R.S Sarkaria, J.:— This Regular Second Appeal No. 985 of 1958, is directed against the judgment and decree of the Senior Subordinate Judge. Gurdaspur, exercising enhanced appellate powers, by which he affirmed the decree, dated 9th August, 1950, of the Subordinate Judge. It arises out of the following facts:—

2. On 6th February, 1936, Gurainditta Mal and Jagat Ram brought a suit against Bana Mal, Chhaju Mal and Mohan Lal for declaration and possession of their share in the estate of Hira Nand deceased. They claimed 4/9 share of Khata No. 83 of Jamabanoi, 1932–1933. On 7th August, 1936, the suit was decreed. In execution of the decree, symbolical possession of 4/9 share of the land was delivered to Guranditta Mal Page: 1063and other decree-holders on 17th September, 1937. On the 9th October, 1937, some other coheirs filed a suit for their share of the estate and got a decree on 26th November, 1938. Thereafter, on 18th September, 1941, mutation of 49 share of Khata No. 83, in accordance with the decree, was attested in favour of the plaintiffs, Guranditta Mal and Jagat Ram only. The Mutation Officer, however, did not mutate the land, now in suit, in favour of the decree-holders. Consequently, on 27th August, 1946, Guranditta Mal and Jagat Ram instituted a suit for joint possession of the land which had been left out of the mutation. This suit was withdrawn with the permission of the Court on payment of Rs. 6/- as costs on 11th August, 1947, with an option to file a fresh suit, which was filed on 11th February, 1948. This suit was dismissed due to non-payment of costs on 20th January, 1950. On 27th February, 1950, Guranditta Mal and the legal representatives of Jagat Ram deceased filed the present suit in the Court of the Subordinate Judge, Batala, for possession of 16 Kanals, i.e 4/9 share of 36 Kanals, 1 Marla, in Khasra Nos. 709, 735, 437, 1018, 1038 and 1068, Khewat No. 85, Khatanis Nos. 524, 525, 526 and 533 of Jamabandi of 1944–1945, situated in the area of village Talwandi Bharat. The trial Court decreed the suit on 9th August, 1950. The defendants, Bana Mal and others, preferred an appeal against the decree to the Senior Subordinate Judge, who dismissed the appeal with costs on 24th May, 1958, and affirmed the decree of the trial Court. Hence this second appeal by the defendants.

3. The learned counsel for the defendant-appellants has raised these contentions:—

(1) The suit was barred by limitation.

(2)(a) The lower appellate Court has based its findings on evidence which was not a part of the present record.

(b) It has not been shown that the fields (Khasras) now in dispute formed the subject-matter of the suit of 1936.

(3)(a) If these Khasras were included in the claim of 1936, the present suit is barred as res judicata.

(b) If these Khasras were not included in the first suit, the present claim is barred under Order 2, rule 2, Civil Procedure Code, and also is constructive res judicata.

4. I may mention at the very outset, that whereas the learned counsel for the appellants has vigorously pressed point No. 1, his arguments in support of points 2(a) and 3 are only lukewarm. It may be observed that in the lower Court, the defendant-appellants had limited their arguments to two questions only:—

(1) The former suit did not include the land now in dispute, and that there was no decree in respect thereof.

(2) The suit of the plaintiffs was time-barred and the defendants' possession over the land had been adverse for more than 12 years, whereby the plaintiffs' right, if any, had been extinguished.

5. The question that the suit was barred under Order 2, rule 2, Civil Procedure Code, or as res judicata, was not pressed, and should be deemed to have been waived. It is, therefore, too late for the appellants to receive those pleas, which they had given up in the lower appellate Court.

