ORAL ORDER 1. The substantial questions of law involved and to be answered in this appeal are as under:- "1. Whether both the courts below were justified in dismissing the plaintiff's suit on the ground that relief of declaration has not been claimed whereas suit for possession filed by the plaintiff was based on title ? 2. Whether findings of both the courts below that the suit is barred by limitation is perverse ?" 2. In order to answer the substantial questions of law following facts in nutshell are required to be noticed as under:- [For sake of convenience, the parties shall be referred to according to their array in the suit] 2.1 That, plaintiff - Shyam Bai was the daughter of Samaru out of the wedlock with Panchobai (who died during pendency of the suit). Defendant No.2 - Prem Umar is the son of Pancho Bai out of her wedlock with Sakharam. After the death of Samaru, plaintiff - Shyam Bai being the daughter of Samaru filed a suit for possession of the scheduled suit land based on title from the defendants namely Pancho Bai (since deceased) and Prem Umar. 2.2 The defendants, by filing written statement, resisted the suit stating inter alia that the suit property was purchased by late Sumaru out of the income of the property of defendant Prem Umar and his brother and thus, the property was joint property of deceased Samaru and defendant No. 2. After the death of Samaru, suit property was partitioned on 12.7.1984 and the revenue records were mutated accordingly and the appeal filed by the plaintiff before the higher forum was remained unsuccessful and thus, the suit deserves to be dismissed. 3. The trial Court, by its judgment and decree dated 15.1.2000 passed in Civil Suit No. 216-A/94, dismissed the suit finding inter alia that the part of the suit land bearing Khasra No. 603/2, area 1.37 acre was purchased by the plaintiff's father Samaru by registered sale dated 16.03.1950 from one Gadaram and it stands proved and it has not been proved that the property has been purchased from the sale proceeds. It is further held the suit for bare declaration of title is not maintainable in absence of seeking relief of possession as well as the suit is barred by limitation. 4. The plaintiff preferred first appeal there against. It is further held the suit for bare declaration of title is not maintainable in absence of seeking relief of possession as well as the suit is barred by limitation. 4. The plaintiff preferred first appeal there against. The first appellate Court by its judgment & decree dated 31.01.2002 passed in Civil Appeal No. 27-A/2000, has dismissed the appeal holding that as per revenue records name of defendant Prem Umar has been recorded since 1971 and the suit was filed in the year 1973 was apparently barred by limitation. 5. Feeling aggrieved and dissatisfied with the judgment and decree passed by both the courts below, instant second appeal under Section 100 of the CPC has been filed. 6. Shri Indrasen Sahu, learned counsel appearing for the appellant/plaintiff would submit that the findings recorded by both the courts below that a suit for bare declaration of title is not maintainable in absece of seeking relief of possession. He would further submit that finding of both the courts below that suit is barred by limitation is bad in law as by virtue of Article 65 of the Limitation Act period of limitation commences only after possession of defendant become adverse to the plaintiff. 7. Replying to the contention so made, Shri Anil Kumar Pandey, learned counsel appearing for defendant No.1 would submit that both the courts below have rightly held the suit is barred by limitation. He would further submit that in absence of relief of declaration, suit for possession based on title was not maintainable. 8. I have heard learned counsel appearing for the parties and perused the records of both the courts below. Answer to substantial question of law No. 1 9. A close reading of the plaint averment would show that plaintiff Shyam Bai has filed a suit for possession based on title. The plaintiff has clearly pleaded, in his plaint, that the suit property was owned by her father Samaru and being the daughter of Samaru, she and widow of Samaru - Pancho Bai (deceased) have inherited the property but as the Samaru has purchased the suit property vide Exs. P-1 & P-2 from one Gadaram, they are in joint possession of the suit property but in the year 1985, defendants No. 1 & 2 dispossessed her from the scheduled suit land and, therefore, she is entitled for possession of the suit property. P-1 & P-2 from one Gadaram, they are in joint possession of the suit property but in the year 1985, defendants No. 1 & 2 dispossessed her from the scheduled suit land and, therefore, she is entitled for possession of the suit property. Thus, it is absolutely clear from the plaint averment that the suit is for the possession of the scheduled suit property based on title, as the plaintiff has asserted his title on the strength of two sale deeds vide Ex.P1 and Ex.P-2 and thereby not claimed declaration of title in the suit. 10. The Supreme Court in case of Anathula Sudhakar Vs. P. Buchi Reddy (DEAD) BY LRS. and others (2008) 4 SCC 594 , has clearly held that plaintiff having a title can file a suit for possession only without seeking a relief of declaration. Para 14 of the report as under:- "14. We may, however, clarify that a prayer for declaration will be necessary only if the denial" of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A could is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy ; to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any claim to tile or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration." 11. This view has been approved and followed by the Supreme Court in case of Kurella Naga Druva Vudaya Bhaskara Rao Vs. Galla Joni Kamma Alia Nacharamma (2008) 15 SCC 150 , has held that seeking of relief of declaration of title is not necessary where defendant did not claim title with reference to any document but claimed to have perfected his title by way of adverse possession. Para 16 of the report as under:- "16. The plaintiff had purchased the suit land under registered sale deed dated 10.4.1957. Para 16 of the report as under:- "16. The plaintiff had purchased the suit land under registered sale deed dated 10.4.1957. The defendant did not claim title with reference to any document but claimed to have perfected title by adverse possession. A mere claim by the defendant that he had perfected his title by adverse possession, does not mean that a cloud is raised over the plaintiff's title and that the plaintiff who is the owner, should file a suit of declaration of title. Unless the defendant raises a serious cloud over the title of the plaintiff, there is no need to file a suit for declaration. The plaintiff had title and she only wanted possession and therefore a suit for possession was maintainable." 