Tarkeshwar Nath, J.

(1) This appeal by the plaintiffs arises out of a suit for declaration that they had l/3rd share (5 annas 4 Pies) in lands measuring 1.504 acres which at one time belonged to their father. They made a further prayer for being put in possession after dispossessing defendant No, 1. A short genealogy will indicate the relationship of the parties. Maulvi Mazhar Hussain alias Chamari and Nazir. Hussain were two brothers: Mazhar Hussain had two sons, viz., Hafiz Zafar Hussain and Dr. Aminuddin Ahmad (Defendant 7) besides two daughters, Mosammat Aziman and Mosammat Shakuran (Pltffs. 1 and 2). Defendants 2 and 3 are the sons of Hazif Zafar Hussain, defendant 4 is the widow and defendants 5 and 6 are his daughters. In the other branch, Nazir Hussain left a son Ahmad Zahirul Haque whose widow Mostt. saieha is defendant 1 in this action. Defendants 8 to 12 intervened in the suit as being transferees from defdt. 1. Plaintiffs case was that the land in suit belonged exclusively to Maulvi Mazhar Hussain and he was recorded In the record-of-rights. After his death, the plaintiff, Hatiz Zafar Hussain and defendant 7 came in possession of those lands as absolute owners. Defendant 1 instituted a title suit (No. 39/20 of 1949/1951) against defendants 2 to 7 without making the plaintiffs parties, praying therein for a decree for administration of the estate of Ahmad Zahirul Haque and other reliefs. The plaintiffs were not at all aware of that suit and there was a fraudulent compromise between the parties to that suit, according to which defendant l who was the plaintiff in that suit, got 1.504 acres (the lands in this suit) exclusively in her share. A final decree was prepared on the basis of that compromise on 13-5-1952 and defendant 1 took steps for the execution of that decree. A pleader commissioner was appointed for giving delivery of possession and he was accompanied by military police when he went to the spot. The plaintiffs then learnt of the suit, the collusive compromise and the decree and they filed a petition on 4-10-1953 before the Commissioner stating that they had l/3rd share in the lands of which possession was sought to be delivered to the decree-holder of that case. The Commissioner however, submitted a report regarding symbolical delivery of possession and the plaintiffs being dispossessed, they filed an application on 9-11-1953 under Order 21 Rule 100 of the Code of Civil Procedure in Execution Case No. 22 of 1952. That application was registered as Miscellaneous Case No. 42. of 1953, but that was dismissed on 14-5-1954. Defendant 1 disclosed in that miscellaneous case that there was a compromise in a land registration case as well to which plaintiffs were parties and they had, in fact, agreed to the terms of the compromise recorded in that case. The plaintiffs were surprised to learn of that compromise, inasmuch as that also was fraudulent and collusive and in no way binding, on them. The plaintiffs being aggrieved by the dismissal of their miscellaneous case filed an application in the High Court for revision of that order (Civil Revision no. 699 of 1954), but it was dismissed on 16-9-1954. The properties belonged exclusively to Mazhar Hussain and as such, the plaintiffs had l/3rd share in those lands, the other shares belonging to their two brothers and their descendants. On these allegations, they instituted this suit on 14-8-1955.

(2) Defendant 1 took several pleas and her case was that the lands in suit belonged to both the brothers, viz., Mazhar Hussain and Nazir Hussain, but as former was the elder he happened to be recorded in the record-of-rights. After the death of the two brothers, the lands in suit and other lands came in possession of their heirs. A dispute arose sometime after the death of Mazhar Hussain between Hafiz Zafar Hussain, the plaintiffs and others, inasmuch as the heirs of IVIazhar Hussain claimed the properties recorded in his name as being his exclusive properties, whereas Ahmad Zahirul Haque representing the branch of Nazir Hussain claimed a moiety share in all those lands, me dispute was settled between the parties and a compromise was arrived at in Land Registration Case No. 501/D of 1926-27. According to that compromise, the heirs of Nazir Hussain got half share in the properties standing either in the name of Mazhar Hussain or Nazir Hussain and the other half was to belong to the heirs of Mazhar Hussain. The plaintiffs were parties to that land registration case and they agreed to the terms of the said compromise after a careful consideration of all the facts and circumstances. That compromise was acted upon by the parties and, in fact, they came into possession on that basis and got themselves mutated in Register D. Ahmad Zahirul Haque was unfortunately killed during the communal disturbances of 1946 and he left his widow, defendant 1, Hafiz Zafar Hussain and Dr. Aminuddin Ahmad, defendant 7, as his heirs according to the Sunni School of Mohammadan Law. Defendant 1 happened to be at Delhi at the time of the death of her husband Ahman Zahiru Hague and thus latar Hussain and Dr. Aminuddin Ahmad misappropriated the properties of her husband. They did not pay even her dower debt and as such, she filed Title suit No. 39 of 1949 impleading all the heirs of Ahmad Zahirul Haque as parties to that suit. The plaintiffs were not the heirs of Ahmad Zahiru Haque and as such, they were not made parties. That suit, after a keen contest, was compromised on 13-5-1952, and, according to the terms incorporated therein, she was to get the lands which are the subjectmatter of the present suit. She executed the decree passed on the basis of that compromise in Execution Case No. 22 of 1952 and obtained delivery of possession on 4-10-1953 in respect of those lands. Neither the plaintiffs nor the other heirs of wazhar Hussain had any concern with those lands. The compromise in the land registration case was binding on the plaintiffs and the plaintiffs being parties to that compromise they had no right to challenge it. She further stated that the suit was barred by limitation. She further disclosed that she had no interest left in the lands in suit, inasmuch as she had transferred them and the transferees were necessary parties to the suit. Defendant 6 supported the case of the plaintiffs and she alleged that the disputed properties belonged exclusively to her grand- lather Mazhar Hussain without the co-partnership of others. The transferees (defendants 8 to 12) supported defendant 1 end their case was that they were bona fide purchasers for value. It appears that there were four sale deeds in their favour from the 25th January, 1955 and upto the 19th February, 1955.

