JUDGMENT P. Subramonian Poti, J. 1. A Division Bench of this Court said in Vally v. Achuthan Unni (1966 KLT 86 at page 88) as follows: "The law is well settled that if Art.142 governs the case the onus is on the respondent to show (1) that he has title to possession superior to that of the appellants, (2) that his possession was within twelve years of the suit or in other words, that he was in actual or constructive possession within 12 years of the suit. The respondent has therefore to prove not only his title but also that he had possession at some time within twelve years prior to the date of the suit. The burden of proving the date of dispossession lies on the plaintiff who in order to succeed must show that the dispossession was not prior to 12 years before the suit was filed." I think the rule is well settled. 2. But counsel for the appellant challenges the correctness of the rule. According to him, the matter requires re-consideration in the light of the decision of the Supreme Court in Nair Service Society v. K. O. Alexander (AIR 1968 SC 1155). It is the case of counsel that the Supreme Court has held that a suit for possession based upon title would be governed by Art.144 of the Indian Limitation Act, 1908 (hereinafter referred to as the repealed Act) in regard to limitation even where the allegations in the plaint are such as to attract Art.142. To put it in other words, even in a case where plaintiff alleges that he was in possession of the suit property and avers that defendant trespassed thereon and the plaintiff seeks recovery in such a suit, if the plaintiff proves title to the property he is not obliged to prove possession within 12 years of the date of suit, as according to counsel, the burden is upon the defendant in such a suit to prove adverse possession. That is contended to be so because Art.142 of the Indian Limitation Act, 1908 must be limited in its application to cases where the plaintiff does not base his claim for recovery on title to the property, but merely upon possession prior to dispossession by the defendant or discontinuance of possession by him and entry of the defendant into possession. That is contended to be so because Art.142 of the Indian Limitation Act, 1908 must be limited in its application to cases where the plaintiff does not base his claim for recovery on title to the property, but merely upon possession prior to dispossession by the defendant or discontinuance of possession by him and entry of the defendant into possession. Whether this approach to the question by counsel is justified in the light of the decision of the Supreme Court is the matter that I have to examine here. 3. I will state here a few facts to understand the controversy between the parties. Plaintiff and defendants 1 and 2 are admittedly owners of adjoining portions in the same survey number, though in different sub-divisions. Plaint A schedule property is claimed to be the property of the plaintiff. That is 1 acre 28 cents in S. No. 394/14 A of Vilappil pakuthy. The southern property belongs to defendants 1 and 2, 3rd defendant is husband of the first defendant and the 4th defendant is the brother of defendants 1 and 2. The case of the plaintiff is that plaint B schedule property which is the portion of A schedule situate on its south, immediately north of the property of defendants 1 and 2 is now in the possession of defendants and that is by trespass. The origin of possession is explained as follows. With the consent of the plaintiff 3rd defendant husband of the first defendant is said to have put up a thatched shed in the B schedule for the purpose of carrying on business since there was a market in the plaint A schedule property from 1124 onwards. Defendants 1 to 4 are said to have begun to convert the thatched shed into a permanent building with stone walls and when the plaintiff objected to such conversion they promised to pay a ground rent of Rs. 1/- per mensem and also agreed to remove the building as and when demanded. It is further alleged that after the conversion of the building into a permanent one defendants began to obstruct the plaintiff's enjoyment of the plaint B schedule property, began to destroy its southern boundary and also put up a boundary on its north. This is said to have been done on 8-9-50. Therefore recovery is prayed for "after demolishing the building put up by the defendants. This is said to have been done on 8-9-50. Therefore recovery is prayed for "after demolishing the building put up by the defendants. This plea of possession by defendants 1 and 2 under trespass is denied by them. According to them, the portion described as B schedule property is really not property situate outside the property of defendants 1 and 2, but is part of the property obtained by defendants 1 and 2 and is in the possession of the defendants not under the plaintiff or by reason of trespass, but as part of the property to which defendants 1 and 2 are entitled. They trace their possession to a mortgage of 1085 and also a subsequent sale. The oral arrangement and the permission alleged to have been given by the plaintiff to put up a thatched building as also the arrangement with regard to payment of rent at the rate of Re. 1/- per mensem are all denied by the defendants. It is on these that the parties are at