12. Accordingly, it is held that in the instant suit filed by the plaintiff based on title seeking of relief of declaration of title was not a necessary as plaintiff has claimed title on the basis of sale deeds dated 03.06.1949 vide Ex.P-1 & Ex.P-2 and no plea of adverse possession has been raised by defendant and, thus, omission to claim the relief of declaration of title would not disentitle the plaintiff to decree for possession based on title if she is otherwise entitled. Accordingly, the substantial question of law is answered. Answer to substantial question of law No.2 13. Both the courts below have concurrently held that the plaintiff's suit was barred by limitation. According to the plaint averment, cause of action arose in the month of June, 1985 when the defendants No. 1 & 2 dispossessed the plaintiff and suit came to be file on 30.6.1993. 14. The defendant, in his written statement, though denied the plaint averment and simply raises a defence that suit is barred by limitation and without specifying as to how the suit is barred by limitation and that is the reason why the trial Court did not frame an issue on the question of limitation. 15. The question of limitation is a mixed question of law and facts, which has to be decided by the trial Court after framing issues in this regard and after recording evidence thereupon. 16. Article 142 of the Schedule under Indian Limitation Act, 1908 reads as under :- "142 For possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession. 16. Article 142 of the Schedule under Indian Limitation Act, 1908 reads as under :- "142 For possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession. Twelve years The date of the dis-possession or discontinuance." 17. But there is change in law under the new Limitation Act, 1963, which came into force on 5th October, 1963. Corresponding Article in the Schedule under the new Act is Article 65, which is extracted hereunder: “65 For possession of immovable property or any interest therein based on title Twelve years When the possession of the defendant becomes adverse to the plaintiff." 18. From the above, it is seen that under the old Limitation Act, the period of limitation commences from the date of dispossession or discontinuance of the possession by the plaintiff, whereas under the new Act, the period of limitation commences only after the possession of the defendant becomes adverse to the plaintiff. If that is so, the question "that falls for consideration would be "when the possession of the defendant became adverse to the plaintiff." 19. The Supreme Court in case of Indira Vs. Arumugam and another AIR 1999 SC 1549 has held that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff suit cannot be dismissed. Para 5 of the report as under:- "5. It is, therefore, obvious that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. Unfortunately, this aspect of the matter was missed by the learned Judge and, therefore, the entire reasoning for disposing of the Second Appeal has got vitiated. Only on that short ground and without expressing any opinion on the merits of the question of law framed by the learned Judge for disposing of the Second Appeal, this appeal is allowed. The impugned decision rendered is set aside and the Second Appeal is restored to the file of the High Court with a request to proceed further with the hearing of the appeal with respect to the substantial question aforementioned in accordance with law. No costs." 20. The impugned decision rendered is set aside and the Second Appeal is restored to the file of the High Court with a request to proceed further with the hearing of the appeal with respect to the substantial question aforementioned in accordance with law. No costs." 20. The Supreme Court in case of Saroop Singh Vs. Banto (2005) 8 SCC 330 has held that in the light of Article 65 of the Limitation Act, plaintiffs have to prove their title and it is for the defendant to prove title by adverse possession and in terms of Article 65 of the Limitation Act, 1963 starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession become adverse. Paras 28, 29 and 30 of the report as under:- "28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, the plaintiff-respondents have proved their title by adverse possession. As noticed hereinabove, the first defendant-appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred. 29. In terms of Article 65 of the Limitation Act, 1963 starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession become adverse. (See Vasantiben Prahladji Nayak Vs. Somnath Muljibhai Nayak (2004)3 SCC 376 ) 30. ‘Animus Possidendi’ is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period of prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohammad Ali Vs. Jagadish Kalita (2004) 1 SCC 271)." 21. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohammad Ali Vs. Jagadish Kalita (2004) 1 SCC 271)." 21. This view has been approved and followed by the Supreme Court in case of M. Durai Vs. Muthu and others (2006)9 SCC 612 and held as under:- "7. The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis-a-vis the Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession." 22. Applying the ratio of laid down by the Supreme Court in the above referred cases in the present case, it would be clear that the plaintiff has proved her title over the suit land to the extent of 1.37 acres of the land preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves her title, the burden upon the defendant to establish that he has perfected his title by adverse possession but evidently neither the defendant raised any plea that he has perfected his title by adverse possession, nor he proved adverse possession for the prescriptive period, therefore, the; plaintiff's suit for possession based on title, could not have been dismissed by both the courts below holding it to be barred by limitation. In that view of the matter, the suit was not barred by limitation and finding recorded by two courts below are hereby set-aside, and accordingly the substantial question of law is answered. Thus, in the opinion of this Court, both the courts below committed illegality in holding suit to be barred by limitation. 23. In the result, the appeal is allowed. Judgment and decree passed by both the courts below are set aside. Thus, in the opinion of this Court, both the courts below committed illegality in holding suit to be barred by limitation. 23. In the result, the appeal is allowed. Judgment and decree passed by both the courts below are set aside. Plaintiff's suit is partly decreed and it is held that plaintiff is entitled for possession of the scheduled suit land bearing Khasra No. 603/2, 0.68 acre as shown in EX.P-1 and 0.69 acre as shown in Ex. P-2 situated at Tahsil Pamgarh, District Janjgir Champa. 24. No order as to costs. 25. Decree be drawn up accordingly. Appeal Allowed.