(3) Besides the issue regarding limitation, the other main issues in the case were as to whether the properties in suit belonged exclusively to the plaintiffs ancestor and whether the compromise decrees in the land registration case and Title Suit No. 39/20 of 1949/1951 were legal, valid and binding on the plaintiffs. The Additional Subordinate Judge held that the compromise arrived at in the land registration case was genuine, binding on the parties and it was acted upon. His further finding was that the plaintiffs were not bound by the other compromise arrived at in Title Suit No. 39/20 of 1949/1951, inasmuch as they were not parties to that suit and accordingly he held that the lands in suit were the joint properties belonging to the heirs of Mazhar Hussain and Zahirul Haque In which the plaintiffs had 1/6th share. He took the view that the suit not having been instituted within one year of the dismissal of Miscellaneous Case No. 42 of 1953, It was barred by time and, on this ground, he refused to give any relief to the plaintiffs. The result was that he dismissed the entire suit, and being aggrieved by that decree, the plaintiffs have preferred this appeal.

(4) Learned counsel for the appellants assailed at the outset, the finding of the trial Judge with regard to the validity of the compromise arrived at in the land registration case and he contended that the compromise was collusive, the plaintiffs were not parties to the compromise, the compromise did not relate to the lands in suit and, in any event, even if it related, the compromise petition not having been registered, it was not valid In law in order to bind the plaintiffs. Aminuddin Ahmad and Hafiz Jafar Hussain filed an application (exhibit D/1) for registration and mutation of their names in respect to village Korai, touzi No. 12832, on 4-9-1926 in place of their father Mazhar Hussain who was dead. It appears from that application that Mazhar Hussain was recorded in respect of 1 anna and odd share in that touzi and the allegation of the applicants was that by virtue of a compromise outside court they were entitled to mutation in respect of that share. There was an objection (exhibit D) on behalf of Mosst. Aziman and Mosst. Shakuran (the two plaintiffs) on 941-1926 on the ground that there was no compromise and the touzi having belonged exclusively to Mazhar Hussain, the applicants of that case were not entitled to mutation. It appears that there was a mokhtarnama (a certified copy of which has been marked exhibit C) on the same date, that is, on 9-11-1926, by Mosst. Aziman and Mosst. Shakuran appointing Maulvi Md. Yasin as revenue agent to take proper steps in that land registration case, enter into compromise and do all things that were necessary. It was alleged that Mosst. Shakuran signed herself on that Mokhtarnama whereas Md. Abdullah, sisters husband of Mosst. Aziman, signed for her (Aziman). On 7-12-1926, there was another objection petition (exhibit D/2) by Ahmad Zahirul Haque for self and as guardian, of Mosammat Shamshun-nisa, minor, to the mutation of the names ot Aminuddin Ahmad and Maulvi Zafar Hussain. On 16-3-1927, there was another mokhtarnama (certified copy having been marked as exihibit C/l) by Mostt. Aziman appointing Md. Abdul Ghani as her revenue agent for entering into a compromise and taking other steps in the land registration case relating to village Korai. Md. Amir Hassan, husband of Aziman, signed for her in that mokhtarnama. The petition of compromise (a certified copy of which has been marked exhibit B) was filed in land Registration Case No. 501/D of 1926-27 on 16-3-1927. It is alleged by the defts. that it was filed on behalf of all the parties to that land registration case. Mostt. Aziman happened to be illiterate and thus her husband Md. Amir Hassan signed for her. The signature ot the other plaintiff Mostt. Shakuran does not appear on this petition, but the two revenue agents Md. Abdul Ghani and Maulvi Md. Yasin, did sign on it. On 16-3-1927, an order (exhibit J) was passed in these terms : "Petition of compromise filed. Prepare decree and slip accordingly." There was mutation in Register D on the basis of this compromise in respect of the proprietary interest of village Korai (vide the entries in Register D, exhibit N) and there is a reference in that Register to the compromise arrived at in that land registration case. It appears from those entries that Hafiz Zafar Hussain, Aminuddin Ahmad, Mostt. Aziman and Mostt. Shakuran were recorded in respect of the half share and Zahirul Haque was recorded for self and as guardian of Mostt Shamshun-nisa in respect of the other half. On these facts, defendants asserted that the plaintiffs were parttes to the compromise and as such, it was binding on them. The case of the plaintiffs, on the other hand, was that they had no knowledge of the compromise, they were not parties to it and they neither put their signatures nor thumb marks on the petition of compromise. The evidence of the two plaintiffs, Mostt, Aziman and Mostt. Shakuran, also is on those lines. Mosst. Aziman (P. W. 1) deposed that she neither put her signature nor thumb mark on any petition of compromise and she never authorised any one to sign on her behalf. Her evidence is that she was a purdanashin lady and the terms of the petition were not read over and explained to her. Mostt. Shakuran (P. W. 2) denied her signature on the compromise petition and she also claimed to be a purdanashin lady. Learned counsel for the appellants pointed out that only the certified copies of the two mokhtarnamas and petition of compromise had been filed and there was no satisfactory proof of the signatures of the executants of the mukhtarnama and, in fact; Shakuran, plaintiff No. 2, did not at all sign on the petition of compromise (exhibit B). It appears, however, that the entire record of the land registration case was not available and the original compromise petition and mokhtarnamas were destrove and as such, the certified copies were filed and marked exhibits, it was further contended that neither the signature nor thumb mark of Mostt. Aziman appeared on the two mokhtarnams and the petition of compromise and the authority of persons who signed on her behalf on one or the other document had not been established. It has to be, however, borne in mind that the compromise Was arrived at in March 1927 and the present suit was Instituted about 28 years later in 1955, with the result that it is difficult to expect proper materials and examination of witnesses in support of events which took place long long ago. Another objection was raised that the signatures of the two revenue agents on the compromise petition were not sufficient in order to bind the plaintiffs, inasmuch an on the facts and circumstances of the present case, the defendants had relied on the compromise arrived at by the plaintiffs themselves who were parties to that land registration case. In other words, it was urged that if reliance was placed on the direct act of the parties in the matter of a compromise, then one could not fall back on the authority of their pleaders or revenue agents who acted merely as agents or messengers in presenting the petition of compromise in court. Reference was made to the case of Sheooandan Prasad Singh v. Abdul Fateh Mchammad Reza, ILR 14 Pat 545 : (AIR 1935 PC 119 [LQ/PC/1935/33] ). It must be pointed out, however, at this stage that the question as to whether the compromise relating to the mutation in respect of village Korai which was arrived at in that land registration case was valid, is not relevant in the present litigation and, in fact, the terms of the compromise petition have been referred to for showing only that there was a compromise even with regard to other lands including the lands of the present suit and as such, the plaintiffs were bound by it. The scope of the present suit is, as to whether there was any compromise with regard to the lands in suit and whether the same was valid and binding on the plaintiffs. In case the compromise did not relate to the lands in suit, or even if it related to the suit land, but it was not valid and binding on the plaintiffs on any other ground, it would not be necessary to go into the question as to whether the compromise was either signed by plaintiff 1 or by persons having a valid authority to sign on her behalf either on the two mokhtarnamas or the petition of compromise. In this view of the matter, I would first consider the question as to whether the compromise related to the lands which are the subject-matter of the present suit. As there was a controversy with regard to the first term of the petition of compromise as translated in the paper book, we have looked to the original (exhibit B) and the relevant words are these :

