Krishnan Pandalai, J.
1. The 6th defendant and representatives of the deceased 5th defendant, hereinafter referred to as defendants 5 and 6 and persons claiming under them are the appellants. The suit was brought for partition and separate possession of one-fourth share of a plot of land described as pati site and said to be roughly 11,000 and odd square yards in extent, which had been the property of a family of Zamindars of which the surviving representatives are defendants 1, 2, 3 and 4 and of whom, according to the plaintiff's case, the 1st defendant was entitled to one-half of the property, the 2nd defendant to one-fourth and defendants 3 and 4 to the other one-fourth. The plaintiff claimed to have purchased the share of the defendants 3 and 4 from their father by a sale deed of 1901.
2. The defendants 5 and 6, who were the principal contesting defendants, contended that the defendants 3 and 4 were not entitled to any share of the property at all but that the 1st defendant was entitled to one-half and the 2nd defendant to the other half and that by two sale deeds of 1915 and 1920 they (appellants-defendants 5 and 6) had become entitled to both the halves and they also pleaded that the plaintiff had not been in possession of his alleged share within 12 years of the suit. The principal issues were the first three, namely-
1. Has the plaintiff title to the suit site?
2. Has the plaintiff possession of the suit site within 12 years before the date of the suit? and
3. Is the suit in time?
3. On the first issue as to title, both the Lower Courts have concurrently found that defendants 3 and 4, the plaintiff's vendors, are entitled to one-fourth share and I have heard nothing from the appellants' learned advocate how this can be attacked. On the question of possession, the District Munsif held that the plaintiff being the purchaser from a coparcener in an undivided Hindu family was not entitled as such to possession of any share of the alienated property and that in any case the plaintiff had not shown that he was in possession of the share sued for within 12 years of the suit. He dismissed the suit. The learned Judge on appeal was inclined to take the same view as to the nature of the plaintiff's purchase, that it was from a coparcener in an undivided Hindu family. But he took the view that the plaintiff was entitled to succeed on the ground that the land having been vacant unoccupied site on which no cultivation was done, possession up to within the 12 years period before the suit must be deemed to have been with the persons who had a title and therefore the plaintiff was entitled to succeed. On this ground he gave the plaintiff a decree as prayed.
4. In second appeal the principal point argued was one of limitation. The appellants' learned advocate concedes that the Article applicable is Article 142 and that the plaintiff must succeed if he can show title and possession within 12 years before the suit. So far as the question of possession is concerned, it is indisputable that if the plaintiff is entitled to immovable property and possession thereof and the property sued for is such that actual or effective enjoyment of it by taking produce is not possible, possession will be presumed to be with the person who has the title: Ramanathan Chettiar v. Lakshmanan Chettiari I.L.R. (1930) 54 Mad. 622 : 61 M.L.J. 224. The appellants' advocate has attempted to attack both branches of the above conditions. He has attempted in the first instance to show that the plaintiff's right was not to property of which any one could be in possession but that it was only an equitable right possessed by alienees from coparceners of a Hindu family who are entitled only to bring a suit for partition and to take. such property as is allotted to the alienee. On this point, both the Lower Courts have contributed to the confusion which has arisen by supposing that there was a case of an undivided family or an alienation by a coparcener in this case. There is nothing in the plaint or in the written statement which supports the idea that either party considered the plaintiff's purchase as an alienation from a coparcener. The plaintiff spoke of the property as jointly in possession of the various sharers. The defendants spoke of its possession in divided halves. In either case, no question of coparcenary arose. In any case it is obvious that when all the members of a joint family have parted with their rights in a specific property of the family, questions between the alienees of the several members are not questions between coparceners : Iburamsa Rowthan v. Thirnvenkatasami Naicki I.L.R. (1910) 34 Mad. 269 : 20 M.L.J. 743. The cases therefore which hold that alienees from coparceners have only rights of suit for partition have no application to this case, because it is the case of both the parties that no coparcener has any subsisting right in the suit property.
5. The appellants' learned advocate next denied that this property was such as to be incapable of actual enjoyment. That is a question of fact and whether in fact it was incapable of actual enjoyment up till a period within 12 years before the suit was one eminently for the lower appellate Court. It was in evidence that it was only after defendants 5 and 6 brought the property in 1920 that something began to be done upon it in the way of building huts and buildings and that till then it lay vacant or waste. It was open to the lower appellate Court to apply the doctrine of Ramanathan Chettiar v. Lakshmanan Chettiar I.L.R. (1930) 54 Mad. 622 : 61 M.L.J. 224 to the case and to infer upon the facts that the plaintiff must be deemed to have been in possession. The second appeal fails and is dismissed with costs.