1. One Mool Chand was a co-sharer in the village of Sunderpur in the District of Bareilly. He died leaving him surviving five sons, one of whom was called Kundan. Kundan's share was sold in 1897 in execution of a decree against him and was purchased by one Basant Rai. The latter obtained symbolical possession through Court on 5th February 1898.
2. On the 31st of December 1898, on the verification of the khewat during the recent Settlement, Mool Chand's share was sub-divided into 200 shares and four shares only were allotted to Kundan. On the 25th of January 1910, Basant Rai executed a deed of sale in favour of Musammat Saraswati Kuarin respect of the share he had purchased at auction sale in 1897.
3. On the 28th of June 1910, Musammat Saraswati Kuar instituted the suit, out of which this appeal has arisen, for the recovery of 89 1/3 shares on the allegation that Kundan was entitled to 93 1/3 shares out of 200 shares of his father by right of inheritance and purchase at auction sale in execution of a decree against his father prior to 1897. It was further stated in the plaint that Basant Rai had purchased at auction sale of 1897 in execution of the decree against Kundan the entire share of the latter--that is 93 1/3 out of 200 shares, and had obtained and remained in possession and enjoyed profits of the share so purchased up to within a few years of the institution of the suit of Musammat Saraswati in spite of the order in the Settlement, awarding four shares only out of 200 to Kundan. The cause of action was, however, alleged to have accrued on 31st December 1898, the date of the erroneous order in the Settlement describing the share of Kundan as 4 out of 200. The suit was brought after the death of Kundan in the Court of the Munsif of Havali Bareilly against the mistress of Kundan, a brother of the latter, the widow of another brother, two transferees and Basant Rai, the auction-purchaser. The claim was resisted by all the defendants except Basant Rai. It was denied that Kundan had a larger share than what was allotted to him on the verification of the khewat or that he was a purchaser of any portion of his father's property in execution of a decree against the latter. It was also denied that Basant Rai had ever obtained actual possession of Kundan's share or had purchased and enjoyed the profits of anything more than what was allotted to Kundan on 31st December 1898, that is, 4 out of 200. The plea of limitation was also urged in bar of the claim. The learned Munsif found that Kundan was entitled to 66 2/3 shares out of 200 shares and that Basant Rai had purchased 66 2/3 shares at the auction sale in 1897. But as Basant Rai had obtained symbolical possession only and had not enjoyed profits of 66 2/3 shares, the claim was barred as to 62 2/3 shares having been brought more than 12 years after the delivery of symbolical possession but Saraswati preferred an appeal to the District Judge which was disposed of by the Additional Judge. The latter held that as the contesting defendants had set up adverse possession, it was for them to prove it and as they had failed to establish, their plea of adverse possession, the claim was within time. The learned Additional Judge accepted the appeal and reversing the decree of the first Court decreed the claim for 62 2/3 shares.
4. The contesting defendants have come up in second appeal to this Court. They contend that the onus lay on the plaintiff-respondent in the first instance to show that she had a subsisting title not barred by the law of limitation at the time of the institution of her suit. She had no such title. Her vendor obtained symbolical possession only and was never paid profits over more than four shares. Time began to run in respect of the 62 2/3 shares in suit from the date of the delivery of symbolical possession to Basant Rai and the claim in respect of 62 2/3 shares is barred. On behalf of the plaintiff-respondent, the argument is that the defendants appellants pleaded limitation presumably on the allegation of adverse possession and they must establish their plea. It is denied that time began to run in respect of 62 2/3 shares in suit from the date of the delivery of symbolical possession to Basant Rai. He became by his purchase of Kundan's share a co-sharer with the defendants appellants. The mere non-payment of profits of the entire share of Kundan to Basant Rai or the plaintiff-respondent, which is not admitted, would not render the possession of the rent-collecting co-sharers, the defendants-appellants, adverse. The admission that profits at least of four shares have been paid up to within a few years of the institution of the plaintiff-respondent's suit would in any case run limitation.
5. I think that the contention of the defendants-appellants must prevail both as regards the question of burden of proof and as to the date from which time should be calculated for the purpose of limitation.
6. It has been consistently held by this Court that when a suit for possession is met by a plea of adverse possession during the limitation period, the question of limitation becomes a question of title and the appellant must first furnish prima facie proof of subsisting title at the date of the commencement of his suit before the defendant is required to establish his adverse possession; Vide Parmanand Misr v. Sahib Ali 11 A. 438; A.W.N. (1889) 155; Inayat Husen v. Ali Husen 20 A. 182; Mazhar Husain v. Behari Singh 28 A. 760 : A.W.N. (1906) 234 : 3 A.L.J. 567.; Musafir Rai v. Musammat Laggan Barta Kuar 2 A.L.J. 62 : A.W.N. (1905) 14.
7. The onus was, therefore, on the plaintiff-respondent to show by some prima facie evidence that she had a subsisting title not extinguished by the law of limitation at the time she brought the suit.
8. There is no evidence that Kundan was in possession of 66 2/3 shares or that Basant Rai or the plaintiff-respondent had been paid within limitation profits on the 66 2/3 shares.
9. The payment of profits on four shares only would not save limitation with regard to the remaining 62 2/3 shares.
10. The case might perhaps have been different if the payment of profits on four shares had been in part payment of the profits of 66 2/3 shares, in other words, if Kundan's right to 66 2/3 shares had been conceded, or his possession within limitation over them proved and a portion of the profits only paid. The appellants have all along contended that all that Kundan got in his father's property was 4 shares out of 200 and that he was never in possession of anything more. Nor is there any evidence that Kundan was in possession of more than four shares. The contention that Basant Rai by his purchase of 1897 became a co-sharer with the appellants and that the mere non-payment of profits would not render the possession of the rent-collecting co-sharers adverse until an adverse right was asserted is not borne out by authority. The argument of the plaintiff-respondent overlooks two facts, namely, that only symbolical possession over the shares of Kundan was given to Basant Rai and that there is no evidence that Kundan was ever in possession within limitation of anything more than four shares. The fact that Kundan was legally entitled to more than four shares in his father's property would not affect the question of limitation. It has been held that when an auction-purchaser at a Court sale has obtained symbolical possession, he or his assigns may sue the judgment-debtor for actual possession within 12 years from the date of obtaining such symbolical possession Vide Gopal v. Krishna Rao 25 B. 275; Mahadeo v. Parshram 25 B. 358.
11. The plaintiff respondent admittedly brought the suit more than 12 years after the delivery of symbolical possession to her vendor, Basant Rai. Her claim is, therefore, clearly barred by limitation. The appeal prevails. The decree of the lower Appellate Court is set aside and that of the first Court is restored. Costs, of all the Courts are allowed to the defendants-appellants.