Judgment :- 1. This appeal is by the plaintiff in a suit for. declaration of title and recovery of plaint item No. 1, which is 2 cents of a larger plot of which the remainder is admittedly in possession of the plaintiff. Plaint item No. 2 is a small building put up on item No. 1, by the 1st defendant. 2. The plaintiff purchased the property under Ext. P1 dated April 27,1957. The plaint concedes that long before his purchase, defendants 1 and 2, husband and wife, were in occupation of suit item No. 1, under permission of the prior owners of the property, as kudikidappukars but urges that they ceased to be kudikidappukars when they acquired 25 cents 'of land elsewhere and er Ext. P4 dated December 2, 1952, and that therefore he is entitled to recover the land from them after removal of their building. The 1st defendant contended 2nd defendant remained exparte that the land in his possession is not part of the plaintiff's property but is poramboke lands, that even if it is plaintiff's land he has perfected a title thereto by long adverse possession, that the allegation that his occupation is under permission given by plaintiff's predecessors is false and that if the plaintiff is found to have title to the property he must be deemed to be a kudikidappukaran entitled to immunity from eviction. The Munsiff found that, except 95 sq. links which alone is poramboke, the land in the possession of the defendants belongs to the plaintiff, that the 1st defendant is a kudikidappukaran and that the plaintiff has failed to prove subsisting title to suit item No. 1, and on the last finding dismissed the suit. On appeal the Additional District Judge affirmed that decree, holding that the defendants' possession was not under permission of the plaintiff's predecessors¬in-interest, that the plaintiff lost title by limitation and that the 1st defendant's kudikidappu rights have not been forfeited by the purchase of other land under Ext. P4, which is in the name of the 2nd defendant alone. The plaintiff has come up in second appeal. 3. P4, which is in the name of the 2nd defendant alone. The plaintiff has come up in second appeal. 3. The Munsiff observed: "In the nature of the respective contentions in this case it is for the plaintiff to establish that himself or his predecessors-in-interest have been in possession of the property within 12 years before suit or that the possession of the defendant is permissive It has been found under issue No.1 that the major portion of the plaint property forms part of Survey Number 225/38 the registered holding of the plaintiff. But since plaintiff has failed to establish subsisting title I hold that the suit is barred by limitation." The Additional District Judge's observation is: "The lower court was therefore perfectly justified in negativing the plaintiff's case of permissive occupation and finding that title to the property was lost by limitation the defendants' possession from 1114 (1939-40) being admitted." Neither has found adverse possession proved; the Munsiff observed the plaintiff to have failed to prove possession within 12 years before suit and therefore to have failed to establish a subsisting title; and the Additional District Judge took that to mean the plaintiff to have lost title to the property by limitation and defendants' possession. Obviously the Courts below assumed the suit to be governed by Art.142 of the Limitation Act, 1908. I am afraid they have overlooked the averments in the pleadings and have assumed all suits for recovery of immovable property to be governed by Art.142. As has been ruled by a unanimous Bench of five learned judges of the Supreme Court in Gurbindar Singh v. Lal Singh (AIR. 1965 S. C. 1553): "In order that Art.142 is attracted the plaintiff must initially have been in possession of the property and should have been dispossessed by the defendant or someone through whom the defendants claim or alternatively the plaintiff should have discontinued possession. It is no one's case that Lal Singh ever was in possession of the property ...In the present suit both Lal Singh and Pratap Singh (the plaintiffs) assert their claim to property by succession (to Smt. Raj Kaur who died about 20 years before suit) ...So far as the present suit is concerned it must, therefore, be said that the plaintiffs-respondents were never in possession as heirs of Raj Kaur and consequently Art.142 would not be attracted to their suit. It is in these circumstances that we have to consider whether under Art.144 the suit is barred by time. The starting point of limitation set out in col. 3 of Art.144 is as follows: 'When the possession of the defendant becomes adverse to the plaintiff' (After repelling "an interesting argument to the effect that if persons entitled to immediate possession of land are somehow kept out of possession may be by different trespassers for a period of 12 years or over, their suit will be barred by time", the judgment continues)... What we are concerned with is the language used by the legislature in the third column of Art.144. The starting point of limitation there stated is the date when the possession of the defendant becomes adverse to the plaintiff. The word 'defendant' is defined thus in S.2 (4) of the Limitation Act thus: ''defendant' includes any person from or through whom a defendant derives his liability to be sued. No doubt, this is an inclusive definition but the gist of it is the existence of a jural relationship between different persons. There can be no jural relationship between two independent trespassers. Therefore, where a defendant in possession of property is sued by a person who has title to it but is out of possession what he has to show in defence is that he or anyone through whom he claims has been in possession for more than the statutory period. An independent trespasser not being such a person the defendant is not entitled to tack on the previous possession of that person to his own possession. In our opinion, therefore, the respondents' suit is within time" It is pertinent to note here that Smt. Raj Kaur