issue in the suit. The plaintiff I obtained a decree for recovery in the Trial Court. The matter was taken to the appellate court by defendants 1 and 3. The appellate court found that plaintiff had failed to prove the rental arrangement and the permissive possession of defendants 1 and 2 of the plaint C schedule building. It also found that plaintiff had not succeeded in proving the trespass. On the evidence the court was not prepared to find that plaintiff had proved possession within 12 years of the date of suit and as such that court found that the suit must fail for want of proof of subsisting title in the plaintiff. That finding of the court below is attacked in this appeal, It is further contended that even assuming that the finding is correct the suit will have to fail as the law is not what has been held to be by this Court all along and the question must be reconsidered in the light of the decision of the Supreme Court which I have referred to above. I will first consider whether, on the facts, the finding of the court below is correct, since, only if I agree with the court below that the plaintiff has not proved possession within 12 years of the date of suit, I need consider the question whether the rule, accepted as well settled by this Court as to applicability of Art.142 of the Indian Limitation Act, 1908 requires to be reconsidered in the light of the Supreme Court's decision. 4. The case of the plaintiff that 3rd defendant put up a thatched shed in the plaint B schedule with the consent of the plaintiff and that subsequently the defendants converted the building into a permanent structure whereupon they agreed with the plaintiff to pay a rent of Re. 1/- per mensem are matters on which the parties are at issue. There is no documentary evidence in support of the arrangement pleaded by the plaintiff and, as rightly pointed out by the defendants, even on the face of it such an arrangement appears to be quite unlikely. According to the plaintiff there was a market in plaint A schedule property and therefore plaint B schedule which is said to be part of A schedule was of considerable commercial importance. If so it is not likely that the plaintiff would have permitted third defendant to construct a thatched shed for his business without stipulating any rent. There is no case that at that time any rent was agreed to be paid. Strangely enough, there is no mention in the plaint as to when the thatched shed was permitted to be constructed and the averment in paragraph 4 of the plaint would show that the permission, according to the plaintiff, was sought for not for the construction of one shed, but more than one, as is indicated by the words, It is said that in 1125 defendants began to put up walls for the shed constructed by them without permission of the plaintiff and then plaintiff obstructed. It is further averred that defendants agreed to pay a rent of Re. 1/- per mensem from 1st of Kumbhom 1125 and also agreed that whatever may be the nature of the building constructed by them it will be removed on demand. Certainly, if this had been the case, something in writing would have been demanded at that time. It is further averred that defendants agreed to pay a rent of Re. 1/- per mensem from 1st of Kumbhom 1125 and also agreed that whatever may be the nature of the building constructed by them it will be removed on demand. Certainly, if this had been the case, something in writing would have been demanded at that time. There is no explanation why it was not so demanded. It is said that it was later, in Karkadakam 1125, that the conversion of the building into a permanent structure was made. The case of the plaintiff is that subsequently defendants trespassed into plaint B schedule destroying the tapioca and other crops in the B schedule. In the evidence it has come out that first defendant, by Ext. V petition filed before the Neyyattinkara Taluk Office on 20-7-1124, disputed the correctness of the measurement of plaintiff's survey number and the planting of survey stones at points B and L in Ext. B plan. This would show that the dispute between the parties as to the location of their respective properties had commenced even as early as in 1124 Kumbhom or perhaps earlier. The significant fact is that it is quite unlikely that in these circumstances plaintiff would have given permission to the defendants to put up a thatched shed in the property which must have been the disputed portion, and much less he would have thereafter allowed them to under an oral arrangement of payment of Re. 1/- as rent. The court below has rightly taken notice of this background in appreciating the evidence adduced by the plaintiff in this case. Oral evidence of the witnesses relevant on this question has also been considered by the court below. P.W. 6, the plaintiff, admits, that no rent was paid by the defendants at any time. P. Ws. 1 to 3 are said to have been the persons present at the time of the oral agreement. The court below has considered their evidence quite properly, and according to me, rightly rejected their evidence. It is apparent from the examination of these witnesses that all of them were interested in the plaintiff. PW 1 does not say anything directly about the alleged agreement. The court below has considered their evidence quite properly, and