The presumption that possession follows title can be applied to determine the merit of a suit and establish possession within the limitation period.

K.Sahai, J.

1. Second Appeal No. 776 of 1952 arises out of Title Suit No. 151 of 1948, and Second Appeal No. 77 of 1952 arises out of Title Suit No. 169 of 1948. Title Suit No. 151 was instituted by Gonour Sah for declaration of title to, and recovery of possession over, 6 kathas 10 dhurs of lands comprised in plot No. 253 appertaining to khata No. 103 in village Sain. Title Suit No. 169 was instituted by Jagdish Sah and another for declaration of title, and recovery of possession over, 5 kathas 10 dhurs of lands comprised in plot No. 308 appertaining to khata No. 94 in the same village. The plaintiffs of both the suits claimed to have purchased the lands in question under two registered deeds dated 27-6-1945, executed by one Dhurandhar Rai, son of Sunder Rai, who was the recorded tenant in respect of both the khatas.

2. Ramyad Singh was defendant No. 1 in both the suits, and he contested them. His case was that his father, Dwarka Rai, was a first cousin of Sunder Rai, and that Sunder and Dwarka were members of a Mitakshara joint Hindu family. He further alleged that Dwarka Rai was a minor during the survey operations, and Sunders name was recorded in the survey record-of-rights in respect of the lands in dispute in both the suits because he was then in charge of the family affairs. His case also was that Sunder Rai left village Sain a few years after the final publication of the survey record-of-rights and migrated permanently to village Kapur pakri after relinquishing his title and interest in the lands in dispute.

3. The learned Munsif who tried the suit held that Dwarka Rai was a cousin of Sunder Rai but was separate in status from him from before the survey operations, that Dwarka Rai had no interest in the lands in dispute which were recorded in the name of Sunder Rai, that the defence case that Sunder Rai had relinquished his interest in the disputed lands in favour of Dwarka Rai was not proved to be true, and that the plaintiffs had acquired title to the disputed lands by reason of their purchase. He, however, dismissed both the suits on the findings that the plaintiffs had failed to prove that they had subsisting title in the disputed lands, or, in other words, that they or their predecessor-in-title were in possession of those lands at any time within twelve years before, the institution of the suit,

The plaintiffs appeals against the learned Munsifs judgment and decrees were heard by the Subordinate Judge, 1st Court, of Muzafferpur. The learned Munsifs findings in favour of the plaintiffs were not challenged before him. The only point which he was called upon to consider was whether the suits instituted by the plaintiffs were barred by limitation, and, holding that they were not barred, he allowed the appeals and decreed the suits. Defendant No. 1 has, therefore, filed these second appeals in this Court.

4. Gonour Sah, who was respondent No. 1 in Second Appeal No. 776 of 1952, died on 19-11-1954, while the second appeal was pending in this Court. The appeal abated as substitution of Gonour Sahs heirs was not made in time. An application for setting aside the abatement was dismissed by an order of Raj Kishore Prasad, J. on 4-1-1956, Mr. Umesh Chandra Prasad Sinha, who has appeared on behalf of the appellant in both the appeals, has frankly conceded that he cannot press Second Appeal No. 776 because it has abated. That appeal, therefore, stands dismissed.

5. In view of the dismissal of Second Appeal No. 776, Mr. Prem Lall, who has appeared on behalf of the respondents in Second Appeal No. 777, has taken a preliminary objection that Second Appeal must also be held to have become incompetent. In support of this objection, he has relied upon a Full Bench decision of the Allahabad High Court in Zaharia V/s. Debia, ILR 33 All 51 (A), a decision of the Calcutta High Court in Isup Ali V/s. Gour Chandra Deb, 37 Cal LJ 184: (AIR 1923 Cal 496) (B) and a decision of this Court in Mrs. Getrude Oastes v. Mrs. Millicent DSi