Narayan, J.:— The defendants are the appellants, and the appeal arises out of a suit for declaration of title and recovery of possession with regard to 284 bighas 15 kathas 7 dhurs of raiyati land which was held by the defendants under Damodar Prasad, Deokinandan Prasad and Girdhar Prasad, the adoptive father of plaintiff No. 4 who were full brothers. This disputed property is a portion of a holding having an area of 286 bighas 19 kathas 2 dhurs and carrying an annual jama of Rs. 570/15/- including cess. In 1929 a rent suit was instituted against the defendants for the realisation of rent for 1335 and 12 annas kist or 1336, and the suit was decreed on 12-2-1930. This decree was executed thrice, for the first time in the year 1932, for the second time in the year 1933 and for the last time in the year 1935. The decree was for a sum of Rs. 1066/- and for interest thereon, and certain payments were made in the first two executions. In the last execution the entire holding was sold for Rs. 1006/- on 19-5-1936, and possession was delivered to the decree-holders auction-purchasers on 27-11-1937.

2. By a partition amongst the three brothers mauza Belwara in which the property in suit lies was allotted to the share of Girdhar Prasad, the father of plaintiff No. 4. Girdhar Prasad died in October 1942, and his heirs are the plaintiffs second-party in this suit. The plaintiff No. 4 is his adopted son, and the plaintiffs Nos. 5, 6 and 7 are the sons of plaintiff No. 4. The plaintiffs second-party are the members of a joint Hindu family, and the plaintiffs first-party are the members of another joint Hindu family. The case put forword ??? the plaintiffs was that ever since the date of delivery of possession the decree-holders auction-purchasers had been in possession of the lands. The plaintiffs have further alleged that in the year 1351 fasli one Basdeo Kumar took raiyati settlement of 1 bigha ??? kathas 16 dhurs out of this land from the plaintiffs second-party and have been in possession of it since then and that under a hukumnama dated 2nd March 1351 fasli the plaintiffs first-party took raiyati settlement of the remaining 285 bighas 13 kathas 6 dhurs of land from the plaintiffs second-party at an annual jama of Rs. 857/4/9. The plaintiffs first-party are said to have subsequently sold 19 kathas 19 dhurs out of the land settled with them to one Dukhi Gope. According to the plaintiffs' allegation 284 bighas 15 kathas 7 dhurs of land was left with the plaintiffs first-party, and this is the subject of this suit. In the year 1945 there were certain criminal proceedings with regard to these lands, and ultimately on 18-2-1947 the learned Magistrate of Khagaria passed an order adverse to the plaintiffs, and it is said that on the strength of this order the defendants dispossessed the plaintiffs from the property in suit on 21-2-1947. The defence substantially was that possession had never been transferred to the decree-holders auction-purchasers and that under an arrangement arrived at between the landlords and these defendants, they paid off the entire decretal amount and were allowed to continue in possession of the holding. The learned Subordinate Judge has accepted the defendants' version that their possession was never actually disturbed, but he has discredited the defendants story to the effect that there was an arrangement between them and the landlords, according to which the decree had been satisfied and they had been allowed to hold over as tenants.

3. The first execution case was filed on 25-4-1932, and it was dismissed on part satisfaction on 4-8-1932. The amount paid towards the decree in this execution case was only Rs. 10/- though the execution had been taken out for Rs. 1413/5. The second execution case was filed on 8-4-1933, and it was dismissed on part satisfaction on 4-9-1933. The amount paid in this execution case appears to have been Rs. 377/- only. The third execution case in which the property was sold had been filed in December 1935, and the amount claimed in this execution case was Rs. 1134/-. The proceedings connected with this execution case are important for the purpose of this case, and it appears that on 10-2-1936 the Court passed an order for the issue of attachment and sale proclamation fixing 21-4-1936 for sale. On 21-4-1936 all the judgment-debtors appeared and applied for adjournment after waiving all objections necessitating the issue of a fresh sale proclamation. Rs. 15/- was paid on this date, and the sale was adjourned to 19-5-1936, on which date it was actually held. The sale was confirmed on 20-6-1936, and the order dated 13-2-1937 shows that possession had been delivered and no objection had been raised by the judgment-debtors with regard to it.