according to me, rightly rejected their evidence. It is apparent from the examination of these witnesses that all of them were interested in the plaintiff. PW 1 does not say anything directly about the alleged agreement. He is a person who was living in the property of the plaintiff and PW 3 in the case who was a witness examined to speak to the oral agreement is his nephew. PW 1 has been disbelieved as a person who is familiar with courts, figuring as witness and as accused in several cases. PW 2 does not swear directly to the rental arrangement. It is PW 3 who speaks to it. I have already referred to the background of the case and I do not think that the court below was in error in refusing to believe P. Ws. 1 to 3 or to find the case of the plaintiff on the evidence of these witnesses alone.The plea of trespass set up by the plaintiff has also been found to be not proved. Besides the witnesses to whom I have already referred, there is the evidence of P. Ws. 4 and 5 in regard to prior possession, and as noticed by the court below, neither PW 4 nor P.W. 5 speak to having witnessed the trespass. The evidence in the case does not establish that plaintiff came into possession of the disputed property, plaint B schedule, at any time. It is true that there is a mortgage of property inclusive of B Schedule. But the mortgagee should have been examined in the circumstances of the case. As observed by the court below, the mere production of the mortgage deed and the release deed when the defendants are admittedly seen to be in possession of the B schedule property would not be sufficient to support the case of the plaintiff as to possession. The evidence of the defendants, and in particular Exts. I, II, VIII and IX indicate that there was a shop in the plaint B schedule property even earlier. In these circumstances the finding of the court below that plaintiff has not proved possession within 12 years of the date of suit must stand. E Now I will come to the question canvassed by counsel as to the applicability of Art.142 of the Indian Limitation Act, 1908 to this case. 5. In these circumstances the finding of the court below that plaintiff has not proved possession within 12 years of the date of suit must stand. E Now I will come to the question canvassed by counsel as to the applicability of Art.142 of the Indian Limitation Act, 1908 to this case. 5. If Art.142 of the Indian Limitation, Act, 1908 would apply to a suit for recovery of possession of immovable property where plaintiff avers that while he was in possession he was dispossessed by the defendant even though plaintiff F also claims title to the suit property then the suit is clearly barred by limitation. But as I said earlier, according to counsel, under such circumstances the article applicable would be Art.144 of the Indian Limitation Act 1908. 6. Art.142 and 144 of the Indian Limitation Act, 1908 run as follows: 142. For possession of immovable property when the plantiff, while in possession of the property has benn disposed or has discontinued the possession. Twelve Years The date of the dispossession or discontinuance 144. For possession of immovable property or any interest therein not here by otherwise specially provided for Twelve Years When the possession of the defendant becomes adverse to the plantiff It is necessary how to refer to the corresponding provisions of the Limitation Act, 1963, though the Act applicable to the suit which is in appeal is the Indian Limitation Act of 1908. Articles 64 and 65 of the Limitation Act, 1963 run as follows: 64. For possession of immovable property based on previous possession and not on title. when the plaintiff while in possession of the property has been dispossessed Twelve years The date of dispossession 65. For possession of immovable property or any interest therein based on title. Twelve When the possession of the defendant becomes adverse to the plaintiff. For possession of immovable property based on previous possession and not on title. when the plaintiff while in possession of the property has been dispossessed Twelve years The date of dispossession 65. For possession of immovable property or any interest therein based on title. Twelve When the possession of the defendant becomes adverse to the plaintiff. Explanation: - For the purposes of this article - (a) where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession: (b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies; (c) where the suit is by a purchaser at a sale in execution of a decree when the judgment debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment debtor who was out of possession." 