1. The facts out of which this appeal arises are somewhat complicated; but the essential points for determination admit of being briefly stated. The claim of the plaintiff-respondent was one for a declaration of his proprietary rights in respect of certain property. His title was based upon a pre-emption decree obtained by one Krishna on the 2nd of November 1887, under which he obtained possession on the 2nd of April 1888. He then executed a formal mortgage with possession in favour of certain persons who were tenants of the land in question. Neither he nor his mortgagees made any attempt to have their rights, other than the tenant's rights of the mortgagees, recorded in the village papers. The name of Ganga Ram, the original proprietor whose sale of the property bad furnished a cause of action for the pre-emption suit, continued to remain recorded in the village papers. When Ganga Ham died, his widow applied for mutation of names in her favour, and this was allowed. Thereupon the mortgagees brought a suit impleading the same widow and their own mortgagor and claiming a declaration of their title as mortgagees, or in the alternative a decree for possession. They obtained a declaration only, the finding of the Court being that they were already in possession as mortgagees. The present plaintiff-respondent has since then acquired the rights of Krishna and brings this suit for a declaration, on the ground that his attempt to obtain mutation of names in his favour has been defeated by the defendant-appellant, the widow of Ganga Ram. Both the Courts below have decreed the plaintiff's claim, finding in his favour upon all essential points.
2. In second appeal two distinct pleas are raised on behalf of the defendant. Firstly, it is contended that the present suit for a declaration is barred by the six years' rule of limitation, reference being made to Article 120 of Schedule I to the Indian Limitation Act and to the decision of this Court in Francis Legge v. Rambaran Singh 20 A. 35 : A.W.N. (1897) 193 and in some subsequent cases. I do not think there is any force in this contention. I am unable to suggest any date anterior to that stated in paragraph 9 of the plaint from which it could be fairly said that the plaintiff's cause of action had arisen. The date suggested in argument on behalf of the appellant is the 2nd of April 1888, the date on which Krishna obtained possession in execution of his pre-emption decree. It is, no doubt, true that Krishna was the plaintiff's predecessor-in-title, and that the 2nd of April 1888 is the date from which Krishna became entitled to apply to the Revenue Court to be recorded as proprietor of the land in suit. But I cannot see that anything happened on that date which could be held to furnish Krishna with a cause for a declaratory suit. The principles applicable to suits of this nature seem to me to have been correctly laid down in a subsequent decision of this Court in Allah Jilai v. Umrao Hussain 24 Ind. Cas. 535 : 36 A. 492 : 12 A.L.J. 810; but I cannot find on any possible view of the principles laid down by this Court in Francis Legge v. Rambaran Singh 20 A. 35 : A.W.N. (1897) 193 the accrual of the cause of action for this present suit to date back to any date more than six years anterior to the institution of the same. The only act on the part of the defendant appellant which could by any possibility be regarded as challenging Krishna's title and furnishing a cause of action for the institution of a declaratory suit would be her application to be recorded as proprietor on the death of Ganga Ram. I am not prepared to say, on the facts apparent from this record, whether it could be held that Krishna was bound to bring a declaratory suit within six years of the date above referred to; but the point is immaterial, because Ganga Rani's death took place only about three years prior to the institution of this suit. This plea, therefore, fails.,
3. The other point taken is that the lower Appellate Court has gone too far in speaking of the decision in the suit brought by Krishna's mortgagees against their mortgagor and the present defendant-appellant as having the effect of res judicata against the latter on the question of possession. I am by no means clear that, on the principles laid down by this Court in Chajju v. Umrao Singh 22 A. 386 : A.W.N. (1900) 120 the decision of the Court below could not be supported on this ground. I think however, that apart from the question of res judicata, the learned Judge of the Court below has come to findings on the question of possession, findings based upon credible evidence, which are absolutely fatal to the defendant's case. She claims title through Ganga Ram who lost possession on the 2nd of April 1888 in conformity with the decree in the pre-emption suit. There is a clear finding that actual physical possession over the land in suit had been for many years, apparently from before 1888, with those tenants in whose favour Krishna subsequently executed a mortgage. From the date of the mortgage in their favour the possession of those tenants presumably became the possession of mortgagees, unless and until the contrary can be proved. There being a finding that rent was not paid to Ganga Ram by those tenants, it necessarily follows that neither constructive nor actual possession was with Ganga Ram on any date subsequent to the 2nd of April 1888. Whether or not, therefore, the present appellant is bound by the adverse decision on this point recorded against her in the suit of the mortgagees, there seems to me to be abundant evidence on the record to justify the repetition of the same finding in the present case, and I understand this to be the meaning in substance of the judgment of the lower Appellate Court. This appeal, therefore, fails and I dismiss it with costs.