( 1 ) THE plaintiff is the appellant in this second appeal. He has filed this appeal against the judgment and decree dated 15-4-1972 parsed by the principal Civil Judge, Shimoga in R. A. No. 159 of 1969 dismissing his appeal filed againrt the judgment and decree dated 7-11-1969 passed by the Munsiff, Sagar in OS. No. 232 of 1962 dismissing the suit which was brought by him agjainrt the defendant for a declaration of title and recovery of possession of the suit schedule property with past and future mesne profits and costs. ( 2 ) THE few facts relevant for the disposal of this appeal may be stated under : the plaintiff's case is that the plaint schedule property consisting of a house and back-yard is the trust property of the Humcha Sri Jain Mutt of which the plaintiff is the present Swamiji. The defendant father was an employee of the said Mutt. He was allowed to ure a portion of the suit house by the plaintiff's guru as he was helping the Bhaktas, pilgrims and agents to stay in the suit house during their visit to the Mutt. Though the suit property was exempt from payment of kandayam, kandayam was levied on it and the defendant's father was directed to pay kandayam on the suit property. The plaintiff's guru gave possesrion of the suit property to the defendant's father on condition that he should do all the work for the mult as he was doing earlier and also pay the kandayam on the suit property. The plaintiff, after he became the Swamiji of the Mutt, allowed the defendant's father to live in the ruit house on the same conditions on which he was allowed to stay in the suit house by the plaintiff's guru. The defendant was also having a small shop in the suit house. After the death of the defendant's father, the defendant has continued to be in possession of the suit schedule property as, a licensee on the same conditions under which his father was put in possession of it. Of late, the defendant started harassing the pilgrims who used to stay in the suit house during their visit to the Mutt and also started flouting the words of the authorities of the mutt. Of late, the defendant started harassing the pilgrims who used to stay in the suit house during their visit to the Mutt and also started flouting the words of the authorities of the mutt. Hence, the plaintiff got issued, a notice on 1-10-1961 calling upon the defendant to hand over possession of the suit property to the Mutt. The defendant sent a reply dated 18-10-1961 in which he denied the plaintiff's title to the suit property. Hence the suit. ( 3 ) THE defendant resided the suit on the following grounds : he was not aware that his father was working as an employee of the mutt. He denied that the ruit property belonged to the Mutt. The suit house was got built by has grand-father in the year 1916. Since then the defendant and his ancestors have been in possession and enjoyment of the suit house in their own right. He denied that his father war in possession of the suit property ar a licensee. The plaintiff, after he was elevated to the Gadi of the Mutt got issued, a notice to the defendant's father on 7-12-1949 to which a reply was sent by his father on 16-12-1949 in which his father had denied the plaintiff's title to the suit property. The defendant and his ancestors were in possession of the suit property for over 12 years even during the time of the plaintiff's Guru adverse to the interests, of the Mutt in their own right and as such the defendant had perfected his title to the suit property by adverse possession. Even after the plaintiff was installed to 'gadi', the defendant and his ancestors have been in possession and enjoyment of the suit property for over 12 yearsi denying the title of the plaintiff and as such the defendant has perfected his title by adverse possession against the plaintiff. The suit property was not in the possession of either the plaintiff or his'predecessors in their own right for 12 years before the suit. On the other hand, the defendant and his predecessors have been in possession of it in their own right. Hence, the suit is barred by limitation. The defendant's grand-father Javali Veerappa built the suit house out of his own income. He has denied that the suit property was built either by the plaintiff or his predecessors. On the other hand, the defendant and his predecessors have been in possession of it in their own right. Hence, the suit is barred by limitation. The defendant's grand-father Javali Veerappa built the suit house out of his own income. He has denied that the suit property was built either by the plaintiff or his predecessors. After the death of his father, the defendant has spent Rs. 3,000 to effect repairs to the suit house. On these grounds the defendant prayed for the