7. It is necessary to notice that Art.64 of the Limitation Act, 1963 (hereinafter referred to as the new Act) does not in terms correspond to Art.142 of the Indian Limitation Act, 1908. Art.142 does not exclude suits where plaintiff's claim for recovery is based on title. There is no reference in Art.144 also to claim based on title. The scheme of the repealed Act is to provide for cases not covered by the earlier articles relating to recovery of possession of immovable property in Art.144 thereof. In order to attract Art.142 of the repealed Act it is sufficient if the suit is one for possession of immovable property and the plaintiff's case is that he has been dispossessed or that he has discontinued his possession. The plaintiff may claim title as owner, mortgagee or as lessee or his title may merely be one based on prior possession. Art.142 of the repealed Act enables a person who has been dispossessed from suing to recover possession even on the strength of his prior possession. The plaintiff may claim title as owner, mortgagee or as lessee or his title may merely be one based on prior possession. Art.142 of the repealed Act enables a person who has been dispossessed from suing to recover possession even on the strength of his prior possession. Whatever doubts there might have been on this, stand dispelled by the decision of the Supreme Court in Nair Service Society v. K. C. Alexander ( AIR 1968 SC 1165 ). It is true that S.9 of the Specific Relief Act, 1877 provides for a suit by any person dispossessed, without his consent, of immovable property otherwise than in due course of law. Such a person need not show his title to the property to recover possession. The suit for recovery has to be brought within a period of six months from the date of dispossession. It was for the reason that there was already such a provision for a suit based merely upon prior possession and the period of limitation prescribed therefore is one of six months from the date of dispossession that doubts had arisen as to the applicability of Art.142 of the repealed Act to a case where a person sues for recovery of possession not on the strength of his title, but on prior possession. It had been said that if Art.142 is to apply to such cases also, then for a suit for recovery of property based on prior possession there are two periods of limitation provided, one that for a suit under S.9 of the Specific Relief Act, 1877, and the other that provided under Art.142 of the repealed Act. This apparent anomaly had often inspired the contention that Art.142 must be limited to suits where plaintiff claims to recover property not merely on the basis of his prior possession, but also on the basis of his title and also prior possession, while the relief under S.9 of the Specific Relief Act, 1877 is available to cases where plaintiff is able to prove only his prior possession. But the Supreme Court has brought out the essential distinction between the two categories and that appears to be that if the suit is one under S.9 of the Specific Relief Act, 1877, plaintiff will win in the suit irrespective of any proof of a title by the defendant provided the plaintiff is able to show that he has been dispossessed by any process other than the due process of law, while, on the other hand, if it is a suit which is not instituted in accordance with S.9 of the Specific Relief Act, 1877 within six months from the date of dispossession, even if plaintiff proves that he had possession prior to his dispossession, he may not succeed if the defendant is able to show better title than the plaintiff. In such cases, the mere fact of prior possession will not avail against a person who is able to show a better title. In this view it is possible to conceive of categories of cases falling under S.9 of the Specific Relief Act, 1877 and cases which may fall within Art.142 of the repealed Act both being cases on recovery based on prior possession alone. I am referring to this only to understand the decision of the Supreme Court, on which counsel places reliance, in its proper setting. I agree that there is some scope for urging the contention now advanced before me by the appellant's counsel if some of the observations of the court in that case are read out of its context. Every decision has to be understood Secundum subjectam materiam, and so has it to be in the case of the decision of the Supreme Court with which I am concerned here. 8. Before the Supreme Court the dispute was between two parties, both of whom claimed the suit land as their own, though actually the land belonged to the State. Plaintiff claimed to be in possession of 131.23 acres of land for over 70 years. The defendant had obtained a certain extent of land from the State under kuthakapattom lease in 1938. The lease was for 12 years. Plaintiff claimed to be in possession of 131.23 acres of land for over 70 years. The defendant had obtained a certain extent of land from the State under kuthakapattom lease in 1938. The lease was for 12 years. The lessee, no doubt, get possession of the area so leased, but it is the complaint of the plaintiff that the lessee and those under him trespassed upon not only the area leased, but also adjoining areas thereby trespassing into the lands which were in the possession of the plaintiff. The main controversy which arose was whether plaintiff could maintain a suit for possession (the suit was not one under S.9 of the Specific Relief Act, 1877) without proof of title, but based upon his prior possession, and whether the defendant could defend his possession not on the basis of his own title, but that of the State. The C High Court found on both these in favour of the plaintiff and it was the defendant who took up the matter to the Supreme Court. The findings of the High Court on the questions of fact were accepted by the Supreme Court. It was contended before the Supreme Court that a suit for possession in the character of a trespasser was not maintainable. It