1. The plaintiff in this suit obtained a decree against 1st defendant for redemption of certain properties and, according to the allegations in the plaint, he obtained possession in execution, and, subsequently, he was dispossessed in the year 1897, but it is found he was really dispossessed in 1895. He instituted the present suit for recovery of possession on the ground that, subsequent to his obtaining possession, he was dispossessed by the defendant in 1895. The suit was instituted in August 1804. The 1st defendant pleaded that he had executed a usufructuary mortgage of them in favour of the 2nd defendant in the year 1900, and that the 2nd defendant was in possession. The 2nd defendant pleaded that he had assigned his right in 1904 to another person who was subsequently made 3rd defendant. The 3rd defendant was made a party only in 1909, that is, more than 12 years after the actual date (1895) of dispossession of the plaintiff by the 1st defendant. The 3rd defendant pleaded limitation in answer to the suit.
2. The question that arises for decision in second appeal is, whether the suit is barred as against the 3rd defendant. The Article of the Limitation Act applicable to the case appears clearly to be Article 142. The plaintiff was dispossessed more than 12 years before this suit can be said to have been launched as against the 3rd defendant. It is contended that the 3rd defendant cannot avail himself of the possession of defendants Nos. 1 and 2. This question does not really arise in a case to which Article 142 is applicable. But oven where Article 144 is applicable, the 3rd defendant would clearly be entitled to take advantage of the period during which defendants Nos. 1 and 2 were in possession as he derived his title from the 2nd defendant and the 2nd defendant from the 1st. There cannot, therefore, be a decree in ejectment against the 3rd defendant, but there is no reason why there should not be a decree against the 1st defendant against whom the suit is instituted in time. The 3rd defendant appears to us to be a person coming within Order XXI, Rule 36 of the Civil Procedure Code, that is, a person entitled to occupy the property and not bound by any decree against the 1st defendant to relinquish his occupancy. If the 3rd defendant had not been made a party to the suit at all, it would have been open to the Court to deliver possession under the provisions of Order XXI, Rule 36. We think there should be a decree in ejectment against the 1st defendant, and it would, be open to the Court to deliver possession under Order XXI, Rule 33. We have considered it desirable to adopt this course, for, otherwise, if we dismiss the suit altogether, the 1st defendant would be able to plead limitation in any subsequent suit by the plaintiff apart from any question of res judicata. The 3rd defendant being only a mortgagee under the 1st defendant, he could acquire only a mortgage right by prescription. The plaintiff obtaining possession against the 1st defendant would hereafter be entitled to sue the 3rd defendant for redemption.
3. The decree will, therefore, be that 1st defendant do deliver possession of the property to the plaintiff. The decree for mesne profits against the 2nd defendant will stand. We do not pass any decree in ejectment against the 3rd defendant. We direct that the decrees of the lower Courts be set aside and a decree substituted in terms stated above. The 1st and 2nd defendants will pay the plaintiff's costs in the lower Courts. There will be no order for costs in this Court. The 3rd defendant will bear his own costs in the lower Courts.