died in 1930, that the property descended to her two daughters "in absolute estate" (vide Para.7 of the judgment), that the daughter Mahar Kaur and, after her, her sons the plaintiffs had been out of possession for nearly 20 years before suit which was instituted in 1950 only, and yet their Lordships held "the plaintiffs-respondents were never in possession as heirs of Raj Kaur and consequently Art.142 would not be attracted to their suit." Their Lordships held further "the respondents' suit is within time and has been rightly decreed" as the defendants-appellants could not prove adverse possession with them and persons through whom they claimed for 12 years of the suit. It is also pertinent to note that Raj Kaur was in possession but on her death her daughter did not get possession of the properties. Their Lordships' dictum seems to be categorical that "in order that Art.142 (Limitation Act) is attracted, "the plaintiff must have been in possession of the property, and "(the plaintiff) should have been dispossessed by the defendant or someone through whom the defendants claim or alternatively the plaintiff should have discontinued possession." 4. In the present case, the plaintiff has not claimed to have been in possession of plaint item No. 1; nor has he alleged dispossession or discontinuance of possession. All that he averred is occupation by defendants under permission given by his predecessors-in-interest which is consistent only with possession and continuance of legal possession with the plaintiff and his assignors. It follows that, as per the ruling of the Supreme Court, Art.142 of the Limitation Act is not attracted to this suit. It is conceded that if that Article is ruled out, limitation has to be judged by Art.144 only. Then the burden is on the defendants to prove that they, or/and persons through whom they claim, have been in adverse possession of the property for 12 years before this suit. Issue No. 6 raised for trial is "Whether the right of plaintiff if any has become barred by adverse possession and limitation?"; the finding thereon is "the plaintiff has failed to establish subsisting title" to the property. In the light of the Supreme Court ruling the issue was right, but I am constrained to observe that the finding is not in tune with the issue and is irrelevant in this suit, where the question real is its reverse, namely whether the defendants have been in adverse possession for 12 years. 5. The merits of the finding on subsisting title entered by the Courts below are also open to question. P. W. 3 the plaintiff's vendor, and P. W. 4 a former employee of M/s. A. V. George and Company, the prior proprietors have sworn to have collected rent from the defendants. Their evidence have been disbelieved by the Courts below on the ground that the account books of the Company have not been produced in this case. Those accounts were not at the time of examination in the possession or control of P. W. 4. Their evidence have been disbelieved by the Courts below on the ground that the account books of the Company have not been produced in this case. Those accounts were not at the time of examination in the possession or control of P. W. 4. He swore to the fact of his having collected rent from defendants, on behalf of the Company. Nothing has been brought out in his examination to affect his veracity. P. W. 3 has not kept accounts. The presumption arising from non-production of account-books in the possession of a party to the suit and concerning the suit transaction is out of place in regard to witnesses who have left the employ of a former owner-Company which keeps the relevant account-books relating to a collateral matter. The very plea of the defendant claiming status of a kudikidappukaran necessarily implies his occupation being with permission of the proprietor. Nothing is more surprising than findings in the same breath that the defendant has not been in permissive possession and has acquired kudikidappu rights. When the utter inconsistency of the claims to adverse possession and kudikidappu rights was pointed out to counsel for the defendant, he confined his plea to immunity of a kudikidappukaran. In the circumstances I discharge the finding of the Court below and declare the plaintiff's title to suit item No.1 as owner thereof, and the 1st defendant's status as a kudikidappukaran thereon. 6. The question then arises whether by the purchase of other land under Ext. P4 the 1st defendant has lost his rights as a kudikidappukaran. Ext. P4 obviously stands in the name of his wife, the second defendant. Though it has become the fashion in recent times for a kudikidappukaran to acquire lands in the name of his wife or child, and cling to the old kudikidappu for residence of himself and family, the Court cannot start with a presumption that every purchase in the name of a kudikidappukaran's wife or child is a benami acquisition of the kudikidappukaran. The matter is one for proof, and such proof is lacking in this case. The 2nd defendant is not cited; and the examination of the 1st defendant as to his part in taking Ext. P4 has been most indifferent. I accept the finding of the Court below that the 1st defendant is a kudikidappukaran on suit item No. 1. 7. The matter is one for proof, and such proof is lacking in this case. The 2nd defendant is not cited; and the examination of the 1st defendant as to his part in taking Ext. P4 has been most indifferent. I accept the finding of the Court below that the 1st defendant is a kudikidappukaran on suit item No. 1. 7. In the result, the second appeal is partly allowed and the plaintiff is declared to be the owner of suit item No.1 and the 1st defendant to be in permissive occupation thereof as a kudikidappukaran. The claim for recovery of the property is disallowed as the 1st defendant is entitled to present immunity from eviction. Admittedly, the 2nd defendant has no claim to any kudikidappu rights in the suit property. In the circumstances of this case, I direct the parties to suffer their respective costs throughout. Partly allowed.