dismissal of the suit. ( 4 ) IN the reply filed by the plaintiff, the plaintiff contended that the defendant and his predecessors, being licensees, were estopped from denying the title of the plaintiff unless they surrender possession of the property. Besides, the suit property being an endowment, viz. , trust property of the mutt, there could not be any Acquisition of right by adverse possession. ( 5 ) THE learned Munsiff, on consideration of the evidence adduced in the case, dismissed the suit as per his judgment dated 7-11-1969 On the main ground that the suit was brought beyond time. ( 6 ) THE plaintiff took up the matter in appeal before the Principal civil Judge, Shimoga in, RA. No. 159 of 1969. The learned Principal Civil judge dismissed the appeal as per his judgment dated 15-4-1972. It is the correctness and legality of the findings of the two Courts below that is challenged in this second appeal. ( 7 ) THE short point involved for decision in this second appeal is whether the plaintiff's suit for possession of the suit schedule property was barred by time. The case of the respondent in the trial court was that he was in adverse possession and the appellant had been out of possession of the suit schedule property for over 12 years before the suit was filed in the year 1962 and therefore, the suit was barred under Art. 144 as well as under Art. 142 of the Indian Limitation Act, 1908 (shortly called the 'act' ). The trial court has held on the facts of thecase that the suit brought by the plaintiff was barred under Art. 142 of the Act whereas the first appellate court reached the conclusion that the suit brought by the plaintiff was bailed by time under Art. 144 of the Act. The trial court has held on the facts of thecase that the suit brought by the plaintiff was barred under Art. 142 of the Act whereas the first appellate court reached the conclusion that the suit brought by the plaintiff was bailed by time under Art. 144 of the Act. Whether Art. 142 or Art. 144 would apply to a given cafe depends upon the facts of each case though the result of the application of both the Articles would be disastrous to the plaintiff's interests, the result being dismissal of the suit. ( 8 ) THE decisions dealing with the scope and application of Art. 142 and 144 of the Act are legion. In Ramlal v. Chetu, AIR. 1958 Pun. 335, the Punjab High court, dealing with the scope of Arts. 142 and 144 of the Act applicable to a case between, a landlord and tenant, observed as follows :" If posssesion is permissive and not antagonistic to the owner, it cannot ripen into title by mere possession. Thus the possession of a tenant is that of his landlord and will be so presumed until the contrary is proved by clear and convincing evidence, for every presumption is in favour of possession in subordination to the true owner. Although possession of a tenant, however full and complete, does not of itself operate a$ an ouster of the owner, the mere fact that a person enters as a tenant does npt preclude him from acquiring title against his landlord by adverse possession. It can operate as an ouster if he abandons the idea of holding as a tenant and sets up and asserts an exclusive right in himself. He must either give notice of his claim or his possession should be accompanied by some overt act asserting an ownership of such an open, notorious and hostile character as not to be easily misunderstood. The fact that a tenant continuej to retain possession of the property after the expiry of the lease or the fact that he fails or refused to pay the rent is not sufficient to show that he holds adversely to the landlord unless he actually sets up an exclusive right in himself by some clear positive and unequivocal act. The fact that a tenant continuej to retain possession of the property after the expiry of the lease or the fact that he fails or refused to pay the rent is not sufficient to show that he holds adversely to the landlord unless he actually sets up an exclusive right in himself by some clear positive and unequivocal act. Limitation begins to run when the possession of the tenant becomes adverse to that of the owner i. e. , when the acts of the tenant are of such a character as to show that he claims exclusive ownership and denies the rights of the owner. Mere declarations] are not enough. "in lingamma v. Putte Gowdat, AIR. 1963 Mys. 1=1962 Myslj. 