4. Payments towards the decree have been indicated above, but besides these there had been certain other payments, on which rests the entire argument advanced before us by the learned counsel for the appellants. There are receipts showing payments of Rs. 701 and Rs. 704/12/- on 24th Bhado 1341 and 28th Bhado 1342, respectively, and it is admitted by the plaintiffs that the defendants had executed a handnote for Rs. 701/- in favour of Girdhar on 30th Bhado 1341, corresponding to 23-9-1934, and a handnote for Rs. 705/- in favour of the same gentleman on 30th Bhado 1342, corresponding to 12-9-1935. These handnotes, according to the allegation of the plaintiffs, were allowed to be time-barred, and the submission made on their behalf is that it was no use suing the defendants on the basis of these handnotes, as they were heavily in arrears so far as rent was concerned, and there was no prospect of realising these amounts from them. The contention on behalf of the defendants, however, is that no cash advance of Rs. 701 or Rs. 705/- was made to them, but that for the arrears of rent only they were made to execute these handnotes.

5. It is unnecessary to investigate in this case as to which of the two versions on this point is correct, and even assuming that there was no cash payment of Rs. 701/- and Rs. 704/12/- as indicated in the receipts and that the handnotes were really executed for these amounts, that cannot strengthen the defendants' case in this litigation. The receipts go to show that the arrears of rent in the year 1342 amounted Rs. 3068/11/3, and towards these arrears only Rs. 704/12/- was paid. These two handnotes had been executed before the decree, and they cannot be relied on for proving the alleged adjustment of the decree or the alleged agreement. Sir Sultan Ahmad who argued this appeal on behalf of the appellants before us had to admit that except a payment of Rs. 100/- the defendants have not been able to show any other payment towards the decree money. The question, therefore, arises as to whether the alleged payment of Rs. 100/- can at all be regarded as a payment towards the decree money.

6. (After discussing the evidence, the judgment proceeds as follows:) The circumstances, therefore, unmistakably go to show that neither Rs. 100/- nor Rs. 907/- was accepted towards decree money.

7. Beyond raising certain suspicions the defendants have done nothing further towards the advancement of their case, and there is no reliable material on the record from which we ran gather that by the consent of the landlord purchaser the sale was rendered ineffectual and the old tenants had been allowed to hold over.

8. Accepting the finding of the learned Subordinate Judge on the question of possession to be correct, there is no warrant for the proposition that simply because the landlord waited for so many years for instituting the suit after the formal delivery of possession, the tenant would be deemed to have held over. The expression “holding over” means that the relationship of landlord and tenant was allowed to continue with the consent of both parties, and it is for the tenant to prove the overt acts by which the relation was allowed to continue. These overt acts may be either the receipt of the rent by the landlord or his assenting to the continuance of the tenancy by other acts. In this case if it is not proved that Rs. 100/- was paid towards rent, and if it is not proved that the handnote on the basis of which the Small Cause Court suit was instituted was really a handnote for Rs. 907/- executed for arrears of rent, then the defendants cannot be held to have shown any overt act on the part of the landlord amounting to the continuance of the old tenancy. And, certainly, it is impossible to hold that Rs. 100/- was paid towards the decree money or that there was a handnote for Rs. 907/- executed for arrears of rent. It is now settled law that

“where in execution of a decree, symbolical possession is delivered of immoveable property to the person entitled to possession thereof, and such a person brings a suit for recovery of actual possession, the symbolical possession will be deemed equivalent to actual possession as against the judgment-debtor or his representatives and the suit will be deemed to have been brought in time if it has been brought within twelve years from the date of the symbolical possession” (vide — ‘Ramanand v. Bindhachal Tewari’, AIR 1948 Pat 416 (A)).

9. I should like to quote the following passage from the judgment of Rankin C.J in the well-known Full Bench decision of the Calcutta High Court, — ‘Lakshanchandra Naskar v. Ramdas Mandal’, AIR 1929 Cal 374 (FB) (B):

“When a judgment debtor's property has been sold in execution, and the judgment-debtor has been put out of possession by the court's delivery of possession to the purchaser, it seems clear, both on principle and authority, that he cannot, upon any allegation of fraud claim to ignore the sale. He may have a right to set the sale aside in appropriate proceedings and in some cases this right may be admitted at least in equity as a defence to a claim. I will assume, without deciding the question, that this right may be asserted by a defendant even after the Limitation Act has made it impossible for him to institute proceedings to enforce it. But, if there is no right to have the sale set aside, the case is very different. Here it has to be conceded that neither in execution nor by a suit could the defendant at any time have asserted that the sale was liable to be set aside at his instance. There is only one court in which he could have claimed the relief, and in that court he had failed to do what was necessary to enable him to set up his case. Upon what principle can he claim as a defendant to be in a better position to challenge the sale, then he would have occupied in a proceeding brought by himself for the purpose?

