1. This is a suit for possession by the plaintiffs, as to whom it is found that they are the owners of the property in question and that they have succeeded in showing their title. The defendants at the commencement of the plaintiffs' suit were in possession of the property. They claimed title under a document granted long subsequently to the document under which the plaintiffs claim their title, viz., some time in December 1902.
2. The first Court dismissed the plaintiffs' suit on the ground that the plaintiffs or their predecessors-in title had been out of possession for more than 12 years. The lower Appellate Court, i.e., the District, Judge, overruled this finding and held that the suit was one for possession, that the time for bringing the suit dated from 1902 and that the period applicable was 12 years under Article 144 of the Indian Limitation Act. I am not sure that any point of law really arises. After hearing the judgments of the Courts below, it seems to me that substantially the questions raised were entirely questions of fact from which there is no second appeal. However an ingenious argument has been advanced before me by the appellants' Counsel, suggesting that in this case the plaintiffs' suit is barred, it being in substance a suit for cancellation of the document granted to the defendants and that, therefore, it ought to have been brought within the three years provided by Article 91 of the Indian Limitation Act. His argument is to some extent based upon Section 39 o| the Specific Relief Act and it does appear though I have not been able to form a decided opinion about the matter that a person, in the position of the plaintiffs here, who leaves another person, who is in possession under a void lease, in possession as ostensible owner, might have a right to take proceedings under that section for cancellation. It is perfectly clear, however, that he is not compelled to do so. He may, as was said by their Lordships of the Privy Council in the case of Bijoy Gopal Mukerji v. Krishna Mahishi Debi 34 C. 329; 9 Bom. L.R. 602; 4 A.L.J. 329; 5 C.L.T. 334; 11 C.W.N. 424; 17 M.L.J. 154; 34 I.A. 87 (P.C.); 2 M.L.T. 133 cited before me, treat the document as a nullity without the intervention of any Court. It is perfectly true that his suit for possession involves the document, under which the defendant claims to enjoy the property, being treated as null and void, and to that extent being cancelled, but the suit is not one for cancellation in the ordinary sense of the term. I do not think it necessary to go through the authorities; the dividing line is perfectly clear. Where a person who claims title finds something done either by himself or by some one through whom he claims standing, so to speak, upon his title and preventing him from the full enjoyment thereof, he has got to get rid of it before he can fully enjoy the property; in other words, his title is defective and he must take proceedings, if he can, to remove the defect from his title. That is not the position of one who comes with a title altogether unstained, complete in itself, but finds somebody in possession claiming under a void or voidable document. In this case it happens to be a document subsequently granted by the same grantor as the grantor of the plaintiffs. It may be possible, but it is certainly not necessary, for such a person to take proceedings to set aside or cancel such a document under which a person wrongfully claims to be in possession. It is sufficient for him to show title. The moment he does that, he is entitled to possession; he need take no steps with regard to the voidable document held by the defendant or the trespasser, until that person relies upon it and sets it up in the suit, then he makes his answer to it and alleges that it is void. That is all that has happened in the present case. The plaintiffs sued for possession; they incidentally asked for cancellation; they have succeeded in proving their title and they are entitled to possession. Article 144 applies to that claim and it is admitted that under that Article their claim is not barred. It is quite immaterial that they also asked for cancellation of the document and it is also immaterial that they have succeeded in getting it cancelled.
3. In my opinion the decree of the District Judge is right and must be affirmed and this appeal must be dismissed with costs.