928 by De-Walde Company in favour of the Appellant. It has not been disputed that besides the property in dispute possession was delivered over the other property to the Appellant after the execution of the sale deed. It has been contended on behalf of the Plaintiff-Respondent that after the expiry of the lease which had been given in 1924 the property in dispute was relinquished by De-Walde Company in favour of the Respondent. In view of the fact that this property along with the other property which was the subject matter of the former suit was transferred by means of one sale deed of 1928 and that possession was admittedly delivered to the Appellant over the other property comprised in the sale deed, it appears somewhat improbable that possession over the property in dispute was relinquished in favour of the Plaintiff-Respondent. There is no documentary evidence in proof of the fact that possession over the disputed property was delivered to the Respondent some time in 1924 or 1925. The evidence on behalf of the Plaintiff in support of his possession over the property in dispute consists of the statements of P.W.1 Mahadeo, P.W.2 Trijugi Narain, Plaintiff, and P.W.3 Manni Lal. Mahadeo is admittedly the servant of the Plaintiff. According to his statement the cattle of the Plaintiff sometimes used to graze on the disputed land and they used to enter on it through the broken wall of the compound. The other kind of possession according to the evidence of this witness is that there is a babul tree in this land and the wood of this tree was sometimes taken by the Plaintiffs servant. P.W.3 Manni Lal, who was the guardian ad litem of the Plaintiff in the former suit also made a similar statement regarding the nature of possession of the Plaintiff. It, how ever, appears from his evidence recorded in the earlier suit No. 334 of 1942 that he had admitted that the Appellant had been in possession of the disputed land along with the other property since the date of sale when the property was transferred in his favour. The lower court was of the opinion that from the above statement made by this witness it was not clear that the property in dispute was also included in the property over which he had deposed possession of the Defendant. It has also remarked that the witness was not confronted during his cross-examination with the particular portion of the statement relied on by the Appellant and in view of this fact that evidence could not be used against him. It, however, appears from the record that the entire statement of this witness which he had made is the earlier suit was put to him in his cross-examination and which he admitted having made. It, however, appears from the record that the entire statement of this witness which he had made is the earlier suit was put to him in his cross-examination and which he admitted having made. There is no doubt that it would have been much better if the witness should have been given an opportunity to explain the inconsistency in his statement made in the earlier suit and in the lower court, but I do not think that merely because of this fact the statement which had been made by him in the earlier suit and in which he had clearly admitted the possession of the Defendant over the entire property in dispute that case becomes inadmissible in evidence. It need not be mentioned that it is not disputed that the property in dispute in this case was also included in the property which was in dispute in the earlier suit, and in view of this fact the statement which had been made by this witness in the earlier suit with regard to possession over the entire property includes the property which is in dispute in the present case. In my opinion the statement of this witness in his capacity as guardian ad litem in the previous suit is of very great importance in the present case and disproves the Plaintiffs' allegation that he was dispossessed from the property in.dispute in 1942 and not earlier. There is no satisfactory evidence on the record as to what were the overt acts which were performed by the Defendant in 1942 and which amounted to the dispossession of the Plaintiff. The Defendant examined two witnesses, namely, Gaya Prasad and DeNorohna in proof of the fact that he had been in possession of the disputed land since the date of the transfer in his favour and that prior to it there were constructions on the disputed land and they were possession of De-Walde Company along with the other property which was the subject matter of the former suit. It is true that De-Walde Company was the lessee of the property in dispute in 1924 but after the expiry of the lease their interest in be disputed property ceased. It is also not disputed that the De-Walde Company after the expiry of the lease had no right to transfer the property in dispute in favour of the Defendant, and the transfer was illegal and invalid. It is also not disputed that the De-Walde Company after the expiry of the lease had no right to transfer the property in dispute in favour of the Defendant, and the transfer was illegal and invalid. In the circumstances there can be no doubt that if the Plaintiff has not been in possession of the disputed land since the date of the transfer by De-Walde Company in favour of the Defendant, and the Defendant has been in wrongful possession of it during this period, the suit is obviously barred by Article 142 of Limitation Act. I do not think that there is any question of presumption of possession in favour of the Plaintiff in respect of the disputed land. In view of the fact that the land was enclosed along with the other property and cannot be said to be an open piece of land, the presumption which is usually applicable to open land in villages is not applicable in the present case in view of the nature and situation of the disputed land. 6. On a consideration of the entire evidence on the record I am not satisfied that the Plaintiff has been able to prove his possession over the disputed land within 12 years of the suit and, as such, the suit is barred by Article 142 of the Limitation Act which is applicable to the present case. 7. This appeal is, therefore, allowed, the decree of the lower appellate court is set aside and that of the trial court dismissing the suit of the Plaintiff is restored. The Defendant shall be entitled to his costs in this Court as well as in the lower courts. 8. Learned Counsel for the Appellant has made an oral application for leave to file a special appeal but I do not consider that there is any satisfactory ground for granting such leave. In the circumstances leave is refused.