Fletcher, J.:-

This is an appeal from a decision of the learned Subordinate Judge of Cuttack, dated the 28th March, 1912. The defendants are the appellants before us. The plaintiff brought this suit to recover possession of certain lands from the defendants. One of the issues raised in the case was whether the suit was barred by limitation. The learned Judge found that the suit was barred by limitation ; but he considered that as the title was originally in the plaintiff, he ought to give the plaintiff relief by way of making a declaration of title in his favour. Against that decision, the present defendants have appealed to this Court.

From the facts found by the learned Judge of the Court below, it is clear that the case is barred by limitation. The learned Judge also found so. The defendants' ancestor had a lease of this property, which expired more than 12 years ago. At any rate, the learned Judge has found that no fresh agreement was entered into between the parties nor was there any evidence from which it could be inferred that there was a new tenancy. The question, therefore, arises, " Does Art. 139 of the Second Schedule to the Indian Limitation Act apply to a case like this ?"

The decisions of this Court are that Art. 139 does apply. A tenancy by sufferance by a tenant holding over whose lease has expired, does not apply in this country. That has been held in the case of Madan Mohan Gossain v. Kumar Rameshwar Malta, (1907) 7 CLJ 615. A similar view has been adopted by the Bombay High Court in the case of Chandri v. Daji Bhau (1900) 24 Bom 504 : 2 Bom LR 491.

The result, therefore, is that the present suit is, as the learned Subordinate Judge says, clearly barred by limitation. The learned Judge, however, has considered that in a case of this nature, when the suit is barred, the title still remains vested in the plaintiff. That obviously is not so : under S. 28 of the Indian Limitation Act, it is expressly provided that at the expiration of the period prescribed by the Act for limitation of suits, not only is the remedy barred but the right is gone. That is quite clear. That being so, the statute has operated to revoke the estate that was originally vested in the plaintiff, and to confer a statutory estate upon the defendants. In that view, the judgment appealed from cannot be supported.

The present appeal must, therefore, be allowed and the plaintiff's suit dismissed with costs both in this Court as well as in the lower Court. The hearing fee will be according to the scale of the Court on the value of the suit.

Nobody appearing in support of the cross-appeal it is dismissed.

Richardson, J. :- I agree.

On an application for review of the judgment the following judgment was delivered after the appeal was re heard in the presence of both parties.

Fletcher, J. :-The point that we dealt with on the last occasion was a point of law arising on the findings of fact made by the learned Subordinate Judge in his judgment. On that occasion, Sir Rash Behari Ghose on behalf of the appellants accepted the findings of fact made by the learned Subordinate Judge, and argued that the learned Judge had arrived at a wrong conclusion on a point of law.

We accepted the argument put forward by Sir Rash Behari, and decreed the appeal. On the appeal coming on before us for re-hearing, both sides agree that on the findings of fact made by the learned Judge of the Court below, his judgment cannot stand. But the learned Counsel for the plaintiff-respondent, has asked us to dissent from the findings of fact made by the learned Subordinate Judge, on which his judgment is based. The defendants who are the appellants before us, claim through their grand-father who had got a lease of the property for 18 years in the benami of Bishnupriya. That lease expired in 1880.

The story put forward by the plaintiff is that there was a verbal lease or arrangement between one Hari Ballav Bose and the former Mohunt Hayagriba in the year 1887. The evidence shows that the late