S.B.Sinha, J. : This second appeal arises out of a judgment and decree dated the 30th September, 1980 passed by Shri A.N.K.N. Sinha, 2nd Additional District Judge, Jamshedpur in T.A. No. 11/11 of 1965/80 whereby and whereunder the said learned court affirmed the judgment and decree dated 25.1.1965 passed by Shri Shambhu Nath Sinha, Munsif, Jamshedpur in Title Suit No. 252 of 1962 dismissing the plaintiff appellant’s suit. 2. The facts of the case lie in a very narrow compass. 3. The plaintiff claimed the ownership in respect of the suit land which is a piece of land measuring 20’ X 15’ in plot No. 2573 situate in mouza Sakchi in the town of Jamshedpur. According to the plaintiff the land in suit along with other lands was acquired in terms of the provisions of the Land Acquisition Act. Further according to the plaintiff the defendant No.1 allegedly tress-passed and the land in question by construction a temporary shed thereon. 4. The defendant respondent contested the aforementioned suit, inter alia, contending therein that they being refugees from West Pakistan came in possession of the land in suit in October, 1949 and since then they have been continuing in possession thereof. It has been stated that for a period of more than seven years prior to the date of institution of the suit the defendants respondents who allegedly are partners have been running a hotel in the suit land. The defendants thus claimed that they have perfected their title by prescription being in possession of the suit land for a period of more that 14 years. 5. The trial court dismissed the said suit by holding that the plaintiff had failed to prove possession over the suit land within 12 years prior to the date of institution of the suit. He further found that the defendants have been in possession of the land in suit since 1949 openly and adversely to the interest of plaintiff and thus they have acquired title in respect thereof by prescription. 6. On appeal the learned Subordinate Judge although affirmed the aforementioned judgment and decree passed by the learned Munsif, but held that there was no reliable and positive evidence relating to the possession of defendants respondents over the land in suit. 7. 6. On appeal the learned Subordinate Judge although affirmed the aforementioned judgment and decree passed by the learned Munsif, but held that there was no reliable and positive evidence relating to the possession of defendants respondents over the land in suit. 7. This Court in Second Appeal No. 277 of 1966 in the judgment dated 5.12.1972 was, however, of the opinion that the lower appellate Court had not taken in a consideration the effect in a case where although the plaintiff had title, the evidence of both the parties regarding possession was not reliable This Court, therefore, allowed the appeal and remitted the case to the learned appellate Court for determining the appeal in the light of observations made therein. 8. In terms of the aforementioned order of remand the learned lower appellate Court heard the parties and thereafter the impugned judgment dated the 30th September, 1980 was passed. 9. The learned lower appellate court upon taking into consideration the evidences on record both oral and documentary came to the conclusion that the plaintiff has not been able to prove its possession within 12 years from the date of institution of the suit. 10. It further found that the defendants have not been able to prove acquisition of title by their adverse possession. The learned lower appellate Court, therefore, dismissed the said appeal. 11. By an order dated 3.5.1986 at the time of admission this Court formulated the following substantial question of law for consideration in this appeal:- “In view of the fact that the court below in paragraph 6 to the judgment recorded a finding that the appellant acquired title in the property when it was acquired under the provision of the Land Acquisition Act, whether the suit could have been dismissed when the court below recorded a finding that the respondent have failed to prove their case of adverse possession, in other words, whether the suit on the basis of the title recorded in favour of the title appellant, the court below ought to have decreed the suit when the defendants failed to prove that they acquired title by adverse possession?” 12. Mr. Devi Prasad, the learned counsel appearing on behalf of the appellant raised two questions in support of this appeal. Mr. Devi Prasad, the learned counsel appearing on behalf of the appellant raised two questions in support of this appeal. He firstly contended that in view of the fact that the learned lower appellate court has disposed of the appeal after coming into force of the Limitation Act, 1963, the provision of Articles 64 and 65 of the New Limitation Act, would apply in the instant case and not old Articles 142 and 144 of the Limitation Act, 1908. The learned counsel further submitted that in any event in view of the fact that the land in question was recorded as ‘Anabad Malik” the question of acquiring title by adverse possession in respect of the suit land does not and cannot arise as the said land was not capable of being actually and physically possessed by cultivation or other wise The learned counsel in support of his first contention relied upon the decision in Mani Devi and others vs. Ram Prasad and others, and in Lalit Mohan vs. Smt. Kshirodeswari Das and Anr. 13. The learned counsel in support of his second contention relied upon the cases in Jaldhari Mahto and others vs. Rajendra Singh and others and Thakur Dayal Rai and others vs. Bishundeo Rai and others for the proposition that in respect of waste lands it is not possible to possess the same physically by cultivating etc. and in that view of the matter the defendants could not have acquired title by adverse possession. 