6. Even if the contentions 2 and 3 are considered, then also, I do not find much force in them. As regards No. 2, it may be noted that Page: 1064the lower appellate Court, with the consent of the counsel for the parties, sent for the records of the original suit, which was decreed on 7th August, 1936, to find out if the land, now in dispute, was included in the previous claim. The record-keeper reported that the file of the original suit was not traceable, but the execution files pertaining to that decree were available, and the full particulars of the land then in dispute were also to be found on the record of the execution case. These records were perused by the lower appellate Court at the suggestion of the counsel for both the parties, to ascertain the identity of the land. The full settlement and Jamabandi record then in question was available on those records. After making a comparison, the lower appellate Court recorded its findings as below:—

“The total number of the Khasra numbers comprising those Khataunis was found to be 45 and all the Khasra numbers which are now in dispute, formed part of the Khataunis 675 to 679 of Khata No. 83. This eliminates the possible dispute. Therefore, it must be found that the land in dispute was the subject of the earlier suit, and the decree passed in that suit included the same……. It is clear from the judgment and decree that the decree was passed against all the defendants including Amin Chand, for possession of the land including the land in dispute, and there is no getting out of the said decree.”

7. No doubt, it would have been proper for the lower appellate Court to record the consent of the counsel for the parties and then mark and exhibit the relevant documents from the file of the execution case, as a part of the evidence in the present case. But its failure to observe that formality is immaterial because these revenue records on the file of the previous case, were used as evidence in the instant case by the Senior Subordinate Judge, not merely with the consent of the parties but at their suggestion. No objection, therefore, can be taken in this Court to such use of the record of the previous case by the lower appellate Court. The finding of the Court below, viz., that the present suit land was included in the decree, dated 7th August, 1936, cannot, therefore, be assailed before me on the ground of any technical defect as to the mode of proof.

8. The present suit, as I shall presently notice, is based on a distinct cause of action, viz., dispossession after the delivery of possession in execution of the previous decree. No question of the present suit being barred either as res judicata or under Order 2, rule 2, Civil Procedure Code, therefore, arises.

9. Coming to the question of limitation, it may be observed that the plaintiffs, Guranditta Mal, etc. based their claim not only on title, but also alleged possession and dispossession within 12 years of the suit. In paragraph 4 of the plaint, it was pleaded that in execution of the previous decree, the plaintiff decree-holders had obtained possession of the suit land “Bazaria Nishandehi” on 17th September, 193. In paragraph 8, it was alleged that although the plaintiff and Jagat Ram, father of plaintiffs 2 to 4, had obtained possession on 17th September, 1937, but the defendants entered into forcible decision of the land in suit after the sanction of the mutation. In paragraph 5, it is alleged that the mutation was sanctioned on 18th September, 1941.

10. Two things emerge crystal clear from the plaint: Firstly, that the plaintiff decree-holders had obtained symbolical possession of the suit land on 17th September, 1937, and secondly, they were allegedly disposed by the defendants after the attestation of the mutation, i.e after Page: 106518th September, 1941. According to Mr. Bahri, the suit was governed by Article 142 of the Limitation Act of 1908, and the burden was on the plaintiff to prove his possession and dispossession within 12 years of the suit. It is emphasised that the plaintiff appeared in the witness box, but did not say a word as to when he was dispossessed. In the circumstances, according to Mr. Bahri, it will be presumed that the plaintiff remained out of possession from 17th September, 1937 and the suit having been instituted on 27th February, 1950 was time-barred.

11. On the other hand, Mr. Mahajan, the learned counsel for the plaintiff-respondents, contends that the suit would be governed by Article 144 of the Limitation Act; that the effect of the delivery of possession in execution of the decree to the plaintiff respondents on 17th September, 1937, was, that they had become co-shares in joint possession of the land alongwith the defendents and continued in such possession throughout. In the absence of any proof of ouster, says the counsel defendents' possession would not be adverse in the plaintiffs. In the alternative, Mr. Mahajan argues, that even if it is assumed that Article 142 of the Limitation Act governs the case, then also the plaintiffs' averment in the plaint, that he had been dispossessed some time after 18th September, 1941 (when the mutation was attested), was impliedly found to be correct by the two Courts below. It is argued that the concurrent, finding of fact, viz., that the plaintiffs were dispossessed sometime after 18th September, 1941, cannot be disturbed in second appeal by this Court.

