Symbolical possession delivered to the decree-holder auction-purchaser is equivalent to actual possession and a suit for recovery of actual possession brought within twelve years from the date of the symbolical possession is within time.

Narayan, J.

1. The defendants are the appellants, and the appeal arises out of a suit for declaration of title and recovery of possession with regard to 284 bighas 15 kathas 7 dhurs of raiyati land which was held by the defendants under Damodar Prasad, Deokinandan Prasad and Girdhar Prasad, the adoptive father of plaintiff No. 4 who were full brothers. This disputed property is a portion of a holding having an area of 286 bighas 19 kathas 2 dhurs and carrying an annual jama of Rs. 570/15/- including cess. In 1929 a rent suit was instituted against the defendants for the realisation of rent for 1335 and 12 annas kist of 1336, and the suit was decreed on 12-2-1930. This decree was executed thrice, for the first time in the year 1932, for the second time in the year 1933 and for the last time in the year 1935. The decree was for a sum of Rs. 1066/- and for interest thereon, and certain payments were made in the first two executions. In the last execution the entire holding was sold for Rs. 1006/- on 19-5-1936, and possession was delivered to the decree-holders auction-purchasers on 27-11-1937.

2. By a partition amongst the three brothers mauza Belwara in which the property in suit lies was allotted to the share of Girdhar Prasad, the father of plaintiff NOrder 4. Girdhar Prasad died in October 1942, and his heirs are the plaintiffs second-party in this suit. The plaintiff NOrder 4 is his adopted son, and the plaintiffs Nos. 5, 6 and 7 are the sons of plaintiff NOrder 4. The plaintiffs second-party are the members of a joint Hindu family, and the plaintiffs first-party are the members of another joint Hindu family. The case put forward by the plaintiffs was that ever since the date of delivery of possession the decree-holders auction-purchasers had been in possession of the lands. The plaintiffs have further alleged that in the year 1351 fasli one Basdec Kumar took raiyati settlement of 1 bigha kathas 16 dhurs out of this land from the plaintiffs second-party and have been in possession of it since then and that under a hukumnama dated 2nd March 1351 fasli the plaintiffs first-party took raiyati settlement of the remaining 285 bighas 18 kathas 6 dhurs of land from the plaintiffs second-party at an annual jama of Rs. 857/4/9. The plaintiffs first-party are said to have subsequently sold 19 kathas 19 dhurs out of the land settled with them to one Dukhi Gope. According to the plaintiffs allegation 284 bighas 15 kathas 7 dhurs of land was left with the plaintiffs first-party, and this is the subject of this suit. In the year 1945 there were certain criminal proceedings with regard to these lands, and ultimately on 18-2-1947 the learned Magistrate of Khagaria passed an order adverse to the plaintiffs, and it is said that on the strength of this order the defendants dispossessed the plaintiffs from the property in suit on 21-2-1947.

3. The defence substantially was that possession had never been transferred to the decree-holders auction-purchasers and that under an arrangement arrived at between the landlords and these defendants, they paid off the entire decretal amount and were allowed to continue in possession of the holding. The learned Sub-ordinate Judge has accepted the defendants version that their possession " was never actually disturbed, but he has discredited the defendants story to the effect that there was an arrangement between them and the landlords, according to which the decree had been satisfied and they had been allowed to hold over as tenants.

4. The first execution case was filed on 25-4-1932, and it was dismissed on part satisfaction on 8-8-1932. The amount paid towards the decree in this execution case was only Rs. 10.00 though the execution had been taken out for Rs. 1413/5. The second execution case was filed on 8-4-1933, and it was dismissed on part satisfaction on 4-9-1933. The amount paid in this execution case appears to have been Rs. 377/- only. The third execution case in which the property was sol