was the case of the defendant there that a suit will lie t only under S.32 of the Travancore Limitation Regulation VI of 1100 corresponding to S.9 of the Specific Relief Act, 1877. Art.2 of the Travancore Limitation Act 1100 provided a period of six months from the date of dispossession for recovery under S.32 of the Travancore Limitation Regulation. If the dispossession had been by the State which was admittedly the owner of the property no suit would have been maintainable otherwise than under S.9 of the Specific Relief Act 1877; but if the dispossession was by the defendant who had no better title, was a suit for recovery of possession even after the period of six months of dispossession competent ? In such a case the question would be whether a regular suit for possession, without proof of title, but upon the basis of prior possession as a trespasser would be maintainable. In such a case the question would be whether a regular suit for possession, without proof of title, but upon the basis of prior possession as a trespasser would be maintainable. Dealing with this question the Supreme Court said: "The Limitation Act, before its recent amendment provided a period of twelve years as limitation to recover possession of immovable property when the plaintiff, while in possession of the property was dispossessed or had discontinued possession and the period was calculated from the date of dispossession or discontinuance. Mr. Nambiar argues that there cannot be two periods of limitation, namely 6 months and 12 years for suits based on possession alone and that the longer period of limitation requires proof of title by the plaintiff. We do not agree. No doubt there are a few old cases in which this view was expressed but they have since been either overruled or dissented from. The uniform view of the courts is that if S.9 of the Specific Relief Act is utilised the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of 6 months has passed questions of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under S.9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one. The present amended articles 64 and 65 bring out this difference. Art.64 enables a suit within 12 years from dispossession, for possession of immovable property based on possession and not on title when the plaintiff while in possession of the property has been dispossessed. Art.65 is for possession of immovable property or any interest therein based on title. The amendment is not remedial but declaratory of the law. In our judgment the suit was competent." It is the penultimate sentence in this paragraph that has given rise to the controversy raised by counsel before me. 9. I have already explained the scope for different categories of cases, one falling under S.9 of the Specific Relief Act, 1877 and the other a suit for recovery of possession which may fall under Art.142 of the Indian Limitation Act, 1908. 9. I have already explained the scope for different categories of cases, one falling under S.9 of the Specific Relief Act, 1877 and the other a suit for recovery of possession which may fall under Art.142 of the Indian Limitation Act, 1908. Articles 64 and 65 of the Limitation Act. 1963 have been adverted to by me and the difference between these articles and articles 142 and 144 has also been noticed. Art.64 of the new Act expressly excludes cases where, inspite of there being a plea of possession and dispossession, plaintiff bases his case on title. It is therefore apparent that all categories of cases that would fall within Art.142 would not be taken in by Art.64. It excludes cases for recovery of possession based on title from the scope of Art.64. Art.144 of the repealed Act does not expressly refer to suit for recovery of possession based on title. It comprehends all residuary classes of suits for recovery of possession. But Art.65 is limited to cases for recovery of possession of immovable property or any interest therein based on title. When the Supreme Court said: "In other words, the right is only restricted to possession only in a suit under S.9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one."., it is clear that the Supreme Court conceived of cases for recovery of possession which may fall within S.9 of the Specific Relief Act, 1877 and also cases to which Art.142 may be applicable, though in both the claim is based upon prior possession. If the suit was one which was not brought under S.9 of the Specific Relief Act, it could be brought within the time limited under Art.142 only with this difference, that the plaintiff in such a suit is liable to be defeated in his claim for recovery of possession notwithstanding the proof by him of possession prior to dispossession, if the defendant is able to establish better title to the suit property. Therefore the Supreme Court held that in the case before that Court the plaintiff was entitled to recover possession on the strength of his possession prior to trespass so long as the defendant was not able to establish a better title. Therefore the Supreme Court held that in the case before that Court the plaintiff was entitled to recover possession on the strength of his possession prior to trespass so long as the defendant was not able to establish a better title. The Supreme Court said: "The present amended