752, FB, this Court dealing with the scope of art. 142 of the Act, in respect of a suit for possession based on title held as follows :" The plaintiff, who files a suit for possession, has to prove not only his title to the suit property but also his possession of the same within 12 years from the date of the suit. A case, in which it is proved that the plaintiff or hia predecessor has not been in possession at all, is governed by Art. 142, not Art. 144. The plaintiff who seeks to eject persons from immoveable property claimed by him On the ground that although they entered into such property a,s tenants, were in wrongful possession thereof, but fails to prove his allegations, has to establish his possession within 12 years from the date of the suit; otherwise, the suit should be dismissed. Every suit for possession based on title attracts to itself the mischief of Art. 142. If a person having title to the property sues for possession of the suit property on the allegation that the defendant was his tenant but fail to establish the tenancy pleaded, then it follows that he must have either been dispossessed or that he had discontinue his possession prior to suit. Where a plaintiff pleads permissive possession and the defendant admits his possession in either case the defendant's possession being admitted), if the plaintiff fails to establish ms case then it follows that the defendants possession was without the consent of the plaintiff. From the time the defendant holds the property without the consent of the plaintiff, the plaintiff must be deemed to have been dispossessed. From the time the defendant holds the property without the consent of the plaintiff, the plaintiff must be deemed to have been dispossessed. In such a case, law requires the plaintiff to establish that he was in possession of the suit property within 12 years from the date of the suit, otherwise, his rights get barred under Article 142. When the plaintiff's allegation that the defendant was in permissive possession of the suit property id not established, the allegation in question amounts to an admission of discontinuance of plaintiff's possession and therefore, his case falls under Art. 142. "note: As paraphrased in pages 1, 2 and 4 of the Head Note. The Assam and Nagaland High Courts in eastern Food Products (P) ltd v. Rabia Busad, AIR. 1971 A and N. 140, hag held that where the plaintiff is out of possession of the land a,nd failed to prove permissive character of defendants possession and the defendant asserts adverse possession the plaintiff, in order to succeed must establish his possession within 12 years prior to the institution of the suit. This is what Chief Justice Goswami, who rendered the decision has observed at page 142:" This was a case where the plaintiffs are admittedly not in possession of the land. In, that view Of the master, whether the defendants claimed adverse possession or not, at any rate, it is clearly established that the plaintiff's possession Over the land! has been discontinued. On the top of that, it has been clearly averted in the written statements, that the defendants' fore-fathers dispossessed the garden authorities by force. No more specific allegation than this is necessary to make an averment under Article 142 of the old Limitation act. It is therefore, clearly a case, which falls under Article 142. That being the position, it was incumbent on the plaintiffs to establish, that they were in possession of the land within twelve years piior to the institution of the suits. On this point, the learned Subordinate judge has come to a categorical finding that the plaintiffs could not prove their possession within twelve years. This again is a finding of fact which cannot be interfered with in a second appeal. "note: The decision of this Court in Lingamma v. Putte Gowda (2), was relied on. The Supreme Court in kesar Singh v. Balwant Singh, AIR. 1967 SC. This again is a finding of fact which cannot be interfered with in a second appeal. "note: The decision of this Court in Lingamma v. Putte Gowda (2), was relied on. The Supreme Court in kesar Singh v. Balwant Singh, AIR. 1967 SC. 487, has held that if the defendant's possession of the property of which the plaintiff was the owner was permissive, Article 142 would not apply. In Such a case, the defendant could only succeed if he could prove his adverse possession for over 12 years. . ( 9 ) THE case of the plaintiff was that he was the owner of the suit schedule property. The possession of the defendant 'and his ancestors was a permissive possession as licensees since they were put in possession of the Suit schedule property on condition that they should perform certain duties towards the pilgrims who visit the Mutt and to pay the kandayam on the suit property. Both the Courts below, on consideration of the evidence adduced in the case, recorded a concurrent finding that the Pltff bas failed to prove that the, defendant and his ancestors were in possession of the suit property as licensees and that their possession was permissive, which finding being a finding of fact, cannot