Edward Chamier, C.J.This was a suit by the appellants for the removal of an osarah or verandah erected by the respondents on a plot of land in front of and immediately adjoining the plaintiffs house. There was another claim which has been allowed and there is no appeal as to that. The Court of first instance and the Court of first appeal held that the plaintiffs were and had been for some time (the number of years is not stated) in peaceable and exclusive possession of the plot as part of their sehan, when the respondents built the verandah on it and thereby dispossessed the appellants from a portion of it. Those Courts agreed in giving the appellants a decree for possession of the land and for removal of the verandah. On second appeal to this Court that decree has been set aside. The learned Judge who heard the appeal said that on the findings of the Court of first appeal it was open to that Court to infer that the plaintiffs had a better title than the defendants and grant the plaintiffs a decree, but unfortunately it did not draw that inference. It has distinctly held that the plaintiffs had no title." The appellants admit no doubt that the plot in question belongs to the zemindars of the village, but they claim a decree for possession against the respondents as trespassers on the strength of their (the plaintiffs) previous possession of the land, and this in my opinion they are entitled to do.

2. In Nisa Chand Gaita v. Kanchiram Bagani 26 C. 579 ; 3 C.W.N. 568 ; 13 Ind. Dec. (N.S.) it was held that mere previous possession short of the statutory period of twelve years will not entitle a plaintiff to a decree for possession in a suit against a trespasser brought more than six months after dispossession, i.e., in a suit not brought u/s 9 of the Specific Relief Act. But that decision is inconsistent with certain previous decisions of the Calcutta High Court and with the decision in Shama Charan Roy v. Surja Kanta 6 Ind. Cas. 806 ; 15 C.W.N. 163. It is also contrary to a long line of cases in the Bombay, Madras and Allahabad High Courts. I need only refer to the decisions in Pemaraj Bhavaniram v. Narayan Shivaram Khisti 6 B. 215 ; 6 Ind. Jur. 416 ; 3 Ind. Dec. 601; Krishnacharya v. Lingawa 20 B. 270 ; 10 Ind. Dec. 738; Hanmantrav v. Secretary of State 25 B. 287 ; 2 BL.R. 1111 (judgment of Jenkins, C.J.); Wali Ahmad Khan v Ajudhia Kandu 13 A. 537 ; . (1891) A.W.N196 ; 7 Ind. Dec. 340; Gobind Prasad v. Mohan Lal 24 A. 157; Umrao Singh v. Ramji Das 22 Ind. Cas. 622 ; 11 A.L.J. 1012 ; 36 A. 51; Mustapha Saheb v. Santha Pillai 23 M. 179 ; 8 Ind. Dec. (N.S.) 524 (judgment of Ayyar J.); Kalyanam Basavaya v. Alakam Mallappa 15 Ind. Cas. 613 and Neelagara Lingama v. Kinnahal Hampiah 17 Ind. Cas. 167 . The view taken in those cases was accepted by this Court in Haradhan Mandal Modak v. Iswar Das Marwari 38 Ind. Cas. 797 ; 2 P.L.J. 61 and seems to me to be supported by the judgment of their Lordships of the Privy Council in Sundar v. Parbati 12 A. 51 at p. 56 ; 16 I.A. 186 ; 5 S. P.C.J. 448 ; 6 Ind. Dec. 782 and Ismail Ariff v, Mahomed Ghous 20 C. 834 ; 20 I.A. 90 ; 6 S P.C.J. 305 ; 17 Ind. Jur. 321 ; 10 Ind. Dec. 561 by well-known decisions of the Courts in England which are referred to in some of the judgments.

3. It has been said in some cases that a passage in the judgment of their Lordships in Wise v. Ameerunnissa Khatoon 7 I.A. 73 at p. 80 ; 6 C.L.R. 249 ; 4 S. P.C.J. 127 is authority for the contrary view, but it appears to me that the passage must be read in conjunction with the finding that the defendants in that suit were entitled to the land under their settlement with the Government to whom it belonged. Under those circumstances the plaintiffs could not recover on the strength of previous possession except in a suit u/s 9 of the Specific Ralief Act.

4. Both on principle and on authority it seems to me to be clear that the appellants are entitled, on the strength of their previous possession peaceably enjoyed, to a decree for possession against the respondents who are mere trespassers.

5. I would allow this appeal, set aside the judgment of the learned Judge of this Court and dismiss the appeal to this Court with costs of both hearings.

Sharfuddin, J.

6. I agree.