1. The plaintiff and his father in 1889 executed a nominal sale-deed in respect of all their family properties in favour of the defendant and put the defendant in possession thereunder, In O.S. No. 72 of 1901 the plaintiff sued the defendant for the recovery of his half-share of the said properties which were all included in the plaintiff's pattah No. 122. He got a decree for half the lands in that pattah, One of the land in the pattah was Survey No. 287 S. By a clerical error the land was referred to in the plaint as Survey No. 287 L., and this error was copied into the decree. The District Munsif in execution allowed the plaintiff his share in Survey No. 287 S, and put him in possession. On appeal the District Judge held that the executing Court was wrong as Survey No. 287 S. was not in the decree and reversed the order of the District Munsif. The plaintiff then filed the suit, to which S.A. No. 1502 of 1907 relates, for a declaration that the suit property belonged to him and for an injunction restraining the defendant from taking possession in restitution proceedings. The defendant subsequently put in the application for restitution, out of which A.A.O. No. 78 of 1897 arises. The District Munsif gave the plaintiff a decree as prayed and dismissed the defendant's application for restitution. The defendant appealed both against the decree in the suit and against the order on his application for restitution. The District Judge allowed both appeals on the ground of limitation. The plaintiff now appeals to this Court.
2. We are unable to agree with the District Judge on the question of limitation. The land now in dispute was included in the nominal conveyance to the defendant and was put in his possession thereunder along with the other family properties. It is clear, therefore, that the possession of the defendant was in the first instance permissive and not adverse, and it lay upon the defendant to show when his possession became adverse. He let in no evidence and the plea of limitation must, therefore, fail.
3. The defendant's Vakil seeks to support the decrees of the District Judge on the other grounds. The District Judge held that where restitution would be clearly contrary to the real justice of the case, the Court may refuse it. For this he relied upon Dorasami Ayyar v. Annasami Ayyar 28 M.k 306. This decision supports him; and that justice is entirely on the side of the plaintiff, there can be no doubt whatever. We do not think that Section 244, Civil Procedure Code, is any bar to the suit, and the objection is not one which the defendant should be allowed to put forward, he having himself in the prior proceedings contended that the plaintiff's proper remedy was by suit. Section 43, Civil Procedure Code, is also clearly no bar. The plaintiff neither omitted to sue in respect of the suit land, nor intentionally relinquished it. A mere clerical error crept into the description of it. Section 56 of the Specific Relief Act is no bar to the injunction sought by the plaintiff. The defendant's application for restitution was not pending when the plaintiff filed his suit for injunction and, therefore, neither Clause (as) nor Clause (b) of Section 56 can have any application.
4. We, therefore, reverse the decrees of the District Judge and restore those of District Munsif with costs in this and in the Lower Appellate Court.