1. The learned Subordinate Judge has, it seems to us, overlooked the bearing of Article 142 of the Limitation Act. The plaintiff must prove not only that he is entitled to the property, but also (if and in so far as that is contested) that he has not been oft of possession during the whole of the twelve years preceding his suit. The fact that the defendants are not able to establish affirmatively that they have been continuously in possession for the said period of twelve years under Article 144 of the Limitation Act does not necessarily entitle the plaintiff to succeed unless the requirements of Article 142 are also satisfied. We must call for a finding, therefore, on the following issue: “Whether at any time within twelve years from the date of the suit the plaintiff or his predecessors-in-title were in possession of the property referred to in the plaint.”
2. In answering this question the Subordinate Judge will not consider the possession which was given to the plaintiff on the 24th October 1907 under the decree in Second Appeal No. 164 of 1903 on the file of the High Court. That decree was passed when the father of the present appellants stood on the record as a party respondent, though he had then died and his legal representatives had not been brought on the record. The decree was consequently not binding on the appellants and the delivery of possession on the 24th of October 1907 was cancelled for all legal intents and purposes when the possession was ordered to be re-delivered to the appellant in May 1908, In this connection we follow the decision of Loch, J., in Motee Singh v. Rajah Leelanund Singh 11 W.R. 49 though it was dissented from by Glover, J.
3. Fresh evidence may be given by either party.
4. The finding should be submitted within six weeks from this date and seven days will be allowed for tiling objections.
5. Finding.–I find the issue for defendants and against plaintiff.
6. This second appeal coming on for final hearing after the return of the above finding from the lower Appellate Court upon the issue referred to it for trial, the Court delivered the following.
7. Judgment.–We accept the finding and allow the appeal, dismissing the suit with costs throughout.