"Mouza Korai yani" mouza Indiraj talab me wo Kasnt wo sayeran wo kul deegar jaedad men jo ke naam se Maulvi Mazhar Hussein ya Nazir Hussain ke bai".

Learned counsel for the appellants submitted that the compromise was only in respect of mutation regarding village Korai and not in respect of other lands, but this submission is not correct. It is true that the land registration case related only to village Korai, but the first term, referred to above, itself indicates that the parties came to terms with regard to other properties as well which were in the name of either Mazhar Hussain or Nazir Hussain and in respect of all those properties they agreed to get half and half. Similar was the arrangement in respect of the two storeyed house as provided in the second term of the compromise and there was a further stipulation in the succeeding paragraphs that if any person claimed to be an heir of any of the two brothers, Mazhar Hussain and Nazir Hussain, he would get his share out of the half interest allotted to the branch to which he belonged. I am thus of the view, that the compromise related to all the properties which were recorded in the name of Mazhar Hussain and the lands in suit also come within that category. The compromise with regard to other lands was undoubtedly beyond the scope of that proceeding and it is relevant to see what happened after that compromise. The order sheet no doubt indicated that a decree was to be prepared, but we do not know from the materials on record as to in what form the decree, if any, was prepared, and learned counsel for the transferee defendants, who contested this appeal, could not refer to any decree having been prepared on the basis of that compromise. It does not appear from this record, that in the land registration proceeding, steps were taken to prepare the decree embodying all the terms of the compromise. The compromise in the land registration case was arrived at in 1927 and for the purposes of registration it will be governed by the provisions of Section 17 of the Indian Registration Act. Clause (vi) of Section 17 of that Act, as it stood before its amendment in 1929, excepted "any decree or order of a Court and any award" from the operation of Clauses (b) and (c) of Section 17(1) of that Act. Accordingly, a decree based on the compromise of the parties or on their consent could be treated as a decree within the meaning of Clause (vi), but all the same it was essential for the Court to apply its mind to the terms of the compromise, record it and then prepare a decree in accordance with the terms of that compromise. It was held in the case of Hemant Kumari Debi v. Midnapur Zamindari Co. Ltd. 46 Ind App 240: (AIR 1919 PC 79) that a decree which wholly incorporated a compromise relating not only to the properties in suit or proceeding, but also properties outside it, was not compulsorily registrable as regards any portion thereof. The position, however, after the amendment of Clause (vi) in 1929 is different and if a decree based on compromise comprises properties other than the subject-matter of the suit, it is to that extent not exempted from registration. in the present case, there being no definite proof that the decree was in the terms of the compromise relating to other lands, the compromise petition! in regard to lands in suit, cannot be held to be valid for want of registration. In order to obviate this difficulty, Mr. S. N. Dutta for the contesting respondents submitted that there was a family arrangement between the parties on 16-3-1927 in order to settle their disputes and as such, registration was not necessary in respect of that arrangement, terms of which were embodied in the petition (exhibit B). He referred to the decision in the case of Kokla v. Plari Lal ILR 35 All 502. In that case, the brother and widow of a deceased Hindu had settled thei dispute between them as to the ownership of the property of the deceased by means of a joint application; filed in the Revenue Court asking that the property should be recorded half in the name of each. That was done and subsequently each sold the share of which he or she was recorded as owner. The widow then sued to recover the share which had gone to her husbands brother. It was held that the petition for mutation, the order of the revenue authorities recording the names in accordance with that petition, and the subsequent sales on the basis of that petition indicated that the parties had entered into a family arrangement and the petition of compromise was not compulsorily registrable. Next case referred to, on this point is Bakhtawar v. Sundar Lal, AIR 1926 All 173 where it was held that if a bona fide dispute had been settled by the parties and each party recognised the antecedent title of the other and they filed a petition in Court informing it of the terms of the agreement, there was no necessity to get that petition registered as it did not purport to create, assign, limit, extinguish or declare any right, title or interest within the meaning of Section 17 (1) (b) of the Indian Registration Act. One of the four propositions laid down toy Sulaiman J. was that if a document did not purport to be a document of title creating or declaring such right, but it contained a mere recital of a previous settlement arrived at between the parties, then the document might be used in evidence in proof of that previous settlement, even though not registered. This decision of the Allahabad High Court was relied upon in the case of Lal Mohan v. Onkar Mall AIR 1946 Pat 55 [LQ/PatHC/1945/95] and it was held that a family arrangement not involving a transfer might be a settlement in which each party took a share of, or interest in, family property by virtue of an independent title which was to that extent admitted by the other party. It was further observed that such an arrangement might involve in certain cases a declaration of right under Section 17 (1) (b) of the Registration Act, but whether the family arrangement involved a declaration of right or not would depend on the facts of each particular case. In case it involved a declaration of right it would require registration. Learned counsel for the appellants referred to Umrao Singh v. Lachhman Singh, 38 and App 104 (PC) in support of the proposition that if there was a declaration of title in an arrangement arrived at by the parties, registration was necessary. It is well-settled that if the parties had an antecedent title of some kind in the properties and they only agreed to acknowledge the previous title by compromise, the arrangement cannot be said to "create, declare, assign, limit or extinguish any right, title or interest" in immovable property, and the agree ment if reduced to writing need not be registered. On the other hand, if by the agreement, the title of the par ties is declared, then the writing evidencing such agree ment must be registered. In order to settle a dispute, there is no doubt that there can be a family arrangement, but the test is as to what was the intention of the parties The question arises as to whether there was merely an acknowledgment of a pre-existing title by the petition of compromise (exhibit B), or did it "create, or declare any right, title or interest to or in immovable property". The terms of the compromise indicate that the heirs of the respective branches got half and half on the basis of that petition and their title was declared by the compromise itself. The terms do not indicate that there was a mere acknowledgment of prior titles of the parties. The declarations and allotments Were by the compromise itself and as such, the compromise purported to create and declare titles in favour of the respective parties. In view of the recitals of this kind in that petition, the compromise with regard to the lands in suit cannot be held to be valid on account of non-registration of that document. I would, therefore, reverse the finding of the trial Judge, inasmuch as he was not right in holding that the compromise was binding on the plaintiffs even without registration. In the view which I have taken about the compromise with regard to the lands in suit, it is not necessary to pronounce any opinion about the other part of the compromise relating to the mutation of villages Korai and as to the signatures of one plaintiff or the other, or the authority of the persons who signed for Mostt, Aziman.

