1. These two appeals arise out of the same judgment and have been heard together. This judgment will govern both the appeals, though I propose, for the sake of convenience, to deal with them separately.

2. In Second Appeal No. 203, the plaintiffs are the appellants, and the land involved is plot No. 1068. In second Appeal No. 564, the defendants are the appellants; and the plot involved is 1113. The facts so far as they are relevant for the two appeals are the following: One Bhikhu Mandal was the recorded tenant of holding No. 37 of village Nirsa in which holding were included the two plots in question. Bhikhu died some four, teen years before the suits were instituted, leaving a minor son called Kalipada, and his widow, Jamuna Mandalani. During the minority of Kalipada, Jamuna sold the two plots along with some other land to one Shambhu Mahto by means of a sale-deed executed on 29th April 1932. On 16th April 1943, sometime after Kalipada had attained majority, Kalipada executed an agreement to sell the lands to the plaintiffs. The case of the plaintiffs was that a sum of Rs. 50 was paid at the time of the agreement, and the plaintiffs were put in possession of the lands. On 13th September 1943, Kalipada executed a sale-deed in favour of the plaintiffs, who then paid the balance of the consideration. The plaintiffs remained in possession, but after a proceeding under Section 144 of the Cr PC, they were dispossessed in 1351 F, from one plot, and in 1352 F, from the other plot. The plaintiffs then brought the two suits for a declaration of their title and recovery of possession. The defendants were different in the two suits. In suit No. 134 of 1945, out of which has arisen Second Appeal No. 203 of this Court, the defendant was Girish Chandra Pal. His case was that Jamuna Mandalani executed a sale-deed in 1932 as guardian of Kalipada for legal necessity, and Shambhu came in possession as owner on the strength of that sale-deed. On 2nd September 1943, Shambhu and Kalipada jointly executed a sale deed in favour of Girish Chandra Pal in respect of plot No. 1068. The sale-deed was, therefore, prior in time to the sale-deed in favour of the plaintiffs, though, it was registered on 14th September 1943. Girish Chandra Pal based his title on the said sale-deed of 2nd September 1943. He raised various other pleas such as limitation etc., and also pleaded that the agreement dated 16th April 1943, was fraudulent, without consideration and antedated. The defendants in Suit No. 133, relied on another sale-deed, dated 14th September 1943, executed by Shambhu Mahto in favour of Sumitra, one of the defendants, in respect of plot No. 1113. This sale-deed was subsequent to the sale-deed in favour of the plaintiffs; and another distinguishing feature of this sale-deed from the sale-deed in favour of Girish Chandra Pal was that it was executed by Shambhu Mahto alone, and Kalipada was no party to this sale-deed of 14th September 1943.

3. The learned Munsif disbelieved the story of possession and dispossession which the plaintiffs alleged. He found that Shambhu was in possession since the sale-deed in his favour in 1932, either directly or through a mortgagee, and that the plaintiffs were never in possession. But the learned Munsif held that Shambhu acquired no title on the strength of the sale-deed executed by Jamuna Mandalani in 1932, and therefore the defendants also acquired no title on the strength of their purchase from Shambhu. On the question of limitation the learned Munsif considered only Article 144, Limitation Act, and held that as Jamuna sold the property as her own property and not as guardian of her minor son, the sale by her was absolutely void, and it was not necessary for the minor Kalipada to set it aside within three years from the attainment of majority. On these findings, the learned Munsif held that the plaintiffs acquired good title by the sale in their favour by Kalipada on 13th September 1943, and he decreed the suits accordingly. There were two appeals, and the learned Subordinate Judge who heard the appeal allowed the appeal of Girish Chandra Pal in respect of plot 1063, but dismissed the other appeal. The learned Subordinate Judge accepted the finding of the learned Munsif on the question of possession. He further held that the agreement in favour of the plaintiffs dated 16th April 1943 was genuine, for consideration, and was not antedated. He found, however, that the sale deed in favour of Girish Chandra Pal was also genuine and for consideration; and inasmuch as Kalipada was a party to this sale-deed, it had priority over the sale-deed in favour of the plaintiffs which was executed subsequently. The learned Subordinate Judge held that Girish Chandra Pal was a subsequent purchaser for value without notice of the agreement or contract for sale, and was not, therefore, hit by that agreement. As to Shambhu's title on the strength of the sale-deed of 1932, executed by Jamuna Mandalani, the learned Subordinate Judge agreed with the learned Munsif that Shambhu acquired no title on the strength of that sale-deed, and the defendants of suit No. 133, also acquired no title by the sale-deed which they obtained from Shambhu Mahto on 14th September 1943. Therefore, he agreed with the learned Munsif that the sale-deed executed by Kalipada in favour of the plaintiffs would prevail over the sale-deed executed by Shambhu in favour of the defendants of suit No. 133. The question of limitation in the way in which it has been urged before me does not appear to have been considered by the learned Subordinate Judge.

