1. Mr. Panna Lal, on behalf of the plaintiff-appellant has distinguished this case from the ruling quoted by the lower appellate Court of a Bench of this Court, Sita Ram Dube v. Ram Sunder Prasad : AIR1928All412 , but, in my opinion, the principles of that ruling will apply. In the present case the house was purchased by the father of the defendants in 1907, whereupon in the following year the sons of one of the vendors sued for the setting aside of the sale deed and for possession, and the suit was decreed on 18th March 1909, for joint possession to the extent of one-third. Possession was taken by Niranjan Lal on 26th November 1910, in the manner laid down in Order 21, Rule 96, Civil P.C. Subsequently, Niranjan LaL did not sue for partition; nor did he receive any rent from the defendants who continued in possession of the entire house. It is argued here that the defendants were not trespassers because by reason of the house not being partitioned they were entitled rightly to remain in possession of the entire house. In my opinion this argument was repelled by the Bench ruling quoted above and such appears to me to be the basis of the decisions in Lal Rajendra Kishore v. Bhagwan Singh  39 All. 460 and Jang Bahadur Singh v. Hanwant Singh A.I.R. 1921 All. 9.
2. It was conceded in all those cases that the delivery of formal possession gave to the person who obtained formal possession a fresh start for the computation of limitation but did not make the person who obtained such formal possession owner in possession. From the date of formal possession a fresh period of limitation will start and the decree-holder must obtain partition within 12 years of the date of the formal possession or establishment of his right in some other manner. Mr. Panna Lal, on behalf of the appellant, drew the Court's attention to the observations of Lindsay, J., at p. 576 (of 26 A.L.J.) of the report in the case quoted above. Those observations however were merely an additional argument in that particular case. The Judge's point of view was that the question of adverse possession did not arise in a case like the present because it did not lie on the defendant to prove adverse possession, but it lay on the plaintiff to prove his possession and dispossession within the period of limitation when he came to Court to seek possession. The paragraph begins with the words:
As we have said, the question of adverse possession did not at all arise.
3. The learned Judge then proceeds to inquire how the particular facts of the case would be viewed if the question of adverse possession did arise, and he went on to say that as the judgment-debtor was not entitled to occupation of any portion of the house, he could not have remained in possession except on the basis of adverse possession. This second ground for allowing the appeal did not take away the force of the first ground on which the plaintiff's suit was held to be liable to dismissal because he had not proved his possession within 12 years of the institution of the suit.
4. The learned Judge who delivered the judgment of the Court specifically quoted the two cases of Lal Rajendra Kishore v. Bhagwan Singh  39 All. 460 and Jang Bahadur Singh v. Hanwant Singh A.I.R. 1921 All. 9 referred to by me above. In those cases it appears to have been taken for granted that in a case like the present if the decree-holder did not come to Court within 12 years of obtaining formal possession under Order 21, Rule 96, Civil P. C, he would not be able to maintain a suit for possession. Mr. Panna LaL quoted a single Judge ruling in the case of Ram Parson Upadhia v. Kalab Husain  36 I.C. l00. There the question of joint possession was considered in the abstract apart from any circumstances like those in the present case and in the suits referred to above, where a plaintiff had obtained formal possession and subsequently after 12 years had come to Court to obtain a partition. The principle applied by Lindsay, J., appears to me to be that by formal possession the decree-holder merely started a fresh period of limitation and became entitled to seek actual possession of his share by demanding partition. If he did not demand a partition within 12 years or did not in any other manner enforce his possession he would not be entitled after 12 years to seek possession. It is quite true that the facts of the case may be differentiated on the ground that the defendants in the present case were cosharers of the plaintiff and entitled to remain in possession by reason of their holding a share in the house. So far the facts are not the same as those of the case in which Lindsay, J., delivered the judgment because in that case the judgment-debtor had no right to remain in possession after the decree-holder had obtained his decree and obtained formal possession. The principles however as I have pointed out, apply equally strongly to the present case.
5. I dismiss this appeal with costs.
6. Permission to file an appeal under the Letters Patent is granted.