Imam, J.This is an appeal by the defendants against the decision of the third Additional District Judge of Bhagalpur decreeing the plaintiffs suit praying for a declaration that he had acquired proprietary right in mouza Raisri Milik by adverse possession. The Subordinate Judge who tried the suit came to the conclusion that the plaintiff had acquired title over the said village by adverse possession. He, however, dismissed the suit as he was not satisfied that the plaintiff had established that there was any dispute between him and the defendants first party regarding the village in question in February 1942 and consequently no cause of action accrued to him. Several issues were framed before the learned Subordinate Judge amongst which issue 3 was as follows: "Is the suit barred by Section 42, Specific Relief Act" At the hearing this issue was not pressed and the Subordinate Judge consequently held that this section did not bar the suit. The plaintiff then appealed against the decision of the Subordinate Judge and urged two points before the lower appellate Court. The first point urged was that there had been interference by the defendants first party with the plaintiffs possession over the mauza in February 1942. The second point urged was that even without any proof of such interference the plaintiff was entitled to the relief that he sought for a declaratory decree in the suit. The appellants in this Court were faced with a finding contrary to their case, namely, that the plaintiff had acquired a title by adverse possession and apparently they did not make any submissions before the lower appellate Court against this finding.

2. Mr. Jha on behalf of the appellants has strongly contended that under the provisions of Section 42, Specific Relief Act, the suit ought to have been decreed (dismissed) as on the facts alleged by the plaintiff he could not get merely a declaratory decree. He ought to have sought further relief. He relied upon the proviso to Section 42. He further contended that even if in February the appellants interfered with the plaintiffs possession of the mauza that act amounted to dispossession.

3. Since no submissions appear to have been made before the lover appellate Court on behalf of the appellants against the finding of the Sub-bordinate Judge regarding the plaintiff Having acquired title by adverse possession, it seems to me somewhat difficult to permit the appellants in second appeal to re-open that question. But even if it were permissible to do so, the Subordinate Judge has given such ample reasons to justify his conclusion that it seems to me it would be sheer waste of time to repeat the grounds given by him. The most significant circumstance, in my judgment, which supports the case of the plaintiff is that ever since the year 1929 to 1942 them is no documentary evidence whatever to prove that the appellants ever collected, as proprietors, rent from the tenants of the village in question. Indeed the defendant 1 as D.W. 1 admitted that the defendants first party never collected rent from the tenants of the mauza in suit.

4. On the other hand, the plaintiff produced series of rent receipts to show that the tenants of the village had been paying rent to him. He also produced a sale certificate, Ex. 7 series, which would show that the plaintiff had in execution of his rent decrees got some of the lands of the mauza sold and that he purchased some of those lands. I need not say any more than this that the finding of fact on this question by the Subordinate Judge was fully justified and does not appear to have been questioned before the lower appellate Court. It follows, therefore, that both the Courts below wore right in holding that the plaintiff has acquired title over the village in question by adverse possession.

4. As to the objection raised Mr. Jha that Section 42, Specific Relief Act, is a bar to giving the plaintiff the declaration which he sought, it is sufficient to say that this was not pressed before the Subordinate Judge and he held that Section 42 was not a bar. The lower appellate Court held that in February 1942 the defendants first party did interfere with the possession of the plaintiff. Interference with possession is not necessarily dispossession. It would also appear that there is no reliable evidence of any kind to show that the plaintiff was ever dispossessed by any act of the defendants. It seems to me, therefore, that apart from a mere declaration of his title the plaintiff had no need to ask for any further relief. That he was entitled to ask for the declaration seems to be clear in view of the cloud which had been thrown on his title by the conduct of the defendants in attempting to collect rent from the village as proprietors. In these circumstances, I am of the opinion that the lower appellate Court rightly ordered that the plaintiffs title to the village in question will be declared. The appeal must be dismissed with costs.

Das J

I agree.