4. Having stated the facts which are common to both the appeals, I now proceed to consider the two appeals separately.

5. S.A 203 of 1948.— Learned counsel for the appellants has contended that in view of the finding of the learned Subordinate Judge that the contract or agreement for sale dated 16th April 1943, was valid, genuine, and not antedated, he should have treated the suit as a suit for specific performance of the contract. He further contended that the learned Subordinate Judge misdirected himself on the question of onus, inasmuch as it was for Girish Chandra Pal to prove that he was a transferee for value who had paid the money in good faith and without notice of the original contract. My attention has been drawn to the plaint where an alternative prayer was made that the defendant be asked to execute a sale-deed in favour of the plaintiffs. The learned Munsif while dealing with this prayer stated that there was no occasion for entertainment of the alternative prayer, because (1) Girish Chandra Pal had not acquired any valid title by means of tee sale-deed in his favour executed on 2nd September 1943, and (2) the plaintiffs had acquired a valid title by means of the purchase from Kalipada Mandal on 13th September 1943. In my opinion, the difficulty of treating the suit as a suit for specific performance of the contract or agreement for sale lies in the fact that on the appellants' own case Kalipada Mandal had performed his part of the contract and executed a sale deed in favour of the appellants on 13th September 1943. Not only that, but the case of the appellants was that they had come in possession and were dispossessed sometime later. It was probably for this reason that Kalipada was not made a party to the action. Therefore, there is no occasion for specific performance, on the case pleaded in the plaint. The case, as presented in the Courts below, was a straightforward case of a competition between two sale deeds, the one in favour of the appellants, dated 13th September 1943, and the other in favour of Girish Chandra Pal, dated 2nd September 1943. It was the case of the appellants that Girish Chandra Pal acquired no title by his purchase inasmuch as Shambhu Mahto, who had no title himself, could not confer any title on Girish Chandra Pal. In these circumstances, I do not think that the suit can now be treated as a suit for specific performance.

6. Assuming, however, that the suit can be so treated, the learned Subordinate Judge has not based his decision on the abstract theory of onus only. Firstly, he has found, in agreement with the learned Munsif, that the appellants never came in possession: there was, therefore, no constructive notice on the ground of possession. Secondly, he has found that there is no evidence at all to show that Girish Chandra Pal had notice of the contract for sale prior to, or at the time of, his purchase. Learned Counsel for the appellants has not been able to show to me that this finding of the learned Subordinate Judge is in any way incorrect. The learned Subordinate Judge has also found that the sale deed in favour of Girish Chandra Pal was genuine and for consideration. On these findings, Girish Chandra Pal is entitled, in my opinion, to the protection of Section 27(b) of the Specific Relief Act, as he is a transferee for value who has paid his money in good faith and without notice of the original contract.

7. This finding, by itself, is sufficient to dispose of this appeal. There is, however, another aspect of the case bearing on the question of limitation which does not appear to have been considered by any of the Courts below. In both the suits the defendants raised the plea of limitation. The suits were actions in ejectment, and on the principle laid down in the Full Bench decision in Shiva Prasad Singh v. Hira Singh, 6 P.L.J 478 : (A.I.R (8) 1921 Pat. 237) the plaintiffs had to prove their subsisting title, that is, possession within twelve years before they could succeed. The concurrent finding of the Courts below is that Shambhu Mahto came in possession in 1932. He remained in possession till 1943 when he executed the two sale-deeds, one in favour of Girish Chandra Pal in respect of plot No. 1068, and the other in favour of Sumitra in respect of plot No. 1113. Kalipada was a minor at the time when the sale-deed in favour of Shambhu was executed by Jamuna Mandalani in 1932, and attained majority in 1939. It has been found that Jamuna Mandalani purported to transfer the property to Shambhu in her own right, and not as guardian of her minor son. In other words, she transferred the property as an unauthorised person, and Shambhu's possession was without any valid title; therefore, Shambhu's possession was adverse to that of the rightful owner. There are a number of decisions which have laid down that limitation does not cease to run merely because the rightful owner is a minor at the time when limitation starts. The combined effect of Sections 6, 7 and 8 of the Limitation Act, has been put very clearly in Gajapati Narasimha Deo Garu v. Gajapati Krishnachandra Deo Garu, A.I.R (7) 1920 Mad. 793 : (52 I.C 725). Their Lordships observed at p. 797 of the Report:

“The effect is that time runs against a minor just in against a person sui juris, but in the case of a minor, he will have three years more alter the cessation of a disability if the period of time allowed for the suit or application expired before he attained majority. In some cases it may be that the time would not as provided in the articles expire before a minor attains majority. Then he will have that time within which to institute the suit, that is, in no case he shall have less than the time allowed by the articles but in certain cases he will have three years more after the cessation of the disability.”