articles 64 and 65 bring out this difference." This sentence is explained in the next sentence as follows: "Art.64 enables a suit within 12 years from dispossession, for possession of immovable property based on possession and not on title, when the plaintiff while in possession of the property has been dispossessed." This is what in terms Art.64 provides for. "Art.65 is for possession of immovable property or any interest therein based on title." This again is only a bare restatement of the provision in that article. The Supreme Court then said: "The amendment is not remedial but declaratory of the law." Counsel for the appellant would read this to mean that Articles 64 and 65 brought I about no change in the scheme of limitation in regard to suits for recovery of possession of immovable property and therefore the position under the repealed Act in regard to recovery of possession of immovable property was the same as that now provided under Articles 64 and 65 of the Limitation Act, 1963. That certainly is not correct. In the context in which the Supreme Court said that the amendment is not remedial but declaratory of the law it is evident that what was meant was that Art.64 which concerned a suit for recovery of possession not based upon title, but prior possession was not a new provision, as it had its corresponding provision in the repealed Act, namely, in Art.142 thereof. The 'amendment' was therefore not intended to remedy any lacuna in regard to the law of limitation for a suit for recovery of possession, based on prior possession and not title, - lacuna there was f none as Art.142 applied to such a case - but was only intended to make the position clear. The case before the Supreme Court in Nair Service Society v. K. C. Alexander ( AIR 1968 SC 1165 ) would have been one to which Art.64 of the Limitation Act, 1963 would have applied if the Limitation Act applicable was that Act. But that was not the case. The case before the Supreme Court in Nair Service Society v. K. C. Alexander ( AIR 1968 SC 1165 ) would have been one to which Art.64 of the Limitation Act, 1963 would have applied if the Limitation Act applicable was that Act. But that was not the case. There is no scope for controversy that the suit with which the Supreme Court was concerned was one for possession of immovable property based on previous possession and not on title, and the plea was that the plaintiff, while in possession of the property, was dispossessed. Art.64 of the Limitation Act provided a period of 12 years from the date of dispossession for such a suit. The question before the Supreme Court was whether under Art.142 of the Indian Limitation Act, 1908 the position was the same, namely, whether when the suit was based not on title but on previous possession as in the case before the Supreme Court, Art.142 would apply. The Supreme Court decided that the position was the same, and that Art.142 need not be read as limited to cases where a claim is based on prior possession and title and that there is no warrant to read such a limitation in the words of Art.142 of the Indian Limitation, Act, 1908. But it must be remembered here that there is no justification to exclude cases where the suit is based on title also (provided the other conditions to attract application of Art.142 exert) from the scope of Art.142 of the Indian Limitation Act, 1908 while that is not the case with the corresponding Art.64 in the Limitation Act, 1963. But that was not the question with which the Supreme Court was concerned in that case. On the question before it the position under the repealed Act of 1908 was the same as that under Art.64 of the new Act and that is why the Supreme Court said that the amendment in Art.64 which made it explicit that previous. I possession can be the basis of a suit under that Article was not a new principle, but one which was covered by Art.142 of the Indian Limitation Act, 1908. That was apparently the reason why the Supreme Court held that the amendment is not remedial but declaratory of the law. I possession can be the basis of a suit under that Article was not a new principle, but one which was covered by Art.142 of the Indian Limitation Act, 1908. That was apparently the reason why the Supreme Court held that the amendment is not remedial but declaratory of the law. That was the only point on which decision was called for in that case and the decision apparently must be read limited to what arose for decision therein. To read these words in the judgment as to understand it as meaning that no change was at all contemplated in regard to the periods for recovery of possession of immovable property which would be convened by Arts.142 and 144 of the Indian Limitation Act, 1908 would according to me, go against the principle of reading a judgment "Secundum, subjectam, materiam". 10. In view of what I have said, I do not think there is any scope for holding that the well settled rule to which I have referred to in the opening paragraph of this judgment requires reconsideration in the light of the Supreme Court decision relied on by counsel. 11. I have already held that on the facts the plaintiff will have to be nonsuited if the law is what it was all along understood to be. I held that it is so. Therefore the appeal has to be dismissed. I do so with costs.