1. This appeal arises out of a suit for partition of property alleged by the plaintiffs to be joint ancestral property. The property belonged to one Munshi Durga Prasad, who died at Bareilly on the 6th of April 1894, leaving three sons, namely Kanhaiya Lal, Lal Bahadur and Jagdamba Prasad. Prior to his death, namely, on the 3rd of April 1893, Durga Prasad executed a Will whereby in substance he gave the whole of property to his eldest son Kanhaiya Lal and provided annuities for his younger sons. He executed another Will on the 11th of December 1895, which in substance also gave the entire of his property to his eldest son, provision being made out of the profits of the property for the younger sons. On the death of his father, Kanhaiya Lal applied to the Court of the District Judge of Barreilly for Letters of Administration in respect of the property and Letters of Administration were granted. His brothers, Lal Bahadur and Jagdamba Prasad, appealed against the order of the District Judge granting Letters of Administration and the appeal was dismissed. Thereupon Lal Bahadur and Jagdamba Prasad, the latter being the deceased father of the plaintiffs Nos. 2, 3 and 4, instituted a suit in the Court of the Subordinate Judge of Bareilly for a declaration that the two alleged Wills of Durga Prasad were contrary to Hindu law and null and void as against them, the property comprised therein being alleged to be joint ancestral property over which Durga Prasad had no power of disposition by Will. The plaintiffs' suit was decreed by the learned Subordinate Judge on the 30th. March 1898. One of the defences set up in that suit was that the plaintiffs' claim was barred by the provisions of 42 of the Specific Relief Act, the contention of the defendants being that the plaintiffs were not in possession, or in joint possession, of the property in respect of which they sought a declaration and that not having claimed to be entitled to joint possession, their suit was barred by provisions of the in question. An issue was knit upon this plea of the defendants and the learned Subordinate Judge in his judgment dealt with the evidence in support of it and came to the conclusion that there was no justification for the plea. In his judgment he observes: 'The evidence referred to above proves satisfactorily that the plaintiffs and the defendants both got possession of Durga Prasad's villages on his death; that all of them collected their rentals for two or three months; that after that Lal Bahadur made collections as their lambardar. The plaintiffs are still recorded co-sharers in the villages and possession of their brother and lamhardar cannot be adverse to them. No change in the nature of possession has been shown. The defendant has not taken any action for mutations of names in the Revenue Court after he got probate.' Later on he observes: 'I am of opinion that both parties are in possession of the whole estate in suit, and the plaintiffs' suit is not, therefore, barred under 42 of the Indian Specific Relief Act.' Then the learned Judge further goes on to observe that he had some misgivings as to whether it was necessary to consider the provisions of 42 inasmuch as the case possibly fell within the scope of 39 of the Specific Relief Act.
2. An appeal was preferred from this judgment to the High Court and one of the grounds of appeal was that the plaintiffs were not in possession of the property in dispute and that the suit for a declaration was barred by the provisions of 42 of the Act to which we have referred. The learned Judges, before whom the appeal came for disposal, did not deal with this question: they determined the appeal upon another ground, namely, that the property in respect of which the plaintiffs sought a declaration of title was the self-acquired property of the testator, Durga Prasad, and on this ground they reversed the decision, of the Court below, save in respect of a small portion of the property claimed.
3. From this decision, an appeal was preferred to their Lordships of the Privy Council. Before their Lordships the only question, which was raised by the appellants, was substantially, whether or not the High Court was right in the conclusion that the property in dispute was the self-acquired property of the testator. Their Lordships upon the evidence came to the conclusion that the property was not the self-acquired property of Durga Prasad but was ancestral property of the family, and consequently, the Will of Durga Prasad was not operative so as to deprive the younger sons of their share in the family estate. It will be observed that, neither before their Lordships of the Privy Council nor before the High Court, was the finding of the learned Subordinate Judge to the effect that the plaintiffs were in possession of the property along with their brother impeached. It was open to the appellants to support the finding of the High Court upon any ground upon which that decision could be supported, but they did not avail themselves of this right but contented themselves before their Lordships of the Privy Council by resting their case on the allegation that the Will of Durga Prasad was operative and that under that Will the property in dispute passed to his eldest son. In view of the circumstances, it appears to us that they cannot now successfully maintain that the respondents have not been in possession, that, therefore, their present suit is barred by 43 of the former Code of Civil Procedure, corresponding with Order II, Rule 2 Act V of 1908. The plaintiffs were found to have been in joint possession of the property from the death of their father up to the date of the decree of the Subordinate Judge of the 30th of March 1898, and, therefore, there was no occasion for them in the earlier suit to seek for any other relief than the declaration which they claimed. It is also clear that their present suit is not barred by limitation inasmuch as it was brought within 12 years from the date of the decree of the Subordinate Judge, assuming' that they were bound to bring it within 12 years from that date.
4. In addition to this, we find that an application for partition of three of the villages, portion of the property of Durga Prasad, was made to the Revenue Court, and an objection was raised by Kanhaiya Lal to the partition, on the ground that the applicants for partition had ceased to have any interest in the property by reason of their not having been in possession for more than 12 years. This objection was overruled, and three appeals were filed to this Court which came for disposal before a Bench of this Court of which one of us was a member. These appeals are First Appeals Nos. 10, 11 and 12 of 1909. It was held that the decision of the Court of first instance having been upheld by their Lordships of the Privy Council, the decree of the Privy Council was necessarily a decree affirming and declaring the title of the respondents to those appeals, namely, the plaintiffs-respondents in the present appeal and that the contention of the appellant that the respondents had no right to the property sought to be partitioned was devoid of any force. The present appeal appears to us likewise to be devoid of any force and it is devoid of merits and we have no hesitation under the circumstances in rejecting it.
5. The two grounds of appeal, to which we have above referred, alone of the grounds of appeal, were pressed in argument before us. The others were abandoned. We accordingly dismiss the appeal with costs.