12. The contentions of Mr. Mahajan appears to be devoid of force. There is no finding of fact, whatever, recorded by the Courts below that the plaintiffs were dispossessed within 12 years preceding the suit. Apart from the averment in the plaint, the plaintiffs did not say a word in the witness-box as to when they were dispossessed or discontinued their possession. It is true that the burden of proving that the suit was time-barred, had been laid by trial Court on the defendants. But both the parties had the fullest opportunity to lead evidence, and, in fact, they led whatever evidence they wanted to produce. The question of onus had, therefore, become merely academic. The fact remains that the plaintiffs did not bring any evidence on record to show that they were in possession and were dispossessed within 12 years of the suit. On the other hand, Ramsaran Dass defendant swore in the witness-box that the plaintiffs had never been in possession and enjoyment of suit land.

13. Determination of the question as to which Article of the Limitation Act would govern a particular case, depends mainly on the averments in the pleadings, particularly on the allegations in the plaint. The plaintiffs, as already observed, came to Court on the basis of their title as well as possession and dispossession within 12 years of the suit. There is abundant authority for the proposition that even where the plaintiff alleges legal constructive possession and dispossession in his suit for possession. Article 142 will apply. The observations in Behari Lal v. Narain Dass A.I.R 1935 Lah. 475 FB are in point.

14. What would be the effect of the delivery of the symbolical possession, in the crucial paint to be next considered. The leading decision on his subject is Juggobundhu Mukherjee v. Chander Bysack2, where it was held that a delivery of symbolical possession under the Code of Civil Procedure against a defendant in the suit is equivalent to the delivery of actual possession. This is what Garth, C.J, delivering the judgment of the Full Bench, said at page 588 of the Report:—

“As against third parties, of course, this symbolical possession (as it is called) would be of no avail, because they are no parties to the proceeding. But if the defendent should, after this, again dispossess the plaintiff by receiving the rents and profits, we think that the plaintiff would have twelve years from such dispossession to bring another suit.”

15. The ratio of Juggdbundhu Mukherjee's case was approved by their Lordhsips of the Privy Council in Shri Radha Krishna Chanderji v. Ram Bahadue A.I.R 1917 P.C 197 and in Kesho Prasad v. Mt. Bhagjogna Kuer4. In Ramanand Pathak v. Bindhachal Tewari A.I.R 1948 Pat. 416, a Full Bench of the Patna High Court following the rule laid down in Juggobunghu Mukherjee's case, held ‘that the symbolical possession is to 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’. The ‘delivery of symbolical possession’, observed the learned Judges, ‘is the line of demarcation between possession precedent and possession equivalent’.

16. In Ganga Prasad v. Auseri Lal A.I.R 1947 Alla. 296, the facts were as follows:—

“A in execution of his simple money decree against one of the two co-owners of a house, purchased on 21st August, 1928, the judgment-debtor's share in the house and obtained formal delivery of possession on 19th December, 1928. On 11th January, 1943, A filed a suit for possession against the co-owner-in possession and subsequently impleaded the judgment-debtor's son as defendant. It was found that the whole house remained in possession of the co-owner since the date of formal delivery of possossion to A”.

17. It was held:

“That the suit was clearly barred by limitation whether Article 142 or Article 144 was held to be applicable to it. It was open to A to apply for actual possession within 12 years, of the date of the symbolical delivery which he never did and after the expiry of twelve years not only did he lose his remedy but his right was also extinguished.”

18. The above being the law on the point, it is quite clear that when symbolical possession was delivered on 17th September, 1937, the defendants or their representative were in possession of the land and they continued in such possession after the symbolical delivery. The plaintiffs would, therefore, be deemed to have been dispossessed by the defendants on the symbolical delivery and they were bound to bring their suit for actual possession within 12 years of that delivery. There is no evidence on the record to show that after the symbolical delivery, the plaintiffs ever remained in enjoyment of this property by collecting and receiving their share of the rents and profits Time, therefore, began to run on 17th September, 1937, and the present suit having been brought on 27th February, 1950, was clearly barred by limitation under Article 142 of the Limitation Act of 1908. No other point has been argued before me in this appeal. In the result, I would allow the defendants' appeal and dismiss the plaintiffs' suit. In the circumstances of the case, there will be no order as to costs.

19. Order accordingly.