1. This appeal arises out of a suit for declaration of title and recovery of possession. The Court of first instance hold that the plaintiff bad succeeded in proving his title to eight annas of the property in dispute but that he had failed to prove his possession within twelve years of the suit and, in that view, that Court dismissed the plaintiff's suit. On appeal by the plaintiff, the lower Appellate Court found that the plaintiff had succeeded in establishing his right to the entire sixteen annas of the property but being of opinion that the plaintiff's suit had not been instituted within 12 years of the date of his dispossession, it upheld the decision of the Court of first instance and dismissed the appeal. Against this decision the plaintiff has preferred the present appeal.
2. The point which arises for consideration in this appeal is whether the lower Appellate Court was right in the view that it took on the Question of limitation In so far as it held that the time during which the plaintiff alleged that he bad been in possession by virtue of a decree in a suit under Section 9 of the Specific Relief Act which he had obtained against the defendants and which decree was ultimately reversed on review and after which reversal the plaintiff was again dispossessed should not be taken into account in computing the period of limitation prescribed for this suit. On this question, the facts are these: The plaintiff was dispossessed from the lands in suit on the 14th November, 1905. He instituted a suit under Section 9 of the Specific Relief Act, being Suit No. 321 of 1906, against the defendants and it was decreed on the 29th November, 1906. In execution of this decree, the plaintiff took delivery of possession on the 4th of January, 1907. The defendants then applied for a review of the judgment in the Specific Relief Act case and ultimately the plaintiff's suit was dismissed on the 9th January, 1908. After which date the defendants are alleged to have again taken possession of the lands by dispossessing the plaintiff. The present suit was instituted by the plaintiff on the 4th January, 1919, that is to say, more than twelve years from the date of his original dispossession but well within twelve years from the date, of his subsequent dispossession, or for the matter of that, of the date on which the decree in his favour was reversed. The learned Subordinate Judge took the view that the plaintiff must date his cause of action on the date that he was originally dispossess' ed and he cannot get an exclusion of the period under Section 14 of the Limitation Act during which he may have been in possession under the decree that was subsequently reversed. As an authority for the view that he has taken, the learned Subordinate Judge has relied upon the case of Narayan Chetty v. Kannammai Achi (1905) 28 Mad. 338. The head-note of that case runs:
Under Article 142, Schedule I of the Limitation Act limitation runs from the date of dispossession, and no fresh starting point is given because the party dispossessed subsequently obtains possession under a decree and is ousted from possession when the decree is reversed.
3. In that ease, however, the plaintiff was admittedly dispossessed in 1885. It is not possible to ascertain when he was put in possession in execution of the decree which he obtained; but it appears that the suit was instituted by him in 1895 and he was again dispossessed after reversal of that decree and instituted the second suit in 1900. The argument advanced on his behalf was that he was entitled to a deduction of the period during which he was in possession under the provisions of Section 14 of the Limitation Act for the purpose of computing the period under Article 142 of Schedule I of that Act. That argument did not succeed obviously because the plain words of Section 14 would show that it has no application and no such deduction can be made. The aspect of the question which arises in the present case was not dealt with in that case. That question is this: where a plaintiff being the rightful owner is kept out of possession for less than twelve years and then succeeds in regaining possession (no matter whether in execution of a decree In a possessory suit or in any other way) and then after a time is again dispossessed (no matter whether on reversal of that decree or in any other way) and thereafter institutes a suit for recovery of possession, can he base his suit treating the subsequent dispossession as his cause of action or will the period run from his earlier dispossession for the purpose of Article 142 of Schedule I of the Limitation Act?
4. The answer to this question is furnished by the principle laid down in the case of Trustees, Executors and Agency Co., Ltd. v. Short (1888) 13 App. Cas. 793, namely, that there can be no constructive possession of a wrong-doer during the time that he is not actually in possession and the possession of a true owner, no matter how that possession is obtained, must be considered as rightful possession in law and that the period during which the true owner is in possession will ensure to his benefit and not to that of the trespasser. If, therefore, the defendants in the present case had not already acquired a right by adverse possession as they had not, the dispossession having been on the 14th of November, 1905, and the possession under the decree under the Specific Relief Act suit having been taken by the plaintiff on the 4th January, 1907, no right accrued to them and there is no reason why the plaintiff should not be entitled to institute the suit on the basis of the subsequent dispossession as his cause of action. The view I take is in accord with that of Mitra, J., in a case in which his decision was upheld in an appeal under Section 15 of the Letters Patent; Protap Chandra Chatterjee v. Durga Charan Ghose (1904-05) 9 C.W.N. 1061. In the case of Mamtazuddin Bhutan v. Barkatulla (1905) 2 C.L.J. 1 it was held under circumstances some-what similar to those appearing in the case before me, that the cause of action accrued on the date of dispossession in consequence of the decree which the defendant in that case obtained under Section 9 of the Specific Relief Act and the suit being brought within twelve years from that date was within time and that the period between the regaining of possession by the plaintiff and his dispossession in execution of the decree under the Specific Relief Act should enure to his benefit and not that of the defendant.
5. Also in the case of Mir Wazir-ud-din v. Lala Deoki Nandan (1907) 6 C.L.J. 472, Mr. Justice Mukerjee observed as follows: 'When the title of a plaintiff is once established, his possession, however obtained, is possession within the meaning of Article 142 of Schedule I of the Limitation Act, so that where a rightful owner of land is dispossessed but succeeds in ousting the trespasser without recourse to law and continues in possession until dispossessed under a decree obtained by the trespasser under Section 9 of the Specific Relief Act, limitation runs against the true owner from the date of dispossession under the decree in the possessory suit.' It is unnecessary to refer to the other cases of this Court to which my attention has also been drawn; and in fact, the learned Vakil appearing on behalf of the respondents does not challenge the correctness of this proposition of law put forward on behalf of the appellant. He, however, contends that the question does not really arise inasmuch as the learned Munsiff found, as a matter of fact, that the plaintiff had not been able to prove that he was in actual possession of the disputed land after taking delivery of possession through Court on the 4th January, 1907, and, as some of the defendants were not parties to the suit under Section 9 of the Specific Belief Act, the plaintiff was not entitled to rely merely upon the delivery of possession which he alleged he had obtained through Court in execution of the decree in that suit. That seems to me to be a question of fact to be determined upon the evidence in the case as to whether the plaintiff was, as a matter of fact, in occupation after the delivery of possession through Court and, if so, up till what date. That question does not appear to have been gone into by the learned Subordinate Judge, and, in fact, it was unnecessary for him to do so having regard to the view that he took of the law. But, inasmuch as it seems to me that that is an erroneous view of the law, I set aside the decree passed by the Court of Appeal below and remit the case to that Court in order that that Court may deal with the question of fact indicated above and then dispose of the appeal in accordance with law. Coats will abide the result.