Judgment :- 1. The suit property is the western portion, measuring 60 cents, of a property bearing survey No. 1036 and having an extent of 2 acres and 15 cents on the whole. The suit was to declare the plaintiffs' title and possession in respect of the suit property and in the event of proved dispossession by the defendants, to recover possession with mesne profits and for other reliefs. The plaintiffs were given a decree by the first court declaring their title and allowing them to recover possession with mesne profits and in appeal the Subordinate Judge dismissed the suit. The plaintiffs have come up in Second Appeal. 2. The first court approached the case as if it is governed by Art.144 and not Art.142 of the Indian Limitation Act, but the appellate court applied Art.142. The first prayer in the plaint being for declaration of possession also, the plaintiffs had to prove possession in order to succeed and a decree for recovery of possession would then be out of place. The decree of the first court allowing recovery of possession implied, that the defendants were in possession or that the plaintiffs were out of possession; in other words, it implied either dispossession of the plaintiffs or discontinuance of possession and Art.142 is at once attracted. See Maria Thresia v. Kuryan Varkey, 30 TLJ. 954. The plaintiffs having succeeded in the first court only on the alterative prayer for recovery of possession and the arguments addressed in Second Appeal On their behalf being in support of that prayer, it may be taken that the plaintiffs do seek recovery of possession. In that event they cannot succeed unless they prove in addition to title, that they have been in possession of the property within 12 years of the suit. This has been so held by a full bench of the Madras High Court in Official Receiver of East Godavari at Rajamundry v. Chaya Govindaraju, AIR. 1940 Madras 798. The first court having applied Art.144, its judgment is vitiated by this fundamental error and cannot be sustained. 3. There is very little evidence for the plaintiffs to establish possession within 12 years of the date of the suit. Exts. 1940 Madras 798. The first court having applied Art.144, its judgment is vitiated by this fundamental error and cannot be sustained. 3. There is very little evidence for the plaintiffs to establish possession within 12 years of the date of the suit. Exts. J & M, the mahazar prepared in a criminal case and the report of the commissioner prepared exparte, which were relied on for showing that there is a kayyala or boundary mark between the property of the first defendant on the west bearing survey No. 1037 and the suit property on the east, cannot be acted upon for the reason that those who prepared them have not been examined. The prior records Exts. C and D and the tax receipts, Exts. E and F proceed merely on the basis of survey number only, but the defence is that the first defendant was in possession of the suit property as part of survey No. 1037, whatever be its real survey number. Of the plaintiffs' witnesses even the chief examination of Pw.1 was not complete, and Pws. 2 and 3 who testified to the plaintiffs' possession have been rightly discredited by the appellate court. Pw. 4 is one of the plaintiffs. Even the first court did not act upon the evidence of these witnesses for holding that the plaintiffs have been in possession. On this evidence it is difficult to hold, that they were in possession on the date of the suit. 4. Dws. 2 and 3 made certain statements during their examination, which might tend to show that the plaintiffs and the defendants had taken the yield sometimes, but their evidence is also positive, that the first defendant had been in possession for a long time. All that might be said on their evidence is that the first defendant has not sustained a case of adverse possession. But this does not diminish the burden on the plaintiffs to prove possession within 12 years of the date of the suit. Soon after the suit was instituted the plaintiffs moved for a temporary injunction to restrain the defendants from disturbing their possession. An order was passed allowing the plaintiffs to be in possession on condition of their depositing the mesne profits annually. Subsequently, the plaintiffs having defaulted in fulfilling the condition, the order of injunction was vacated. Soon after the suit was instituted the plaintiffs moved for a temporary injunction to restrain the defendants from disturbing their possession. An order was passed allowing the plaintiffs to be in possession on condition of their depositing the mesne profits annually. Subsequently, the plaintiffs having defaulted in fulfilling the condition, the order of injunction was vacated. That the plaintiffs have been in possession during the period when the order was in force has no bearing on the issue of previous possession. It is their case, that the defendants came into possession of the property after the order was vacated. This has not been proved. Achuthan Unni v. Vally,1962 KLJ. 400, which was pressed into service is distinguishable. In that case it was ruled, that when a person was admitted or found to be in possession of a survey division, the presumption of such possession applies to the entire division and he need not be called upon to prove his possession of every inch of the property. The dispute in that case related to a very narrow bit of land, the maximum width of which was 6 links and the minimum width was 2 links, and there was only a temporary fence put up annually to mark the boundary. The evidence of title and possession of the property in favour of the plaintiffs which was accepted, was on the basis of the survey division. It was more a case of ascertaining or demarcating the limits of the property on the basis of survey measurements, rather than a case of dispossession. Such is not the case here. The dispute here related to a large slice of land about 60 cents in extent. The result is, that agreeing with the Subordinate Judge I hold that the plaintiffs have not proved possession within 12 years of the date of the suit. The Second Appeal fails and is dismissed with costs. Dismissed.