1. This is a plaintiffs' appeal in a suit for a declaration that a grove was the property of the plaintiffs and if the plaintiffs were found by the Court not to be in possession for possession in the alternative.
2. The facts which led up to the present suit are that one Jagan Nath, who held a mortgage of the grove in question from the predecessors-in-interest of the defendants, purchased it at an auction sale on 23rd January 1911. On 15th May 1911 formal possession was delivered to Jagan Nath. It appears that the names of the defendants continued in the revenue records till 1922 when they were removed and that of Jagan Nath substituted. Jagan Nath sold the grove in suit to the plaintiffs on 23rd January 1924. The defence to the action was that Jagan Nath was never in actual physical possession of the grove and that the defendants had, after the auction sale, entered into an agreement, by which Jagan Nath had agreed to accept the sum of Rs. 600' in three years in full satisfaction of the decree and then release the property to the defendants. The defendants did not obtain a deed of reconveyance as they were afraid that their other creditors might attach the property in execution of their decree. Various issues were raised in the Court of first instance and finding that the plaintiffs' claim was not barred by limitation the Court of first instance decreed the plaintiffs' suit. In appeal the learned Subordinate Judge, finding that Jagan Nath not having been in actual possession of the grove, held that it must be taken that Jagan Nath was out of possession and as more than 12 years had elapsed from the date of the decree the plaintiffs' claim was 'barred by limitation. He therefore dismissed the plaintiffs' suit.
3. The plaintiffs have come up in second appeal and it is urged by the learned advocate for the appellants that the case of the defendants, as put forward, was that the defendants did admit the title of Jagan Nath until, at any rate, the year 1914. There was thus no assertion of any adverse title, at any rate, up to the year 1914, and the possession of the defendants up to 1914 must be accepted as the possession of the plaintiffs as the defendants were holding that property on behalf of the plaintiffs until the payment of the sum of Rs. 600. The Courts below have not accepted the contention of the defendants that any sum of Rs. 600 was, as a matter of fact, paid. We are of opinion that the contention of the learned advocate for the appellants is correct and that the possession of the defendants must be deemed to be possession on behalf of Jagan Nath. Twelve years not having elapsed since then, the plaintiffs who are the transferees from Jagan Nath are entitled to possession of the property as against the defendants. We allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance.