1. This is a plaintiff's appeal arising out of a suit for recovery of possession of a share in a house. The plaintiff Jambu Dass and the first two defendants Jai Prakash and Jai Chandan are brothers. A dispute over the ancestral property was referred to arbitration in 1906 the share now in suit was awarded to the plaintiff by the arbitrator. This award was confirmed by a decree of a Civil Court on the 18th June 1908. In 1916 the share in suit was sold in execution of a decree to one Konwal Nain who has been impleaded in the present suit as defendant No. 3. He has not appeared throughout the proceedings and has not contested the plaintiff's claim.
2. The present suit was instituted on the 14th of June 1920. The plaintiff's case was that five or six years previously he had permitted his two brothers to live in his part of the house. The purchase at auction by Konwal Nain was merely benami on his own account. His brothers now refused to surrender possession to him and he accordingly brought the suit to compel them to do so.
3. The trial Court held that the suit was barred by limitation. It doubted the plaintiff's story of permission to his brothers to take possession and considered that limitation should be held to run from the date of the private award and not from the date of the decree confirming that award. If the latter is the correct date then in any case the suit was in time by four days.
4. The lower appellate Court expressed considerable doubt as to the correctness of the first Court's finding on the subject of limitation pointing out that the only evidence on the point consisted of the two conflicting statements of the plaintiff and one of the defendants, It, however, did not come to a positive decision on the question as it held that Section 66 of the Civil Procedure Code barred his suit. This section pro vides that no suit shall be maintained against any person claiming title under purchase certified by the Court on the ground that the purchase was made on behalf of the plaintiff. No doubt it would be a compete answer to the suit so far as Konwal Nain is concerned, but the latter has not chosen to contest the claim. In Saradindu Chakarvarti v. Gosta Behari Pramanik A.I.R. 1923 Cal. 302, on almost identical facts, where the heirs of the auction purchaser did not appear and deny the plaintiff's benami purchase, it was held that Section 66 of the Code of Civil Procedure only applies when the plaintiff attempts to assert his secret title as against a certified purchaser. This view of the law appears to be a correct one and in the circumstances of the present case Section 66 is no bar.
5. The only point which has been strongly urged on behalf of the respondent is that the plaintiff no longer has any subsisting title. On his own showing he had given up possession of the property a year or more before the auction sale and was not in possession when that took place, and had therefore no right to sue at the time when the suit was brought. But the title was in him from the date of the award and unless the defendants' statement is accepted it was under permission from him that the defendants had taken possession. The burden of proving adverse possession was unquestionably on the defendants. The somewhat hesitating finding of the lower appellate Court is to the effect that they have failed to discharge this burden. They produced no evidence in support of their contention beyond the statement of one of themselves. I agree with the lower appellate Court. The appeal, therefore, must succeed and the plaintiff will get a decree for recovery of possession of the property in suit with costs in all Courts including in this Court fees on the higher scale.