Richard Garth, C.J.
1. We are of opinion that as the plaintiff was put in possession under that decree by the officer of the Court, the form in which execution was given was quite immaterial. All that was necessary was for the officer of the Court to go upon a portion of the land, and give the plaintiff possession of that portion in respect of the whole ; and any formal mistake which may have been made by the officer in the mode of giving possession could not prejudice the plaintiff. It does not appear that the defendants resisted the officer when he gave possession, or that it become necessary to turn them out by main force.
2. The Subordinate Judge has, unfortunately, fallen into the common error which prevailed in the Mofussil Courts a few years ago, that the formal possession which the Civil Court gives under an execution is not actual possession ; whereas, as between the parties, it operates, in point of law and in fact, as a complete transfer of actual possession from the one party to the other. It would not be so as against third parties of course ; but, as between the parties to the suit, the formal delivery passes the actual possession as it can be passed. This has been decided by a Full Bench of this Court: Juggobundhu Mookerjee v. Bam Chunder Bysack (I. L. R., 5 Cal., 584).
3. The Subordinate Judge is quite in error in supposing that possession was given to the plaintiff as malik only, and that the defendants continued to hold the actual possession, because this would have been entirely inconsistent with the decree pronounced by the Court. The defendants had set up that they were the plaintiff's tenants, and by the decree that defence was directly negatived.
4. The case will, therefore, go back to the Court below for retrial; and it must be taken for granted, that the plaintiff did obtain khas possession against the defendants within twelve years of the commencement of this suit. So that unless the defendants can show that something has happened since that time to create a new tenancy between them and the plaintiff, or to justify them in some way in retaining possession as against the plaintiff, the latter must succeed in this suit.
5. The appellant must have his costs of this appeal, and the costs of the lower Court will abide the result of the new trial.
6. The appeal No. 1767 is admittedly governed by this decision, and will 1 remanded accordingly, the same order being made in that case as regards cost.