B.N. Banerjee, J.
1. This appeal is directed against an appellate decree passed in a suit for declaration of title and recovery of possession.
2. One Rahamatulla Naskar had two sons, Kamaruddi and Pijoruddi. On a partition between the two brothers, Pijoruddi got the properties now in dispute.
3. Pijoruddi had two sons, Taimuddi and Nasaruddi and a daughter Achhiman Bibi. Nasaruddi died during the life time of his father leaving a widow Meherjan and a son Abdur Rahim Naskar. Pijoruddi died in 1338 B. S.
4. Abdur Rahim Naskar is the plaintiff respondent in the present appeal.
5. At one time Abdur Rahim Naskar set up a story that in or about 1332 B. S. Pijoruddi had made an oral Heba in respect of six annas share of his property in favour of him (Abdur Rahim Naskar), the motive for the Heba being love and affection for Abdur Rahim, who became disentitled to inherit Pijoruddi on account of the death of his father during Pijo-ruddi's life time. Six years after the Heba Pijoruddi died, and the plaintiff continued to enjoy and possess Pijorudoi's estate jointly with his uncle Taimuddi, living all the while with in joint mess. Joint possession was, however, found to be inconvenient, and in Falgun, 1341 B. S., there was a partition of the properties among the plaintiff, his uncle and his aunt Achhiman Bibi, and the plaintiff got separate allotment of properties, which he began to possess separately.
6. The story of Heba in favour of Abdur Rahim was found to be untrue in a suit for partition filed by Achhiman Bibi.
7. In the present suit Abdur Rahim claims six annas share, in the estate left by Pijoruddi, not upon the footing of any Heba, as hitherto before claimed, but on the basis of adverse possession of the land in suit since Falgun, 1341 B. S., when, as alleged, a partition of properties was effected.
8. The plaintiff's claim was contested by defendant No. 1 Abdul Jabbar, son of Taimuddi, and defendant No. 3, Achhiman Bibi. The defence, in substance, was that the claim was learned by principles of res judicata and estoppel. It was further urged that the plaintiff had never obtained any property under any Heba and had never been in possession of the disputed properties in any capacity. The story of partition in Falgun, 1341 B. S. was challenged as untrue, and so also his story of adverse possession.
9. The learned Subordinate Judge who tried the suit held that the plaintiff had no title in the land in dispute and had not also acquired any title by adverse possession. In that view of the matter he dismissed the suit.
10. The plaintiff appealed and the Court of appeal below reversed the judgment of the Trial Court and declared the title of the plaintiff to six annas share in the property in suit. There was also a decree for recovery of possession made in favour of the plaintiff by eviction of the defendants. The reasons, which actuated the learned Additional District Judge to reverse the decree of the Trial Court, will appear from the following quotations from his judgment:
'(a) But since the alleged partition between the plaintiff and Taimuddi in Falgoon 1341 B. S. when the plaintiff began to possess separately there can be no such factum. The plaintiff was then possessing in bis own right claiming the property to be his own. It is no doubt true that at that time the plaintiff was possessing in assertion of his own right, title and interest as the lawful owner on the basis of the Heba made by his grandfather. But even if this title was found defective in future the possession was adverse against the rightful owners from the very beginning, namely, Falgoon 1341 B. S.'
'(b) . there can be no legal bar to the plaintiff obtaining a decree by adverse possession if the Court believes the story to be true. Now it appears from the judgment obtained by defendant No. 3, that defendant No. 3 was never in actual possession of any part of the suit lands. Her case is that she used to get the usufruct from Taimuddi and thereafter from Abdul Jabbar. On a careful consideration of the evidence on the record and giving my anxious consideration to the broad probabilities of the case I am of opinion than the plaintiff has succeeded in proving that since 1341 B. S. he has been possessing six annas of the property separately in assertion of his own right, title and interest to the same and that by possessing up tp Falgoon 1353 B. S. he has acquired good title to the properties claimed by him.'
'(c) It is no doubt true that the partition between Taimuddi and the present plaintiff was not binding against the defendant No. 3. But with the death of Pijoruddi defendant No 3 had right to immediate possession and if she did not turn up and obtain a decree and obtain recovery of possession that is her own fault. It is no doubt a matter of regret that defendant No. 3 who would be owner to the extent of 1/3rd of the properties should lose because of the adverse possession of the plaintiff.'
11. The judgment and decree above referred to is now challenged in appeal by Achhiman Bibi, defendant No. 3. Mr. Janah appearing for the appellant urged two points in support of the appeal:
1. That the story of adverse possession was a new story not made out at any previous stage and not even pleaded in defence in the suit for partition brought by Achhiman Bibi; the plaintiff should not have been allowed to make that case.
2. Even if the plaintiff had at any time been in adverse possession, the filing of the partition suit in 1942 by Achhiman stopped the running of time and the right, title and interest of the original owners were not extinguished.
