S.K. Ray, J.
1. This second appeal is by the defendants 1 to 3 from the reversing decision of the lower appellate Court and arises out of a suit filed by the plaintiff for declaration of title and for recovery of possession of the suit land which comprised of 3 decimals out of 16 decimals comprised in Sabaka plot No. 10 appertaining to Sabaka Khata No. 51 which respectively correspond to Hal Plot No, 8 in Hal. Khata No. 7 of Mouza Jatioatna.
2. The case of the plaintiff is that the suit land originally belonged to one Duti Padhan. His widow for herself and as guardian of a minor son together with a major son sold the suit land to one Chaitan Roy under a sale deed dated 16-7-1940 (Ex. 9). The letter's son sold the same along with other disputed land to one Dhani Jena on 15-7-1957 (Ex. 6). This Dhani Jena sold the same to the plaintiff on 24-1-1961 (Ex. 51. Subseauent to this purchase a Proceeding under Section 145 Criminal P. C. commenced with regard to the suit land between the plaintiff and defendants which terminated in favour of the defendants that is to say the suit land was declared to be in possession of the defendants on the date of the preliminary order. Prior to the finalisation of the proceeding under Section 145 Criminal P. C., the present suit has been instituted for the aforesaid relief on 14-8-196o.
3. The defendants-appellants are respectively the widow son and daughter of the deceased son of the original owner Duti Padhan. The suit land is a part and parcel of the homestead of the defendants. Their main defence is, as appears from paragraphs 3 to 8, 10 and 11 of their written statement, that they have been in possession of the suit land as a Part of their homestead exclusively and in their own right ever since the sale transactions commencing from 1940 onwards. Though they have not used the expression 'adverse possession' in their written statement it is obviously indicated that notwithstanding transfer of title successively to Chaitan. Dhani and the plaintiff their absolute and exclusive possession had remained uninterrupted.
4. The trial court dismissed the suit on a finding that the suit land has always been possessed by defendants as a part of their homestead, and neither the plaintiff nor his predecessors-in-interest were ever in possession of the same at any time, since the first of the aforesaid series of sale transaction took place in 1940 till the date of the suit and Chaitan Roy having failed to sue for possession within 12 years of his purchase lost title and sub-sequent purchasers including the plaintiff, therefore acquired no title.
5. The lower appellate Court, however, decreed the suit even though he concurred in the finding of the trial Court as to the absence of actual physical pos-session of the original purchaser or his successors-in-interest including the plaintiff. He seems to have entertained the opinion that since the defendants did not expressly set up a plea of acquisition of title by adverse possession and since there were a series of the sale deeds beginning from 1940 till 1961 which were acted upon the plaintiff's title cannot be held to have been extinguished.
6. Basing on the concurrent finding of the courts below that neither Chaitan Roy nor the subseauent purchasers including the plaintiff were in actual possession of the suit land it is contended that the first purchaser Chaitan Roy having omitted to sue to recover possession of the suit land for more than 12 years on the footing of his title acquired in 1940, lost his title to the suit land. So he could not convey any title to his vendee in the year 1957, and, accordingly, no title could be transmitted to the plaintiff in the year 1961. The title if any which had been acquired under the sale of 1940 (Ex. 9) is extinguished by the operation of Section 28 of the Limitation Act 1908. Secondly it is contended that on a reasonable construction of paragraphs 3 to 8, 10 and 11 of the written statement it must be held that the defendants had essentially advanced a plea of acquisition of title by adverse possession.
7. Section 28 of the Limitation Act provides that at the determination of the period limited to any person for instituting a suit for Possession of any property, his right to such property shall be extinguished. The Supreme Court has held in the case of Dindaval v. Raiaram, AIR 1970 SC 1019, that the principle underlying section 28 of the Limitation Act. 1908 (same as Section 27 of the Limitation Act 1963) is of general application and is not confined to suits and applications for which a period of limitation is prescribed under the Limitation Act.
In the instant case the first sale in favour of Chaitan Roy was in respect of a portion of the joint family dwelling house and the said transferee being a stranger to the family was not under Section 44 of the Transfer of Property Act entitled to joint possession of the same or other common or part enjoyment of the house and his remedy was only to file a suit for partition to carve out his interest. Such a suit for partition is essentially one for possession of immovable property or an interest therein and the period of limitation for it is 12 years from the date of his sale i.e. 16-7-1940 whether it be under Article 127 or under Article 144 of old Limitation Act and would be less under the residuary Article 120. It is unnecessary to decide which of the three is the more appropriate Article because the period of limitation for such suit would be 12 years in the maximum and the said period would run from the date of Chaitan's purchase i. e. 16-7-1940. Since Chaitan Roy was neither delivered possession nor did he sue for pos-session by filing a partition suit within 12 years of his purchase, at the determination of such, period i. e. by the end of 16-7-1952 his title became extinguished under Section 28 of the Limitation Act 1908. So Dhani acquired no title to the suit property in 1957 which he could convey to the plaintiff in 1961. The first contention is thus well founded and the suit on this ground must fail.
8. Coming to the second contention. I agree with the submission of Mr. Pal that though the defendants did not use the expression 'adverse possession', they have made it clear In paragraphs 3 to 8, 10 and 11 that they were possessing this land since 1940, in their own exclusive and independent right openly to the knowledge of Chaitan Dhani and the plaintiff. This is clearly a plea of acquisition of title by adverse possession. The onus is undoubtedly on the defendants to establish this plea. The oral testimony led on behalf of the defendants coupled with the commissioner's report shows that the disputed land was in exclusive possession of the defendants all along since 1940, the date of the transfer in favour of Chaitan Roy. This evidence has been accepted by the courts below and defendant's possession was open and patently to the know-ledge of Chaitan. In the circumstances the defendants must be held to have discharged their onus and thus to have established their plea of acquisition of title by adverse possession.
9. For the aforesaid reasons, I am of opinion that the decision of the first appellate court was wrong and that of the trial court was correct.
10. In the result, therefore I set aside the judgment and decree of the lower appellate court and restore that of the trial Court, that is to say, that the plaintiff's suit is dismissed but in the circumstances of the case, each party should bear his own costs throughout.