1. This is an appeal by the first four defendants in a suit for recovery of possession of land upon declaration of title. The Court of First Instance found in favour of the plaintiff upon the questions of title and possession and made a decree accordingly. Upon appeal by the defendants the Subordinate Judge has affirmed the decision of the Trial Court upon the question of title, and that portion of his judgment cannot, in our opinion, He successfully attacked in second appeal. But the appellants argue that his decision upon the question of limitation is erroneous, inasmuch as he has overruled the plea of limitation on the ground that 'there is no satisfactory evidence that the defendants had possession before the alleged date of dispossession and were in possession for upwards of twelve years.' In our opinion, this contention must prevail.
2. The plaintiff seeks to recover possession of the disputed land on the strength of title by purchase at a sale in execution of a mortgage-decree, which was held on the 19th September 1899 and was confirmed on the 9th November 1899, Symbolical possession was delivered to him by the execution Court on the 17th February 1900. He alleges that the judgment-debtors were in possession at the date of sale and continued in possession for a short time afterwards, and that when they vacated the land on or about the 13th April 1901, he went to take possession and was met by the defendants. He did not, however, institute the present suit to eject the defendants till the 29th June 1911. The defendants, on the other hand, allege that they have been in possession from a long time before the execution sale and that the claim is barred by limitation.
3. It is clear that the suit is governed by either Article 13 or Article 138 or Article 142 of the Limitation Act. As observed by Ranade, J., in Gopal v. Krishna Rao 25 B. 275: 2 Bom. L. R. 1021. Article 137 applies to an auction-purchaser of the rights of a judgment-debtor lint in possession at the date of the sale, while Article 138 applies to-an auction-purchaser of the rights of a judgment-debtor in possession at the date of the sale. In the former case the suit must be brought within twelve years from the date when the judgment-debtor is first entitled to possession in the latter Case the suit is in time if brought within twelve years from the date when the sale becomes absolute. It has some times been held that Article 138 applies only to suits brought against the judgment-debtor or persons who have derived title from him; and not to suits brought against persons who repudiate the title of the judgment-debtor [Raghu Nath Bhagat v. Syed Samad Shah 7 C. L. J. 560: 12 C. W. N. 617., Khiroda Kanta Roy v. Krishna Das Laba 6 Ind. Cas. 467: 12 C. L. J. 378.], It may be observed that if this restricted construction be adopted, Article 142 must be held applicable and would lead to the same result as would follow from an application of Article 138. In any event it is plain that the burden lies entirely upon the plaintiff to prove, not only that the has a title, but a subsisting title which he has not lost by the prescriptive sections of the Limitation Act; in other words he must show which Article of the Limitation Act saves his suit from the bar of limitation [Maharajah Koowur Baboo Nitrasur Singh v. Baboo Nand Loll Singh 8 M. I. A. 199: 1 W. R. P. C. 51: 1 Suth, P. C. J. 420: 1 Sar. P. C. J. 744: 19 E. R. 506., Gossain Dass Koondoo v. Siroo Koomaree Delia 19 W. R. 192: 12 B. L. R. 219., Secretary of State for India v. Vira Rayan 9 M. 175: 3 Ind. Dec. (N. S.) 519.]. In the present case the plaintiff asserts that the judgment-debtor whose fight, title and interest he purchased was in possession at the date of the sale and subsequently; the onus of proof is upon him and if he establishes the truth of his allegation, his suit is not barred whether Article 138 or 142 be applied; if on the other hand he fails to prove that the judgment-debtor was in possession at the date of the sale, Article 137 clearly applies; in that event, to save his suit from the bar of limitation; he must prove that his judgment-debtor became first entitled to possession Within twelve years before the commencement of the suit i.e., that the judgment-debtor lost possession on some date subsequent to the29th June 1899. The Subordinate Judge clearly committed an error of law when he threw the burden of proof upon this defendants to establish that they had been in adverse possession for over twelve years. The fundamental point for determination thus is, whether or not the judgment-debtor was in possession at the date of sale. The finding of the Court of First Instance upon this point was perfectly clear. The Subordinate Judge has riot affirmed that finding; on the other hand he has given reasons which are obviously insufficient to support his conclusion, and are erroneous in law. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and the Case remitted to him in, order that he may re-hear the appeal on one point only, namely, the question of limitation. The costs of this appeal will abide the result.