K.N. Srivastava, J.
1.This is an appeal by the unsuccessful defendant-appellant, arising out of the following facts:
The defendant-appellant was the owner of twenty shares out of seventy shares in a house. He sold his share to certain persons. The plaintiff-respondents filed a pre-emption suit and obtained a pre-emption decree in 1948, The plaintiff-respondents then obtained symbolical possession in 1949. They filed the present suit for possession against the defendant.
2. The defendant-appellant contested the suit and raised the plea that the plaintiffs were not entitled to possession. The main ground on which the suit appears to have been contested was that the plaintiffs' suit was barred by twelve years rule of limitation, although no specific plea seems to have been taken in the written statement. On account of there being no specific plea in the written statement, no issue was framed about limitation.
3. However, it appears that in the trial court the issue of limitation was pressed and was repelled by the trial court. The issue of limitation was also raised in appeal by the defendant. The lower appellate court was of the opinion that no plea of limitation was taken in the written statement and, as such it could not be sustained. The lower appellate court dismissed the appeal.
4. Being dissatisfied, the defendant-appellant has filed this second appeal.
5. So far as the legal position is concerned, it is very clear that a legal plea can be taken for the first time even in a second appeal.
6. Learned counsel for the respondents contended that in order to decide this question of limitation in this appeal, Bit would be necessary to find out as to whether the defendant was in possession over the house and in the absence of evidence there will be no effective decision on the question of limitation. This argument has no force in it because in the plaint itself the plaintiff-respondents admitted that from before the symbolical possession was taken, the defendant was in possession and he was in possession even at the time of the suit. This was the reason why the relief for possession was sought against the defendant.
7. Learned counsel for the defendant-appellant contended that the plaintiffs could have taken actual possession after the pre-emption decree and as they contented themselves by taking symbolical possession, therefore, the delivery of symbolical possession did not stop the possession of the defendant and, as such, the suit would be barred by Article 144 ofthe Limitation Act. In support of this contention, the learned counsel for the appellant relied on a Full Bench decision of this Court in Jang Bahadur Singh v. Hanumant Singh. AIR 1921 All 9 (FB). It was held in this Full Bench case that where actual possession could have been taken and the decree-holder contented himself by taking only symbolical possession, the same would not stop the possession of the defendant, and the suit filed after twelve years from the date of the decree would be barred by time.
8. In the instant case, admittedly, the suit was filed beyond twelve years from the date of the pre-emption decree, but it was filed within twelve years from the date on which the symbolical possession was taken.
9. The question which arises in this case is as to whether the plaintiff could take actual possession of the property on the strength of the pre-emption decree or he could only get symbolical possession of the same.
10. There are two copies of Khasras on record which clearly go to show that the defendant had only twenty shares out of seventy shares in the disputed house. Therefore, this house was jointly owned by the defendant and certain other co-sharers The plaintiffs after purchasing the share of the defendant could not take actual possession and they were only entitled to have symbolical possession. They could only get actual possession after a suit for partition, and unless a suit for partition was filed the house would remain the joint property of the plaintiff and the other co-sharers. Therefore, at the time when the symbolical possession was taken by the plaintiffs, they were not entitled to actual possession, and the only possession which the plaintiffs could take on the strength of the decree was symbolical possession. In this view of the matter, the Full Bench decision of this Court, referred to above, does not apply to the facts of the present case because it was not a case where actual possession could be taken by the plaintiffs In the Full Bench case the plaintiff was entitled to actual possession but instead of actual possession he took symbolical possession. In the instant case, as observed above, the plaintiffs were not entitled to actual possession.
11. In a case where the plaintiff is only entitled to symbolical possession then certainly the delivery of symbolical possession will stop (sic) (start?) the running of time against the plaintiff and the defendant would be called upon to prove that he was in adverse possession for more than twelveyears after the date of the symbolical possession. In this view of the matter, the suit was not barred by time because it was brought well within twelve years from the date on which the plaintiffs took symbolical possession over the share of the defendant in the disputed house.
12. I am, therefore, of the opinion that the above contention of the learned counsel for the appellant has no force in it.
13. No other point was argued In this appeal.
14. The other points are also concluded by findings of fact, which cannot be disturbed in a second appeal.
15. In the result, the appeal fails, It is hereby dismissed with costs.