be gone into in this second appeal. Admittedly, the plaintiff was not in possession of the suit schedule property, in other words he was out of possession. He brought the suit for possession on the basis of his title as the Swamiji of the Mutt to which the suit property belonged for ejectment of the defendant on the giound that the defendant started denying his title and as such he did not want to keep him in possession of the suit property. The fact that the plaintiff has failed to prove the perjnissive character of possession Of the defendant, in other words, the defendant's possession is that of a licensee, would clearly establish that the plaintiff has been dispossessed or has discontinued his possession of the suit schedule property. The plainltiff must establish his possession within 12 years prior to the institution of the suit before he could successfully maintain his suit for possession. The plainltiff must establish his possession within 12 years prior to the institution of the suit before he could successfully maintain his suit for possession. The evidence adduced in the case would clearly go to show that the defendant and his ancestors were in possession of - the suit property continuously for over 50 years since the time of Javali Veerappa, the grand-father of the defendant. In, other words, the plaintiff has not proved that He was in possession of the suit property within 12 years before he filed the suit which was on 10-7-62. In that view of the matter , it seems to me that the finding recorded by the learned trial Judge that the suit brought by the plaintiff was barred under Article 142 cannot be assailed. ( 10 ) EVEN otherwise, it seems to me that the suit brought by the plaintiff was unsustainable as it was barred under Art. 144 as found by the first appellate Court. Admittedly the defendant's father Javali Seenappa and his grand-father Javali Veerappa were in possession of the suit property even Before the plaintiff became the Swamiji of the Mutt. It is the evidence of the plaintiff as PW. 9 that he assumed the order of sanyasi of Humcha Jain Mutt in the year 1947. After he became the swamiji of the Mutt, he prepared a list of properties owned by the Mutt and asked everyone of the occupants of the houses belonging to the Mutt to execute lease deeds in favour of the Mutt. Some of them executed the lease deeds in favour of the Mutt. However, the defendant's father neither executed the lease deed nor vacated the suit schedule property. Thereupon, the plaintiff got issued a notice as per Ext. D-1 d| 7-12-49 calling upon the defendant's, father to execute a lease deed. The defendant's father sent a reply as perl Exhibit D-2 d/16-12-49 in clear and unequivocal terms denying the title of the plaintiff in respect of the suit property. Besides, he set up a title in himself adverse to the interest of the plaintiff as claimed by the plaintiff in his notice Ext. D-1. Even assuming for the sake of argument but not conceding, that the possession of the defendant and his ancestors was permissive as licensees, it seems to me that the attitude of the defendant's father proclaimed through his reply notice Ext. D-1. Even assuming for the sake of argument but not conceding, that the possession of the defendant and his ancestors was permissive as licensees, it seems to me that the attitude of the defendant's father proclaimed through his reply notice Ext. D-2 dated 16-12-49 would go to show that he wag holding the suit property adversely to the knowledge of the plaintiff and the Mutt and had actually set up an exclusive right in him elf and as such, limitation would begin to run from the date of Ext. D-2. Merely because the defendant and his ancestors were paying kandayam in respect of the suit property to the khata of the Mutt, would not help the plaintiff to contend that the defendant and his ancestors were recognising the plaintiff as the owner of the suit property in spite of his reply notice Ext. D-2. On the other hand, the evidence adduced in the case would clearly go to show that the defendant and his father ever since the reply notice Ext. D-2 were holding the Suit property in their own right adverse to the right, title and interest of the plaintiff till the suit was instituted by the plaintiff on 10-7-62, by which date, the defendant and his father had perfected their title to the suit property by adverse possession. In, that view of the matter, the finding recorded by the first appellate Court that the suit was barred under Art. 144 should also hold the field. In either way, the suit must fail. ( 11 ) IN the result, for the reasons aforesaid, I see no merit in this appeal. Accordingly, the appeal is dismissed with costs. Advocate's fee is fixed at Rs. 100. --- *** --- .