(5) Learned counsel for the respondents urged alternatively that even if the compromise was not registered, it was valid as an agreement or a contract and he could use it as a shield in accordance with the provisions of Section 53A of the Transfer of Property Act. This plea of part performance was not taken in the trial court and the trial Judge has found that the subsequent compromise arrived at in Title Suit No. 39/20 of 1949/1951 was not , binding on the plaintiffs, with the result that the posssssion of defendant 1 in respect of the lands in suit cannot be said to be in part performance of the second compromise. The possession of defendant 1 was certainly not in pursuance of the first compromise in the land registration case. In these circumstances, the requirements of section 53A have not been fulfilled and defendants cannot get any support from the provisions of that section.

(6) Mr. Dutta referred to a sale deed (exhibit H) dated 11-12-1948 executed by Hafiz Zafar Hussain and Dr. Aminuddin Ahmad in favour of Ritlal Mahto and others in respect of a portion of land which was alleged to have come to the share of the vendors by the partition which took place long ago and submitted that the compromise arrived at in the land registration case with regard to all the lands was acted upon by the parties. The plaintiffs, however, were not parties in this transaction and the statements made by the vendors in that sale deed are not of much consequence.

(7) The learned Subordinate Judge, on a careful consideration of the evidence, oral and documentary, found that the compromise arrived at in Title Suit No. 39/20 of 1949/1951 was not binding on the plaintiffs as they were not parties to it and that finding gets further support from the finding arrived at in this appeal that the earlier compromise as well with regard to the lands in suit was not valid.

(8) An objection has been taken on behalf of the respondents that the suit of the plaintiffs was not maintainable in respect of a portion of the land and it was suggested that the remedy of the plaintiffs was to file a suit for partition in respect of all the lands which were recorded in the name of Mazhar Hussain. It was urged that even according to the case of the plaintiffs, they had only l/3rd share and the other 2/3rd belonged to their two brothers. The descendants of one brother and the other brother himself were parties to Title Suit No. 39/20 of 1949-51 and they had agreed to give the lands; in suit to the plaintiffs of that suit by way of compromise. The contention is that out of 8 bighas of land, which belonged to the members of. this family, the compromise was in respect of 1.50 1/2 acres and it was for a much lesser (sic) area than the 2/3rd. share of the two brothers of the plaintiffs. It was thus open to the owners of that 2/3rd share to enter into a compromise and defendant 1 had acquired a valid title on the basis of that compromise to those lands which she later on transferred (1.50 1/2 acres) to defendants 8 to 12 of the present suit. In view of these facts, it was urged that the plaintiffs suit in respect of a portion of the land was misconceived and not maintainable. Reference was made to the case of Nathaniel Uraon v. Mahadeo Uraon, 1957 Pat LR 45 : (AIR 1957 Pat 511 [LQ/PatHC/1957/4] ). It was held in that case that a co-owner could transfer his undivided share in the joint property by way of lease, sale, gift or otherwise. Similarly, a tenant-ln-common could settle a portion of the joint land with a stranger and such a conveyance was not legally invalid or void so as to entitle the other co-owners to obtain khas possession of the joint land by eviction of the tenant, and their remedy was to sue for joint possession or partition, it was further observed that if on partition, the portion settled with the tenant was allotted to their share, they would indeed be entitled to obtain khas possession of that land by ejecting the tenant, but if that portion fell to the share of the grantor, the title of the lessee would be perfect and valid, and the lessor would be estopped from questioning the grant on the ground that he had no right to make a transfer of the joint estate. In that case, the plaintiffs had instituted a suit for possession of certain lands and the plaintiffs and defendants 1 to 7 were the descendants of a common ancestor, Sukra. Defendant 1 executed deeds of mortgage in favour of defendant 10 and sale deeds in favour of defendants 9 and a. The plaintiffs sought for ejectment of defendants 8 to 11 and claimed joint possession of the disputed land with defendants 1 to 7 on the ground that the joint family lands had not been partitioned and defendant 1 had no right to alienate any portion of the joint properties in favour of defendants 8 to 11, The Munsif gave a decree to the plaintiffs for joint possession with defendants 1 to 7 by ejecting defendants 8 to 11. On appeal by defendants 8 and 9, the Subordinate Judge modified the decree of the Munsif by disallowing ejectment of defendants 8 and 9 and gave the plaintiffs a decree for joint possession of certain plots with defendants 1 to 9. That decree of the Subordinate Judge tor joint possession of the disputed land was upheld by their Lordships. This decision does not support the contention raised by learned counsel and if his contenticn would have been correct, then the suit ought to have been dismissed in toto, but that was not what happened. The case of the plaintiffs was that in Execution Case No. 22 of 1952, they were dispossessed by the writ for delivery of possession and they thus wanted possession in respect of their l/3rd share in the disputed property after dispossessing defendant 1. The dispossession was in respect of a portion only of the lands and that was the subject-matter of the present suit. I fail to appreciate as to how the plaintiffs can be forced to institute a suit, in respect of all the lands, unless they had a cause of action arising on account of dispossession from all the lands and they were entitled to seek a relief in respect of the entire land. I thus, find no merit in this objection and the suit cannot be held to be non-maintainable on this score.