14. The first contention raised on behalf of the appellant, in my opinion, is wholly misconceived. 15. It is admitted that the suit was instituted in the year 1962 i.e. prior to coming into force of the Limitation Act, 1963. 16. In this view of the matter it is evident that the Indian Limitation Act, 1908 was applicable as on the date of institution of the suit. 17. Section 31 of the Limitation Act, 1963 reads as follows :- “31. Provision as to barred or pending suit, etc. Nothing in this Act, shall- (a) enable any suit, appeal or application to be instituted, preferred or made for which the period of Limitation prescribed by the Indian Limitation Act, 1908, expired before the commencement of this Act; or (b) affect any suit, appeal or application instituted preferred or made before, and pending at, such commencement.” 18. Nothing in this Act, shall- (a) enable any suit, appeal or application to be instituted, preferred or made for which the period of Limitation prescribed by the Indian Limitation Act, 1908, expired before the commencement of this Act; or (b) affect any suit, appeal or application instituted preferred or made before, and pending at, such commencement.” 18. From a plain reading of the aforementioned provision it is evident that the provision of the Limitation Act, 1963 would not have any application whatsoever in respect of any suit, appeal or application instituted, preferred or made before and pending at the commencement of the said Act. It is further evident that if the suit of the plaintiff had become barred by limitation or in other words if the suit of the plaintiff was liable to be dismissed in view of the provision contained in the Indian Limitation Act, 1963, would not enable the person to maintain a suit. 19. Section 31(a) of the Limitation Act, 1963, therefore, clearly bars the application of the provision of the later enactment for institution of any suit if the period of Limitation prescribed under the Act, expired before the commencement of the said Act. The provisions of the new Limitation Act, therefore, are applicable only to cases where the right to sue under the provision of the old Limitation Act, has not became barred on the date when the New Act, came into force. 20. In any event in view of section 31(b) of the Limitation Act, 1963 evidently the suit having been instituted in the year 1962 would be governed by the provisions of the Old Limitation Act, and the new Limitation Act, will have no application in relation to this suit. 21. The decisions cited by the learned counsel evidently have no application in the facts and circumstances of this case. 22. In Mani Devi vs. Ram Prasad, (supra) it has been held by a Division Bench of this Court that if a suit was barred before the commencement of the new Limitation Act, section 31 would not apply. 23. This question in on longer res integra. 22. In Mani Devi vs. Ram Prasad, (supra) it has been held by a Division Bench of this Court that if a suit was barred before the commencement of the new Limitation Act, section 31 would not apply. 23. This question in on longer res integra. In Rameshray Roy and others vs. Pashupati Kumar Pathak, this Court held as follows:- “Section 31 of the New Limitation Act, 1963 may not however apply in the present case Clause (b) of Section application which may be pending at the commencement of that Act, will not be affected by the provisions of that Act. The new Limitation Act, came into force on the Ist January, 1964, but the pauper application of the first party opposite parties was then pending and it was disposed of only on the 18th January, 1964. Hence, the law to be applied in respect of the said pauper application is the law as it stood under the provision of old Limitation Act, of 1908 and not the New Law.” 24. In the Southern India Education Trust vs. M.S. Jagadambal a Division Bench of the Madras High Court repelled a similar contention and held that a suit which was filed before the coming into force of the Limitation Act, 1963, the same will be governed by Articles 142 & 144 of the Limitation Act, and not by Articles 64 & 65 of the New Limitation Act, in view of section 31 thereof. It was held:- “The provisions of the new Act, cannot be construed as to take away the vested right of a defendant to raise a defence based in Article 142 of the Old Act.” 25. Similarly in Surajmal vs. Manjilal and another, held as follows:- “Nothing really turns on the long title. The Limitation Act, 1908 was also as its long title states, was an Act, to consolidate and amend the law relating to the limitation of suits. The Objects and Reasons