8. The same view is expressed in Kalidindi Seetaramaraju v. Subbraju, A.I.R (9) 1922 Mad. 12 : (45 Mad. 361) and also in Laloo Karikar v. Jagat Chandra Saha, A.I.R (8) 1921 Cal. 572 : (62 I.C 428). The Calcutta case related to an alienation by a Muhammadan mother who had no power as de facto guardian of her infant children to alienate or charge their immovable property, and it was observed that the infant, whose property was thus alienated, was entitled to institute a suit for recovery of possession within 12 years from the date of sale, or within three years from the attainment of majority, whichever might be the later date. In the case before me, Shambhu Mahto was in possession from 1932 to 1943, and in 1943 the persons who purchased from Shambhu Mahto came in possession. If Article 142 applies, as in my opinion it does, the suits were clearly barred by time, as the plaintiffs had failed to prove their subsisting title. Learned counsel for the plaintiff-appellants has contended that Article 144, Limitation Act, would apply, and has relied on a Single Judge decision of this Court in Kanchan Teli v. Moga Mahton, A.I.R (21) 1934 Pat. 593 : (152 I.C 906), where it was observed that the question of onus must be determined upon the allegation of the plaintiff and the defendant. That was a case where the defendant alleged that the plaintiff had never been in possession. In the case before me, the allegation of the defendant was that Kalipada ceased to have possession after the sale by his mother in favour of Shambhu Mahto. I do not think that the plaintiffs-appellants are in a better position if Article 144, Limitation Act is applied. Shambhu's possession was undoubtedly hostile to the rightful owner. Shambhu purchased the property from Jamuna: that purchase gave him no title, but he came in possession in open assertion of his hostile title. He continued in such possession till 1943 and sold the lands in that year to the defendant. The defendant is, in my opinion, entitled to tack the possession of Shambhu. Kalipada attained majority in 1939. That is the finding of the Courts below. The suits were instituted in 1945 that is, more than 12 years after limitation had begun to run, and also beyond the period of three years of attaining majority by Kalipada. It has been contended before me that the possession of the mother who was the guardian of Kalipada was not and could not be adverse to Kalipada, it is further contended that the guardian cannot by a device give possession to somebody else and make it adverse to the minor. This, however, is not a case where the guardian by a device gives possession to somebody else on behalf of the minor. This is a case where the mother purports to sell in her own right, and the finding of the Courts below is that the purchase was genuine and for consideration. My attention has been drawn to a statement in the judgment of the learned Munsif that Shambhu was related to Kalipada's father. Assuming that there was such a relation, the clear finding of the Courts below is that Shambhu came in possession asserting his own right to the property by the purchase from the mother. In such circumstances, Shambhu's possession was undoubtedly hostile to that of the rightful owner. Learned counsel for the plaintiffs-appellants has placed reliance on a decision of the Privy Council in Ghulam Mohammad v. Ghulam Husain, A.I.R (19) 1932 P.C 81 : (54 ALL. 93). That was, however, a case where the mother was in possession on behalf of the minors, and it was held that such possession of the mother was not adverse to the minors. It is not the mother's possession which was adverse to the minors, but the possession of Shambhu, who asserted his own title to the lands.

9. The question has also been mooted before me if Kalipada's joining in the sale-deed in favour of Girish Chandra Pal makes any difference on the question of limitation. The sale-deed was executed in 1943 before Shambhu had perfected his title by adverse possession of 12 years. The case of Girish Chandra Pal was that Kalipada was made to join by way of abundant caution. I think there are two ways of looking at the matter. If Kalipada had sold the lands to Girish Chandra Pal and had good title to do so, Girish Chandra Pal should succeed on the strength of that sale deed. If, on the contrary, Shambhu alone conveyed the lands to Girish Chandra Pal, and Kalipada joined merely by way of abundant caution, then Girish Chandra Pal is entitled to tack Shambhu's possession to his own, and to say that the suit was barred by time. If Article 142 applies, as I think it does, then there is no difficulty. The suit was clearly barred by time as the plaintiffs had failed to prove their subsisting title, namely, their possession, or the possession of their predecessor-in-interest, within 12 years of the suit. For these reasons, I would dismiss this appeal with costs.

10. S.A 564 of 1948.— This is an appeal by the defendants, and the principal question which has been urged before me is that of limitation. It has been contended by learned counsel for the appellants that the suit was barred by time, and the Courts below were wrong in holding otherwise. I have discussed the question of limitation in connection with the other appeal, and I need not repeat what I have already said. Kalipada was no party to the sale-deed in favour of Sumitra in respect of Plot No. 1113. There is, therefore, no such complication as in the other appeal. If Shambhu's possession was adverse to that of Kalipada, the appellants of this appeal were dearly entitled to tack the possession of Shambhu to their own possession, as they were purchasers from Shambhu. Whether Article 142 or Article 144, Limitation Act applies, the suit was clearly barred by time as it was not brought within 12 years, nor within three years of the attainment of majority by Kalipada. This aspect of the question of limitation does not appear to have been considered by any of the Courts below. The learned Munsif considered the question of limitation from the point of view of Article 44, Limitation Act only, and not from the point of view of Article 142 or Article 144 of the said Act.

11. For the reason given above, I hold that the suit was barred by time. This appeal is accordingly allowed, the decision of the Courts below is set aside, and the suit of the plaintiffs-respondents will now stand dismissed.

12. The appellants will be entitled to their costs throughout.

V.B.B

13. Order accordingly.