(9) In view of my finding that the compromise arrived at in the land registration case with regard to the land in suit was not binding on the plaintiffs, they will have l/3rd share in the lands in suit, but the question is as to whether that relief can be granted to them, inasmuch as they instituted the suit after one year of the dismissal of Miscellaneous Case No. 42 of 1953. Learned Counsel for the appellants submitted that the suit was not under Order 21 Rule 103 of the Code of Civil Procedure, inasmuch as the executing court had held that the application filed by the praintiffs was not maintainable under Order 21 Rule 100. He referred to the order (Ext. L/l) dated 14-5-1954 passed in Miscellaneous Judicial Case No. 42 of 1953. The executing court formulated the point as to whether the applicants (Plaintiffs) of that case had succeeded in proving that they were in possession on the day on which the delivery of possession was effected and, on a consideration of the evidence he held that they had failed to prove their possession on the relevant date. Accordingly, he held that the application under Order 21 Rule 100 was not maintainabie. On, an application having been filed under Order 21 Rule 100, the Court has to determine as to whether the applicant was in possession of the property on his wwn account, or on account of some person other than the judgment-debtor on the date of the delivery of possession. The onus is upon him to prove, that he was in possession and was dispossessed in the course of the delivery of possession. If the Court finds that the applicant was in possession, then the application has to be allowed and the applicant has to be put in possession of the property, but if, on the other hand, it finds that the applicant was not in possession, then the application has to be dismissed. In this view of the matter, the executing court investigated as to whether the applicants (Plffs.) were in possession on the relevant date and found that they failed to prove their case. The point for consideration is, as to what case the applicants (Plaintiffs) made out in course of the investigation and what case they have made out in the present plaint. The executing court referred to the evidence of the husband of Shakuran herself who had admitted in cross-examination that the applicants (Plffs.) were actually dispossessed by the delivery of possession effected by the pleader Commissioner. In the present suit also, the piffs. case was that the pleader Commissioner had gone with military police for giving delivery of possession and on being dispossessed, they filed an objection on 9-11-1953 under Order 21 Rule 100 of the Code of Civil Procedure. It is thus a suit under Order 21 Rule 103 of the Code of Civil Procedure after an adverse order against the plaintiffs in the miscellaneous case. They had paid a court fee of Rs. 22/8/- only for the relief claimed in the suit and had the suit been not under Order 21 Rule 103, they would have been liable to pay ad valorem court-fee required in a suit for declaration of title and recovery of possession. The plaintiff, therefore, cannot escape the bar of limitation on this ground.

(10) Learned counsel for the appellants next contended that the suit, in the circumstances of the present case, was not barred by limitation, inasmuch as the plaintiffs had filed an application in revision in this court. Certain dates are relevant in this connection. Miscellaneous Case No. 42 of 1953 was dismissed on 14-5-1954 and the plaintiffs filed Civil Revision No. 699 of 1954 on 3-8-1954 which was dismissed summarily on 16-9-1954. Exhibit J/2 is the order sheet of that revision. This suit was filed on 14-9-1955. It was held by the Full Bench in the case of lal Bihari Lall v. Bani Madhava Khatri, 1LR 28 Pat 102 : (AIR 1949 Pat 293 [LQ/PatHC/1949/2] ), that in a suit under Order 21 R. 63, Civil P. C.,. the plaintiffs were entitled under Section 14(1), Limitation Act, to the deduction of time spent in prosecuting in good faith and with due diligence, an abortive civil revision filed under a bona fide mistake of law or procedure, before the High Court against the adverse order passed on an application under Order 21 Rule 58, C. P. C. , In view of this decision, the plaintiffs are undoubtedly entitled to the deduction of time which was spent from the filing of the application in revision and till its summary dismissal. In other words, they are entitled to deduct the period from 3rd August 1954 to 16th September 1954, that is, 44 days, but even then, if the period of one year is. counted from the date of the dismissal of the miscellaneous case and an allowance is given of 44 days, their suit instituted on 14-9-55 would be barred by time, inasmuch as they made a long delay for a period of about a year in instituting the suit after the dismissal of their application in revision. In order to get rid of this difficulty, learned counsel for the appellants submitted that the "date of the order" in Article 11A of the Indian Limitation Act should be taken to mean the date of the final order, from which the period of one year prescribed for a suit under that Article, should commence. The learned Subordinate Judge, while dealing with the question of limitation relied on the observations of Manohar Lall J. in the case just referred to above, ILR 28 Pat 102: (AIR 1949 Pat 293 [LQ/PatHC/1949/2] ) (FB), and held that as the application in High Court was dismissed summarily, the Court did not substitute any order of its own ana as such, the period of limitation started from the date of the dismissal of the miscellaneous case and not from the date of the order of the High Court. In that case, the plaintiffs had preferred a claim under Order 21 Rule 58 which was rejected by the executing court on 24-4-1944. On 4-54944, the plaintiffs had applied to the High Court for revising the order. A rule was issued on 9-5-1944 and on 24-4-1945, Sinha J. dismissed the petition holding that the executing court had not committed any error of jurisdiction. The plaintiff then filed the suit under Order 21 R. 63 on 16-5-1945. The Subordinate Judge had held that the plaintiffs had acquired title to the house by virtue of their, purchase, but on the question of limitation, following the decision in the case of Radha Kishun v. Firm Srinivas Ram Kumar, ILR 23 Pat. 14: (AIR 1944 Pat 225 [LQ/PatHC/1943/86] ), he held that the plaintiffs were not entitled under Section 14 of the Limitation Act to exclude the period from 4th May 1944 to 24th April 1945 when the civil revision was pending in the High Court. He had thus dismissed the suit as time-barred. The question arose as to whether the plaintiffs were entitled under Section 14(1) of the Limitation Act to the deduction of time spent in prosecuting the civil revision before the High Court against the adverse order passed on an application under Order 21 Rule 58, C. P. C. I have already referred to what was held by their Lordships, but there was a further contention in that case that the final order in the claim case must be taken to be the order of the High Court dated 24-4-1945, Manohar Lall J. did not agree with that contention and observed as follows:

"The High Court has not substituted any order of its own, but has merely declined to exercise jurisdiction in this particular case with the result that the order in the claim case remains the order passed by the original court--the matter, of ceurse, would have been, different if the High Court had varied the order of the: original court".