of the Limitation Act, 1908 have given rise to a good deal of confusion with respects to suits for possession by owners of property”. It was therefore, proposed to replace Article 142 by Article 64, but it is restricted to suits based on possessory title so that an owner of property does not lose his right to property unless the defendant in possession is able to prove the adverse possession. It was therefore, proposed to replace Article 142 by Article 64, but it is restricted to suits based on possessory title so that an owner of property does not lose his right to property unless the defendant in possession is able to prove the adverse possession. They further stated that Article 65 is New and deals with suits based on title. Merely because Article 64 of the New Act, was now restricted to suits based on possessory title that would not in our mind, curtail the ambit of Article 142 of the Old Act.” 26. True it is that in a case where a land in suit is a waste land or Jungle land and thus is incapable of being actually and physically possessed, the question of proving actual possession by the owner in relation thereto within 12 years from the date of institution of the suit will not arise. 27. However, in the instant case the learned lower appellate court has discussed this aspect of the matter and in my opinion it has rightly considered the effect of the decisions cited by Mr. Prasad, After distinguishing the decisions cited i.e. Jaldhari Mahto and others vs. Rajendra Singh and others, (supra) and Thakur Dayal vs. Bishundeo Rai and others, (supra) the learned lower appellate court clearly held as follows:- “There is thus good evidence to show that the nature and character of the land which at one point of time was raiyati underwent a radical change and the entire locality in which the suit land is situate came to acquire and Urban complexion, so much so, that hotels and houses sprang up in the area. That being so, the suit land can hardly be characterised as being land of such a peculiar nature that the evidence of actual user and enjoyment in the ordinary manner cannot be expected.” 28. That being so, the suit land can hardly be characterised as being land of such a peculiar nature that the evidence of actual user and enjoyment in the ordinary manner cannot be expected.” 28. In fact the distinction has clearly been made out by the Full Bench itself in Jaldhari Mahto and others vs. Rajendra Singh and others, (supra) where Kanhaiya Singh, J. stated the law in the following terms:- “A review of the aforesaid cases shows that the presumption of possession arising from title is not available where the land is capable of actual possession by cultivation or otherwise, and there is no evidence of possession or the evidence adduced is unworthy of the credit, But this presumption is available in all cases (I) where the evidence is not equally strong and apparently equally well-balanced on both sides so that it is difficult to determine where the truth lies; (2) where the evidence on both sides is weak or unsatisfactory, but no value less or wholly incredible; (3) where the land is of such a peculiar nature that the evidence of actual user and enjoyment in the ordinary manner could hardly be expected e.g. lands which are waste, jungle, parti, gora-submerged under water or any other kind of land incapable of cultivation. To this extent the general rule laid down by the Full Bench in the case of Raja Shiva Prasad Singh (E) must be deemed to be modified and in such cases, the plaintiff can succeed on the strength of his title alone.” 29. In Thakur Dayal Rai vs. Bishundeo Rai and others, (supra) no new law has been laid down and therein the full Bench decision was followed. 30. In view of the fact that in the facts and circumstances of this case the lands in suit was capable of actually and physically possessed and in fact was being possessed by the defendants in the manner as has been found by the learned courts below, in my pinion, the decisions cited by the learned counsel have no application in the instant case. 31. The question as to whether the provision of Articles 142 and 144 of the old Limitation Act, would apply or Articles 64 and 65 of the new Limitation Act. In my opinion, is also no longer res integra. 32. Articles 64 and 65 of the Limitation Act, 1963 read as follows:- “64. 31. The question as to whether the provision of Articles 142 and 144 of the old Limitation Act, would apply or Articles 64 and 65 of the new Limitation Act. In my opinion, is also no longer res integra. 32. Articles 64 and 65 of the Limitation Act, 1963 read as follows:- “64. For possession 12 years The date of immovable property of dispossession based on previous possession and not on title. When the plaintiff while in possession of the property has been dispossessed. 65. For possession 12 years When the of immovable property possession of the or any interest therein defendant becomes adverse to the plaintiff.” based on title. 33. Articles 142 and 144 of the Old Limitation Act, are as follow :- “142 for possession of immovable property 12 years of the date of the when the plaintiff while in possession of the dispossession or discontinue property, has been dispossessed or has discontinued the possession. 