12. We are unable to accept the first contention of Mr. Janah. The plaintiff's story is that he got separate possession in Falgnn, 1341 B. S. (February-March, 1935); at the time of the filing of the partition suit by Achhiman Bibi in 1942, the plaintiff had not completed possession for twelve years, and, therefore, could not set up a defence of acquisition of title by adverve possession.
13. The second contention, advanced by Mr. Janah, however, requires serious consideration. In order to test the soundness of this branch of argument of Mr. Janah, viz., that thefiling of the partition suit by Achhiman Bibi 1942 arrested (he running of time against her, the pleadings of the said partition suit as well as the decree passed in the suit will have to be examined.
14. But before we do that, it is necessary to indicate how Mr. Mitter, the learned Advocate for the respondent Abdur Rahim, attacked the second branch of argument advanced by Mr. Janah. According to Mr. Mitter, the partition suit filed by Achhiman Bibi, so far as Abdur Rahim was concerned, merely sought for a declaration that Abdur Rahim had not acquired any title by Heba. Abdur Rahim's possession was not sought to be disturbed, and there was no decree for possession made againt Abdur Rahim in the partition suit. The result was that Abdur Rahim continued in possession and bv efflux of time, the title that other persons had in the disputed property was extinguished. In support of his contention Mr. Mitter relied on a decision reported in Singara-velu Mudaliar v. Chokkalinga Mudaliar, ILR 46 Mad 525: (AIR 1923 Mad 88 (2)), (A), the Televant extract from which is quoted below:
'A judgment in a prior suit may operate as res judicata in a subsequent suit between the same parties or their representatives in interest if it decides what was the character of the possession of any person who was a party to the suit, e.g., whether it was then, adverse or permissive possession or whether it was separate or joint possession. But I am with due respect quite unable to understand how the judgment of a Court declaring that one of the parties has no legal title to the properties in suit, can have the effect of causing his possession to cease to be adverse to the opposite party from the moment of its pronouncement, so long as possession remains undisturbed. Such a judgment would rather appear to emphasise the adverse-ness of the possession of the trespasser as against the true owner. It cannot benefit (he true owner, who omits for some reason or other to take steps to eject the trespasser before the latter completes the period of possession required for the establishment of a prescriptive title.'
15. When somebody is in wrongful possession and a suit is filed against him merely for a declaration that he has no right to be in possession, without prayer for consequential relief by way of recovery of possession, declaratory decree passed in the suit in no way disturbs wrongful possession and by efflux, of time it may ripen into prescriptive title. The question, therefore, is whether the partition suit filed by Achhiman Bibi in 1942 was a suit for mere declaration, so far as Abdur Rahim, the present plaintiff, was concerned.
16. The plaint in the partition suit is exhibit H. Abdur Rahim was defendant No. 3 and his mother Meherjan Bibi was defendant No. 4. Taimuddi was dead at the lime of the partition suit. His son Abdur Tabbar and his widow Kachiman were parties defendants Nos. 1 and 2 respectively. The case made in the plaint, in so far as it is material for our present purpose, was that
'On the death of Pisaruddi, Asiman Bibi inherited one-third of the lands in the 'Ka' Schedule. She lived in her husband's house in another village but used to get usufructs of the lands from Tayemuaddi Naskar and his son Abdur Jabber. But they did not give her the full share due to her. Therefore, she prayed for accounts. Pisaraddi was about 90 years old and bedridden at the time of the shipment survey. He relied on Komoraddi's son Tehe-raddi for making the records of rights. He loved Abdur Rahim much and in collusion with Tayemaddi Naskar prepared records in which the plaintiff was totally omitted. In the Kalians the shares of Pisaraddi, Tayemadi and Abdul Rahim were recorded in various ways. Thus, the records were wrongly made. As the defendants' request to Abdul Jubbar for partition was not acceded to, the plaintiff filed the suit for partition and accounts. Prayers (Ka) and (Kha) to the plaint were to the following effect:
'(Ka) Declaration that in the Ka schedule properties in suit the plaintiff has an undivided one-third share, defendant No. 1 an undivided 7/12th share and defendant No. 2 has an undivided l/12th share and for a preliminary decree for partition accordingly.
(Kha) Partition by metes and bounds of the Ka schedule properties according to the aforesaid shares through a competent commissioner appointed by the Court and for delivery of separate possession of the demarcated shares allotted to the plaintiff.'
17. Abdul Jabbar, the first defendant, in his written statement admitted the plaintiff's case, but denied his liability for account. The claim for accounts and mesne profits, we find, was ultimately given up.
18. The present plaintiff, who was the third defendant in the partition suit, disputed Achhiman Bibi's claim in the partiton suit on the allegation of a Heba in his favour.