Learned counsel for the appellants submitted that this observation was obiter and the only question before the Full Bench was, as to whether the plaintiffs were entitled to the deduction of time under Section 14(1) of the Limitation Act which they had taken in prosecuting a civil revision in High Court. It was further pointed out that the other learned Judges did not express any opinion on the question as to whether the time should run from the original order or the final order in the case of there being a revision in High Court. This submission has some force, inasmuch as the scope of the reference was limited and the questions which arose for consideration were, as to whether the case of ILR 23 Pat 14 : (AIR 1944 Pat 225 [LQ/PatHC/1943/86] ), was correctly decided and whether the plaintiffs in the case which was referred, were entitled under Section 14(1), Limitation Act, to the deduction of time spent by them in prosecuting civil revision application before the High Court against an adverse order passed against them on an application under Order 21 Rule 58 of the Code of Civil Procedure. All the same, it has to be seen as to in what background that observation was made. On the facts of that case, it was beyond doubt that the period of ona year had expired from the date of the dismissal of the claim case under Order 21 Rule 58 and the suit was filed beyond that period. A contention was raised before the Full Bench that the final order in the claim case should be taken to be the order of the High Court dated 24-4-1945, but that contention was repelled by Manohar Lall J. It is necessary to refer to Article 11A of the Indian Limitation Act and other decisions of this Court as well as other courts in order to appreciate the weight of that observation. Article 11A runs as follows: Description of suit Period of limitation. Time from which period begins to run.

"11A. By a person against whom an order has been made under the Code of Civil Procedure, 1908, upon an applica-tion by the holder of a decree for the possession of immoveable property or by the purchaser of such property sold in execution of a decree, complaining of resis-tance or obstruction to the delivery of posses-sion thereof, or upon an application by any per-son dispossessed of such property in the delivery of possession thereof to thedecree-holder or pur-chaser, to establish the right which he claims to thepresent possession of the property comprised in the order. One year. The date of the order."

Learned counsel for the appellants submitted that the expression "the date of the order" must be taken to mean the date of the final order passed on an. application made under Order 21 Rule 100 of the Code of Civil Procedure which was filed in the present case. He thus counted the period of limitation from the date of the dismissal of Civil Revision No. 699 of 1954 for Institution of the present suit giving rise to. this appeal. This question has been decided by some other courts as well, in Laxmandas v. Chunnilal, AIR 1931 Nag 17, it was held that Article 11-A did not contemplate computation of the period of limitation from the date of any order passed in revision. In Sm. Meghmala Debi v. Saday Parhya, AIR 1938 Cal 577 [LQ/CalHC/1938/138] , a similar question arose and it appears that the order in the claim proceedings was passed on 25-7-1933 against which there was apetition in revision to the High Court upon which a rule was issued on 14-11-1933. The rule was ultimately discharged on 29-1-1935 and on 1st March following, a suit was instituted under Order 21 Rule 103. The suit was dismissed by both the courts below on the ground that Article 11A of the Limitation Act operated as a bar to the plaintiffs suit. On appeal by the plaintiff, it was urged that time under Article 11A would, run from the date when the order was passed by the High Court in revision on 29-1-1935, but that contention was not accepted. Mukherjea J. (as he then was) observed that if the High Court in exercise of its powers under Section 115, C. P. C., refused to interfere in a claim case, it merely amounted to an abstention from exercising jurisdiction and the only final order that remained subsisting was the order passed by the trial court. It was further laid down that the situation might be different in case the High Court interfered in revision with the original decision. If the plaintiff had succeeded in the revisional petition, then the time so far as the defendants of that case were concerned, would certainly have run from the date when the High Court passed that order. In view of these observations, it was held that the only subsisting order against the plaintiff was the order that was passed by the trial court on 25-7-1933, and the suit not having commenced within a period of one year after that, was barred by limitation under Article 11A. In the case of ILR 23 Pat 14: (AIR 1944 Pat 225 [LQ/PatHC/1943/86] ), the application under Order 21 Rule 100 was rejected on 26-6-1939 and the suit was instituted on 6-12-1940, more than a year after the order of the executing court. The plaintiffs had filed an appeal against that order on 13-9-1939 before the High Court and the order of the High Court was that the appeal should be admitted, but in case it was found at the time of the hearing that no appeal lay, then the appeal might be treated as an application for revision. The appeal, however, was dismissed on 20-9-1940 on the ground that it was not competent, and the attempt to treat the memorandum as an application in revision was not successful, inasmuch as there was no error in the judgment of the Court attracting the operation of Section 115, C. P. C. It was common ground in that case that Article 11-A, Limitation Act, applied to that suit and inasmuch as the period of limitation provided in that Article was one year from the date of the order passed by the executing court, the plaintiffs suit was prima facie barred by limitation. The suit was dismissed on that ground and the plaintiffs had preferred an appeal before the High Court. The argument proceeded on the footing that the plaintiffs were entitled to the benefit of Section 14 of the Limitation Act and deduct the time spent by them in prosecuting the appeal in the High Court. It was held that the plaintiffs were not entitled to an extension of time under Section 14(1) of the Limitation Act, inasmuch as the refusal, of the High Court to interfere was not due to a defect of jurisdiction or any cause of a like nature. The correctness of this decision was considered by the Full Bench in ILR 28 Pat 102: (AIR 1949 Pat 293 [LQ/PatHC/1949/2] ), and it was held that that case was not correctly decided. I have referred to the case of ILR 23 Pat 14: (AIR 1944 Pat 225 [LQ/PatHC/1943/86] ), for the purpose of showing that so far as the computation of the period of limitation for a suit under Order 21 Rule 103 was concerned, that case had proceeded in the trial Court as well as in the appellate court (High Court) on the footing that the period of limitation, commenced from the date of the order passed by the executing court, and in fact, Fazl Ali C. J. had observed as follows:

"It is common ground that Article 11-A, Limitation Act, applies to the present suit and inasmuch as the period of limitation provided in that Article is one year from the date of the order passed by the executing Court, prima facie the plaintiffs suit is barred by limitation."