144 for possession of immovable property or 12 years when the possession of any interest therein not hereby otherwise specially defendant become adverse to the provided for. Plaintiff.” 34. From a plain reading of the aforementioned provisions, in my opinion, there is no doubt that Articles 64 and 65 of the Limitation Act, have brought about substantive change in the law. In a case where the plaintiff based his case on title and also prayed for recovery of possession the suit would be governed by Article 142 of the Old Limitation Act. The change in the law can clearly been spelt out from a comparison of the language used therein in the provisions of Articles 142 and 144 of the Old Limitation Act, with the provisions of Articles 64 and 65 of the New Limitation Act. 35. In terms of Articles 64 and 65 of the New Limitation Act, the burden of proof has been cases upon a person who asserts that he has acquired title by adverse possession; whereas under the Old Limitation Act, the plaintiff was required not only to prove title but was to prove the fact that he had been in possession of the land in suit within 12 years from the date of institution thereof. This aspect of the matter has been dealt with by a Division Bench of this Court in Rameswarup Singh Vs. Badri Nr. Singh. This aspect of the matter has been dealt with by a Division Bench of this Court in Rameswarup Singh Vs. Badri Nr. Singh. B.P. Jha, J. in the aforementioned judgment stated the law in the following terms:- ‘If any person, brings a suit for possession over immovable property or interest therein on the basis of the title the plaintiff is required to prove the title only. There is vital difference between Article 65 and Article 142 of the Limitation Act, of 1908. Under Article 142 of the Limitation Act, the plaintiff was required to prove the title and was also required to prove possession for 12 years. The plaintiff was also required to file suit within 11 years from the date of possession. In other words, the plaintiff was required to prove title and possession for 12 years from the date of dispossession. The change which has been brought about by Article 65 is that the plaintiff is required to prove only title and not possession. 36. In the view of the aforementioned decision of this High Court which is binding upon me it is not possible to agree with the learned Single Judge of the Calcutta High Court in Lalit Mohan’s case(Supra). 37. From a perusal of the said judgment it appears that the learned judge proceeded on the basis that the amendment sought to be effected by the new Act, was not remedial but was declaratory in nature. 38. With utmost respect to the learned Judge I am not in a position to persuade myself to hold the said view. 39. From the difference in language used in Articles 142 and 144 of the Limitation Act, vis a vis Articles 64 and 65 of the new Limitation Act, it is clear that the aforementioned provisions in the new Limitation Act, were introduced by way of a remedial measure and not by way of a declaratory law. 40. 39. From the difference in language used in Articles 142 and 144 of the Limitation Act, vis a vis Articles 64 and 65 of the new Limitation Act, it is clear that the aforementioned provisions in the new Limitation Act, were introduced by way of a remedial measure and not by way of a declaratory law. 40. Prior to coming into force of the new Limitation Act, 1963 various High Courts of India as also the Judicial Committee held that in terms of Articles 142 and 144 of the Indian Limitation Act, 1908 the plaintiff suing on the basis of the title but also praying for a decree of recovery of possession and thus admitting he is not in possession of the property in question, was required to prove not only his title but also his possession within 12 years from the date of the institution of the suit. This law as interpreted by various Courts, would be deemed to be known to the Parliament which upon taking into consideration the same must be held to have altered the phraseology used in the corresponding Articles of the Schedule appended to the Limitation Act, 1963, so as to make a change in the law in order to suppress the mischief. The history of the legislation, the various decisions of this country and the change in the language in the subsequent legislation, in my opinion, are pointer to the fact that the parliament intended to bring about a change in the law as it was existing thence. This aspect of the matter has also been considered by the Madras High Court and the Rajasthan High Court and The Rajasthan High Court, in the decisions referred to hereinbefore i.e. AIR 1972 Madras 162 and AIR 1978 Rajasthan 22. I respectfully agree with the said view. 41. In this view of the matter, in my opinion, the learned lower appellate court although held that the defendants have not been able to prove their title by adverse possession but rightly came to the conclusion that in view of the fact the plaintiff failed to prove it possession within 12 years from the date of institution of the suit, the same was liable to be dismissed. 42. In this view of the matter there is no merit in this appeal which is accordingly dismissed with costs. Appeal dismissed.