It seems to me that we have to choose in this case between two views of the intention of the legislature. On one view, the failure to get an adjustment of the decree recorded involves that the defendant must treat the sale as valid and seek his remedy in damages or otherwise without challenging the sale. On the other view, he must suffer ejectment under R. 95 of O. 21, and can by no proceedings seek to be restored to possession, but, if he seizes possession, he can claim that the sale was never binding upon him and that he is the rightful owner. This it would seem to follow, he can do at any time, provided that his ouster of the decree-holder auction-purchaser was within twelve years of delivery of possession. In my opinion, the former view is correct and the latter view is erroneous.”

10. A Full Bench of the Madras High Court in — ‘Abdul Subhan Sahib v. Ramanna’, AIR 1945 Mad 161 (FB) (C). expressed their absolute concurrence with this view, and Leach C.J who delivered the judgment of the Court observed as follows:

“In our judgment it is not open to a judgment-debtor or any one standing in his shoes to plead an uncertified adjustment of the decree by way of defence to a suit filed by the auction purchaser for possession. We are in accord with all that was said in AIR 1929 Cal 374 (B). An uncertified adjustment cannot be pleaded in bar of execution and once the sale has been confirmed by the Court it confers an absolute title on the auction purchaser, whether he be the decree-holder or a stranger, provided there was title in the judgment-debtor. This is clearly the effect of O. 21, R. 92. It matters not whether the decree-holder has deliberately deceived the judgment-debtor and by false statements prevented him from taking steps himself to have an adjustment certified. To hold that a judgment-debtor or his representative can resist a suit for possession by the; auction purchaser would mean a disregard of Statutory provisions expressed in unambiguours language.”

11. There is, therefore, no reason why the claim for possession as made in this suit should not be decreed. The circumstances relied on by the defendants for proving that the landlords had permitted them to hold over are too feeble to deserve any serious consideration. It is immaterial if the Rent Reduction Officer had allowed partial or complete remission of rent with regard to certain other lands in the mauza, probably lying in a different direction, on account of Kosi flood. And there may be various reasons for the defendants not taking any action under the Bihar Restoration of Bakasht Lands and Reduction of Arrears of Rent Act. It appears that they were so much in want of money that they could not easily afford to take such steps.

12. Though in the written statement a plea had been taken that in 1340 this holding was amalgamated with another newly settled holding of 7 bighas and odd, the Counsel for the appellants could not rely on this circumstance before us. The fact is that though some of the receipts, Exhibits B series, show that rents of the two holdings were realised together, there are unimpeachable documents on the record to show that the defendants were sued separately for this holding of 7 bighas and odd. Exhibit 21(b) is a decree for the rent of the year 1353 with regard to this new holding of 7 bighas and odd. The plea of amalgamation could not therefore be pressed before us.

13. In the question of possession I accept the finding of the Court below though Mr. Dutt for the respondents had argued that possession should have been found with the plaintiffs. P.W 6 had to admit that “there were never ploughs and bullocks in the kutchery of Girdhar Babu” and that the defendants have got six bullocks. It further appears from his evidence that Mushars of Mushartoli are the ploughmen and that they have been cultivating some of the lands since the 144 proceeding. According to P.W 5 the ploughs and the bullocks are kept in Mushartola and two of the Mushars are the ploughmen of Prit Babu. But in view of the statement of P.W 6 the ploughs and bullocks cannot be taken to be the property of the plaintiffs. When on the question of possession we are inclined to accept the entire finding of the learned Subordinate Judge, I need not recapitulate all that he has said on this point.

14. The cross-objection and the petition for taking additional evidence were not pressed by the Counsel for the respondents first party. In the result, therefore, I would dismiss this appeal with costs. The cross-objection is also dismissed, but without costs.

Imam, C.J:— I agree.

D.R.R

15. Appeal dismissed.