In the case of ILR 28 Pat 102: (AIR 1949 Pat 293 [LQ/PatHC/1949/2] ) (FB), as well, the suit was filed after one year of the dismissal of the claim case and a question arose as to whether the plaintiffs were entitled to the benefit of Section 14(1) of the Limitation Act. The suit in that case was obviously barred by time on computing the period of limitation from the date of the order of the executing court and thus it became necessary to consider the question of application of Section 14(1) of the Limitation Act. In case the period of limitation was to be counted from the date of the dismissal of the civil revision by the High Court, the suit was clearly within time and the other question with regard1 to the application of Section 14(1) would not have been at all relevant, The latter question became necessary to be considered on the footing that the suit was instituted beyond the period of limitation and the point, therefore, remained to be considered as to whether the plaintiffs were entitled to the benefit of Section 14(1). After the questions were answered by the Full Bench, the first appeal was again placed before Manohar Lall and Mahabir Prasad JJ., who had made the reference, and their Lordships allowed the appeal on 31-1-1949 holding that the plaintiffs suit was not barred by limitation and they were entitled to the benefit of Section 14(1) as decided by the Full Bench. I thus find that in both the cases, viz. ILR 23 Pat 14 : (AIR 1944 Pat 225 [LQ/PatHC/1943/86] ) and ILR 28 Pat 102: (AIR 1949 Pat 293 [LQ/PatHC/1949/2] ) (FB), the period of limitation for a suit under Order 21 Rule 100 or R. 63 was computed from the dismissal of the objections by the executing Court and the decisions of the cases rested upon the application of Section 14(1) of the Limitation Act Mr. Dutt for the respondents referred to Govinda Menon v. Krishna Pilial, (S) AIR 1955 Trav-Co. 51 (FB), and it was held there that for a suit under Article 11-A, Limitation Act, time ran from the date of the order of the execution Court rejecting objection to delivery and not from the date of the order passed on an infructuous and incompetent appeal or revision. He submitted that the view of this court had throughout been that the period of limitation should be counted from the date of the dismissal of the miscellaneous case by the executing court, irrespective of the fact whether there was a revision against that order by the party aggrieved. Mr. Chatterji for the appellants submitted that there was no justification for the view that if the High Court interfered in revision, then the order of the High Court was the subsisting order, but in case, it refused to interfere, then the order of the executing Court was the subsisting and final order. According to him, when a petition in revision was either dismissed or allowed, in both the cases it was the order of the High Court which was the subsisting order and not the order of the executing court. In other words, there was no distinction between the two orders of the High Court. He further urged that by filing an application in revision in the High Court, the proceedings were still continuing and the order of the executing court being the subject matter of attack in the revision, there was no finality to the order of the executing court till the disposal of the application in revision. In those circumstances, according to him, "the date ot the order" meant the date of the final order, be it either of the executing court, the appellate court in case there was an appeal, or the order passed on an application in revision even if the latter was dismissed for one reason or the other. In support of this, he referred to Venugopal Mudali v. Venkaiastibbiah Chetty, 1LR 39 Mad 1196 : (AIR 1916 Mad 883 [LQ/MadHC/1915/43] ). in that case, a claim petition itself was before a learned judge of the Madras High Court sitting singly on the original side and that petition was allowed in August 1909. There was an appeal against that order and a Division Bench of that Court confirmed the order on 21-12-1910. The plaintiff then instituted a suit on 16-12-1911 within one year of the order of the appellate Court but more than one year after the date of the order passed by the learned Judge sitting singly. An objection was raised on behalf of the defendant that the suit was barred by limitation under Article 11. It was held that the word "order" in Article 11 of the Limitation Act should be construed as meaning the only subsisting order, in the case, which was the appellate order (when there was an appeal), in accordance with the recognised principles of Jurisprudence. Sadasiva Ayyar J. observed as follows :

"I think that except to the extent to which the Statute law treats the judgment of the first court as existing for certain purposes, the Appellate courts judgment on general principles of jurisprudence supersedes the judgment of the first court even when the appellate judgment is a judgment confirming the lower courts decision : See Asma Bibi v. Ahmad Hussain, ILR 30 All. 290 at pp. 293 and 294."

Learned counsel has relied on this observation in support of his contention that the order dismissing the application in revision superseded the order of the executing court and, as such, the period of limitation should commence from the date of the dismissal of the revisional application. It is important to mention that the learned Judge himself made a distinction in the case of an application either for review or for revision which can be gathered from the following observation:

"In this respect an order rejecting a review petition stands on a different footing from a decision passed on appeal confirming the lower courts judgment and dismissing the appeal. If the decision on review or revision does interfere with the original decision, the former decision becomes the only subsisting order and stands on the same footing as the decision passed in a competent appeal. It will in that case become the starting point for limitation."

These observations of the learned Judge were noted in the case of AIR 1938 Cal 577 [LQ/CalHC/1938/138] and B. K. Mukherjea J. (as he then was) observed as follows:

"The learned Judges in that case, ILR 39 Mad 1196 : (AIR 1916 Mad 883 [LQ/MadHC/1915/43] ), pertinently pointed out that a somewhat different consideration would apply if a revision petition presented by an unsuccessful party in a claim proceeding is rejected by the superior court."

The decision in the case of ILR 39 Mad 1196 : (AIR 1916 Mad 883 [LQ/MadHC/1915/43] ), was cited before the Full Bench as well In Lal Bihari Lalls appeal, ILR 28 Pat 102 : (AIR 1949 Pat 293 [LQ/PatHC/1949/2] ), and Manohar Lall J., while making the observation, referred to above, and which is said to be obiter, pointed out that the view which he had taken was in conformity with that decision of the Madras High Court.