19. The Judgment of the Trial Court in the partition suit is exhibit F. Hereinbelow is quoted the ordering portion from the said judgment :
'Ordered that) this suit be decreed in part preliminarily on contest against the defendants Nos. 1 and 3 and ex parte against Nos. 2 and 4; that the plaintiff shall recover costs less the costs for accounts from the 3rd defendant, that the plaintiffs prayer for accounts against the 1st defendant be dismissed, that the plaintiffs title be declared to one-third of the lands in the Ka schedule of the plaint, that it be declared that the 3rd and the 4th defendants have no share in the plaint lands, that on the plaintiff depositing Rs. 50/- within one month of the decree a pleader commissioner shall be appointed to effect partition of the lands by metes and bounds, that the Commissioner shall keep the present possessions intact as far as possible and shall allow compensation where necessary, and that the parties shall bear subsequent costs prorate.'
20. Abdur Rahim, the present plaintiff, successively appealed against the said judgmentand decree up to the High Court but to no effect.
21. Final decree for partition (exhibit A) was passed on compromise between the plaintiff in that suit on one hand and defendants Nos. 1 and 2 of that suit on the other, and by execulion of the decree Achhiman Bibi obtained possession of the properties allotted to her on or about 8th October, 1947. Exhibit E(l) is the receipt for delivery of possession.
22. The present suit was filed on 21st April, 1947, several months earlier than the time when delivery of possession was taken by Achiman Bibi.
23. It appears from what has been stated above that the partition suit was not a mere suit for declaration. In that suit Achiman Bibi had asked for declaration of title as also delivery of separate possession to her. The prayer was made in the presence of Abdur Rahim, defendant No. 3, in that suit. That prayer was contested by Abdur Rahim, but the contest failed. Achiman Bibi got' a decree for partition of her share and in execution of that decree obtained the separate possession of the properties allotted to her.
24. In the context of events in this case, the law, as laid down in ILR 46 Mad 525: (AIR 1923 Mad 88(2) ) (A) (supra), has no application & is clearly distinguishable. The partition suit was not a mere suit for declaration but there was a claim for possession as well.
25. The story of Heba and of partition in 1341 B. S. are interlinked. If the story of Heba failed, as it did, the consequential story of separate possession on the footing of partition should also have failed. Bub then the lower Appellate Court, being the final Court on fact, has proceeded on the basis that Abdur Rahim was in separate possession of the suit properties since Falgun, 1341 B. S.
26. Even assuming that Abdur Rahim was in possession of the suit properties since Falgun, 134J B. S. (February-March, 19351, he had nut acquired prescriptive title in 1942 when Achhiman Bibi filed suit for partition and separate possession. The filing of that suit, in our opinion, arrested the running of time. Mr. Mitter tried to argue that in the absence of specific prayer for possession against Abdur Rahim in the partition suit, the mere fact (hat the decree in the partition suit was made in the presence of Abdur Rahim would not improve matters. He relied on the following observation of Lord Buckmaster in Subbariya Pandurarn v. Maham-mad Mustapha, ILR 46 Mad 751 at p. 755: (AIR 1923 PC 175 at P. 176) (B).
'Now the real argument in favour of the appellant was that in the presence of the purchaser it was declared that the trust had been validly created and that the property was, in fact, trust property, and it is suggested that this effect's res judicata as against the respondents and prevents them from now asserting that the propery is their own. Their Lordships do not think that the decree had that effect. At the moment when it was passed the possession of the purchaser was adverse, and the declaration-that the property had been properly made subject to a trust disposition and therefore ought not to have been seized, did not disturb or affect the quality of his possession; it merely emphasised the fact that it was adverse. No further step was taken in consequence of that declaration until the present proceedings were instituted, when it was too late.'
27. We hold that there is considerable difference between a suit for mere declaration and a suit for declaration coupled with a prayer for possession. It is true that by a decree for declaration without more the position of a person in wrongful occupation will not be disturbed, even if the decree be passed in his presence. If such person continues in possession even after the declaratory decree, he may, nevertheless, acquire prescriptive title. The consequences are different if the suit for declaration is coupled with a claim for possession, as was . done in the present case, and such suit is decreed.
28. The decree for partition and separate possession was made in favour of Achiman Bibi and other co-owners in the presence of Abdur Rahim. We hold that the aforesaid, decree was binding upon him. He cannot now turn round and say that although his defence of Heba failed, his possession was left undisturbed after the decree for possession and. ripened into prescriptive title by efflux of time.
29. We uphold the second argument advanced by Mr. Janah and we allow this appeal.
30. The judgment and decree of the Court of appeal below are set aside and the judgment and decree of the Trial Court are restored and affirmed. The appellant is entitled to the costs of the Court of appeal below as well as the costs of this Court from the contesting respondent.
Renupada Mukherjee, J.
31. I agree.