(11) The argument of Mr. Chatterji is no, doubt ingenious and plausible, but on a closer scrutiny it is not sustainable and we have to consider the wordings themselves of Article 11-A of the Indian Limitation Act. The statute does not include the words either original or final before the word "order" in that Article, but it has to be seen as to which is the order by which one is aggrieved for seeking another remedy to get that order either reversed or modified. There can be applications of various kinds as enumerated in column 1 of Article 11-A and we are concerned here with the application of persons who alleged to have been dispossessed of their property by reason of the delivery of possession obtained by the other party. On such an application, an order was passed by the executing court against the plaintiffs. The plaintiffs were aggrieved by that order and all persons coming within that category and who made applications under Order 21 Rule 100 would be aggrieved by adverse orders passed against them in one case or the other. In other words, that order is the order passed against the person making an application under Order 21 Rule 100. That order gives him a cause of action for a suit to establish the right which he claims to the present possession of the property comprised in that order. In case the application is allowed by the executing court, then that order would be against the person who had sought for delivery of possession and had taken possession of the property concerned and he will have a cause of action for a suit. The result is that the person aggrieved by the order of the executing court, whether he be either the claimant or the person who had applied for delivery of possession, has to compute the period of one year for a suit from the date of the adverse order against him. It should be then considered as to what would be the position, in case there is an application in revision against the order of executing court on an application under Order 21 Rule 100. If the revision is dismissed, either summarily or after final hearing, the person aggrieved can institute a suit, but he has to do it within one year of the dats of the order passed by the executing court, inasmuch as that was the adverse order against him which gave him a cause of action for a suit. He can in proper cases take the benefit of sec. 14(1) of the Indian Limitation Act and get an extension of time which he may have spent in proceeding with his application in revision in Nigh Court. But if the application in revision is allowed by the High Court, then the person having taken delivery of possession is aggrieved by the order of that court and that is the adverse order against him, giving him a cause of action for a suit which he may like to institute for one relief or the other. In other words, that order of the High Court would be the order passed on an application by any person dispossessed of such property in the delivery of possession thereof and the period of one year for the suit will the computed from the date of the order of the High Court. There may be cases when application in revision is allowed in part only and, in that event, both sides will be aggrieved by one part or the other ot the order and they may like to institute a suit under Order 21 Rule 103, The period of limitation for a suit in respect of the claim which could not succeed, either in the executing court or in High Court, would be one year from the date of the order of the executing court, but the plaintiff in that case might get the benefit of Section 14 (1) of the Indian Limitation Act. But as regards the other claim which was allowed by the High Court, the other party would count the period of one year from -the date of the order of the High Court tor a suit in respect of that claim. I am, therefore, of the view that the word "order" in that Article of Limitation Act really means the order adverse to a person which gives him a cause of action for a suit. This meaning is further clear, inasmuch as the words "a person against whom an order has been made" occur in that Article. In each case, a question will arise as to who was the person against whom the executing court made an order and the answer would be, in the event of the dismissal of the application, that the order was against the claimant. On the other hand, if the claim is allowed, then the order would be against the person having taken delivery of possession. A similar situation will arise in the event of there being an application in revision in High Court against the order of the executing court. Mr. Chatterji referred to K. venkata-swami v. Uttarkar Sara Bai AIR 1943 Mad 633 [LQ/MadHC/1943/75] in support of his proposition that the period of limitation should commence from the date of the order of the High Court in case of an application in revision. Two questions arose in that case. One was whether the case came under section 14, Limitation Act, and the second, whether the starting point under Article 11 of the Limitation Act was the date of the first order or the final order passed on a revision to the High Court. It was held that the time taken in proceeding with the application in revision in the High Court should be deducted under Section 14 (1). Dealing with the other question, Somayya J. observed that if the real reason for holding that in the case of an appeal, the starting point should be the date of the appellate order was that the appeal was a continuation of the proceeding of the trial court, the same reasoning should apply in thei case of a civil revision petition and there was no reason why a different construction should be applied in the case of a civil revision petition. Somayya J. further observed as follows :

"I am aware that a different view has been expressed in some judgments and I would say, speaking for myself, that there is much to be said in favour of the view that under Article 11, Limitation Act, the starting point should fee taken to be the date of the final order, whether that order was passed on an appeal from that order or whether it was passed in a civil revision petition from that order. Having regard to my decision on the first point, it is unnecessary to go further into this question".

That case could have been disposed of, on the application of the provisions of Section 14 (1) of the Indian Limitation Act and it was not necessary to decide the other question with regard to the starting point under Article 11. With respect, I may say that I do not find any justification for taking the view that the word :order" in Article 11A means the order rejecting the application in Civil Revision.

(12) Mr. Chatterji further referred to the case of Baijnath Sahai v. Ramgut Singh 23 Ind Aop 45 (PC). In that case, certain properties were sold by the collector for arrears of road cess. There was a petition before the Collector to set aside the sale on the ground of material irregularity and there was an appeal as well before the Commissioner against the sale. The commissioner dismissed the appeal and confirmed the sale. The Board of Revenue set aside the order of the commissioner and directed the Collector to proceed with the enquiry on the petition filed before him. The Collector set aside the sale on the ground of material irregularity causing substantial injury. The appeal against that order before the commissioner was unsuccessful. Later on, the Board of Revenue cancelled their first order as being wrong in law and reversed the order of the Collector which had set aside the sale, re-establishing the previous order of the commissioner which had upheld the sale. The persons whose property had been sold, filed a suit for getting the sale set aside. A question of limitation for the suit arose and it was urged that under Article 12 of the Limitation Act (Act XV of 1877) the suit should have been instituted within a year of the first confirmation of sale by the commissioner when the cause of action arose and that the revival of the order did not give a second cause of action or revive ona which had already been barred. On interpreting the words of Article 12, their Lordships held that there was no final, conclusive and definite order confirming the sale while the question whether the sale should be confirmed was in litigation or until the previous order of the commissioner became definite and operative by the final judgment of the Board of Revenue, or (in other words) that for the purpose of the Law of Limitation there was no final or definitive confirmation of the sale until that judgment. The period of limitation provided in Article 12 was to be computed from the time when the sale was confirmed, or would otherwise have become final and conclusive had no such suit been brought. On the wordings of that Article, their Lordships view was that while the parties were litigating before the revenue courts with regard to the confirmation of the sale, it could not be said until the final order was passed, that the sale had become either final or conclusive. Article 11A is worded differently and the decision cited is of no avail to the plaintiffs of this case,

(13) As a result of all these considerations on the question of limitation, I am of the view that the order dated 14-5-1954 (exhibit L/l) passed in Miscellaneous Case No. 42 of 1953 was adverse to the plaintiffs and: their cause of action accrued on that date. The period of limitation for their suit commenced then and they can take the benefit of Section 14 (1) of the Indian Limitation Act, but even then, their suit is barred by time on account of their laches in instituting the suit long after the dismissal of their application in revision by the High Court. I have already indicated that even excluding the period taken in proceeding with the application in revision in High Court the suit was beyond time. The suit, therefore, must be held to be barred by limitation.

(14) In the result, the appeal is dismissed, but without costs, in the circumstances of the present case.